Greene v. Podbersky Petition for a Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    No. 94-1621

In The

&upremt Court of tfte ®Wteb j&tates
October Term, 1994

Monica Greene, et aL,
Petitioners,

V.

Daniel J. Podberesky,
Respondent.

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

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT
William J. Murphy 
John J. Connolly 

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

Sally P. Paxton 
Jacoueune R. Depew 

Fulbright & Jaworski 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

Questions Presented for Review
1. Whether a State — that maintained a de jure 

segregated higher education system for more than a century; 
that for a generation after Brown v. Board o f Education took 
few meaningful steps to dismantle the dual system, acting 
only when threatened by federal officials with loss of 
funding; that had not been released from its remedial 
obligations by federal authorities; that continued to operate 
the same racially identifiable institutions that existed under 
the dual system; and that had been unsuccessful in prior 
efforts to increase the low level of African-American 
enrollment and graduation at its historically white "flagship" 
institution or to alter the longstanding climate of hostility to 
blacks on that campus -  was justified in 1989, as part of its 
desegregation plan, in continuing to award a small number 
of scholarships to high-achieving African-American students 
at that campus.

2. Whether the court below erred in holding, contrary 
to the decision in Bazemore v. Friday, 478 U.S. 385 (1986), 
that statistical evidence of underrepresentation lacks any 
probative value on the issue of discrimination unless every 
imaginable explanatory factor is included in the calculation.

3. Whether the Court of Appeals "departed from the 
accepted and usual course of judicial proceeding," Sup. Ct. 
R. 10.1(a). disregarded the requirements of Fed. R. Civ. P. 
56(c). and misapplied the teachings of this Court when, after 
having found that there were genuine disputes about facts 
material to the parties cross-motions for summary judgment, 
it not only reversed the trial court’s summary disposition in 
favor of the defendant parties but also directed that on 
remand, summary judgment should be entered for the 
plaintiff.



11

TABLE OF CONTENTS

Questions Presented for Review ....................................... j
Table of Authorities.........................................................  jjj
Opinions B e low .....................................................................j

Jurisdiction ........................................................................... 2

Constitutional and Statutory Provisions Involved........... 2
Statement of the Case ......................................................... 2

Maryland’s de jure segregated system of
higher education .......................................................3

The Banneker scholarship program ....................... 6
Initial litigation ......................................................... 8

Proceedings after remand .............................. 10
The ruling be low ..................................................  14

REASONS FOR GRANTING THE WRIT

I This Case Presents Issues of Extraordinary
National Importance ...........................................  15

There Is A Compelling Need for 
Race-Conscious Remedial Action at UMCP . . .  17

The Approach of the Court Below 
Allows Insufficient Room for Necessary 
Race-Conscious Remedial S teps...........................21

Page



Ill

TABLE OF CONTENTS (continued)

Pape
II The Decision Below Rests Upon A Wholly 

Erroneous View of Statistical Proof in 
Discrimination Cases that is Contrary
to the Explicit Teaching of this Court
in Bazemore v. Friday, 478 U.S. 385
(1986), a Ruling in Which This Court
Reversed the Same Court of Appeals for
the Same E r ro r .......................................................24

III Since the Court Below Concluded that 
There Were Genuine Disputes about Facts 
Material to the Cross-Motions for Summary 
Judgment, It Acted Contrary to Fed. R. Civ.
P. 56(c) and the Decisions of this Court
in Directing the Trial Judge to Enter Summary 
Judgment for the Plaintiff on R em and ................26

Conclusion..................................  -jo

Table of Authorities
Cases:

Anderson v. City of Bessemer City, 470 U.S.
564 (1985).............................................................  29

Anderson v. Liberty Lobby, 477 U.S. 242
0 9 8 6 ) .................................................................... 27n

Ayers v. Fordice, No. 4:75CV009-B-0
(N.D. Miss. March 7, 1995) ................................. 19

Bazemore v. Friday, 478 U.S. 385 (1986)___ i, 19, 24, 26



IV

Table of Authorities (continued)

Cases (continued):

Bazemore v. Friday, 751 F.2d 662 (4th
Cir- 1984) ....................................................... 24, 25

Brown v. Board of Education, 347 U.S.
483 (1954)................................................i, 5, 11, 18

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............  27n

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989).........................  8, 9, 15, 17, 21

Firefighters v. Stotts, 467 U.S. 561 (1984)..................  16n

Geier v. Alexander, 593 F. Supp. 1263
(M.D. Tenn. 1984), afFd, 801 F.2d
799 (6th Cir. 1986) .............................................  20

Hughes v. United States Dep’t of Education,
Civ. No. N-76-01 (D. Md. June 3, 1985)...........  5n

Johnson v. Transportation Agency, 480 U S
616 (1987).........................................................  15-16

Knight v. State of Alabama, 787 F. Supp.
1030 (N.D. Ala. 1991), affd in part,
rev’d in part, vacated in part and
remanded, 14 F.3d 1534 (11th Cir. 1994) .........  20

Local 28 v. EEOC, 478 U.S. 421 (1986)

Local No. 93 v. City of Cleveland, 478 
U.S. 501 (1986).........................



V

Cases (continued):

Lujan v. National Wildlife Federation,
497 U.S. 871 (1990).............................................  27

Mandel v. HEW, 411 F. Supp. 542 (D. Md.
1976), affd, 571 F.2d 1273 (4th Cir.),
cert, denied, 439 U.S. 862 (1978)....................... 5n

McCready v. Byrd, 195 Md. 131, 73 A.2d 8,
cert, denied, 340 U.S. 827 (1950)....................  4-5

Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936) . . . 4n

Pullman-Standard v. Swint, 456 U.S. 273 (1982) .........  29

United States v. Fordice,__ U.S.___ , 112
S. Ct. 2727 (1992) ....................  6n, 10, 17, 19, 26n

United States v. Louisiana, Civ. No. 80-3300
(E.D. La. Nov. 14, 1994) ....................................  20

United States v. Paradise, 480 U.S. 149 (1987) .........  16n

Wygant v. Jackson Bd. of Educ., 476 U.S. 267
(1986) ........................................................  16, 18, 22

Statutes and Court Rules:

7 U.S.C. §§ 301 et seq. (1988 & Supp. V 1993)..............4

20 U.S.C. § 3413 (1988) .................................................. 5n

20 U.S.C. § 3441(a)(3) (1988 & Supp. V 1993) ...........  5n

Table of Authorities (continued)

Page



VI

Statutes and Court Rules (continued):
28 U.S.C. § 1254(1) ........................................................... 2

42 U.S.C. § 2000d ..................................................  2,8,21

1878 Md. Rev. Code, Art. 27, §§ 95, 98 .........................  3n

1872 Md. Laws Ch. 377 ..................................................  3n

1870 Md. Laws Ch. 311 .................................................... 3n

1868 Md. Laws Ch. 407 .................................................. 3n

1865 Md. Laws Ch. 160 .................................................... 3n

Sup Ct R. 10.1 (a) ...........................................................  j

Sup. Ct R. 14.1 ( k ) ..............................................................2n

Fed. R. Civ. P. 5 2 ...........................................................  29

Fed. R Civ. P. 56(c) ............................................. i, 26, 27, 29

Other Authorities:

59 Fed. Reg. 8756 (February 23, 1 994 )......................... 20n

59 Fed. Reg. 4271 (January 31, 1994).............................  6n

43 Fed. Reg. 6658 (February 15, 1978 )................  5n, 20n

Md. House J. 1141 (1867)................................................ 3n

Table of Authorities (continued)

Page



Vll

Paee

Table of Authorities (continued)

Other Authorities (continued):
Md. Sen. J. 808 (1867)....................................................  3n

Gil Kujovich, Equal Opportunity in Higher
Education and the Black Public College:
The Era of Separate But Equal, 72 Minn.
L. Rev. 29 (1987)...............................................

