Hopwood v. Texas Opposing Brief of Plaintiffs-Appellees'

    TieAiiso pue poosidon saazz^^V-sjjT^uzazd zod sAaua:oq.̂ Y

660t'-T0Z.8Z. Xi 'uxjsnv 
00ZI ’9JS '-9AV ssaabuoo 00T 

xjjxuis 'H ieaaa.1

9E003 DO 'uojfiuxqsBM 
093 9JTnS 'MN '*3S 11J6T 00CT 
S.LHDIH IVnaiAiaNI H03 H3XN30 

ubuisoh '3 laBqoxw

333A H V 0 QNV QOOMdOH , S 3 3 rn 3 d d Y - S 3 3 I ,L N I \n d  3 0  3 3 I H 3  SNISOddO

sBxaj, jo joxjjsxa uaajsaw aqj joj 
janoo joxjjsxa sajBjs pajxun 

aqj uiojj jaaddv uo

• sjuEiiaddv-sq.UBpuajaa-JouaAaaj.ui pasodojd
1 NOIilVIOOSSV M Y 3 -3 d d  3D V 39 PUB A .L3ID 0S 3V D 33 33VHSHYW aOOOHnHI,

PUB

'sjUBijaddY-sjuspuajaa
7 ’ 3 9  'SVX3JL 3 0  3J.Y.LS

•A
'saaxx9ddV-sjjxjuxBjd

7 ’ 3 9  'aOOMdOH T  3AH3HD

iin O H ID  H iI3 I3  3HIi H 03  
S 3V 3d d Y  3 0  iHEiOO SSIATiS O S ilN fl 

3HJ. NI

69909-^6 ‘ON



Certificate of Interested Parties

Plaintiffs-appellees Hopwood and Carvell adopt the 
Certificate of Interested Persons contained in appellants' brief. 
The undersigned certifies that those listed in appellants' brief 
have ;come of the case.

Pursuant to Rule 34(a), Fed. R. App. Proc., and Local Rule 
34.2 of this Court, defendants object to oral argument on the 
following grounds: (1) given this Court's previous determination
of the issues on this appeal (Hopwood v. Texas, 21 F.3d 603 (5th 
Cir. 1994), the appeal is frivolous, (2) the dispositive issues 
on this appeal were decided in this Court's prior determination, 
and (3) the briefs adequately present the facts and legal 
argument such that the decisional process would not be 
significantly aided by oral argument.

Micha^ ^. ______ , _______/ for Plaintiffs-
Appellees Hopwood and Carvell

Statement Regarding Oral Argument



Table Of Contents

Certificate of Interested Parties ..........................  i
Statement Regarding Oral Argument ..........................  i
Table Of Contents.............................................ii
Table Of Authorities.........................................iv
Statement Of Jurisdiction ..................................  1
Statement Of The Issue Presented For Review ................  1
Statement Of The C a s e ......................................  1

A. The First Motion To Intervene ....................  2
B. This Court's Prior Decision And Judgment ........  5
C. Trial On The Merits In The Court B e l o w ..........  7

1. Evidence Concerning The Texas Index ........  7
2. The Defense Of UT Law School's Race-Conscious

Admissions System At Trial ..................  9
D. The Post-Trial Submissions And Motions ..........  11
E. The Student Groups' Motion To Intervene In This

Court...............................................13
Summary Of Argument...........................................14
A r gument..................................................... 15

I. THE COURT BELOW DID NOT ERR IN DENYING THE STUDENT
GROUPS' MOTION TO RENEW ..........................  15
A. The Student Groups Have Failed To Show

Circumstances Warranting Reconsideration Of 
Their Intervention Motion ..................  18
1. As This Court Has Already Held, The 

Student Groups' Interests Were 
Adequately Represented By TheDefendants...............................19

2. Dr. Shapiro's Proposed Testimony Is
Irrelevant...............................22

n



B. Plaintiffs' Motion To Renew Was Untimely . . .  25
II. THE STUDENT GROUPS ERR IN ASSERTING THAT THEY HAVE 

A LEGALLY PROTECTABLE INTEREST THAT WILLBE IMPAIRED IF INTERVENTION IS DENIED ............  29
A. The Student Groups Have No Substantial,Legally Protectable Interest Of Their Own . . 29
B. The Student Groups Have Not Identified AnyMembers Whose Interests Are At Stake ........  31
C. The Members' "Interests" Are Not Direct,Legally, Protectable Interests ..............  32

1. The Members Of The Student Groups Have 
No "Interest" In The Defendants'Dismantling A Policy Traceable To The De 
Jure Era Because No Such Policy Is At
Stake In This Lawsuit.................... 32

2. To The Extent That The Student GroupsIdentify Any Other "Interests," They Are 
Not Direct, Substantial, Legally 
Protectable Interests ..................  34

D. The Student Groups' Ability To Protect Their
Substantial, Direct, Legal Interests Is Not 
Impaired.......................................38

III. THE STUDENT GROUPS' INTERVENTION MOTIONS HAVE NOT
BEEN TIMELY.........................................38

IV. JUDGE SPARKS CORRECTLY DENIED THE STUDENTGROUPS' MOTION FOR PERMISSIVE INTERVENTION . . . .  40
Conclusion...................................................42

iii



Table Of Authorities

CASES
Aiken v. City of Memphis. 37 F.3d 1155 (6th Cir. 1994) (en

banc) ................................................ 23
Ass'n Against Discrimination in Employment v. Bridgeport,

594 F. 2d 306 (2d Cir. 1979) ..........................  24
Bailey v. Ryan Stevedoring Co.. 894 F.2d 157 (5th Cir.),cert, denied. 498 U.S. 829 (1990) ................  16, 21
Billish v. City of Chicago. 989 F.2d 890 (7th Cir.) (en

banc), cert, denied. 114 S. Ct. 290 (1993)............  23
California v. Block. 690 F.2d 753 (9th Cir. 1982)..........  16
Cleburne Living Center v. City of Cleburne, 726 F.2d 191,

203 (5th Cir. 1984), aff'd in part, vacated in part.
473 U.S. 432 (1985) .................................. 31

Cohn v. E. E.O. C. . 569 F.2d 909 (5th Cir. 1978) ............  36
Connecticut v. Teal. 457 U.S. 440 (1982)   24
Cooper v. Noble. 33 F.3d 540 (5th Cir. 1994)   16
DeFunis v. Odegaard. 416 U.S. 312 (1974)   37
Doe v. Duncanville Independent School Dist., 994F. 2d 160 (5th Cir. 1993).....................  18, 39, 40
Edward H. Bolin Co. v. The Banning Co.. 6 F.3d 350 (5th Cir.

1993)   16
Enslev Branch N.A.A.C.P. v. Seibels, 31 F.3d 1548 (11th Cir.

1994)   23
Environmental Defense Fund. Inc, v. Higginson, 631 F.2d 738

(D.C. Cir. 1979).......................................... 6
Flax v. Potts. 725 F. Supp. 322 (N.D. Tex. 1989)   11
Hodgson v. United Mine Workers of America, 473 F.2d 118

(D.C. Cir. 1972)....................................... 17
Hopwood v. Texas. 21 F.3d 603 (5th Cir. 1994) ........  i, 6, 41
Hunt v. Washington State Apple Advertising Comm'n, 432 U.S.

333 (1977)............................................  31
IV



24
Kirkland v. N.Y. State Dep't Of Correctional Services. 628 

F.2d 796 (2d Cir. 1980), cert, denied. 450 U.S. 980 
(1981) ............................................

Kneeland v. National Collegiate Athletic Ass'n. 806 F.2d
1285 (5th Cir.), cert, denied. 484 U.S. 817 (1987) . 18, 39

Lairsev v. Advance Abrasives Co.. 542 F.2d 928 (5th Cir.1976) ............................................  25, 27
National Association For The Advancement Of Colored People

v. New York. 413 U.S. 345 (1973).....................  28
Pico v. Global Marine Drilling Co.. 900 F.2d 846 (5th Cir.

