after the session is over and joyce and food as well and nd preliminary i'd like to make is happy texas independence day oh dear in case you didn't know which many of you probably did not with that i have a couple of you know the usual rules which are that we have time limits we have light that comes on i think we do it tells you when you have two minutes left and when the red light comes on we ask you to stop talking unless you're entering a question from the court and the other preliminary is that we have received only differences between the two cases make this case easier not harder so in sless all the university of michigan tried to move the case by repealing some policies in the district court and that it never defended those policies on the merits but here university of texas  changes because as you said michigan changed course basically right after the suit was brought here doesn't lose the litigation that prompted it i mean texas one below and the change seems to be prompted by the legislature's  new law that required a bill of rights for students and that then led the university to revise its policies i mean if if the litigation prompted this change one of them had been like will wear the university changed course right after the suit was brought reference but that bill did not require the university to make any of these changes and only has to possibly relevant provisions subsection c of that bill says that the common outdoor areas of universities in texas now are open to the public that has nothing to do with any of the policies that we've challenge we challenge policies that apply in the dorms online in the verbal harassment which applies everywhere on campus not just outside the only other possible realm relevant provision of s b eighteen as subsection f which requires texas universities to adopt a policy that explains to students what their free speech rights are but look at the intro of the end of the university's brief they said they've had one of those policies for years and years and years and i agree with them they are to comply with that provision now the important question for purposes of movements is does anything in s b eighteen stop the university from reinstating these policies tomorrow and the answer is no there's no relevant provision in that bill i don't think they get credit for making it seem like that bill is the reason they made these changes  litigation in fact i think that goes to the question of good faith and whether these changes are actually genuine or not well the changes aren't final in any event that's true i believe that law because they have to be approved by the i agree judge jones that the changes made under the law have to be approved by the regents that has not happened yet but i don't think the university is saying i think they're very careful about this that the changes to the policies that we challenge even have to be approved by the regents because those are not changes that are complied with this measure they were just changes died at the same time this measure right so those policies have been changed that's already in effect in other words the policies we're talking about at least the the institutional policies for example are as of today not  force your argument is they might come back correct and that's the question for voluntary cessation estrada that's my understanding at least the inverse of correct me if i'm wrong about that if there's up in the approval process that may happen but my understanding is that these policies are changed with a few clicks of a mouse by  single university administrators website now schlitz all and other cases we've cited in our brief tell you that that kind of easily reversible change does not count for purposes of voluntary cessation that is totally in the universities discretion there is no procedure or policy or electoral accountability that might stop them from changing the back in the future i just don't think the university based on these changes can carry its burden of proving lewdness through voluntary cessation people who end up winning this wasit what do you want an injunction to say for example with the response team would use would say the response teams have to disbanded completely or would it just have certain restrictions on what they do i think there are a couple ways that could be structured your honor so we are challenging the university's policy and bias incidents you know that is a formally defined term in their on their website in their policies and appears in several places and so i think either you couldn't join that definition that policy the definition of bias incident which would in effect stop the university from logging in collecting and reporting and monitoring students for committing for speaking that way or i believe this is one of those rare situations where there is a sensually a police force that is only the only responsibility it has is monitoring bias incidents so i do think it would be appropriate to enjoin the c r t c itself and its various functions and that's a good place to be a good time to turn to the c c r t itself i believe we all agree now that the question is whether the university's bias incidents policy and based on the c c r teen everything used to enforce it objectively chills speech that is the test for purposes of article three standing and we think it does we think when you  the st thing that he does it investigates bias incidents the university does not like the word investigation but that's exactly what it's doing it receives formal reports of bias incidents by students it contacts the reporter within forty eight hours interviews the reporter to ask if there are any witnesses it will interview the witnesses find out what happened to collect the facts it will make a determination whether the situation quote falls within the parameters of a campus climate incident and that's on pa they will make a formal determination about whether the speech met criteria for a by six of them they will also look to see whether it possibly violated any disciplinary rules or was a crime and if so you know that the c c r t will refer the bias business might have been rated sufficient for discipline could be your honor the problem at this stage of the litigation why i think the law says that we can look to the policy itself to determine a chilling effect is because these records are all impair the community environment or what i think it does a lot of things with in addition to investigating in the things i mentioned before it keeps a log on a public website it gives each report it collects all the reports of the same kind about the same speech puts those together gives that incident number so a biased incident number and then you can look on that website and you can see what i said was alleged where it was alleged to have happened what dated occurred and then what the c r t didn't responsive as a whole