Carl T. Rowan, Dream Makers, Dream Breakers
(1993)....................................................................4n



In The

Supreme Court of tfje fSlufttb States
October Term, 1994 

No. 94-

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

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT
Monica Greene, et aL, defendant-intervenors in the 

trial court and appellees below,1 respectfully pray that this 
Court issue a Writ of Certiorari to review the judgment of 
the United States Court of Appeals for the Fourth Circuit 
in this matter.

Opinions Below
The initial opinion of the District Court is reported 

at 764 F. Supp. 364 (D. Md. 1991) and is reprinted in the

‘The parties to this litigation are: Daniel J. Podberesky (the
plaintiff); William E. Kirwan, President of the University of Maryland at 
College Park, the University of Maryland at College Park (UMCP) (the 
defendants); Monica Greene [the surname is misspelled in the Court of 
Appeals' caption], Maudlyn George, on her own behalf and on behalf of 
her daughter Allison George, Eileen Heath, Richard A. Dalgetty, Gerard 
W. Henry, Maisha Herren, Aletha S. McRae, on her own behalf and on 
behalf of her daughter Daletha McRae, and Charles L. Smith, III, on his 
own behalf and on behalf of his son, Charles Smith, IV (the defendant- 
intervenors).



2

Appendix2 [hereinafter cited as "_a."] at 109a-138a. The 
opinion of the United States Court of Appeals for the 
Fourth Circuit reversing and remanding is reported at 956 
F.2d 52 (4th Cir. 1992) and appears at 96a-108a. The 
opinion of the District Court on remand is reported at 838 
F. Supp. 1075 (D. Md. 1993) and is found at 34a-95a. The 
opinion of the United States Court of Appeals for the 
Fourth Circuit, of whose judgment review is sought, is 
reported at 38 F.3d 147 (4th Cir. 1994) and is printed at la- 
293. The Order of the United States Court of Appeals for 
the Fourth Circuit denying timely filed petitions for 
rehearing, three Judges dissenting, is reported at 46 F.3d 5 
(4th Cir. 1994) and is reprinted at 30a-33a.

Jurisdiction
The jurisdiction of this Court is invoked pursuant to 

28 U.S.C. § 1254(1). The Order denying the petitions for 
rehearing was entered December 30, 1994 (30a).

Constitutional and Statutory Provisions Involved
This case involves the Fourteenth Amendment to the 

United States Constitution and Title VI of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000d; the text of each is set out at 
221a-222a.

Statement of the Case
This suit was brought by Daniel Podberesky, a white 

student of Hispanic descent who in 1989 was granted 
admission to the Fall, 1990 undergraduate class at the 
University of Maryland at College Park ("UMCP") but was

2Although defendant-in tervenors Greene, et al. and defendants 
Kirwan and University of Maryland at College Park are filing separate 
Petitions for Writs of Certiorari, a single Appendix containing the rulings 
below and other materials required by Sup. Cr. R. 14.1(k) has been 
prepared for both Petitions.



3

held ineligible to receive a Benjamin Banneker scholarship 
to the school because the Banneker program was limited to 
African Americans in accordance with a plan adopted by the 
State of Maryland to desegregate its institutions of higher 
education.3

Maryland’s de jure segregated system of higher education

Maryland has a typically extensive history of 
segregation in higher education, dating to Colonial times.4 
The first public institutions of higher learning that received 
public funds (from 1782 to 1810) were open only to whites 
(UX 70 at 138). Later in the 19th century, the State 
resumed chartering and funding higher education institutions 
and professional schools which were available only to whites

JOne of plaintiffs parents is from Costa Rica. He originally claimed 
that the Banneker Program at UMCP should have been available to 
persons of Hispanic descent, whom he asserted were also victims of prior 
discrimination, as well as to African Americans. This claim was not 
passed upon by the District Court nor presented to or decided by the 
court below. Cf. 764 F. Supp. at 378, 136a-137a (rejecting similar claim 
with respect to Key Scholarship program).

‘State authorities admit that prior to 1865, despite having the largest 
number of free blacks of any southern state (UX 70 at 38), all of the 
educational opportunities provided by the State were "in favor of the 
white race" -  there being no colleges for blacks or evidence that the 
white institutions enrolled blacks (IX 4 at 127). (Citations in the form 
"u x  and IX are to exhibits to the defendants’ and defendant- 
mtervenors’ 1993 Motions for Summary Judgment.)

Following the Civil War, the legislature of the State of Maryland 
refused to ratify the Fourteenth Amendment to the Constitution, Md. 
Sen. J. 808 (1867), Md. House J. 1141 (1867), and in 1870 enacted a new 
Public Education Act extending free public education to "[a]ll white 
youth between the ages of six and twenty-one years" (previously limited 
to age nineteen) and maintaining separate schools for "colored children" 
between the ages of six and twenty. 1870 Md. Laws Ch. 311 (Public Edu­
cation Act of 1870); see also 1865 Md. Laws Ch. 160; 1868 Md. Laws Ch. 
407; 1872 Md. Laws Ch. 377; 1878 Md . Rev. Code, Art. 27, §§ 95, 98.



4

(id. at 138-39), including, in 1859, the Maryland Agricultural 
College (now UMCP), which became the State’s land-grant 
institution under the 1862 Morrill Act, 7 U.S.C. §§ 301 et 
seq. (1988 & Supp. V 1993). The school was open only to 
white males until 1916, when it admitted white females. 
(UX 70 at 141-42). Between 1866 and 1909 four higher 
education institutions for blacks, all founded by religious 
groups, were chartered by the State but received little if any 
state aid (id. at 141).5

By 1937, the State Commission on the Higher 
Education of Negroes found that of the four schools 
providing education for blacks, only one was accredited and 
that instruction in all was "considerably inferior" to that in 
the white institutions; the Commission recommended that 
the only state college for blacks, Princess Anne Academy, 
"had far better be abandoned altogether than continue its 
present pretense as a college" (IX 4 at 11-12, 26-27). In 
response to pressure to address these inequities or 
desegregate, Maryland chose to pay for a limited number of 
African Americans to attend out-of-state institutions rather 
than inegrate its own colleges and universities (IX 5 at 93- 
95). Finally, in the early 1950’s several blacks successfully 
sued for admission to UMCP. E.g., McCready v. Byrd 195

Even after the 1890 Morrill Act required Maryland to designate a 
land-grant college for African Americans in order to receive federal land- 
grant aid, it appears that the State failed to allocate funds to the black 
institution, instead allowing all state funding to flow to UMCP (IX 4 at 
136).

®The first court challenge to Maryland’s de jure segregated higher 
education system came after the State denied Thurgood Marshall 
admission to its law school, see Carl T. Rowan, Dream Makers, 
Dream Breakers 45-46 (1993). After graduating from Howard Law 
School. Marshall won an order directing the admission of Donald Murray 
to the University of Maryland Law School. Pearson v. Murray 169 Md 
478, 182 A. 590 (1936). V



5

Md. 131, 73 A.2d 8, cert denied, 340 U.S. 827 (1950); see 
also UX 70 at 154; IX 6.

