Jennifer Glass v. Ken Paxton ( 2018 )

Case: 17-50641 Document: 00514603748 Page: 1 Date Filed: 08/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 16, 2018
No. 17-50641
Lyle W. Cayce
Clerk
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
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:
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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
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(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.
The Board eliminated the policy that prohibited license holders from keeping a live-
1
round loaded in the chamber of their handguns while on campus.
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In July 2016, Dr. Jennifer Glass and two other University professors 2
filed 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.
2 Dr. Glass is a Liberal Arts professor in the Department of Sociology and Population
Research. Dr. Lisa Moore is a professor of English. Dr. Mia Carter is also a professor of
English. For simplicity, we will refer only to Glass.
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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 classroom speech would be
“dampened to some degree by the fear” it could initiate gun violence in the class
by students who have “one or more handguns hidden but at the ready if the
gun owner is moved to anger and impulsive action.” In an affidavit she
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expressed particular concern for “religiously conservative students [who] have
extreme views,” as well as “openly libertarian students,” whom she “suspect[s]
are more likely to own guns given their distaste for government.”
The district court held that Glass and her fellow professors alleged
“standing based on their self-imposed censoring of classroom discussion caused
by their fear of the possibility of illegal activity by persons not joined in this
lawsuit.” Glass lacked standing because she alleged a “subjective” First
Amendment chill that was contrary to the presumption her students “will
conduct their activities within the law and so avoid prosecution and
conviction.” O’Shea v. Littleton, 414 U.S. 488, 497 (1974).
Before analyzing the parties’ arguments on appeal, it is helpful to begin
with a summary of how the Supreme Court came to recognize the concept of a
“subjective chill.” In Tatum, the plaintiffs challenged an Army surveillance
program authorized to gather intelligence about potential domestic civil unrest
by sending agents to attend public meetings throughout the country. 408 U.S.
at 6. They argued that “the very existence of the Army’s data-gathering system
produce[d] a constitutionally impermissible chilling effect upon the exercise of
their First Amendment rights.” Id. at 13. The “precise connection” between
the challenged program and the alleged chill was “somewhat unclear;” the
Court held a number of arguments would be improper, including relying on
“speculative apprehensiveness that the Army may at some future date misuse
the information in some way that would cause direct harm” to the plaintiffs.
Id. at 13 & n.7. To the extent the Tatum plaintiffs had decided to self-censor
their speech based on such speculation, any allegation of a chilling effect was
“subjective” in nature. Id. at 13–14. “Allegations of a subjective ‘chill’ are not
an adequate substitute for a claim of specific present objective harm or a threat
of specific future harm.” Id.
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In Amnesty International, various lawyers and journalists challenged a
provision of the Foreign Intelligence Surveillance Act allowing for the
surveillance of certain foreign individuals. 568 U.S. at 406. The plaintiffs
argued that their speech was chilled because they desired to communicate with
likely targeted persons but would now decline to do so given the likelihood of
government surveillance of their conversations. Id. at 406–07. First, the Court
rejected the circuit court’s application of a test asking whether there was an
“objectively reasonable likelihood” of the plaintiffs’ communications being
intercepted in the future. Id. at 410. Such a standard fell short of the
“requirement that ‘threatened injury must be certainly impending.’” Id.
(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). The plaintiffs’
theory about future interception of their communications relied on a highly
speculative and “attenuated chain of possibilities” partially based on “the
decisions of independent actors.” See id. at 410–14. Parties “cannot
manufacture standing merely by inflicting harm on themselves based on their
fears of hypothetical future harm that is not certainly impending.” Id. at 416.
Under the “certainly impending” standard, the Court held that the
plaintiffs “set forth no specific facts demonstrating that the communications of
their foreign contacts will be targeted.” Id. at 412 (emphasis added). Whether
or not the plaintiffs’ communications would be surveilled rested on a “chain of
contingencies,” some of which were dependent on the discretion or decisions of
independent actors. Id. at 410. The Government had multiple statutorily-
authorized surveillance methods available for use against the foreign contacts
— the plaintiffs assumed that the Government would choose the challenged
provision as the method of surveillance in each instance. See id. at 412–13.