1990)   16
Ross v. Houston Independent School District. 699 F.2d 218

(5th Cir. 1983)   11
Sierra Club v. Morton. 405 U.S. 727 (1972) ................  30
Smith Petroleum Service. Inc, v. Monsanto Chemical Co..

420 F. 2d 1103 (5th Cir. 1970) ........................  39
Stallworth v. Monsanto Co.. 558 F.2d 257 (5th Cir. 1977) . . 26
Sweatt v. Painter. 339 U.S. 629 (1950) ................  33, 34
United States Environmental Protection Agency v. Green

Forest. 921 F.2d 1394 (8th Cir. 1990), cert, denied.
112 S. Ct. 414 (1991) ............................ 16, 17

United States v. Fordice. 112 S. Ct. 2727 (1992) . . 33, 34, 38
United States v. Louisiana. 9 F.3d 1159 (5th Cir. 1993) . . .  33
United States v. Mississippi. 958 F.2d 112

(5th Cir. 1992) ..................................  29, 35
United States v. Perry County Board of Education. 567 F.2d

277 (5th cir. 1978) ..................................  35
United States v. Philadelphia. 798 F.2d 81 (3d Cir. 1986) . . 20
United States v. Texas Eastern Transmission Corp., 923 F.2d

410 (5th Cir. 1991) .................................. 19
Valley Ranch Development Co. v. Federal Deposit Ins. Corp.,

960 F. 2d 550 (5th Cir. 1992)..........................  29
Village of Arlington Heights v. Metroplitan Housing

Development Corp. . 429 U.S. 252 (1977)................  30
v



Walker v. Citv of Mescruite, 858 F.2d 1071 (5th Cir. 1988) . . 15
Wiaains Bros.. Inc. v. Dep't of Enerav, 667 F.2d 77 

1981), cert, denied, 456 U.S. 905 (1982) . . .
(TECA

STATUTES AND RULES
42 U.S.C. § 1981 ................................
42 U.S.C. § 2O O O d................................
42 U.S.C. § 2000e-2(1) ..........................
Rule 24, Fed. R. Civ. P..........................
Rule 43(a), Fed. R. Civ. P. ....................
Rule 60(b), Fed. R. Civ. P........................ 16-18, 25, 27

vi



Statement Of Jurisdiction

As set forth in the argument (Part IV), this Court lacks 
jurisdiction over the part of the appeal seeking reversal of the 
order denying intervention under Rule 24(b), Fed. R. Civ. P.

Statement Of The Issue Presented For Review

The court below denied the appellants' second motion for 
intervention where (a) the first motion had been denied, (b) the 
order denying the first intervention motion was appealed as a 
final judgment to this Court, (c) this Court affirmed the 
judgment denying intervention, (d) the only change in 
circumstances cited by the proposed intervenors between the first 
and second motions was that, prior to trial (and several months 
before the proposed intervenors made the second motion), 
defendants apprised the proposed intervenors that they would not 
use the proposed intervenors' suggested expert in addition to the 
twelve (12) experts defendants were going to (and subsequently 
did) use at trial, and (e) the second motion came after trial and 
asked the court below to consider new evidence and issues, and to 
reopen the case. Was the court below correct?

Statement Of The Case

This case began in September, 1992. Plaintiffs are four 
white individuals who unsuccessfully applied for admission to the 
University of Texas School of Law at Austin ("UT Law School") for 
academic year 1992-93. Plaintiffs' amended complaint, filed on 
February 1, 1994, alleges that defendants administer a racially



discriminatory admissions program at UT Law School in violation 
of plaintiffs' rights under the Fourteenth Amendment to the 
Constitution, Title VI of the Civil Rights Act of 1964 (42 U.S.C.
§ 2OOOd) and 42 U.S.C. § 1981. The case was assigned to District 
Judge Sam Sparks.

Defendants moved for summary judgment on standing and 
ripeness grounds shortly after the case commenced. The Court 
denied those motions in an opinion and order dated October 28, 
1993. R. 588-605.1 Shortly thereafter, the Court set down an 
expedited discovery schedule that contemplated that all discovery 
would be completed on April 1, 1994. R. 622-24.

A. The First Motion To Intervene

The appellants here, the Thurgood Marshall Legal Society 
("TMLS") and the Black Pre-Law Association ("BPLA")
(collectively, the "student groups") first moved to intervene on 
January 5, 1994, pursuant to both Rule 24(a) and Rule 24(b), Fed. 
R. Civ. P. R. 629-33. Although they have never denied being 
aware of this case from its inception, or the orders denying 
summary judgment and setting an expedited discovery schedule, the 
student groups nonetheless waited well over 15 months after the

"R." references are to the full Record on Appeal. "R.E." 
references will be to appellants' Amended Record Excerpts. 
The trial transcript will be referred to with citations to
the volume and page number: "Vol. _, p. __." "S.G. Br."references are to the principal brief of the two appellant 
student groups on this appeal. "P" and "D" followed by a 
number (e.q.. P-101) are references to, respectively, 
plaintiffs' and defendants' trial exhibits.

2



commencement of this action, and some 10 weeks (in a discovery 
period only scheduled to last about 20 weeks) after Judge Spark's 
denial of defendants' summary judgment motions on ripeness and 
standing, before moving for intervention.

In their initial motion papers, the student groups asserted 
that their interests were not adequately represented by the state 
defendants in this action because (1) the defendants had broader 
and more diverse goals than simply defending the affirmative 
action system (R. 646-47), (2) the State of Texas has had a bad
past history in defending the rights of African Americans (R.
647), and (3) concerns about both future litigation and the 
airing of dirty laundry would prevent the defendants from fully 
developing a record showing the prerequisite "present effects of 
past discrimination" (R. 637 ("It is fully expected that the 
State will approach the development of this portion of the record 
in a limited and cautious manner, if not one inclined toward 
denial"); see also R. 647-48).

In a decision and order dated January 19, 1994 (the "January 
1994 Judgment" —  see R. 742-46), Judge Sparks denied the student 
groups' motion to intervene. Judge Sparks rejected the student 
groups' arguments that their interests would not adequately be 
represented by the defendants, holding that "as a practical 
matter, the prospective intervenors and the Defendants have the 
same ultimate objective in this lawsuit —  the preservation of 
the admissions policy and procedure currently used by the law

3



school" (R. 744). Because of the "potential obstruction and 
delay that may be caused by allowing intervention" (id.), the 
Court required more than an allegation of inadequate 
representation, and held that the student groups had not overcome 
the presumption of adequate representation. Having determined 
that the student groups' intervention motion had not met one of 
the four required elements of Rule 24(a) (see discussion infra at
pp. 18-19), the Court did not consider any of the other elements.

The Court also rejected the student groups' application 
pursuant to Rule 24(b), finding that "adding the prospective 
intervenors as defendants at this juncture would needlessly 
increase cost and delay disposition of the litigation" (R. 746). 
See also R. 743 ("Now, with only a little over two months to go 
before the completion of discovery, which has already been a 
contentious process and evidently involves a multitude of 
documents, two new entities wish to become parties to the 
litigation").

After their motion to intervene was denied, the student 
groups moved for "provisional party status" pending the appeal of 
that denial. R. 809-12. In apparent response to Judge Sparks' 
suggestion (R. 746) that the student groups appear as amici, that 
motion asserted:

Participation as amicus curiae will not adequately 
protect movants' interests because they cannot 
participate in any meaningful way in the development of 
the factual record in this matter.

4



R. 811. Judge Sparks denied this motion. R. 858-59.
Subsequently, the student groups moved for provisional amicus 
status pending the outcome of their appeal to the Fifth Circuit. 
R. 1029-35. This motion was granted in part by the court below: 
the student groups were given amicus status, two seats in the 
courtroom to observe the trial, and the right to submit post­
trial amicus briefs. R. 1177.

