Smith v. TARRANT COUNTY COLLEGE DIST.

• Decision Date: 15 March 2010
• Docket Number: Civil Action No. 4:09-CV-658-Y.
• Citation: 694 F. Supp.2d 610
• Parties: Clayton SMITH, et al. v. TARRANT COUNTY COLLEGE DISTRICT, et al.
• Court: U.S. District Court — Northern District of Texas

694 F. Supp.2d 610

Clayton SMITH, et al. v. TARRANT COUNTY COLLEGE DISTRICT, et al.

Civil Action No. 4:09-CV-658-Y.

United States District Court, N.D. Texas, Fort Worth Division.

March 15, 2010.

Karin Knowles Cagle, Kirkley & Berryman LLP, Fort Worth, TX, Fleming Terrell, Lisa Graybill, ACLU Foundation of Texas, Austin, TX, David Broiles, Law Offices of David Broiles, Fort Worth, TX, for Clayton Smith, et al.

Angela H. Robinson, Law Snakard & Gambill, Fort Worth, TX, for Tarrant County College District, et al.

OPINION AND ORDER

TERRY R. MEANS, District Judge.

This case was tried to the Court on January 13 through 15, 2010. At the conclusion of the trial, rather than hear oral arguments, the Court ordered the parties to submit their final arguments by way of briefs. Those briefs have been received and, after considering them, the Court enters the following opinion and order.

I. Background

Plaintiffs Clayton Smith and John Schwertz Jr. are members of Students for Concealed Carry on Campus ("SCCC"), a national organization created in the wake of the shootings at Virginia Tech. (Tr. Trans. Vol. I. at 102, 136.) SCCC seeks generally to inform the public about the status of the law on carrying concealed firearms. More specifically, SCCC seeks to have state and college authorities allow students who are licensed to carry a concealed firearm to do so on college campuses. (Pl.'s Tr. Ex. 27, p. 2.) SCCC's members advocate for the repeal or amendment of laws and college rules and regulations that are contrary to this goal. As part of this advocacy, SCCC members engage in "empty-holster protests." (Id.) In an empty-holster protest, SCCC members wear empty holsters during their normal campus activities to symbolize the fact that they are unarmed and potentially defenseless against a gunman such as the one at Virginia Tech. (Id.; Tr. Trans. Vol. I. at 102.)

During the spring semester of 2009, plaintiff Smith became SCCC's "campus leader" for TCC's northeast campus. (Tr. Trans. Vol. I. at 105.) In that role, Smith assisted with organizing an empty-holster protest to be conducted on the northeast campus in April 2009 in conjunction with SCCC protests to be held on several other college campuses across the nation. (Id. at 105-06.) Smith and Schwertz each planned to wear an empty holster and a t-shirt bearing the SCCC logo—a mortarboard atop a revolver—and hand out leaflets detailing SCCC's viewpoints in between classes. (Id. at 106-07, 141-42.)

This was not SCCC's first attempt at an empty-holster protest on TCC's campuses. In the spring of 2008, another SCCC member, Brett Poulos, had requested that SCCC members be allowed to wear empty holsters on TCC's campuses as part of a protest. TCC informed Poulos that empty holsters would not be allowed on campus.

Prior to the April 2009 protest, Smith sent an email to certain TCC officials notifying them of his intended protest on the northeast campus. Magdalena de la Teja, TCC's vice president for student development, and Paula Vastine, TCC's director of student development services, each responded to Smith's email, informing Smith that SCCC members would not be allowed to wear empty holsters on campus and that, per TCC policy, SCCC could not engage students and hand out leaflets throughout the campus, but instead could only pass out fliers and speak to students regarding SCCC's views in the campus's "free speech zone." (Pl.'s Tr. Ex. 27, p. A224-25.) Vastine and de la Teja also informed Smith that he would have to complete a request to use the free-speech zone at least twenty-four hours in advance of the protest. (Id.) Smith chose not to apply for use of the free-speech zone. (Tr. Trans. Vol. I, p. 107.) And, concerned that he might be deemed in violation of TCC policy, he chose not to have the protest at all. (Id. at 108.)