Additionally, the plaintiffs could “only speculate as to whether [the Foreign
Intelligence Surveillance Court would] authorize such surveillance.” Id. at
413. In discussing this chain of contingencies, the Court reiterated its usual
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“reluctan[ce] to endorse standing theories that require guesswork as to how
independent decision makers will exercise their judgment.” Id. Therefore,
demonstrating that only a single link in a chain of contingencies was certainly
impending did not “satisfy the requirement that any injury in fact must be
fairly traceable to” the challenged government action. Id. at 411.
From the outset, it is therefore critical that we identify the harm serving
as the catalyst for Glass’s self-censorship. If her allegation of harm involves a
“chain of contingencies” as in Amnesty International, then we must follow the
Court’s approach and identify each contingency prompting the self-censorship.
See id. at 410–14. Each link in the chain of contingencies must be “certainly
impending” to confer standing. See id.
Glass first argues that there is no question of injury here because the
University will certainly discipline her if she bans concealed carry in her
classroom. Given Texas’s concession that consequences would follow if she
were to ban concealed carry, Glass argues that the inquiry is complete because
harm is certainly impending. Thus, the singular harm at issue is the
University policy. Tatum and Amnesty International, she argues, are
distinguishable because whether those respective plaintiffs’ speech would be
surveilled was purely speculative.
Texas counters that Glass has only alleged certainty about a single link
at the end of a chain of contingencies similar to the plaintiffs in Amnesty
International. Notwithstanding likely future disciplinary action, Glass is
ultimately deciding to self-censor her speech based on the hypothetical future
decisions of students in her classroom. Regardless of the likelihood of her being
disciplined for banning concealed carry, her decision to self-censor her speech
rests on a harm that is not certainly impending.
By arguing that the harm here is certain based on the University policy
alone, Glass essentially argues that there is no chain of contingencies giving
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rise to her self-censorship. Her own description of how she came to self-censor
her speech, however, reveals that there is indeed a chain of contingencies
causing her alleged injury. In her amended complaint, Glass describes her
decision to self-censor as an “inevitable” response to the possibility that a
“student has the present wherewithal for violent classroom action with a gun.”
She argues robust classroom debate “inevitably will be dampened to some
degree by the fear that it could expose other students or [herself] to gun
violence [and] by the professor’s awareness that one or more students has one
or more handguns hidden but at the ready if the gun owner is moved to anger
and impulsive action.” Her self-censorship admittedly arises from her fears
about the behavior of students who are concealed-carrying firearms in class.
In other words, Glass’s fear of potential violent acts by firearm-carrying
students prompts her to self-censor by avoiding topics she worries might incite
such violence or intimidation, which would be unnecessary but for the law and
policy that prevent her from banning firearms in her classroom.
Glass’s allegation of harm contains at least two contingences: (1) harm
from concealed-carrying students incited by classroom debate and (2) harm
from University disciplinary action. Each contingency must be “certainly
impending.” See id. The parties agree that disciplinary action would follow an
attempt to ban concealed carry in her classroom. Whether Glass has standing
therefore turns on whether the alleged harm threatened by concealed-carrying
students is “certainly impending.”
Texas analogizes to the layers of speculation in Amnesty International,
arguing that Glass’s fear of harm rests on the assumption students with
concealed-carry licenses, as independent decision-makers, are virtually certain
to illegally use their firearms to intimidate, threaten, or commit violence in
response to controversial classroom discussion. Glass argues that her fears are
neither speculative nor subjective. She challenges the district court’s
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conclusion that she failed to present concrete evidence to substantiate her fears
about students. First, she cites to a “broader community of views” which
believes that the presence of guns in the classroom will chill professors’ speech.
