900 F.3d 233 (5th Cir. 2018), 17-50641, Glass v. Paxton

Docket Nº:17-50641
Citation:900 F.3d 233
Opinion Judge:LESLIE H. SOUTHWICK, Circuit Judge:
Party Name:Doctor Jennifer Lynn GLASS; Doctor Lisa Moore; Doctor 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; Paul L. Foster, Jr., in his official capacity as a member of the University of Texas Board of Regents; R. ...
Attorney:Renea Hicks, Law Office of Renea Hicks, Roger James George, Jr., Trial Attorney, George Brothers Kincaid & Horton, L.L.P., Malcolm Nathan Greenstein, Greenstein & Kolker, Austin, TX, for Plaintiffs-Appellants. Jason R. LaFond, David Austin Robert Nimocks, Special Counsel for Civil Litigation, Off...
Judge Panel:Before KING, SOUTHWICK, and HO, Circuit Judges.
Case Date:August 16, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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900 F.3d 233 (5th Cir. 2018)

Doctor Jennifer Lynn GLASS; Doctor Lisa Moore; Doctor 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; Paul L. Foster, Jr., in his official capacity as a member of the University of Texas Board of Regents; R. Steven Hicks, in his official capacity as a member of the University of Texas Board of Regents; Jeffrey D. Hildebrand, in his official capacity as a member of the University of Texas Board of Regents; Ernest Aliseda, in his official capacity as a member of the University of Texas Board of Regents; David J. Beck, in his official capacity as a member of the University of Texas Board of Regents; Alex M. Cranberg, in his official capacity as a member of the University of Texas Board of Regents; Wallace L. Hall, Jr., in his official capacity as a member of the University of Texas Board of Regents; Brenda Pejovich, in her official capacity as a member of the University of Texas Board of Regents; Sara Martinez Tucker, in her official capacity as a member of the University of Texas Board of Regents, Defendants-Appellees

No. 17-50641

United States Court of Appeals, Fifth Circuit

August 16, 2018

Page 234

[Copyrighted Material Omitted]

Page 235

Appeal from the United States District Court for the Western District of Texas, Lee Yeakel, U.S. District Judge

Renea Hicks, Law Office of Renea Hicks, Roger James George, Jr., Trial Attorney, George Brothers Kincaid & Horton, L.L.P., Malcolm Nathan Greenstein, Greenstein & Kolker, Austin, TX, for Plaintiffs-Appellants.

Jason R. LaFond, David Austin Robert Nimocks, Special Counsel for Civil Litigation, Office of the Attorney General for the State of Texas, Austin, TX, for Defendant-Appellee Ken Paxton, in his official capacity as Attorney General of Texas.

Jason R. LaFond, Amanda Cochran− McCall, Assistant Attorney General, Anne Marie Mackin, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Defendants-Appellees Gregory L. Fenves, in his official capacity as President, University of Texas, Paul L. Foster, Jr., in his official capacity as a member of the University of Texas Board of Regents, R. Steven Hicks, in his official capacity as a member of the University of Texas Board of Regents, Jeffrey D. Hildebrand, in his official capacity as a member of the University of Texas Board of Regents, Ernest Aliseda, in his official capacity as a member of the University of Texas Board of Regents, David J. Beck, in his official capacity as a member of the University of Texas Board of Regents, Alex M. Cranberg, in his official capacity as a member of the University of Texas Board of Regents, Sara Martinez Tucker, in her official capacity as a member of the University of Texas Board of Regents.

Charles C. Lifland, Esq., Cynthia Ann Merrill, Ph. D., O’Melveny & Myers, L.L.P., Los Angeles, CA, Risa Lieberwitz, Nancy Long, Aaron Nisenson, American Association of University Professors, Washington, DC, for Amicus Curiae American Association of University Professors.

Charles C. Lifland, Esq., Cynthia Ann Merrill, Ph. D., O’Melveny & Myers, L.L.P., Los Angeles, CA, Mariel Goetz, Brady Center to Prevent Gun Violence, Washington, DC, for Amicus Curiae Brady Center To Prevent Gun Violence.

Charles C. Lifland, Esq., Cynthia Ann Merrill, Ph. D., O’Melveny & Myers, L.L.P., Los Angeles, CA, J. Adam Skaggs, Giffords Law Center to Prevent Gun Violence, New York, NY, for Amicus Curiae Giffords Law Center To Prevent Gun Violence.

