The Dismissal Opinion
On January 14, 2016, Judge McBryde issued his Final Judgment and Memorandum Opinion and Order. In short, Judge McBryde decided that sovereign immunity protected A&M from a declaratory judgment regarding the trademark dispute, and essentially stated that there was no controversy, as A&M has done nothing to stop pre-acquisition graduates from using the A&M name as their legal alma mater.
Of course, I disagree. Judge McBryde ignored that A&M is operating under the same bar accreditation that TWU used and a number of other issues. However, he is an experienced jurist and supported his positions with facts that essentially lined up with those taken by A&M. Those facts would be difficult to overcome in an appeal.
Though the court questioned standing of any alumni to challenge the actions of any alma mater for any reason, it was really discussed as what I’d call strong dicta, rather than a conclusion that was stated as a legal conclusion. The court ignored that A&M and TWU made promises to obtain alumni support, benefitted by that support, and then has acted contrary to those promises. C’est la vie.
On the positive side, A&M has essentially said that it is not going to argue or act to stop pre-acquisition graduates from using the law school’s new name. If they were to do that, they’d cause the controversy that Judge McBryde cited as lacking in this suit.
This stage of the dispute is complete. There are four remaining options for plaintiffs:
Today is the 11th day after the court issued its rulings, so there is time to notice an appeal. If someone else wants to go forward on an appeal, I would certainly assist in that endeavor. I believe the sovereign immunity issue to be absolutely winnable – while the case law currently disallows claims of trademark infringement against the state (which is a horrible situation), we were attempting to merely clarify the trademark rights of the pre-acquisition graduates, an altogether different matter. The issue is distinguishable from a mundane trademark dispute.
At the beginning of this endeavor, we filed a complaint with the ABA that was ignored. I’m not sure it would be ignored if we tried again, as now we have a couple of facts that we didn’t discuss prior, and rather than focusing on what they aren’t doing for us that they should, we could focus on the simple things that A&M promised it would do, e.g., treat the acquisition as a continued school, rather than a closed school and new opening.
A contract claim in Tarrant County is absolutely possible. A&M would attempt to argue that the issue had been litigated, and we’d have to argue against res judicata. Though we’d file it in Tarrant County, A&M would try to pull it back to Brazos.
At the beginning of this case, we had a kitchen sink of remedies sought, from money to an Aggie ring. Though the ring was unlikely, I had hoped that we could survive the motions to dismiss, and then we’d settle with something reasonable. Really, all we have ever needed is an alma mater to stop pretending that we never went there, state openly that we could use the A&M name on the drop-down menus, and promise to take care of us like they should on the little things that they have promised since the beginning. One would think that this is doable.
The court said that there was no controversy, based on our admission that A&M does not complain when we use “Texas A&M University School of Law” as the name of our alma mater, and nothing in the Aggie response argued that such use was wrong. So one good thing here is that it appears that A&M knows it is in the wrong, and is not going to act against use of the updated name of our law school.
Interestingly enough, when I checked with the ABA, its response was that it maintains and sends out the list of accredited law schools in a fairly relaxed way. It is not consistent, and really makes little effort. A cursory look at the list reveals this, e.g., there is no school named “Akron”, but everyone knows that it is referring to the University of Akron School of Law. Over time, it may be that the name “Texas A&M University School of Law (formerly Texas Wesleyan School of Law)” eventually propagates out to the rest of the world and people will get a clue in spite of A&M’s intransigence. But it would surprise no one if A&M actively ensured that the TWU element of the name is removed completely as soon as possible.
In spite of all that, a simple peace simply should not be that difficult, and would obviously redound to everyone’s favor. Certainly there are some graduates who hang out and participate in the life of the new school, albeit as some sort of Aggie dhimmi, but it is hard to accept the idea that we as a group should give money or have any allegiance to the law school that purchased our accreditation and then promptly announces that the law school was founded in 2013, and takes the attitude that we should be happy that they even allow us to hang out as guests in a house that we built.
As stated earlier, I think that pre-acquisition graduates should just use “Texas A&M University School of Law” when listing your legal alma mater. If you have room, you might add a parenthetical “formerly known as Texas Wesleyan University School of Law.” But it’s clear that A&M is not going to cause a controversy over the issue.
If you wish to appeal, continue with the amended ABA complaint, or have some idea that I have not provided above, please let me know.
Finally, I want to say thank you to the two thousands of you that we had contact with over the last couple of years, and the hundreds of emails that we received from those who supported this effort at one time or another, including those who volunteered to be named plaintiffs (irrespective of whether we actually used your name), or provided financial assistance, obtained open records, assisted with drafting, or joined me in mulling over potential claims. Our office would not have even attempted this task without knowing that we were carrying the flag for a much larger group. And while the conclusion of the suit was not what we hoped for, I enjoyed talking to my fellow graduates spread all over the country and getting to know so many of you. I lift my glass to you all. Salut!
Warren V. Norred