This community of views includes multiple University faculty members and
multiple national educational organizations. Second, she cites to various
academic studies discussing a so-called “weapons effect.” According to Glass,
“[t]hese studies conclude that the hidden presence of guns does threaten
disruption of classroom activities, increases the likelihood that violence will
erupt in the classroom, and intimidates non-carrying students — and
undoubtedly professors, too.”
The problem with Glass’s argument is that none of the cited evidence
alleges a certainty that a license-holder will illegally brandish a firearm in a
classroom. Elaborating on the academic studies, for example, the amici
American Association of University Professors and the Giffords and Brady
Centers to Prevent Gun Violence argue that the “weapons effect” demonstrates
“the tendency of provoked individuals to behave aggressively when in the
presence of actual guns,” meaning that “carrying a concealed weapon can
increase aggressive behavior by the person carrying.” Even assuming the
validity of the weapons effect, however, a tendency toward increased
aggression falls short of certainly impending aggression. Ultimately, whether
concealed-carrying students pose certain harm to Glass turns on their
independent decision-making. Because she fails to allege certainty as to how
these students will exercise their future judgment, the alleged harm is not
certainly impending.
Glass objects to a plain application of the “certainly impending” standard
from Amnesty International, arguing that it sets the bar impossibly high.
Instead, she asks us to confer standing on the basis that her fears are
“objectively understandable and reasonable.” We cannot adopt this standard
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because it was already rejected in Amnesty International. There, the Court
rejected the Second Circuit’s holding that the plaintiffs had standing because
their injury was not “fanciful, paranoid, or otherwise unreasonable.” Id. at
416. Such a standard, the Court held, “improperly waters down the
fundamental requirements of Article III.” Id. Parties’ “contention that they
have standing because they incurred certain costs as a reasonable reaction to
a risk of harm is unavailing — because the harm they seek to avoid is not
certainly impending.” Id.
Contrary to Glass’s argument, Amnesty International reiterated that
standing is not impossible in every instance in which independent decision-
making comes into play. An example of the Court’s willingness to depart from
its “usual reluctance” was Meese v. Keene, 481 U.S. 465 (1987). In Keene, the
plaintiff, a California State Senator, argued that the Department of Justice’s
decision to label three films as “political propaganda” violated the First
Amendment. 481 U.S. at 467. Under the Foreign Agents Registration Act of
1938, the Department of Justice labeled three Canadian documentaries as
“political propaganda” because they could be “reasonably adapted” to
“influence the foreign policies of the United States.” Id. at 470. In order to
exhibit the films in public, the State Senator was required to provide a copy of
the material to the Attorney General along with a report “describing the extent
of the dissemination.” Id. In addition, he was required to disclose that by
showing the films, he was acting as the agent of a foreign principal. Id. at 470–
71 & n.6.
The Court began by noting that “[i]f Keene had merely alleged that the
appellation deterred him by exercising a chilling effect on the exercise of his
First Amendment rights, he would not have standing to seek its invalidation.”
Id. at 473. Instead, Keene alleged that the future reputational harm
prompting his self-censorship was certain, and not merely possible. See id. In
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support, he provided detailed affidavits citing public opinion polls showing that
approximately one in two voters would be less inclined to vote for a candidate
who showed a foreign film labeled as political propaganda by the Department
of Justice. Id. & n.7.
Glass analogizes to Keene by arguing that the same rationale confers
standing here. She misreads Keene. Although Keene’s allegation of harm
involved the contingency of individual voter decisions, he nonetheless alleged
certainty about voter decision-making based on supporting affidavits and
opinion polling. See id. at 473. Indeed, he alleged that “if he were to exhibit
the films while they bore such characterization, his personal, political, and
professional reputation would suffer and his ability to obtain re-election and
to practice his profession would be impaired.” Id. (emphasis added) (citation
omitted). By contrast, Glass alleges reasonable probability of future harm from
concealed-carrying students. According to her, she is “faced with the
knowledge that there is a reasonable probability that sitting at one of the desks
in [her] enclosed classroom is a young student” who believes that a “gun can be
used when the appropriate circumstances present themselves.”