Victor Ratiu, Austin, TX, for Amici Curiae Students for Concealed Carry, Students for Concealed Carry Foundation.

Before KING, SOUTHWICK, and HO, Circuit Judges.

OPINION

LESLIE H. SOUTHWICK, Circuit Judge:

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Three professors from the University of Texas at Austin challenged a Texas law permitting the concealed carry of handguns on campus and a corresponding University policy prohibiting professors from banning such weapons in their classrooms. The professors argued that the law and policy violate the First Amendment, Second Amendment, and Equal Protection Clause of the Fourteenth Amendment. The district court dismissed the claims. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

In 2015, Texas enacted Senate Bill 11, which permits certain license holders to concealed-carry handguns on college campuses. Tex. S.B. 11, 84th Leg., R.S. (2015) (codified as TEX. GOV’T CODE § 411.2031 (West 2017) ) ("Campus Carry Law"). Under the law, public colleges may reasonably regulate carrying concealed handguns on campus, but the regulations may not have the effect of generally prohibiting the exercise of that right. § 411.2031(d-1). For example, the law permits public colleges to establish regulations concerning the storage of handguns in residence halls. § 411.2031(d).

The law applies only to concealed-carry license holders. § 411.2031(b). To become a license holder (with some exceptions), the applicant must be a Texas resident who is at least 21 years old, has not been convicted of a felony or certain misdemeanors, is not chemically dependent, has participated in handgun training, and has passed a proficiency examination. See § § 411.172, 411.174, 411.188.

As a prerequisite to instituting campus concealed-carry regulations, colleges must first consult "with students, staff, and faculty of the institution regarding the nature of the student population, specific safety considerations, and the uniqueness of the campus environment." § 411.2031(d-1). Following enactment of the Campus Carry Law in 2015, the University of Texas at Austin (the "University") established a working group consisting of students, alumni, staff, and faculty tasked with recommending rules and regulations for concealed carry on campus. The working group received thousands of comments from the public via an online survey, meetings, and public fora.

The working group’s final report made numerous recommendations to University President Gregory Fenves, who accepted the recommendations in a policy document entitled "Campus Carry Policies and Implementation Strategies." On the subject of concealed carry inside classrooms, the working group summarized comments received from people representing two opposing viewpoints. Those in opposition argued

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that the possible presence of concealed handguns in classrooms would "have a substantial chilling effect on class discussion." Supporters of the Campus Carry Law countered that such fears are unfounded, citing data "from the Texas Department of Public Safety establishing that license holders, as a group, are extremely law-abiding." Sympathizing with the concerns about chilled speech, the working group nonetheless recommended against banning concealed carry inside classrooms because such a regulation would likely violate the Campus Carry Law by effectively prohibiting concealed carry for those traveling to campus to attend class.

The Board of Regents incorporated all but one of the President’s new policies into the University’s operating procedures.1 Staff and faculty must abide by the University’s policy of permitting concealed carry in classrooms. Texas concedes that any University professor who attempts to ban concealed carry inside a classroom would be subject to disciplinary action for failing to abide by University policies.

In July 2016, Dr. Jennifer Glass and two other University professors2 filed suit in the Western District of Texas, seeking declaratory relief on the constitutionality of the Campus Carry Law and injunctive relief against enforcement of the law and University policy. Glass raised three claims. First, she argued that the law and policy violate her First Amendment right to academic freedom by chilling her speech inside the classroom. Next, she argued that the law and policy violate her rights under the Second Amendment because firearm usage in her presence is not sufficiently "well-regulated." Finally, she argued that the law and policy violate her right to equal protection because the University lacks a rational basis for determining where students can or cannot concealed-carry handguns on campus.

Texas moved to dismiss the claims for lack of standing under Federal Rule of Civil Procedure 12(b)(1) and, in the alternative, for failure to state a claim under Rule 12(b)(6). In July 2017, the district court dismissed Glass’s claims without prejudice. In doing so, however, the district court provided analysis only for its dismissal of Glass’s First Amendment claim under Rule 12(b)(1). Glass timely appealed.

DISCUSSION

Glass raises two issues on appeal. First, she challenges the district courts holding that she lacks standing to raise her First Amendment claim. Second, she argues that because the district court failed to provide any reasoning for the dismissal...

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