Ray Carter | December 2, 2021
OU’s lobbying pays off for school, not student rights
In 2019, Oklahoma legislators passed a law providing greater free-speech protections for students at state colleges and universities. However, while that bill initially waived Oklahoma universities’ immunity from federal lawsuits to allow students to seek a remedy for free-speech violations, college officials successfully lobbied to have that language taken out.
That lobbying effort paid off for the University of Oklahoma in 2021 when OU remained shielded from liability for alleged student free-speech violations committed by OU officials. The university’s board of regents was successful in its effort to dismiss a federal lawsuit filed by a former OU women’s volleyball player who alleges she faced retaliation from school officials for her religious and political views and had her rights trampled.
OU’s courtroom victory may lead state lawmakers to revisit the issue.
“Our higher education institutions, with a lot of their policies around speech and how they handle issues related to culture, they’re making it harder and harder for constituents to continue to support them,” said state Rep. Mark Lepak, a Claremore Republican who was House author of the campus free-speech law. “It’s just a fact of life: The more people see, the more they come to me and say, ‘Look, what are we funding down there?’”
“The more people see, the more they come to me and say, ‘Look, what are we funding down there?’” —State Rep. Mark Lepak (R-Claremore)
The 2019 law, Senate Bill 361, declares, “Any person who wishes to engage in noncommercial expressive activity on campus shall be permitted to do so freely, as long as the person’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the public institutions of higher education …”
As originally filed, SB 361 also included a provision that explicitly stated, “The state waives immunity under the Eleventh Amendment to the United States Constitution and consents to suit in a federal court for lawsuits arising out of this section. A public institution of higher education that violates this act is not immune from suit or liability for the violation.”
That provision drew a strong lobbying response from college officials, including the University of Oklahoma. By the time SB 361 was debated on the floor of the Oklahoma Senate on March 13, 2019, it was amended to remove that language. In floor discussion, state Sen. Julie Daniels, the Bartlesville Republican who authored the bill, said the amendment was generated “after discussions with representatives from OU and OSU.”
Even in altered form, SB 361 cleared hurdles that similar measures had not in prior years amidst opposition from state colleges.
In 2018, state Sen. Gary Stanislawski, R-Tulsa, filed a similar campus-free-speech measure that would have mandated that “institutions of higher education, including their faculty, shall not require students or other faculty to adopt or to indicate their adherence to beliefs or orthodoxies on any particular political, philosophical, religious, social, or other subject.”
Because another free-speech measure was filed that year, Stanislawski chose not to seek a hearing on that bill, but he recalls college officials did lobby against the other measure.
“Higher ed was concerned that there would be frivolous lawsuits,” Stanislawski said.
He said there is little evidence Oklahoma colleges have been flooded with frivolous lawsuits over free-speech issues.
Another free-speech bill filed in 2018, Senate Bill 1202, would have mandated that Oklahoma universities and colleges “shall strive to remain neutral, as an institution, on the public policy controversies of the day and may not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.”
The OU regents not only cited immunity from lawsuit, but also appeared to mock the volleyball player, declaring her lawsuit an “inimical rant.”
Daniels, who carried that 2018 bill on the Senate floor, told lawmakers it was needed to protect the rights of Oklahoma college students.
“Across the United States and, sadly, including in our own state, we find that students trying to exercise their First Amendment rights run up against barriers and, indeed, some discrimination on our college campuses, which is why this bill is being put to you today,” Daniels said.
Yet that bill was killed on the Senate floor with only 13 votes cast in support, 22 in opposition, and another 13 lawmakers choosing not to vote.
While the 2019 passage of SB 361 was considered a victory for free-speech rights on Oklahoma campuses, the repercussions of removing the liability waiver were felt in a federal courtroom this year.
OU Regents Call Volleyball Player’s Lawsuit an ‘Inimical Rant’
A lawsuit, filed by former OU women’s volleyball player Kylee McLaughlin against the Board of Regents of the University of Oklahoma and OU women’s volleyball coaches Lindsey Gray-Walton and Kyle Walton, stated that during the spring 2020 COVID-19 shutdown “the schedule for the OU women’s volleyball team changed dramatically” as coaches “for several months, emphasized discussions about white privilege and social justice rather than coaching volleyball.”
During that period, volleyball team members were required to watch a political documentary, “13th,” which equates “Donald Trump supporters with Deep South lynch mobs” according to one review, while another reviewer said the film suggests the words “law and order” are “a code phrase for a form of slavery that exists right now, unrecognized.”
On June 11, 2020, McLaughlin’s lawsuit says a coach asked her “to give her opinion on the video.” In response, she questioned some of the film’s assertions.
The lawsuit states a coach subsequently ordered McLaughlin to remove a social-media post that used emojis to mock those who believed the University of Texas’ “Eyes of Texas” fight song is tied to racism. (A University of Texas report found the song’s lyrics and meaning were not originally created with racist intent.)
