UT Law School’s New First Amendment Center: A Potemkin Village?

Louis K. Bonham

As a University of Texas Law School alumnus (JD ’86), I recently received an email from Dean Ward Farnsworth, in which he announced the law school’s newly-endowed First Amendment Center, and that the center would operate a Law and Religion Clinic specializing in free exercise cases. Dean Farnsworth‘s letter proclaimed that “we live in an era when civil discourse between people with different views has often become very difficult. I believe it’s important for us to show leadership on this fundamental issue.”

Initially, I saw this as very welcome news. UT has an abysmal reputation on free speech (in a recent survey of 55 major U.S. universities, UT was ranked as the worst public school, and the second worst overall, when it comes to free speech on campus). Especially in light of the Orwellian “faculty diversity and inclusion” initiative that UT is presently pushing, leadership from the law school for First Amendment principles is sorely needed. And in this era of “cancel culture” and enforced ideological conformity on campus, perhaps this announcement was a sign that the law school would return to its roots, when faculty could teach First Amendment advocacy by example—such as in the 1980’s, when UT Law professors Sandy Levinson and Ed Sherman worked with the ACLU to successfully represent the KKK in its contested efforts to get a parade permit from the City of Austin, despite the fact that neither of these scholars had anything but disgust for the Klan.

I was also encouraged when I read the CV of Steve Collis, who has been tapped to run the Law and Religion Clinic. I do not know Prof. Collis and have never spoken to him, but he has an excellent reputation as a serious First Amendment scholar and advocate. And while UT Law has no shortage of clinics that focus on advocacy of left-leaning positions, it has few if any for conservative or originalist causes.

Unfortunately, I then read the fine print. The official webpage for the new Law and Religion Clinic contains the usual cheery descriptions of what the clinic plans to do,but then ended with this bombshell, which has since been revised (more on that later):

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].

What in the world does that mean? Last I checked, the First Amendment does not contain an exception in the free exercise clause for when free exercise is “at the expense of the rights of groups represented in [the] community.” Does this statement signal that the clinic will not take cases like Masterpiece Cakeshop, because UT’s LGBT community might not like it? Or a case raising free exercise issues like Little Sisters of the Poor, because a “group represented in our community” objects? Given that litigation is typically a zero-sum game in which one side wins and the other side loses, isn’t every free exercise case at some level at “the expense of the rights of groups represented in our community”?

More importantly, why did UT Law feel the need to impose this amorphous limitation on the Law and Religion Clinic? To my knowledge, no other UT Law clinic is subject to these kinds of substantive restrictions (whatever they mean). Indeed, when I was a student, if the Law School (or the UT administration, or the state legislature) had tried to tell the legendary Michael Tigar what cases his Appellate Advocacy Clinic could or could not take, I daresay he would have told them exactly what they could do with their restrictions, and the Law School faculty would almost certainly have complained that any such restrictions violated his academic freedom. Why then is the Law and Religion Clinic apparently being singled out? And where did these restrictions come from?

I thus replied to Dean Farnsworth’s letter and raised these questions. After initially agreeing to discuss them with me, he abruptly changed course after I disclosed that I would likely be writing on this and asked whether any of the other UT Law clinics were subject to similar restrictions. He indicated that he required “a complete list of your online and print publications so that I can responsibly consider whether to proceed with the discussion.”

So much for cordial alumni relations.

I then reached out to UT Press Officer J.B. Bird for an official statement, asking inter alia exactly what the restrictions mean (including whether they were meant to preclude representation in cases such as Masterpiece Cakeshop), where the restrictions came from, and whether other law school clinics had similar restrictions. He ultimately informed me that the statement on the Law and Religion Clinic page had been modified slightly (“rights of groups represented” is now “legal rights of groups represented”) and sent the following comment that he indicated came 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.

Note that UT conspicuously declined, as did Dean Farnsworth, to answer the questions I asked. Indeed, while UT says that all of its clinics “choose the kinds of cases they will focus on,” the scope of the Law and Religion Clinic’s choices is apparently dictated by “the Law School’s judgment.” Facially, it appears that the Law and Religion Clinic is being treated differently than other clinics, which do not appear to have their scopes “developed collaboratively” with non-clinic faculty.

So, what does the statement really mean, and how did it come about? The Law School isn’t saying. Fortunately, UT and the Law School are subject to the Texas Public Information Act (f/k/a the Texas Open Records Act). I have submitted a request for records that should shed some light on this and that will supplement this article once I obtain the requested records.

The obvious suspicion is that certain “woke” faculty members pitched a fit when they learned of plans for the First Amendment Center and the Law and Religion Clinic, insisting that the clinic not be permitted to take the “wrong” sorts of cases. If this is correct, and UT Law is effectively giving activist faculty a “heckler’s veto” over the activities of the First Amendment Center, then I fear the center will be less of an example of “leadership on this fundamental issue” as much as a Potemkin Village.

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: -jkb-, Public Domain

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