UT Law School’s First Amendment Center: An Update

Louis K. Bonham

Last fall, I chronicled what happened when I raised questions concerning the political correctness hobbles that the University of Texas Law School apparently placed on its Law and Religion Clinic, which is sponsored by the newly-endowed Bech-Loughlin First Amendment Center. Specifically, I questioned the following statement on the clinic’s official webpage:

Texas Law is a diverse and inclusive institution. The Law and Religion Clinic will contribute to that inclusivity, both by representing parties with a wide range of beliefs and nonbeliefs and by respecting the interests of those who study and work here. The Clinic therefore will not engage in litigation that can succeed only at the expense of the rights of groups represented in our community [emphasis added].

I asked: What does this mean? Where did it come from? Are any other UT Law clinics subject to this kind of substantive restriction? Is said restriction intended to preclude the Law and Religion Clinic from taking Masterpiece Cakeshop-type cases because the LGBT crowd might not like it?

In response to my initial inquiries, UT Law Dean Ward Farnsworth declined to discuss the matter with me unless I first provided “a complete list of [my] online and print publications so that I can responsibly consider whether to proceed with the discussion.” A request for a statement from UT’s press office resulted in a vague official non-answer that I was told originated from the Law School:

The statement on the clinic website describes the scope of cases the clinic intends to take on. That scope was developed collaboratively by the director of the clinic, Law School faculty members, and the dean. All of our clinics choose the kinds of cases they will focus on, based on a combination of the clinic’s mission, its pedagogical aims, and legal topics that will attract students. The Law and Religion Clinic will be taking cases that reflect the Law School's judgment about the best use of the clinic's resources and how to make participation in the clinic attractive to a wide range of students.

As I indicated in my previous article, this statement conspicuously avoided answering any of my actual questions.

To try and get to the bottom of this, I made a number of formal open records requests to the University of Texas and asked some of the involved parties for comment. While I have had some communications with people at UT Law, only one was willing to speak on the record about this, and UT redacted a considerable amount of requested material under what I believe are rather specious bases. Nevertheless, the public records UT did produce and the information I was able to obtain tell a rather troubling story of preemptive surrender and appeasement, rather than standing up for the principles of free speech and free inquiry that UT claims are paramount.

When I sent my initial e-mail to Dean Farnsworth asking questions, I also sent copies to a number of other alumni who share many of my concerns regarding what has been going on at UT Law. Coincidentally, one such alumnus knew one of the benefactors of the First Amendment Clinic and forwarded him a copy of my e-mail. That donor promptly wrote Dean Farnsworth:

Fyi----let’s discuss whether it is important to take a stand early that the law and due process is for everyone who has their first amendment rights violated---even if unpopular---the whole point is to find solutions, through civil discourse and through representation, to protect the Constitutional rights of all persons

Another donor was similarly concerned:

While I think that Mr. Bonham’s conclusions are a bit overboard, I 100% agree that the statement“The Clinic therefore will not engage in litigation that can succeed only at the expense of the rights of groups represented in our community” is at best word salad trying to pre-appease certain factions and is at worst completely antithetical to what I believe the clinic is trying to represent. Maybe some insight into the intent behind this statement would help me better understand.

Apparently, neither benefactor had been advised of the clinic’s statement before my forwarded e-mail brought it to their attention.

In response, Dean Farnsworth confirmed what I suspected: that the language was indeed intended to preclude the Law and Religion Clinic from taking Masterpiece Cakeshop cases, and that this had been the intention from the start:

Sam, when we discussed this, I think we understood ourselves not to be set up for cakeshop cases where people are fighting on religious grounds to avoid complying with anti- discrimination laws. That฀s what the statement is trying to capture. I remember you saying that the project would not survive very long if those were its undertakings, and I thought you were right. I฀m very happy to discuss anytime if you have different ideas about what to say.

