Opposition Brief — Thurgood Marshall Legal Society v. Hopwood

No. 95-1845

Bune .

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1995

THURGOOD MARSHALL LEGAL SOCIETY AND

BLACK PRE-LAW ASSOCIATION,

Petitioners,

v.

CHERYL J. HOPWOOD, et al.,

Respondents.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR CHERYL J. HOPWOOD AND

DOUGLAS W. CARVELL IN OPPOSITION

MICHAEL E. ROSMAN

CENTER FOR INDIVIDUAL RIGHTS

1300 19th Street, N.W.

Suite 260

Washington, D.C. 20036

(202) 833-8400

Counsel for Respondents

Hopwood and Carvell

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208

QUESTIONS PRESENTED

5; Does the petition for certiorari, filed on

May 13, 1996, give this Court jurisdiction over the

judgment of the Fifth Circuit dated May 11, 1994

affirming the final judgment of the District Court dated

Ja‘mary 24, 1994?

y I Did the Fifth Circuit correctly apply the

"law of the case" doctrine in its judgment dated March 18,

1996?

3. Did the courts below correctly decide that

petitioners did not show that their interests were

“inadequately represented" (one of the four required

elements for intervention as of right under Rule 24(a) of

the Federal Rules of Civil Procedure) or can a finding of

"inadequate representation” be predicated solely upon the

fact that a party has not used every argument and every

piece of evidence that a would-be intervenor believes

_could be used?

4. Could the courts below have reached the

same result, denying petitioners intervention, by relying

upon any of the other three required elements for

intervention as of right under Rule 24(a) of the Federal

Rules of Civil Procedure?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .. cc cccscewcees i

TABLE OF CONTENTS.......... eee es i

TABLE GF Asse hese. + o:e + sels Cee iv

EIU ae BE, 6 wd ots Sieie ses 6 es eee 2

STATEMENT OF THE CASE «000s ev sccives 3

A. Pre-Trial Proceedings ........... 3

B. Petitioners’ First Motion To

Intervene And First Appeal. ....... 4

ta ¥y, © B.. 3). Cee are 8

D. Petitioners’ Second Motion And

Senund Miata | <5:i edad ua 11

RELEVANT FACTS 6 iiscok a:0 wre pin Oe ty eee 13

REASONS FOR DENYING THE WRIT ........ 13

A. This Court Lacks Jurisdiction

B. The Decision Of The Court Of

On The "Law Of The Case"

Doctrine Is Not Worthy Of Review... 16

iii

The "Standard" Under Which The

Courts Below Evaluated "

Representation" Is Of No

Consequence Because Petitioners Fail

To Meet Their Burden Under Any

OE os EEE CR iS. 17

Determining That Petitioners Should

Be Allowed To Intervene Would

Require This Court To Resolve

Numerous Fact-Specific Questions

Not Passed Upon By The Lower

ER ae pa Sa ae 20

oa RISE a aa ee 27

iV

TABLE OF AUTHORITIES

Cases

Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir.

oO |.) 19

Ass’n Against Discrimination In Employment v.

Bridgeport, 594 F.2d 306 (2d Cir. 1979). ... 25

Billish v. City of Chicago, 989 F.2d 890 (7th Cir.)

(en banc), cert. denied, 114 S. Ct. 290

(| rrr eis. a ee 19

Building And Const. Trades Dep’t, AFL-CIO v.

Reich, 40 F.3d 1275 (D.C. Cir. 1994) ..... 21

Caterino v. Barry, 922 F.2d 37 (ist Cir. 1990) .... 21

Ceres Gulf v. Cooper, 957 F.2d 1199 (Sth Cir.

St rena ees eo ea eo 20

Cleburne Living Center v. City of Cleburne, 726

F.2d 191, 203 (Sth Cir. 1984), aff'd in part,

vacated in part, 473 U.S. 432 (1985) .....-. 23

Cohn v. E.E.0.C., 569 F.2d 909 (Sth Cir. 1978) ... 24

Conservation Law Foundation v. Mosbacher, 966

F.2d 39 (Ist Cir. 1992) .....----++++-s 6

Doe v. Duncanville Independent School Dist., 994

F.2d 160 (5th Cir. 1993) ......--+-+++-> 6

Donaldson v. United States, 400 U.S. 517 (1971) ... 22

Vv

Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d

PCC BR cee...

Forest Conservation Council v. United States

Forest Service, 66 F.3d 1489 (9th Cir.

DEIN y rG ae res

SE ae eG POR ea Pee is ©.

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

eee eee es ee ee

Harris v. Pernsley, 820 F.2d 592 (3d Cir.), cert.

denied, 484 U.S. 947 (1987) ...........

Lairsey v. Advance Abrasives Co., 542 F.2d 928

COE i sy) ee oe

PMG eeraee tae rrr’ 52255,

Missouri v. Jenkins, 495 U.S. 33 (1990) ........

New York News, Inc. v. Kheel, 972 F.2d 482 (2d

Sa WE She Se eee ie ee ee See

Sam Fox Publishing Co. v. United States, 366 U.S.

Me 02 8S tae

Sanguine, Ltd. v. United States Dep’t of Interior.

736 F.2d 1416 (10th Cir. 1984) .........

Sierra Club v. Morton, 405 U.S. 727 (1972) ......

vi

Smith Petroleum Service, Inc. v. Monsanto

Chemical Co., 420 F.2d 1103 (Sth Cir.

PET bs v2kee te CeO Ce Uae tek 7

Stone v. I.N.S., 115 S. Ct. 1537 (1995) ........ 14

Sweatt v. Painter, 339 U.S. 629 (1950) ......... 24

Toledo Scale Co. v. Computing Scale Co., 261

ah Ce cee Niall. Fale dd Ca Seihe a aks 14

United States Environmental Protection Agency v.