After the decision in Brown, University officials voted 
in 1954 to remove restrictions on black enrollment (UX 70 
at 155), but took few steps in the ensuing two decades to 
change the racially dual character of the higher education 
system. Only when threatened with loss of funding by the 
federal government’s Office for Civil Rights ("OCR") in the 
1970’s and early 1980’s did Maryland begin to take steps to 
dismantle its dual system.7

In 1985, Maryland proposed a higher education 
desegregation plan that OCR accepted. The plan reflected 
OCR’s strong encouragement of using "other-race" financial 
assistance (aid made available to students who are members 
of groups that are underrepresented at racially identifiable 
institutions operated under the dual system) as a 
desegregation tool. For the period 1985-89, over $7,900,000

'In 1969, the Office for Civil Rights of the United States Department 
of Health. Education and Welfare notified Maryland that it was 
continuing to operate a racially segregated system of higher education in 
violation of Title VI (UX 71; see 43 Fed. Reg. 6658 n.2 (Feb. 15, 1978)). 
In so doing. OCR noted the racial identifiability of Maryland’s colleges: 
three formerly white state colleges and UMCP had enrollments that were 
approximately 99% white, while the three formerly black schools and the 
Princess Anne campus of the University of Maryland had enrollments 
approximately 92% black (UX 71).

In 1975, the State brought an action against OCR to forestall 
formal Title V] enforcement proceedings, Mandel v. HEW, 411 F. Supp. 
542 (D. Md. 1976), offd, 571 F.2d 1273 (4th Cir.), cert, denied, 439 U.S. 
862 (1978). That litigation was dismissed in 1985 when OCR accepted 
a five-year desegregation plan from the State. Stipulation of Dismissal 
at 2, Hughes v. United States Dep’t o f Education, Civ. No. N-76-01 (D. 
Md. June 3, 1985). (The responsibilities of HEW* Office for Civil 
Rights were transferred to the Office for Civil Rights of the U.S. 
Department of Education following its establishment in 1980, 20 U.S.C. 
§ 3441(a)(3) (1988 & Supp. V 1993); see also 20 U.S.C. § 3413 (1988).)



6

in other-race financial assistance was provided to students at 
all institutions; $2,387,065 at historically black schools and 
$5,586,103 at other institutions.8 Although black enrollment 
at several historically white colleges, particularly UMCP, 
increased during the life of the plan, by 1990 more than 60% 
of black full-time undergraduate students in Maryland public 
colleges still attended one of the four historically black 
institutions (UX 43, Table B-8). African-American students 
made up 11.2% of UMCP’s enrollment that year (UX 21).9
The Banneker scholarship program

The Banneker Program was originally established by 
UMCP in 1978 as part of the State of Maryland’s efforts to 
comply with the OCR requirement that it dismantle its 
segregated system of higher education. In 1980, OCR 
concluded that the State s efforts were still inadequate and 
ineffective. The agency specifically directed Maryland’s 
attention to the low enrollment of black students at 
traditionally white colleges, including UMCP (UX 81, at 9- 
10). Five years later, OCR explicitly recommended that the 
State increase the number and amount of need- and merit- 
based scholarships designated for African Americans 
enrolled at UMCP (UX 84, attachment at 3).

The Banneker scholarships originally provided $1000 
per year for two years to minority students at UMCP. They 
were subsequently expanded to provide four years’ * *

'Appendix C lo Brief of Amicus Curiae United States Department of 
1 Education, Podberesky v. Kirwan, Civ. No. JFM-90-1685 fD Md filed 
July 27. 1993).

*OCR has not yet made a determination whether Maryland’s higher 
education system is in compliance with the requirements of Title VI. 
The agency has announced that it will apply the standards of this Court’s
ruling in United States v. Fordtce,__ U.S.___ , 112 S. Ct. 2727 (1992), to
pending Title VI evaluations of the expired plans of six states, including 
Maryland. 59 Fed. Reg. 4271-72 (Jan. 31, 1994).



7

undergraduate support (IX 20, at 231a) and in 1981 to 
provide full (in-state) tuition (UX 59, Chart 1). In 1988, 
eligibility for the Banneker program was restricted to 
African-American students and the amount of aid was 
increased to provide support for all costs normally associated 
with matriculation at UMCP. However, in the 1990-91 
school year, the cost represented only one per cent of total 
financial aid available to UMCP students (Id; UX 62; see 
also 838 F. Supp. at 1077, 35a-36a).

At the time plaintiff applied, eligibility for Banneker 
scholarships was restricted to African-American students 
who had been admitted to UMCP and who had a minimum 
high school grade-point average of 3.0 and minimum SAT 
score of 900.10 UMCP selected, from among applicants 
meeting these criteria, those who also demonstrated 
characteristics that had been found to correlate better than 
grades and standardized test scores with retention and 
graduation of black students at UMCP (UX 47 11 17 
[affidavit of Banneker Committee chair]; see also UX 15 at 
4 [study by UMCP professor]; UX 6 at 14-15 [study by Dr. 
Walter Allen, UCLA, commissioned for this case]).

The selection process brought to UMCP, as 
Banneker Scholars, black students who have completed their 
studies and graduated with honors at rates closest to those 
for white students (UX 43 at 13 [study by Dr. William Trent, 
University of Illinois]). Recipients of Banneker scholarships 
do far more than just graduate with honors; they also serve 
as tutors and mentors to other African-American students at 
UMCP and frequently participate in the school’s recruiting 
efforts that are directed toward high schools with substantial

1 838 F. Supp. at 1077, 35a-36a. UMCP. also awards lull-cost, merit- 
based Francis Scott Key scholarships without any racial restriction. Id. 
at 1095, 83a. However, Mr. Podberesky did not qualify for a Key 
scholarship for 1990. 764 F. Supp. at 377, 134a.



8

black student enrollments (UX 6 at 21; UX 9 f  31, UX 12 
II 14 [affidavits of Director and Assistant Director of 
Undergraduate Admissions at UMCP]). A study of African- 
American students’ persistence and graduation from 1974 
through 1992 indicated that the Banneker scholarships were 
an important factor in increasing blacks’ enrollment and 
success at UMCP (UX 43 at 18 [Trent]). As the District 
Court found (838 F. Supp. at 1094-95, 82a-83a):

Continuation of the Banneker Program thus serves to 
enhance UMCP’s reputation in the African-American 
community, increase the number of African- 
American students who might apply to the 
University, improve the retention rate of those 
African-American students who are admitted and 
help ease racial tensions that exist on the campus.

Initial litigation

Respondent’s complaint alleged that restriction of 
Banneker scholarships in 1990 to black students violated, 
inter alia. the Fourteenth Amendment’s Equal Protection 
Clause and Title VI of the 1964 Civil Rights Act, 42 U.S.C.
§ 2000d. Following discovery, the parties (then limited to 
the respondent, and UMCP and its President) filed cross- 
motions for summary judgment. On May 15, 1991, the 
District Court granted summary judgment in favor of the 
University. It held that while the operation of the Banneker 
program was subject to the "strict scrutiny" analysis of City 
of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the 
requirements of that analysis were satisfied.

The district court ruled that Maryland had a 
compelling justification for adopting the Banneker program 
as a means of remedying its own prior discrimination against 
African Americans in the operation of its higher education 
system. The court pointed to OCR’s findings that Maryland 
violated Title VI, to the protracted enforcement proceedings,



9

and to the fact that the federal enforcement agency had not 
yet made a determination that the State had met its 
remedial obligations under Title VI. 764 F. Supp. at 371-73, 
122a-125a. The court stated that "there must be continuing 
effects of past discrimination to justify a race-conscious 
remedy," id. at 374-75, 129a, and that plaintiff offered "some 
evidence" that by 1989 the State’s implementation of its 1985 
desegregation plan had been effective at UMCP. Neverthe­
less, the court found that there was no triable issue as to 
whether UMCP officials in 1989 had a "strong basis in 
evidence" for concluding that the effects of their prior 
discrimination had not yet been eradicated, particularly in 
light of the fact that OCR had not made a determination to 
the contrary. Id. at 372, 123a [citing Croson, 488 U.S. at 
500], 375, 130a. It also held the Banneker Program to be 
"narrowly tailored," as required by Croson and other rulings 
of this Court. Id. at 375-76 (130a-133a).

