Greene v. Podberesky Reply Brief for Petitioners

    No. 94-1621

In The

Supreme Court of tfje SHrattfc States?
October Term, 1994

Monica Greene, et a l ,
Petitioners,

V.
Daniel J. Podberesky,

Respondent.

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the Fourth Circuit

REPLY BRIEF FOR PETITIONERS

WlLUAM J. MURPHY 
John J. Connolly 

Murphy & Shaffer 
100 Light Street, Suite 750 
Baltimore, MD 21202 
(410) 752-1564

Salty P. Paxton 
Jacqueline R. Depew 

Fulbright & Jaworskj L.L.P. 
801 Pennsylvania Avenue, N.W. 
Washington, D.C. 20004 
(202) 662-0200

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 

NAACP Legal Defense & 
Educational Fund, Inc. 

99 Hudson Street, 16th fl.
New York, NY 10013 
(212) 219-1900

*Janell M. Byrd 
NAACP Legal Defense & 

Educational Fund, Inc. 
1275 K Street, N.W., Suite 301 
Washington, D.C. 20005 
(202) 682-1300

* Counsel o f Record

Attorneys for Petitioners



1

TABLE OF CONTENTS
Page

Table of Authorities ........................................................... i
REPLY BRIEF FOR PETITIONERS .................... 1
Conclusion........... .....................     6

TABLE OF AUTHORITIES

Cases:
Brunet v. City of Columbus, 1 F.3d 390 (6th 

Cir. 1993), cert, denied, 114 S. Ct.
1190 (1994)...............................................................5

City of Richmond v. J.A. Croson Co., 488
U.S. 469 (1989).................................................  3, 4

Geier v. Alexander, 801 F.2d 799 (6th Cir.
1986).....................................   5

Hammon v. Barry, 826 F.2d 73 (D.C. Cir.),
cert, denied, 486 U.S. 1036 (1988) ..............   5

United States v. Fordice,__ U.S.___ , 112
S. Ct. 2727 (1992) .................     2

Wygant v. Jackson Bd. of Educ., 476 U.S.
267 (1986)..........................................................  3, 4



In The

Supreme Court of tfje ftlmteb ^tatefi
October Term, 1994 

No. 94-1621

Monica Greene, et al.,  

v.
Daniel J. Podberesky,

Petitioners,

Respondent.

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the Fourth Circuit

REPLY BRIEF FOR PETITIONERS

I

The Brief of Respondent in Opposition continues the 
consistent refusal of Mr. Podberesky, throughout this 
litigation, to acknowledge either the breadth and scope of 
Maryland’s discriminatory exclusion of its African-American 
citizens from higher educational opportunities, or the State’s 
long delay in taking any effective actions to overcome the 
legacy of segregation at the College Park campus -  which 
further entrenched the school’s identity as a "white 
institution" despite the State’s formal policy of admitting 
students without regard to race.

Respondent’s approach is reflected at the outset in 
his restatement of the Questions Presented. The first 
question that he frames describes the University of Maryland 
as having "at least 40 years ago eliminated all policies and 
practices — traceable to the segregative era -  which had 
segregative effects." It is undisputed, though, that all the 
University did in 1955 was to eliminate its formal policy of 
absolutely excluding African-American students from 
admission as undergraduates. Discrimination against blacks



2

and discouragement of their attendance at UMCP in more 
than the most token numbers continued to be the operative 
policy of the State of Maryland until after OCR acted in 
1969. See Pet. in No. 94-1620, at 7-8; Pet. App. at 38-44; 
UX 70 at 157-70.

Respondent’s description of the context in which the 
University of Maryland adopted the Banneker Program thus 
is contrary to the record. It also is at odds with this Court’s
admonition in United States v. Fordice,__ U.S.___, ___, 112
S. Ct. 2727, 2736 (1992), that

the adoption and implementation of race-neutral 
policies alone [does not] suffice to demonstrate that 
the State has completely abandoned its prior dual 
system. That college attendance is by choice and not 
by assignment does not mean that a race-neutral 
admissions policy cures the constitutional violation of 
a dual system.

Compare Brief for Respondent in Opposition, at 14 ("UMCP 
has maintained race-neutral admissions procedures since 
1954. Accordingly, UMCP has at all times since 1954 done 
all that is required of it under Fordice").

The court below exhibited the same myopic view of 
the effects of pervasive discrimination, see, e.g., 38 F.3d at 
154, Pet. App. at 10a ("any poor reputation the University 
may have in the African-American community is tied solely 
to knowledge of the University’s discrimination before it 
admitted African-American students"); compare Pet. in No. 
94-1621, at 17-18 n.18.

As the Solicitor General has indicated to this Court, 
the decision below is inconsistent with Fordice and will, if 
left standing, impede the federal government’s efforts to 
obtain effective remedies to enforce Title VI. See Brief for 
the United States as Amicus Curiae Supporting Petitioners, at 
12-13, 18. The petitions should be granted to correct the



3

errors and remove the impediment to full constitutional 
compliance.

II

Respondent’s Brief in Opposition is also remarkable 
for its complete failure to address the second and third 
Questions Presented by the Greene Petitioners. In 
particular, Respondent’s silence indicates clearly the lack of 
any coherent justification for the inconsistent actions of the 
court below, when it first reversed the trial judge’s grant of 
summary judgment for one party because there were 
material facts in dispute, and then directed entry of summary 
judgment for the opposite party notwithstanding those 
factual disputes. We continue to believe that the lower 
court’s error in this respect is so clear as to warrant 
summary reversal and remand by this Court, see Petition in 
No. 94-1621, at 29 n.28.

