Correspondence from Lani Guinier to Finance Re Harris v. Graddick

    No. 94-50083

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

CHERYL J. HOPWOOD, et al., 

Plaintiffs-Appellees,

STATE OF TEXAS, et al,

Defendants-Appellees, 

and

THURGOOD MARSHALL LEGAL SOCIETY and BLACK PRE-LAW ASSOCIATION,

Proposed Intervenors-Defendants-Appellants.

On Appeal from the United States District Court 
for the Western District of Texas

REPLY BRIEF OF PROPOSED INTERVENORS-APPELLANTS

Janell M. Byrd 
NAACP Legal Defense & 

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

D avid Van Os 
Van Os & Owen 

900 Congress Avenue 
Suite 400 
Austin, TX 78701 
(512) 479-6155 
Texas Bar No. 20450700

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Alan Jenkins 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900

A nthony P. Griffin 
1115 Moody 
Galveston, Texas 77550 
(409) 763-0386 
Texas Bar No. 08455300

Counsel for Proposed Intervenors-Appellants



TABLE OF CONTENTS

ARGUMENT ..........................................................................................................................  1

I. PROPOSED INTERVENORS’ INTERESTS CANNOT BE
ADEQUATELY PROTECTED BY THE STATE DEFENDANTS ___  1

II. PROPOSED INTERVENORS DEMONSTRATED THE OTHER
REQUIREMENTS FOR INTERVENTION AS OF RIGHT ..................  6

A. Proposed Intervenors’ Motion Was T im ely ....................................... 6

B. Proposed Intervenors’ Have a Legally Protectable Interest .............. 7

C. Proposed Intervenors’ Interests Would Be Impaired By An
Adverse Resolution Of This Litigation .............................................. 9

III. THE DISTRICT COURT ERRED IN DENYING PERMISSIVE
INTERVENTION ........................................................................................... 9

CONCLUSION 10



TABLE OF AUTHORITIES

Cases: Pages:

Adams v. Bell,
Civ. No. 3095-70 (D.D.C. March 24, 1983).................................................................. 5

American Legal Foundation v. F.C.C.,
808 F.2d 84 (D.C.Cir. 1987) ........................................................................................  8

Associated General Contractors v. City of New Haven,
130 F.R.D. 4 (D.Conn. 1990) .................................................................................. 2, 4

Associated General Contractors v. San Francisco,
35 Empl. Prac. Dec. 34,919 (N.D.Cal. 1985)...............................................................  2

Associated General Contractors v. Secretary of
Commerce, 459 F. Supp. 766 (C.D.Cal. 1978).............................................................  2

Atlantis Development Corp. v. United States,
379 F.2d 818 (5th Cir. 1967) ........................................................................................  9

Chiles v. Thornburgh,
865 F.2d 1197 (11th Cir. 1989)......................................................................................  4

Dimond v. District of Columbia,
792 F.2d 179 (D.C. Cir. 1986) ......................................................................................  4

Hines v. D’Artois,
531 F.2d 726 (5th Cir. 1976) ........................................................................................  3

Hines v. Rapides Parish School Board,
479 F.2d 762 (5th Cir. 1973) ........................................................................................  8

Jansen v. City of Cincinnati,
904 F.2d 336 (6th Cir. 1990) ........................................................................................  2

Knight v. Alabama,
No. 92-6160 (11th Cir. Feb. 24, 1994) ........................................................................  7

New York Public Interest Group, Inc. v. Regents of 
the Univ. of the State of New York,
516 F.2d 350 (2d. Cir. 1975)........................................................................................... 4

Piambino v. Bailey,
610 F.2d 1306 (5th Cir. 1980) ......................................................................................  5

ii



In re Sierra Club,
945 F.2d 776 (4th Cir. 1991) ........................................................................................  4

Stallworth v. Monsanto,
558 F.2d 257 (5th Cir. 1977) ...............................................................................  5,6 ,1

Trbovich v. United Mine Workers,
404 U.S. 528 (1972) ......................................................................................................  2

