Board of Regents of University of Texas System v. New Left Education Project

PETITIONER:Board of Regents of University of Texas System
RESPONDENT:New Left Education Project
LOCATION:Bay Marchand Area

DOCKET NO.: 70-55
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 404 US 541 (1972)
ARGUED: Dec 06, 1971
DECIDED: Jan 24, 1972

ADVOCATES:
David R. Richards – for appellees
W. O. Shultz II – for appellant

Facts of the case

Question

Audio Transcription for Oral Argument – December 06, 1971 in Board of Regents of University of Texas System v. New Left Education Project

Warren E. Burger:

We’ll hear arguments next in Board of Regents against New Left Education Project.

Mr. Shultz, you may proceed whenever you’re ready.

W. O. Shultz II:

Mr. Chief Justice and may it please the Court.

I’m W. O. Shultz, an Assistant Attorney General from the State of Texas.

I’m representing the Board of Regents in this case this morning.

Initially since this Court postponed jurisdiction until argument I address myself briefly to this jurisdictional question.

The only objection which appellee raises in his brief to the jurisdiction of the Court is — concerned itself with the fact that there is a coordinating board in the State of Texas and the appellant contends that is a higher authority that has statewide jurisdiction and the Board of Regents is somehow under yet with regard to its rules and regulations.

I submit to the Court that this is not so.

The Act creating the Coordinating Board and makes it precisely that, a coordinating board.

Its primary purposes are to coordinate the degree programs through the institutions in the State of Texas.

Our higher education set up several of the colleges, have their own Board of Regents.

The University of Texas of course has a systemwide campus setup.

We have a — campuses in El Paso, Arlington, Dallas, Odessa, Midland, Houston, Galveston, Port Aransas, San Antonio.

These are all under the direction of the Board of Regents.

And the primary purpose of the Coordinating Board is to coordinate degree programs in all the colleges.

And then before a college can institute a new degree program, they must get approval to the Coordinating Board.

The Act creating the Board specifically says that it shall have only such powers as are given to it in the Board, I mean in the Act in any power which one of the governing boards of an institution of higher education has that are not specifically delegated to the Coordinating Board.

The Coordinating Board does not have and there’s no provision in the Coordinating Board Act which gives them the authority to promulgate rules and regulations which are applicable to any other campuses with regard to the day-to-day operation of those campuses.

At the last session of the legislature, there was a codification of — of the various Education Acts, they were put into an education code.

Well, this Coordinating Board Act was incorporated in the Education Code.

At the same time, same session of the legislature, there was an act passed applying specifically to the Board of Regents of the University of Texas System, it’s Art. 2585e, Vernon’s Civil Statute and just recently been codified as such.

Section 1 of that Act reaffirms the powers of the Board of Regents to promulgate rules and regulations applicable systemwide and may — may I quote — if I may quote briefly, it says authority — the Board has authority “to promulgate and enforce such other rules and regulations for the operation, control and management of the University of Texas System, and the component institutions thereof as the Board of Regents of the University of Texas System may deem either necessary or desirable.”

Section 5 of that Act says, and I quote, “This Act is cumulative of all statutes relating to the University of Texas System or any of the component institutions of the University of Texas System, except where — where such statute may be in conflict with this Act.

If any such conflict arises, the conflicting statute is hereof by repeal to the extent of that conflict.”

So here, we have, I think all doubt removed as to any primary authority in the Coordinating Board as to its regulatory power, veto power of the rules and regulations of the Board of Regents.

Now, on the Texas law, our Texas Supreme Court has held that the regulations and rules of the Board of Regents of University of Texas are the equivalent of statutory enactments, they are laws.

I think that since these regulations are systemwide and cover a substantial area of the State.

William J. Brennan, Jr.:

Well —

W. O. Shultz II:

They are —

William J. Brennan, Jr.:

— are there any state-supported universities and colleges to which these regulations do not apply?

W. O. Shultz II:

Yes, Your Honor, there are.

They’re not part of the University of Texas System however.

William J. Brennan, Jr.:

Well, let me put it another way.

And do they — do these rules and regulations apply to all units, all colleges and universities within this particular system?

W. O. Shultz II:

They apply to all schools and institutions within the University of Texas System, Your Honor.

William J. Brennan, Jr.:

Are those the ones that communities you mentioned, Galveston etcetera?

W. O. Shultz II:

Yes, sir.

Potter Stewart:

And how many in all?

W. O. Shultz II:

(Voice Overlap) Oh, I think they — they say they — they have 17 component institutions in the system.

Potter Stewart:

And they’re all part of University of Texas System?

W. O. Shultz II:

That’s correct, Your Honor.

There’s — University of Texas at Austin, University of Texas at El Paso, University of Texas at Permian Basin, University of Texas at Dallas, University of Texas at San Antonio, and there’s the University of Texas Med School in Galveston, the Tumor Center in — school in Houston, a South West Med School in Dallas, nursing school in Houston, the Institute of Marine Sciences in Port Aransas.

William J. Brennan, Jr.:

And they are all the University of Texas, is that it?

W. O. Shultz II:

They’re all the University of Texas System.

William J. Brennan, Jr.:

And the other state supported colleges and universities are what, are they —

W. O. Shultz II:

Some of them have their own individual boards of regents.

We have North Texas State University, it has its own Board of Regents by itself.

We have Texas Woman’s University, it has its own Board of Regents by itself, they have one campus only.

William J. Brennan, Jr.:

What was the relationship of this other state university, the sate supported universities and colleges to the University of Texas System?

W. O. Shultz II:

None I think other than that they all got their money from the appropriation from the Texas legislature.

William J. Brennan, Jr.:

But there’s no —

W. O. Shultz II:

They only states —

William J. Brennan, Jr.:

There’s no common Board of Education for all of them?

W. O. Shultz II:

Not as far as regulating the hiring and firing, the day-to-day operation in the school, the rules and regulations.

