Case 1:17-cv-00822-LY Document 16 Filed 06/25/18 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`ZOIBJUN25 Pi1 2:L9
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`DAVID MCMAHON, STEVEN
`LITTLEFIELD, AND THE TEXAS
`DI VISION, SONS OF CONFEDERATE
`VETERANS, INC.,
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`PLAINTIFFS,
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`V.
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`GREGORY L. FENVES, IN HIS
`OFFICIAL CAPACITY AS PRESIDENT
`OF THE UNIVERSITY OF TEXAS AT
`AUSTIN,
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`DEFENDANT.
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`CAUSE NO. 1:1 7-CV-822-LY
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`MEMORANDUM OPINION AND ORDER
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`Before the court are Defendant's Motion to Dismiss filed November 20, 2017 (Dkt. No.
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`12), Plaintiffs' Response to Defendant's Motion to Dismiss filed December 4, 2017 (Dkt. No.
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`13), and Defendant's Reply in Support of Motion to Dismiss filed December 11, 2017 (Dkt. No.
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`14). Having carefully considered the briefing, applicable law, and the entire case file, the court
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`will grant the motion to dismiss for the reasons that follow.
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`I.
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`BACKGROUND
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`George Littlefield was an early and prominent benefactor to the University of Texas ("the
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`University"). He served in Terry's Texas Rangers during the Civil War and believed that
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`Confederate history should be preserved and celebrated so that "future generations would
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`remember those grand patriots who gave up their lives for the cause of liberty and self-
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`government." To that end, he commissioned a sculptor to create statues of Jefferson Davis,
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`Robert E. Lee, Albert Sidney Johnston, John Reagan, James Hogg, and President Woodrow
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`Wilson "during a period of resurgent white Southern nostalgia for the social order of the old
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`Case 1:17-cv-00822-LY Document 16 Filed 06/25/18 Page 2 of 10
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`South embodied by the Confederacy." Littlefield's will provided a bequest to the University to
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`establish the Littlefield Fund for Southern History and another fund to erect the commissioned
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`statues "in places of prominence" on campus. The statues were installed along the main mall of
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`the University's Austin, Texas campus in the 1930s.
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`In 2015, University President Gregory L. Fenves ("Fenves") formed a taskforce with
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`students, faculty, and alumni "to study the artistic, social, political intent, and historical context"
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`of the statues, to "review the past and present controversies over the statues," and to "develop[]
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`alternatives for the for the relocation of the statues." The taskforce suggested several solutions,
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`including relocating the statues to the Briscoe Center for American History to be displayed in
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`full historical context with one of the largest collections of resources on American slavery in the
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`country as well as in full artistic context alongside the papers of Littlefield and the sculptor of the
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`statues. After a white supremacist shot and killed nine individuals at a church in Charleston,
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`South Carolina, Fenves accepted the recommendation of the task force and announced his
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`decision to move the Jefferson Davis and Woodrow Wilson statues. David Bray and Texas
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`Division of the Sons of Confederate Veterans filed suit in state court the next day seeking a
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`permanent injunction to prevent Fenves from removing the statues. The suit was based on state-
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`law claims similar to those brought by the current plaintiffs. The state court denied the motion
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`for an injunction on the basis that the plaintiffs did not have standing to bring the claims. The
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`Texas Sixth Court of Appeals affirmed. See Bray v. Fenves, No. 06-15-75-CV, 2016 WL
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`3083539 (Tex. App.Texarkana 2016, pet. denied). The Wilson and Davis statues were
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`subsequently removed, but the other Confederate statues remained on the mall.
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`Task Force on Historical Representation of Statuary at UT Austin, Report to President
`Gregory L. Fenves (Aug. 10, 2015), http ://diversity.utexas.edu/statues/wp-content/uploads/
`2016/01 /Task-Force-Report-FINAL-08091 5 .pdf.
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`Case 1:17-cv-00822-LY Document 16 Filed 06/25/18 Page 3 of 10
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`In 2017, Fenves caused the removal of the Robert E. Lee, Albert Sidney Johnston, John
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`Reagan, and James Hogg statues from the main mall, after a neo-Nazi killed a young woman
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`who was counter-protesting a white-supremacist demonstration in Charlottesville, Virginia.
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`Fenves determined that "Confederate monuments have become symbols of modern white
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`supremacy and neo-Nazism."2
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`Plaintiffs David McMahon, Steven Littlefield, and Texas Division, Sons of Confederate
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`Veterans, Inc.3 filed this suit against Fenves on August 23, 2017. McMahon filed his First
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`Amended Complaint, Application for Injunctive Relief, & Motion for Declaratory Judgment on
`September 20, 2017 (Dkt. No. 7)4 The parties agreed that the University would maintain the
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`status quo until the court ruled on the motion to dismiss.
