Case: 17-50641 Document: 00514326902 Page: 1 Date Filed: 01/29/2018

No. 17-50641

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JENNIFER LYNN GLASS; LISA MOORE; MIA CARTER,

Plaintiffs-Appellants,

v.

KEN PAXTON, in his official capacity as Attorney General of Texas; GREGORY

L. FENVES, in his official capacity as President, University of Texas at Austin;
and PAUL L. FOSTER, R. STEVEN HICKS, JEFFREY D. HILDEBRAND,
ERNEST ALISEDA, DAVID J. BECK, ALEX M. CRANBERG, WALLACE L.
HALL, JR., BRENDA PEJOVICH, AND SARA MARTINEZ TUCKER, in their
official capacities as members of the University of Texas Board of Regents,,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS, AUSTIN DIVISION NO. 1:16CV945-LY

THE HONORABLE LEE YEAKEL.

BRIEF OF AMICI CURIAE STUDENTS FOR CONCEALED CARRY AND

STUDENTS FOR CONCEALED CARRY FOUNDATION
IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE

i
 Case: 17-50641 Document: 00514326902 Page: 2 Date Filed: 01/29/2018

STATEMENT OF INTERESTED PARTIES

Pursuant to Fifth Circuit Rule 29.2, which requires “a supplemental

statement of interested parties, if necessary to fully disclose all those with an

interest in the amicus brief,” undersigned counsel of record certifies that, in

addition to those persons listed in the parties’ statements, the following listed

persons have an interest in this amicus curiae brief. These representations are made

in order that the judges of this Court may evaluate possible disqualification or

recusal.

i) Students for Concealed Carry (“SCC”), amicus curiae in this case;

ii) Students for Concealed Carry Foundation (“SCCF”), amicus curiae in

this case;

ii) Attorney for amici curiae: Victor Ratiu.

/s/ Victor Ratiu

Victor Ratiu
Counsel of Record for SCC and SCCF

i
 Case: 17-50641 Document: 00514326902 Page: 3 Date Filed: 01/29/2018

TABLE OF CONTENTS

Page

STATEMENT OF INTERESTED PARTIES...........................................................i

TABLE OF CONTENTS…………………..............................................................ii

TABLE OF AUTHORITIES………………...........................................................iii

STATEMENT OF AUTHORITY TO FILE.............................................................1

IDENTITY AND INTEREST OF AMICI CURIAE..................................................2

ARGUMENT.............................................................................................................3

I. HAS ACADEMIC FREEDOM BEEN INFRINGED?........................3

II. ARE PROFESSORS FORCED TO SELF-CENSOR?.........................9

A. The Facts Do Not Support The Claimed Chilling

Effect.........................................................................................10

B. A Professor Is More Likely To Be Attacked By A Student Who

Is Not An LTC Holder..............................................................13

CONCLUSION.......................................................................................................14

CERTIFICATE OF COMPLIANCE.......................................................................16

CERTIFICATE OF SERVICE................................................................................17

ii
 Case: 17-50641 Document: 00514326902 Page: 4 Date Filed: 01/29/2018

TABLE OF AUTHORITIES

Cases

Laird v. Tatum, 408 U.S. 1 (1972).............................................................................9

Lovelace v. Southeastern Massachusetts University, 793 F.2d 419

(1st Cir. 1986)……………………………………………………………….4

Sweezy v. New Hampshire, 354 U.S. 234 (1957)......................................................4

Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000)....................................................4

Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988).................................9

Statutes

Texas Government Code § 411.172(g)....................................................................12

Texas Government Code § 411.2031....................................................................3, 7

VA CODE § 18.2-391(A) (Supp.1987).......................................................................9

Legislative Materials

Senate Bill 11, 84th Regular Session of the Texas Legislature (2015)...............3, 13

Rules

Fed. R. App. P. 29(a)(2)............................................................................................1

Fed. R. App. P. 29(a)(4)(D).......................................................................................1

Fed. R. App. P. 29 (a)(4)(E)......................................................................................1

iii
 Case: 17-50641 Document: 00514326902 Page: 5 Date Filed: 01/29/2018

Proclamation by the Governor of the State of Texas, Texas LTC Reciprocity

Agreement with Indiana................................................................................12

Other Authorities

ASSOCIATED PRESS, "Colo. community colleges to allow guns on campus",

The Denver Post, May 13, 2010,

http://www.denverpost.com/2010/05/13/colo-community-colleges-to-allow-

guns-on-campus/ ..........................................................................................10