The Court of Appeals reversed, because it 
determined that the district court "failed to make a 
[sufficiently] specific finding" that there were continuing 
effects of the prior discrimination at the time respondent 
was held ineligible for a Banneker scholarship in 1989. 956 
F.2d at 57, 106a. It emphasized the need for a careful 
review of the facts (id. ):

In determining whether a voluntary race-based 
affirmative action program withstands scrutiny, one 
cannot simply look at the numbers reflecting 
enrollment of black students and conclude that the 
higher educational facilities are desegregated and 
race-neutral or vice versa. It may very well be, given 
the complexities of institutions of higher education 
and the limited record on appeal, that information 
exists which provides evidence of present effects of 
past discrimination at UMCP, but no such evidence 
was brought to our attention nor is it part of the



10

record. . . . Should no further evidence be available 
upon remand, summary judgment for appellant 
would be appropriate.

The Court of Appeals did not reach the "narrowly tailored" 
issue, id. at 57 n.7, 107a n.7.
Proceedings after remand

When the case returned to the District Court in 1992, 
the present Petitioners (six African-American UMCP 
student recipients of Banneker scholarships and two African- 
American high school students who were potential applicants 
to UMCP) were permitted to intervene as defendants. The 
University of Maryland conducted an extensive 
administrative fact-finding review of the Banneker program 
in which all parties to this litigation were invited to 
participate. On April 26, 1993, the University issued a 
formal Decision and Report (139a-220a), accompanied by 
extensive supporting exhibits, which concluded that in 1989 
and in 1993 continuing effects of the racially discriminatory 
dual system persisted at UMCP and influenced the 
enrollment decisions of African-American students (c/. 
Fordice. 112 S. Ct. at 2737).

These materials, along with additional affidavits, 
declarations and documentary evidence, were presented to 
the District Court in connection with cross-motions for 
summary judgment again filed by both sides in the case, 
following an additional discovery period.11 On November

“The defendant parties deposed both of plaintiff's designated expert 
witnesses, neither of whom indicated familiarity with the facts and 
circumstances relating to the Maryland higher education system in 
general, or UMCP in particular. For example. Dr. Carl Cohen admitted 
that he had "conducted no independent study of . . .  the extent to which 
past discriminatory actions with lingering effects were at any time 
eliminated as a consequence of the remedial actions taken by the 
University of Maryland" (IX 46 at 58) and that "I have been veiy careful



11

18, 1993, the District Court again granted summary 
judgment against respondent Podberesky. 838 F. Supp. 
1075, 34a. In its opinion, the court first summarized the 
extensive history of official discrimination against African 
Americans in Maryland, including lack of access to 
opportunities for higher education; it then described the 
State’s painfully slow response both to Brown and to the 
federal government’s attempts to have the State dismantle its 
dual system of higher education. Id. at 1077-81, 36a-48a. 
The court thereafter turned to the four specific effects of the 
prior discrimination that the University had concluded, in its 
Decision and Report, persisted at UMCP: (1) the school’s 
reputation within the black community as an institution at 
which African-American students were not welcome and 
would not succeed; (2) continuing underrepresentation of 
blacks in the student body; (3) persistent low retention and 
graduation rates of African-American students at UMCP; 
and (4) a racially hostile campus climate. Id  at 1082, 50a.* 12 
Based upon the affidavits and declarations of University 
officials, faculty and students, and others, statistical data,

in my previous answers to explain that I cannot speak with authority 
concerning the causal connections between previous events and the 
present" (id. at 124). Dincsh D’Souza testified that he had reviewed only 
one document prior to preparing his affidavit (IX 47 at 69-72, 78-80). 
On the basis of this discovery, the defendant parties moved to exclude 
evidence from plaintiffs’ "experts," but the District Court did not rule on 
the motion and allowed affidavits from both individuals to be submitted 
with plaintiffs cross-motion for summary judgment.

l2Defendant-intervenors also argued that the low number of black 
faculty at UMCP was traceable in part to the long-maintained dual 
system and exclusion of African-American students from opportunities 
for study leading to academic careers. The District Court did not address 
this argument, except to note that the "absence of African-American 
members of the faculty to serve as mentors" was a "significant 
contributing factor[]" to low retention rates for African-American 
students, 838 F. Supp. at 1091-92, 74a-75a.



12

and scholarly studies conducted at the defendant parties’ 
request, the District Court concluded that "all four of 
UMCP’s findings are supported by strong evidence." 838 F. 
Supp. at 1083, 52a. Specifically, the trial court determined 
that

(a) there was substantial evidentiary 
justification for UMCP’s conclusion in 1989 that the 
school continued to be viewed, in Maryland’s black 
community, as a racially exclusionary institution 
based upon the personal experience and exposure of 
parents and other adults to its long history of 
segregation, resistance to integration, and prevalent 
atmosphere of hostility to African Americans on the 
campus, 838 F. Supp at 1084-87, 54a-62a;

(b) the most appropriate statistical 
comparisons, taking into account UMCP’s highly 
flexible admissions process,13 indicated that African 
Americans continued to enroll as undergraduates at 
UMCP in numbers significantly below what might

n Although UMCP considered whether applicants had high school 
diplomas, had completed a set of specified secondary education course 
offerings, had taken the SAT or ACT tests (and, if so, the scores they 
had achieved), and what their high school grade-point average was, each 
of these criteria was applied with great flexibility; indeed, applicants were 
admitted without any requirement that they meet any particular standard 
or level of performance as to any or all of these factors, but rather based 
upon individual assessment of their likelihood of succeeding in the 
school’s program. (Decision and Report at 17, 173a-175a; UX 9 11 6-9; 
IX 36 at 6-7, 17-19, 22-25; UX 108 [Admissions Criteria].) The District 
Court correctly concluded that "in fact, the University does not have rigid 
minimum admissions requirements," 838 F. Supp. at 1087, 64a. 
Nevertheless, the court did not "entirely disregard[]" the criteria but 
rather held that then existence and impact on the majority of admissions 
decisions required comparison of African-American enrollment rates with 
a pool more restricted than simply Maryland high school graduates id. 
at 1089, 68a-69a.



13

reasonably be anticipated at Maryland’s flagship 
institution in the absence of its racially exclusionary 
past and continuing negative reputation, id at 1087-
89, 63a-69a;

(c) there was "a strong evidentiary basis for 
th[e] finding" that black undergraduate students 
admitted to UMCP are disproportionately less likely 
than whites with similar credentials to remain 
enrolled and to graduate, due in part to factors 
connected with the University’s prior discrimination, 
id. at 1091-92, 72a-75a; and

(d) "there is a strong evidentiary basis in the 
record to support" the finding that on the UMCP 
campus, a climate of hostility to blacks (inconsistent 
though it may be with the University’s contemporary 
official policies and pronouncements) exists that in 
part reflects problems created by UMCP’s past 
exclusion and discriminatory treatment of African 
Americans, id. at 1092-94, 75a-81a.