list of options that it uses to respond and i think the referral powers you know were not like like like i just said we're not entirely sure when it has it has been used we'll find that out discovery hopefully but i think the main way the c r t responds to b option to that person to meet with the committee or team whatever it's called just cause of the texas i have a creative system universities across the country are doing the same thing with these guys response teams how do you investigate the only other way to occurs and i can point you to the record where they say they meet with the buys offenders as well page three hundred and forty five of the record the c c r t quote has educational conversations last meetings with those initiating an incident regarding the intent report and all the other reports that he's here to publish is those are on every page of the c r c website those are the policies that are still in place and mr as in her declaration says that we follow the written policies for the security that's what we still do and in conclusions of law against us but the dischord made no finding of fact that the security does not meet with students it didn't address that at all so there's no i'm going to talk about one of the other challenge policies the institutional rules and for standing one of the things you have to show is that the speed your members are engaging in is arguably for who did buy the policy correct and we don't have as we talk about we don't have any history of how it's been in force or any certainly any evidence has been used against your members so take one example i think your members say maybe they want to say we should build a wall on talking about immigration policy how does that personally describe an individual or how is it personally directed at an individual and that's just a general political comment i have no doubt i mean anything you say political these days is going to upset or offend some people but how is that personally directed at someone to say let's build a wall i think it depends on the context you could imagine situations where that comment could be directed at someone  you know say people like you mr college democrat or the reason that you know our country is so messed up we need to build a border wall i'm not exactly sure you know there are various contexts in which that could arise but i do know that the universe is just giving you know saying that in class or putting putting something on your dorm wall that's the dorm door that says we should build a wall and that's that's just general political speech and if you see when they say this we personally directed at someone they're excluding that type of general political unconstitutional or would speech st read the fine what unconstitutional by a speech and tails so if we're talking about the harassment policy we're not here challenging what the supreme court said that title nine requires in the in the ashanti davis case and it says that title nine requires universities to be responsible for sexual harassment that is pervasive severe and objectively offensive and that functionally denies the student the rights of what don't university well right but that was a physical attack was meant correct it was also sexual harassment this policy that the university conceding that under that title nine rubric the regulation of speech on college campuses mean be constitutional is that right i think in extremely narrow circumstances and none of these polic circumstances if you look at justice o'connor's definition of sexual harassment in davis that sets the standard the fact that some but that it that applies to veteran harassment disability harassment  well with sexism harassment you're agreeing with all that absolutely not the key to the ashanti davis definition of harassment is that it's a protected class under federal law so there it was sexual harassment title six of course had its racial discrimination you could see policies that were drafted that way that would be constitutional but this is this policy is nothing like that and will be clear the verbal harassment policy is the closest they come to a constitutional policy the other policies are knowing the other point is that that by the university about what's going on exactly and to be clear the civility rudeness harassment intimidation policies all the policies we've challenged here are content based viewpoint pa restrictions on speech at a college campus where the supreme court has said the dictates of the st women apply stronger than everywhere how do you respond to their evidence that they've actually wowed affirmative action bake sales by conservative groups  vents to support the kavanaugh nomination and in fact not only do they allow the events but they punish people who try to interfere with that expression man answered so two responses which cost the st the affirmative action bake sale in the similar events are record shattering reports to the c r t c and ninety percent of those reports recommended that the students be disciplined and that their groups be cancelled in their funding be denied so i do think there are consequences to in that speech but the test here for objective chill is it is an objective test judge posner explains this pretty well in the act each case that just because some students on campus are not effectively chill they still thought they could engage in some protected speech even some controversial speech if the average college student who is in the political minority on campus and wants to say the types of things our students want to say is the question is whether they feel free to speak or not even if there are some counterexamples is that we're on anybody disciplined for breaking up the brett kavanaugh them and you know tables so as far as i understand the universe is position is that one student was disciplined i believe the video of that event is in the thank you and may it please the court the st amendment concerns in this case are of the utmost important especially on college campuses probably why appellate counsel about the university change its rules  respectfully your honor we change those roles in the record is clear on that in response to the passage of a state law we looked at all of our policies the state law in addition to what my friend campus we're not claiming there's a one to one correspondence between the state law and the changes that we made we don't need to that was the incident that prompted us to go back and change our policy and i would draw this court's attention to was no injunction in place the government on appeal continued to defend the challenge policies on the stand point that the challenge policies did not prohibit or did not embrace what was it issue there and this court and saw them and said quite clearly that where the government has it's basically not trying is not trying to get out we're not trying to get out of of an