B. This Court's Prior Decision
And Judgment_______________

Since the January 1994 Judgment was a final judgment for the 
student groups, they were able to (and did) immediately appeal. 
See Appeal No. 94-50083. This Court accommodated the student 
groups' request that their appeal be heard quickly, and granted 
their motion to expedite the appeal. R. 1010-11.

In this Court, the student groups repeated the arguments 
they had used in the lower court concerning the inadequacy of the 
defendants' representation. Thus, they continued to cite the 
long history of adversity between the State of Texas and African 
Americans (focusing to some greater degree on the intransigence 
to integration of some local school districts in the state), the 
broader and competing interests of the state, and the necessity 
of publicly airing past discrimination. Appeal No. 94-50083, 
Appellants' Principal Br., pp. 14-19. The student groups also 
asserted, for the first time, that they would introduce evidence 
of recent past discrimination and the existence of a racially

5



hostile atmosphere at the University of Texas implicating Title
VI liability, as well as evidence that "may cast doubt" (id., 
p. 21) on the predictive validity of the Texas Index (a composite 
blend of undergraduate GPA and LSAT scores used by UT Law School 
in the admissions process —  see Part C.l, infra).2

This Court affirmed the judgment of the court below. R. 
1240-47. Hopwood v. Texas. 21 F.3d 603 (5th Cir. 1994). Holding 
that the standard for judging "inadequate representation" was 
higher when the party whose representation is said to be 
inadequate is a governmental agent, this Court specifically held 
that, under such circumstances, the proposed intervenors must 
show (1) that they have interests different from those of the 
state and (2) that those interests will not be represented by the 
state. Hopwood, 21 F.3d at 605 (quoting Environmental Defense 
Fund, Inc, v. Hiqqinson. 631 F.2d 738, 740 (D.C. Cir. 1979)).

Finding that the interest of both the state and the student 
groups was to show the "present effects of past discrimination" 
sufficient to justify the race-conscious admissions program of UT 
Law School, this Court held that the student groups had not met 
their burden of showing a separate interest or a separate 
defense. This Court also held that Judge Sparks had not abused 
his discretion in denying intervention pursuant to Rule 24(b).

2 The student groups' reply brief reiterated that the
"adversity of interests between proposed intervenors and 
defendants in this case is not merely a disagreement 
regarding trial strategy," Appeal No. 94-50083, Reply Br., 
p. 5.

6



c. Trial On The Merits 
In The Court Below

A bench trial was held before Judge Sparks on May 16-20,
1994 and May 23-25, 1994. In August 1994, Judge Sparks issued an
extensive decision (R. 1464—1545) declaring the admissions system 
used by UT Law School in 1992 unconstitutional, but refusing to 
award any significant injunctive relief to plaintiffs. In a 
separate appeal (Appeal No. 94-50664), plaintiffs have appealed 
from the final judgment (R. 1546-47) effecting that decision.

1. Evidence Concerning The Texas Index. In the Court 
below, plaintiffs submitted evidence, taken primarily from the 
defendants' own documents and testimony, concerning defendants 
admissions policy. Much of that testimony was set forth in Judge 
Sparks' memorandum decision on the merits.

The "Texas Index" is a number calculated by the Law School 
Data Assembly Service that reflects an applicant's undergraduate 
grade point average and Law School Aptitude Test ("LSAT") score. 
R. 1475 n.9. Many nationally prominent law school use a similar 
composite index in their admissions process. R. 1491 n.35. For 
each of three racial/ethnic classifications (African American, 
Mexican American, and "Other"), UT Law School established two 
scores: a "presumptive admit" score and a "presumptive deny" 
score. For the 1992 entering class, the presumptive admission 
and denial Index scores for Texas residents of each group were as 
follows:

7



Group Presumptive Admit Presumptive Deny
African American 189/78 179/69
Mexican American 189/78 179/69
Others 199/87 192/80

R. 1486-87; P-138. (In 1992, due to a change in the LSAT, the 
Law School confronted both two-digit and three-digit Index 
numbers, and, as seen in the chart, established "presumptive" 
scores for both. R. 1486 n.25.) Thus, as Judge Sparks found, 
"the presumptive denial score for nonminorities was higher than 
the presumptive admission score for minorities." R. 1487.

Within a given racial/ethnic classification, the Texas Index 
score was an extremely important factor for UT Law School in 
determining admission. Among residents in the "other" category, 
352 of 372 (95%) in the "presumptive admit" category were 
admitted. In the "presumptive deny" category for "other" 
residents, 30 of 849 (less than 4%) were admitted. (Applicants 
with Texas Index scores between the "presumptive admit" and 
"presumptive deny" cut-offs were considered "discretionary 
admits," and were admitted at proportions in between those for 
the other groups. But even within the discretionary admit 
category, the proportions gaining admission generally increased 
with each point on the Texas Index. P-139.) Similarly, all 
African American residents and 40 of 42 Mexican American 
residents in the "presumptive admit" category for their groups 
were admitted. P-139; R. 1534, n.79; P-142. While not

8



automatic, a high or low Texas Index score was virtually 
dispositive of one's chances for admission, and the primary means 
of comparing two individuals in the same racial/ethnic category 
whose scores were not very close to one another. It was not, 
however, the means of comparing (to the extent any comparison was 
made) an "other" candidate to an African American or Mexican 
American. Vol. 9, pp. 24-25.

As a conseguence of both the influence of the Texas Index 
within a racial/ethnic group, and the differing standards across 
racial/ethnic groups, classification within a given racial/ethnic 
group greatly affected the chances for admission at certain Texas 
Index scores. Among applicants who were residents of Texas with 
Index scores between 189 and 192 (in the "presumptive admit" 
range for African Americans and Mexican Americans, and in the 
"presumptive deny" range for all other applicants), 100% of 
African Americans and nearly 90% of Mexican Americans were 
offered admission, whereas only slightly over 7% of "others" were 
offered admission. P-139; see also P-142. Thus, in this range, 
applicants belonging to one of the "correct" racial/ethnic groups 
were virtually assured of admission; if an applicant belonged to 
the "other" category, admission was extremely unlikely.

2. The Defense Of UT Law School's Race-Conscious 
Admissions System At Trial. —  Contrary to the student groups' 
concerns, defendants vigorously defended their 1992 admissions 
system by, inter alia, arguing that it was a narrowly—tailored

9



means of remedying the present effects of past discrimination 
against African Americans and Mexican Americans by UT Law School, 
the system of higher education as a whole, and local school 
districts in the State of Texas. (Indeed, despite the student 
groups' purported concerns, their discussion of the "history of 
discrimination against African American students" (S.G. Br., 
pp. 8-13) quotes liberally from the trial transcript and Judge 
Sparks' decision on the merits.) Much of the evidence came in 
the form of expert testimony. Indeed, prior to trial, defendants 
previously had identified 18 experts that they expected to call 
on their principal case. E.a., R. 1024-28. (Judge Sparks 
rejected plaintiffs' request to reduce that number as excessive 
and duplicative. R. 1022.) Several of the twelve experts that 
defendants did call went into great detail concerning the past 
history of discrimination against African Americans in 
particular.

Thus, for example, one of defendants' experts gave a long 
history of slavery in Texas, racial violence in Texas from the 
Civil War to the early 20th century, black education in roughly 
the same time period, Heman Sweatt's efforts to enter UT Law 
School in the late 1940's and early 1950's, segregated dorm 
rooms, the controversy over Barbara Smith (a black opera singer), 
segregated athletic teams, and fraternity activities (Vol. 19, 
pp. 9-30; D-476 to D-480). Another of defendants' experts 
identified the proportions of Hispanic and African American 
students living in local school districts in Texas under court

10



order. (Vol. 17, pp. 59-60; D-378; D-487.)3 The defendants also 
called a number of student witnesses, including a member of 
appellant TMLS (Vol. 14, p. 31), who described their view of the 
reputation of UT Law School and what they believed were acts 
which led to an uncomfortable or hostile atmosphere on campus. 
E.q.. Vol. 14, pp. 16, 21-34, 41-43; Vol 15, pp. 32-34.