Friedl, John, "Stretching the Definition of Academic Freedom",

Inside Higher Ed, August 31, 2006,

https://www.insidehighered.com/views/2006/08/31/stretching-definition-

academic-freedom ..........................................................................................5

Jaschik, Scott, "Gun Rights vs. College Rights", Inside Higher Ed, September 11,

2006, https://www.insidehighered.com/news/2006/09/11/guns ..................10

Kessler, Glenn, "Do concealed weapon laws result in less crime?", The Washington

Post, December 17, 2012, https://www.washingtonpost.com/blogs/fact-

checker/post/do-concealed-weapon-laws-result-in-less-

crime/2012/12/16/e80a5d7e-47c9-11e2-ad54-

580638ede391_blog.html?utm_term=.0ca6afe18b8a...................................12

iv
 Case: 17-50641 Document: 00514326902 Page: 6 Date Filed: 01/29/2018

Lewis, W. Scott, "Empty Holsters on Campus, The Washington Times, October 24,

2007, https://www.washingtontimes.com/news/2007/oct/24/empty-holsters-

on-campus/......................................................................................................2

Lewis, W. Scott, Letter to National Rifle Association Institute for Legislative

Action Executive Director Chris Cox, December 3, 2007,

https://www.scribd.com/document/338806665/SCC-Reaches-Out-to-the-

NRA ...............................................................................................................2

National Rifle Association, "The New Campus Revolt: Empty Holsters", America's

First Freedom, December 13, 2007,

https://www.nraila.org/articles/20071213/the-new-campus-revolt-empty-

holsters............................................................................................................2

Olson, Gary A., "The Limits of Academic Freedom", The Chronicle of Higher

Education, December 9, 2009, https://www.chronicle.com/article/ The-

Limits-of-Academic-Freedom/49354 .............................................................5

Paxton, Ken, Attorney General of Texas, Opinion No. KP-0051,

https://www.texasattorneygeneral.gov/opinions/opinions/51paxton/op/2015/

kp0051.pdf ......................................................................................................7

SCC, "January 1, 2017, Texas License to Carry (LTC) Licensure Among Persons

Age 18-23", https://www.scribd.com/document/258967033/Statistics-on-

Texas-LTCs-CHLs-Age-18-23-01-01-17-01-01-16-01-01-15 ....................13

v
 Case: 17-50641 Document: 00514326902 Page: 7 Date Filed: 01/29/2018

SCC, "Johns Hopkins Report on Campus Carry Is Seriously Flawed", November 1,

2016, http://concealedcampus.org/2016/11/johns-hopkins-report-on-campus-

carry-is-seriously-flawed/ .............................................................................12

SCC, "A Refresher on the Case for Campus Carry in Texas", May 28, 2016,

http://concealedcampus.org/2016/05/a-refresher-on-the-case-for-campus-

carry-in-texas/ ...............................................................................................2

SCC, "Locations Where Concealed Carry is Prohibited in the State of Texas" and

"Clearing up Confusion about Where Licensed Concealed Carry is

Prohibited in the State of Texas", July 10, 2013,

https://www.scribd.com/document/254073403/Locations-Where-Concealed-

Carry-is-Prohibited-in-Texas..........................................................................8

SCC, "SCC's 2015 Texas Legislative Handout",

https://www.scribd.com/document/255815743/SCC-s-2015-Texas-

Legislative-Handout ......................................................................................2

SCC, SCC’s Oct. 2, 2015 – Aug. 1, 2017, Texas press releases and op-eds,

https://www.scribd.com/document/319141232/Texas-Students-for-

Concealed-Carry-Campus-Carry-Press-Releases-Op-Eds-Oct-2-2015-Aug-

1-2017 ...........................................................................................................2

vi
 Case: 17-50641 Document: 00514326902 Page: 8 Date Filed: 01/29/2018

SCC, "Texas LTC/CHL Crime Statistics (1996-2015)",

https://www.scribd.com/document/258967177/Texas-LTC-CHL-Crime-

Statistics-1996-2015 .....................................................................................13

SCC, "Texas LTC Revocations (2014-2016)",

https://www.scribd.com/document/337897014/Texas-LTC-Revocations-

2014-2016 .....................................................................................................12

SCC, "What ‘Rolling Stone’ Got Wrong About the 'Fight Over Guns on Campus'",

March 24, 2017, http://concealedcampus.org/2017/03/what-rolling-stone-

got-wrong-about-the-fight-over-guns-on-campus/ .......................................12

SCC, "Why Campus Carry?" television commercial,

https://youtu.be/XtpJuhAjMoI ..................................................................................2

Stirgus, Eric, "How does Georgia’s campus carry bill work?", The Atlanta Journal-