United States v. Allegheny-Ludlum Indus.,
517 F.2d 826 (5th Cir. 1975) ........................................................................................  3

United States v. Fordice,
505 U.S.__ , 120 L. Ed. 2d 575 (1992)........................................................................  7

United States v. Perry County Board of Education,
567 F.2d 277 (5th Cir. 1978) ........................................................................................  8

United States v. Texas Education
Agency (Austin Ind. Sch. Dist.),
467 F.2d 848 (5th Cir. 1972) ........................................................................................  4

Statutes: Pages:

Fed. R. Civ. P. 24(a) ............................................................................................................... 10

42 U.S.C. § 2000d ............................................................................................................  5, 8, 9

Pages:

iii



No. 94-50083

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

CHERYL J. HOPWOOD, et al.,

Plaintiffs-Appellees,

v.

STATE OF TEXAS, et aL 

Defendants-Appellees, 

and

THURGOOD MARSHALL LEGAL SOCIETY and BLACK PRE-LAW ASSOCIATION,

Proposed Intervenor-Defendants-Appellants.

On Appeal from the 
United States District Court 

for the Western District of Texas

REPLY BRIEF OF PROPOSED INTERVENORS-APPELLANTS

ARGUMENT

I.
PROPOSED INTERVENORS’ INTERESTS CANNOT BE ADEQUATELY 

PROTECTED BY THE STATE DEFENDANTS

In their principal brief, proposed intervenors demonstrated, inter alia, that the special 

circumstances arising in affirmative action cases disable the State defendants in this case from 

adequately representing the interests of proposed intervenors, African-American students who 

are the beneficiaries of the Law School’s existing admissions policy. Plaintiffs’ brief studiously



avoids addressing the adversity of interests that necessarily arises from this conflict. Indeed, 

plaintiffs fail to identify a single case in which the minority beneficiaries of a race-conscious 

remedial policy were found to be adequately represented by a governmental defendant. 

Proposed intervenors, by contrast, have noted numerous affirmative action cases in which 

representation was found not to be inadequate. See Appellants’ Brief ("App. Br.") at 20. 

Moreover, most of these cases involve governmental institutions that lack the sustained history 

of de jure segregation and official discrimination against the proposed intervenors’ group that 

exists in the instant case. See, e.g., Jansen v. City o f Cincinnati, 904 F.2d 336 (6th Cir. 1990); 

Associated General Contractors v. City of New Haven, 130 F.R.D. 4 (D.Conn. 1990); Associated 

General Contractors v. San Francisco, 35 Empl. Prac. Dec. 34,919 (N.D.Cal. 1985). As these 

cases recognize, "while the various governmental defendants may indeed represent the overall 

public interest, these defendants may not necessarily represent the interests of the applicants 

for intervention, just as these defendants, while representing the ’public interest’ do not 

represent necessarily the interests of the plaintiffs." Associated General Contractors v. Secretary 

o f Commerce, 459 F. Supp. 766, 771 (C.D.Cal. 1978).

Plaintiffs’ only response to the demonstrated adversity of interests existing between 

proposed intervenors and the existing parties is their assertion that proposed intervenors make 

no reference to "the record" to indicate "that the defendants will not do everything within their 

power . . .  to defend this lawsuit." Plaintiffs-Appellees’ Brief in Opposition ("Op. Br.") at 10 

(footnote omitted). But as plaintiffs well know, there is no "record" in this case with regard to 

the motion to intervene. The district court declined to hold a hearing on the issue of 

intervention and there has been no trial in this action. Moreover, it is well established that the 

requirement of inadequate representation "is satisfied if the applicant shows that representation 

of his interest ‘may be' inadequate . . . ." Trbovich v. United Mine Workers, 404 U.S. 528, 538

2



n.10 (1972) (emphasis added); see also Hines v. D ’Artois, 531 F.2d 726, 738 (5th Cir. 1976) 

(same). The posture and undisputed facts of this case clearly satisfy this requirement.