“Qualified immunity has been abused in a manner that has enabled college administrators to violate students’ rights without consequence.” —Alex Morey, Foundation for Individual Rights in Education
Following the mandatory team discussion of “13th” and the social-media post, McLaughlin’s lawsuit said coaches and teammates attacked her as “a racist and a homophobe” and that Coach Kyle Walton declared he was “not sure I can coach you anymore.” Eventually, McLaughlin said she was ordered to undergo an individual “Growth Plan” by the university’s “Diversity, Equity and Inclusion” office, and her lawsuit states that the “plan was designed to condition Plaintiff to be WOKE.”
In her lawsuit, McLaughlin describes herself as “a political conservative, and Christian who expresses her Christian faith through word and deed.”
McLaughlin was a captain of the OU women’s varsity volleyball team for the first two years she was in the program, was first team all-Big 12 and selected as national player of the week. But after the events of 2020, she transferred to another university.
In their motion to dismiss McLaughlin’s lawsuit, the Board of Regents for the University of Oklahoma not only cited immunity from lawsuit, but also appeared to mock McLaughlin, declaring her lawsuit an “inimical rant” related to “difficult conversations that followed the murder of George Floyd and the nationwide discussions of social injustice and inequality in America.”
McLaughlin’s lawsuit against the university relied, in part, on SB 361. In their motion to dismiss, the OU regents complained that SB 361’s free-speech protections are “curiously broad.”
In October, U.S. District Judge Joe Heaton ruled OU retains its protection from lawsuits.
“The University asserts, and plaintiff does not dispute, that it, as an arm of the state, is immune from suit in federal court unless Congress has abrogated that immunity or the State itself has waived it,” Heaton wrote.
He concluded that SB 361 did not allow universities to face lawsuits for violations. Heaton’s order said the law’s “reference to protecting First Amendment rights is not enough, in and of itself, to constitute the clear declaration necessary to a waiver of immunity.”
Heaton also noted that the legislative history of the campus free-speech law included removal of language explicitly waiving immunity and said that “clearly indicates the legislature did not intend to waive sovereign immunity.”
Coaches Not Protected from Lawsuit
While OU remains shielded from lawsuits over alleged violations of student free-speech rights, Heaton concluded the lawsuit against the two volleyball coaches could proceed, even though they were OU employees who also cited qualified immunity as protection against McLaughlin’s claims.
Heaton noted the U.S. Supreme Court ruled this year that a student who made a “direct and vulgar attack” on her school in a social-media post was nonetheless protected from school sanctions due to First Amendment protections. In light of that decision Heaton wrote that “it is difficult to see how posting a somewhat ambiguous emoji on a third-party website, apparently expressing skepticism that ‘The Eyes of Texas’ is a racist song, could be otherwise. Further, plaintiff’s alleged on-campus statements of her political views, although in the context of a school sponsored activity, were also protected. There is nothing in the complaint to suggest that plaintiff presented her opinions in a disruptive manner or that they were vulgar or indecent.”
Heaton pointedly noted, “Further, it is less than obvious that the coach of the volleyball team has a legitimate pedagogical interest in policing the political opinions of the team’s members.”
Heaton also referenced a prior ruling by the U.S. Court of Appeals for the Sixth Circuit, which stated that “players do not completely waive their rights when they join a team; a coach could not dismiss a player simply because the player had religious or political views that were unpopular with his teammates.”
Lepak said he and Daniels need to discuss the law and the removal of the waiver language, and “then consider whether or not we need to reinsert something like that.” In light of recent events, Daniels separately said she is considering pursuing changes to the free-speech law that would further bolster college students’ rights.
National Focus on Stripping Universities of Immunity
Nationally, free-speech advocates are calling for universities to be stripped of qualified immunity that can protect them from lawsuits for First Amendment violations.
Samantha Harris, an attorney and senior fellow at the Foundation for Individual Rights in Education (FIRE), wrote in 2020, “As an attorney defending students and faculty whose free speech and due process rights have been violated by public university administrators, I can attest to the fact that qualified immunity is a huge barrier that limits accountability even in the case of seemingly obvious constitutional violations.”
Alex Morey, an attorney and program officer with the Individual Rights Defense Program at FIRE, similarly wrote in 2021, “As it is now frequently applied by courts, qualified immunity has been abused in a manner that has enabled college administrators to violate students’ rights without consequence.”
Teresa R. Manning, a former law professor at George Mason University who now serves as the policy director at the National Association of Scholars, has warned that because of qualified immunity college employees “not only have no incentive to behave, they have every incentive to misbehave.”
Lepak said suppression of free speech runs contrary to one of the values touted elsewhere by defenders of Oklahoma’s college system—the idea that students should be exposed to a wide range of viewpoints.
“The idea that you would shut down speech seems to go against the whole purpose of the university,” Lepak said. “And I thought the legislation we ran did a really nice job of saying, ‘If you’re going to come to campus, you’re going to run into people that have a different opinion than you do, but they have a right to say it.’ And it doesn’t matter if it’s on the left or right or the middle or from outer space.”
[For more articles about higher education in Oklahoma, visit AimHigherOK.com.]
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.