Constitution, May 5, 2017, http://www.ajc.com/news/local-education/how-

does-georgia-campus-carry-bill-work/jXPXe6pEngAA1pm6AEP14K/ .....11

Stripling, Jack, "Gun Fight", Inside Higher Ed, April 17, 2009,

https://www.insidehighered.com/news/2009/04/17/gun-fight .....................10

Texas Department of Public Safety, "Active License/Certified Instructor Counts As

of December 31, 2016", January 2, 2017,

https://www.dps.texas.gov/rsd/LTC/reports/ActLicAndInstr/ActiveLicandIn

str2016.pdf ....................................................................................................13

vii
 Case: 17-50641 Document: 00514326902 Page: 9 Date Filed: 01/29/2018

Texas Department of Public Safety, "Conviction Rates for Handgun License

Holders Reporting Period : 01/01/2016 - 12/31/2016", April 25, 2017,

https://www.dps.texas.gov/RSD/LTC/Reports/ConvictionRatesReport2016.p

df ...................................................................................................................13

Texas Health and Human Services, 2016 Population Projections,

http://www.dshs.texas.gov/CHS/Popdat/Dtl/Dtl2016p.xls ..........................13

Texas State Rifle Association, "Mock Mass Shooting on UT Campus, Texas" press

release, https://www.ammoland.com/2015/12/mock-mass-shooting-on-ut-

campus-texas/#axzz4xyrP1a8M .....................................................................2

Tripp, Alice, Legislative Director for the Texas State Rifle Association, Testimony

before the Texas Senate Committee on State Affairs, January 26, 2016,

https://youtu.be/rp7B_TCIpYY ......................................................................2

University of Texas at Austin, "Campus Concealed Carry", Handbook of Operating

Procedures 8-1060, https://policies.utexas.edu/policies/campus-concealed-

carry ................................................................................................................3

University of Texas at Austin, "Consensual Relationships", Handbook of

Operating Procedures 3-3050,

https://policies.utexas.edu/policies/consensual-relationships ........................6

viii
 Case: 17-50641 Document: 00514326902 Page: 10 Date Filed: 01/29/2018

University of Texas at Austin, "Tobacco-Free Campus", Handbook of Operating

Procedures 8-1040, https://policies.utexas.edu/policies/tobacco-free-campus

.........................................................................................................................6

Whaley, Monte, "Colorado Supreme Court affirms that CU students with permits

can carry concealed guns on campus", The Denver Post, March 5, 2012,

http://www.denverpost.com/2012/03/05colorado-supreme-court-affirms-

that-cu-students-with-permits-can-carry-concealed-guns-on-campus/ ........10

Wymer, Garrett, "Some Students Want to Bring Back Concealed Carry", WHSV,

September 12, 2013, http://www.whsv.com/news/headlines/Carrying-

Concealed-Weapons-on-Campus-223526681.html .....................................11

Zuckerman, Laura, "Idaho lawmakers pass bill allowing concealed guns on college

campuses", REUTERS, March 6, 2014, https://www.reuters.com/article/us-

usa-idaho-guns/idaho-lawmakers-pass-bill-allowing-concealed-guns-on-

college-campuses-idUSBREA2605U20140307 ..........................................10

ix
 Case: 17-50641 Document: 00514326902 Page: 11 Date Filed: 01/29/2018

STATEMENT OF AUTHORITY TO FILE

All parties have consented to filing of this brief, as required by Federal

Rules of Appellate Procedure 29(a)(2) and 29(a)(4)(D). In accordance with Rule

29(a)(4)(E), Amici aver that: (i) no party’s counsel authored this brief in whole or

in part; (ii) no party or party’s counsel contributed money intended to fund

preparation or submission of the brief; and (iii) no person—other than the amici

curiae, their members, or their counsel—contributed money intended to fund

preparation or submission of the brief.

1
 Case: 17-50641 Document: 00514326902 Page: 12 Date Filed: 01/29/2018

IDENTITY AND INTEREST OF AMICI CURIAE

Students for Concealed Carry ("SCC"), founded in 2007, is a national,

nonpartisan, nonprofit organization comprising college students, faculty, staff, and

concerned citizens who believe that individuals who possess a state-issued license

to carry a handgun ("LTC") should be allowed to carry concealed handguns on

public college campuses, for personal protection. SCC, which is not affiliated with

any other gun-rights or political organization, is responsible for starting1 the

national "campus carry" movement 2 and bringing the issue to the political

forefront3 in both Texas and across the country. SCC lobbied 4 extensively for the