Glass further argues that a denial of standing would improperly fail to
construe the factual allegations of her complaint in her favor. See Lujan, 504
U.S. at 561. Her argument is misplaced for the same reason that Keene is
distinguishable. The issue here does not concern the weight given to her
factual allegations, but rather the absence of any allegation of certainty about
the students’ future decisions. Keene alleged certainty about the voters’ future
decisions based on polling, which empowered him to allege certainty about
future reputational harm. Keene, 481 U.S. at 473. Construing the factual
allegations of Glass’s complaint in her favor, she nonetheless fails to allege
what is required under Amnesty International. The requirement is that harm
from concealed-carrying students be certainly impending.
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The same concerns fueling the Court’s “usual reluctance” in Amnesty
International are present here. Although Glass’s claim centers on the First
Amendment, her standing arguments invoke notable separation of powers
concerns. By adjudicating claims for which the alleged harm is not certainly
impending, federal courts risk disregarding their constitutional mandate to
limit their jurisdiction to actual cases and controversies and thereby avoid the
issuance of advisory opinions.
Glass cannot manufacture standing by self-censoring her speech based
on what she alleges to be a reasonable probability that concealed-carry license
holders will intimidate professors and students in the classroom. The district
court did not err. Glass lacks standing to bring her First Amendment claim.
II. Second and Fourteenth Amendment claims
In her amended complaint, Glass raised three claims challenging the
Campus Carry Law and University policy. As we just discussed, Texas moved
to dismiss Glass’s First Amendment claim for lack of standing under Rule
12(b)(1). Texas also moved to dismiss the Second and Fourteenth Amendment
claims for failure to state a claim under Rule 12(b)(6). The district court
dismissed all three claims without prejudice but only provided analysis for its
dismissal of her First Amendment claim under Rule 12(b)(1). Glass argues we
should reverse and remand the dismissal of her Second and Fourteenth
Amendment claims for the district court to consider. Texas argues we should
reach those issues and affirm their dismissal. We therefore analyze whether
we should reach Glass’s remaining claims on appeal.
Glass relies on precedent stating that “[i]t is the general rule, of course,
that a federal appellate court does not consider an issue not passed upon
below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). At the same time, “[t]he
matter of what questions may be taken up and resolved for the first time on
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appeal is one left primarily to the discretion of the courts of appeals, to be
exercised on the facts of individual cases.” Id. at 121. Although the Supreme
Court has declined to state a general rule as to how appellate courts should
exercise their discretion, “there are circumstances in which a federal appellate
court is justified in resolving an issue not passed on below, as where the proper
resolution is beyond any doubt . . . or where ‘injustice might otherwise result.’”
Id. (quoting Hormel v. Helvering, 312 U.S. 552, 557 (1941)). When the only
remaining issues are purely legal questions that were briefed below, we have
been willing to resolve those issues on appeal to avoid a waste of judicial
resources. See Halbert v. City of Sherman, 33 F.3d 526, 530 (5th Cir. 1994).
Glass describes our traditional approach as categorically rigid, citing to
a case where we declined to “consider an issue passed over by the district court”
absent special circumstances. Man Roland, Inc. v. Kreitz Motor Express, Inc.,
438 F.3d 476, 483 (5th Cir. 2006). That opinion is not a blanket prohibition.
The new issue there concerned an unaddressed cross-motion for summary
judgment, meaning the district court had not “considered any of [the movant’s]
arguments with the burdens and presumptions favoring . . . the nonmovant.”
Id. Regardless, Man Roland’s meaning must be analyzed consistently with
preexisiting precedential rulings such as Halbert, in which we recognized our
option to consider purely legal issues for the first time on appeal. See 33 F.3d
at 530. Here, Glass’s remaining claims present purely legal questions that
were briefed to the district court. In stewardship of judicial resources, we
exercise our discretion to reach all of Glass’s claims.
