Board Of Regents Of University Of Texas System v. New Left Education Project/Opinion of the Court

by Byron White

United States Supreme Court

404 U.S. 541

BOARD OF REGENTS OF the UNIVERSITY OF TEXAS SYSTEM, Appellant,  v.  NEW LEFT EDUCATION PROJECT et al.

 Argued: Dec. 6, 1971. --- Decided: Jan 24, 1972

This case comes here on direct appeal from the ruling of a three-judge court declaring unconstitutional and enjoining enforcement of two sections of the Rules and Regulations of appellant Board of Regents of the University of Texas System. 326 F.Supp. 158 (1970). We postponed consideration of our jurisdiction to a hearing on the merits. 401 U.S. 935, 91 S.Ct. 939, 28 L.Ed.2d 214 (1971). For reasons explained below, we have concluded that we lack jurisdiction of this appeal.

This litigation began when the Board of Regents sued the New Left Education Project and certain individuals in a Taxes court. In that suit, the Regents sought to restrain defendants from distributing a newspaper and making either commercial or noncommercial solicitations on the Austin campus of the University of Texas except in compliance with appellant's rules. Defendants countered by bringing this federal suit to enjoin further state court proceedings on the ground that the rules that the Regents sought to enforce abridged defendants' First Amendment rights. A three-judge court met and determined that it was properly convened pursuant to 28 U.S.C. § 2281. It then permitted certain other organizations and individuals, including appellees here, to join the suit as plaintiffs and dismissed the action as to those involved in the state court adjudication. Thereafter, the court granted summary judgment in favor of appellees, declaring unconstitutional and permanently enjoining enforcement of two rules, Regents' Rules & Regs., c. VI, pt. 1, §§ 6.11, 6.12 (App. 173), governing the campus distribution of certain kinds of literature and the solicitation of dues from members of political organizations.

We have jurisdiction to review directly the lower court's order granting an injunction only if the case was one required to be heard and determined by a three-judge court. 28 U.S.C. § 1253. Such a court is required where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy. But a single judge, not a three-judge court, must hear the case where the statute or regulation is of only local import. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967); Rorick v. Board of Commissioners, 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242 (1939); Ex parte Public National Bank, 278 U.S. 101, 49 S.Ct. 43, 73 L.Ed. 202 (1928); Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990 (1928). This rule achieves the congressional purpose of saving statewide regulatory legislation from invalidation through ordinary federal court equity suits, minimizes the burden that the three-judge court places upon the federal judiciary, and avoids unduly expanding the Court's carefully limited appellate jurisdiction. Phillips v. United States, 312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941). Thus, the 'term 'statute' in § 2281 does not encompass local ordinances or resolutions,' Moody v. Flowers, supra, at 101, 87 S.Ct., at 1548, nor does it include a state statute having only a local impact, even if administered by a state official. Rorick v. Board of Commissioners, supra.

Appellant Board of Regents was created by the Texas Legislature and is charged with governing those educational institutions in the University of Texas System. Texas Rev.Civ.Stat.Ann., Art. 2585 (1965). This governance, which specifically includes a rulemaking power, ibid., extends to but three of the 23 four-year state colleges and universities listed in the Higher Education Coordinating Act of 1965, id., Art. 2919e 2, § 2 (Supp.1970-1971): the Unversity of Texas at Austin, El Paso, and Arlington. ^[1] In addition to the 20 senior colleges and universities for which appellant bears no responsibility, Texas has at least 31 public junior colleges that are not within the University of Texas System. Ibid. It is true that the Board of Regents governs numerous medical and other specialized schools and branches, id., Arts. 2603e to 2603i, 2606b to 2606d, but these are only some of the specialized institutions that Texas denominates as agencies of higher education. Id., Art. 2919e-2, §§ 2(e)-(g) (Supp.1970-1971). It is therefore apparent that the Regents' rulemaking power and the rules at issue in this litigation extend to but a fraction of the campuses in the Texas system of higher public education. These rules can scarcely be described as matters of statewide concern or expressions of a statewide policy when a large percentage of Texas colleges and universities are unaffected by them and could not be affected by any pronouncement that a federal court might make on their constitutionality. There is no suggestion or indication of any kind that the Regents' rules are similar to those for other schools or are required by or express statewide policy. ^[2] The situation here is comparable to that in Moody v. Flowers, supra, where we held that three-judge courts were improperly convened to consider challenges to a state statute applying to a particular county and to a county charter based upon a state statute. The fact that several campuses over which the Board of Regents has jurisdiction are located in different parts of the State does not in our view make their rules of general applicability for the purpose of 28 U.S.C. § 2281. These rules, applying only to some of the higher educational institutions of the State, are of limited significance and do not partake of the quality and dignity of those state statutes or policies that three-judge courts were designed to consider. We are persuaded that a contrary view of this case would be inconsistent with our oft-repeated admonition that the three-judge court statute is to be strictly construed. E.g., Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); Phillips v. United States, 312 U.S., at 251, 61 S.Ct., at 483.

Since the three-judge court was improperly convened, appeal lies not here but to the Court of Appeals for the Fifth Circuit. So that appellant may be able, if it desires, to perfect a timely appeal, we vacate the judgment below and remand the case with instruction that the court enter a fresh decree. Phillips v. United States, supra, at 254, 61 S.Ct., at 484.

Judgment vacated and remanded.

Mr. Justice POWELL, and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.

Mr. Justice DOUGLAS, dissenting.

Notes

1. Appellant also mentions the University of Texas at San Antonio and of the Permian Basin but does not take issue with appellees' contention that these schools are merely in the planning stage (Brief for Appellees 2, n. 1).
2. It has long been settled that a three-judge court is proper even in a suit against a local official, although localized in his geographic activities and mode of his selection, when he is engaged in enforcing a policy of statewide application whose constitutionality is challenged. Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322 (1935); Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 810, 83 L.Ed. 1242 (1939). The thrust of our more recent decision in Alabama State Teachers Assn. v. Alabama Public School and College Authority, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969), is to the same effect. The issue there was a legislative direction to the Alabama Public School and Housing Authority to issue bonds for the construction of a public university in Montgomery, Alabama. Appellants challenged that action, although having a local impact, as expressive of an official, statewide policy to maintain a racially identifiable, dual system of education, and the District Court denied relief. The dissent on the merits from summary affirmance, disagreeing with Mr. Justice Harlan's dissent on jurisdictional grounds, agreed that a statewide policy was sufficiently implicated to sustain the jurisdiction of the three-judge court and the direct appeal here. Board of Visitors v. Norris, 404 U.S. 907, 92 S.Ct. 227, 30 L.Ed.2d 180 (1971), aff'g, 327 F.Supp. 1368 (E.D.Va.1971), rests upon the same basis. In McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950), the Court entertained an appeal from the judgment of a three-judge District Court upholding an Oklahoma statute providing that Negroes, though admissible to white graduate schools, must get that education on a segregated basis.

Nothing in the record before us in this case indicates that the regulations challenged here represent general state policy, reflect a statutory command, or apply to more than a fraction of the Texas higher educational institutions. It is thus difficult to understand the dissent's reliance on the Alabama, Norris, and McLaurin cases.