Plaintiffs’ other arguments regarding adequacy of representation are similarly without 

merit. For example, plaintiffs misconstrue proposed intervenors’ position as to defendants’ 

interest in avoiding future liability. (Op. Br. 11). TMLS and BPLA do not argue that they may 

at some point in the future be involved in litigation against defendants. Rather, proposed 

intervenors assert that the State defendants are severely hampered in their defense of the 

challenged admissions program in this case by the danger of incriminating themselves. Contrary 

to plaintiffs’ suggestion, this conflict is both current and tangible.

The same is true of the other conflicting state interests identified by proposed 

intervenors. The public defendants’ interests in avoiding substantial fiscal or administrative 

burdens, public or political criticism, and broad-based civil rights liability are likely to conflict 

with the goal of defending an affrimative action admissions policy. By contrast, proposed 

intervenors are uniform in their interests and objectives and unfettered by these conflicts.1

United States v. Allegheny-Ludlum Indus., 517 F.2d 826 (5th Cir. 1975), relied upon by 

plaintiffs, (Op. Br. at 9, 17), supports this conclusion. In Allegheny-Ludlum, the district court 

granted intervention to thirty-six individuals, including three women specifically appointed by 

the National Organization of Women ("NOW"), and represented by NOW’s counsel. Id. at 839. 

The district court denied intervention to NOW, and this Court affirmed, in reliance on the fact 

that NOW’s interests were adequately represented by its designees and counsel, not by the

'Plaintiffs also suggest that because they have named "a significant number of individual 
defendants," in this action (Op. Br. 8), some defendants may not have interests adverse to the 
proposed intervenors. This argument is spurious given that plaintiffs’ complaint names these 
defendants in their official capacity. [First Amended Complaint at HIT 16-21] (R.789-91). 
Plaintiffs cannot seriously contend that these governmental officials do not share a common set 
of institutional interests in this litigation.

3



government. Thus, this Court concluded that, "[h]aving participated through its nominees and 

counsel during these entire proceedings, NOW cannot be heard to complain of the adequacy 

of the feminist representation." Id. at 846. Where, as in the instant case, there is potential 

adversity between a governmental party and a proposed intervenor, and no other existing party 

shares the potential intervenors’ interests, courts have not hesitated to grant intervention as of 

right. See, e.g., United States v. Texas Education Agency (Austin Ind Sch. DisL), 467 F.2d 848, 

853 n.5 (5th Cir. 1972) (allowing intervention to African-American students to intervene in 

desegregation suit brought by federal government); In re Sierra Club, 945 F.2d 776, 780 (4th Cir. 

1991) (allowing an environmental organization to intervene as a defendant in an action brought 

by hazardous waste handler challenging a South Carolina environmental regulatory law as 

unconstitutional); Dimond v. District o f Columbia, 192 F.2d 179, 192 (D.C. Cir. 1986) (private 

party was seeking to protect a narrower, financial interest while government represented 

general public interest; thus party’s interest could not be subsumed within public interest); New 

York Public Interest Group, Inc. v. Regents of the Univ. o f the State o f New York, 516 F.2d 350, 

352 (2d. Cir. 1975) (intervention by three pharmacists and a pharmacy association allowed in 

a challenge brought by a consumer group against the Regents to enjoin enforcement of a 

statewide regulation because pharmacists had an economic concerns in the regulation that 

might have differed from that of the Regents); Chiles v. Thornburgh, 865 F.2d 1197, 1214-15 

(11th Cir. 1989) (federal prison detainees’ interests may not be represented adequately by 

county); Associated General Contractors o f Connecticut, Inc. v. City o f New Haven, 130 F.R.D. 

4, 11-12 (D. Conn. 1990) (minority contractors’ compelling economic interests were sufficient 

to show that city might not adequately represent their interests, even though both parties were 

committed to defending set-aside statute).