The District Court also found, as it had initially, that 
the Banneker Program was "narrowly tailored" to address 
these continuing effects of prior discrimination because the 
University’s experience with "race-neutral" measures had 
been unsatisfactory, because the University will reconsider 
the need for its continuation at least every three years, 
because the proportion of UMCP financial aid subject to 
this racial restriction is minute, and because the scholarship 
program, while it appears to be succeeding (over time) in 
eliminating the continuing effects of discrimination, operates 
without impact upon the decision whether or not to admit 
any non-African-American applicant to the school, id. at 
1095-96, 83a-87a. The court accordingly granted summary 
judgment in favor of defendants and defendant-intervenors 
and denied Podberesky’s cross-motion.



14

The ruling below

The Court of Appeals again reversed. It disagreed 
with the trial court about whether the University was 
entitled to summary judgment on any issue. Interpreting the 
District Court’s finding about UMCP’s reputation in the 
black community as relating solely to pre-1954 absolute 
exclusion of undergraduate African-American students from 
the school, it ruled that as a matter o f law this effect, even if 
traceable to the State’s prior discrimination, could not justify 
a race-conscious remedy such as the Banneker Program. 38 
F.3d at 154, 10a. The panel also disagreed with the District 
Court’s conclusion that the hostile racial climate at UMCP 
was traceable to the dual system because "the [evidence]
. . . do[es] not necessarily implicate past discrimination on 
the part of the University, as opposed to present societal 
discrimination," which was an insufficient ground for 
employing a race-conscious remedy, id. at 154, 11a.

With respect to the underrepresentation of African 
Americans in UMCP’s student body, and retention and 
graduation rates, the panel held that summary judgment for 
defendant parties was improper because plaintiff had 
presented sufficient evidence to raise triable factual issues on 
these claims, id. at 155-57, 13a-18a.14 The panel went 
further, however, holding that plaintiff’s cross-motion for 
summary judgment should have been granted. In its view, 
there were several reasons the Banneker Program could not 
be said to be narrowly tailored, even assuming arguendo that 
defendants and defendant-intervenors had established that

Despite the District Court’s finding, supported by uncontroverted 
evidence, that there were no rigid qualifications for admission to UMCP, 
see supra note 13, the panel ruled that "the district court should have 
determined what the effective minimum criteria for admission were by 
determining the lowest GPA and SAT scores achieved by admittees to 
the University that year," id. at 157 n.5, 16a n.5.



15

underrepresentation of blacks at UMCP and their 
disproportionate attrition were remnants of the State’s past 
discrimination. Id. at 157-58, 18a-19a. First, according to 
the panel, "[h]igh achievers" -  such as recipients of 
Banneker scholarships -  "are not the group against which 
the University discriminated in the past," id. at 158, 20a. 
Second, the Banneker Program is open to non-residents of 
Maryland, id. at 158-59, 20a-21a. Further, the degree of 
underrepresentation (and, hence, the necessary duration of 
the program) cannot be sufficiently ascertained because

the reference pool must factor out, to the extent 
practicable, all nontrivial, non-race based disparities 
in order to permit an inference that such, if any, 
racial considerations contributed to the remaining 
disparity,

id. at 160, 24a. Finally, the panel asserted, notwithstanding 
the affidavits and declarations of University officials, that the 
State had not shown that race-neutral alternatives to the 
Banneker Program had ever been employed in an effort to 
reduce attrition of African Americans,id. at 160-61, 26a-27a.

Rehearing en banc was denied on December 30, 
1994. three judges dissenting without opinion (30a-33a).

REASONS FOR GRANTING THE WRIT 
I

This Case Presents Issues of Extraordinary 
National Importance

As the preceding description indicates, this case is 
unlike any of this Court’s recent decisions in the area of 
voluntary affirmative action, e.g., City o f Richmond v. J.A. 
Croson Co., 488 U.S. 469 (1989); Johnson v. Transportation



16

Agency, 480 U.S. 616 (1987);15 Wygant v. Jackson Bd. o f 
Educ., 476 U.S. 267 (1986). In each of those cases, the 
existence of prior discrimination by the governmental 
agencies involved was either not admitted or not proven, and 
the issue before this Court concerned the nature of the 
State’s interest and the showing ~ short of proving past 
discrimination -  that would be necessary in order to justify 
the affirmative consideration of race or gender.16

Here, in contrast, Maryland’s operation of separate 
institutions of higher education for blacks and whites, and its 
long delay after 1954 in taking any meaningful action toward 
dismantling that system, is undisputed. The genesis of the 
Banneker scholarship program in the course of Title VI 
administrative proceedings involving the desegregation of 
Maryland’s university system is also undisputed. Thus the 
remedial purpose motivating the original adoption of the 
Banneker Program is unquestioned. The Court has not yet 
addressed the contours of permissible affirmative action in

15Of course, Johnson involved only a Title VII claim, and not the 
Equal Protection Clause, 480 U.S. at 620 n2, and the Court’s opinion 
there applied a standard of justification for affirmative action that is less 
rigorous than that applicable in the constitutional context, see id. at 632- 
33 ("manifest imbalance" need not rise to level of "prima facie" case). 
However, the analysis is very similar to that in constitutional challenges, 
and Justice O’Connor, concurring m the judgment, specifically applied 
that analysis based upon her conclusion that the "'pnma facie" standard 
was satisfied on the facts of Johnson, 480 U.S. at 656.

The instant case also differs from decisions involving the scope of 
the federal courts equitable authority to impose race-conscious remedies, 
e.g.. United States v. Paradise. 480 U.S. 149 (1987); Local No. 93 v. City 
of Cleveland, 478 U.S. 501 (1986); Local 28 v. EEOC, 478 U.S. 421 
(1986); Firefighters v. Stotts, 467 U.S. 561 (1984). Cf. Local No. 93, 478 
U.S. at 526 (parties may consent to broader relief than court is 
empowered to order).



17

such circumstances.17 It is imperative that it do so in this 
case, for lacking such guidance, the panel below 
mechanically applied the strict scrutiny test of Croson, a case 
in which no remedial purpose could be discerned, to 
diametrically contrary conditions.
There Is A Compelling Need for Race- 
Conscious Remedial Action at UMCP

Podberesky (and the panel below) focused their 
criticism upon the University’s determination that effects of 
the dual system endured at UMCP and justified continued 
operation of the Banneker Program. As developed in the 
Decision and Report issued by the University in 1993, and in 
the evidence put before the District Court, salient 
characteristics of UMCP’s historic mission and operation as 
a whites-only school have continued to affect the enrollment 
and retention of African Americans at the institution and to 
contribute to its racial identifiability, see supra pp. 6, 12-13; 
cf. Fordice, 112 S. Ct. at 2736-38 (policies and practices 
conceived in the era of the dual system may restrict or 
influence students’ current institutional choices). For 
example, there was abundant evidence that UMCP 
continued to be burdened by its reputation as a once-totally 
segregated institution that only grudgingly admitted black 
students and which failed to provide them with the same 
kind of academic and other support systems available to 
whites,1*' and that African-American students still suffered

Seventeen southern and border states operated de jure segregated 
systems of higher education, faced federal pressure to dismantle those 
systems, and continue to struggle to eliminate the harmful remnants of 
their existence. See, e.g., Gil Kujovich, Equal Opportunity in Higher 
Education and the Black Public College: The Era o f Separate But Equal, 
72 Minn. L. Rev. 29 (1987).

"The panel’s view that UMCP’s reputation in the African-American 
community stems solely from pre-1954 practices, 38 F3d at 154, 10a,



1 8

much higher attrition rates than whites. The University 
designed the Banneker Program not merely to increase black 
enrollment — as a simple admissions preference might have 
done -- but to address these underlying problems in a 
positive manner and change its reputation in the African- 
American community. Indeed, the University’s Banneker 
Program minimizes its impact on non-black third parties 
because it is applicable only after admissions decisions are 
made and because it represents a very small proportion of 
total financial aid available to UMCP students.

