Passel v. Fort Worth Independent School District
| Decision Date | 17 April 1970 |
| Docket Number | No. 17100,17100 |
| Citation | 453 S.W.2d 888 |
| Parties | Janie PASSEL et al., Appellants, v. FORT WORTH INDEPENDENT SCHOOL DISTRICT et al., Appellees. |
| Court | Texas Court of Appeals |
Garrett, Garrett & Callaway and Rufus S. Garrett, Jr., Fort Worth, for appellants.
Morgan, Gambill & Owen, and Cecil A. Morgan, Fort Worth, for appellees.
This is a class suit on behalf of minors, all of whom are members of a charity club, and their parents seeking a judgment declaring that Article 301d of the Vernon's Ann.Texas Penal Code and the rules promulgated by the appellee based upon such Article are unconstitutional and for injunctive relief.
Our original opinion in this case sets forth in some detail the controlling issues which are here involved. Passel v. Fort Worth Independent School District, Tex.Civ.App., 429 S.W.2d 917 (1968). In reversing this court and the trial court and remanding the case the Texas Supreme Court said, Passel v. Fort Worth Independent School District, 440 S.W.2d 61 (1969).
Since the two opinions above referred to contain specific quotes from and references to the rules which were promulgated by the appellee and the statute upon which such rules are based there is no need to repeat them here.
The case was tried to the court without a jury. The many witnesses called upon to testify in person or by deposition included school personnel familiar with every facet of school life and many who were not associated with the school but who were familiar with the charity clubs and the organizations excepted by the statute.
The court made and filed findings of fact and conclusions of law most of which are set forth verbatim in its judgment.
In his preface to the findings of fact the court wrote as follows:
'I have concluded that plaintiffs and intervenors have failed to prove that Article 301d of the Penal Code is unconstitutional or that the administrative enforcement of the regulation adopted by the school board for the purpose of implementing this statute violates any of their constitutional rights.
'In Passel et al vs. Fort Worth Independent School District, et al, 440 SW2 61 (Supreme Court), the court held that on the record then before it the statute was not unconstitutional as applied to plaintiffs and indicated that the trial court should hear evidence to determine the aims and activities of the organizations excepted in Section 4 of Article 301d.
'The evidence was substantially the same at the hearing last week as it was at the injunction hearing in 1967 (There was just more of it), except that some evidence was offered about the aims and activities of some of the organizations named in Section 4. (There was no evidence about Boy Scouts, Hi-Y, Girl Reserves or Pan-American Clubs.) Evidence was also offered in an attempt to show that at least some of the 'charity clubs' proposed to select members by a board of sponsors composed in part of mothers of active members .
'Plaintiffs and intervenors failed to prove that there was not a reasonable basis for the classification established by the legislature or that the exempting of certain organizations from the statute was palpably arbitrary. There was no evidence whatever that any of the exempted organizations had any effect whatever on the operation of the school system. The amending of the constitutions and by-laws of some of the clubs fails to meet the requirements of Section 2 of the statute that any student who is qualified by the rules of the school to fill the special aims of the organization may join if he chooses to do so.
'I make the following findings of fact and conclusions of law which I suggest be included in the judgment in this case:
'1. This is a class suit on behalf of all minors who are members of a charity club and their parents.
'2. The original twenty-three plaintiffs in this case have all graduated from high school.
'3. The members of the class for whom the original suit was brought have graduated from high school.
'4. Intervenors are all still attending high school and became parties to this suit prior to the time the original plaintiffs graduated from high school.
'5. On November 9, 1966, the Board of Education of the Fort Worth Independent School District promulgated a rule prohibiting fraternities, sororities, secret societies (including charity clubs) from carrying on their activities in grades 7 through 12 in the Fort Worth Public Schools.
'6. To implement the rule enacted by the Board, a supplementary application was required by the parent or guardian of each student enrolled in grades 7 through 12. This form required that the parent or guardian certify that his son or daughter was not a member or pledge of any organization described in Article 301d, and that the child would not join or participate in the activities of such a club or organization.
'7. The original plaintiffs were members of a club prohibited by Article 301d. The intervenors are members of a club prohibited by Article 301d. The amended constitutions and by-laws of several of the clubs, including the Musagetes, provide that active members of such clubs shall be selected by a board of sponsors consisting, in part, of mothers of active members. Such amended constitutions and by-laws also provide that they may be amended by a vote of the active members. Such constitutions and by-laws do not provide that a pupil in any school who is qualified by rules of the school to fill the special aims of the organization may become a member of such organization upon his free choice. The Musagetes have not selected any members under the new constitution and by-laws and neither it nor any other 'charity club' has operated under amended constitution and by-laws. None of the 'charity clubs', including the Musagetes, has ever selected its members on the basis of the free choice of any pupil in a school who was qualified by school rules to fill the special aims of the organization.
'8. None of plaintiffs or intervenors has been denied enrollment in the Fort Worth Public Schools.
'9. Every student in the Fort Worth Public School system, including members and non-members of 'charity clubs', is afforded the same educational opportunities without discrimination.
'10. The activities of the 'charity clubs' have substantially and materially disrupted and affected the orderly operation of Arlington Heights High School, Eastern Hills High School and Paschal High School, all of which are high schools within the Fort Worth Independent School District.
'11. Prior to the time that the 'charity clubs' ceased to be active they engaged in activities similar in character to university fraternities, sororities and secret societies in the following manner: Interclub council, rush, pledge, parties, meetings, pins, similar dress.
'12. None of the organizations (Boy Scouts, Hi-Y, et cetera) exempted by the statute has in the past affected the orderly operation of the schools in the Fort Worth Independent School District, and none of such organizations has participated in school activities.
An additional finding by the court was: '* * * the Court finds as a fact that the 'Charity Clubs' were not affiliated with, sponsored or supported by the administration of any school within the Fort Worth Independent School District.'
The court made the following conclusions of law:
'1. The legislature alone determines the public policy for the state, and this court presumes that the legislature considered all of the facts which are in evidence when it enacted Article 301d of the Penal Code.
'2. Courts favor constitutionality of statutes and must presume that the legislative body has acted within its...
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...personal rights in Passel v. Fort Worth Indep. Sch. Dist., 440 S.W.2d 61 (Tex.1969), on appeal after remand, 453 S.W.2d 888 (Tex.Civ.App.--Fort Worth 1970, writ ref'd n.r.e.), cert. denied, 402 U.S. 968, 91 S.Ct. 1667, 29 L.Ed.2d 133 (1971). The court of appeals, therefore, proceeded to the......
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