City of Green Forest, 921 F.2d 1394 (8th

Cer, Fepee ss + eaek ant Gem wows 2% 8 15

United States v. Board of School Commissioners,

466 F.2d 573 (7th Cir. 1972), cert. denied,

416 Da See Cees fs ol tas eee ew hae 19

United States v. City of Oakland, 958 F.2d 300

ls Ge. Gee sk eC waka ck meres. 15

United States v. City of Philadelphia, 798 F.2d 81

C36 Che. PRG bide sx SO BN OG ee os 19

United States v. Dallas County Commission, Dallas

County, Alabama, 850 F.2d 1433 (11th Cir.

RG ds ncaa Gaal ak oo ewe 15

United States v. Fordice, 505 U.S. 717 (1992) .... 24

United States v. Pitney Bowes, Inc., 25 F.3d 66

vote Se Pe cere eee oe eee 21

Vii

United States v. Texas Eastern Transmission

Corp., 923 F.2d 410 (Sth Cir. 1991) ....... 6

Statutes, Rules

a Re eee ee 15

Ne 55k es Dose, 8, 14, 16

OE ary Sg a 12

ee ee, ee ee ee Pe passim

8 Se passim

eee mre . Gite es... 10

ee CR i 7

Pe ek i 14

Me I ED 6 5s oh Gs sco cele ce, 3, 19

Miscellaneous

Carlos Sanchez, College Aid Plan Revived By

Board, Fort Worth Star Telegram, April 19,

nd 25

No. 95-1845

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER, 1995

THURGOOD MARSHALL LEGAL SOCIETY AND

BLACK PRE-LAW ASSOCIATION, ,

Petitioners,

v.

CHERYL J. HOPWOOD, et al.,

Respondents.

On Petition For A Writ Of Certiorari To

The United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR CHERYL J. HOPWOOD AND

DOUGLAS W. CARVELL IN OPPOSITION

Respondents Cheryl J. Hopwood and Douglas W.

Carvell (hereinafter “plaintiffs") respectfully submit this

brief in opposition to the petition for a writ of certiorari

by the Thurgood Marshall Legal Society ("TMLS") and

the Black Pre-Law Association ("BPLA"). (The petition

lists the other respondents. Pet. iii.)

ee

2

INTRODUCTION

Petitioners are would-be intervenors, whose belated

and flawed efforts to intervene were repeatedly rejected by

the courts below. The petition presents a question of

federal civil procedure: whether petitioners properly could

intervene pursuant to Rule 24(a), Fed. R. Civ. P., ina

pending lawsuit. A vast array of judges repeatedly and

consistently have decided that question against petitioners

in the courts below. Not easily discouraged, petitioners

now ask this Court to grant certiorari in order to review

the lower courts’ initial application of Rule 24(a) and the

subsequent application of the “law of the case" doctrine.

They apparently seek a judgment from this Court reversing

the unanimous decisions of the lower courts denying

intervention, and ordering such intervention as well as

discovery and a new trial of the underlying lawsuit. '

This Court should not exercise its discretionary

certiorari jurisdiction to review such limited and fact-

bound issues. In any event, the courts below correctly

addressed these questions.

:, Even this is not altogether clear. Petitioners assert that this

Court "should grant certiorari on both the merits petition and this

petition to assure that in reaching its decisions . . ., the Court has the

benefit of the full presentation of relevant evidence . . . " (Pet. 24-25,

emphasis added). See also Pet. 9-10 n.4 (merits appeal should include

petitioners). They apparently want either to intervene for the first

time at the Supreme Court ievel and/or to present their evidence

concerning the Texas Index, rejected in the lower courts and never

subjected to discovery or cross-examination, to this Court. This

would be, to say the least, unusual.

i aiiecncccialilidialiail

3

STATEMENT OF THE CASE

Petitioners’ description of the proceedings in the

courts below omits crucial facts, and misrepresents others.

A. Pre-Trial Proceedings

The underlying lawsuit in which petitioners sought

intervention began in September 1992 with the filing of a

complaint by plaintiff Hopwood and another individual

who subsequently voluntarily dismissed her claim. In

April 1993, another group of plaintiffs, including piaintiff

Carvell, filed a second complaint. (Several of the

plaintiffs aamed in this second complaint also voluntarily

dismissed their lawsuit.) In both complaints, the named

defendants were the State of Texas and the Regents of the

University of Texas System. The complaints alleged that

the defendants administered a racially discriminatory

admissions program at the University of Texas Law

School ("UT Law School") in violation of plaintiffs’ rights

under the Fourteenth Amendment to the United States

Constitution and various statutes.

In November 1992, the district court initially set a

scheduling order fixing a March 16, 1993 discovery

deadline for Hopwood’s action. R. 27-29. The court

subsequently extended that deadline. Contrary to the

impression left by petitioners (Pet. 3), there was no

distinct "bifurcation" of discovery on issues like standing

and ripeness, and discovery on the "merits." Indeed, as

the district court’s October 1993 order denying defendants’

summary judgment motion on these issues (R. 588-605)

demonstrates, the standing and ripeness issues directly

involved the details of UT Law School’s admissions

procedures. Indeed, the district court’s decision in

4

October 1993 reflects the extensive discovery that had

been taken with respect to those procedures.

The district court denied all of defendants’

summary judgment motions in its October 1993 order, and

discovery continued. Contrary to petitioners’

representations to this Court (Pet. 3), the district court did

not first "authorize[] the beginning of merits discovery" on

November 17, 1993. Rather, in that order, it set various

deadlines and scheduled a pre-trial conference for March

4, 1994. "Merits" discovery already had begun, and was

ongoing.”

In February 1994, subsequent to petitioners’ first

motion for intervention, plaintiffs filed a consolidated,

amended complaint. In that complaint, plaintiffs named

the University of Texas, UT Law School, and various

officials of each as additional defendants.