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`McMahon and Littlefield are both descendants of Confederate veterans, and Littlefield is
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`a descendant of George Littlefield. MeMahon claims that the University's removal of the statues
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`and impending obscuration of the plinths of the statues violates his right to free speech under the
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`First Amendment. In "abridging the political speech of the monument," McMahon claims that
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`the University abridged his own right to hold a dissenting political viewpoint.
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`The Texas Division, Sons of Confederate Veterans (the "Sons") seek to "protect the
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`memory of our beloved Confederate Veterans," including "memorials, images, symbols,
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`monuments and gravesites." The Sons also claim a First Amendment injury on behalf of its
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`2
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`on Campus,
`Gregory L. Fenves, Confederate Statues
`https ://president.utexas.edu!messages/confederate-statues-on-campus.
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`(Aug.
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`20,
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`2017),
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`As the interests of Plaintiffs do not diverge, the court will refer to them collectively as
`"McMahon," unless otherwise noted or as needed for context.
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`McMahon filed an unopposed motion to withdraw his motion for preliminary injunction on
`September 27, 2017 (Dkt. No. 10), which this court granted on October 2, 2017 (Dkt. No. 11).
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`3
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`members because its members "dissenting political viewpoint [J was communicated by the
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`Littlefield statues."
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`Invoking the supplemental jurisdiction of this court, McMahon brings several additional
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`state-law claims, including breach of the bequest agreement between Littlefield and the
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`University, violation of Texas Government Code Section 2 166.501 and .5011, and violation of
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`the Board of Regents' authority over the University campus. Fenves moved to dismiss for lack
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`of standing and for failure to state a claim.
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`II.
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`STANDING
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`The judicial power may be invoked to adjudicate a disagreement between litigants only if
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`the party bringing suit has standing to bring its claims. Article III of the Constitution limits the
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`exercise of the judicial power to the "resolution of 'cases' and 'controversies." Valley Forge
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`Christian Coil. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471
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`(1982). Standing to bring suit is an "essential and unchanging part of the case-or-controversy
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`requirement." Lujan v. Defenders of Wildlfe, 504 U.S. 555, 560 (1992). Standing "limits the
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`category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal
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`wrong," Spokeo, Inc. v. Robins,
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`U.S.
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`, 136 S. Ct. 1540, 1547 (2016), as revised (May 24,
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`2016), in order to ensure that the judicial power is invoked only to "redress or prevent actual or
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`imminently threatened injury" particular to the plaintiff Summers v. Earth Island Inst., 555 U.S.
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`488, 492 (2009).
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`The elements of standing are familiar: a plaintiff must have (1) suffered an injury in fact,
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`(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
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`redressed by a favorable judicial decision. See Lujan, 504 U.S. at 560-61. The plaintiff bears
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`the burden of establishing each of these elements "with the manner and degree of evidence
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`ri
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`required at the successive stages of the litigation." Id. at 561. At the motion-to-dismiss stage
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`"the plaintiff must clearly allege facts demonstrating each element." Spokeo, 136 S. Ct. at 1547
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`(internal punctuation and citation omitted). The court may not "create its own jurisdiction by
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`embellishing otherwise deficient allegations of standing." Whitmore v. Arkansas, 495 U.S. 149,
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`155-56 (1990).
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`To demonstrate an injury in fact, a plaintiff must show "an invasion of a legally
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`protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural
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`or hypothetical." Spokeo, 136 S. Ct. at 1548 (citing Lujan, 504 U.S. at 560). A particularized
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`injury "must affect the plaintiff in a personal and individual way."
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`Id. Unlike when one is
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`challenging the legality of an action taken directly against the plaintiff, when "a plaintiff's
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`asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation)
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`of someone else, much more is needed." Lujan, 504 U.S. at 562.
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`1. Legally Protected Interest
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`To satisfy the injury-in-fact prong, a plaintiff must allege an invasion of a "legally
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`protected interest," that is both "concrete and particularized." The legally protected interest
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`McMahon seeks to protect is the right to hold a politically unpopular viewpoint. Put simply,
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`McMahon argues that the University engaged in viewpoint discrimination against his dissenting
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`viewpointthat which celebrates the Confederate legacywhen the University removed the
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`Confederate statues from its grounds. Because McMahon shares this dissenting viewpoint, he
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`believes that the University's removal of the statues amounts to viewpoint discrimination against
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`him personally. When standing is contested, the appropriate inquiry is whether the interest is
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`cognizable in the abstract, and then, whether such interest is concrete and particularly felt by
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`those bringing suit; if the interest alleged is both cognizable and particularly felt it is an injury in
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`fact. See Lujan, 504 U.S. at 563 ("[T]he injury in fact test requires more than an injury to a
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`cognizable interest. It requires that the party seeking review be himself among the injured.")
