Bring a gun to a knife fight: When in December 2021, the University of Houston changed its anti-discrimination policy, broadening the definition so widely that almost anything anyone said could be defined as harassment, three conservative students obtained the help of the first amendment organization Speech First and sued. From their lawsuit [pdf]:
The Policy’s “[e]xamples of harassment” make clear that the Policy covers protected speech. Examples of harassment “include but are not limited to: epithets or slurs, negative stereotyping, threatening, intimidating, or hostile acts, denigrating jokes and display or circulation (including through email or virtual platforms) of written or graphic material in the learning, living, or working environment.”
Under the Policy, even “[m]inor verbal and nonverbal slights, snubs, annoyances, insults, or isolated incidents including, but not limited to microaggressions,” can constitute harassment if “such incidents keep happening over time and are targeting a Protected Class.” The Policy warns that “academic freedom and freedom of expression will not excuse behavior that constitutes a violation of the law or this Policy.” [emphasis mine]
In other words, according to the highlighted quote, the university’s anti-discrimination policy attempted to overide the First Amendment to the Constitution.
This absurd illegal position of course could not stand, and the school’s administrators, who by the way were named in the lawsuit, quickly settled the case on June 10, 2022, rewriting the anti-discrimination policy to actually — my heart be still! — allow for free speech.
Under the settlement, reached June 10, the university’s policy no longer defines harassment as creating an “intimidating, hostile, or offensive educational environment.”
The policy as now written [pdf] focuses almost entirely on actions that actually cause harm to an individual, such as the loss of a job or promotion or educational opportunity.
Even with this victory, the policy has many potential loopholes for those that want to use it to silence others.
For example, the policy still forbids slurs and insults, which are also protected speech under the First Amendment. However, the policy also makes it clear that the larger context of any complaint will be reviewed before any action is taken.
Harassment from both a subjective and objective perspective. In determining whether Discrimination or Harassment has occurred, the university will examine the context, nature, scope, frequency, duration, and location of incidents, as well as the relationships of the individuals involved, and apply the appropriate standard according to the applicable complaint resolution procedures.
These rules should discourage abuse, though it will certainly not eliminate it, especially if the school’s administrators are in sympathy with the abusers and want to silence opposing speech.
Nonetheless, the quick settlement of this case in favor of the conservative students indicates that the university realized it was in violation of the law, and thus liable for any actions it took based on its illegal oppressive anti-discrimination policy.
The settlement also proves once again that if freedom-loving individuals have the courage to fight, they will win. More people need to do the same.