William J. Brennan, Jr.:

But there is for all purposes.

W. O. Shultz II:

Pardon?

William J. Brennan, Jr.:

Is their overall agency as —

W. O. Shultz II:

To do — to do — that has this power?

William J. Brennan, Jr.:

That — that super — has something to do with every state supported colleges and universities.

W. O. Shultz II:

The Coordinating Board has to the extent it has power to — to try to coordinate the degree programs.

W. O. Shultz II:

It — it was primarily established to — we — we had rather a hodgepodge in our higher education system frankly to try and keep duplication of degree programs and efforts at the various schools to a minimum by requiring approval for institution of new degree programs or the establishment of a new college or school within the particular university.

They — they set there the supreme powers and well, now this school has — already has a pretty good program that that — and that — feel now, do we need one at this school?

Thurgood Marshall:

How about Texas A&M?

W. O. Shultz II:

That’s a matter of dispute, Mr. Justice Marshall.Our constitution said that Texas A&M is a branch of the University of Texas but it has operated under its own Board of Regents for many, many years.

The only — the only common thing they share is that Texas A&M University gets a part of the permanent endowment fund that was set aside to the University of Texas under the Constitution of 1876.

Thurgood Marshall:

Well, is the Texas A&M separate and distinct from the University of Texas as of today?

W. O. Shultz II:

It is as far as its operation is concerned, Your Honor.

Thurgood Marshall:

And yet it is not covered by this order.

W. O. Shultz II:

That’s true.

It’s not a part of the University of Texas System.

Thurgood Marshall:

Well, then how can it be a statewide order?

W. O. Shultz II:

It applies to every institution under the control of the Board of Regents of the University of Texas System.

Thurgood Marshall:

The Board of Regents does not control all of the institutions of higher learning maintained by the State of Texas.

W. O. Shultz II:

No, Your Honor.

We’ve never made that contention.

Thurgood Marshall:

Well, don’t you have to the other three-judge courts?

W. O. Shultz II:

I — I don’t think so, Your Honor.

Once — once the rule or regulation itself, it’s applicable to all the institutions under this Board’s control and those Boards are statewide.

Thurgood Marshall:

Well, suppose it controlled two schools, would it be a three-judge court matter?

W. O. Shultz II:

I think it would.

Thurgood Marshall:

Well —

W. O. Shultz II:

I say it’s not local.

Thurgood Marshall:

— suppose it controlled two of the 300 schools maintained by the State of Texas, would you say that was statewide?

W. O. Shultz II:

Possibly not.

But that is not the case.

Thurgood Marshall:

Well — well, where is your line.

W. O. Shultz II:

Well, I dc/won’t think we’re called upon to draw the line in this case because we have gone so far the other side of the line, I think it’s unquestioned whether we would draw at it at five, six, seven, or eight, I don’t know.

But here, we — we’ve got a board with control over 17 institutions.

In the University of Texas in Austin alone, they have 40,000 students and over 7000 employees on a 265-acre campus.

And when you include all the other campuses and institutions on part which say how many people involved but many, many thousands and they’re placed under this regulation.

W. O. Shultz II:

And they have the undoubted force and effect of a statute according to the pronouncement of the Texas Supreme Court.

And that is our basis for the jurisdiction of this Court from a direct appeal from a three-judge federal court.

Now, if I may address myself to how this case came about, it was born out of an effort of the Board of Regents to enforce its solicitation rule on the campus at the University of Texas at Austin against a group known as the New Left Education Group and a — a number of individuals that were selling on the campus a newspaper known as Rag not in conformity with the rules applicable to the sale of newspapers.

The Regents after local administration at the campus after repeated efforts and warning to these people and to stop, as the Attorney General’s office to institute a civil injunction proceeding in the state District Court, Travis County to enforce their rule.

We filed this injunction suit, and shortly thereafter, the selfsame defendants in the state court action went to the United States District Court and filed an action there asking that the rules be declared unconstitutional, that the Regents be enjoined from enforcing them and that the prosecution of this civil injunctive suit and the state court be enjoined.

We pointed out to the court by pleaded that 2283 in our explanation, an injunction statute, prohibited this very action in the United States District Court.

Mainly thereafter, the pleadings of the plaintiffs in the United States District Court were amended to bring in Young Democrats and seven or eight individuals.

Now, reading that pleading as a whole in the motion, I think it’s undoubted, they all claim to be members of a common class of people who claim that their constitutional rights are being infringed by the enforcement of this rule.

Now, the group of individuals, I don’t think ever presented a case or controversy for the court to act upon.

They merely said in the pleading that we are interested in the free flow and dissemination of information on the campus of the university.

There was never any evidence produced or any stipulation or any affidavits filed by them that showed in any manner how these rules had been enforced against them or how they had prohibited them from obtaining any specific article, printed matter or hearing any speech that they desired to hear.

There simply was no factual basis in the complaint.

There was never any adduced to show that they presented any justiciable controversy with regard to these rules.

So consequently, they stand largely ignored throughout this entire proceeding.

Shortly after, the Young Democrats intervened.

They didn’t beg upon, they didn’t intervene.

They came in by way of the first amended complaint.

They ask for the same relief that the original parties, plaintiff asked for with the exception they didn’t ask that the state court proceeding be enjoined.

Shortly after this, by a motion to intervene a group known as the Young Socialist Alliance were allowed into the case.

They adopted the prior pleadings as their own.

Now, it’s our position that all of these parties at this point in the proceeding pled themselves to be members of the common class of people on the university or campus at Austin who desired to solicit in violation of the Regent solicitation rules and that their acts under the First Amendment were being infringed and asked for the same relief, everyone of them, that rule be declared invalid and it be enjoined.

The next event that occurred was a hearing before the United States District Court three-judge panel at which the arguments were made concerning 2283 and that court then entered what I consider to be a rather strange order.

It divided this class of plaintiffs in the United States District Court into two groups and denominated them as class A and class B.