Nevertheless, both donors remained concerned with the vague and sweeping nature of the language (especially the concern I had raised—that “rights” can be read to mean just about anything, and thus the statement could be used to argue that virtually any case the clinic might want to take was prohibited by it), and they proposed several alternatives. Dean Farnsworth ultimately suggested changing “rights” to “legal rights” (a change which, as noted in the original article, was ultimately made to the clinic’s webpage).

Clinic Director Steve Collis then joined the conversation:

I’m sorry to be late to the party today; I’ve been on calls all morning and early afternoon. Doug and Sam, I share your concerns—in an ideal world, we wouldn’t need that sentence. But I do think it serves a valuable purpose now, at the launch, to lighten the fire we receive from certain corners. Given its practical necessity, the question for me was how to word it so I felt I had a defensible perimeter. What do I mean by“defensible perimeter”? I needed the language to be at least precise and narrow enough that, for any case the clinic takes, I could make strong, plausible arguments for why the case doesn’t run afoul of that sentence. I’m confident the language we have (including if we add “legal” before “rights”) gives me that. I have no doubt certain opponents will disagree with my arguments, but I don’t care if they disagree; I care that I can make plausible, convincing arguments in response.

The language some folks were pushing for was extremely broad (just one example: no case that would harm the dignity of folks in the law school), so much so that I felt precisely the same worries you both have expressed. I pushed back on all of those formulations. But what we’ve developed gives me an intellectual perimeter I can maintain. I can defend myself, the Center, the students, and the Clinic from any attacks that come our way.

There’s much more in the documents from UT. But for now, let’s unpack what this exchange between Dean Farnsworth, the benefactors of the First Amendment Center, and the director of the Law and Religion Clinic reveals and what questions it raises.

First, contrary to UT’s official statement that the scope of cases the Law and Religion Clinic would take was “developed collaboratively by the director of the clinic, Law School faculty members, and the dean,” the UT Law administration had in fact decided that the Law and Religion Clinic would not take Masterpiece Cakeshop cases from the very beginning, long before the clinic director was even interviewed. UT Law Professor Emeritus and noted First Amendment scholar Doug Laycock confirms that fact, as well as his thinking behind it:

So to answer your specific question, I was aware of this decision long before news of the planned clinic began to circulate within the building, I thought it was appropriate., and I supported it. I might even been the first to explicitly suggest it, although I don't remember, and I think most of the small group involved in planning were thinking more or less the same thing independently. The decision was not made in response to anyone's complaint. 

It is fair to say that the decision was made in anticipation of the likelihood that some members of the law school community inevitably would complain. That is unfortunate, but it is also educationally sound, and for multiple reasons. 

Controversial law reform cases can be fun, and some clinics do them. But most clinicians believe that teaching skills is best done with smaller, more manageable cases, in which a student can complete significant tasks and make significant progress in a single semester. There are plenty of routine cases for the clinic to work on that will better serve its educational goals than the next Masterpiece Cakeshop.  

If there were to be frequent controversy about the clinic's caseload, that would deter students from enrolling and distort the experience of those who did enroll. And the clinic might have a different and less distinguished director. Attracting Professor Collis to Texas from Stanford was a recruitment coup. I haven't asked him, but I doubt that he would have come if he had expected to be the target of frequent protests, or if we had defined the job in a way that made such protests likely.     

As for academic freedom, this is not a case in which UT hired a new professor and then later shrank his scope of action or told him what he couldn't do. The scope of the job and scope of the clinic were fully discussed in the recruitment process, and the limit you object to was part of the original deal. Professor Collis supported the clinic's planned scope, and as I said, I think it was probably an attraction of the job rather than a deterrent. Both he and we were well aware of the successful Religious Liberty Clinic at Stanford, and for some purposes, including this one, we used it as a model. 