injunction that the government is entitled to to good faith and a critical your honor the mostly the university is would be governed as texas law requires it here by the board of regents yes and that's actually a point when when my friend says that these policies can be changed at the click of a mouse respectfully that that is not the actually requires the amendments to be approved by the board of regents my understanding is that these policies are on the books now they're there they're what's governing the students  but they are also in the process of being approved and you're right they have not been formally approved by the board of regents but in our view that is another reason to afford why the policy is removed because in addition saying we will not and we frankly don't think anything more is required of us than to say at this point we will not receive texas at austin will not revert to these to these child that and that was entirely missing even said the changes to the institutional rules the dorm policies those are also going to be around i would i would not i would not want to speak out of school on that what i can tell you is that the policies at issue are in the process of going through that so whether that this court would be creating a circuit split respectfully nothing could be further from the truth and i think i welcome this court taking a close look at all and add to that the policies that issue there because they are starkly different and so we think the heavy reliance on schlussel actually helps us not only did michigan's policies on their face purse cried subjective harassment think the pot the bias policy there referred to said the most important thing in bias is how it makes you mean a click means the complainant feel so that's a subject of harassment policy in michigan versus creating an objective lea hostile environment which is what both versions of the policy here prohibit it also point out that the plaintiffs there explained in their complaint not only what they were going to say and how they were going to say it but also why the university would conclude that it violated the rules because their fellow students would find what they wanted to say subjectively offensive which university is not a legislative body it is not a representative body and therefore there's no reason to give it that kind of special treatment respectfully your honor although you're absolutely right that the social court ended up finding that the university for various reasons that wasn't moot the university did not accept my friend's proposition that universities alone among government actors are not intitled to the special solicit i think getting back to sort of getting back to the basics here i think article three which is what is at stake here prohibits courts from adjudicating pre in for facial challenges like this one unless the threatened harm is certainly impending that's glass citing clapper a requirement that is vital to fulfilling court's constitutional mandate to exercise jurisdiction only  notice i mean let's take bantam books and bantam books st amendment case the plaintiffs not only have received notices from the morality commission but the note that the commission can see that it had sent notices interfered with or challenge absolutely absolutely not you're right but i think what i guess my point my point and in the in these cases your honor is that you're right that i think to use their example that the st amendment doesn't require you to sort of guess how many bullets are in the disciplinary gun it's aimed at you but the gun does have to be aimed at you when there has to be a gun in the st instance and i think when you look at the cases where courts have found standing it's a very high watermark even in the st amendment context so courts are saying no i mean take stuff i think stuff is a great example there you had an individual who wanted to engage in  enforcement risk a threat to have standing to challenge the law on the face but but again my my friend has said there is nothing in the record here even about any referral and my friend also i'm reporting it absolutely and i think that strengthens the veracity of what we're what we said in the policies in our briefs and here today there we have never we have never investigate or prosecuted or punished a student based on speech and and my friend is correct the the only and that includes students who were disrupting other students and you know pulling hats off their heads or whatever that's correct your hon tear up all year they turn up all the notices of charlie card come in to speak and they tear up all the notices that your cabinet table and you don't think that has a chilling effect your honor let me let me go to no one's disagreeing that there is a fear or a subjective fear here of what their fellow students might do but the question in this case st standing to bring a facial challenge  university's policy is there a credible thought let me ask you how the world has changed because i was in college at the very height of the antiwar demonstrations at cornell which had some of the worst in the country and there was a lot of free speech going on particularly on the antiwar side and to the extent of blocking our o t c recruiters from campus and so on as far as i know there was no speech policy what so ever what is it that has changed in the landscape of the st amendment that allows universities in the st instance to have speech polic your honor that's that's a very interesting and wide ranging question and let me say let me posit a couple of a couple of thoughts and then i do want to get back to answering the question if i may about the what happened in the i heard my counsel say that republicans are taking that awfully far to extend from sexual abuse of a th grader under title nine to regulating speech on a college campus out your honor that the united states and this is where this was cited in the briefings below in the michigan case the united states filed a statement of interest in the district court in for in support of my friends but but the united states made very clear in its brief in that case just cited below that universities have not only a responsibility but a legal obligation in terms of preventing harassment harassment can be verbal harassment can be can be physical so we have the united states itself that said we have we haven't have an obligation the i don't disagree with your honor that the question of under ours are not entitled to much considered or whatever it is you know your honor i'm just trying to give my best shot at your question about what what changed what changed in the law and i do and i do i do think what changed in the hits for jesus ca honor again i'm usually on the other side of the v in these cases and even when you look at the record in michigan and other cases u t really is exemplary in its policies and also how it responds