1
Testimony of Texas State Rifle Association Legislative Director Alice Tripp, before the Texas
Senate Committee on State Affairs, explaining the history of the movement to allow the licensed,
concealed carry of handguns on Texas college campuses; January 26, 2016;
https://youtu.be/rp7B_TCIpYY.
2
Letter from SCC National Media Coordinator W. Scott Lewis to National Rifle Association
Institute for Legislative Action Executive Director Chris Cox, December 3, 2007,
https://www.scribd.com/document/338806665/SCC-Reaches-Out-to-the-NRA.
3
W. Scott Lewis, "Empty Holsters on Campus", The Washington Times, October 24, 2007,
https://www.washingtontimes.com/news/2007/oct/24/empty-holsters-on-campus/;
National Rifle Association, "The New Campus Revolt: Empty Holsters", America's First
Freedom, December 13, 2007, https://www.nraila.org/articles/20071213/the-new-campus-revolt-
empty-holsters.
4
"SCC's 2015 Texas Legislative Handout", a collection of op-eds and essays written by SCC and
distributed to Texas legislators during the 2015 Texas Legislative Session,
https://www.scribd.com/document/255815743/SCC-s-2015-Texas-Legislative-Handout,
"Why Campus Carry?"; a 30-second television commercial produced by SCC and aired in
Austin, Texas, during the 2015 Texas Legislative Session; https://youtu.be/XtpJuhAjMoI; SCC’s
Oct. 2, 2015 – Aug. 1, 2017, Texas press releases and op-eds:
https://www.scribd.com/document/319141232/Texas-Students-for-Concealed-Carry-Campus-
Carry-Press-Releases-Op-Eds-Oct-2-2015-Aug-1-2017; "A Refresher on the Case for Campus
Carry in Texas": http://concealedcampus.org/2016/05/a-refresher-on-the-case-for-campus-carry-
in-texas/.

2
 Case: 17-50641 Document: 00514326902 Page: 13 Date Filed: 01/29/2018

passage of the law challenged by Plaintiffs and is credited with being one of three5

organizations responsible for the passage of said law.

Students for Concealed Carry Foundation is a 501(c)(3) nonprofit formed in

2014 by alumni of SCC. SCCF is dedicated to supporting litigation and research

that advances lawful, licensed concealed carry on college campuses.

ARGUMENT

This brief seeks to address two questions underlying Plaintiffs' claims:

1. Does the combination of Texas Government Code Section 411.2031,

CARRYING OF HANDGUNS BY LICENSE HOLDERS ON CERTAIN

CAMPUSES (Senate Bill 11, 84th Regular Session of the Texas

Legislature), and the University of Texas at Austin's "Campus Concealed

Carry" policy (Handbook of Operating Procedures 8-1060) deny professors

the "academic freedom" to exercise educational judgment over their

classrooms?

2. Does the combination of Texas Government Code Section 411.2031,

CARRYING OF HANDGUNS BY LICENSE HOLDERS ON CERTAIN

CAMPUSES (Senate Bill 11, 84th Regular Session of the Texas

5
Texas State Rifle Association; "Mock Mass Shooting on UT Campus, Texas"; press release
stating, "SB 11, CHL on Campus, took 4 legislative sessions to pass, 8 years. Besides Texas
State Rifle Association the major stakeholders were NRA and Students for Concealed Carry on
Campus, a national group organized post Virginia Tech",
https://www.ammoland.com/2015/12/mock-mass-shooting-on-ut-campus-
texas/#axzz4xyrP1a8M.

3
 Case: 17-50641 Document: 00514326902 Page: 14 Date Filed: 01/29/2018

Legislature), and the University of Texas at Austin's "Campus Concealed

Carry" policy (Handbook of Operating Procedures 8-1060) compel

professors to self-censor (i.e., alter curricula, teaching materials, or teaching

styles)?

I. HAS ACADEMIC FREEDOM BEEN INFRINGED?

The limits of "academic freedom" as a constitutional right have been the

subject of debate since the Supreme Court affirmed the existence of said right in

Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). Since then, the Supreme

Court has offered little guidance on the matter; however, lower courts have held

that the right is primarily an institutional right and that any similar right enjoyed by

individual professors is largely an extension of the First Amendment rights enjoyed

by all citizens.

The Fourth Circuit's ruling in Urofsky v. Gilmore, 216 F.3d 401, 410 (4th

Cir. 2000), states, "[to] the extent the Constitution recognizes any right of

‘academic freedom’ above and beyond the First Amendment rights to which every

citizen is entitled, the right inheres in the university, not in individual professors."

