Honorable H. C. Heldenfels OpiniOn NO. C-525

President of the Board The Texas A & M University System Re: Coeducationalstatus of College Station,Texas Texas A & M University.
Dear Mr. Heldenfels:

Your request for an opinion of this office concerns the policy of the Board of~'Directors of the Texas A & M University System in allowingwives and daughters of staffmember8,and students and widows and daughters of deceased staff members to enter the undergraduateday school. You seek interpretation in the light of the Federal Civil RightsAct of 1964 and in the light of the equal rights (equalprotection)provisions of the State and Federal Constitutions.

Title IV of the Civil Rights Act of 1964 pertains to desegregation of public education. Section 410 provides:

"Nothing in this title shallprohibit classificationand assignment for reasons other than race, color, religion, OPnational origini" Although theprivilege of admlsslon to a publicly supported Institution is a clvll right, in view of the expressprovisions above quoted,you are advised that the Civil Right8 Act of 1964 does not requireTexas A & M University to admit female students.

In order to ascertainyour con8titutlonalposition we must first determine the status of the rule adopted by the Board of Directors. In Foley v. Benedict, 122 Tex. 193, 55 S.W.26 805 (1932), speaking of thepower8 of the Board of Regent8 of the University of Texas, the Supreme Court of Texas stated:II Since the board 'ofregents exercises'delegatedpowers, its rule8 are of the 8ame force a8 would be a like enactment of the Legl8lature, and its official interpretation placed upon the rule so enacted -2468-. .

Honorable H. C. Heldenfels,page 2 (C-525)

becomes a part of the rule. West Texas Compress & Warehouse Co. v. R. Co. (Tex.Com. App.) 15 S.W.(2d) 558,560.” This case goes on to provide:

The Legislatureof this state not having Providedwho shall be admitted to the University, and having delegated thepower to make rules and regulationsnecessary to the government of the University, to the board of regents, they are investedwith thepower of determiningwhat classes of persons shall be admitted to the University,provided that the rules and regulation8in that regardmust be reasonableand,

not arbitrary.

. . So the courts are usually dialnclined to interferewith regulations adopted by schoolboards and theywill not considerwhether the regulationsare wise or expedient,but merely whether they are a reasonable exercise of power and discretion of the board.

. . .'I(Emphasisadded.)
Next we must determine the class to whom the rules apPlY. Foley v. Benedict, ibid, states:

"A studentwho is admitted to theUniversity receives theprivilege of attending that institution subject to the reasonable rules and regulationspromulgatedb th board of regent8 existing at the tige 0: his entrance into the school. The educational facilities of state-supportedinstltutlons of higher learningare at the disposal of the average student engaged in a particular field of study, and a standard of excellencewhich the average student in a particular field of etudy is able to satisfy is not an unreasonable regulation.

.

. .' (Emphasisadded.) Hence we see that the right to attend a school attaches to the student and any classificationestablishedmust be based upon the qualificationof the student and not someperson to whom the studentmay be related by affinity or consanguinity.

The authority of the Board of Director8 to exclude female student8 from TeXa8 A & M University is governed by

-246%Honorable H. C. Heldenfels, Page 

### 3 (C-525)

the principles of law announced In Heaton v. Bristol, 

### 317S. W.2d 

### 86 (Tex.Clv.App.1958, error ref.) cert.den.,app.dism., 79 S.Ct. 802, 359U.S. 230, reh.den. 

### 70 S.Ct. 1123, 359 U.S. 999, and Allred v. Heaton, 

### 336S.W.2d 251 (Tex.Civ.App., error ref., n.r.e.) cert.dism.,app.den. 

### 81 S.Ct. 293, 364 U.S. 517, reh.den. 

### 81 S.Ct. 459, 

### 364U.S. 944. It is clear that the Board of Directors of the Texas A & M University has the right, at any time, to cause the studentbody at the University to be either allmale or fully coeducational.

The present policy of the Board of exclusion of student applicants for the sole reason that said applicants are not wives or daughters ofaff members or students,OPwidows or daughters of deceased staffmembers, is, in our opinion, discriminatoryand an unreasonable class distinction. There may be other facts and reason8 for the limited class dlstinction that have not been called to our attention.

In undertaking to determinewhether or not the Board of Directors ha8 the authority to establish a limited classification of femaleswho shall be eligible to axtend Texas A & M University, It would be necessary to have a factdetermination on which to base the underlying rules for such classlflcatlon. This is a functionwhich can onlybe performed in a court of law. The Attorney General'8 officedoes not have available to it anymethod of fact determination. (See attached copy of Opinion Request Procedure for State Officers, Agencies,Boards and Departments.) We can, therefore, only furnish you with the guiding principles of law upon the ba8iS of which you may make the initial fact finding.