4



Thus, the adversity of interests between proposed intervenors and defendants in this case 

is not merely a disagreement regarding trial strategy. Rather, it is the fundamental difference 

between the victims and the perpetrators of racial discrimination; between an institution 

required to adopt an affirmative action policy to remedy past discrimination against African 

Americans, and the African American beneficiaries of that policy.

Plaintiffs also argue that if, as proposed intervenors contend, intervention was 

unnecessary before the denial of defendants’ summary judgment motion, then representation 

must automatically remain adequate throughout the litigation. (Op. Br. at 8 n.5). This 

argument fundamentally misconstrues the requirement of inadequacy. So long as the litigation 

was focused on ending the suit on standing and ripeness grounds, defendants were not required 

to demonstrate the continuing effects of their past discriminatory practices and, consequently, 

the adversity of interest inherent in that exercise was not implicated. Moreover, proposed 

intervenors could offer no unique perspective, argument, or evidence regarding these 

procedural matters. Once the inquiry turned to the present effects of past discrimination, 

however, representation by the defendants became inadequate and intervention became 

appropriate. Piambino v. Bailey, 610 F.2d 1306, 1321 (5th Cir. 1980); Stallworth v. Monsanto, 

558 F.2d. 257, 264-65 (5th Cir. 1977).

Finally, plaintiffs are also incorrect in asserting, (Op. Br. at 7), that the continuing 

history of discrimination by the State defendants is somehow too distant to demonstrate 

adversity of interest. The University of Texas was found to be in violation of Title VI of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., in 1983 and has never been found to have 

eliminated the vestiges of its de jure segregated system. See Adams v. Bell, Civ. No. 3095-70 

(D.D.C. March 24, 1983) [Exhibit D to Motion to Intervene] (R. 698, et seq.). Moreover, as 

proposed intervenors’ principal brief made clear, (App. Br. 7, and cases cited therein), elements

5



of defendants’ system of elementary and secondary education have yet to be declared unitary, 

and others were found to be unitary only after plaintiffs and proposed intervenors’ members 

graduated from high school. The defendants’ pattern of discrimination against 

African-American students extends to the present day and makes a finding of adequate 

representation inappropriate.

II.
PROPOSED INTERVENORS DEMONSTRATED THE OTHER REQUIREMENTS

FOR INTERVENTION AS OF RIGHT

In denying TMLS’s and BPLA’s motion to intervene, the district court relied solely on 

its conclusion that the existing defendants adequately represented proposed intervenors’ 

interests. [Order Denying Intervention at 4] (R. 746). Proposed intervenors established the 

other requirements for intervention as of right both in their application to the district court and 

in their principal brief before this Court. Plaintiffs’ arguments to the contrary are without 

merit.

A. Proposed Intervenors’ Motion Was Timely

Plaintiffs’ brief misconstrues the timeliness inquiry that is applicable on appeal. While 

plaintiffs repeatedly stress the current status of discovery, (Op. Br. 12, 15), the relevant inquiry 

is the timeliness of the application to the district court at the time that it was made. See, e.g., 

Stallworth v. Monsanto Co., 558 F.2d 257, 264-68 (5th Cir. 1977). The current status of 

discovery is irrelevant to the timeliness inquiry.

Plaintiffs also err in asserting that proposed intervenors’ "entry into the case will cause 

delay in discovery . . . the trial date, and ultimately, plaintiffs’ ability to obtain the relief they 

seek . . . ." (Op. Br. 15) (emphasis added). As this Court has made clear, however,

6



[f]or the purpose of determining whether an application for intervention is 
timely, the relevant issue is not how much prejudice would result from allowing 
intervention, but rather how much prejudice would result from the would-be 
intervenor’s failure to request intervention as soon as he knew or should have 
known of his interest in the case.

Stallworth, 558 F.2d at 267.