Such carefully tailored voluntary actions by State 
officials to overcome the legacy of their constitutional 
violations deserve to be encouraged if the nation as a whole 
is ever to overcome its sorry history of discrimination. "The 
Court is in agreement that, whatever the formulation 
employed, remedying past or present racial discrimination by 
a state actor is a sufficiently weighty state interest to warrant 
the remedial use of a carefully constructed affirmative action 
program." Wygant, 476 U.S. at 286 (O’Connor, J., 
concurring in part and concurring in the judgment).

The panel below acknowledged that patterns of 
enrollment bv race that originated prior to Brown and

cannot be squared with the evidence. For example, the District Court 
quoted from the affidavit of a UMCP official (UX 10 II 8) recounting 
conversations with teachers, principals and counsellors in Baltimore in 
which they reported not only their own negative experiences at College 
Park, but also -their former students[’j, whose feedback over the years 
indicated that life at UMCP had not significantly changed over time," 838 
F. Supp. at 1085, 57a-58a. Similarly, a series of focus group interviews 
with randomly selected black parents indicated that contemporary racial 
incidents and the hostile climate at UMCP were as important as 
historical events tn shaping the school’s negative reputation in the 
African-American community (UX 7 at 8-14, 20-27 [report of Dr. Joe R. 
Fcagin]), which led many parents to advise black high school students not 
to apply to UMCP (id. at 31-34).



19

continued into the 1970’s persist in Maryland’s higher 
education system, see infra note 23, suggesting that 
institutional choice in the State is not yet "wholly voluntaiy 
and unfettered," Fordice, 112 S. Ct. at 2737, citing Bazemore 
v. Friday, 478 U.S. 385, 407 (1986) (White, J., concurring). 
But the panel deprived the State of authority to address 
lingering influences upon choice. It held the University was 
powerless to undertake the Banneker Program for the 
purpose of extirpating its negative reputation within the 
African-American community and it trivialized the State’s 
concern. Even if UMCP’s negative reputation was
attributable to prior segregation, the panel said, it was based 
upon "mere knowledge of historical fact [and] is not the kind 
of present effect that can justify a race-exclusive remedy. If 
it were otherwise, as long as there are people who have 
access to history books, there will be programs such as this 
one." 38 F.3d at 154, 10a.

But this Court recognized explicitly in Fordice that a 
state that formerly operated a dual system may "need . . . 
[to] take additional steps to ameliorate [racial] identifiability" 
that persists at its higher education institutions. 112 S. Ct. 
at 2736 n.4. As lower courts in higher education 
desegregation cases have perceived, if the remedy is to be 
effective such steps must include race-conscious measures. 
E.g., Memorandum Opinion and Remedial Decree, Ayers v. 
Fordice, No. 4:75CV009-B-0 (N.D. Miss. March 7, 1995), at 
167 n.365. See id. at 105-06, 108-12, 118 (approvingly noting, 
in discussion of steps taken to increase diversity and improve 
the racial climate,19 the provision of special financial aid

“The Avers court said: "Ghosts of the past, which potentially have 
segregative effects by stimulating a climate nonconducive to diversity on 
the historically white campuses, include the lack of minority faculty as 
well as their absence in significant numbers in the top positions within 
Mississippi’s academia . . .  to some extent . . .  a product of the de jure 
segregation," Avers, slip op. at 117-18. Cf. supra note 12.



20

and scholarship opportunities for blacks at historically white 
institutions in Mississippi), 178-79 H1I 6, 9 (directing state to 
establish $5 million endowments for purposes of increasing 
racial diversity at Jackson State University and Alcorn State 
University, including by establishing other-race scholarship 
programs); Settlement Agreement, appended to Minute 
Entry, United States v. Louisiana, Civ. No. 80-3300 (E.D. La. 
Nov. 14, 1994), at 19 11 21 ("significant financial assistance" 
to be provided for African-American law students at LSU 
Law Center), 21 U 22.3 ($900,000 per year to be provided for 
scholarships for other-race doctoral candidates at 
predominantly white institutions), 22 11 22.f ($700,000 per 
year for other-race graduate scholarships to be provided at 
Southern University campuses); Knight v. State o f Alabama, 
787 F. Supp. 1030, 1292-97 (N.D. Ala. 1991) (favorably 
describing other-race financial aid offered to promote 
increased African-American enrollment in traditionally white 
Alabama institutions of higher education), affyd in part, rev’d 
in pan, vacated in pan and remanded on other grounds, 14 
F.3d 1534 (11th Cir. 1994); Geier u Alexander, 593 F. Supp. 
1263, 1270 (M.D. Tenn. 1984) (approving pre-professional 
program and scholarships for black students as part of 
settlement of issues in higher education desegregation suit 
between private plaintiffs and state, and binding intervenor 
United States to terms), affd, 801 F.2d 799 (6th Cir 
1986).20

^ h e  U.S. Department of Education and its predecessor agency have 
approved and encouraged the use of other-race scholarship programs in 
state desegregation efforts pursuant to Title VI, 42 U.S.C. § 2000d 
(1994). See Revised Criteria Specifying the Ingredients o f Acceptable Plans 
to Desegregate State Systems o f Higher Education, 43 Fed. Reg. 6658, 6662 
(Feb. 15, 1978), t  H.H.; UX 84, attachment at 3 (1985 OCR 
recommendation that Maryland increase number and amount of other- 
race scholarships); 59 Fed. Reg. 8756 (February 23, 1994).



21

The Approach of the Court Below Allows Insufficient 
Room for Necessary Race-Conscious Remedial Steps

The decision below subjects Maiyland’s use, in 1989, 
of these same tools not just to "strict scrutiny," but rather to 
a "presumption" of unlawfulness, see 38 F.3d at 152, 6a. In 
spite of the undisputed background of segregation and 
official discrimination at UMCP and in spite of the 
unquestioned remedial purpose that led to the creation of 
the Banneker Program, the court below treated the State of 
Maryland as if it were the City of Richmond in the Croson 
case, lacking any documented history of past discrimination 
in the domain of its affirmative action plan. Viewed in that 
light, it is hardly surprising that the Banneker Program -  
once uprooted from the legacy of segregation that spurred 
its creation -- was found not "narrowly tailored." Applying 
a presumption of illegality even in cases of proven prior 
discrimination leaves virtually no room at all for remedial 
affirmative action, no matter how carefully structured. It 
amounts to "a rule of automatic invalidity for racial 
preferences in almost every case," Croson, 488 U.S. at 519 
(Kennedy, J., concurring in part and concurring in the 
judgment), and it presents states that formerly operated 
racially dual systems with a severe dilemma -  they can do 
nothing and wait to be sued by African-American citizens or 
the federal government, or they can attempt to address their 
problems frontally and creatively and risk being sued by 
whites, who already enjoy disproportionate access to the 
benefits of public higher education.

