(dissenting).
I respectfully dissent. In order to decide the issue in this case, it is entirely unnecessary to place further limitations upon the holding in Crouch v. Craik, 369 S.W.2d 311 (Tex.Sup.1963) and Ex Parte Sterling, 122 Tex. 108, 53 S.W.2d 294 (1963). I agree that, this being a declaratory judgment suit, courts of equity have jurisdiction to pass upon the validity of the statute involved. This is not a case where prosecutions under the provisions of Article 301d, a criminal statute, are involved. It is a case, however, wherein this Court should promptly determine whether or not the application of the statute and rule adopted by the school board constitutes an unwarranted interference with the constitutionally protected right of free and private association by the members of the clubs in accordance with the constitution and by-laws governing such clubs. The paramount question involved can be finally determined by this Court on the basis of the facts introduced at the hearing held in the District Court of Tarrant County, Texas, on June 22, 1967. The school district admitted that the evidence it offered was all of the evidence it could produce, except that which would be “merely cumulative of this same subject * * *, so we offer this only to show it does affect the school program, so we rest.”
The facts are these. It was stipulated that all clubs involved were of the same general nature, charity clubs. The constitution of each club was introduced in evidence. The Inter-Club Council, which governs all clubs involved, as each club is a member, states in its constitution its purpose to be: “The purpose of this Council shall be to promote friendship among the Charity Clubs of boys and girls of high school age.”
The constitution further provides in section 1 that “the membership of this Council shall be well-established charity clubs of boys and girls of high school age.” It is provided in section 2 that “clubs wishing admittance shall submit a written petition to the membership committee and shall fulfill certain other requirements.”
*66In regard to meeting places, the constitution provides, as follows:
“ARTICLE VIII — SPECIAL ' RESTRICTIONS
Section 1. No meetings or functions of either the Inter-Club Council or any member club shall be conducted during public school hours or on public school property or premises.
Section 2. No member or provisional member of any member club shall be required or permitted to engage in any club activities during public school hours or on public school premises.
Section 3. No member or provisional member of any member club shall be subjected to any requirements which would necessitate neglect of school duties.
Section 4. Partiality to individual clubs shall not enter into school politics.
Section 5. No club in I.C.C. shall have pledge activities on any public school grounds or at any public school sponsored activities. A fine of $100.00 may be charged to any club violating this rule.”
The constitutions of the member clubs are also in evidence. Generally, the object of the clubs is stated to be to contribute to local charitable institutions through proceeds from various non-professional entertainments and to promote loyalty, congeniality, lofty ideals and character among high school students, girls and boys. One of the clubs has for its purpose “to promote brotherhood, social activities and charity.” These member clubs’ constitution provided for regular meetings and special meetings, but nothing is contained in any of the constitutions which even indicates that the meetings were to be held at any place on the school campuses. In fact, the testimony shows that all meetings were held at places not under the control of the school district and at times not in conflict with school hours. The evidence shows that the parents of the minors involved were required to execute a Supplemental Enrollment Form certifying that their children, otherwise eligible to reenter the public schools in the fall of 1967, were not members of clubs falling within the definition of Article 301d, Texas Penal Code, and that the children would not in the future participate in the activities of such clubs. The refusal of the parents to comply precipitated this declaratory judgment suit. There is no hint in the evidence that the “Charity Clubs” in question are charged with subversive or any other improper activity, except the selection of-members contrary to rules promulgated by the school districts based upon Article 301d of the .Penal Code. On the other hand, the evidence shows that certain clubs have raised as much as $2,500.00, $3,000.00, $3,-800.00, for such organizations as the Mental Health Association, the Child Study Center and the Fort Worth Childrens’ Hospital.
The school district, through their counsel, stated in open court that “I don’t think there is any argument that the School Board proposes to enforce its’ rule and proposes to keep parties who are members of the type of organizations to which the plaintiffs join from entering school in 1967.”
The school district introduced the testimony of two football coaches, who testified in regard to the activities of the clubs in relation to athletic activities. Coach Ludi-ker testified that about five or six years before June 22, 1967, the athletic department adopted a rule prohibiting members of these clubs from participating in athletics. His reasons for adopting the rule were that he observed some of them “doing ring around the rosy and taking ROTC hats of those who pledge and carrying lunch trays and all of this business, and to me that is not the making of good athletes, and the reports come in of some of our boys attending some of these parties that were drinking.”
Ludiker also testified that besides doing ring around the rosy, carrying lunch trays and taking ROTC hats, names of the clubs were plastered on furniture in the school. *67He said that the school had not promulgated a rule to stop playing “ring around the rosy” on the campus; they are not supposed to pledge in the lunch rooms and that the rule against pledging in the lunch rooms was being followed by the members of the clubs. Then he was asked: what about the problem with ROTC caps? Has that been remedied ? He answered: “That has been solved as far as I know.” He further testified that unity had prevailed since the rule separating the clubs from athletics, even though the clubs were still in existence.
