Cases & Developments

Opinion vacating the district court and remanding. Plaintiff, a national membership organization that represents students at Texas State University, filed suit against Texas State University, alleging that the University adopted a harassment policy in conflict with the First Amendment. Specifically, plaintiffs take issue with the University prohibiting “unwelcome verbal . . . or written . . . conduct” as the policy does not define what is “unwelcome” or what constitutes “verbal” or “written” “conduct.” Plaintiffs allege the policy will be used to target “politically disfavored speech on sensitive topics like abortion, immigration, racial preferences in educational admissions, and transgender ideology.” The district court declined to issue a preliminary injunction but noted that the University had a “real problem” and “critical First Amendment issues,” and even stated that the policy would create “a communist society.” The University amended its policy upon urging from the district court, which then denied plaintiff’s motion for preliminary injunction as moot. Plaintiff appealed the district court’s decision, contending its request for preliminary was not moot and asked the Fifth Circuit enjoin the prior policy, arguing that the University (1) only amended its policy because the court insisted that it did so; (2) could easily return to its old policy once the litigation ended; and (3) doggedly defended its policy as consistent with the First Amendment. Meanwhile, the University argued its policy did not prohibit students from saying what they wanted to and that there was no substantial threat of future enforcement. The Fifth Circuit conducted a de novo review and found that the district court erred in denying the motion for preliminary injunction motion as moot. The Circuit reasoned that University’s officials did not voluntarily cease their challenged conduct, but did so owing to pressure from the district court, could not overcome the “stringent” standard set forth in City of Mesquite v. Aladdin’s Castle Inc. (1982), and failed to pass the Speech First, Inc. v. Fenves (2020) test, which established that a dispute was not moot based on “(1) the absence of a controlling statement of future intention; (2) the suspicious timing of the change; and (3) the university’s continued defense of the challenged policies.” The Circuit applied the three-factor Fenves test and found the motion for a preliminary injunction was not moot since the record contained no sworn testimony evidencing the University’s commitment to abstain from reverting to its prior policy; the policy amendment was “suspiciously timed” in response to judicial pressure; and the University maintained the legality of its original policies. It remanded to the district court for reconsideration of the request for preliminary relief.