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`An intangible interest, such as that of free speech, satisfies the concreteness requirement.
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`See Spokeo, 136 S. Ct. at 1549 (citing Pleasant Grove City, Utah v. Summum, 555 U.S. 460
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`(2009); Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)).
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`Concreteness, however, is not enoughthe interest must also be particularized.
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`2. Particularized Interest
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`Construed charitably, McMahon's clearest claim of a particularized injury seems to be
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`that the University discriminated against his dissenting political viewpoint when it removed the
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`statues simply because the statues represented his political viewpoint. Although the University
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`has not taken a direct action against McMahon or prevented McMahon from speaking,
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`McMahon argues that his "injury is distinct from any effect on the general public" because of the
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`McMahon's "unique ties through familial veterans' service to the dissenting political viewpoint
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`expressed in the [s]tatues."5
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`Subjective ideological interestsno matter how deeply feltare not enough to confer
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`standing. See Sierra Club v. Morton, 405 U.S. 727, 729-35 (1972).6 Our system of governance
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`McMahon argues that "[i]n order for an injury to be particularized, it must effect [sic] a small,
`easily identifiable group, as distinguished from the public generally." McMahon relies on
`decisions holding that beneficiaries of a charitable trust have standing to enforce the terms of that
`trust and bases his analysis on these cases. However, neither McMahon, Littlefield, nor the Sons
`are beneficiaries, trustees, or executors of the George Littlefield will. And no matter how
`"sharply defined" or "small" the membership, the Sons may not police the terms of the will.
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`6 In Sierra Club, the Sierra Club sought to enjoin the government from developing a national
`park. Id. at 729-31. It claimed a special interest in the "conservation and sound maintenance of
`the national parks." Id. at 730. The Sierra Club claimed it was injured by "a change in the
`aesthetics and ecology" of particular national parks. Id. at 734. The Court did not question that
`this type of harm "may amount to an 'injury in fact," but noted "the 'injury in fact' test requires
`more than an injury to a cognizable interest. It requires that the party seeking review be himself
`among the injured." Id. at 734-3 5.
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`assigns the vindication of value preferences to the democratic political process, not the judicial
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`process, see Lujan, 504 U.S. at 576, because limiting the right to sue to those most immediately
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`affected "who have a direct stake in the outcome" prevents judicial review "at the behest of
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`organizations who seek to do no more than vindicate their own value preferences." Sierra Club,
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`405 U.S. at 740. McMahon and Littlefield seek to do just that. McMahon and Littlefield may be
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`more deeply attached to the values embodied by the Confederate monuments than the average
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`student rushing to class on the mall, but their identities as descendants of Confederate veterans
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`do not transform an abstract ideological interest in preserving the Confederate legacy into a
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`particularized injury. The alleged free-speech injury of McMahon and Littlefield, while perhaps
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`cognizable in the abstract, is not an injury in fact.
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`McMahon also relies on several cases for the proposition that alleging a First
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`Amendment violation is all that is needed to confer standing. McMahon's reliance on these
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`cases is misplaced. The Court did not express an opinion on the parties' standing to sueonly
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`on the merits of their First Amendment claims. In fact, none of the cases cited by McMahon
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`discussed standing. Nonetheless, these cases illustrate the same principles as Sierra Club and
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`Lujan: an injury to a cognizable First Amendment interest must be concrete and particularly felt
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`by the plaintiff bringing suit. In each of the cases relied on by McMahon, the interest was the
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`right to free speech; however, that interest was still particular to each of the plaintiffs bringing
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`suit because the government acted directly against the plaintiffs, inter alia, in denying a license,
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`denying a grant or funding, and denying the opportunity to erect a new statue.
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`In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the same organization
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`bringing suit today unsuccessfully sought state approval for a specialty license plate featuring the
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`Confederate Flag.
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`U.S.
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`, 135 5. Ct. 2239 (2015). In Summum, a religious organization
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`Case 1:17-cv-00822-LY Document 16 Filed 06/25/18 Page 8 of 10
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`brought suit for a violation of the First Amendment after it was twice denied a request to erect a
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`stone monument in a park with other permanent displays. 555 U.S. 460, 464 (2009). Likewise,
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`in National Endowment for the Arts v. Finley, artists sued on a theory of viewpoint
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`discrimination when they were denied grant funding by the National Endowment for the Arts.
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`524 U.S. 569, 577 (1998). Finally, in Rosenberger v. Rector & Visitors of Univ. of Virginia, a
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`religious student organization was denied funding by a state university to publish a religious
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`magazine. 515 U.S. 819, 827 (1995). These cases bear out what the court concluded in Lujan:
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`when "the plaintiff himself is an object of the [government's] action .