B. Petitioners’ First Motion To

Intervene And First Appeal

Petitioners first moved to intervene, pursuarit to

both Rule 24(a) and Rule 24(b), Fed. R. Civ. P., on

January 5, 1994, more than 15 months after the

commencement of the action, some 10 weeks after the

distric: court’s denial of defendants’ summary judgment

motions, and only about 12 weeks before the scheduled

? The district court also decided various outstanding discovery

motions in its November 17 order, including a motion filed before the

district court’s October 1993 order, seeking answers to interrogatories

concerning recruitment efforts and scholarship programs for minorities

by UT Law School. Thus, the November 17 order further evinces the

ongoing process of "substantive" discovery.

Sr thi RR Se es Minny 2s atin ancy GL

5

end of discove:y. Petitioners argued, inter alia, that the

State of Texas had not protected the rights of African-

Americans in the past. (For its part, the State denied that

it had anything to do with the admissions program at UT

Law School.)’ On the first motion to intervene

"[pjetitioners also made clear their intention to raise

questions about the discriminatory effect of the use of the

Texas Index as an admissions sorting device" (Pet. 26).

(The Texas Index ("TI") is a composite blend of

undergraduate GPA and LSAT scores used by UT Law

School in the admissions process. App. 3a-4a & n.1.)

In a decision and order dated January 19, 1994

(App. 190a-195a), the district court denied petitioners’

motion to intervene. The district court first noted the

belatedness of the motion. App. 191a ("Now, with only a

little over two months to go before the completion of

discovery, which has already been a contentious process

and evidently involves a multitude of documents, two new

entities wish to become parties to the litigation"). Then,

considering first the motion to intervene as of right, the

district court identified the four requirements of Rule

. One of the issues raised by defendants in their motion for

summary judgment filed in August 1993 was that plaintiffs had named

the wrong defendants. More specifically, the named defendants, the

State of Texas and the Board of Regents, argued that they “hafd] no

operational or policy control over the admission practices of the

School of Law." D-447, Dfs. Memo. In Support of SJ Mot., p. 33.

See also D-337 (declaration of dean of UT Law School Stating under

oath that "[tjhe actual mechanics of our admissions policies, including

its goals of minority recruitment and diversity in the incoming class,

are the province of the admissions committee and myself exclusively.

There are no directives, instructions, orders or any other form of

commands from the State, the Board of Regents, or the University as

a whole that govern the admissions process").

si

6

24(a): (1) a timely motion, (2) by a movant with an

interest in the underlying lawsuit, (3) that might be

impaired by the disposition of the lawsuit, and (4) an

inadequate representation of that interest by the existing

parties to the litigation. App. 192a.

Although movants have the burden of showing that

they can meet all four requirements,‘ the district court

found that it needed to consider only one, "inadequate

representation." The Court noted that "as a practical

matter, [petitioners] and the Defendants have the same

ultimate objective in this lawsuit -- the preservation of the

[current] admissions policy" (App. 192a). While

recognizing that the presumption of adequate

representation can be rebutted "on a relatively minimal

showing" (App. 193a), the district court held that

petitioners had not met even this slight burden because

they had provided nothing more than mere allegations that

the State defendants would not adequately represent their

interests. In holding that such allegations were

insuffi-‘ent, the Court also expressed concern for the

"obst: uction and delay that may be caused by allowing

inte: vention" in the case (App. 193a).

¢ E.g., Doe v. Duncanville Independent School Dist., 994 F.2d

160, 168 (Sth Cir. 1993) ("all four. . . factors [must] be present

before a party may be entitled to intervention as of right");

Conservation Law Foundation v. Mosbacher, 966 F.2d 39, 41 (Ist

Cir. 1992) ("An ‘applicant who fails to meet any one of these

requirements cannot intervene’"); New York News, Inc. v. Kheel, 972

F.2d 482, 485 (2d Cir. 1992) (same); United States v. Texas Eastern

Transmission Corp., 923 F.2d 410, 414 (Sth Cir. 1991) (burden of

proof on movant): See generally 7C Wright, Miller & Kane, Federai

Practice And Procedure, § 1908 at 262 (1986) (requirements are a |

timely application, an interest in the subject matter, a potential for

impairment of that interest, and inadequate representation).

ne

The district court alse) rejected the petitioners’

application pursuant to Rule 24(b), finding that "adding

ihe prospective intervenors 2s defendants at this juncture

would needlessly increase cost and delay disposition of the

litigation" (App. 194a).°

Since the district court’s order was a final judgment

for petitioners, they were able to (and did) immediately

appeal. The Court of Appeals accommodated petitioners’

request that their appeal be heard quickly, and granted

their motion to expedite the appeal.

While the appeal was pending, the parties’

discovery co.atinued, and was completed, in the district

court. Pursuant to the district court’s scheduling order,

the parties exchanged their final expert lists, identifying

each of their experts and their proposed testimony, in mid-

April. R. 1022, 1024-28. Although neither petitioners’

proposed expert nor any other expert who would Challenge

the validity of the Texas Index appeared on defendants’

expert list, petitioners did not ask the district court to

reconsider their application to intervene and did not seek

to supplement the record in the Court of Appeals.°

Petitioners’ suggestion that they moved to present their

evidence "/aJs soon as it became clear" that the defendants

. Although “undue delay” and "prejudice to the parties” are

additional considerations identified in the last sentence of Rule 24(b),

they are also factors in a “timeliness” analysis -- indeed, "prejudice to

the parties” is the most important factor. Smith Petroleum Service,

Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1115 (Sth Cir. 1970).

. The Fifth Circuit maintains a procedure for moving to amend

a final judgment pursuant to Rule 60(b) while an appeal is pending

from that judgment. Lairsey v. Advance Abrasives Co., 542 F.2d 928,

932 (Sth Cir. 1976).

8

would not do so (Pet. 22 (emphasis added); see also Pet.

7) is just wrong.