The effect of applying a presumption of unlawfulness 
even to a remedial affirmative action plan adopted after an 
unambiguous finding of past discrimination is illustrated by 
the panel’s cramped and error-laden analysis of features of 
the Banneker Program that it found to be indicators that the 
program was not "narrowly tailored." For example, the 
panel ruled that ”[i]f the purpose of the [Banneker] program



22

was to draw only high-achieving African-American students 
to [UMCP], it could not be sustained. High achievers, 
whether African-American or not, are not the group against 
which the University discriminated in the past." 38 F.3d at 
158, 20a. Not only does this pronouncement lack any 
support whatsoever in the record of this litigation -- indeed, 
the record contradicts it -  it is flatly belied by a history of 
pre-1954 educational segregation in the southern and border 
states of this nation that is so well established that it is 
subject to judicial notice. All African-Americans, 
notwithstanding their academic potential or their place of 
residence, were barred from Maryland’s flagship institution 
and its professional schools for more than a century. Of 
course, the tragedy of this history is that we can never know 
how many more Thurgood Marshalls might have emerged 
from Maryland to enrich the State’s citizeniy and the history 
of our country if there had been equal educational 
opportunity even for "high achievers" who were black.

Moreover, the purpose of the Banneker Program is 
not solely to benefit high-achieving African Americans. 
Banneker Scholars serve as positive role models and 
mentors, helping to break down racially hostile attitudes at 
UMCP and to stimulate increased black enrollment, see 
supra p. 7-8. The panel dismissed this remedial purpose 
based upon its reading of Wygant, 38 F.3d at 159, 21a-22a. 
But in Wygant the "role model theory" was advanced by a 
school board which denied any past discrimination as a 
justification for racial preferences in making layoffs. Here, 
the underlying remedial purpose is indisputable, and UMCP 
seeks merely to take advantage of the "role model" 
phenomenon to assist in remedying the lingering effects of 
prior discrimination in admitting and treating African 
Americans at the school. Nothing in Wygant rules out 
otherwise permissible affirmative action merely-because it is



23

designed to take advantage of "role modeling" opportunities 
to combat prejudice and stereotyping.

Finally, applying a presumption of invalidity despite 
the University’s remedial purpose led the panel to question 
UMCP’s flexible admissions process in assessing whether 
there was still underrepresentation of African Americans at 
the school that could be ameliorated by the Banneker 
Program. Although acknowledging that there are no 
minimum criteria for admission, 38 F.3d at 157 n.5, 16a n.5, 
the panel held that "the district court should have 
determined what the effective minimum criteria for admission 
were by determining the lowest GPA and SAT scores 
achieved by admittees to the University that year," id 
(emphasis added), and then calculated the pool of potential 
African-American applicants who met those "effective 
minimum criteria." This approach ignores the fact that the 
lowest GPA and SAT scores of a particular entering 
freshman class are an artifact of the overall characteristics of 
the applicant pool in that year, and not a reflection of the 
"unspoken" but "effective" real minimum criteria for 
admission, and the fact that UMCP officials may at any time 
accept another candidate with a lower average or score than 
anyone already granted admission if they conclude that the 
candidate has the ability, overall, to succeed at the school.21

If the ruling below is permitted to stand, neither 
college and university staffs, states, federal courts nor the 
United States Department of Education will have anyway of 
knowing whether other-race scholarships such as those 
awarded under the Banneker program at UMCP are to be

2lEven if the panel were correct, that could not support its holding 
that Podberesky was entitled to judgment as a matter of law. 
Underrepresentation was only one of the continuing effects of past 
discrimination identified by the District Court to which the Banneker 
Program was addressed.



24

viewed as constitutional remedies or constitutional violations, 
even in states with long histories of operating racially dual 
systems of higher education. The decision of the Fourth 
Circuit in this case, therefore, presents questions of 
overwhelming national importance that demand resolution 
by this Court. The Court should issue the writ for this 
purpose.

II
The Decision Below Rests Upon A Wholly 
Erroneous View of Statistical Proof in 
Discrimination Cases that Is Contrary to the 
Explicit Teaching of this Court in Bazemore v.
Friday, 478 U.S. 385 (1986), a Ruling in 
Which This Court Reversed the Same Court 

of Appeals for the Same Error
In Bazemore v. Friday, 751 F.2d 662, 671-72 (4th Cir. 

1984), a panel of the Fourth Circuit reviewed the district 
court s judgment in a suit charging discrimination in 
compensation against African-American employees of the 
North Carolina Agricultural Extension Service. The 
plaintiffs’ expert witness had prepared regression analyses 
which, he testified, indicated that race was a factor 
accounting for then-current salary disparities between white 
and black county agents. The defendants’ expert witness 
also prepared regression analyses using the same variables 
and interpreted the results differently from the plaintiffs’ 
witness. The Court of Appeals affirmed the district court’s 
decision to reject the testimony of plaintiffs’ expert about the 
multiple regression findings in its entirety "because the 
plaintiffs’ expert had not included a number of variable 
factors the court considered relevant," id. at 672.

This Court reversed, Bazemore v. Friday, 478 U.S. 
385, 387, 400-01 (1986). It held that the inclusion or non- 
inclusion from a statistical regression equation of additional



25

factors which might have explanatory value goes only to the 
probative weight of the evidence, but that it was error to 
exclude such evidence from consideration entirely because 
the fact-finder hypothesized that there might be alternative 
justifications for the observed disparities. The Court 
suggested that defendants in such cases should not merely 
criticize the plaintiffs’ analyses but should come forward with 
their own regression tables to rebut whatever showing is 
made by the plaintiffs.

The panel below made the same error as in the 
earlier case. The parties to this lawsuit offered different 
interpretations of statistical data in several categories as 
appropriate indicators of the pool of qualified potential 
applicants to UMCP, in light of the fact that the University 
did not have rigid eligibility criteria (see supra note 13). The 
district court carefully reviewed the evidence presented by 
the parties and their contentions, ultimately rejecting some 
arguments made by both sides but determining that at least 
as late as 1991-92, black students were underrepresented at 
UMCP in comparison to appropriate "pool" measures. See 
838 F. Supp. at 1087-89, 63a-69a. The court below, however, 
held that the district court erred by not including in its 
analysis a number of other variables that had not been 
quantified in any evidentiary presentation by respondent but 
which the panel thought might have explanatory power. 38 
F.3d at 159-60, 21a-25a. "[T]he reference pool must factor 
out. to the extent practicable, all nontrivial, non-race-based 
disparities in order to permit an inference that such, if any, 
racial considerations contributed to the remaining disparity. 
This the district court simply has not done." Id. at 160 
24a “

“ Compare the language in Bazemorc, 751 F.2d at 672: "An 
appropriate regression analysis of salary should therefore include all 
measurable variables thought to have an effect on salary level."



26

The panel thus made the same error as in 
B a ze m o re this Court should issue the writ to correct it.

Ill
Since the Court Below Concluded that There 
Were Genuine Disputes about Facts Material 
to the Cross-Motions for Summary 
Judgment, It Acted Contrary to FED. R. Civ.
P. 56(c) and the Decisions of this Court in 
Directing the THal Judge to Enter Summary 

Judgment for the Plaintiff on Remand
The responsibility of the court below, in passing upon 

the parties’ appeals from the District Court’s disposition of

“ In this portion of the opinion the panel also made a different and 
significant error. It held that the reference pool of potential African- 
American applicants to UMCP should have been reduced to reflect "that 
percentage of otherwise eligible African-American high school graduates 
who . . . voluntarily limited their applications to Maryland’s predomin­
antly African-American institutions," id. at 159-60, 23a (footnote 
omitted), adding that it

infer)red) that significant numbers of UMCP-eligible Maryland 
African-Americans do choose to go to the [historically] 
predominantly African-American Maryland schools, such as 
Coppin State, Bowie State, and UM Eastern Shore, whether 
their reasons are economic, academic, geographic, or cultural, 
because the percentages of African-Americans in the student 
bodies at those schools are so high,"

id. at 159-60 & n.13, 23a & n.13. Since one of the underlying issues in 
these cases is whether currently existing racial patterns of enrollment 
decisions are influenced by policies and practices traceable to the prior 
dual system, see Fordice, 112 S. Ct. at 2737, the panel’s approach to this 
question would have the effect of excluding highly probative evidence 
from the statistical analysis. In short, the panel would preclude any 
finding of continuing underrepresentation of blacks at UMCP so long as 
their "college attendance [at the Slate’s historically black institutions] is 
by choice and not by assignment" -  the veiy position rejected by this 
Court in Fordice, see 112 S. Ct. at 2236.