That interpretation concurs with the First Circuit's ruling in Lovelace v.

Southeastern Mass. Univ., 793 F.2d 419, 426 (1st Cir. 1986), which states, "The

first amendment does not require that each nontenured professor be made a

sovereign unto himself."

4
 Case: 17-50641 Document: 00514326902 Page: 15 Date Filed: 01/29/2018

Although Plaintiffs' claim of absolute "academic freedom" is without legal

precedent, such claims are common among U.S. professors displeased with

university policies protecting the right to carry. In a column6 published in the

August 31, 2006, edition of Inside Higher Ed, John Friedl—professor in the

Department of Political Science, Public Administration, and Nonprofit

Management and the Department of Accounting and Finance at the University of

Tennessee at Chattanooga—writes, "The real problem that needs to be addressed is

the growing gap in the understanding of the concept of academic freedom shared—

or more often not shared—by faculty and administrators. Matters of institutional

policy proposed by academic administrators are increasingly—and frequently

without justification—condemned by professors as infringements on their rights."

In a column7 published in the December 9, 2009, edition of The Chronicle of

Higher Education, Gary A. Olson—provost and vice president for academic affairs

at Idaho State University and co-editor, with John W. Presley, of The Future of

Higher Education: Perspectives From America's Academic Leaders (2009,

Paradigm Publishers)—writes, "Most of us in academe cherish the protections

afforded by academic freedom, but too many are unclear as to its limits. I have

known colleagues who believed that academic freedom allows them to say
6
John Friedl, "Stretching the Definition of Academic Freedom", Inside Higher Ed, August 31,
2006, https://www.insidehighered.com/views/2006/08/31/stretching-definition-academic-
freedom.
7
Gary A. Olson, "The Limits of Academic Freedom", The Chronicle of Higher Education,
December 9, 2009, https://www.chronicle.com/article/The-Limits-of-Academic-Freedom/49354.

5
 Case: 17-50641 Document: 00514326902 Page: 16 Date Filed: 01/29/2018

anything they want, to anyone, in any venue, or to engage in behavior that most

observers would assume to be inappropriate in any other workplace."

Plaintiffs argue that academic freedom affords them the right to bar adults

whom the State of Texas has vetted and licensed to carry handguns, from entering

their classrooms with concealed handguns. By this same flawed logic, academic

freedom would afford Plaintiffs the right to bar campus police officers, who have

also been vetted and licensed by the State of Texas, from entering their classrooms

with handguns.

By logical extension of Plaintiffs' claim, "academic freedom" could be used

to nullify virtually any university policy with which they disagree. They could

make an equally valid case that the university's policy8 against the on-campus use

of tobacco products makes it harder for nicotine-addicted faculty and students to

engage in civil, cogent classroom discussions or that the university policy 9

prohibiting sexual relationships between professors and students inhibits a full

exploration of the topic of human sexuality.

8
University Policy Office, The University of Texas at Austin, Handbook of Operating
Procedures 8-1040, "Tobacco-Free Campus", https://policies.utexas.edu/policies/tobacco-free-
campus.
9
University Policy Office, The University of Texas at Austin, Handbook of Operating
Procedures 3-3050, "Consensual Relationships", https://policies.utexas.edu/policies/consensual-
relationships.

6
 Case: 17-50641 Document: 00514326902 Page: 17 Date Filed: 01/29/2018

On December 21, 2015, Attorney General of Texas Ken Paxton issued a

formal opinion10 on Texas Government Code Section 411.2031, stating, "If an

institution prohibited the carrying of concealed handguns in a substantial number

of classrooms, a court would likely conclude that the effect would be to 'generally

prohibit' license holders from carrying concealed handguns on campus, contrary to

the Legislature's express requirements." The opinion also states, "[A] court would

likely conclude that S.B. 11 does not authorize a president or chief executive

officer of an institution of higher education to delegate to individual professors the

decision as to whether possession of a concealed handgun is allowed in the

individual professor's classroom."

If this opinion of the Texas attorney general is correct, Texas state law,

independent of University of Texas at Austin policy, prohibits professors from

barring license to carry ("LTC") holders from carrying concealed handguns in the

professors' classrooms. If that is the case, the Court cannot offer Plaintiffs relief

without overturning state law. Citing "academic freedom" as grounds to overturn a

state law declaring that an action and/or object that is allowed in almost all other

10
Ken Paxton, Attorney General of Texas, Opinion No. KP-0051,
https://www.texasattorneygeneral.gov/opinions/opinions/51paxton/op/2015/kp0051.pdf.

