Lynn Glass v. Paxton, 081618 FED5, 17-50641

Docket Nº:17-50641
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. STE...
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
SUMMARY

The Fifth Circuit affirmed the district court's dismissal of claims brought by University of Texas professors challenging 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 court held that plaintiffs lacked standing to bring a First Amendment claim and rejected their claim ... (see full summary)

 
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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

Appeal from the United States District Court for the Western District of Texas

Before KING, SOUTHWICK, and HO, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge.

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 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 professors2filed 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 court's 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 of her Second and Fourteenth Amendment claims, the panel should reverse and remand for the district court to consider the merits of those two claims.

I. First Amendment

We start by examining Glass's First Amendment claim. She argues that the district court erred when it held that she lacks standing to challenge the Campus Carry Law and University policy on First Amendment grounds.

We review a district court's "dismissal for lack of standing de novo." Moore v. Bryant, 853 F.3d 245, 248 (5th Cir. 2017). Under the Constitution, one element of Article III's "Cases" and "Controversies" requirement is that a plaintiff must establish standing to sue. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013). "To establish Article III standing, a plaintiff must show (1) an 'injury in fact,' (2) a sufficient 'causal connection between the injury and the conduct complained of,' and (3) a 'likel[ihood]' that the injury 'will be redressed by a favorable decision.'" Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (citation omitted) (brackets in original). "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). An injury must be "concrete, particularized, and actual or imminent." Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010).

We know that "standing cannot be conferred by a self-inflicted injury." Zimmerman v. City of Austin, 881 F.3d 378, 389 (5th Cir. 2018). In the context of the First Amendment, however, "government action that chills protected speech without prohibiting it can give rise to a constitutionally cognizable injury." Id. at 391. Such governmental action may therefore "be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights." Laird v. Tatum, 408 U.S. 1, 12-13 (1972).

Glass in the amended complaint argued her...

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