We review de novo the legal question of whether Glass’s allegations state
a constitutional claim. See Caine v. Hardy, 943 F.2d 1406, 1415 (5th Cir. 1991)
(en banc). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. “[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id. We turn now to Glass’s
Second Amendment claim.
a. Second Amendment
Glass argues that the Campus Carry Law and University policy violate
the Second Amendment because firearm usage in her presence is not
sufficiently “well regulated.” The Second Amendment states: “A well regulated
Militia, being necessary to the security of a free State, the right of the people
to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. II. The
Supreme Court held that the Second Amendment “guarantee[s] the individual
right to possess and carry weapons in case of confrontation.” District of
Columbia v. Heller, 554 U.S. 570, 592 (2008). The Court also held that
“individual self-defense is ‘the central component’ of the Second Amendment
right.” McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (citation omitted)
(emphasis in original).
Glass contends that to the extent the Second Amendment recognizes an
individual right to carry firearms, persons not carrying arms have a right to
the practice being well-regulated. Glass’s argument collapses the distinction
between the Amendment’s two clauses: the militia-focused prefatory clause
and the operative clause. In Heller, the Court relied on text, history, and
tradition to interpret the prefatory clause as “announc[ing] the purpose for
which the right was codified: to prevent elimination of the militia.” Heller, 554
U.S. at 599. Codification of the right occurs in the operative clause. Id. at 579.
Notwithstanding this distinction, Glass advocates an “independent meaning”
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of the prefatory clause which recognizes “a constitutional right not to have the
government force [individuals] into allowing guns in their professional
presence as a condition of public employment unless gun possession and use
are ‘well-regulated.’” “Like it or not,” Glass argues, “there is specific
constitutional language that premises the right, whatever its extent, on the
use of guns [as] ‘well-regulated.’” She argues that the prefatory clause places
a “condition” on the individual right.
Her “admittedly fresh” take on the Second Amendment therefore turns
on the proper interpretation of the Amendment’s prefatory clause. In support,
Glass cites to a line in Heller where the Court interpreted “well-regulated” as
“the imposition of proper discipline and training.” 554 U.S. at 597. She further
relies on one of our opinions where we stated that “gun use and gun control
have been inextricably intertwined” such that “an expectation of sensible gun
safety regulation was woven into the tapestry of the [Second Amendment]
guarantee.” National Rifle Ass’n v. BATFE, 700 F.3d 185, 200 (5th Cir. 2012).
Glass’s argument is foreclosed by Heller. In two separate locations in the
majority opinion, the Court held that the Second Amendment’s prefatory
clause does not limit its operative clause: “The [prefatory clause] does not limit
the [operative clause] grammatically, but rather announces a purpose.” 554
U.S. at 577. Indeed, the “prefatory clause does not limit or expand the scope
of the operative clause.” Id. at 578. The Amendment’s first clause “is prefatory
and not a limitation on the amendment itself.” Hollis v. Lynch, 827 F.3d 436,
444 (5th Cir. 2016). Because the operative clause provides the codification of
the individual right, the prefatory clause cannot “limit or expand the scope” of
the individual right. Heller, 554 U.S. at 578.
The prefatory clause does not limit the scope of the individual right
codified in the operative clause. She has failed to state a claim under the
Second Amendment.
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b. Equal protection
Finally, Glass argues that the Campus Carry Law and University policy
violate her right to equal protection under the Fourteenth Amendment because
the University lacks a rational basis for determining where students can or
cannot concealed-carry handguns on campus.
“The equal protection clause essentially requires that all persons
similarly situated be treated alike.” Mahone v. Addicks Util. Dist.of Harris
Cnty., 836 F.2d 921, 932 (5th Cir. 1988). The parties do not dispute that
rational basis review applies because the professors are not members of a
protected class nor does the alleged classification infringe a fundamental
constitutional right. See Hines v. Alldredge, 783 F.3d 197, 202 (5th Cir. 2015).