D. The Post-Trial Submissions
And Motions________________

Post-trial briefs were due on June 13, 1994. In addition to 
filing a brief, however, the student groups took this opportunity 
to submit the affidavit of Martin Shapiro (R.E. Tab D). The 
student groups' post-trial brief (R. 1248-71) claimed that the
issue of the validity of the Texas Index was "not addressed by 
the parties" (R. 1250),4 conceded that the "psychometric

Although not of particular importance on this appeal, the 
student groups assert that this Court in Ross v. Houston 
Independent School District. 699 F.2d 218 (5th Cir. 1983), 
and the Court in Flax v. Potts. 725 F. Supp. 322 (N.D. Tex. 
1989) failed to review or make findings that there were "no 
vestiges of the invidious discrimination remain[ing]" (S.G.
Br., p. 9) in Houston and Fort Worth. This assertion is 
incorrect. Ross. 699 F.2d at 219-20 ("The district court 
found that HISD has eliminated the vestiges of state-imposed 
segregation within the boundaries of this large and 
sprawling school district . . . .  [W]e affirm"); Flax, 725 
F. Supp. at 323 ("the Court finds that the former dual 
school system has been dismantled and that the vestiges of 
de jure segregation have been removed 'root and branch'").
In fact, as the student groups now concede, the evidence 
from both sides was that the Texas Index was a valid 
predictor across races, i.e., it predicted law school 
performance as well for African Americans as for others. 
E.q.. P-101. See S.G. Br., p. 15 (defendants "had conceded 
the validity of the [Texas Index] at trial").

11



analysis" performed by Dr. Shapiro is "a complex and technical 
area" (R. 1255 n.6), and indicated that Dr. Shapiro was "readily 
available to the Court and to the parties should the Court desire 
further elaboration of his declaration testimony" (id.). They 
explained that they had offered Dr. Shapiro to the defendants as 
a witness, but that the defendants had "declined the offer"
(id.). S.G. Br., p. 31 n.18.

Plaintiffs immediately moved to strike the declaration of 
Dr. Shapiro (and other non-record exhibits that had been 
submitted by the student groups). R. 1443-49. Judge Sparks 
denied that motion in an order dated June 22, 1994 (R.E. Tab E), 
but held that "to the extent amici has [sic] presented new issues 
and evidence not presented at trial in its brief and exhibits, 
the Court will not consider such evidence, which is outside the 
record for any purpose." (Judge Sparks had made clear a week 
earlier, in granting the motion of other groups to submit a post­
trial amicus brief, that he would not permit amici to submit 
material outside of the record. R. 1404.)

About three weeks later, on July 12, 1994, the student 
groups renewed their prior motion to intervene. R. 1451-57. In 
this motion, the students groups sought intervention "for the 
limited purpose of introducing [Dr. Shapiro's psychometric] 
evidence and allowing plaintiffs to cross-examine Dr. Shapiro and 
offer any independent evidence of their own on the issue of the 
validity of the Texas Index" (R. 1454-55). The student groups

12



also sought a "limited opportunity for discovery" to obtain 
certain data (R. 1455 n.5). As alternative relief, the student 
groups suggested that their argument about the invalidity of the 
Texas Index could be heard by the Court without any prejudice to 
plaintiffs because plaintiffs had notice of such issues from the 
student groups having "raised this issue in their brief in 
support of intervention in the Court of Appeals . . . and during
the oral argument on appeal" (R. 1452 n.l). (The student groups 
make the same assertion in their principal brief. S.G. Br., 
p. 25. The student groups did not (and do not) explain how their 
arguments about the type of evidence they would have shown if 
they had been permitted to intervene gave plaintiffs notice that 
they would try to submit the same evidence anyway even if they 
were not permitted to intervene.)

Only a few days after the student groups made their motion 
to renew (and before plaintiffs had an opportunity to submit 
opposing papers), the court below denied the motion. R.E. Tab C. 
It is this judgment which is the subject of this appeal.

E. The Student Groups' Motion To
Intervene In This Court______

In October 1994, the student groups moved to intervene 
directly in this Court on plaintiffs' appeal of the final 
judgment below (i.e.. Appeal No. 94-50664). The student groups 
claimed in this motion that defendants had not represented their 
interests because they had failed to present two separate

13



arguments in the Court below: the invalidity of the Texas Index 
and the alleged requirement of the Fourteenth Amendment that UT 
Law School employ a race-conscious admissions program. Motion, 
pp. 4-5. In opposition, plaintiffs Hopwood and Carvell pointed 
out, inter alia, that defendants unambiguously had made the 
second argument in the court below. E.q.. Opposing Memorandum, 
pp. 13-14; R. 1307-08. The student groups' principal appeals 
brief nonetheless repeats this false contention. S.G. Br., 
p. 15.

In an order entered on November 14, 1994, this Court denied 
the student groups' motion to intervene in Appeal No. 94-50664.

Summary Of Argument

The order of the court below was correct. The student 
groups offered no compelling reason why the court below should 
suddenly abandon its own holding and the affirmance of this 
Court, and, six weeks after trial, reopen the suit for additional 
discovery and trial. No such reason exists. The fact that 
defendants chose not to present every piece of evidence that the 
student groups wanted them to present does not provide a basis 
for revisiting the courts' previous judgments. Neither Judge 
Sparks nor this Court provided a guarantee to the student groups 
that defendants would present all such evidence.

Assuming there had been such a guarantee, the student groups 
should have made their renewed motion prior to trial, when they

14



learned that defendants would not use Dr. Shapiro. By attempting 
to slip in his testimony through their post-trial brief, the 
student groups prejudiced plaintiffs and placed Judge Sparks in a 
position where the only choices were to exclude the evidence or 
reopen the entire lawsuit for additional discovery and trial. By 
not acting promptly, the student groups waived whatever rights 
they might have had.

Finally, the student groups simply cannot meet the 
reguirements of Rule 24. As this Court has previously held, 
their interests are and were being adeguately represented by the 
defendants in this action. Their interest in this litigation is 
theoretical; they cannot point to any specific, legally 
protectable interest of theirs or their members at stake. In 
contravention of the timeliness requirement of Rule 24, their 
motions have been chronically late. In short, this appeal is yet 
another rerun of arguments that had no merit in the first place.

Argument 

I.

THE COURT BELOW DID NOT ERR IN DENYING THE 
STUDENT GROUPS' MOTION TO RENEW

The January 1994 Judgment, denying the student groups' 
motion to intervene, was a final order as to them, which allowed 
them to appeal that judgment to the Fifth Circuit. Walker v.
City of Mesquite. 858 F.2d 1071, 1074 (5th Cir. 1988). (Indeed,

15



they were required to appeal at that time or lose their right to 
appeal. United States Environmental Protection Agency v. Green 
Forest, 921 F.2d 1394, 1401 (8th Cir. 1990), cert, denied. 112 S. 
Ct. 414 (1991); California v. Block. 690 F.2d 753, 776 (9th Cir. 
1982).) The student groups have not made the kind of showing 
necessary to modify a final judgment, and their motion to renew 
was untimely.

In general, a motion to "renew" or "reconsider" a final 
judgment is governed by Rule 60(b), Fed. R. Civ. P. That rule 
lists a number of grounds for seeking relief from an order, 
although the student groups did not identify any in the court 
below or in their principal brief in this Court. The broadest of 
the criteria, subparagraph (6) permits the modification of a 
final judgment for "any other reason justifying relief." Rule 
60(b)(6) requires the existence of "extraordinary circumstances." 
Pico v. Global Marine Drilling Co.. 900 F.2d 846, 851 (5th Cir. 
1990) ("Relief under [Rule 60(b)(6)], however, should be granted 
'only if extraordinary circumstances are present'"); Bailey v. 
Ryan Stevedoring Co.. 894 F.2d 157, 160 (5th Cir.), cert, denied, 
498 U.S. 829 (1990). This Court reviews a ruling on a Rule 60(b) 
motion with an abuse of discretion standard. Cooper v. Noble, 33 
F.3d 540, 543 (5th Cir. 1994); Edward H. Bolin Co. v. The Banning 
Co.. 6 F.3d 350, 353 (5th Cir. 1993).