It never did say that they had distinct and individual claims or causes of action that their actions were definitely just dividing them into two groups within the class, class A and class B.

And it says, “Class A, you’re the people that are defendants over in the state court action.

Now, we’re going to dismiss you to go back over to the state court, we’re going to dismiss you almost.

Said we’re going to retain jurisdiction, in the event they do something to United States Court that can’t be condoned, then you can come back here and ask for relief.

We’ll retain jurisdiction to that extent.”

So with things in that posture, we proceeded to the state court and obtained temporary after a full hearing.

And the record reveals that in the state court, these parties defendant, there were parties plaintiff in the federal court, pled and raised the same constitutional objections that they were pleading in the federal court, if you please, violated First Amendment right, protection under Fourteenth Amendment.

W. O. Shultz II:

These were argued to the state District Court after a full hearing on temporary injunction, witnesses testify, counsel for all parties in the federal and state court proceeding were the same.

The state District Court then entered a temporary injunction, specifically finding that the rules were constitutional and temporarily enjoining the defendants and all others acting in concert with them from soliciting by means of the newspaper known as Rag on the University of Texas campus at Austin, other than in conformity with the solicitation rule.

We next in the —

Harry A. Blackmun:

Mr. Shultz, is — is the New Left before us here — the New Left Group?

W. O. Shultz II:

Yes, Your Honor.

Harry A. Blackmun:

In what way?

They were the ones that were dismissed out with a little tag in that you’ve mentioned.

W. O. Shultz II:

They — the New Left together with a group of individuals who were members of the New Left organization, there were some individuals six or eight —

Harry A. Blackmun:

They were —

W. O. Shultz II:

— individuals.

Harry A. Blackmun:

— all dismissed out.

How were they here then?

W. O. Shultz II:

We are — we claim that they are here by virtual representation of the rest of their class that they left over in the federal court.

Harry A. Blackmun:

Only — only as a member of a class now.

They — they have taken no cross appeal?

W. O. Shultz II:

No, Your Honor.

Harry A. Blackmun:

Maybe I —

W. O. Shultz II:

But —

Harry A. Blackmun:

— should ask your opposing counsel as to their presence.

W. O. Shultz II:

But there are contentions with regard to the relation between these two segments of the class.

They’re essentially, it’s essential to refer to them into this case.

And it’s essential to our contentions that we keep reference to them here because our contention is that this — first, that the state court judgment, the temporary injunction was res judicata as to the remainder of the class has stayed in — in the federal court.

They were admittedly part of the same class.

We got a temporary injunction in the federal and the state court which held the provisions constitutional.

Now —

Harry A. Blackmun:

Now, your opponent draws a distinction between a temporary injunction and a permanent one for res judicata purposes, would you comment on that?

W. O. Shultz II:

Yes, Mr. Justice Blackmun.

Under Texas law and under the federal law, even on a temporary injunction hearing, if issues which go to the very heart of the merits of the case are decided on that temporary injunction, then that judgment is final as to those purposes.

Now, I’m sure that it must be obvious to everyone concerned in the matter that are — if we go back to the state court and have a hearing on permanent injunction or to make this temporary injunction permanent, the court is certainly not going to reconsider and pass on the constitutionality under the First Amendment and Fourteenth Amendments again, he’s already done it.

He said these rules are constitutional.

W. O. Shultz II:

It couldn’t be anymore final on the question of constitutionality whether it’d be temporary or not.We feel that under England versus Louisiana, the medical examiners where the group went to the state court, didn’t reserve their federal question, came back to the federal court.

They said, “You preclude it.”

It’s our contention that under the Atlantic Coast Line Railway Engineers case, 2283 is a — is a specific bar because here, the Regents are enjoined from enforcing this rule.

Could we go back to the state court now and ask them to hold this people in contempt?

Have the clarity of doing it because I think we’ll be right back to the Federal District Court being held in contempt ourselves.

We’ve got a — a direct conflict between the jurisdiction of the two courts, the decision of the two courts in complete conflict and they had a adequate remedy, appealing that decision of the state court.

It was entered before the federal court ever undertook to decide the issue.

And it’s our contention that the federal court should’ve left the matter alone to be proceeded through the state courts and eventually up here.

As it is, the — the District Court, there said in a review of what state court did so to speak.

Harry A. Blackmun:

Is the temporary injunction on the state side appealable?

W. O. Shultz II:

Yes, Your Honor, it is.

Potter Stewart:

And it was never appealed as this in (Voice Overlap) —

W. O. Shultz II:

It’s still in effect.

Under our — under our procedure though, there is a way to go in and make a motion to set it aside or open it to modify.

Potter Stewart:

So there’s no if — in effect, there’s no time limitation.

W. O. Shultz II:

No, as far as they’re — they’re remedy to that —

Potter Stewart:

(Voice Overlap) —

W. O. Shultz II:

They may have it — try to have it set aside.

In other words —

Potter Stewart:

Yes.

W. O. Shultz II:

— it hasn’t become irrevocably final in that respect.

Potter Stewart:

And they can move to have it set aside, and if that’s denied, then they can appeal that denial.

W. O. Shultz II:

That’s correct.

That’s — that’s why we’re —

Potter Stewart:

But no — no such efforts have been made, if understand?

W. O. Shultz II:

No, no.

There never had.

They merely proceeded over to the federal court, moved for summary judgment and into a cross motion to dismiss.

The court entered summary judgment in their favor and denied our motion to dismiss, over all these contentions we made about the —

Potter Stewart:

Yes.

Potter Stewart:

Well, the court didn’t really enter summary judgment in their favor.

That is the defendants in the Rag case as you (Voice Overlap) —

W. O. Shultz II:

No.

In — but in —

Potter Stewart:

— as you’ve already told us.

They — they —

W. O. Shultz II:

It’s our —

Potter Stewart:

— are the A — A group and the B group and —

W. O. Shultz II:

But it’s our contention that their — their part impartially of the same group.