The Court of Appeals affirmed the district court’s

judgment denying intervention in an opinion and judgment

dated May 11, 1994. App. 98a. With respect to

petitioners’ motion to intervene "as of right" under Rule

24(a), the Court of Appeals held that where the party

whose representation is said to be inadequate is a

governmental entity, a movant seeking intervention had to

make "a much stronger showing of inadequacy" (App. 97a

(citing Wright & Miller, Federal Practice and Procedure,

§ 1909 (1986)). The Court held that, under such

circumstances, a proposed intervenor had to "demonstrate

that its interest is in fact different from that of the state"

(App. 98a). While explicitly recognizing petitioners’

argument that the State was "not in as good a position to

bring in evidence of . . . current discrimination" (App.

98a (emphasis added)), the Court of Appeals held that

petitioners had not "met their burden of demonstrating that

they have a separate interest that the State will not

adequately represent" (App. 98a-99a (emphasis added)).

The Court also held that the district court’s finding that

intervention would needlessly increase costs and delay

disposition of the lawsuit was not an abuse of discretion,

and, accordingly, affirmed the denial of petitioners’

motion for permissive intervention.

Petitioners did not seek rehearing or rehearing en

banc, and did not file a petition for certiorari with this

Court within the time prescribed by 28 U.S.C. § 2101(c).

c. Trial And Post-Trial

A bench trial was held before the district court on

ee Pe ee EY ee

9

May 16-20, 1994 and May 23-25, 1994. Again, although

the lists of witnesses from both sides were available long

before trial, and petitioners thus knew who would be

called, and what they would testify to, they never moved

before or during trial for reconsideration of the denial of

their motion to intervene on the ground that defendants

were not presenting evidence attacking the validity of the

Texas Index.

Contrary to petitioners’ concerns, defendants

vigorously defended their 1992 admissions system by,

inter alia, arguing that it was a narrowly-tailored means of

remedying the present effects of past discrimination

against African Americans and Mexican Americans by UT

Law School, the system of higher education as a whole,

and local school districts in the State of Texas. (Indeed,

petitioners’ "Statement Of Facts" relies heavily on those

parts of defendants’ evidence cited in the district court’s

opinion. Pet. 9-15.)

Defendants’ expert witnesses went to great lengths

to detail the history of discrimination in Texas. Thus, for

example, one of defendants’ experts gave a long history of

Slavery in Texas, racial violence in Texas from the Civil

War to the early 20th century, black education in roughly

the same time period, Heman Sweatt’s efforts to enter UT

Law School in the late 1940’s and early 1950’s, and

miscellaneous discriminatory incidents in Texas in the

1950’s and 1960’s (Trial Tr. Vol. 19, pp. 9-30; Trial Exs.

D-476 to D-480). The defendants also called a number of

student witnesses, including a member of petitioner TMLS

(Trial Tr. Vol. 14, p. 31), who described their view of the

reputation of UT Law School and what they believed were

acts which led to an uncomfortable or hostile “racial

atmosphere" on campus.

10

Post-trial briefs were due on June 13, 1994.

Petitioners, who had been granted amici status by the

district court (Pet. 5), were permitted to submit a brief.

In flagrant violation of Rule 43(a). Fed. R. Civ. P., which

mandates that "testimony of witnesses shall be taken orally

in open court,” petitioners took this opportunity to submit,

in addition to a brief, the declaration of their expert. Pet.

6. Their brief conceded that the "psychometric analysis"

performed by their expert is "a complex and technical

area" (R. 1255 n.6), and indicated that their expert was

"readily available to the Court and to the parties should

the Court desire further elaboration of his declaration

testimony" (id.). They explained that they had offered

their expert to the defendants as a witness, but that the

defendants had "declined the offer" (id.). Pet. 5-6.

Plaintiffs immediately moved to strike the

declaration of petitioners’ expert (and other non-record

exhibits that had been submitted by petitioners). The

district court denied that motion in an order dated June 22,

1994 but held that "to the extent amici has [sic] presented

new issues and evidence not presented at trial in its brief

and exhibits, the Court will not consider such evidence,

which is outside the record for any purpose." R. 1450.

In August 1994, the district court issued a decision

(App. 101a-186a) declaring the admissions system used by

UT Law School in 1992 unconstitutional, but refusing to

award any significant relief to plaintiffs. Plaintiffs

appealed the subsequent final judgment (186a-87a) to the

Court of Appeals.

11

D. Petitioners’ Second Motion

And Second Appeal

On July 12, 1994, six weeks after the trial, the

petitioners renewed their prior motion to intervene. In

this motion, the petitioners sought intervention "for the

limited purpose of introducing [their expert’s

psychometric] evidence and allowing plaintiffs to cross-

examine their expert and offer any independent evidence

of their own on the issue of the validity of the Texas

Index" (R. 1454-55). The petitioners also sought a

"limited opportunity for discovery" to obtain certain data

(R. 1455 n.5). Only a few days after petitioners made

their motion to renew, the district court summarily denied

the motion. App. 188a-89a.

Petitioners appealed this second denial to the Court

of Appeals. Shortly thereafter, they separately moved to

intervene in the Court of Appeals in plaintiffs’ appeal of

the district court’s final judgment on the merits. In an

order entered on November 14, 1994, the Court of

Appeals denied that motion.

Petitioners’ second appeal was eventually

consolidated with plaintiffs’ appeal of the final judgment

on the merits. On March 18, 1996, the Court of Appeals

issued an opinion deciding both appeals. On the merits

appeal, the Court held, inter alia, that the district court

had understated the scope of the constitutional violation

and improperly had imposed certain burdens on the

plaintiffs in assessing damages. (The defendants in the

underlying action have filed a separate petition for writ of

certiorari seeking review of that part of the judgment.

Sup. Ct. No. 95-1773.)