To be clear, Professor Laycock is hardly a raving social justice warrior on this issue: he filed powerful amicus curiae briefs in both Masterpiece Cakeshop and Fulton v. City of Philadelphia arguing in favor of the religious liberty position, and he rightly enjoys a preeminent reputation as an educator and First Amendment scholar and advocate. As a practical matter, I can understand that a clinical professor might well decide that cases with shorter half-lives and lower profiles than Masterpiece Cakeshop cases are better pedagogical vehicles for teaching students how to handle cases. Indeed, Professor Collis might well have decided this on his own for the same reasons Professor Laycock articulates, and I would have no issue with him if he did. But when UT claims that this decision was reached “collaboratively” with him, it is being less than truthful: the law school administration had preemptively granted the hecklers their veto long before the director was hired or even interviewed.

Second, if UT decided up front that the Law and Religion Clinic would be forbidden from taking Masterpiece Cakeshop cases—for whatever reason—then why would the Law School not be honest and simply say that? UT justified its redaction of large swaths of materials I requested on the grounds that they were purportedly part of the “deliberative process” concerning the policy decisions of a governmental body. If that’s the case, then why hide this official policy decision of a Texas state agency behind an ambiguous “word salad,” anodyne press statements, refusals to speak on record (Professor Laycock excepted), and thickets of heavily redacted documents requiring alumni and taxpayers to jump through legal hoops to get the real answers? To me, the reason is obvious: to admit to such a preemptive surrender on this issue might well create backlash from non-woke alumni, donors, and quite possibly the Texas Legislature. Such backlash would be understandable, especially given that the myriad UT Law clinics specializing in “progressive” issues are not subject to similar political limitations and would likely complain loudly about any effort to similarly constrain their academic freedom by restricting the cases they handle.

Third, why the need for the oh-so-PC public statement on the clinic’s webpage —especially when no other UT Law clinic has a similar one, and when neither the benefactors nor the clinic director seem particularly fond of it? Having made the decision from the start that the Law & Religion Clinic would not take Masterpiece Cakeshop cases, and apparently that this decision would be kept opaque, why the need for the ritual PC kowtowing? UT’s records reveal the reason: appeasing a cadre of faculty Dean Farnsworth refers to as “Larry and friends.”

Shortly after interview candidates for the Law and Religion Clinic director’s position were announced to the faculty in early 2020, “Larry and friends”—former Dean Lawrence Sager (forced to resign as Dean in 2011 amid a compensation scandal) and Professors Elizabeth Sepper and Joseph Fiskin—expressed their “concerns” about the proposed Law and Religion Clinic to the dean in charge of UT Law’s clinical programs. (All of these academics stridently disagree with the religious liberty arguments made in Masterpiece Cakeshop but are not shown as being part of any UT clinic.) Former Dean Sager even suggested renaming the clinic but was told that the name had been set in the endowment papers. “Larry and friends” then drafted a proposed mission statement for the Law and Religion Clinic in February 2020. According to Professor Collis (see his quote above), this included a prohibition of the clinic taking any cases that would “harm the dignity of folks in the law school.” (Perhaps not coincidentally, the concept of “dignitary torts” as a way around Masterpiece Cakeshop religious liberty assertions is one of Professor Sepper’s favorite hobbyhorses.)

After Professor Collis was hired, he was presented with the mission statement developed by “Larry and friends.” As noted above, while he ultimately was able to reduce it to something he felt gave him a “defensible perimeter,” he nonetheless regarded it as a “practical necessity” to “lighten the fire we receive from certain quarters” . . . i.e., not unlike Vaclav Havel’s greengrocer in “The Power of the Powerless.”

Indeed, by so indulging the hecklers, UT Law may well find itself hoisted on its own petard. By discarding the usual practice of allowing the director of a clinic the academic freedom and discretion to decide what cases to take, and by instead setting an external yardstick that UT Law clinics may not take cases that “can succeed only at the expense of the legal rights of members of the community,” what precedent has the Law School now set for itself? Is it now fair game to complain that the Environmental Law Clinic should not be permitted to take cases that might impact the rights and livelihoods of “members of the community,” such as those with jobs or interests in the oil and gas industry? Or if the Supreme Court Advocacy Clinic wants to file an amicus brief in a Second Amendment case (on either side of the issue), can it not do so because the outcome would impact the “legal rights” of someone in the community (i.e., gun owners or those who feel their rights are infringed by private gun ownership)?