Potter Stewart:

Well, I understand your contention.

W. O. Shultz II:

But the A group made the same contentions.

They return in the guise of the B group with the same counsel and argued the same question.

Potter Stewart:

The — the Court says that it — that it dismissed the — the New Left Education Project, plaintiffs dismissed them as plaintiffs.

W. O. Shultz II:

But here, in this Court —

Potter Stewart:

So that there’d be no interference with the state judge of adjudication.

W. O. Shultz II:

But if Your Honor will —

Potter Stewart:

I’m reading from page 165 of the appendix which is the — from now, I think the final memorandum opinion of the three-judge court.

W. O. Shultz II:

Correct, Your Honor.

But if you will look at the order entered which is on – begins on page 41 — on page 42.

The Court finds that it should not at this time exercise its jurisdiction as to that part of A that request injunctive relief against the proceedings in the 167th Judicial Court of Travis County, Texas because the extraordinary circumstances require Machesky for this type of relief were not presented this time.

Similarly, the Court concludes that prior for these claims for declaratory relief considered separately should be denied at this time in the exercise of the Court’s discretion.

Dropping on down is that accordingly, this portion of this plaintiffs complaint requesting declaratory relief and injunctive relief against the state procedure to dismiss —

Potter Stewart:

Or this has —

W. O. Shultz II:

— or to be no interference.

This Court however, retains jurisdiction over that part of the case which is — rest whether appropriate relief against the defendants when such relief become necessary.

Or when, the dismissal is done without prejudice to their right to return again under Machesky.

Potter Stewart:

That’s sort of a —

W. O. Shultz II:

So it’s kind of — within, within —

Potter Stewart:

Double talk, isn’t it?

W. O. Shultz II:

Yes, Your Honor.

W. O. Shultz II:

It’s — it’s within, within.

Potter Stewart:

They dismissed and then they save it.

Well, now we don’t dismiss.

W. O. Shultz II:

We dismiss for one purpose but not for the other.

Now, if I may address myself briefly to the merits of this case it would — it —

Warren E. Burger:

You have just about four and a half minutes left.

W. O. Shultz II:

Alright, Your Honor.

The — there is no showing in this case that there has been an arbitrary assignment of places on the campus at the University of Texas at Austin for the distribution and sale of newspapers from vending machines.

There — the stipulation shows that there are 12 newspapers currently selling from these designated places from vending machines without any problem.

This people haven’t shown that unless they can go around over the campus free at will if they’re going to go out of business.

They haven’t shown any irreparable injury.

As a matter of fact, they for a while sold at one of these locations out of a vending machine.

It’s a — this is a highly congested campus, there’s evidence in the record that students — one student made in her affidavit, said, she’d been accosted by these people on the campus.

They bother her in the free use of the campus.

There is evidence that solicitations in laboratory buildings and classrooms had disrupted classes that the same thing had occurred in the dormitories on previous occasions.

Now, with this background, the Regents certainly had the authority to authorize the administration to designate where the administrations felt that these things could be sold from vending machines without interfering with the operation of the university.

Now, this Court has recognized in (Inaudible) and Cox that where a public property is dedicated to a special use, that rules and regulations can be maintained even only infringe upon First Amendment rights in order to maintain that property for that use.

And that’s all that’s done here.

There’s been no showing whatsoever of any disadvantage by virtue of the place designated.

Harry A. Blackmun:

Mr. Shultz, do you understand that the appellees contend for the right to solicit in — only in the free speech areas of the Austin campus or beyond that?

W. O. Shultz II:

Your Honor, there’s only one free speech area at the Austin campus and that’s — it’s a patio out for the union building, it’s designated as such.

They maintain that the malls of the university are free speech areas.

Well, our affidavits show that they’ve never been maintained as free speech areas on the campus.

In those, speakers don’t speak there.

Harry A. Blackmun:

Well, what is it you feel they’re asking for to go everywhere and beyond the free speech area?

W. O. Shultz II:

Anywhere they want to go, that’s what they’ve been doing, roaming free at will all over the campus, sat along with other people.

Since this case has been decided, we’ve had all sorts of people out there selling their newspapers and their pamphlets and running —

William J. Brennan, Jr.:

Is that — is that all that’s involved here, whether or not the university or the Regents may specify the places where these papers maybe sold?

W. O. Shultz II:

From a vending machine.

Just as this Court —

William J. Brennan, Jr.:

No, I mean is that all that’s been done?

I — I had the impression that one of this also had something to do with —

W. O. Shultz II:

Solicitation of dues.

William J. Brennan, Jr.:

Solicitation of what?

W. O. Shultz II:

Dues for —

William J. Brennan, Jr.:

(Voice Overlap) —

W. O. Shultz II:

— campus organizations.

They have been —

Potter Stewart:

Is that — it’s happening through a vending machine, can you (Voice Overlap) —

W. O. Shultz II:

No, sir.

But there’s another regulation that says, they may do it at registration or they may do at their meetings on the campus, but they can’t just set up dues (Inaudible).

We have over 400 registered student organizations on that campus.

And if all of them starts soliciting their dues in membership up and down the malls freely at will —

Potter Stewart:

Now —

W. O. Shultz II:

— we wouldn’t have much free access for everybody else.

And can you imagine them jumping out there harassing every passerby going to our organization, here — here is how much our dues are.

Potter Stewart:

Well, according to — according to your brother counsel on the other side, there is a good deal of activity there, balloons and —

W. O. Shultz II:

Your Honor, those are one — one shot organization.

They are university connected, one of them was the acappella choir trying to raise —

Potter Stewart:

Right.

W. O. Shultz II:

— some money for — the other was to go to the East Austin —

Potter Stewart:

The poor people of East Austin.

W. O. Shultz II:

— poor people.

Now, we have — we have conceded in here that the rule which allows solicitation for charitable and benevolent purposes is invalid in that respect, because it does — it — it’s indeed —

Potter Stewart:

(Voice Overlap) —

W. O. Shultz II:

— with that.