Plaintiffs have failed to identify any way in which they were prejudiced by proposed 

intervenors’ failure to intervene between the date plaintiffs filed their complaint and the date 

that proposed intervenors filed their motion to intervene in the district court. Indeed, 

according to plaintiffs’ logic, an earlier filing by TMLS and BPLA would have burdened 

plaintiffs with additional discovery responsibilities prior to the denial of defendants’ motion for 

summary judgment. In this respect, proposed intervenors aided plaintiffs by seeking to 

intervene only after the resolution of defendants’ summary judgment motion.

For the same reasons, the district court’s discussion of potential delay in denying 

TMLS’s and BPLA’s motion for permissive intervention is irrelevant to the question of 

timeliness in their motion to intervene as of right. Plaintiffs’ attempt to construe this language 

in the court’s opinion as a timeliness determination subject to review for abuse of discretion, 

(Op. Br. 13 n.12), is disingenuous at best. The district court did not address the question of 

timeliness and proposed intervenors’ motion was timely filed.

B. Proposed Intervenors’ Have a Legally Protectable Interest 

Proposed intervenors’ legal interests in the outcome of this legislation are well- 

recognized by the courts. Chief among them is the interest in attending an institution from 

which the vestiges of past segregation have been or are being remedied, United States v. Fordice,

505 U .S .__ , 120 L. Ed. 2d 575, 592 (1992); Knight v. Alabama, No. 92-6160, Slip. op. at 5

(11th Cir. Feb. 24, 1994). Thus, plaintiffs’ comparison to the nebulous "right" to attend a

7



neighborhood school rejected in United States v. Perry County Board o f Education, 567 F.2d 277 

(5th Cir. 1978), is misplaced. In Perry, this Court held simply that opposition to an existing 

party’s position on "policy grounds" does not rise to the level of a protectable interest. Id. at 

279-280. Significantly, the Perry Court did recognize a protectable interest in a desegregated 

school system. In that regard, this Court stated: "[cjertainly eveiy group must be allowed the 

opportunity to show the court that the desired and legally required unitaiy school system has 

not been achieved by an earlier court order." Id. at 277, quoting Hines v. Rapides Parish School 

Board, 479 F.2d 762, 765 (5th Cir. 1973). A unitary educational system is precisely the interest 

that proposed intervenors are pursuing in this case.2

Indeed, the nature of proposed intervenors’ interest in this case is veiy similar to that 

asserted by the plaintiffs themselves; although the parties are at odds regarding what the 

Constitution and Title VI require. In finding that plaintiffs had standing to bring this suit, the 

district court held not that plaintiffs would have been admitted absent the challenged 

admissions policy, but that they were injured by consideration under a policy that is allegedly 

unlawful. [Memorandum and Order Denying Motion for Summary Judgment at 9] (R. 597). 

Similarly, BPLA seeks to prevent its members’ from being considered under an unlawful 

admissions policy; that is, one from which the effects of past discrimination have not been 

eliminated. TMLS seeks to preserve its members’ interests in attending an institution that is

2Plaintiffs are also incorrect in asserting that proposed intervenors have failed to 
demonstrate that their members "have a significant influence over the policy decisions of the 
organization." (Op. Br. at 18). For example, BPLA’s Constitution, included in the Motion to 
Intervene as Exhibit B(l) (R. 669-78), provides that a majority of active members present and 
voting is required for passage of any proposition. Art. VIII. Similarly, TMLS’s Constitution 
provides that the organization’s operating by-laws may be adopted or altered only through a 
majority vote of the membership. [Art. IX, Exhibit A(l) to Motion to Intervene] (R. 659-68). 
In any event, American Legal Foundation v. F.C.C., 808 F.2d 84 (D.C.Cir. 1987), cited by 
plaintiffs, was a case in which the organization asserting standing had no members at all. Id  
at 89. BPLA and TMLS are inarguably membership organizations and American Legal 
Foundation is therefore inapposite.