Under this standard, a legislative classification “must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.” FCC v. Beach Commc’ns,
Inc., 508 U.S. 307, 313 (1993). Parties attacking the presumption of validity
extended to legislative classifications “have the burden ‘to negative every
conceivable basis which might support it.’” Id. at 315 (citation omitted).
When applying rational basis doctrine to a dismissal for failure to state
a claim, a legislative classification must be treated as valid “if a court is able
to hypothesize a legitimate purpose to support the action.” Mahone, 836 F.2d
at 934. “[T]he task of hypothesizing necessarily renders less important the
actual reasons which the state may have had for making the challenged
classification.” Id. at 936. “[W]hen truth is not the issue, we can understand
how using discovery procedures to develop facts showing the state’s true reason
for its actions could be, for all practical purposes, both inefficient and
unnecessary.” Id. Accordingly, “in some cases it makes sense to use a motion
to dismiss as the vehicle through which to address the viability of the [equal
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protection] claim.” Id. This is especially true when “‘it takes but momentary
reflection’ to arrive at a purpose that is both legitimate beyond dispute and
rationally related to the state’s classification.” Id. (quoting Holt Civic Club v.
City of Tuscaloosa, 439 U.S. 60, 74 (1978)).
In her amended complaint, Glass alleges that “[t]here is no rational basis
for the division in the state’s policies between where concealed carry of
handguns is permitted and where it may be prohibited.” She does not
challenge Texas’s purported government interest: public safety and self-
defense. Instead, she argues that there is no rational basis for Texas to allow
private universities to ban concealed carry but not public universities. In
addition, she argues that there is no rational basis for the University to allow
concealed carry in classrooms while simultaneously prohibiting the practice in
other campus locations such as faculty offices, research laboratories, and
residence halls.
Texas argues that simple explanations provide the needed rational basis.
First, the Campus Carry Law distinguishes between public and private
universities in order to respect the property rights of private universities.
Second, public safety and self-defense cannot be achieved if concealed carry is
banned in classrooms because attending class is a core reason for students to
travel to campus. Texas argues that public safety and self-defense can still be
achieved if concealed carry is banned in less-frequented areas such as faculty
offices and research laboratories.
Glass ultimately fails to address Texas’s arguments concerning rational
basis. Instead she simply argues that the prohibited concealed-carry zones are
an “inexplicable hodge-podge.” She argues that a single sentence from our
precedent requires us to allow her claim to proceed to discovery to present the
evidence necessary to fulfil her burden. There, we stated that “although
rational basis review places no affirmative evidentiary burden on the
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government, plaintiffs may nonetheless negate a seemingly plausible basis for
the law by adducing evidence of irrationality.” St. Joseph Abbey v. Castille,
712 F.3d 215, 223 (5th Cir. 2013). We made that statement in response to a
state’s purported rational basis that rose to the level of “fantasy.” Id.
Louisiana enacted a law prohibiting the sale of caskets to anyone except
funeral directors. Id. at 226. The law was irrational: “Louisiana does not even
require a casket for burial, does not impose requirements for their construction
or design, does not require a casket to be sealed before burial, and does not
require funeral directors to have any special expertise in caskets.” Id.
Accordingly, the panel could not conceive of a single rational basis connecting
public health and the state law. Id.
The Supreme Court has held that when conceiving of hypothetical
rationales for a law, the assumptions underlying those rationales may be
erroneous so long as they are “arguable.” Beach Commc’ns, 508 U.S. at 320.
Here, Texas’s rationales are arguable at the very least. Glass fails to meet her
burden requiring that she “negative every conceivable basis which might
support” Texas’s purported rational basis. Id. at 315 (citation omitted).
AFFIRMED.
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