Board Of Regents Of University Of Texas System v. New Left Education Project/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

When I authored Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643, I thought I was writing a chapter on federalism within a State. Cities, counties, and the State as a whole constitute that federalism. The three-judge-court statute, 28 U.S.C. § 2281, speaks of 'the enforcement, operation or execution of any State statute.' A city ordinance or a county regulation does not meet that requirement, and so the county regulations involved in Moody did not satisfy the statute though enacted by the State. If the source of the authority is state action, the statute is presumably satisfied, since normally of course, state laws have an impact on activities in every city and every county. But where a state law is not of 'statewide concern' and involves only 'regislation affecting a locality' (Rorick v. Board of Commissioners, 307 U.S. 208, 213, 59 S.Ct. 808, 811, 83 L.Ed. 1242, then the policy of 28 U.S.C. § 2281 is deemed not served.

But a State's university system, involving, as does this one, 17 institutions, is plainly of 'state wide concern' even though not every county has a university.

In addition to its supervision of the University of Texas at Austin, Texas Rev.Civ.Stat.Ann., Art. 2584 et seq., and the other institutions included in the 17 that are in the state university system, the Board of Regents also oversees a number of other major institutions of higher education within Texas' university and college system: University of Texas at El Paso, id., Art. 2633, University of Texas at Arlington, id., Art. 2620a, University of Texas at San Antonio, id., Art. 2606c-3, University of Texas at Dallas, id., Art. 2606c-3.1, University of Texas of the Permian Basin, id., Art. 2606c-4, Institutes for Urban Studies in the Dallas-Ft. Worth area and in Houston, id., Art. 2606d, as well as other institutions of learning. E.g., id., Art. 2585d(3).

The matter involves more than state 'legislation affecting a locality': it concerns a university system with campuses scattered across the State, serving the educational needs of those from every city, from every county, who seek undergraduate or graduate education.

Since the case is properly here, I would reach the merits.