8



operated in accordance with Title VI and the Equal Protection Clause. After successfully 

defending their legal interest in dismantling the existing admissions policy, plaintiffs cannot 

reasonably argue that proposed intervenors’ identical interest in preserving that policy is 

inadequate.3

C. Proposed Intervenors’ Interests Would Be Impaired By An Adverse Resolution 
Of This Litigation

In their principal brief, proposed intervenors demonstrated that their interest in 

preserving an affirmative action admissions policy would be impaired, inter alia, by the negative 

stare decisis effect of an adverse ruling in this case, and by the immediate negative impact on 

BPLA, TMLS and their members in the period between an adverse ruling in this case and the 

resolution of any collateral litigation. (App. Br. 26-27). Plaintiffs’ brief does not question the 

validity of either of these arguments, and each presents a suficient impairment to require 

intervention as of right. See, e.g., Atlantis Development Corp. v. United States, 379 F.2d 818, 

828-29 (5th Cir. 1967) (potential stare decisis alone provides requisite impairment of ability to 

protect interest).

III.
THE DISTRICT COURT ERRED IN DENYING PERMISSIVE INTERVENTION 

Plaintiffs’ brief does not challenge the grounds for permissive intervention established 

in proposed intervenors’ principal brief. Instead, plaintiffs choose merely to recite the standard

3Plaintiffs are also factually incorrect in asserting that "there is no evidence in the record 
that a particular member [of BPLA] intends to apply to any law school, much less the 
University of Texas Law School." Op. Br. 20 (emphasis in original). The declaration of BPLA 
President Suneese Haywood states both that many BPLA members seek to attend the 
University of Texas School of Law, and that each year several BPLA members apply to the Law 
School. [Exhibit B to Motion to Intervene at 3] (R.669-78).

9



of review applicable in the appeal of motions under Fed. R. Civ. P. 24(a). (Op. Br. 23). 

Proposed intervenors agree that the district court’s denial of permissive intervention is to be 

reviewed for abuse of discretion but assert, for the reasons identified in their principal brief, 

that the court below abused its discretion in this case.

CONCLUSION

For the reasons set forth herein, and in proposed intervenors’ prior brief, this Court 

should summarily reverse the district court’s denial of appellants’ Motion to Intervene and 

remand with directions to the lower court to permit intervention.

Respectfully submitted,

Theodore M. Shaw 
Norman J. Chachkin 
Alan Jenkins 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 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

Anthony P. Griffin 
1115 Moody 
Galveston, Texas 77550 
(409) 763-0386 
Texas Bar No. 08455300

David Van  Os 
Van Os & Owen 

900 Congress Avenue 
Suite 400 
Austin, TX 78701 
(512) 479-6155 
Texas Bar No. 20450700

Counsel for Proposed Intervenors-Appellants

10



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Plaintiffs’ REPLY BRIEF OF PROPOSED 
INTERVENOR-DEFENDANTS-APPELLANTS, have been served by depositing same with 

Federal Express, postage prepaid, on this 26th of March, 1994, addressed to the following:

Steven W. Smith 
3608 Grooms Street 
Austin, Texas 78705

Michael P. McD onald 
Center for Individual Rights 
1300 19th Street, N.W., #260 
Washington, D.C. 20036

Counsel For Plaintiffs

Samuel Issacharoff, Esq . 
Charles Alan Wright, Esq . 
U niversity of Texas Law School 
727 East 26th Street 
Austin, Texas 78705

Javiar Aguilar, Esq .
Special Assistant Attorney General 
1019 Congress, Suite 1550 
Houston, Texas 77007-1702

Counsel for Defendants

Terral R. Smith
100 Congress Avenue., #1100
Austin, Texas 78768-2023

R. Kenneth Wheeler 
Joseph A. Wallace 
Paul J. Harris
Wallace, Harris, Sims & Wheeler 
1100 Boulders Parkway 
Suite 100
Richmond, VA 23225

Harry M. Reasoner, Esq . 
Betty Owens, Esq .
Vinson & Elkins 
3300 First City Tower 
1001 Fannin Street 
Houston, TX 77002

R. Scott Placek, Esq . 
Barry D. Burgdorf, Esq . 
Vinson & Elkins 
600 Congress Ave.
Austin, TX 78701-3200