Several circuit courts that have considered the issue have 
adopted standards somewhat more lenient, although not too

16



dissimilar, to Rule 60(b) standards in considering repeated 
motions for intervention. Thus, in both U.S. Environmental 
Protection Agency v. Green Forest. 921 F.2d at 1401, and Hodgson 
v. United Mine Workers of America. 473 F.2d 118, 125 (D.C. Cir. 
1972), the courts considered a second motion for intervention 
where there was "circumstances materially changed" from the 
circumstances at the time of the first motion. With due respect 
to both courts, the "material changed circumstances" standard 
gives too little weight to the fact that an order denying 
intervention is a final judgment and to the considerations of 
repose and finality that underlie such judgments. Permitting 
repetitious applications to intervene without a showing of the 
"extraordinary circumstances" usually needed to modify a final 
judgment gives proposed intervenors all the advantages of a final 
judgment (e.g.. immediate appeal) without the primary 
disadvantage (viz.. true finality).5

Although, for the reasons set forth above, plaintiffs 
Hopwood and Carvell submit that application of the "extraordinary 
circumstances" standard of Rule 60(b) is appropriate, this Court 
need not reach that issue. Under any standard, even the

The Court in Hodgson. for example, emphasized the discretion 
involved in determining motions under Rule 24(a)(2).
Hodgson. 473 F.2d at 125-26 & n.38. But triers of fact 
frequently exercise discretion before entering a final 
judgment: they consider, for example, whether a witness was 
"credible" or a defendant was "negligent." While the 
Hodgson court noted that "[djecisions on motions do not 
necessarily have the force of res judicata" (id. at 126, 
n.38), motions that result in appealable final judgments do.

17



seemingly lesser standard of material changed circumstances, the 
student groups7 showing is woefully inadequate.

A. The Student Groups Have Failed To 
Show Circumstances Warranting 
Reconsideration Of Their 
Intervention Motion______________

The student groups point primarily to defendants7 decision 
not to call Dr. Shapiro as a witness as the circumstance which 
sanctioned their second motion to intervene. But since, as shown 
below, that decision does not in any way affect any of the 
factors to be considered on the underlying motion to intervene 
(much less all of them), it can hardly be considered the 
"extraordinary circumstance" required under Rule 60(b)(6) or even 
a material changed circumstance.

To intervene under Rule 24(a)(2), a movant must demonstrate: 
(1) a timely application, (2) an interest in the property or 
transaction that is the subject of the action, (3) an impairment 
of movant's ability to protect that interest, and (4) an 
inadequate representation of that interest by the parties to the 
suit. Doe v. Duncanville Independent School Dist., 994 F.2d 160, 
167 (5th Cir. 1993); Kneeland v. National Collegiate Athletic 
Ass7 n. 806 F.2d 1285, 1287 (5th Cir.), cert, denied, 484 U.S. 817 
(1987). Each of the four elements must be met before a motion to 
intervene can be granted. E. q . . Doe. 994 F.2d at 168 ("all four 
. . . factors [must] be present before a party may be entitled to
intervention as of right"); Kneeland. 806 F.2d at 1287 ("If a

18



party seeking to intervene fails to meet any one of those 
requirements then it cannot intervene as of right"). A movant 
"has the burden of demonstrating its entitlement to intervene." 
United States v. Texas Eastern Transmission Corp.. 923 F.2d 410, 
414 (5th Cir. 1991).

The "changed circumstance" (defendants' failure to use Dr. 
Shapiro) upon which the student groups rely relates only to the 
"inadequate representation" requirement. Thus even if (contrary 
to both fact and law) the "changed circumstance" at issue were 
sufficient to show inadequate representation, where none before 
existed, the student groups' motion to renew their intervention 
application was still appropriately denied because, as shown 
below (Parts II and III, infra). they cannot meet the other 
requirements of Rule 24(a). And as shown in this section, the 
"changed circumstance" does not affect the fact that the student 
groups' interests were and are adequately represented by the 
defendants.

1. As This Court Has Already Held, The Student Groups' 
Interests Were Adequately Represented By The Defendants. —  In 
its previous judgment in this case, this Court held that the 
interests of the student groups were being adequately represented 
by the defendants because both the student groups and the 
defendants wanted to show the "present effects of past 
discrimination" sufficient to support UT Law School's race­
conscious admissions program. The student groups have failed to

19



show that defendants' failure to use Dr. Shapiro should change in 
any way that conclusion.

As the student groups seem to have recognized in their 
previous papers, the mere failure by the defendants to follow 
precisely the litigation course that the student groups would 
prefer is insufficient to show "inadequate representation." See, 
e.g.. fn. 2, supra; U.S. v. Philadelphia. 798 F.2d 81, 90 (3d 
Cir. 1986) (gay and lesbian group did not show inadequate 
representation by local human rights commission where the 
commission "imprudently stipulated to facts that it should not 
have and . . . did not sufficiently challenge certain evidence
proffered by the [federal] government"). Were the law otherwise, 
proposed intervenors would be able to show "inadequate 
representation" whenever any argument, no matter how baseless, 
irrelevant, or frivolous, was rejected by the party representing 
their interests.

To show "inadequate representation," then, a proposed 
intervenor must show that a plausible line of argument was 
rejected for a reason other than mere strategy disagreement and 
that suggests that the potential intervenor's substantial legal 
interests are not being properly defended. Here, the student 
groups do offer a reason (and did in the court below) —  viz., 
defendants' fear of Title VI liability (R. 1453; S.G. Br., p. 31 
(interest in "avoiding future civil rights liability")) —  but it 
is precisely the same reason that they raised the last time they

20



appealed to this Court (R. 1452 n.l), a reason which was rejected 
by this Court.6 That alone was sufficient ground for Judge 
Sparks to reject their second application. E. g. . Bailey v. Ryan 
Stevedoring Co.. 894 F.2d 157, 159 (5th Cir.), cert, denied, 498
U.S. 829 (1990) ("[T]he issue on which Bailey asks the district
court for relief from final judgment was included in his prior 
appeal and decided against him. He may not ask now for the 
district court to rule again on the very issues decided on 
appeal").

Ultimately, the student groups' argument confuses a 
"separate argument" with a "separate interest," and interprets 
this Court's prior decision as a guarantee that defendants would 
present any evidence or argument that the student groups wanted 
them to. (Indeed, they several times assert that this Court 
"expected" the defendants to utilize all of the student groups' 
arguments and evidence. S.G. Br., pp. 24, 29.) This Court's 
decision did no such thing. It rejected the student groups' 
appeal because the defendants would have to show the "present 
effects of past discrimination" to succeed, and the student 
groups had presented no evidence to suggest that defendants did 
not want to succeed. They still have not.

Indeed, it was the same reason offered by the student groups 
to explain why the defendants would not present alleged 
evidence of a racially hostile campus environment. But, of 
course, defendants did put on such evidence. The student 
groups' principal brief never explains why this "Title VI 
liability concern" was sufficient to deter defendants from 
presenting one type of evidence, but not another.

21



2. Dr. Shapiro's Proposed Testimony Is Irrelevant. —
While appellees Hopwood and Carvell cannot speak for the 
defendants, it seems likely that their decision not to use Dr. 
Shapiro as a witness was based upon the factual implausibility 
and legal irrelevancy of his testimony.