Or is it UT Law’s official policy—again, as a Texas state actor subject to the Fourteenth Amendment—that its newfound principle of “don’t take cases that might impact the legal rights of members of the community” is to be applied selectively, and to only one side of the ledger?

Much more fundamentally, what is the lesson being taught at UT Law by this episode? If the purpose of law school is to train lawyers to practice law, one thing young lawyers must learn is that they will have to deal with clients, colleagues, judges, juries, and adversaries who are going to have positions with which they disagree (or may well find abhorrent). That’s a reality that lawyers not only have to deal with, but also one in which they must be willing to embrace and operate effectively. Teaching law students that it is an appropriate strategy to simply dismiss, vilify, or attempt to deplatform positions with which they disagree—even when such positions are, like the religious liberty arguments made in Masterpiece Cakeshop, predicated on substantial and serious legal arguments—is hardly useful for training effective lawyers. If UT Law’s students want to actually become lawyers and not merely activists (if the latter, UT’s LBJ School of Public Affairs is right across Red River Street), they will eventually have to grow up and understand that their “feelz” have little or nothing to do with effective lawyering; indeed, focusing on feelings is largely counterproductive to their clients’ interests. For the institution, the lesson being taught is that if a faction threatens to make enough noise, the administration will yield, and principles of academic freedom and free speech be damned. Granting such “heckler’s vetoes”—and, even worse, doing so preemptively—only encourages more such behavior, further eroding free expression and academic inquiry.

I am reminded of a quote attributed to legendary UT Law Dean Page Keeton, who was often pushed by alumni and politicians to rein in or get rid of various faculty members who were espousing unpopular viewpoints. He was reported to have responded to them as follows:

Well, we have people on the faculty that feel just as you do about the [particular social] issue that you're talking about, except for one thing. They believe in the idea that we ought to have freedom of thought on the faculty, and we ought to tolerate people on the faculty that disagree. ... In other words, they agree with your position on this issue, except they don't agree with your position that nobody else ought to be on the law faculty with a different position.

It is truly unfortunate that this no longer appears to be the case at UT Law. That this is now being exemplified in the context of a newly endowed First Amendment Center is particularly sad and ironic. Freedom of thought and expression is allowed . . . as long as the arguments presented are the “correct” ones that genuflect at the altar of political correctness and don’t affect the “feelz” of particular groups. And the possibility that a law clinic might take cases that certain law students or faculty don’t like . . . quelle horreur!

New UT president Jay Hartzell has recently written that there is no higher education without free speech:

I believe the goal of a public research university, as an educational institution, is to open the minds of our students, expose them to different perspectives and beliefs, and prepare them to lead extraordinary lives after graduation. That doesn’t happen in an echo chamber. That doesn’t happen when everyone agrees. It happens when beliefs and preconceptions are tested. That’s how we teach and that’s how we learn.

That’s great if he truly believes it. Veteran UT watchers may view this as just the routine seasonal posturing to stave off backlash by Texas legislators who are increasingly fed up with UT’s ingrained culture of political correctness—such as UT Austin’s Orwellian Faculty Diversity, Equity, and Inclusion, Strategic Plan that President Hartzell may be quietly delaying until the Legislature is safely adjourned. However, if Hartzell really means what he has said, then he would do well to look into what is going on at UT Law and why its professors feel they must set up “defensible perimeters” from activist students and their own colleagues to do their jobs.

I’m not holding my breath that he will.

Louis K. Bonham is an intellectual property litigator. He is a graduate of the University of Texas (BA ’83, JD ’86), was an Articles Editor on the Texas Law Review, and served as a law clerk to the Hon. Edith H. Jones of the US Court of Appeals for the Fifth Circuit.

Image: Zereshk, Wikimedia CommonsCreative Commons Attribution-Share Alike 3.0 Unported license, cropped.

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