The policy of admitting female student8 on a competitive ba8iS to the graduate school or to coursesnot offered in any other state-supported Institution (suchas veterinarymedicine) in no way affects the principles enunciated in this opinion.
In view of the recent decision of the Supreme Court of Texas In Texas State Board of Examiners in Optometry v. i?iP 388 s*w*2d 4oy (lY b5), an applicant for admlsslon to e Texas A & M Universitywho Is denied admissionby virtue 

### of an order of the Board of Directorsha8 the burden of showing that the administrativeorderdoes not have reasonable support In substantialevidence.

Article 1, Section 

### 3 of the Texas Constitutionprovides: -2470-Honorable H. C. Heldenfels,Page 4 

### (C-525)

"All freemen, when they form a social compact,have equal rights, and no man, or set ofmen, is entitled to exclusive separatepublic emoluments,or privileges,but in considerationof public services.” Article 1, Section 19, says: "No citizen of this State shallbe deprived of life, liberty,property,privilege8 or immunities,or in anymanner disfranchised, except by the due course of the law of the land;" - Speaking of the Issues a statute in the light of these Court of this Stateha8 8aid:

"We recognize that the test is whether of constitutionalvalidity of twoprovisions, the Supreme

there 18 any basis for the cla8slfication which couldhave seemed reasonable to the Leglelature.

. .Beforewe may strlke,ltdown itmust appear that there Is no reasonable relationshipbetween the classes created and the Dulpoaes to be accomDlishedor the evils to be prevented." San AntonioRetail Qrocers v. Lafferty, 

### 156Tex. 

### fzi14 917 5'16?FJ?s W ?.?d 613, 1515-816(1957): ' - ' ' ' The constitutionalpurpose of Texas A & is set forth in the first sentence of Article 7, the Texas Constitution: M University Section 13 of

"The Agriculturaland Mechanical College of Texas, establishedby an Act of the Leglslaturepassed April 17th, 1871, located in the county of Brazos, is herebymade, and constituteda Branch of the University of Texas, for instruction In Agriculture,the Mechanic Arts, and the Natural Sciences connected therewith.

. . .'I The Legislaturehas defined this constitutionalobject by the enactmentof Article 2608,Vernon's Civil Statutes,which read8 as fOllOW8: “The leading object of this College shall

be without excluding other scientificand

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Honorable H. C. Heldenfels, Page 5 (C-525)

classical studies,and Includingmilitary tactics, to,,teach such branches of learning as are related toagriculture and themechanical arts, in suchmanner as the legislaturemay prescribe, in order topromote the liberal and practical educationof the industrial classes in the severalpursuit8 and professions in life.”
In Linen Service Corporationv. Abllene, 169 S.W.2d 497 (Tex.Civ.App.1943, error ref.),the courtneld void a city ordinance imposing a license fee on suppliers of linen service if the washing was done outside the city limits, saying:

“A linen service company, even though a resident of Abilene, if it has Its laundering, washing or cleaningdones outaide said city. :, maynot, unless it takes out a license, deliver Its laundered,washed or cleaned linens, towels, cloths 

### or clothes for use in said city; ,therebydiscriminatingagainst It in favor of persons, firms or corporationsengaged In the same business and differing only In the fact that they have their linens, towels, cloths, or **clothes** laundered,washed or cleaned indde said city. “CorpusJurls Secundumunder the head of tDlscrlminationBased on Residenceor Citizenship’ and not exactly apropos to that subject, butnone the less true, say8 that ‘Attempts to distinguish betweenpersons engaged in the same businessmerely on the basis of the locatfon of their businesshouses: is generally held unconstitutionalas a denial of the equal p~rotection

of the laws; and this rule applies even where the discriminationoperated,only within the limits of a municipality.” 169 S, W.&i at 500. The same sort of vice has been recognizedand struck down by **the** Court of CriminalAppeals.

In Ex parte Dreibelbis, 133 Tex.Crlm. 83, 109 S.W.2d 476, 497 (193) the Court of CriminalAppeals, in holding invalid~ a kicensihg ordinance imposing a license fee on a”temporarymerchant” but exempting those in business in the city for a year OFmore, said:

**-2472-**Honorable H. C. Heldenfels,page 

### 6 (C-525)

“That ,theordinance in question lsdlscrlmlnatory Is clearlydemonstratedby the fact that a person who has been engaged in one of the designatedbusinesses In said city for a year or more Is exempt from the,payment of the tax,while anotherperson who has been so engaged for such length of time 1s subject to the payment of the tax, and, for his failure to do 80,punishableby fine, althoughboth partiesmay be engaged in the samekind of business, carrying the aame kind and the same amount of merchandise. If this Is not dlscrlminatlon, thenwhat Is It." The question of whether or not a student can acquire a derivative legal right by reason ofparentage or marriage Is disposed of by the following statement In 12 Tex.Jur. 

