# Opposition Brief — Thurgood Marshall Legal Society v. Hopwood

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1033

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1333%3A3. Public record. Not legal advice.