and i think this leads me back to responding to the question about how the university responded the university police stepped in at the kavanaugh event and at the charlie charlie kirk of that when the disrupters resorted to physical contact when make america great hat was snatched off someone's head and when water was thrown at charlie kirk's cameraman right so you so so again you are even so st of all the university is not going to stand by and allow speakers to be subject to a heckler's veto but it's also going to respect the rights of the counter protesters to speak their piece being in though when the line is crossed from free speech to physical conduct well i think i'd go back to you on that response team in the stand at question because it seems like so you agree that speech like these students want to make th plaintiffs as members want to make does lead to a number of incident reports being filed it is the kavanagh that you said after the kavanagh then in the affirmative action bake sale there were students were filing incident reports with the response team s for people filing or making filing a report with a c r t so it seems like they're they do show that there's a credible fear that their speech will least lead to other students filing reports on them so what your response is those reports don't lead to any punishment i mean what sure i think and let me be clear i mean even if it's easier to disappear tomorrow nothing people certainly want to vent the filing filing reports i don't i don't think they hang their hat but the reason that i see the mechanism for filing complaints that might make students more fearful well there's a whole apparatus in place for dealing with these types of comply to two point two two points or that i think st i would i would point to the supreme court tatum where there was no question that the army had this in intelligence gathering apparatus the dissent in that case actually pointed out that the plaintiffs there actually there was evidence that they had had an question about that i think the chain of contingencies and i heard my friend talk about it that falls afoul of glass this court held in glass it's a st amendment case that each link in that chain the harm needs to be certainly impending so for the harm to materialize here not only do the fellow students need to file a report with the r t that's step one but the c c r team has determined that the report qualifies as a campus climate incident that step to must decide to refer the incident to the dean of students that step three who must then determine that the actions violated university policy that's saying all i basically have to prove liability in order to prove standing as i was at the preliminary injunction text when it arguably applies to your speech students reasonably assume that that policy is going to be applied especially if the policy was enacted recently that we said this case to anyone care out of the circuit that says if you just an act of the policy of course there's no history if you have any questions about the biased response team i think there's a useful products or size to do there the university's position is that this does not even implicate the st women at all not at all and we don't have standing to challenge it which means they think you could substitute the university of for the city of austin and have the exact same policy in place i think that's much clearly much more clearly a chilling effect and you think about it that way they also think you could substitute the word bias for anything so say they created a libertarian response team and they said that their mission is to eliminate libertarianism on campus and that they see any libertarians who to report them to the university and they will investigate what happened they will talk to the witnesses they will figure out what's going on they will make a determination about whether that libertarian needs to be referred to the disciplinary community  to the disciplinary authorities they will log that libertarian on the public website to the university at the exact same thing except you just sub the speech that they display for now couple other things judge cost of the affirmative action big cells in the and fourteen security report that cited on page thirteen of our brief and i just want to correct this notion that the university of texas is an exemplary university when it comes to free speech the university of texas has received a red light rating from fire which is a st amendment watchdog group for over a decade they're considered one of the fifty worst universities in the country and they've been that way for a long time as part of the reason we brought this suit they have some of the worst policies on the books and i've never heard a defen as to why it's consistent with the st amendment to ban uncivil speech or rude speech or intimidating speech or six cysts sexist speech or speech that denies the individuality of another or how if the biased incident definition was a disciplinary possible be constitution it's content based viewpoint based discrimination lastly i want to see a few things about moving us the the key question is not what it required what the university did to change the policies but what stands in the way to stop the universe from unchanging that's the question for voluntary cessation and there are no requirements to stopping the university from changing these policies back my friend and i also mean the term my friend says that they did this consistent with the bill but there's no commitment that the bill required them to do this or stops them from doing it there's also no commitment that the board of regents will even approve these changes much less would have to approve them going back there's no requirement the law there you can look at the statute yourselves and  difference between this case and the sosman case that you heard a lot about is there there was a formal statewide changed policies for the prisons here it's just the university's sole discretion and here the university says that if we ever did go back to those old policies those old policies are perfectly constitutional and no one has any standing to challenge them so i question what barrier there is to the university returning to those policies tomorrow i don't think there's anything anyone could do about it there's you we did in our brief legion speech go cases that were brought in this exact posture that was never how they were decided they were decided on their merits i think the university's argument is that s b eighteen inspired these changes but not require these changes and that's simply not enough for voluntary cessation and in fact to make just one last point there is unlike the rest of these voluntary cessation cases that my friend cited there is no declaration in the record from any university official about their future intentions there is just a statement in the