Ludiker further testified: “Athletics is open to any one that wants to participate, but we felt like if they carried on with some of the activities that they carried on with we would not have the unity of being a good athletic team for Arlington Heights.” Ludiker testified that the entire athletic program at Arlington Heights was conducted under the rule that all boys belonging to these Intercouncil Clubs were barred from playing on the athletic teams. He testified on cross-examination that he had had no problems with the clubs since the adoption of the rule.
Mr. James Cox, a coach with the Fort Worth public school system, the respondent here, testified that he was a biology and physical education teacher in the Paschal High School; he had been an assistant coach since 1960 and the head track coach since 1961; he had been recently elevated to head coach and athletic director of the new Southwest High School. He testified that the clubs, to his knowledge, did not exist, so far as Paschal was concerned, “until about three years ago.” Cox was of the opinion that “football probably carries the High Schools, and this is what I am more or less interested in, but our athletic program in the past two years has not been as good as it had been prior to that. Now I feel this because since this time, in the three years, since these clubs have really gotten organized and have been established at the school that they have destroyed what we had at Paschal for the first five years I was there team unity.” Cox testified that he had seen students, members of the clubs and athletes, carrying petitions (no actual knowledge of contents) and on one occasion he saw some “paddles” used by boys initiating club members, but that this incident occurred after school “right down at the end of the parking lot on the school premises.” The witness declined to give the names of the boys involved, but stated that they were athletes as well as members of the clubs. All of these incidents brought about the adoption of a rule prohibiting members of the secret clubs from participating in any form of athletics at Paschal High School. “We, just this past spring, the past school semester, the coaches got together and we decided that anybody who was a member of one of the clubs would not participate in athletic programs at Paschal High School.” He testified further that the rule would be enforced at the new school at Southwest. Although Cox says that these clubs “have been established at the school”, there is not one scintilla of evidence that these clubs are “at the school” in the sense that they are “in” the schools and conduct their meetings and other activities in the schools or on the campuses of the schools.
The Legislature, in adopting Article 301 d, intended to regulate only organizations which are “in” the public school system by reason of sponsorship or support. See Gibson v. Florida Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963). I cannot agree with the school district’s contention that the statute is to be interpreted as prohibiting membership in any organization within the definition of Section 2 of the statute regardless of the fact that these clubs meet entirely off school premises and during hours when school is not in session. The charity clubs here involved are not in the public schools, and if the statute should be intended to apply to these clubs which are outside of the schools, then it is unconstitutional. There is nothing in this record to authorize the school board to suspend the members of *68these dubs and deprive them of the protection in their right of freedom of association, their vested property rights and the right to an education, afforded them by Article VII of the Texas Constitution and Article 2902, Vernon’s Annotated Civil Statutes. Furthermore, Article 301d, if interpreted as the school district desires, is invalid as an unreasonable restriction of the club members’ right to freedom of association guaranteed by the First and Fourteenth Amendments to the United States Constitution. In my opinion, the statute is unconstitutional not only because of deprivation of freedom of association, but also because of discrimination in favor of those clubs or organizations specifically exempted, such as De Molay, Rainbow Girls, Boy Scouts, Hi-Y, Girl Reserves, and other like educational organizations.
As was said by the Court in Buchanan v. Warley, 245 U.S. 60, 74, 38 S.Ct. 16, 18, 62 L.Ed. 149, 160, “ * * * the police power, broad as it is, cannot justify the passage of a law or ordinance which runs counter to the limitations of the federal Constitution”, and I will add the Texas Constitution. Granted that the few acts attributed to the minor petitioners in this case may be the subject of distraction and subject to regulation, I cannot conceive of any justification for a requirement that these clubs be disbanded or that the children be suspended from the school of their choice. See Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). There can be no question but that under a proper state of facts, the school board has the power and authority to suspend students for “incorrigible conduct” under Article 2904 or to expel them for violation of Article 301d, supra, but there can be no authority for the arbitrary refusal of admission to students whose parents will not sign the certificate quoted in the Court’s opinion. See Gilmore v. James, 274 F.Supp. 75 (D.C.Tex.) aff’d 389 U.S. 572, 88 S.Ct. 695, 19 L.Ed.2d 783, reh. den. 390 U.S. 975, 88 S.Ct. 1027, 19 L.Ed.2d 1195 (1968).
Since the record has been fully developed, this Court should reverse the judgments of the lower courts and render judgment declaring unconstitutional Article 30Id. If the Court adheres to its present views, then the District Court should be instructed to grant a temporary injunction to preserve the status quo. The status quo is the right of the minor students involved and those of the same class to continue their education pending final disposition of this case. I think the failure of the trial Gourt to -grant a temporary injunction would constitute an abuse of discretion.