So —

Potter Stewart:

That’s why you made that concession in your brief.

W. O. Shultz II:

Correct.

We — we don’t defend that rule in that regard.

W. O. Shultz II:

It — it does have a —

Thurgood Marshall:

It isn’t about the political rights isn’t it?

Offices on campus.

W. O. Shultz II:

They have different regulations about that for posting of signs, certain candidates can — they have to have permission to post the signs and may post them in specified locations.

Thurgood Marshall:

They don’t care how many candidates, do they?

They don’t restrict a number of candidates (Voice Overlap) —

W. O. Shultz II:

No, I don’t think they do.

No.

Thurgood Marshall:

So you can have 400 people, run them down the mall.

W. O. Shultz II:

No, sir.

They —

Thurgood Marshall:

(Inaudible)

W. O. Shultz II:

— they restrict those activities under a different rule.

They have places and ways they can put up a sign that does not — doesn’t appear, they can keep it there and it’s a different rule entirely.

Thurgood Marshall:

You mean your — he did — campus election, you can’t talk to anybody in the classroom or the dormitory?

W. O. Shultz II:

Well, Your Honor, I don’t think being talked to them in the classroom and take over the class and start —

Thurgood Marshall:

I didn’t say —

W. O. Shultz II:

— make a political speech.

Thurgood Marshall:

— talk, I didn’t say take over the class, I said in the classrooms, in the hallways.

W. O. Shultz II:

In the hallways.

Thurgood Marshall:

Maybe this is —

W. O. Shultz II:

In the hallways, I’m sure they can.

Thurgood Marshall:

And the — the dormitories and all the other places these people want to go.

W. O. Shultz II:

No, I’m not sure that it’s that free but that question isn’t involved here and —

Thurgood Marshall:

Well, it’s a different (Voice Overlap) —

W. O. Shultz II:

— that rule is —

Thurgood Marshall:

— from any — I’ve ever heard of, doesn’t make it hard to allege and there’s all everybody talks about.

W. O. Shultz II:

We have a very small percentage of people that even vote now on that campus.

They’re not all —

Thurgood Marshall:

In Texas?

W. O. Shultz II:

That’s correct.

My time is up.

Warren E. Burger:

Mr. Richards.

David R. Richards:

Yes.

Mr. Chief Justice and — excuse me, may it please the Court.

This case presents a series of initial procedural and jurisdictional questions.

If they are ever answered suitably, then the — the case then presents a rather clear First Amendment question regarding the extent to which a state university may restrict the legitimate First Amendment activities of student political organizations on campus.

Warren E. Burger:

Do you agree with your friend that they can restrict some First Amendment rights?

David R. Richards:

I agree that the balance may be struck and that clearly, that the rights are not absolute and that the right to maintain the institution and to operate it still be or at least may be paramount if not certainly, it must be given this way.

We say —

William J. Brennan, Jr.:

Well, then what specifically are we concerned with?

David R. Richards:

Specifically, we’re concerned here, as — as we understood, the First Amendment issue.

We have two organizations that are here before the Court, the Young Democrats and the Young Socialist, registered student organizations, long time participants on the campus.

They have sought the right to solicit membership dues in the same areas of the campus to with the malls in which —

William J. Brennan, Jr.:

That is not solicit memberships.

David R. Richards:

Well, memberships and membership dues, excuse me.

Memberships and membership dues because I — I say this advisably because the nature of the regulation is such that they are now permitted under the regulation to establish a booth.

They may maintain a booth on the mall, they distribute literature, but they say the organization may not, at the same time say to that person, “Join our organization, here’s a membership card, pay us two bucks.”

They say that’s commercial — falls avowal of the commercial regulations.

So, really, all they’re saying is that we want to carry out the full range of our activities which are legitimate, that is solicit membership dues in the same locations where we’re permitted to carry out other kinds.

They can set up a booth, set up — circulate —

William J. Brennan, Jr.:

But would —

David R. Richards:

— competition —

William J. Brennan, Jr.:

In other words, are these two organizations satisfied?

Number one, to limit the places to where the regulation says they may have booth, and number two, to solicit both membership and the payment of membership fees at that place?

David R. Richards:

This has been the position from the outset as I understood.

The — what we’ve argued —

William J. Brennan, Jr.:

And that’s all —

David R. Richards:

Essentially, we were looking — well, I mean I shouldn’t and we — we also argued for the right to sell political literature from that same booth (Voice Overlap) —

William J. Brennan, Jr.:

But you don’t — you don’t ask to roam (Voice Overlap) —

David R. Richards:

Not — we’ve never asked the right to roam the campus and never suggested that that was necessary, the malls are wide and open, there’s movement there all the time.

There are other activities of a comparable nature and all we wanted to — to do was to flesh out our entire activities by at least soliciting dues.

It’s the only logical place to do so frankly.

It’s the only place we see the — see the students to whom we appeal.

Warren E. Burger:

Let me see if I’ve got this clearly —

David R. Richards:

Yes, sir.

Warren E. Burger:

— in my mind.

Are you content if your booth is set up and you have some of your people behind the counter in the booth who can receive and solicit, receive dues from people who want to come over there and solicit people who are walking by?

Or does your claim go that they may send their people outside of the booth and go all up and down the mall.

David R. Richards:

It has never — our contention has been the former.

That is that we sought to do, perform these activities in the same areas from the same type of booth we are now functioning from for other purposes.

We are in other organizations.

We’ve never sought the right to stroll about the campus selling — selling nurturer or hawking or soliciting dues, never sought the right to solicit them within dormitories or within the physical facilities of the campus.

It’s not a very limited and as I understand that the nature of the court’s order below, that’s the nature that we’re —

William J. Brennan, Jr.:

And so what happens on the mall where, I gather, all these booths are — are located?