Based upon a sample size of 59 African American students 
entering UT Law School in 1986, 1987, and 1988, Dr. Shapiro 
concluded that, although other law schools could rely on 
composite GPA-LSAT scores in their admissions process, UT Law 
School could not because the Texas Index scores of those 59 
African American students did not predict their first-year law 
school grades well. R.E. Tab D, 26-33. Although there was an 
inverse relationship between GPA and first-year grades in that 
sample (i.e.. the students with lower undergraduate GPAs had, on 
the whole, higher first-year grades), id. f 31, Dr. Shapiro 
apparently did not consider the size of the sample to be 
problematic. Dr. Shapiro also asserted that there was 
"predictive bias" in the use of the Texas Index (id. f 32), 
although he did not state against whom this bias worked, and that 
the Texas Index was not a valid means to select African Americans.7

The other piece of evidence cited by the student groups to 
support their claim of predictive bias, a February 21, 1975
letter from an Office for Civil Rights ("OCR") official to 
the temporary president of the University of Texas (S.G.
Br., p. 17), barely merits discussion. Suffice it to note 
that the letter in guestion (1) is twenty years old, and 
relies on tests that are older, (2) does not mention or 
discuss the LSAT, (3) criticizes the use of other
standardized tests only when they are used alone (i.e.,(continued...)

22



Even assuming that Dr. Shapiro was or is willing to testify 
that the Texas Index is a selection device biased against African 
Americans, that testimony is simply legally irrelevant to the 
question before the Court. If the Texas Index were an improper 
selection criteria, the narrowly-tailored remedy (which, it 
should be noted, comports with Dr. Shapiro's own opinion, R.E.
Tab D, f 35) would be to eliminate it. The fact (if it were a 
fact) that the Texas Index is racially-biased cannot be used to 
support defendants' race-conscious admissions policy:

It should be unnecessary to add that a public employer 
cannot be allowed to justify reverse discrimination by 
the bootstrap method of an alternating sequence of racial promotions (or hires). That is, the city cannot 
get points for first using a presumptively biased 
eligibility list to make a string of white promotions 
and then turning around and trying to do some rough racial justice by promoting two blacks from the bottom 
of the list.

Aiken v. City of Memphis. 37 F.3d 1155, 1164 (6th Cir. 1994) (en 
banc), quoting Billish v. City of Chicago. 989 F.2d 890, 894 (7th 
Cir.) (en banc), cert, denied. 114 S. Ct. 290 (1993). See also 
Enslev Branch N.A.A.C.P. v. Seibels. 31 F.3d 1548, 1572 (11th 
Cir. 1994) ("Use of racial hiring quotas to mask the effects of 
discriminatory selection procedures places grievous burdens on 
blacks as well as whites"). Not only is the student groups' 
proposed "test invalidity" argument not, as they would hope, a 7

7(...continued)without consideration of grades), unlike the Texas Index, 
and (4) is not, as the student groups would have it, an 
"order" (S.G. Br., p. 23) in any usual sense of that word.

23



"separate defense"; it is not a defense at all.

To support their contention that "test invalidity" can 
support race preferences in favor of the group which is adversely 
affected by the discriminatory test, the student groups cite 
Kirkland v. N.Y. State Dep't Of Correctional Services. 628 F.2d 
796 (2d Cir. 1980), cert, denied. 450 U.S. 980 (1981), a Title 
VII case in which an employer added points to the scores of 
African American applicants to rectify the discriminatory impact 
of a test. S.G. Br., p. 30.8 Title VII, of course, is both 
legally and factually distinguishable from claims under the 
Fourteenth Amendment, which reguires strict scrutiny. (The 
factual distinctions are particularly stark for employment tests, 
which are difficult to develop and involve an applicant pool that 
does not wholly turn over every year.) In any event, the Supreme 
Court rejected the "two wrongs make a right" theory implicit in 
Kirkland. even in a Title VII action, in Connecticut v. Teal, 457 
U.S. 440 (1982) (test which had disparate impact and eliminated 
minority candidates was not saved by affirmative action program

The student groups also cite Ass'n Against Discrimination in 
Employment v. Bridgeport. 594 F.2d 306 (2d Cir. 1979) but, 
contrary to the student groups' assertion, the Court there 
did not "suggest" that lowering the cut-off score for 
minority test takers would be a "suitable remedy for an 
invalid test with a discriminatory effect" (S.G. Br., 
p. 30). Rather, the Court suggested that lowering the cut­
off score, combined with random selection of appointees from 
the group of passing candidates, would eliminate the 
disparate impact (and, thus, the violation of Title VII) altogether. Indeed, the Court remanded precisely for the 
purpose of determining if that were so. Bridgeport. 594 
F.2d at 313 & n.19.

24



for minorities that qualified under test), and Congress rejected 
"race-norming" in Section 106 of the Civil Rights Act of 1991 (42 
U.S.C. § 2000e-2(1)).

B. Plaintiffs' Motion To
Renew Was Untimely

Rule 60(b) requires that a motion to modify a final judgment 
be made "in a reasonable time," a standard which, by its very 
nature, "invites flexible application in varying situations." 
Lairsev v. Advance Abrasives Co.. 542 F.2d 928, 930 (5th Cir. 
1976). Rule 24 also requires that an intervention motion 
(whether under Rule 24(a) or 24(b)) be made in a timely fashion 
(see Part III, infra). and thus, even if considered as a wholly 
new motion, the timeliness of the student groups' second motion 
must be assessed. The student groups have failed to show that 
their second intervention motion was timely.

As they did before Judge Sparks, the student groups assert 
that they offered to make Dr. Shapiro available, but that the 
defendants "declined [their] request that [defendants] call" him. 
S.G. Br., p. 31 n.18. Cagily, the student groups do not say when 
the offer and rejection took place. If it took place after mid- 
April, then the defendants had a perfectly good reason, hardly 
inconsistent with an adequate representation of the student 
groups' interests, for declining to call Dr. Shapiro: it was too 
late under Judge Sparks' scheduling orders. R. 1022. But if, as 
suggested below, it took place before then, the student groups

25



must explain why they waited so long to protect their interests.

The record is also not precise as to when these 
communications took place. However, it appears that defendants 
rejected the student groups' offer at the time that they 
identified their expert witnesses for plaintiffs, i.e.. in late 
March or early April 1994. R. 1024-28. See also R. 1022 (order 
requiring final lists of experts and reports on April 15, 1994).9 
The student groups did not move until July 12, 1994. In the 
intervening period of time, expert depositions, the trial itself, 
and post-trial submissions took place.

It seems fair to assume that the student groups understood 
the general role that amici play (and thus that defendants' 
refusal to use Dr. Shapiro meant that he would not be heard). 
"[I]n the absence of exceptional circumstances amicus curiae is 
not entitled to introduce new evidence . . . "  Wiggins Bros.,
Inc, v. Dep't of Energy. 667 F.2d 77, 83 (TECA 1981), cert. 
denied, 456 U.S. 905 (1982). Indeed, the student groups' motion 
for provisional party status in February made plain that they 
understood exactly what the role of amicus meant since they 
protested that that role would not allow them to "participate in 
any meaningful way in the development of the factual record in

In any event, the documents identifying those deadlines were 
part of the record and publicly available. Prejudice from 
delay is determined from the time that the proposed 
intervenor "knew or reasonably should have known" about an 
interest not being adequately represented. Stallworth v. 
Monsanto Co.. 558 F.2d 257, 265 (5th Cir. 1977).

26



this matter." R. 811. See also S.G. Br., p. 14 (as amici, the 
student groups had "no opportunity to introduce evidence or argue 
before the court").

This Court should also presume that the student groups know 
the basic fundamentals set out in the Federal Rules of Civil 
Procedure. Rule 43(a) states that "the testimony of witnesses 
shall be taken orally in open court" in all trials unless a 
specific statute or rule states otherwise.

