AUSTIN, Texas (CN) - A Texas appeals court affirmed a ruling that the Sons of Confederate Veterans lack standing to stop the University of Texas at Austin from moving a statue of Jefferson Davis from one place to another on campus.
Appellants Gary David Bray and the Texas Division of the Sons of Confederate Veterans filed for a temporary restraining order against UT President Gregory Fenves in August 2015 in Travis County Court. The university moved the statue of the president of the Confederacy from the main mall of the campus to the Dolph Briscoe Center for American History, also on the UT-Austin campus, as part of a new educational exhibit.
A statue of Woodrow Wilson also was moved, to maintain symmetry in the mall, and relocated on campus.
The justices note that the controversy over the statue has been "more or less continuous" since 1989, with people inside and outside the university community wanting it removed. It reached its peak in the spring of 2015 when newly elected UT student government leaders Xavier Rotnofsky and Rohit Mandalapu started a social media campaign to move the Jefferson Davis statue, because of the Confederacy's defense of slavery.
The controversy resulted in the Davis statue being vandalized three times from March to June 2015, along with other statues.
Fenves then convened a task force to decide the fate of the Davis statue. After receiving input from UT alumni, students and faculty members, the task force decided on Aug. 13, 2015 to move the statue to the Briscoe Center, where Davis's role could be explained in its historical context.
That prompted the lawsuit.
Bray, who heads the Texas Division of the Sons of Confederate Veterans, said the statues of Davis and Wilson were a gift from Confederate veteran Maj. George Washington Littlefield, who founded a trust to erect six statues and a fountain in the main mall of the UT campus. Littlefield's will instructed that the statues be given prominence and be in view of the students and public.
Bray claimed that Fenves violated a section of the Texas Government Code regarding monuments and memorials "by unilaterally deciding to relocate the Jefferson Davis and Woodrow Wilson statues without prior approval from the legislature, the Texas Historical Commission, or the State Preservation Board."
Fenves replied that Bray, the Sons of Confederate Veterans and David Steven Littlefield, who joined as a plaintiff in an amended complaint, lacked standing because they failed to plead a particularized injury that was different from any injury sustained by the public at large. He also said that no facts were alleged that would give the Sons of Confederate Veterans associational standing, and that they did not have standing to enforce a charitable trust.
A Travis County judge denied Bray's request for an injunction and granted Fenves' plea to the jurisdiction. Bray appealed to the Third Court of Appeals in Austin, then the case was transferred to the Sixth Appellate District of Texas at Texarkana.
The Sixth Appellate District rejected the appeal on Thursday.
Writing for the unanimous panel of three, Judge Ralph Burgess said there was no reason to address the plaintiffs' "fervent belief that the University of Texas at Austin (the University), as a result of a decision by its president, was trying to both escape its history and dishonor the legacies of a Confederate figure and the major benefactor who endowed a monument to his leadership. In this appeal, we do not reach the merits of their arguments, and we express no opinion on the justness of their cause. Instead, our disposition turns on the narrower, and much less passionate, question of whether the Appellants have standing to litigate that argument. Because we conclude that they do not, we affirm the trial court's judgment granting the University's plea to the jurisdiction."
In addition to failing to prove "that they have suffered a particularized injury distinct from the general public," the appellants did not persuade the court that the university is permanently bound by the terms of George Littlefield's will; in fact, the court noted, the will did not expressly require that the statues be in the main mall.
"(A)t least in regard to improvements placed on the original forty-acre tract, the University's Board of Regents lacked the authority to accept gifts with conditions that would prevent it, or a future board, from making such changes to the improvements, including their removal, as it may determine to be 'wise and expedient,'" Burgess wrote.
"Therefore, even if Littlefield had intended that the Davis statue permanently remain on the main mall, as the Appellants contend, this would not be a condition binding on either the board of regents that accepted the gift or subsequent boards."
The court also rejected appellants' claim that Fenves acted outside his authority in bypassing UT's Vice Chancellor and Office of Development and Gift Planning Services when he removed the statues. "The Appellants lack standing to complain of these alleged violations of the University's Board of Regents' rules," the court ruled.
Nor did the appellants prove they had taxpayer standing to sue the university to enjoin an illegal expenditure of public funds.
Finally, the court found, the Sons of Confederate Veterans cannot claim to have associational standing to sue on behalf of its members because Bray does not have individual standing to sue in his own right.
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