Honorable J. W. Edgar Opinion NO. c-631
Commissioner of Education
Texas Education Agency Re: Whether certain policies
Austin, Texas applicable to the creation
and perpetuation of school
sponsored departmental,
social and special interest
clubs by interested students
are valid when reviewed in
the light of Article 3Old,
Dear Dr. Edgar: V.P.C.
Your letter requesting an opinion of this office
reads in part as follows:
"A school district . . . has adopted
certain policies applicable to the creation
and perpetuation of school sponsored
departmental, social, and special interest
clubs by interested students. (Policies 4a
and 4b).
"They have been locally challenged as
being in violation of Article 301d Vernon's
Penal Statutes (prohibiting in public schools:
fraternity, sorority or secret society as de-
fined in that law) for the reason or on the
grounds that under such policies it is pO88ible
for the clubs to be perpetuated by the decision
of the membership, rather than by the free
choice of any pupil qualified by school rules
to fill the special aims of the organization(s).
"Attention is directed to the fact that
the clubs are sponsored by a faculty sponsor
the electlons are supervised, and any student
may submit his name for membership.
"This Agency has been requested by the
Board of Trustees,of such district to obtain
an opinion from the Office of Attorney General
as to the validity of the polity(8) when reviewed
in the light of Article sold, V.P.C."
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Hon. J. W. Edgar, page 2 (c-631)
Sections 1 and 2 of Article 301d, Vernon's Penal
Code, provide:
"Section 1. In all counties~of this ~
State, Public School Fraternities, Sororities,
and Secret Societies are hereby prohibited in
all the Public Schools of this State supported
in whole or in part from public funds, WInCh
schools are below the rank or grade of Colleges,
and including within said provisions all High
School8 and Junior High School8 and all Public
School8 of lower grades. The provisions of
this Act shall not apply to any University,
College or State Teachers College.
“Sec. 2. A Public School Fraternity,
Sorority, or Secret Society as used in this
Act is hereby defined to be any organization
composed wholly or in part of public school
pupils of public schools below the rank of
College or Junior College as herein provided,
which seeks to perpetuate itself by taking in
additional members from the pupils enrolled
in such school on the basis of the decision
of its membership rather than upon the free
choice of any pupil in the school who is
qualified by the rules ,of the 8chOOl to fill
the special aims of the organization."
(EmphSSi8 added).
Section 4 of Article 301d QrOVideS in part:
11 .Providing that the above restric-
tiOn8 ihall not be construed to apply to agencies
for Public Welfare, viz: Boy Scouts, Hi-Y Girl
Reserves, DeMolay, Rainbow Girls, Pan-American
Clubs, and Scholarship Societies, and other
kindred educational organizations sponsored
by the State or National education authorities."
The policies number 4a and 4b in question here
provide as fOllOwS:
“4. Departmental, social, and special
interest clubs
"Club members shall be selected according
to the following plan:
-3063-
Hon. J. W. Edgar, page 3 (c-631)
"a. Application for membership
"A student desiring to become a member of
a departmental, social, or special interest
club may apply to the faculty sponsor of the
club for membership or may have his name pre-
sented by a student who is already a member
of the club. The sponsor shall consider all
names presented in either manner.
"b . Election of members
"Before member8 are elected to membership
in a club, the sponsor shall determine and
report to the principal the number of member8
to be elected. The principal shall then set
a day for the election of club members. Prior
to such election, the sponsor shall have arranged
in alphabetical order, in the form of a ballot,
the name8 of all applicants who meet the require-
ments for membership in the club. On the day
designated for the elections, the members of
each club shall assemble and vote for the new
members, each one being allowed to vote for as
many members on the ballot as there are members
to be elected. All balloting shall be secret,
and there shall be no remarks or speeches of
any nature concerning the candidates. Ballot8
shall be tabulated under the direction of the
club sponsor. The number of students receiving
the highest number of votes shall be declared
elected and so notified in writing by the club
secretary. In ca8e the balloting results in a
tie vote all names involved in the tie shall
be declared elected. Prospective members shall
not be brought before clubs for inspection or
approval prior to election." (Emphasis added).
Of basic importance to the question presented is
the undisputed fact that the organization or club in question
is a public school sponsored departmental, sooial, and special
interest club. The Legislature has power to control and manage
the public school system and its organic detail8 of operation.
Marrs v. Matthews, 273 S.W. 586 (Tex.Civ.App. 1925, error ref.);
51 Tex.Jur.2d 319, fl2. Included within the power granted to
control and manage the public school system 18 the power to
control organization8 declared inimical to the public good when
sponsored by a public school.
-3064-
Hon. J. W. Edgar, page 4 (c-631)
It is our OpiniOn that the public school 8pOn8Ored
clubs in question are in violation of Article 30ld of Vernon's
Penal Code. In c,learand unambiguOu8 language, Section 2 of
Article 301d QrOhibit8 those public school clubs which seek to
perpetuate their existence by taking in additional member8
from public school pupils on the basis of the decision of
its membership. Clearly, that portion of Policy 4b a8 quoted
above violates Article 301d as it states that on the day
designated for the elections the,members of each club shall
assemble and vote for the ne$ members.
Under the fact8 a8 presented, it is our opinion
that the public school clubs in question are not within those
organization8 permitted in Section 4 of Article 301d as ex-
ceptions to Section 2. Those organization8 are the only agencies
entitled to be free of the restrictions of Section 2. Atty.
Gen. Op. WW-1309. Despite certain 8ChOla8tic requirement8 for
membership eligibility for the clubs in question. these
requirement8 are Insufficient to gain Section 4 exemption.
SUMMARY
The public school sponsored clubs in question
which perpetuate their membership on the basis of
the decision of their own members are prohibited by
Section 2 of Article 3016, Vernon's Penal Code.
Under the facts presented, the clubs in question
do not qualify as exceptions in Section 4 of
Article 301d. Atty. Gen. Op. WW-1309.
Very truly yours,
WAGGONER CARR
Attorney General
-v
Gordon Houser
Assistant
GH:mkh:ml
. -
Hon. J. W. Edgar, page 5 (c-631)
APPROVED:
OPINION COMMITTEE
w. 0. Shultz, Chairman
Pat Bailey
Howard Fender
Ralph Rash
Paul Phy
APPROVED FOR THE ATTORNEX GENERAL
By: T. B. Wright
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