7
 Case: 17-50641 Document: 00514326902 Page: 18 Date Filed: 01/29/2018

state facilities11 must also be allowed in college classrooms would set a dangerous

precedent.

By logical extension, "academic freedom" could be used to nullify virtually

any state law that a professor speculates might impact his or her classroom,

curriculum, or pedagogical style. A professor in a state that prohibits the licensed,

concealed carry of handguns on college campuses could have that law overturned,

on the basis that he or she only feels safe in the classroom while carrying a

handgun. Likewise, a professor could argue that state and federal laws against the

possession and/or recreational use of marijuana inhibit his or her ability to expand

students' minds as he or she sees fit.

Plaintiffs' interpretation of the constitutional right of academic freedom as

preferred class among First Amendment rights is both dangerous and without legal

precedent or practical justification. It is a Pandora's box with the potential for

widespread harm to both America's legal system and America's educational

system. Simply put, nothing in Supreme Court precedent or lower court rulings

establishes an interpretation of "academic freedom" that is incompatible with a

state law requiring state colleges—and, by extension, professors at state colleges—

to allow licensed, vetted adults to engage in the same behavior in which those

11
Students for Concealed Carry, "Locations Where Concealed Carry is Prohibited in the State of
Texas" and "Clearing up Confusion about Where Licensed Concealed Carry is Prohibited in the
State of Texas", July 10, 2013, https://www.scribd.com/document/254073403/Locations-Where-
Concealed-Carry-is-Prohibited-in-Texas.

8
 Case: 17-50641 Document: 00514326902 Page: 19 Date Filed: 01/29/2018

licensed, vetted adults are allowed to engage at most other locations throughout the

state, including most other state facilities.

II. ARE PROFESSORS FORCED TO SELF-CENSOR?

Existing case law recognizing self-censorship as a possible infringement of

First Amendment rights stems from a challenge to a statute that directly restricted

speech in a manner so vague or ambiguous as to frighten the plaintiffs into

overcorrecting (i.e., they restricted their own speech in excess of what was required

by the law, in order to avoid crossing a legal threshold that was not clearly

defined). Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988)

(interpreting VA CODE § 18.2-391(A) [Supp.1987]). Because the law challenged

by Plaintiffs places no restrictions on speech, the existing case law on self-

censorship offers little guidance.

Some small measure of guidance may be gleaned from Laird v. Tatum, 408

U.S. 1, 13–14 (1972), which states, "Allegations of a subjective 'chill' are not an

adequate substitute for a claim of specific present objective harm or a threat of

specific future harm." This dismissal of allegations of a subjective chill raises the

question of whether the "chill" claimed by Plaintiffs is supported by objective

evidence. In other words, do Plaintiffs have a factual basis for their belief that they

are likely to suffer harm at the hands of LTC holders if they do not alter their

courses or teaching styles in some way?

9
 Case: 17-50641 Document: 00514326902 Page: 20 Date Filed: 01/29/2018

A. The Facts Do Not Support The Claimed Chilling Effect.

• Since the fall semester of 200612, licensed individuals have been allowed to

carry concealed handguns on the campuses of Utah’s nine degree-offering

public colleges (20 campuses) and one public technical college (10

campuses).

• Licensed concealed carry has been allowed on the two campuses of

Colorado State University (Fort Collins, CO, and Pueblo, CO) since 200313

and at 14 Colorado community colleges (38 campuses) since the fall

semester of 201014. The remaining 12 Colorado public colleges (21

campuses) began allowing it in the spring of 201215.

• As of July 1, 201416, all Idaho public colleges (30 campuses) allow licensed

concealed carry.

• As of July 1, 201717, all 27 public universities and 22 public community

colleges in Georgia allow licensed concealed carry.

12
Scott Jaschik, "Gun Rights vs. College Rights", Inside Higher Ed, September 11, 2006,
https://www.insidehighered.com/news/2006/09/11/guns.
13
Jack Stripling, "Gun Fight", Inside Higher Ed, April 17, 2009,
https://www.insidehighered.com/news/2009/04/17/gun-fight.
14
THE ASSOCIATED PRESS, "Colo. community colleges to allow guns on campus", The
Denver Post, May 13, 2010, http://www.denverpost.com/2010/05/13/colo-community-colleges-
to-allow-guns-on-campus/.
15
Monte Whaley, "Colorado Supreme Court affirms that CU students with permits can carry
concealed guns on campus", The Denver Post, March 5, 2012,
http://www.denverpost.com/2012/03/05/colorado-supreme-court-affirms-that-cu-students-with-
permits-can-carry-concealed-guns-on-campus/.
16
Laura Zuckerman, "Idaho lawmakers pass bill allowing concealed guns on college campuses",
Reuters, March 6, 2014, https://www.reuters.com/article/us-usa-idaho-guns/idaho-lawmakers-
pass-bill-allowing-concealed-guns-on-college-campuses-idUSBREA2605U20140307.