Would your folks stay within the booth or do they —

David R. Richards:

(Voice Overlap) booth is a misnomer action but no —

William J. Brennan, Jr.:

I see —

David R. Richards:

— it’s not — had — had much money.

Obviously they have card tables and they set them up and they sit behind the card table.

William J. Brennan, Jr.:

And people come to the card table?

David R. Richards:

Sure.

That’s what they do now.

William J. Brennan, Jr.:

And it isn’t that representatives go up and down that button hole streets —

David R. Richards:

Well —

William J. Brennan, Jr.:

— walking across them (Voice Overlap) —

David R. Richards:

I guess I shouldn’t hold myself.

I have to be a expert on what really have to transpires , I — we described and really narrowly in the terms I’m now indicating to you, that is we wanted to be able to do the same kind of activities that other organizations were doing in those same areas.

And we didn’t want to have our activities limited by simply the label that — that it’s commercial.

And so we really sought parity, that’s all, with respect to the kinds of activities that other student organizations are doing under the guise of being — for which they have approval.

David R. Richards:

Now, the record reflects the young people selling balloons from a booth on the campus.

We would assume that our conduct in a similar location would be no more disruptive in the sale of balloons that we ought to be able — permitted to do so.

Warren E. Burger:

How long was that permit good for?

David R. Richards:

Well, actually the record reflects and this is in a narrow period of time and this is the rule that permission is sought for a specific time or times, sometime the stipulative responses to the interrogatories I think will reflect in the record the kind of permission that sought.

Some people seek — my clients have for a week to maintain a booth on the mall for such and such purpose and have done so.

They still seek permission and we haven’t even quarreled with that to this extent.

We’ve conceded that there are legitimate concerns for congestion that the university may well say we cant tolerate more than 15 or 20 booths on this area, it’s going to be first — first come first serve and that there’s going to be a limit in terms of time.

We’ve — we’ve conceded that in the court below and I think the court below conceded that in its opinion.

But the stipulation is that they are frequently as many as 15 booths erected along the West Mall as it’s called in the university campus soliciting — disturbing literature, and matters of this kind.

It simply sought to — as I say, it simply sought parity here.

And I think that’s all the court below did.I think your opinion fairly gives the Regents and the responsible university administrators full authority to maintain their institution, and Mr. — Mr. Shultz has argued the contrary.

Yes.

Harry A. Blackmun:

I was interested in your response.

You carefully referred to the Young Democrats and the Young Socialist but made no reference whatever to the New Left.

I’ll ask you what I asked your friend, is the New Left before us?

David R. Richards:

Not in my (Voice Overlap) —

Harry A. Blackmun:

Then, you are not representing the New Left at this juncture.

David R. Richards:

I am not representing New Left at this juncture.

Harry A. Blackmun:

Even though your brief states you are the Attorney for the appellees —

David R. Richards:

Well —

Harry A. Blackmun:

— they are named as an appellee.

David R. Richards:

I — I guess were caught up in a sort of the — I didn’t print the brief, but I had print the style of the record.

The record still carries them and I assume that’s a matter of nomenclature in some of this clerk’s office.

The case was never restyled below when the New Left was dismissed but that was simply a matter of — as a manner of — it’s a matter of —

William J. Brennan, Jr.:

I’m trying —

David R. Richards:

— policy and personnel — excuse me —

William J. Brennan, Jr.:

I’m trying to switch as you keep pressing (Voice Overlap) —

David R. Richards:

Sure.

That’s quite alright.

William J. Brennan, Jr.:

I — I just don’t have a clear picture of what it is that goes on (Voice Overlap) —

David R. Richards:

Had —

William J. Brennan, Jr.:

And your clients, the socialists and the democrats applied for a permanent at a booth “merely to the specific political literature,” would that have been granted?

David R. Richards:

Yes.

It has been granted and granted — commonly granted.

William J. Brennan, Jr.:

Right.

David R. Richards:

In the record’s own question.

William J. Brennan, Jr.:

Now, that, what you — what you added to it was not only that you want from — at that place to — distribute political literature but also to be allowed to solicit memberships and solicit the payment of membership fees, is that it?

David R. Richards:

Yes, Your Honor.

William J. Brennan, Jr.:

And those were the two things that were denied.

David R. Richards:

Sale also of political literature, let me add that.

That that the Young Democrats had buffer stickers, at one occasion, they wanted to sell from that same booth.

William J. Brennan, Jr.:

Yes.

David R. Richards:

Political buffer stickers.

The Young Socialist —

William J. Brennan, Jr.:

If they gave them away, they could — but they couldn’t (Inaudible)

David R. Richards:

That right.

We could give them away.

In fact, they did give them away when they were found that they could not sell them but of course —

William J. Brennan, Jr.:

I see.

David R. Richards:

— financing a political parties being such it is, they need to exactly say, pprice that they can.

William J. Brennan, Jr.:

No, really, what — what — whether it comes down to that, what your suggesting is all we have before us is a regulation which denies these organizations, the right to solicit membership and to solicit fees and to sell their political literature.

David R. Richards:

That’s correct, Your Honor.

William J. Brennan, Jr.:

Is that all?

David R. Richards:

That’s all as I understand it.

Let me say that it’s — if the regulation is counts in the guise of a prohibition against commercial solicitation and the Regents by their application of it have swept up this kind of a political activity in the embargo against commercial solicitation.

William J. Brennan, Jr.:

So you don’t deny that in a sense it’s commercial solicitation.

David R. Richards:

It had commercial aspect (Voice Overlap)

William J. Brennan, Jr.:

Had as — aspect but you say it’s political expression and — and for that reason, could take the (Inaudible) of First Amendment.

David R. Richards:

That would — that’s our contention.

Yes, Your Honor.

David R. Richards:

The appendix at 137 through 141 have some indication of the kinds of literature in the organizations that are engaged in distribution of literature in this very, very areas all throughout the — the year.