12

On petitioners’ second appeal, the Court of Appeals

unanimously dismissed for want of jurisdiction. App. 69a-

76a; 89a n.25. The Court of Appeals repeatedly noted

that the petitioners had presented in their previous appeal

the argument that the State defendants would not present a

"test invalidity" defense, and that the prior panel had

rejected that argument. App. 70a ("The [prior] panel

implicitly considered and rejected . . . a defense based

upon the use of TI scores under title VI, as the

[petitioners] argued that possibility as one basis for

intervention"); App. 73a-74a ("There is no question that

the Hopwood I panel addressed the intervention as a matter

of right de novo, on the merits, including the potential that

the law school would not raise every defense proposed by

the [petitioners]"); App. 76a ("Here, the record shows that

the [petitioners] raised this same title VI argument before

the Hopwood I panel in both their brief and at oral

argument").’ The Court rejected petitioners’ contention

that the failure of the defendants at trial to present the test-

invalidity "defense" constituted any sort of changed

circumstance that could justify reconsideration of the prior

panel’s decision. App. 73a n.59. The Court also noted

that the Title VI issue had not been litigated in the

underlying lawsuit, and that nothing in its decision, or in

the underlying lawsuit as a whole, would preclude

petitioners from commencing an action based upon the

alleged invalidity of UT Law School’s admissions

criterion. App. 76a n.62.

On or around March 29, 1996, petitioners sought

rehearing from the Court of Appeals. That petition was

denied. App. 198a. Of the sixteen active judges on the

? Under the Fifth Circuit’s Local Rule 34.7, "[oJral arguments

in all cases are tape recorded for the exclusive use of the Court."

13

Fifth Circuit that considered that petition, only one

objected to the ruling denying intervention -- and that one

judge’s single, plaintive question (Pet. 9) hardly addressed

any of the merits of either panel’s opinion.

RELEVANT FACTS

Rather than focus on the facts relevant to their

petition, petitioners try to deflect attention by presenting a

long discussion of the facts relating to the merits of the

underlying lawsuit. See, e.g., Pet. 9-10. (They also

criticize the decision of the Court of Appeals on the merits

at great length, although that obviously has no bearing on

their petition either. E.g., Pet. 9-10 n.4; 19-20.) Suffice

it to note that the history of admissions at UT Law School,

and the admissions system applicable in 1992, are set forth

in the opinion of the Court of Appeals (App. 3a-11a).

REASONS FOR DENYING THE WRIT

This Court requires "compelling reasons" and

circuit splits on "important questions" before invoking its

certiorari jurisdiction. The questions about Rule 24(a),

Fed. R. Civ. P., and the "law of the case" doctrine that

petitioners raise fail to meet these requirements.

Moreover, (1) granting the petition would raise complex

threshold questions involving this Court’s jurisdiction and

(2) this Court cannot resolve the ultimate question of

whether petitioners should have been allowed to intervene

without answering a host of other fact-bound questions that

the courts below had no need to address. For all of these

reasons, the petition should be denied.

14

A. This Court Lacks Jurisdiction

Over The 1994 Judgment

A petition for a writ of certiorari in a civil action

seeking review of a judgment must be filed within ninety

days after the entry of that judgment. 28 U.S.C.

§ 2101(c); Sup. Ct. Rule 13.1. This time limit is

jurisdictional and must be adhered to strictly. Stone v.

I.N.S., 115 §. Ct. 1537, 1549 (1995); Missouri v. Jenkins,

495 U.S. 33, 45 (1990).

Although this Court can reach back and consider

"interlocutory" decisions of the lower courts in the same

case upon appeal from a later judgment, Hamilton-Brown

Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251 (1916), it

will not consider previous decisions that are "final"

decisions in a litigation. E.g., Toledo Scale Co. v.

Computing Scale Co., 261 U.S. 399, 418 (1923) (first

denial of certiorari was from a "final decree, and we are

expressly denied power to review it after three months").

Accordingly, this Court has jurisdiction to consider that

May 1994 judgment only if it was an "interlocutory"

decree subject to the Court’s power to review such

decrees, and not a "final" decree.

This Court has never definitively stated whether an

order denying a motion to intervene pursuant to Rule

24(a), Fed. R. Civ. P., is "interlocutory" for purposes of |

its ability to reach back and consider such orders. i

However, several Courts of Appeals have considered that

question for purposes of their jurisdiction; and each of |

those courts has concluded that (1) such orders are "final"

judgments and must be immediately appealed, and (2) they

cannot review such orders upon appeal from a later order

denying intervention or from the final judgment in the

15

lawsuit. United States y. City of Oakland, 958 F.2d 300,

302 (9th Cir. 1992) (although United States conceded that

intervention as of right was warranted, court had no

jurisdiction over order denying intervention where appeal

was not taken until after final judgment on the merits);

United States Environmental Protection Agency v. City of

Green Forest, 921 F.2d 1394, 1401 (8th Cir. 1990) (where

first intervention motion was denied on December 3,

1987, second intervention motion was denied on March

24, 1989, and notice of appeal was filed on April 20,

1989, court ruled that "we lack jurisdiction over the

December 3, 1987 order denying intervention"); United

States v. Dallas County Commission, Dallas County,

Alabama, 850 F.2d 1433, 1442-43 (11th Cir. 1988) (Court

had no jurisdiction over appeal of denial of motion to

intervene under Rule 24(a) filed twenty months after

denial of the motion by the district court).

These courts unanimously have reached that

conclusion despite the fact that the jurisdiction of the

Courts of Appeals under 28 U.S.C. § 1291 permits them

to "reach back" and consider interlocutory orders (which

are "merged" into the final judgment), just as this Court’s

jurisdiction permits it todo. 11A Wright, Miller & Kane,

Federal Practice And Procedure, § 2962 at 433 (1995)

("Upon an appeal from the final decree every interlocutory

order affecting the rights of the parties is subject to review

in the appellate court").

. In a departure from the other Courts of Appeals, the Eleventh

Circuit in Dallas County did state that it had jurisdiction over the

denial of the intervention motion to the extent it was based upon Rule

24(b), Fed. R. Civ. P. The distinction is unimportant here because

petitioners only seek review of the denial of their application under

Rule 24(a). See Pet. i. App. 7la.

