Central Alabama Fair Housing Center v. Lowder Reality Co., Inc. Brief of Appellants Cynthia Foster, Denise Frazier, Barbara Gill-Smith, Brenda Smith, and Ezell Smith

    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 a l ,

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 St., N.W ., Suite 260 
Washington, D.C. 20036 
(202) 833-8400

Counsel For Respondents 
Hopwood and Carvell



QUESTIONS PRESENTED

1. 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 
January 24, 1994?

2. 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?



11

TABLE OF CONTENTS

QUESTIONS PR E S E N T E D ............................................  i

TABLE OF CO N TEN TS..................................................  ii

TABLE OF AUTHORITIES............................................  iv

INTRO D U CTIO N .............................................................. 2

STATEMENT OF THE C A S E ......................................  3

A. Pre-Trial P roceed ings.............................. 3

B. Petitioners’ First Motion To
Intervene And First A ppeal..................... 4

C. Trial And P ost-T ria l................................. 8

D. Petitioners’ Second Motion And
Second Appeal .........................................  11

RELEVANT F A C T S ........................................................ 13

REASONS FOR DENYING THE W R I T ..................... 13

A. This Court Lacks Jurisdiction
Over The 1994 Judgm ent........................ 14

B. The Decision Of The Court Of 
Appeals On The "Law Of The Case" 
Doctrine Is Not Worthy Of Review . . .  16



Ill

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 T e s t ......................................

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 ..................................................

. 17

. 20

CONCLUSION 27



TABLE OF AUTHORITIES

Cases

Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir.
1994) (en b a n c ) ..................................................... 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
(1 9 9 3 )......................................................................  19

Building And Const. Trades Dep’t, AFL-CIO v.
Reich, 40 F.3d 1275 (D.C. Cir. 1 9 9 4 ) ............ 21

Caterino v. Barry, 922 F.2d 37 (1st Cir. 1990) . . . .  21

Ceres Gulf v. Cooper, 957 F.2d 1199 (5th Cir.
1992) ......................................................................  20

Cleburne Living Center v. City of Cleburne, 726 
F.2d 191, 203 (5th Cir. 1984), a ff’d in part, 
vacated in part, 473 U.S. 432 (1 9 8 5 )...............  23

Cohn v. E .E .O .C., 569 F.2d 909 (5th Cir. 1978) . . .  24

Conservation Law Foundation v. Mosbacher, 966
F.2d 39 (1st Cir. 1992) .............................................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

iv



V

Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d
1548 (11th Cir. 1994) .........................................  19

Forest Conservation Council v. United States 
Forest Service, 66 F.3d 1489 (9th Cir.
1995) ......................................................................  18

Gould v. Alleco, Inc., 883 F.2d 281 (4th Cir.
1989) ......................................................................  21

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
240 U.S. 251 (1 9 1 6 ) ............................................  14

Harris v. Pemsley, 820 F.2d 592 (3d Cir.), cert.
denied, 484 U.S. 947 (1 9 8 7 ) ...............................  21

Lairsey v. Advance Abrasives Co., 542 F.2d 928
(5th Cir. 1976) ........................................................... 7

Lujan v. Defenders of Wildlife, 504 U.S. 555
(1 9 9 2 )......................................................................  23

Missouri v. Jenkins, 495 U.S. 33 (1990) ....................... 14

New York News, Inc. v. Kheel, 972 F.2d 482 (2d
Cir. 1992) .................................................................... 6

Sam Fox Publishing Co. v. United States, 366 U.S.
683 (1 9 6 1 ) .............................................................. 19

Sanguine, Ltd. v. United States Dep’t of Interior,
736 F.2d 1416 (10th Cir. 1 9 8 4 ) ..........................  19

Sierra Club v. Morton, 405 U.S. 727 (1972) 23



VI

Smith Petroleum Service, Inc. v. Monsanto
Chemical Co., 420 F.2d 1103 (5th Cir.
1970) ......................................................................... 7

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

Sweatt v. Painter, 339 U.S. 629 (1 9 5 0 ) ........................ 24

Toledo Scale Co. v. Computing Scale Co., 261
U.S. 399 (1 9 2 3 ).....................................................  14

United States Environmental Protection Agency v.
City of Green Forest, 921 F.2d 1394 (8th
Cir. 1990) .............................................................. 15

United States v. Board of School Commissioners,
466 F.2d 573 (7th Cir. 1972), cert, denied,
410 U.S. 909 (1 9 7 3 ) ............................................  19

