Amendments to Texas budget pose serious free speech concerns 

Today, the Texas House of Representatives is considering House Bill 1, the proposed budget for the state. As normally occurs, hundreds of amendments have been proposed. Unfortunately, a handful of amendments relating to institutions of higher education, if enacted, would be unconstitutional. 

These amendments would prohibit institutions of higher education (including private institutions receiving state funds) from using public money for: 

• drag performances; 
• activities, including those that are inherently expressive, that “support or encourage” abortions 
• “host[ing], support[ing], or advertis[ing] a satanic ritual, organization, activity, demonstration, or performance”; 
• “teach[ing] gender modification procedures”; and 
• diversity, equity, and inclusion (DEI) “practices and similar programs.”

FIRE urges Texas legislators to vote against any amendment that would unconstitutionally restrict free speech and academic freedom, including those we address here.

Amendments restricting funding for hosting, supporting, or advertising protected expression

An amendment prohibiting funding for drag performances provides that “no money appropriated by this Act may be spent to host, support, or advertise a drag performance on the campus of a public institution of higher education or a private institution of higher education that receives state money.” This language doesn’t just prevent a university’s administration from hosting a drag show — it threatens events organized by students and student organizations, which receive robust protection under the First Amendment. That’s because the prohibition on “supporting,” “hosting,” or “advertising” events unconstitutionally prohibits universities from providing some student organizations the same institutional support others receive when hosting events — printing flyers, for example, or granting access to university facilities — based solely on whether those organizations are hosting events which include protected expression in the form of drag performances. 

This amendment amounts to viewpoint discrimination because it specifically targets gender-nonconforming performances. As applied to student organizations at public institutions, this means that gender-conforming performances hosted by student organizations would be able to use the institution’s facilities for such events, but drag shows would not. The state cannot choose on the basis of viewpoint which groups will receive “support” — including resources associated with hosting and advertising events — and which will not. 

We urge the Texas legislature to reject these series of amendments because they would violate the free speech rights of students and faculty.

In Widmar v. Vincent (1981), the Supreme Court established that public institutions of higher education violate the First Amendment when they deny student organizations resources based on the content of the student organizations’ expression. Widmar involved a public university denying an evangelical Christian student organization access to room reservations at the university for their group meetings. Texas lawmakers should take note that if the government can deny resources based on viewpoint, that power could also be wielded against organizations with views they share. 

In Rosenberger v. University of Virginia (1995), the Supreme Court held that student activity fees must be distributed to student organizations in a content- and viewpoint-neutral manner. In Rosenberger, the Supreme Court concluded that student activity fees — which were collected from students and generally made available to student organizations — could not be denied to a student group that sought to publish a Christian magazine because to do so would amount to unconstitutional viewpoint-based discrimination. 

Taken together, Widmar and Rosenberger make clear that public universities must make resources available to student organizations on a viewpoint-neutral basis, whether in the form of access to campus facilities or student activity fee funds. While both cases involved Christian student groups, the principle applies with equal force here. The amendments now being considered by Texas state legislators squarely contradict these long-settled First Amendment precedents.

In addition to funding restrictions on drag performances, other amendments restrict funding going to institutions of higher education for hosting, supporting, or advertising protected expression relating to abortion and satanism on campus. These amendments similarly engage in viewpoint discrimination as described above. In 2019, the Texas legislature enacted SB 18 now Tex. Educ. Code § 51.9315) which states that a public university “may not take action against a student organization or deny the organization any benefit” on the basis of “any expressive activities of the organization.” These amendments cannot be reconciled with this Texas campus free speech law.

The government may not constitutionally prohibit institutions from using resources to host events with viewpoints it disfavors while allowing those institutions to use resources and host events where the opposite views might be expressed.

An amendment restricting funding for teaching gender modification procedures

This amendment states: “It is the intent of the Legislature that no money appropriated by this Act may be spent to teach gender modification procedures on the campus of a public institution of higher education or a private institution of higher education that receives state money.” (With respect to adults, these procedures are lawful in Texas.) This amendment restricts funding to regulate what is taught in college and university classrooms. While legislatures have certain authority to establish curriculum in public institutions of higher education, the word “teach” here could be interpreted so broadly as to prohibit, for example, broaching gender modification procedures in an academic discussion of any number of medical, philosophical, political, or social questions. Banning certain ideas from classroom discussion of those important questions violates the First Amendment and infringes upon academic freedom.

An amendment restricting funding for Diversity, Equity, and Inclusion practices and programs

This amendment states: “It is the intent of the Legislature that no money appropriated by this Act may be spent for diversity, equity, and inclusion practices or similar programs, including personnel training or activities, at a public institution of higher education or a private institution of higher education that receives state money.” 

FIRE has criticized the ever-increasing bureaucratization of our nation’s colleges for years, and we have noted the proliferation of threats to free speech, freedom of conscience, and academic freedom posed by institutional efforts to coerce support for a politicized understanding of diversity, equity, and inclusion. Earlier this year, we introduced model legislation that prohibits the use of all political litmus tests in college admissions, hiring, and promotion decisions. 

Texas lawmakers should take note that if the government can deny resources based on viewpoint, that power could also be wielded against organizations with views they share.

However, we do not oppose public institutions offering programming, like debates about the effectiveness of various diversity initiatives, or sending students and faculty to conferences related to DEI, if such activities are voluntary. And the First Amendment protects student- and faculty-organized programming related to DEI. Without even defining what it means by “diversity, equity, and inclusion practices or similar programs,” this bill would restrict funding for even voluntary participation in such activities — including those that are inherently expressive — and could prevent student organizations from hosting events where DEI is discussed. As such, it raises serious First Amendment problems, and we strongly oppose it.

Looking Ahead

We urge the Texas legislature to reject these series of amendments because they would violate the free speech rights of students and faculty.