Thus, if the student groups truly believed that defendants' 
failure to use Dr. Shapiro constituted the significant event they 
now claim it was, they should have made their second motion long 
before trial, when Judge Sparks might have been able to 
accommodate their concerns.10 The only excuse the student groups 
give for their delay is Judge Sparks' casual comment at the end 
of trial stating that the student groups could "produce whatever 
they would like in the record" (S.G. Br., pp. 14, 23). Even 
attributing the great weight to this comment that the student 
groups give it —  that is, assuming arguendo that it was 
reasonable to presume that Judge Sparks meant to expand the 
status of these amici well beyond the normal status of amicus and 
meant to violate Rule 43(a) of the Federal Rules of Civil 
Procedure -- this still does not explain why the student groups

In this Circuit, the procedure for moving to amend a final 
judgment pursuant to Rule 60(b) while an appeal is pending 
from that judgment is set forth in Lairsev v. Advance 
Abrasives Co., 542 F.2d 928, 932 (5th Cir. 1976).

27



did nothing before (or even during) trial. Unless the student 
groups somehow knew that Judge Sparks would make his casual 
comment at the end of trial (or even that he would make some 
comment which they could later misinterpret) —  and even the 
student groups do not claim this kind of prescience —  they have 
no explanation at all.

The student groups concede that if this Court reverses Judge 
Sparks on the main appeal (Appeal No. 94-50664), then 
"intervention and remand" (S.G. Br., p. 24) are needed to 
accommodate their alleged interests. To counter the obvious 
conclusion that reopening the trial at this stage would 
constitute prejudice to the parties, the student groups claim 
that such prejudice "will not be attributable to the timing of 
[the student groups'] motion" (S.G. Br., p. 25). But, of course, 
it would be attributable to precisely that. Having failed to 
make their second motion before trial, the student groups have 
created a situation where nothing but prejudice to the parties 
can result.

In National Association For The Advancement Of Colored 
People v. New York. 413 U.S. 345, 367 (1973), the Court affirmed 
a decision denying a motion to intervene where the movants had 
"failed to protect their interest in a timely fashion" in 
delaying a few weeks after concededly knowing of their interest 
in the lawsuit before making their motion. Here, the student 
groups delayed much longer than that, and allowed discovery and

28



an entire eight-day trial to pass by while they waited.

II.

THE STUDENT GROUPS ERR IN ASSERTING THAT THEY HAVE 
A LEGALLY PROTECTABLE INTEREST THAT WILL BE 

IMPAIRED IF INTERVENTION IS DENIED

The second and third requirements under Rule 24(a) are a 
legally protectable interest and an impairment of that interest. 
The student groups' skimpy discussion of these elements (S.G.
Br., pp. 25-28) reveals that they cannot meet these reguirements.

This Court has repeatedly stated that it will construe the 
interest needed to qualify under Rule 24(a)(2) narrowly. That 
interest must be a "direct, substantial, legally protectable 
interest." E.g.. Valiev Ranch Development Co. v. Federal Deposit 
Ins. Corp.. 960 F.2d 550, 556 (5th Cir. 1992) ("We read the term 
'interest' narrowly. That interest should be 'direct, 
substantial, [and] legally protectable'"); United States v. 
Mississippi. 958 F.2d 112, 115 (5th Cir. 1992) ("To intervene 
under Rule 24(a)(2), the [movant] must assert a 'direct, 
substantial, legally protectable interest in the proceedings'"). 
As shown below, the interests asserted by the proposed 
intervenors do not qualify.

A. The Student Groups Have No Substantial,
Legally Protectable Interest
Of Their Own___________________________

In their brief, one-page discussion of the "legally

29



protectable interest" requirement, the student groups first claim 
that they themselves have a "constitutional and statutory 
interest in remedying the harm caused by the State defendants' 
pattern of intentional discrimination against African-American 
students, as found by the district court" (S.G. Br., p. 26).
This, of course, is simply untrue. The student groups qua groups 
have no right to an "equal protection" remedy because they have 
no racial identity themselves. Cf. Village of Arlington Heights 
v. Metroplitan Housing Development Corp.. 429 U.S. 252, 263 
(1977) ("As a corporation, [plaintiff] has no racial identity and 
cannot be the direct target of the petitioners' alleged 
discrimination").

The student groups have never alleged a loss of funds or any 
other direct injury that could be recognized as a legal interest. 
Interests like TMLS's goal of "encourag[ing] the admission . . .
of greater numbers of African-American scholars at the law 
school" (S.G. Br., p. 7) are just broad organizational goals in 
which the groups have no legally protectable interest. Sierra 
Club v. Morton. 405 U.S. 727, 739 (1972). Nor does TMLS have a 
"legal interest" in a membership of a particular size. 
Accordingly, the only "interests" even potentially at stake here 
are the legally and factually distinct interests of the student 
groups' members.

30



B. The Student Groups Have Not Identified Any 
Members Whose Interests Are At Stake______

The Fifth Circuit has required organizations that seek 
standing on behalf of their members to identify those members 
whose rights have been injured. Cleburne Living Center v. City 
of Cleburne. 726 F.2d 191, 203 (5th Cir. 1984), aff'd in part, 
vacated in part, on other grounds. 473 U.S. 432 (1985) (although 
organization challenging zoning ordinance prohibiting home for 
the mentally retarded "claims that some of its members are 
potential residents of the [home], it has never identified any 
individuals who actually desire to live there"). Given the 
narrow interpretation that this Circuit gives to "legally, 
protectable interest," a similar requirement should be imposed 
upon those organizations seeking to intervene on behalf of their 
members.11 In all of their various applications to intervene in 
this action, the student groups have never bothered to identify 
anyone (much less a member) whose interests are at stake.
Instead, they speak vaguely of the interests of "African American 
students" (S.G. Br., p. 26) as if all African American students

In their principal brief on the appeal of the January 1994 Judgment, the student groups argued that they were entitled 
to represent the interests of their members under the 
principles of Hunt v. Washington State Apple Advertising 
Comm'n. 432 U.S. 333 (1977). See Appeal No. 94-50083, 
Appellants' Principal Br., p. 25. But, of course, Hunt was 
a standing case, and City of Cleburne is this Circuit's 
application of the principles of Hunt. If the student groups wish to rely upon principles of "representative 
standing" to support their claim of "representative intervention," they must comply with the requirements this 
Court has set forth to make a claim of "representative 
standing."

31



were members.

Plainly, they are not. In January 1994, when the student 
groups made their first motion to intervene, there were 
"approximately twenty" African American undergraduates at the 
University of Texas who were members of the BPLA. R. 636, 671, 
761. Some, or perhaps all, of them no doubt graduated by the 
time that the student groups made their second motion in July 
1994. That BPLA has never identified any member whose interests 
are at stake casts doubt as to whether anyone associated with 
that organization has a "direct, substantial, legally protectable 
interest" in this lawsuit. In any event, the failure to identify 
such individuals is fatal to their application.

C. The Members' "Interests" Are Not Direct,
Legally, Protectable Interests___________

Even if the student groups had bothered to identify a member 
or members whose interests are placed in jeopardy by this 
lawsuit, it is clear from the student groups' description of 
those interests that they do not qualify as substantial, direct, 
legally protectable interests. In general, the interests cited 
by the student groups fall into two categories: the irrelevant 
and the speculative.

1. The Members Of The Student Groups Have No "Interest" In 
The Defendants' Dismantling A Policy Traceable To The De Jure Era 
Because No Such Policy Is At Stake In This Lawsuit. —  The 
student groups argue that the State has an affirmative duty under

32



the Fourteenth Amendment to "'dismantle its prior dual university 
system'" (S.G. Br., p. 26, citing United States v. Fordice. 112 
S. Ct. 2727 (1992)). The interest in compliance with the 
Fourteenth Amendment is a legal interest (the only one the 
student groups identify). Some African American students might 
have such an interest (although members of TMLS, who have already 
been admitted to the UT Law School, seem unlikely candidates).12 
Unfortunately, this interest has nothing to do with this lawsuit.