27

the cross-motions for summary judgment, was "to assess the 
record under the standard set forth in Rule 56 of the 
Federal Rules of Civil Procedure," Lujan v. National Wildlife 
Federation, 497 U.S. 871, 883-84 (1990).

Rule 56(c) states that a party is entitled to summary 
judgment in his favor "if the pleadings, depositions, 
answers to interrogatories, and admissions on file, if 
any, show that there is no genuine issue as to any 
material fact and that the moving party is entitled to 
a judgment as a matter of law."

Id  at 884 (emphasis added). The panel applied this 
standard when it determined that the District Court erred in 
granting summary judgment for the defendant parties 
because, ”[t]aking the facts [proffered] in the light most 
favorable to Podberesky, the non-moving party, . . . [there 
were] factual disputes in this case [that] are not 
inconsequential and could have been resolved only at trial." 
38 F.3d at 156, 157, 14a, 18a. However, the panel
completely ignored these asserted factual controversies when 
it directed the District Court to enter summary judgment for 
Podberesky on remand. This fundamental error warrants 
review and correction by this Court to assure that the 
summary judgment process in the federal courts functions 
properly.24

In an early section (II) of its opinion, the panel
reviewed the four present effects of past discrimination
identified by the District Court. Two, it held, were
insufficient as a matter of law to justify continued race­
conscious action. See supra p. 14.25 But as to the

^The Court has demonstrated its concern for these issues in recent 
years. See, e.g., Lujan; Celotex Corp. v. Cairetl, 477 U.S. 317 (1986); 
Anderson v. Liberty Lobby, 477 U.S. 242 (1986).

Neither of these points, we believe, warranted summary judgment 
for Podberesky. In brief, the panel viewed the availability of Banneker



2 8

remaining "two effects that rely on statistical data," the panel 
said, the "district court erred in its analysis of the under­
representation evidence and the attrition evidence for a 
fundamental reason . . .  [a] district court may not resolve 
conflicts in the evidence on summary judgment motions 
. . . [as it did] here." 38 F.3d at 155, 13a. When it turned to 
the denial of plaintiff’s cross-motion for summary judgment, 
the panel focused on the same issues -- underrepresentation 
and attrition. Id. at 157-58, 18a-19a. In this part of the 
opinion, however (and despite the panel’s apparent 
disclaimer26), the court simply ignored the implication of its 
earlier recognition that there were factual disputes that 
could be resolved only at trial: there was enough evidence 
introduced in support o f the positions o f the defendant parties 
to create triable issues and to prevent summary disposition?

scholarships to non-residents and to high-achieving students as being 
divorced from properly remedial purposes; but, as we have previously 
pointed out, UMCP excluded all African-Americans, resident and non­
resident, high-achieving and not-so-high-achieving, for many years.

“ At the beginning of its discussion about the propriety of denying 
Podbereskv’s cross-motion for summary judgment, the panel said, "[e]ven 
if we assumed that the University had demonstrated that African- 
Americans were underrepresented at the University and that the higher 
attrition rate was related to past discrimination, we could not uphold the 
Banneker Program [because i]t is not narrowly tailored . . . . "  38 F Jd  at 
157-58, 18a-19a (footnote omitted). But in the balance of its discussion, 
the panel not only failed to make this assumption but instead sharply 
criticized the District Court’s assessment of the evidence introduced by 
the parties on these questions, see id. at 159-61, 19a-27a, and commented 
that ’[i]t is difficult to determine whether the Banneker scholarship 
program is narrowly tailored to remedy the present effects of 
discrimination when the proof of present effects is so weak," id. at 158, 
19a.

^The panel began this last section of its opinion with the comment 
that "[i]n our first opinion in this case, we required that should no further 
evidence be available upon remand, summary judgment for Podberesky 
should be granted, id. at 161, 28a. Extensive additional evidence about



29

Instead, the panel ignored that factual record; it 
characterized the State’s position on underrepresentation as 
"resting] on . . . unsupported assumptions]," id  at 160, 25a 
and it opined, contrary to the declarations and affidavits of 
both Maryland officials and numerous Presidents and 
Chancellors of colleges and universities in the United States, 
that ”[t]he causes of the low retention rates submitted both 
by Podberesky and the University and found by the district 
court have little, if anything, to do with the Banneker 
Program," id. at 161, 27a.

The standards of Fed . R. Civ . P. 56(c), like other 
provisions of the Federal Rules, apply equally to plaintiffs 
and defendants, see, e.g., Anderson v. City o f Bessemer City, 
470 U.S. 564 (1985) (Rule 52); Pullman-Standard v. Swint, 
456 U.S. 273 (1982) (same). The court below failed to 
follow this bedrock principle in deciding this case, and its 
error merits correction by this Court.28

racial discrimination in Maryland’s higher education system and its 
continuing effects was put before the District Court upon that remand, 
including, as indicated in the text, sufficient evidence to warrant summary 
judgment for the defendant parties, or at a minimum a trial, rather than 
the grant of summary judgment. Nevertheless, the panel suggested that 
respondent was entitled to summary judgment in his favor pursuant to 
the earlier remand instructions. The panel nowhere explained this 
contradiction.

“ Indeed, this error is so clear and unambiguous that the Court may 
wish to reverse summarily on this ground and remand the case to the 
District Court with instructions to conduct a trial.



30

Conclusion
For the foregoing reasons, petitioners Monica 

Greene, et al, respectfully pray that the Writ of Certiorari 
be issued to review the judgment of the United States Court 
of Appeals for the Fourth Circuit in this matter.29

Respectfully submitted,
W illia m  J. M u r p h y  
Jo h n  J. C o n n o lly  

M u r p h y  &  Sh a f f e r  
100 Light Street, Suite 750 
Baltimore, MD 21202 
(410) 752-1564

Sa l l y  P. Pa x t o n  

Ja c o u e u n e  R. D epew  
F u l b r ig h t  &  Jaw o rski L.L.P. 
801 Pennsylvania Avenue, N.W. 
Washington, D.C. 20004 
(202) 662-0200

E la in e  R . Jo n es  

D ir e c t o r -Co u n s e l

T h e o d o r e  M . Sh aw  
No r m a n  J. C h a c h k in  

NAACP L e g a l  D e f e n s e  &  
E d u c a t io n a l  F u n d , In c . 

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

•Ja n e l l  M . By r d  

NAACP L e g a l  D e fe n s e  &  
E d u c a t io n a l  F u n d , In c . 

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

* Counsel o f Record 
Attorneys for Petitioners

^Greene Petitioners note that the second Question Presented in the 
separate Petition of William E. Kirwan, et aL was presented to, but not 
decided by, either court below. However, the judgment below implicitly 
decides it adversely to the State of Maryland, in directing the entry of 
summary judgment in favor of plaintiff Podberesky. That question will 
be moot if this Court reverses the Fourth Circuit on the other grounds 
ui^ged in both petitions. If the Court does not, it may wish to vacate and 
remand so that the question may be explicitly considered by the District 
Court and the Court of Appeals.