### 453, ConstitutionalLaw, Sec. 103:

"Inprohibiting exclusive separatepublic emolument8 or privileges except in consideration of public services the constitutiondeclares the principle of equality inpolitical rights and a denial of title to individualprivileges,honors, and distinctions except for public services.The provision is directed against superiorityof personal andpolitical rights, distinctionsof rank, birth, or station;and all claims of emoluments by anyman or Set ofmen over any other citizen. It declaree that honors, emoluments, and privileges of a personal and political character are alike free and open to all the citizens of the state." Ordinarily there is a presumption of constitutionality when an attack Is made upon a statute,but the right in question here, i.e., the right to attend a state-supportedInstitution of higher education, 18 a civil right (althoughnot covered specificallyby the Civil Right8 Act of 1964),. The Supreme Court of the United State8ha8 said:

"There is no presumption in favor of the con8titutlonalltyof any regulation involving civil rights." Schneider v. State of New Jersey, 

### 308U.S.m-(rV59). Perhaps the best expositionof the lnabil$ty to create arbitrary class legislationis contained In Ex parte Smythe, 

### 28

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Honorable H. C. Heldenfels,page 7 (C-525)

S.W.2d 161 (Tex.Crlm.1930),where the right of the City of Marshall questionwas raised as to person-engaged in the bUSine88 of from transacting any part of that that city. The Courtpointed out lecthis bill on the city street8 no mention of a past due note. tomake it unlawful for a lending and collectingmoney, business on the streets of that the grocer could colwhile the bankermlght make

In view of the foregoing, there is a serious legal quastion as to whether or not, on a trial in court,we could successfullydefend an attack upon thepresent classification establishedby the Board of Directors for admission of female students as being a reasonable classification. We would like to point,out, however, that even if this cla88lflcatlonwere SUCCessfUlIyattacked in court the Board of Directorswould stillhave full authority tomake Texas A & M University either all,male or completely coeducstlonalwithoutany prejudice to such a,uthority

having arisen from thepresent system of limited cla8slflcation.
SUMMARY

1; The Civil Rights Act of 1964 Is not applicable to rules and regulationsof Texas A & **M**University Insofar a8 discrimination by sex is concerned. 24 The Board of Directors of Texas A & M Unlversityha8 the unquestioned right to Issue rules and regulationsmaking the University either all male students or all coeducatlonal.’ 3. The present policy of the Board of exclusion of student applicant8 for the sole reason that said applicant8 are not wm or daughters of staffmembers or students, or widows or daughters of deceased staffmembera, is, In our opinion, discriminatoryand an unreasonable class distinction.

Yours very truly, WAGGONER CARR AttorneyGeneral of Texas

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Assistant Attorney General

APPROVED: OPINION COMI!lTEE
W. V. Geppert, Chairman Sam Kelley James Strook Vlnce Taylqr Jerry B-rock
APPROVED FORTHE ATTORN?ZYGENERAL B9: T, B. Wright

-2475-. Honorable H. C. Heldenfels, page 9 (C-525) Austin, Texas January 28, 1963
OPINION REQUEST PROCEDURE
To District and County Attorneys and County Auditors of Texas:
This memorandum details the opinion request procedure of the Attorney General’s Office, and it is distributed to facilitate a mutual understanding between the Attorney General and those officers entitled to secure his opinions.
1. County Auditors opinion requests should be submitted to the County

**or** District Attorney in accordance With the provisions of Article 334 of Vernon’s Civil Statutes. If the County or District Attorney fails or refuses to answer the Auditor’s request, or if the County Auditor, County Judge or any officer affected by the opinion disagrees with the County or District Attor**ney ’** **s** opinion, or believes that it is in conflict with former opinions of the Attorney General’s Office, then this department will accept an opinion request direct from the County Auditor.
2. County and District Attorneys and Criminal District Attorneys should request opinions in accordance with Article 4399 of Vernon’s Civil Statutes. The request should give a complete statement of facts rather than a hypothetical question, and the County or District Attorney should not submit the request if the same is involved in either civil or criminal litigation. Further, the officer requesting the opinion should file a complete brief with his request, giving the conclusions of the briefer and the reasons which support his views. If the County or District Attorney briefs the questions very carefully at the local level, he will resolve a multitude of problems without calling on this office for aid and assistance. However, if his opinion does not settle the question, then his brief will be of invaluable assistance to the Attorney General and the members of his staff.
3. Regardless of whether the opinion request is submitted by the County Attorney, District Attorney, Criminal District Attorney or County Auditor, it must clearly appear that the requester has an official interest in the subject matter involved and that the official or officials are not just asking the question for their own information and enlightenment. Questions involving cities OP independent school districts and the like should not be submitted unless they concern a subject covered by the jurisdiction and duties of the office of the official submitting the question.
This practice will enable our office **to** render quicker and better service on legitimate requests for opinions, and your full and complete cooperation will be greatly appreciated.

-2476- General of Texas