Let me, and as much as we have throughout maintained that this matter was not one to require the convening of a three-judge court and we realized of course, it is not our position, perhaps carry that burden.

It’s been our view from the — in the outset, we opposed the convening of the three-judge court and we still assume that this matter could have been disposed off amply by a single judge sitting in Travis County.

We do not consider that the regulations have the general and statewide application that this Court spoke of in Moody versus Flowers and hence, and as our brief points out and I think the Texas statutes to which we refer will demonstrate there are some 40 or 50 or 60 various institutions of higher learning in Texas.

And as Mr. Shultz concedes, these rules we talked about applied to only a portion of those, I’ll be clear the University of Texas is the most substantial.

Potter Stewart:

Well, all — are all the others fully supported by the state to the extent that the University of Texas is —

David R. Richards:

Yes, Your Honor.

I think as I say, we refer to Art. 2919e of the Texas Civil Statutes, list of what I consider to be, or at least to that point, all the statewide — state supported institutions of higher education of junior college and senior college.

And I think, in reference to that, I think it put in perspective the —

Potter Stewart:

And there are how many, or at least?

David R. Richards:

I — I think I said 40 out in my brief, I haven’t the chance to count them but it —

Potter Stewart:

And I think we were told that there’s 17 units in the University of Texas.

David R. Richards:

Oh, I think that’s right.

Some of which have yet to be opened but nevertheless, they will be opened soon.

Warren E. Burger:

I’m a little confused on one thing now.

David R. Richards:

Yes, Your Honor.

Warren E. Burger:

Mr. Richards, maybe you can clear it up.

David R. Richards:

That’s right.

Warren E. Burger:

Are now permitted and have you been permitted in the past to sell political pamphlets and papers and documents?

David R. Richards:

On campus?

Warren E. Burger:

On — on this — at these booths or tables as you call them.

David R. Richards:

No, Your Honor.

That — that has not —

Warren E. Burger:

You can only —

David R. Richards:

— been permitted in the past.

Warren E. Burger:

You — you can only give them away.

David R. Richards:

Give them away.

Warren E. Burger:

And that’s under the —

David R. Richards:

There has been no restriction on giving them away except — but they — they have not been permitted to be sold.

That —

Warren E. Burger:

Did anyone permitted to sell anything other than balloons along there.

David R. Richards:

Well, their universities sanction publications are sold.

Along there is a stipulation the record reflects.

This are (Voice Overlap) —

Warren E. Burger:

You mean — you’re speaking now of the school papers and things that —

David R. Richards:

School — well, school papers or magazines.

The —

Warren E. Burger:

Well —

David R. Richards:

— the student association is authorized to sell insurance to the students which of course, again, its university related but it certainly has a very substantial commercial aspect.

There are regular activities on the campus of the kind of motion pictures where the public can come to and pay to see entertainments of various sorts.

The campus is a — as Mr. Shultz indicates is a rather substantial size and number.

It’s now houses the Lyndon Johnson Library which has become one of the major tourist attractions in our part of the world.

And it’s a place that embraces all manner of activities —

Warren E. Burger:

I see.

David R. Richards:

— of variant commercial aspects, both directly related to the university and the spinoff center (Inaudible)

William J. Brennan, Jr.:

Mr. Richards, I’m looking at the judgment at page 176 of the record.

If I — If I understand your position now, your only real complaint is that you could have the booths in this and do certain things but they wouldn’t let you do — do these other things.

Of course — doesn’t this judgment declare these rules and regulations invalid on the face?

David R. Richards:

It declares them invalid.

The — the text in the opinion makes clear as I understand it that the — well, I — it does declare them invalid, yes, and enjoins our enforcement as to these two plaintiffs, the Young Democrats and the Young Socialists.

William J. Brennan, Jr.:

Is that rather — is that rather more relief than you were entitled to?

I mean or — or — is the university now without any regulations in this field at all under this judgement?

David R. Richards:

They — unless they have supplanted them, they are without regulations of this.

William J. Brennan, Jr.:

So its — was that required to give you the least one?

David R. Richards:

I think it was not essential to give relief, I ask (Inaudible)

The judgment runs only as to the plaintiffs who are the Young Democrats and the Young Socialists.

William J. Brennan, Jr.:

Yes.

I know that it says that.

David R. Richards:

— it does not run the world at large and the — and the injunction does — I — I — if you — the judgment appears at 176-172.

William J. Brennan, Jr.:

Yes, that’s what I was looking at.

David R. Richards:

And in paragraph two, and then perhaps declares the activities engaged in by the plaintiffs and this is by reference, the Young Democrats, the young Socialists.

William J. Brennan, Jr.:

Yes.

David R. Richards:

The solicitation member to see if — and sale of literature constitutes speech and associational activities.

William J. Brennan, Jr.:

Yes.

But look at in — look at paragraph three.

It says, “All the defendants agents etcetera from or enjoined from further enforcement against the plaintiffs —

David R. Richards:

I —

William O. Douglas:

— to the rules and regulations.”

Do you think that’s far as it goes?

David R. Richards:

Well, I suppose as a matter of construction, trial court’s judgment and there maybe a certain inconsistency there at least.

I confess I had thought of it running only to the plaintiffs and running the kinds of activities I’ve indicated but your quite — I guess it could be construed by the trial court anymore, their judgment could be construed more broadly by this.

Thurgood Marshall:

Well, what do you say to Mr. Shultz’s problem about they might violate the federal law then you might violate the state order, and who violates what?

David R. Richards:

Well, let me — I’ll come to that and try to speak to it, because I don’t want to be caught up in the notion that we all were here together, the — the people who were sent back to the state court in the Young Democrats and Young Socialists.

And it prefaced my remark for saying that — that I don’t want — Mr. Shultz has eluded from time to time to the fact that everybody’s all been represent by same counsel.

But the explanation to that I think is sufficient to say that, that’s true of most civil liberties cases in that part of Texas.

I don’t think you can make judgments about or that — that makes weight in terms of who’s here.