16

Both common sense and considerations of orderly

judicial procedure suggest that this Court should follow a

similar rule. A rule requiring this Court to consider

earlier denials of motions to intervene would permit

unsuccessful intervenors to circumvent the jurisdictional

time periods set forth in 28 U.S.C. § 2101 by simply

filing yet another motion in the district court (as

petitioners did here), appealing the denial (as petitioners

did here), losing in the Court of Appeals on the ground

that nothing had changed since the previous motion to

intervene and the previous unsuccessful appeal (as

petitioners did here), and then seeking review.in this Court

two years after the initial Court of Appeals decision (as

petitioners do now).

B. The Decision Of The Court Of Appeals

On The "Law Of The Case" Doctrine

Is Not Worthy Of Review

Because this Court has no jurisdiction over the May

1994 judgment of the Court of Appeals, the only question

properly before this Court is whether the Court of

Appeals, in March 1996, properly applied the “law of the

case" doctrine to petitioners’ second appeal. Although

petitioners identify the proper application of this doctrine

as their fourth "question presented,” they do not mention

this doctrine at all in the "Reasons For Granting The

Writ" segment of their petition. Moreover, they attempt

to "refute" the factual predicate of the Court’s decision

(that the earlier panel had already passed on petitioners’

arguments) only in an ipse dixit footnote asserting that the

Court was "patently wrong." Pet. 28 n.6. See also Pet i

(arguments "patently were not decided").

Of course, even if petitioners were correct that the ;

17

Court of Appeals had misapplied the "law of the case"

doctrine, that would hardly warrant this Court’s attention.

Petitioners point \ » no conflict among the circuits or other

compelling reason to review this well-established doctrine.

In any event, the Court of Appeals applied the

doctrine correctly. As petitioners themselves concede in

describing their first application to intervene, at that time

they "made clear their intention to raise questions about

the discriminatory effect of the use of the Texas Index as

an admissions sorting device" (Pet. 26). How they arrive

at their conclusion that the Court of Appeals did not even

implicitly pass upon that possible "separate defense" in the

May 1994 judgment is less than clear. Conspicuously,

Judge Wiener served on both panels, App. 2a, 94a, and

fully endorsed the conclusion that the first panel had

considered and rejected petitioners’ "test invalidity”

defense. App. 89a, n.25.

C The "Standard" Under Which The Courts Below

Evaluated "Inadequate Representation" Is Of

No Consequence Because Petitioners Fail To

Meet Their Burden Under Any Relevant Test

Assuming arguendo that this Court has jurisdiction

to review the May 1994 judgment, the Rule 24(a) issues

petitioners raise are unworthy of review by this Court.

Petitioners assert that there is a "circuit split"

concerning the appropriate standard under which to judge

whether a proposed intervenor’s interests are "adequately

represented” (one of the four elements under Rule 24(a)),

and that this Court should grant certiorari to resolve that

split. Pet. 17-19. In the first place, petitioners’ "circuit

18

split" is contrived.’ Even if it were not, petitioners

ignore the tac; that the district court applied the "minimal

standard" that aey now presumably ask this Court to

adopt (App. 193a ("the presumption of adequate

representation may be rebutted on a relatively minimal

showing")) -- and they still lost. Petitioners assert that the

district court "employed a standard more stringent than

that articulated by this Court in Trbovich" (Pet. 26).

Plainly, it did not. Petitioners simply do not like the

outcome the district court reached by applying that

standard.

Both courts below were correct, both times, under

any standard. Petitioners could not (and cannot) meet any

standard to show that the representation of the defendants

was (and is) inadequate. At the end of the day, all

petitioners ever demonstrated was that they had an

unpersuasive argument that defendants wouid not use (first

. Petitioners concede that the D.C. and Eighth Circuits follow

the parens patriae rule; assuming for the sake of argument that those

courts occasionally interpreted it “liberally” in one case or another, it

hardly creates a circuit split on a question of law. Contrary to

petitioners’ claim, the Ninth Circuit also follows the parens patriae

rule, Forest Conservation Council v. United States Forest Service, 66

F.3d 1489, 1498-99 (9th Cir. 1995). The Tenth and Eleventh Circuit

cases that petitioners cite did not squarely address the parens patriae

issue, and petitioners feel obliged to cite non-existent footnotes to

demonstrate their point in the Eleventh Circuit. Perhaps most

disingenuously, they cite a First Circuit case discussing another issue

altogether -- the standard determining whether a "significantly

protectable” interest exists, a distinct requirement under Rule 24(a) --

to further bolster their so-called "circuit split."

ees Meat

ce nec Se wtih,

19

motion) and did not use (second motion)."° Rule 24(a)

does not permit intervention simply because a party

chooses not to adopt every argument a proposed intervenor

wishes to raise. E.g., United States v. City of

Philadelphia, 798 F.2d 81, 90 (3d Cir. 1986) (gay and

lesbian group did not show inadequate representation by

local human rights commission where the commission

"imprudently stipulated to facts that it should not have and

. . . did not sufficiently challenge certain evidence

proffered by the [federal] government"); Sanguine, Lid. v.

United States Dep’t of Interior, 736 F.2d 1416, 1419 (10th

Cir. 1984) ("representation is not inadequate simply

because the applicant and the representative disagree

regarding the facts or law of the case" citing United States

v. Board of School Commissioners, 466 F.2d 573, 575

(7th Cir. 1972), cert. denied, 410 U.S. 909 (1973)). Cf.

Sam Fox Publishing Co. v. United States, 366 U.S. 683,

“ Petitioners assert that "[oJne need not presume animus” (Pet.

5 0.2) for defendants’ failure to submit "test invalidity" evidence, and

this is true. In general, LSAT/GPA indices are widely used (App.

130a) precisely because they are valid. In any event, the circuit courts

repeatedly have held that the use of an invalid test does not justify

subsequent race-conscious decision-making to "remedy" the use of the

invalid test. See Aiken v. City of Memphis, 37 F.3d 1155, 1164 (6th

Cir. 1994) (en banc) ("the city cannot get points for first using a

presumptively biased eligibility list to make a string of white

promotions and then turning around and trying to do some rough racial

justice by promoting two blacks from the bottom of the list") quoting

Billish v. City of Chicago, 989 F.2d 890, 894 (7th Cir.) (en banc),

cert. denied, 114 S. Ct. 290 (1993)); Ensley Branch, N.A.A.C.P. vy.