Ill

We argued in our Petition (at 15-17) that this case 
merits review because it raises important issues that are 
distinct from those which the Court has addressed in prior 
decisions involving voluntary affirmative action. Respondent 
asserts, to the contrary, that the court below "simply 
followjed] clear-cut authority from this Court" (Brief in 
Opposition, at 11), and that its ruling is consistent with the 
"unanimous" holdings of the federal courts of appeals (id. at 
17). Respondent substantially misrepresents the decisions he 
cites in an effort to force them into the Procrustean mold of 
his argument.

Respondent contends that City of Richmond v. J.A. 
Croson Co., 488 U.S. 469 (1989), and Wygant v. Jackson Bd. 
of Educ., 476 U.S. 267 (1986), govern this case. He charges 
that we engage in "a clear misreading" of those opinions 
when we seek to distinguish Croson and Wygant because in



4

each of those matters, "the allegedly remedial racial 
classifications were adopted ‘in the absence of any findings 
of discrimination’" (Brief in Opposition, at 13). That 
contention cannot be squared with the Court’s clear 
statement in Croson that:

In sum, none of the evidence presented by the city 
points to any identified discrimination in the 
Richmond construction industry. We, therefore, hold 
that the city has failed to demonstrate a compelling 
interest in apportioning public contracting 
opportunities on the basis of race.

488 U.S. at 505. Nor is Respondent’s reading of Wygant any 
more faithful to the text of the plurality opinion:

Respondents also now argue that their purpose in 
adopting the layoff provision was to remedy prior 
discrimination against minorities by the Jackson 
School District in hiring teachers. . . . [A] public
employer like the Board must ensure that, before it 
embarks on an affirmative-action program, it has 
convincing evidence that remedial action is 
warranted. That is, it must have sufficient evidence 
to justify the conclusion that there has been prior 
discrimination. . . . Despite . . . years of litigation 
and three separate lawsuits, no such determination 
has ever been made.

476 U.S. at 277-78.
Wygant, says Respondent (Brief in Opposition at 13), 

"makes clear that . . .  the focus should be on whether there 
exist present effects of past racial discrimination. Wygant, 476 
U.S. at 274 (plurality opinion) [emphasis in original]." But 
the distinction that Respondent apparently seeks to make 
simply does not appear in the Wygant plurality opinion, 
either at the page cited in Respondent’s brief or elsewhere.



5

Respondent’s treatment of the rulings of the Courts 
of Appeals is similarly flawed. Neither Bninet v. City of 
Columbus, 1 F.3d 390, 409 (6th Cir. 1993), cert, denied, 114 
S. Ct. 1190 (1994), nor Hammon v. Barry, 826 F.2d 73, 76-77 
(D.C. Cir.), cert, denied, 486 U.S. 1036 (1988), discussed 
whether a "reputation for discrimination in the distant past 
[w]as sufficient justification for a race-based remedial 
program," Brief in Opposition, at 17. In both cases, the 
Courts of Appeals found that statistical evidence was 
insufficient to support an inference of discrimination, either 
because there was inadequate information about the makeup 
of the qualified labor pool, Brunet, 1 F.3d at 407, or because 
the comparison showed no underrepresentation, Hammon, 
826 F.2d at 77-78.

Respondent also attempts to brush aside the ruling 
in Geier v. Alexander, 801 F.2d 799 (6th Cir. 1986), asserting 
that the case "involved the validity of a consent decree, an 
issue not present here . . . [and the Court of Appeals] based 
its decision in part on an unwillingness to overturn a 
settlement supported by all parties after 16 years of litigation" 
(Brief in Opposition, at 26 [emphasis added]). In fact, in 
Geier the United States appealed from entry of a decree to 
which all other parties gave their consent, and it 
unsuccessfully advanced the same contention that animates 
the decision below and Respondent’s argument to this 
Court: "that the illegal condition of segregation in public 
higher education in [a State] was cured by adoption of an 
open-admissions policy and . . . good-faith recruitment 
efforts," Geier, 801 F.2d at 805.

In sum, notwithstanding Respondent’s efforts to 
reframe the issues, this case presents important and 
substantial legal questions that have not yet been addressed 
by this Court, in the context of a ruling by the Fourth 
Circuit that is a marked departure from this Court’s rulings



6

and that contrasts sharply with the holdings of other federal 
courts. The Petitions should be granted.

Conclusion

For the reasons stated above as well as those in the 
Petition, the Writ of Certiorari should issue to review the 
judgment of the United States Court of Appeals for the 
Fourth Circuit in this matter.

Respectfully submitted,

William J. Murphy 
John J. Connolly 

Murphy & Shaffer 
100 Light Street, Suite 750 
Baltimore, MD 21202 
(410) 752-1564

Sally P. Paxton 
Jacqueline R. Depew 

Fulbright & Jaworski L.L.P.

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 

NAACP Legal Defense & 
Educational Fund, Inc. 

99 Hudson Street, 16th £1. 
New York, NY 10013 
(212) 219-1900

*Janell M. Byrd
NAACP Legal Defense & 

Educational Fund, Inc. 
1275 K Street, N.W., Suite 301 
Washington, D.C. 20005 
(202) 682-1300

* Counsel o f  Record

801 Pennsylvania Avenue, N.W. 
Washington, D.C. 20004 
(202) 662-0200

Attorneys for Petitioners