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Volume 68, Issue 1, Monday, August 26, 2002

News
 

UH drops fight against Pro-Life Cougars' display

By Ken Fountain
The Daily Cougar

Often, UH officials find themselves walking through the halls of Houston's courts. 

This summer was no exception, as action was taken in a number of lawsuits against the University.

A case that could have national implications involves a UH organization, Pro-Life Cougars, that sued the University for attempting to prevent it
from bringing a large display of photographs of aborted fetuses to Butler Plaza, the area located between M.D. Anderson Memorial Library and
Phillip Guthrie Hoffman Hall.

A three-judge panel of the U.S. Fifth Circuit Court of Appeals in New Orleans refused Tuesday to hear the University's appeal of a Houston
federal judge's order prohibiting UH officials from invoking its former freedom of expression policy.

Pro-Life Cougars and its chairwoman, political science senior Jeanne Sherree Tullos, filed suit in January, alleging violation of the group's First
Amendment right of free expression, after Vice President for Student Affairs Elwyn Lee and Assistant Vice President for Student Development
and Dean of Students William Munson refused to allow the group to bring the display to Butler Plaza last November.

The decision was based on the "Disruption of University Operations and Events" policy in the 2001-2002 UH Student Handbook, which
designated only four locations the University Center Arbor, the UC North Patio, the UC Satellite patio and hill and Lynn Eusan Park for
"potentially disruptive" expressive activities.

Tullos and another group, the Free Speech Coalition, brought the display to Butler Plaza, for three days in March 2001, inspiring heated debate
between members of the group and their opponents. 

The display is owned by Justice For All, a Wichita, Kan.-based organization that brings it to college campuses around the nation. 

UH officials said that that group had been allowed to bring the display to Butler Plaza because of an administrative error.

On June 13, Tullos and Munson testified in an evidentiary hearing in the Houston courtroom of U.S. District Judge Ewing Werlein Jr. Munson
said that Butler Plaza, which he called "the academic hub" of the University, had been ruled out as a forum for free expression after a number of
complaints were filed that such activities had been disruptive to classes.

He further testified that the freedom of expression policy had been under review since Spring 2001, before the Justice For All exhibit arrived. UH
President Arthur K. Smith signed the revised policy, Administrative Policy and Procedure 13.01.01, on June 25. 

It reiterates the four approved locations for expressive activities, excluding Butler Plaza.

In a June 21 written ruling, Werlein said UH had denied Pro-Life Cougars its constitutional rights.

"The unbridled discretion conferred by the University's policy upon its decisionmaker, the Dean of Students, to impose a prior restraint on
student expressive activity in Butler Plaza, violates the First and Fourteenth Amendments to the United States Constitution," Werlein wrote. (The
14th Amendment applies all federal laws to every U.S. citizen in every state.)

He granted a preliminary injunction restraining the University from using the old policy to prevent Pro-Life Cougars from bringing the display to
Butler Plaza.

The University filed a brief in July arguing that the revised policy mooted the group's previous challenge and asked Werlein to dissolve the
preliminary injunction. 

But on August 9, Werlein disagreed, writing that because the University was still defending the old policy and were relying on it to prevent
Pro-Life Cougars from bringing the display, he found no reason to dissolve the injunction.

Following the panel's refusal to hear UH's appeal, UH spokesperson Amanda Siigfried said last week that the University would abide by
Werlein's rulings.

Tullos confirmed that the group has submitted a request to bring a smaller (12-foot by 12-foot) version of the display to Butler Plaza to be used
from Sept. 3 through 6, and that the University had approved it.

The case, which could set a new precedent in the constitutionality of so-called "free speech zones," is scheduled for an April trial.

The University was more successful in two lawsuits brought by former-UH President and UH System Chancellor Glenn Goerke and former-UH
Executive Associate Vice President Glenn Freedman. 

The men, who are now tenured professors in the education department at UH-Clear Lake, filed separate but substantially similar lawsuits in
March 2001, claiming the University breached their employment agreements when their salaries were reduced by 25 percent on two separate
occasions following their service at the main campus.

The University argued that under the legal principle of "sovereign immunity," which gives governmental agencies a general immunity from suit,
the men were prevented from suing for breach of contract without the consent of the Texas Legislature.

The University argued that a 1985 amendment to the Texas Education Code effectively withdrew legislative consent and precluded the men's
claims.

In February, Harris County District Judge George C. Hanks Jr. agreed with the University's reasoning and dismissed Freedman's lawsuit. 

Harris County District Judge Joseph J. Halbach, Jr. similarly dismissed Goerke's claims in April.

However, the two men's lawyer, Robert Jones, has combined their claims in an appeal to the First District of Texas Court of Appeals in Houston. 

Jones argues that the two trial judges erred in their reasoning, that the language of the Texas Education Code grants permission to sue the
University and that to prevent them from doing so deprives of their rights under the Open Courts Provision of the Texas Constitution. 

The appeal is ongoing.

 Send comments to dcnews@mail.uh.edu

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