In October 2009, SCCC announced that it planned to conduct empty-holster protests on several college campuses in November 2009. (Id. at 109.) Smith and Schwertz intended to participate in the protest on TCC's northeast campus, so by email Smith notified TCC's interim chancellor, Dr. Erma Hadley, of the protest. (Id. at 110, 143; Pl.'s Tr. Ex. 31, p. 4.) As part of the notice, Smith inquired of Hadley whether TCC's policies had changed since his attempt at holding a protest in the spring. (Pl.'s Tr. Ex. 31, p. 4.) Hadley responded by informing Smith that each TCC campus has "specific requirements for those who wish to protest on campus" without addressing whether the policies that limited the spring protest remained in place. (Id.) Smith and Schwertz took Hadley's response as indicating that the same policies that worked to prevent protestors from wearing empty holsters on campus and from engaging in speech activities outside of the campus free-speech zone remained in place. (Tr. Trans. Vol. I, at 111.)

Smith and Schwertz then filed this lawsuit under 42 U.S.C. § 1983 on November 3, 2009, against TCC and Hadley in her official capacity alleging that TCC's rules and regulations regarding speech are unconstitutional on their faces and as applied to them and seeking declaratory and injunctive relief (doc. # 1). According to Smith and Schwertz, the school's rules and regulations impermissibly deprived them of their right to engage in speech by denying them the ability to wear empty holsters on campus and by restricting their other efforts—handing out leaflets and engaging students in conversation—to a designated free-speech zone. Additionally, Smith and Schwertz allege that TCC's requirement that students apply for use of the free-speech zone twenty-four hours in advance of their intended speech activity is an impermissible prior restraint on speech.

Smith and Schwertz filed a motion for a temporary restraining order to allow them to conduct a protest during November 2009 (doc. # 10). This Court granted that motion in part (doc. # 14). As for the free-speech zone and the permit system, the Court concluded that it amounted to an impermissible prior restraint because the relevant rules and regulations granted too much discretion to the officials charged with deciding whether to grant a request to use the zone. Further, the Court concluded that by employing a permit system that allowed access only to a designated free-speech zone, TCC was denying Smith and Schwertz access to various areas that are traditionally public forums, such as streets, sidewalks, and open common areas. But because classrooms are not regarded as public forums, and because, as a result, speech in classrooms may be subjected to greater regulation, the Court denied Smith and Schwertz's motion for a temporary restraining order to the extent that it requested that they be allowed to wear empty holsters in classrooms.

TCC and Hadley then filed motions to dismiss, arguing that Smith and Schwertz never applied for a permit to use the free-speech zone and, therefore, Smith and Schwertz's complaint did not present a justiciable controversy. The Court denied the motion, noting that a justiciable injury is suffered when a regulation on speech has the effect of chilling speech, see Meese v. Keene, 481 U.S. 465, 473, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987), and that facial challenges are allowed to a speech regulation that incorporates a permit or licensing system because the mere existence of excessive discretion to issue a permit in such a system is unconstitutional. See Beckerman v. Tupelo, 664 F.2d 502, 506 (former 5th Cir.1981). Moreover, a party need not expose himself to punishment under a speech regulation in order to challenge it; rather, a party who has reached the point of needing a permit to engage in speech has standing to challenge the permit scheme. See Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Basiardanes v. Galveston, 682 F.2d 1203, 1218 n. 17 (5th Cir.1982) (collecting cases).

In apparent response to the temporary restraining order and denial of the motions to dismiss, TCC and its officials undertook a series of revisions to the student handbook and TCC's policy and regulations manual ("the PRM"). These revisions dispensed with the permit system and the free-speech zone. Smith and Schwertz filed an amended complaint alleging that the revised handbook and PRM continue to infringe their First Amendment rights. Smith and Schwertz also argue that the revisions were adopted contrary to Texas law and TCC's internal procedures.

II. Legal Discussion

A. Article III Case or Controversy

Before turning to the merits of the challenges made by Smith and Schwertz, the Court must first address which of those challenges it has jurisdiction to entertain. A federal court must assure itself of its jurisdiction over a case before presiding over it, even if the issue of subject-matter jurisdiction is not raised by the parties. See Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102 (5th Cir.1981). "Article III of the Constitution confines the federal courts to adjudicating actual `cases' and `controversies.'" Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Several doctrines have developed to "elaborate" the case— or—controversy requirement, including standing, ripeness, mootness, and avoidance of political questions. Id.

Under Article III, the plaintiff before a federal court must have standing to pursue his claims in order for those claims to fall within the court's subject-matter jurisdiction. See Massachusetts v. E.P.A., 549 U.S. 497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (stating that the case-or-controversy requirement of Article III "confines the business of federal courts"); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (stating that "the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III").

One element of "the irreducible constitutional minimum of standing" is that the plaintiff must have...