612 F.2d 160 (5th Cir. 1980), 77-3395, Gay Student Services v. Texas A & M University

Docket Nº:77-3395.
Citation:612 F.2d 160
Party Name:GAY STUDENT SERVICES et al., Plaintiffs-Appellants, v. TEXAS A & M UNIVERSITY et al., Defendants-Appellees.
Case Date:February 20, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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612 F.2d 160 (5th Cir. 1980)

GAY STUDENT SERVICES et al., Plaintiffs-Appellants,


TEXAS A & M UNIVERSITY et al., Defendants-Appellees.

No. 77-3395.

United States Court of Appeals, Fifth Circuit

February 20, 1980

Page 161

Nelson & Mallett, J. Patrick Wiseman, Hormachea & Sauer, Larry Sauer, Sarah Scott, Houston, Tex., for plaintiffs-appellants.

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Robert G. Turner, Houston, Tex., for National Gay Task Force.

Donald C. Knutson, San Francisco, Cal., Thomas F. Coleman, Los Angeles, Cal., for National Committee for Sexual Civil Liberties.

Lonny F. Zwiener, Nathan Johnson, Asst. Attys. Gen., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before COLEMAN, Chief Judge, FRANK M. JOHNSON, Jr. and POLITZ, Circuit Judges.

COLEMAN, Chief Judge.

The plaintiffs-appellants are student members of Gay Student Services, a voluntary association which has sought and been denied official registration as a student organization by Texas A & M University at College Station. 1

The complaint alleged that on April 4, 1976, representatives of Gay Student Services met with Dr. John Koldus and requested certain privileges for their organization, including access to bulletin boards and facilities for special events. This request was refused and the students informed Dr. Koldus that they would request Formal recognition of Gay Student Services. Dr. Koldus told the students to submit their formal application to Dr. Adair, Director of Student Activities; he then would suspend the regular procedure of appealing to the Student Organization Board and would personally render a decision on the application.

Application for recognition was submitted April 5, 1976. On May 4, 1976, representatives of Gay Student Services met again with Dr. Koldus, who reported that he had written a response to the application but had been asked by University officials to delay its release until the President and University legal staff had an opportunity to study the request. Koldus also told the student representatives that he had ordered the "Batallion," the student newspaper, not to print stories about Gay Student Services but that he was changing this order so that news articles could be printed.

On November 29, 1976, Dr. Koldus wrote a letter denying official recognition to the group. In this letter he noted that homosexual conduct was illegal in Texas (as it undoubtedly is under Chapter 21 of the Texas Criminal Code) and that Gay Student Services was likely to promote and incite acts contrary to and in violation of the Texas Penal Code. He concluded that Gay Student Services was not "consistent with the philosophy and goals that have been developed for the creation and existence of Texas A & M University."

The complaint further alleges that due to the denial of official recognition the group has been forced to secure off-campus meeting places, involving rent and maintenance costs; meetings have often been in private homes, limiting the number who can attend; hostility of other students toward the organization has increased; members of the organization have been restricted in their ability to speak to classes and seminars; advertising and distribution of literature informing students of meetings, services, and educational goals of the organization has been severely limited; and "traditional myths" about sexual stereotypes have been reinforced. The plaintiffs further state that Texas A & M University has at no time prohibited the enrollment of men and women who openly identify themselves as homosexuals. Nevertheless, it refuses these students the same rights as other students to organize and meet for the purpose of discussing common interests and problems.

The relief sought by plaintiffs included (1) an injunction permanently enjoining the

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defendants from continuing to enforce their policy in refusing to recognize Gay Student Services, (2) a declaratory judgment declaring the policy of the defendants unconstitutional on its face, (3) damages for the deprivation of their rights to express their views and assemble together, and (4) costs, including reasonable attorneys fees.

The defendants answered, admitting only that Gay Student Services had applied for official University recognition and had been denied.

On June 28, 1977, the defendants filed a motion to dismiss. It was alleged that (1) Texas A & M University and the other named individual defendants, sued in their official capacity, were not "persons" for the purposes of 42 U.S.C. § 1983; therefore, jurisdiction was lacking under 28 U.S.C. § 1343, (2) plaintiffs had not stated a cause of action giving rise to general federal question jurisdiction under 28 U.S.C. § 1331, (3) plaintiffs had not overcome the jurisdictional bar of the 11th Amendment, (4) plaintiffs did not have standing to assert the cause they sought to bring, and that (5) dismissal of the cause as pleaded under §§ 2201 and 2202 was proper.

On November 2, 1977, the District Court entered an order granting defendants' motion to dismiss, commenting only that the motion appeared to be "meritorious and unopposed." No specific ground for the action was stated.

Since the dismissal order does not tell us the legal theory upon which the dismissal was based, we proceed to a consideration of all the grounds asserted in the motion to determine whether at this juncture dismissal could have properly been predicated on any one of them. 2

The result is that the dismissal must be vacated and the case remanded for further proceedings not inconsistent herewith.


Asserted Ground No. 1: § 1983 "person" status

At the time this suit was dismissed by the District Court the Supreme Court decision in Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), had not been handed down. Prior to Monell, suits against cities and similar local governmental agencies had been barred under 42 U.S.C. § 1983 because such entities were not "persons" within the meaning of the statute, City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

Monell held:

Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.

436 U.S. at 690, 98 S.Ct. at 2035-36.

Consequently, an institution of higher learning, such as the university here involved, no longer enjoys absolute § 1983 immunity. 3 Monell did not specifically mention universities as "persons" but there

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would appear to be no analytical difference in the operation of universities and other governing bodies such as cities. See Goss v. San Jacinto Junior College, 588 F.2d 96 (5th Cir. 1979), holding San Jacinto Junior College to be a "person" for purposes of § 1983.

Of course, for a university to be suable under § 1983, the injury must be due to an official policy or custom. The Monell Court stated:

On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable Solely because it employs a tortfeasor or, in other words, a municipality cannot be held liable under § 1983 on a Respondeat superior theory. 436 U.S. at 691, 98 S.Ct. at 2036.

We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. 436 U.S. at 694, 98 S.Ct. at 2038.

The undisputed allegations of the complaint makes it clear that the defendant University officials in this case were, with authority, promulgating and enforcing the official policy of the University as to the controversy in issue.

This "person" status applies to University officials when sued in their official capacity. As Monell stated in a footnote:

Since official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent at least where Eleventh Amendment considerations do not control analysis our holding today that local governments...

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