United States v. City of Oakland, 958 F.2d 300
(9th Cir. 1992) .....................................................  15

United States v. City of Philadelphia, 798 F.2d 81
(3d Cir. 1 9 8 6 ) ........................................................ 19

United States v. Dallas County Commission, Dallas 
County, Alabama, 850 F.2d 1433 (11th Cir.
1988) ......................................................................  15

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

United States v. Pitney Bowes, Inc., 25 F.3d 66
(2d Cir. 1 9 9 4 ) ........................................................ 21



Vll

United States v. Texas Eastern Transmission
Corp., 923 F.2d 410 (5th Cir. 1 9 9 1 ) ................. 6

Statutes. Rules

28 U.S.C. § 1291 .............................................................  15

28 U.S.C. § 2 1 0 1 ..................................................8, 14, 16

Fifth Circuit Rule 3 4 . 7 ..................................................... 12

Rule 24(a), Fed. R. Civ. P ...........................................passim.

Rule 24(b), Fed. R. Civ. P ...........................................passim.

Rule 43(a), Fed. R. Civ. P ................................................  10

Rule 60(b), Fed. R. Civ. P .......................................................7

Sup. Ct. Rule 13.1   14

U.S. Const, amend. X I V ............................................  3, 19

Miscellaneous

Carlos Sanchez, College Aid Plan Revived By
Board, Fort Worth Star Telegram, April 19,
1996, at 1 9 .............................................................. 25

Wright, Miller & Kane, Federal Practice And
Procedure .....................................................6 , 8 ,  15



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, e ta l.,

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.)



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., in a 
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.1

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.

1 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 level 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.



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 plaintiff 
Carvell, filed a second complaint. (Several of the 
plaintiffs named 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.2

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, pursuant 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 
district 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.



5

end of discovery. 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.)3 On the first motion to intervene 
"[petitioners 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. l . )

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 ”ha[d] 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 "[t]he 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").



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,4 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 
insufficient, the Court also expressed concern for the 
"obstruction and delay that may be caused by allowing 
intervention" in the case (App. 193a).

E.g., Doe v. Duncanville Independent School Dist., 994 F.2d 
160, 168 (5th 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 (1st 
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 (5th Cir. 1991) (burden of 
proof on movant). See generally 1C Wright, Miller & Kane, Federal 
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).



7

The district court also rejected the petitioners’ 
application pursuant to Rule 24(b), finding that "adding 
the prospective intervenors as defendants at this juncture 
would needlessly increase cost and delay disposition of the 
litigation" (App. 194a).5

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 continued, 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.6 
Petitioners’ suggestion that they moved to present their 
evidence "[a]s 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 (5th 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 (5th 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



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 1 panel in both their brief and at oral 
argument").7 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, ”[o]ral 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-lla).

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 S. 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.
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 v. City o f 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 o f 
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).8

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 to do. 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. 71a.



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 to 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.9 Even if it were not, petitioners 
ignore the fact that the district court applied the "minimal 
standard" that they 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 would 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."



19

motion) and did not use (second motion).10 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 o f 
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, Ltd. v. 
United States D ep’t o f 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 o f 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 "[o]ne need not presume animus" (Pet.
5 n.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. v. 
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 hardly 
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).11

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 (5th Cir.
1992) ("the inquiry under [Rule 24](a)(2) is a flexible one,

11 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.



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)). As a 
consequence, many circuit courts review orders granting 
or denying intervention under an abuse of discretion 
standard. E .g ., Building And Const. Trades D ep’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. Pemsley, 820 F.2d 592, 597 (3d Cir.), cert, 
denied, 484 U.S. 947 (1987) ("[Intervention 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:

1. 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.

3. 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?

5. 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?

7. Do petitioners qua groups have their own 
legal interests? Is it sufficient that they are simply 
"interested" in the outcome of the decision? But c f  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 o f Cleburne, 
726 F.2d 191, 203 (5th Cir. 1984), a jf’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 o f 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 legal 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 o f being admitted would be affected, 
petitioners’ claim would still fall short.12 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.O.C., 569 F.2d 909, 911 (5th Cir. 1978) (in ruling that two 
employees whose promotions were vacated by the district court could 
intervene pursuant to Rule 24(a), the court stated that ”[h]ad the 
applicants sought to intervene in [plaintiffs] 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.13 
Law School may, for example, reduce its reliance on the 
Texas Index (App. 3a-4a) and consider other factors (e.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, A ss’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 defendants 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.14 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.1S

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").

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