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`. there is ordinarily little
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`.
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`question that the action or inaction has caused him injury." 504 U.S. at 561-62.
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`McMahon does not "clearly allege" with specificity how the display or non-display of a
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`statue, representing a viewpoint with which he agrees, equates to an exercise of his First
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`Amendment rights. McMahon did not fund the original statues; nor was he denied permission to
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`erect new statues. Cf Summum, 555 U.S. at 464. In fact, McMahon does not allege that he was
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`prevented from speaking at all. Far from bolstering his argument, these cases illustrate the
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`fundamental defect in this casea general action taken by the University to remove an inanimate
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`object, which bears no relation to McMahon other than a shared ideological interest, is not an
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`action taken against McMahon.7 McMahon and Littlefield have not alleged a sufficient injury in
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`fact, and as such, lack standing to bring this lawsuit.
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`This much is revealed by the pleadings themselves, in which McMahon alleges that the
`removal of the Confederate monuments and obscured inscriptions "directly abridges the political
`speech of the monuments," which he claims irreparably injures McMahon.
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`Case 1:17-cv-00822-LY Document 16 Filed 06/25/18 Page 9 of 10
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`3. Associational Standing
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`An association seeking to "bring suit on behalf of its members" has standing only if "its
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`members would otherwise have standing to sue in their own right." Hunt v. Washington State
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`Apple Advert. Comm 'n, 432 U.S. 333, 343 (1977).
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`The Sons seeks to "protect the memory of our beloved Confederate Veterans," including
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`"memorials, images, symbols, monuments and gravesites." According to the Sons, these
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`memorials communicate "the political viewpoint that Confederate American Heroes sacrificed
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`for a noble cause that the victors in the war have almost uniformly whitewashed from history."
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`It argues that "[the Sons] and [the Sons'] members were uniquely injured" because their
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`"dissenting political viewpoint [] was communicated by the Littlefield statues." Though the
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`Sons argues the injury is unique to its members, it is the same injury alleged by McMahon and
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`Littlefield and is not sufficient to confer standing. Because the Sons pleads no injury to its
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`members other than an injury rejected by this court, it has not pleaded that "its members would
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`otherwise have standing to sue in their own right." Accordingly, the Sons lacks standing to bring
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`this lawsuit.
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`III.
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`STATE-LAW CLAIMS AND SUPPLEMENTAL JURISDICTION
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`In addition to the federal-law claim, McMahon asserts three state-law causes of action,
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`including breach of the George Littlefield bequest, breach of Texas Monument Protection Act,
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`and breach of the Board of Regents authority by the University. McMahon invokes the
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`supplemental jurisdiction of this court to adjudicate his state-law claims.
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`A court may decline to exercise supplemental jurisdiction over state-law claims when it
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`has "dismissed all claims over which it has original jurisdiction." 28 U.S.C. §1367(c)(3); see
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`also Artis v. District of Columbia,
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`U.S.
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`, 138 S. Ct. 594, 597-98 (Jan. 22, 2018) ("When
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`district courts dismiss all claims independently qualifying for the exercise of federal jurisdiction,
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`they ordinarily dismiss as well all related state claims."); accord Heggemeier v. Caldwell Cly.,
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`Texas, 826 F.3d 861, 872-73 (5th Cir. 2016). The Sixth Court of Appeals considered and
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`rejected similar state-law claims brought by some of these Plaintiffs. See Bray v. Fenves, No. 6-
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`15-00075CV, 2016 WL 3083539 (Tex. App.Texarkana Mar. 24, 2016, pet. denied). Since
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`the only federal-law claim has been dismissed, this court will not exercise its supplemental
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`jurisdiction over the remaining state-law claims.
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`IV.
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`CONCLUSION
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`The court concludes that McMahon, Littlefield, and the Texas Division, Sons of
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`Confederate Veterans lack standing to bring this suit. Defendant additionally moves to dismiss
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`this suit on the grounds that the Sons' Complaint fails to state a claim upon which relief can be
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`granted. The court takes no position on whether the Sons' alleged injury finds support in First
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`Amendment case law or would ultimately be successful on the merits. See Steel Co. v. Citizens
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`for a Better Env 't, 523 U.S. 83, 94 (1998) (refusing to decide merits before resolving Article III
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`jurisdictional questions "because it carries the courts beyond the bounds of authorized judicial
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`action"). Accordingly,
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`IT IS ORDERED that Defendant's Motion to Dismiss filed November 20, 2017 (Dkt.
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`No. 12) is GRANTED.
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`IT IS FURTHER ORDERED that this case is DISMISSED without prejudice.
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`SIGNED this
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`day of June, 2018.
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`UNI ED STATE
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`10
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