10
 Case: 17-50641 Document: 00514326902 Page: 21 Date Filed: 01/29/2018

• Blue Ridge Community College (Weyers Cave, VA) allowed licensed

concealed carry from 1995 through 201118.

• Texas's 38 public universities began allowing licensed concealed carry on

August 1, 2016. Texas's 82 public two-year colleges (125 campuses) have

allowed it since August 1, 2017.

In total, more than 333 U.S. college campuses have allowed licensed

concealed carry for a combined total of almost 2,000 (biannual) college semesters,

an average of almost six semesters (three years) per campus.

Despite this extensive history of licensed concealed carry at U.S. college

campuses, Plaintiffs have not provided a single example of a faculty member, staff

member, or student on one of these campuses being assaulted or threatened with a

gun wielded by an LTC holder.

This lack of real-world examples is consistent with the findings of amici,

which, after more than a decade of researching this issue, have not located a single

report of an assault or threatened assault committed by an armed LTC holder on a

college campus that allows licensed concealed carry.

17
Eric Stirgus, "How does Georgia’s campus carry bill work?", The Atlanta Journal-
Constitution, May 5, 2017, http://www.ajc.com/news/local-education/how-does-georgia-campus-
carry-bill-work/jXPXe6pEngAA1pm6AEP14K/.
18
Garrett Wymer, "Some Students Want to Bring Back Concealed Carry", WHSV, September
12, 2013, http://www.whsv.com/news/headlines/Carrying-Concealed-Weapons-on-Campus-
223526681.html.

11
 Case: 17-50641 Document: 00514326902 Page: 22 Date Filed: 01/29/2018

This lack of real-world examples is also consistent with a 2012 Washington

Post analysis19 of peer-reviewed studies on the impact of licensed concealed carry.

That analysis concluded, "Certainly, it appears such laws have not increased the

crime rate, as opponents had feared."

This lack of increase in the crime rate is in part attributable to the fact that

LTC holders tend to be scrupulously law abiding. From 2014 through 201620,

Texas LTC holders of typical undergraduate age (1821-23) had their licenses

revoked at a lower rate than did license holders twenty years older. From 1996

through 201622, Texas LTC holders were less than 14% as likely to be convicted of

19
Glenn Kessler, "Do concealed weapon laws result in less crime?", The Washington Post,
December 17, 2012, https://www.washingtonpost.com/blogs/fact-checker/post/do-concealed-
weapon-laws-result-in-less-crime/2012/12/16/e80a5d7e-47c9-11e2-ad54-
580638ede391_blog.html?utm_term=.0ca6afe18b8a; see also "Johns Hopkins Report on Campus
Carry Is Seriously Flawed": http://concealedcampus.org/2016/11/johns-hopkins-report-on-
campus-carry-is-seriously-flawed/; "What ‘Rolling Stone’ Got Wrong About the 'Fight Over
Guns on Campus'": http://concealedcampus.org/2017/03/what-rolling-stone-got-wrong-about-
the-fight-over-guns-on-campus/.
20
Students for Concealed Carry, "Texas LTC Revocations (2014-2016)", a compilation of
statistics collected and released by the Texas Department of Public Safety,
https://www.scribd.com/document/337897014/Texas-LTC-Revocations-2014-2016.
21
Per Texas Government Code § 411.172(g), a person age 18-20 may only obtain a Texas
license to carry a handgun if the person is a member or honorably discharged veteran of the U.S.
armed forces: http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.411.htm#411.172.
Texas's LTC reciprocity agreements dictate that a person who carries a handgun in Texas, under
the authority of a license issued by another state but recognized by Texas, must "comply with all
laws, rules, and regulations of the State of Texas governing concealed carry, including age
restrictions [emphasis added] and types of weapons permitted":
https://www.dps.texas.gov/RSD/LTC/legal/reciprocity/Indianaproclamation.pdf.
22
Students for Concealed Carry, "Texas LTC/CHL Crime Statistics (1996-2015)", a compilation
of statistics collected and released by the Texas Department of Public Safety,
https://www.scribd.com/document/258967177/Texas-LTC-CHL-Crime-Statistics-1996-2015;

12
 Case: 17-50641 Document: 00514326902 Page: 23 Date Filed: 01/29/2018

aggravated assault with a deadly weapon as were unlicensed adults in the state of

Texas. As of January 1, 201723, the rate of LTC licensure among Texans of typical

undergraduate age (18-23) was approximately 1.03%, or one person out of every

97. Neither the Texas law nor the University of Texas at Austin policy at issue

makes it any easier to sneak a well-concealed handgun into a university classroom.