Seibels, 31 F.3d 1548, 1572 (11th Cir. 1994) ("Use of racial hiring

quotas to mask the effects of discriminatory selection procedures

places grievous burdens on blacks as well as whites"). Surely, given

this uniform case law under the Fourteenth Amendment, it was hardiy

irrational for defendants to decline to adopt petitioners’ quixotic

argument.

20

689 (1961) (in denying application to intervene, court

notes that "sound policy would strongly lead us to decline

[proposed intervenors’] invitation to assess the wisdom of

the Government’s judgment in negotiating and accepting

the . . . consent decree, at least in the absence of any

claim of bad faith or malfeasance on the part of the

Government in so acting”). Defendants’ decision not to

use petitioners’ "psychometric evidence" is insufficient.

D. Determining That Petitioners Should Be

Allowed To Intervene Would Require This Court

To Resolve Numerous Fact-Specific Questions

Not Passed Upon By The Lower Courts

Finally, this Court should deny certiorari because

the courts below could have relied upon any of the other

elements required under Rule 24(a) to deny petitioners’

repeated motions to intervene. They did not base their

rulings on those other grounds for the simple reason that,

having determined that petitioners’ interests (assuming

they had any) were adequately represented by the

defendants, there was no need to reach the other

requirements of Rule 24(a)."'

In general, the lower courts repeatedly have

emphasized that the four-part standard under Rule 24(a)(2)

is a flexible, practical standard that should attempt to meet

the exigencies and specific facts of individual cases. E.g.,

Ceres Gulf v. Cooper, 957 F.2d 1199, 1202 (Sth Cir.

1992) ("the inquiry under [Rule 24](a)(2) is a flexible one,

a Petitioners assert that "[o]n no occasion” (Pet. 25) has a court

held in this case that petitioners cannot meet the other three

requirements for intervention. While technically true, this statement is

somewhat misleading for the reason stated in the text.

eet

21

which focuses on the particular facts and circumstances

surrounding each application . . . [I]ntervention of right

must be measured by a practical rather than technical

yardstick" (internal quotation marks omitted)). Asa

consequence, many circuit courts review orders granting

or denying intervention under an abuse of discretion

standard. E.g., Building And Const. Trades Dep’t, AFL-

CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) ("We

review the district court’s decision to deny intervention

under an abuse of discretion standard"); United States v.

Pitney Bowes, Inc., 25 F.3d 66, 69 (2d Cir. 1994)

("Because of the variety of factual circumstances that face

a district court [deciding a motion to intervene], and the

close proximity of that court to the case’s nuances, it has

the advantage of having a better ‘sense’ of the case than

we do on appeal. For that reason intervention decisions

are reviewed under an abuse of discretion standard");

Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir.), cert.

denied, 484 U.S. 947 (1987) ("[I]ntervention controversies

arise in many different contexts, and require the court to

consider the pragmatic consequences of a decision to

permit or deny intervention. . . . This same reasoning

supports an abuse of discretion standard of review, which

we now adopt."); Caterino v. Barry, 922 F.2d 37, 40 (1st

Cir. 1990); Gould v. Alleco, Inc., 883 F.2d 281, 284 (4th

Cir. 1989).

To hold that petitioners should be allowed to

intervene, this Court would have to decide issues related

to the three requirements other than "inadequate

representation," and without the benefit of any fact-finding

or analysis from either lower court. (On the other hand,

if this Court grants the petition solely to review whether

petitioners proved "inadequate representation," it will not

resolve the underlying issue of whether petitioners should

22

be allowed to intervene.) There were numerous fact-

sensitive issues raised by petitioners’ motions to intervene,

and which would now have to be reviewed by this Court,

among them:

i. Was petitioners’ motion to intervene

untimely given their decision to wait fifteen months after

this case began -- and even ten weeks after the summary

judgment issues were resolved -- before making a motion

to intervene?

2 Is the district court’s finding on the first

motion that intervention would "increase cost" and "delay

disposition" of the litigation relevant to any consideration

of timeliness? See n.5, supra.

cB Is petitioners’ failure to ask the district court

to reconsider the initial denial of their motion in April

1994 fatal to their second attempt to intervene because the

parties were obligated to submit final expert witness lists

at that time and petitioners thus knew that defendants

would not call petitioners’ expert or any other expert who

would testify concerning the validity of the Texas Index?

4. Is the fact that petitioners first tried to

submit a "declaration of an expert witness" (Pet. 6) as

amici before moving to intervene relevant to the timeliness

of their second motion?

8 Do students applying to UT Law School

have a "significantly protectable interest" in some

particular admissions process? See Donaldson v. United

States, 400 U.S. 517, 531 (1971) (holding that interest

under Rule 24(a) had to be a "significantly protectable"

interest, and ruling that taxpayer lacked such interest in an

23

action by the government seeking to enforce subpoenas

served as part of an investigation of the taxpayer).

6. Since the Court of Appeals specifically

noted that its decision could not be used to preclude an

independent Title VI challenge to UT Law School’s use of

the Texas Index, are petitioners’ interests (or those of its

past, present, or future members) "impaired" by the

judgment of the Court of Appeals?

rs Do petitioners gua groups have their own

legal interests? Is it sufficient that they are simply

"interested" in the outcome of the decision? But cf. Sierra

Club v. Morton, 405 U.S. 727 (1972).

8. Assuming that petitioners can represent their

members’ interests, is it of consequence that there is

nothing in the record to demonstrate that any identifiable

member of petitioner BPLA had (much less still has) a

specific interest in applying to and attending UT Law

School? See Cleburne Living Center v. City of Cleburne,

726 F.2d 191, 203 (Sth Cir. 1984), aff’d in Part, vacated

in part, on other grounds, 473 U.S. 432 (1985) (holding

that the failure to identify an affected member defeats

standing). Cf. Lujan v. Defenders of Wildlife, 504 U.S.

