By Will Creeley
Attorney, Foundation for Individual Rights in Education
Attention, college administrators: Attempting to defend your institution's unconstitutional speech code in court is very, very expensive. Unfortunately for Texas taxpayers, Tarrant County College (TCC) is the latest school to learn this lesson the hard way. About 240,000 times harder than it needed to be, in fact.
Torch readers will remember that back in March, TCC's speech code was found unconstitutional as a result of litigation coordinated by FIRE and the American Civil Liberties Union of Texas (ACLU-TX). FIRE and the ACLU-TX worked with Fort Worth attorney Karin Cagle to bring a constitutional challenge to TCC's speech code on behalf of student Clayton Smith and John Schwertz, members of Students for Concealed Carry on Campus who had repeatedly been forbidden by TCC to hold an "empty holster" protest on campus. Their story is one of those documented in FIRE's recent video, Empty Holsters:
The lawsuit made an immediate impact. Just two days after the complaint was filed in November 2009, a federal district court judge issued a temporary restraining order prohibiting TCC from quarantining protected speech to the school's tiny "free speech zone," holding that continued operation of the free speech zone would result in "immediate and irreparable injury" to students' free speech rights. In December, facing obvious defeat, TCC voluntarily dismantled its free speech zone, but also introduced an unconstitutional ban on "cosponsorship," which forbade students and faculty from holding campus events in association with any "off-campus person or organization." Smith's and Schwertz's suit was amended to challenge this new policy, and in a March 2010 ruling, the district court struck this restriction down, too, stating that "the Court cannot imagine how the provision could have been written more broadly."
Following the win, Cagle moved for an award of attorneys' fees, as is customary in civil rights cases. As this week's judicial order details, TCC disputed Cagle's intentionally low rate estimates--a tactic which proved costly when, after extensive briefing, the court denied defendants' motions for still lower rates and awarded Cagle, her fellow counsel David Broiles, and the ACLU-TX a total of over $240,000 in attorney's fees.
Needless to say, $240,000 is quite a chunk of change—especially when it's spent fighting a losing battle in defense of censorship. FIRE often warns schools to spare themselves the embarrassment of fighting against the Bill of Rights. Now that TCC has joined the University of Wyoming ($86,000 spent trying to ban Bill Ayers from campus) and the Georgia Institute of Technology ($203,714 spent paying attorneys' fees following its violation of students' freedom of religion)—to name only two others—as the newest loser in the misguided fight against the First Amendment, maybe we should start telling schools to spare themselves the expense of fighting against the Bill of Rights, too.
All of this expense could have been happily avoided had TCC heeded FIRE's first letter, sent way back in April of 2008, which urged the school to respect its students' rights to free expression and assembly. But TCC wanted to do it the hard way. This decision has now cost the school hundreds of thousands of dollars. Will any administrators lose their jobs for violating students' rights and wasting taxpayers' and students' money?
We hope this pricey defeat prompts other institutions to think twice before they pick a fight with the First Amendment. 
