United States District Court, W.D. Texas, Austin Division
DAVID MCMAHON, STEVEN LITTLEFIELD, AND THE TEXAS DIVISION, SONS OF CONFEDERATE VETERANS, INC., PLAINTIFFS,
GREGORY L. FENVES, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF TEXAS AT AUSTIN, DEFENDANT.
MEMORANDUM OPINION AND ORDER
YEAKEL UNITED STATES DISTRICT JUDGE.
the court are Defendant's Motion to Dismiss filed
November 20, 2017 (Dkt. No. 12), Plaintiffs' Response to
Defendant's Motion to Dismiss filed December 4, 2017
(Dkt. No. 13), and Defendant's Reply in Support of Motion
to Dismiss filed December 11, 2017 (Dkt. No. 14). Having
carefully considered the briefing, applicable law, and the
entire case file, the court will grant the motion to dismiss
for the reasons that follow.
Littlefield was an early and prominent benefactor to the
University of Texas ("the University"). He served
in Terry's Texas Rangers during the Civil War and
believed that Confederate history should be preserved and
celebrated so that "future generations would remember
those grand patriots who gave up their lives for the cause of
liberty and self-government." To that end, he
commissioned a sculptor to create statues of Jefferson Davis,
Robert E. Lee, Albert Sidney Johnston, John Reagan, James
Hogg, and President Woodrow Wilson "during a period of
resurgent white Southern nostalgia for the social order of
the old South embodied by the Confederacy." 
Littlefield's will provided a bequest to the University
to establish the Littlefield Fund for Southern History and
another fund to erect the commissioned statues "in
places of prominence" on campus. The statues were
installed along the main mall of the University's Austin,
Texas campus in the 1930s.
2015, University President Gregory L. Fenves
("Fenves") formed a taskforce with students,
faculty, and alumni "to study the artistic, social,
political intent, and historical context" of the
statues, to "review the past and present controversies
over the statues," and to "develop alternatives
for the for the relocation of the statues." The
taskforce suggested several solutions, including relocating
the statues to the Briscoe Center for American History to be
displayed in full historical context with one of the largest
collections of resources on American slavery in the country
as well as in full artistic context alongside the papers of
Littlefield and the sculptor of the statues. After a white
supremacist shot and killed nine individuals at a church in
Charleston, South Carolina, Fenves accepted the
recommendation of the task force and announced his decision
to move the Jefferson Davis and Woodrow Wilson statues. David
Bray and Texas Division of the Sons of Confederate Veterans
filed suit in state court the next day seeking a permanent
injunction to prevent Fenves from removing the statues. The
suit was based on state-law claims similar to those brought
by the current plaintiffs. The state court denied the motion
for an injunction on the basis that the plaintiffs did not
have standing to bring the claims. The Texas Sixth Court of
Appeals affirmed. See Bray v. Fenves, No.
06-15-75-CV, 2016 WL 3083539 (Tex. App.-Texarkana 2016, pet.
denied). The Wilson and Davis statues were subsequently
removed, but the other Confederate statues remained on the
2017, Fenves caused the removal of the Robert E. Lee, Albert
Sidney Johnston, John Reagan, and James Hogg statues from the
main mall, after a neo-Nazi killed a young woman who was
counter-protesting a white-supremacist demonstration in
Charlottesville, Virginia. Fenves determined that
"Confederate monuments have become symbols of modem
white supremacy and neo-Nazism." 
David McMahon, Steven Littlefield, and Texas Division, Sons
of Confederate Veterans, Inc.  filed this suit against Fenves on
August 23, 2017. McMahon filed his First Amended Complaint,
Application for Injunctive Relief, & Motion for
Declaratory Judgment on September 20, 2017 (Dkt. No.
7).  The parties agreed that the
University would maintain the status quo until the
court ruled on the motion to dismiss.
and Littlefield are both descendants of Confederate veterans,
and Littlefield is a descendant of George Littlefield.
McMahon claims that the University's removal of the
statues and impending obscuration of the plinths of the
statues violates his right to free speech under the First
Amendment. In "abridging the political speech of the
monument," McMahon claims that the University abridged
his own right to hold a dissenting political viewpoint.
Texas Division, Sons of Confederate Veterans (the
"Sons") seek to "protect the memory of our
beloved Confederate Veterans," including
"memorials, images, symbols, monuments and
gravesites." The Sons also claim a First Amendment
injury on behalf of its members because its members
"dissenting political viewpoint  was communicated by
the Littlefield statues."
the supplemental jurisdiction of this court, McMahon brings
several additional state-law claims, including breach of the
bequest agreement between Littlefield and the University,
violation of Texas Government Code Section 2166.501 and
.5011, and violation of the Board of Regents' authority
over the University campus. Fenves moved to dismiss for lack
of standing and for failure to state a claim.
judicial power may be invoked to adjudicate a disagreement
between litigants only if the party bringing suit has
standing to bring its claims. Article III of the Constitution
limits the exercise of the judicial power to the
"resolution of 'cases' and
'controversies.'" Valley Forge Christian
Coll. v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 471 (1982). Standing to bring
suit is an "essential and unchanging part of the
case-or-controversy requirement." Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). Standing
"limits the category of litigants empowered to maintain
a lawsuit in federal court to seek redress for a legal
wrong," Spokeo, Inc. v. Robins, ___ U.S. ___,
136 S.Ct. 1540, 1547 (2016), as revised (May 24,
2016), in order to ensure that the judicial power is invoked
only to "redress or prevent actual or imminently
threatened injury" particular to the plaintiff
Summers v. Earth Island Inst., 555 U.S. 488, 492
elements of standing are familiar: a plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.
See Lujan, 504 U.S. at 560-61. The plaintiff bears
the burden of establishing each of these elements "with
the manner and degree of evidence required at the successive
stages of the litigation." Id. at 561. At the
motion-to-dismiss stage "the plaintiff must clearly
allege facts demonstrating each element."
Spokeo, 136 S.Ct. at 1547 (internal punctuation and
citation omitted). The court may not "create its own
jurisdiction by embellishing otherwise deficient allegations
of standing." Whitmore v. Arkansas, 495 U.S.
demonstrate an injury in fact, a plaintiff must show
"'an invasion of a legally protected interest'
that is 'concrete and particularized' and 'actual
or imminent, not conjectural or hypothetical.'"
Spokeo, 136 S.Ct. at 1548 (citing Lujan,
504 U.S. at 560). A particularized injury "must affect
the plaintiff in a personal and individual way."
Id. Unlike when one is challenging the legality of
an action taken directly against the plaintiff, when "a
plaintiffs asserted injury arises from the government's