555 (1992) (for standing purposes, possibility of injury

cannot be remote).

None of these issues (and a number of related

issues) were addressed, much less decided, below.

Although space considerations preclude complete

answers to each of these complex questions, the issues of

petitioners’ "significantly protectable interests," and their

ability to protect them, deserve some additional

24

elaboration. Plainly, UT Law School is not obligated to

engage in any particular form of affirmative action under

United States v. Fordice, 505 U.S. 717 (1992) both

because (1) there is no relevant policy traceable to the de

jure era before Sweatt v. Painter, 339 U.S. 629 (1950)

(App. 58a & n.48, 112a-13a & n.8) and (2) Fordice would

only obligate UT Law School to eliminate such policies.

Thus, petitioners have no Jegal interest in the now-defunct

system used in 1992. (If they did, some member

presumably would have sued when it was abandoned.)

Moreover, even if (contrary to law) an "interest"

could be demonstrated simply by showing that an

applicant’s odds of being admitted would be affected,

petitioners’ claim would still fall short.'’2 Petitioners

cannot say precisely how UT Law School will adjust its

admissions procedure to the holding of the Court of

Appeals that it cannot use race in its admissions process.

Texas educators have, to date, demonstrated a remarkable

= If that were the only criterion, of course, presumably the

Jewish Pre-Law Students and the Chinese Pre-Law Students -- indeed,

any individual undergraduate who might have expressed an intent to

apply to UT Law School -- could have intervened on one side or the

other. If individuals from one group’s chances of being admitted are

affected, so are individuals from all others. Compare Cohn v.

E.E.0.C., 569 F.2d 909, 911 (Sth Cir. 1978) (in ruling that two

employees whose promotions were vacaied by the district court could

intervene pursuant to Rule 24(a), the court stated that "[hjad the

applicants sought to intervene in [plaintiff’s] original suit [prior to

their promotions], the possible detriment to their likelihood of

promotion that might have been wrought by the award to {plaintiff} of

constructive service would not have constituted a sufficiently

protectable interest to warrant intervention of right").

25

resilience in their efforts to assist minority students."

Law School may, for example, reduce its reliance on the

Texas Index (App. 3a-4a) and consider other factors (é.g.,

an applicant having worked his or her way through

college) far more heavily. It may change the index to

weigh GPA more heavily. The record does not state how

this might affect minority admissions in general, much less

any specific applicant who happened to be a member of

BPLA.

One of petitioners’ own cases, Ass’n Against

Discrimination In Employment v. Bridgeport, 594 F.2d

306 (2d Cir. 1979) (Pet. 24) perhaps best illustrates this

point. Petitioners cite it for the proposition that a state

employer can engage in race-conscious hiring to "remedy"

an invalid test, but the case has no such holding. Rather,

the Court remanded to determine whether a lower cut-off

score on the test would eliminate any disparate impact.

Id. at 313 & n.19. (The absence of a disparate impact, of

course, eliminates any claim under Title VI or Title VII,

regardless of the underlying validity of the criteria.) So,

too, UT Law School here may arrive at a similar system,

which relies less on the Texas Index, and which eliminates

- Prior to the Court of Appeals granting detendants a stay of

mandate, defendants redesigned their race-based scholarships (which

they deemed affected by the decision on the merits) to focus on the

“educationally disadvantaged." See, e.g., Carlos Sanchez, College Aid

Plan Revived By Board, Fort Worth Star Telegram, April 19, 1996, at

19, 22 (Higher Education Commissioner Kenneth Ashworth states that

“educationally disadvantaged" will "cover many of the students who

currently qualify for minority scholarships"; "‘Sometimes there is

more than one way to reach an objective,’ said board member Juan

Hinojosa").

26

any disparate impact.’ If it chooses "strict use of the

Texas Index" (Pet. 26), then petitioners (or, more

accurately, those actually seeking to apply to UT Law

School) can attack the validity of that criterion in a

separate lawsuit."

- In fact, UT Law School could have eliminated any disparate

impact by using the Texas Index as a cut-off point instead of a

decisive factor. For example, the evidence at trial demonstrates that,

among 1992 resident Texan applicants with TI scores above 180 (the

low end of the "discretionary" scale for African-Americans and

Mexican-Americans (App. 8a)), approximately 20% were minorities.

Resident minority applicants constituted approximately 21% of those

offered admission under UT Law School’s racially -discriminatory

system. Trial Ex. P-139. Consequently, using the TI as a cut-off,

UT Law School could have admitted roughly the same percentage of

minorities among its resident applicants -- without discriminating.

Of course, the very existence of race-neutral alternatives to

defendants’ race-conscious system demonstrates that it was not

narrowly-tailored -- regardless of what one considers a “compelling

interest." Cf. Ass’n Against Discrimination v. Bridgeport, 594 F.2d at

313 (possibility of eliminating disparate impact by lowering score

"affects not only the remedy ordered by the [district court] judge, but

also the basic finding of liability”).

ad Petitioners’ “Gordian knot” footnote -- suggesting the dreary

possibility of an endless cycle of lawsuits with "no reasonable end in

sight" (Pet. 29 n.7) -- again misses the point. While there may be

retrospective or remedial orders of various kinds in the unlikely event

that petitioners could demonstrate the invalidity of a LSAT/GPA

index, the only prospective remedy would be elimination of the invalid

criterion. If it is replaced with a valid criterion, it is unclear who

could complain.

27

CONCLUSION

The petition should be denied.

June 14, 1996

Respectfully submitted,

Michael E. Rosman

CENTER FOR INDIVIDUAL RIGHTS

1300 19th St., NW, Suite 260

Washington, D.C. 20036

Counsel For Respondents Hopwood

And Carvell