As in the days before the 84th Texas Legislature legalized the licensed, concealed

carry of handguns in the buildings of Texas's public institutions of higher

education, Texas universities are, by and large, open environments lacking

controlled points of entry, metal detectors, and bag checks. As in the past, any

student unconcerned with following the rules can just as easily enter a classroom

carrying a backpack full of guns as carrying a backpack full of books.

B. A Professor Is More Likely To Be Attacked By A Student Who Is

Not An LTC Holder.

If any student is physically capable of bringing a weapon into a classroom, if

only 1.03% of Texans age 18-23 are LTC holders, and if LTC holders are

Texas Department of Public Safety, "Conviction Rates for Handgun License Holders Reporting
Period : 01/01/2016 - 12/31/2016", April 25, 2017,
https://www.dps.texas.gov/RSD/LTC/Reports/ConvictionRatesReport2016.pdf;
Texas Department of Public Safety, "Active License/Certified Instructor Counts As of December
31, 2016", January 2, 2017,
https://www.dps.texas.gov/rsd/LTC/reports/ActLicAndInstr/ActiveLicandInstr2016.pdf;
Texas Health and Human Services, 2016 Population Projections,
http://www.dshs.texas.gov/CHS/Popdat/Dtl/Dtl2016p.xls.
23
Students for Concealed Carry, "January 1, 2017, Texas License to Carry (LTC) Licensure
Among Persons Age 18-23", a compilation of statistics collected and released by the Texas
Department of Public Safety, https://www.scribd.com/document/258967033/Statistics-on-Texas-
LTCs-CHLs-Age-18-23-01-01-17-01-01-16-01-01-15.

13
 Case: 17-50641 Document: 00514326902 Page: 24 Date Filed: 01/29/2018

approximately 13.5% less likely to commit aggravated assault with a deadly

weapon, we can estimate that a professor teaching a classroom full of 18- to 23-

year-old students at a Texas public university is less likely—0.139% as likely—to

be the victim of an armed assault perpetrated by an LTC holder as to be the victim

of an armed assault perpetrated by a student who is not licensed to carry a

handgun.

Given that this hypothetical professor is 719 times (1 ÷ 0.00139) as likely to

be assaulted (with a weapon) by one of the 98.97% of his or her students who are

not authorized to carry a gun in class as by one of the 1.03% who are licensed to

carry a gun in class, the presence of students licensed to carry a gun in class creates

no factually defensible motivation for the professor to alter his or her curriculum or

pedagogical style.

CONCLUSION

Plaintiffs' case is predicated on two fallacies—the legal fallacy that

professors have a special constitutional right to autonomous rule over their

classrooms and the logical fallacy that the presence of licensed, lawfully armed

students places a professor at greater risk of armed assault, thereby necessitating

changes to curriculum, course materials, and/or teaching style. The District Court

ruled correctly in dismissing the case on the grounds that Plaintiffs failed to "point

14
 Case: 17-50641 Document: 00514326902 Page: 25 Date Filed: 01/29/2018

to a specific harm they have suffered or will suffer as a result of the law and

policy" and offered "no concrete evidence to substantiate their fears.

RESPECTFULLY SUBMITTED this 29th day of January, 2018 by:

/s/ Victor Ratiu

Victor Ratiu
Attorney for Amici SCC and SCCF

15
 Case: 17-50641 Document: 00514326902 Page: 26 Date Filed: 01/29/2018

CERTIFICATE OF COMPLIANCE

Pursuant to FED. R. APP. P. 32(g)(1) and Fifth Circuit Local Rule 32.3, I

certify that Amicus Curiae’s brief:

(a) was prepared using 14-point Times New Roman font;

(b) is proportionately spaced; and

(c) contains 3119 words, excluding the parts of the document

exempted by Fed. R. App. P. 32(f).

Submitted this 29th day of January, 2018,

/s/ Victor Ratiu

Victor Ratiu

16
 Case: 17-50641 Document: 00514326902 Page: 27 Date Filed: 01/29/2018

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Fifth Circuit by using the

appellate CM/ECF system on this 29th day of January, 2018.

I certify that all participants in the case are registered CM/ECF users and

that service will by accomplished by the appellate CM/ECF system.

/s/ Victor Ratiu

Victor Ratiu

17