That the rag plaintiffs as they recalled were severed and sent back to the state court and remained there.

They never sought to return to the state — to the federal court.

The seek —

Potter Stewart:

Yes, this was their lawsuit.

David R. Richards:

They initiated the lawsuit.

Until they were dismissed from it, it was their lawsuit.

Potter Stewart:

Well, then —

David R. Richards:

But then —

Potter Stewart:

— then as we’ve already seen, it’s some question about whether or not they were dismissed from it.

David R. Richards:

Well, let’s — I take it that the court’s order that appears is exquisite that they consider them dismissed and they could go back.

They were — the state court was in fact totally was free to proceed against them.

The reservation that — that Mr. Shultz refers to, I — I’m not certain.

I assume if that’s the kind of reservation that was contemplated perhaps that — for the notion that they didn’t raise the federal constitutional issues in the state courts that they might later come back, I think it could be construed in that fashion.

But the sequence of events, I think, is material here.

David R. Richards:

Mr. Shultz’s compressed, I think, the time factor.

The suit was filed, that’s correct, by the, what was called the New Left Education Project in the federal court.

Thereafter, as the record reflects, the Regents changed their rules again and caught up the Young Democrats and the rules and said the first time that they couldn’t — not solicit membership dues at registration time which had been a traditional right of theirs.

At that point, the Young Democrats filed — we filed.

They came — we filed a notion to amend to join them.

The Regents opposed urging among other things that there should be severance.

This was all argued at one time.

The court issued its order supporting the Regents with respective to a three-judge court, severing out the initial plaintiffs, the New Left plaintiffs and sending them back to the state court and saying if they would — can take and keep, retain the action as to the Young Democrats for further proceedings.

Three months later, the Young Socialists filed a motion to intervene and were permitted intervention.

If I — I mean it was in that posture of the case came on for a final decision.

The arguments with respect to class, with respect to res judicata, I — are — are murky but I — at best, I — the Texas class action rule is the old federal rule that is they had dispute.

It was in a high (Inaudible) from the federal rules, no notion of this furious class, and it was not binding as a matter of res judicata unlike the new federal rule.

The — although the grant of a temporary injunction is appealable, it’s only reversal on a clear abuse of discretion that’s governing Texas standards so I don’t think there’s finality in the Texas state court judgment that would sustain res judicata.

And finally, these parties albeit having similar interest whenever in the state court.

They were told in fact by the federal courts that they were free to remain there and litigate their issues, and this, they did.

And I see — I think, but for the birth of the case and perhaps that’s — I — I take full responsibility for that.

I guess they’re just a matter of judicial economy or economy in the office or something.

We didn’t file a separate suit on behalf of the Young Democrats.

The case was already — at that stage going to be considered by three judges on several issues.

And so, rather than do another one and have another three-judge court appointed, we did it this way.

But I think all that really says is we had at one point, two parties had sort of crossed in the night in this litigation and really had nothing to do with each other since then.

Thurgood Marshall:

Well, what about Mr. Shultz’s question, what does he do with the parties that he has in the state court?

David R. Richards:

I — the federal court has said — excuse me — I don’t — I didn’t mean not to respond to it, Your Honor.

The federal court has said that he was free to proceed against them and I assume that he has been free to do so.

Their contentions had been made with respect to their activities are entirely different frankly from that of the Young Democrats and the Young Socialists.

Contentions being made of harassment of verbal abuse, this kind of thing, but all of which might have sustained injunctive relief as to that kind of conduct.

But none of that was present with respect to my clients who were here before this Court, the Young Democrats and Young Socialists.

No suggestion that they’ve engaged in anything more than just a simple organization of First Amendment conduct.

Potter Stewart:

Your suggestion is that analytically, this thing will simplify itself if we look in the — at — this is two separate lawsuits and forget all about those eight plaintiffs, is that it?

David R. Richards:

I think it would certainly.

Potter Stewart:

Because really it is, they’d be —

David R. Richards:

That’s what I’m —

Potter Stewart:

The eight —

David R. Richards:

— thinking.

Potter Stewart:

— the eight plaintiffs brought these lawsuits in order to —

David R. Richards:

They were —

Potter Stewart:

— enjoin a state action and — and to sell newspapers.

David R. Richards:

Right.

Potter Stewart:

And your present clients —

David R. Richards:

Don’t have the (Voice Overlap) —

Potter Stewart:

— are not involved in any state action and don’t want to sell newspapers.

David R. Richards:

That’s — I don’t want to say —

Potter Stewart:

They’re two separate lawsuits.

David R. Richards:

That’s — well, that — that’s the way I have always viewed it except it’s been caught up as I say in sort of giving numbers and names to it to make it appear one which clearly a different —

Potter Stewart:

I see no — a little concern with the (Voice Overlap) —

David R. Richards:

Well, I think — I think the answer to that is and I didn’t — I — I was going to come back but I don’t want to be unfair.

Actually, the Young Socialist do have a paper, they like to sell called “The Militant”.

So I — I don’t mean to say that embraced within their activities was not the sale of a political newspaper and that Mr. Shultz is quite right about that.

The — I think the first — I’ve tried to state the First Amendment issues, I think, in opening argument.

I would add only this that we’re now dealing with the Twenty-Sixth Amendment’s enactment for the student body to all exchange voters.

As I looked at the figures, only 1% now of the student body is under the age of 18 years of age and we’re not dealing with — we’re dealing with the citizens whom we’ve now accorded the full right to vote.

We’re dealing with them in the area in which their interests are normally debated.

It would be — seem to me consistent with that First Amendment with their freedom of their voting right that at least political issues and the activities of traditional political organizations be permitted to flourish in a non-disruptive matter on the university campus in the one place that these — the young people can be reached.

If there are no further questions, thank you.

Warren E. Burger:

Very well, Mr. Richards.

I think all the time has been consumed.

Thank you, gentlemen, the case is submitted.