Stringent Mootness Standard for Voluntary Cessation of University Speech Policies

Introduction

The United States Court of Appeals for the Fifth Circuit in Speech First v. McCall (No. 23-50633, 2025) addressed whether a university’s amendment of a challenged harassment policy moots a First Amendment lawsuit. Speech First, Inc. challenged Texas State University’s harassment policy—broadly worded and undefined as to “unwelcome verbal or written conduct”—as unconstitutional. The district court agreed on the merits but declined to issue a preliminary injunction, compelling the university to amend the policy instead. The Fifth Circuit was tasked with deciding (1) whether Speech First had standing, and (2) whether the voluntary amendment by Texas State rendered the dispute moot.

Summary of the Judgment

The Fifth Circuit held:

Speech First has standing to challenge the policy, consistent with this court’s prior decision in Speech First v. Fenves.
The voluntary amendment of the harassment policy did not moot the preliminary injunction request. Under City of Mesquite v. Aladdin’s Castle and Fifth Circuit precedent, a “stringent” test applies to voluntary cessation: the defendant must show that wrongful behavior cannot reasonably be expected to recur.
Applying the three-factor test from Speech First v. Fenves (absence of a controlling statement of future intent, suspicious timing, continued defense of the old policy), the court found all factors weighed in favor of non-mootness.
The Fifth Circuit vacated the district court’s mootness ruling and remanded for the court to consider the preliminary injunction motion on the merits.

Analysis

Precedents Cited

The court relied primarily on:

City of Mesquite v. Aladdin’s Castle, Inc. (455 U.S. 283, 289 n.10 (1982)): Established that “mere voluntary cessation” does not moot a case, and that a stringent standard applies—defendant must demonstrate that wrongful conduct cannot reasonably be expected to recur.
Speech First, Inc. v. Fenves (979 F.3d 319 (5th Cir. 2020)): Adopted a three-factor test for voluntary cessation in the context of university speech codes: (1) absence of a controlling statement of future intent not to reenact the policy, (2) suspicious timing of the policy change, and (3) continued defense of the challenged policy.
Tucker v. Gaddis (40 F.4th 289 (5th Cir. 2022)): Confirmed de novo review of mootness and application of Article III case-or-controversy principles.

Legal Reasoning

The court’s reasoning proceeded in three steps:

Standing: Speech First represents students who fear enforcement of the policy, mirroring Fenves, so an actual and imminent threat of enforcement suffices.
Mootness and Voluntary Cessation: Article III requires a live controversy at all stages. Texas State’s amendment—prompted solely by judicial pressure—did not satisfy the stringent test:

No binding assurance: The university offered no sworn declaration or durable guarantee that it will not revert to the old policy.
Suspicious timing: The policy was changed only after Speech First’s suit and district court hearings, suggesting strategic litigation response rather than genuine reconsideration.
Continued defense: University officials persist in defending the original policy’s constitutionality, indicating an intent to return to it if litigation ends.

Preliminary Injunction Remand: As the lower court did not reach the merits of the injunction analysis, the Fifth Circuit vacated and remanded for fresh consideration under the Dunn & Grounds factors for preliminary relief.

Impact

This decision crystallizes the application of the voluntary cessation doctrine in First Amendment contexts involving university policies. It:

Reaffirms that universities cannot evade judicial review by amending challenged policies under litigation pressure.
Emphasizes that courts will scrutinize the timing and durability of policy changes and the institution’s ongoing defense of the original rule.
Signals to campus administrators that defensive litigation tactics alone will not moot constitutional challenges—clear, unconditional commitments and durable revisions are required.
Guides lower courts to apply the Fenves three-factor framework when assessing mootness in speech code disputes.

Complex Concepts Simplified

Article III “Case or Controversy”: The Constitution limits federal courts to ongoing disputes where parties have real, adverse interests. If a dispute “dies out,” courts lose power to decide it.

Voluntary Cessation Doctrine: Defendants cannot dodge court review by temporarily stopping wrongful acts. To moot a case, they must show the conduct won’t come back.

Preliminary Injunction: An urgent court order to stop or require action while the case is decided on the merits. Mootness prevents such relief if no live controversy remains.

Conclusion

Speech First v. McCall reaffirms a “stringent” mootness standard for voluntary policy changes and cements the three-factor Fenves test in university speech code challenges. Institutions seeking to amend contested policies must provide binding, durable assurances and cannot rely on litigation-driven revisions. The Fifth Circuit’s vacatur and remand underscore the court’s commitment to protecting free speech on campus and ensuring genuine judicial review of broad, ambiguous harassment rules.