Under Fordice. a state university or system is obligated to 
reform only those specific policies that (1) have discriminatory 
effects, (2) are traceable to the de jure system that previously 
existed f i.e.. before Sweatt v. Painter. 339 U.S. 629 (1950)), 
and (3) are without educational justification and can be 
practicably eliminated. Fordice. 112 S. Ct. at 2737. See also 
United States v. Louisiana. 9 F.3d 1159, 1166-67 (5th Cir. 1993) 
(lower court "failed to address the policy's traceability to the 
state's prior de jure system"). The student groups claim that

The student groups do not mention any direct, substantial, 
legally-protectable interest of TMLS members themselves (as 
opposed to the impairment of membership or "organizational 
goals") in the admissions system, and thus presumably 
concede that those students would not individually have the 
right to intervene. In passing, it deserves mention that 
any purported effect that a change in the admissions policy would have on the racial composition of the student body 
would only take place over several years, starting the year 
after the change in admissions policy takes place. TMLS 
members —  who were going into their second and third years 
of law school at the time that the student groups made their 
second motion in July 1994 —  will have graduated before any 
changes are instituted, much less purported effects are 
seen.

33



there is a "Fordice dismantling" interest at stake, but they do 
not bother to identify the policy they believe needs to be 
eliminated (or, for that matter, what it has to do with this 
case). One thing that is clear from the testimony at trial is 
that UT Law School's current admissions policies are not 
traceable to the de ~iure system. Defendant Stanley Johanson, the 
long-time chair of UT Law School's Admissions Committee (R. 1483 
n.20), testified that, in the 1960's, long after Sweatt v. 
Painter. UT Law School had "virtually open enrollment" (Vol. 3, 
p. 12). Id.. p. 13 ("if you were breathing, then you were 
admitted to the UT Law School"). Since the admissions policy is 
not traceable to the de jure system, and since this lawsuit only 
involved the admissions system, the "interest" of the student 
groups' members in the UT Law School's compliance with the 
Fourteenth Amendment is not relevant here.13

2. To The Extent That The Student Groups Identify Any 
Other "Interests," They Are Not Direct. Substantial. Legally 
Protectable Interests. —  The student groups assert that 
elimination of a race-conscious admissions program would 
"immediately and detrimentally alter the mechanism by which the

The student groups also cite Adams v. Bell (S.G. Br. pp. 11, 
26), in which the Court simply related the 1980 findings of 
OCR that Texas had not eliminated the vestiges of its prior 
system of de jure discrimination. But OCR was then 
operating under regulations that held that the racial 
identifiability of schools constituted a continuing violation of the Fourteenth Amendment; the Supreme Court 
rejected that proposition in Fordice. 112 S. Ct. at 2736 n.4 
and 2738 n.7 (1992).

34



applications of current BPLA members and other African Americans
will be considered" (S.G. Br., p. 27). But this interest, in and 
of itself, does not qualify as a "direct, substantial, legally 
protectable interest." Without it being somehow related to the 
BPLA members' equal protection rights (which, as shown above, it 
is not), this interest is simply an interest in the benefits of a 
state of affairs that potential applicants (some of whom may or 
may not be BPLA members) prefer. E.g.. United States v. Perry 
County Board of Education. 567 F.2d 277, 279 (5th Cir. 1978) 
(intervention denied in school desegregation case; "there are 
innumerable instances in which children, parents, and teachers 
may be deprived of various 'rights' (e.g., the 'right' to attend 
a neighborhood school) without having had the opportunity to 
participate directly in the judicial proceedings which divest 
them of those 'rights'"); United States v. Mississippi. 958 F.2d 
112, 115 (5th Cir. 1992).

Moreover, one can only speculate upon the effect that a 
change in admissions policy would have on the numbers of African 
Americans admitted to UT Law School, much less the effect on the 
application of any specific BPLA member. Plaintiffs seek only 
the elimination of two different sets of admissions standards. 
Nothing about this lawsuit, or any injunction resulting from it, 
would require UT Law School to adopt a purely numeric system (or 
any other system that the student groups suspect may reduce the 
number of African American applicants admitted).

35



Indeed, the evidence at trial demonstrated that the numbers 
of minorities admitted could be increased by placing less 
emphasis on criteria like LSAT scores and more emphasis on other 
factors like work experience or leadership potential, and 
applying those factors equally without regard to race. Vol. 18, 
pp. 41-44; P-134. It is hardly impossible that, were UT Law 
School enjoined from using different standards for different 
races, it might employ a set of criteria with less emphasis on 
the Texas Index. Or it might employ a lottery or any other 
system it chooses. One can only guess at how this would affect 
the chances of a particular African American applicant.
See, e.q.. Cohn v. E.E.O.C.. 569 F.2d 909, 911 (5th Cir. 1978) 
(In ruling that two employees whose promotions were vacated by 
the district court could intervene pursuant to Rule 24(a), Court 
states that "[h]ad the applicants sought to intervene in 
[plaintiff's] original suit [prior to their promotions], the 
possible detriment to their likelihood of promotion that might 
have been wrought by the award to [plaintiff] of constructive 
service would not have constituted a sufficiently protectable 
interest to warrant intervention of right").

To circumvent this problem, the student groups repeatedly 
and misleadingly assert that plaintiffs are demanding a system 
which relies heavily upon the Texas Index. See, e.q., S.G. Br., 
p. 3 ("plaintiffs sought to confine the Law School [to the Texas 
Index]"), p. 30 ("strict reliance on [Texas Index] scores [is]
. . . [t]he relief sought by the plaintiffs in this case"), and

36



p. 31 (plaintiffs "demand . • . greater reliance on the [Texas
Index]" (emphasis in original)). (It is, of course, not 
altogether clear what constitutional or statutory provision would 
permit plaintiffs to make such a demand. The provisions upon 
which plaintiffs rely in this lawsuit only state what criteria 
(race, sex, etc.) cannot be relied upon, not what should be 
relied upon.) In fact, plaintiffs never made any argument of the 
kind. Their post-trial brief stated that

plaintiffs do not advocate sole, or even significant, 
reliance on "numbers" (i.e.. TI scores) in an 
admissions system. Defendants can rely on TI scores as 
much or as little as they like. What they cannot do is place significant reliance upon it within racial groups (which they plainly do, as both the relevant statistics 
and the use of such suddenly-disowned phrases like 
"automatic admissions" (see P15, P19 & Vol. 3, p. 65) 
demonstrate), and then suddenly ignore TI scores and 
use very different standards when making comparisons 
across racial groups. DeFunis v. Odegaard, 416 U.S. 
312, 325 (1974) (Douglas, J. dissenting) ("[C]hoices 
confronting a university admissions committee are not 
ordinarily a subject for judicial oversight . . . What
places this case in a special category is the fact that 
the school did not choose one set of criteria but two, 
and then determined which to apply to a given applicant 
on the basis of race").

R. 1328-29 n.2 (emphasis in original). That the student groups 
feel compelled to misrepresent plaintiffs' legal position in 
order to make their case only underscores the weakness of their 
argument. Not only do the student groups have no direct, 
substantial, legally protectable interest in this action; the 
inability to predict how UT Law School will react to an 
injunction requiring a single standard applicable to all races 
renders any future effect speculative.

37



D. The Student Groups' Ability To Protect 
Their Substantial, Direct, Legal 
Interests Is Not Impaired_____________

As set forth above, the only direct, substantial legal 
interests the student groups might have will not be affected by 
this lawsuit. This lawsuit does not seek to preserve any policy 
which should be eliminated under the criteria of United States v. 
Fordice. Nor does it seek either to promote or preserve any 
policies that discriminate against African Americans.

If, for example, UT Law School is enjoined from applying two 
different admissions criteria, and then chooses to employ a 
unitary standard that relies heavily on the Texas Index, the 
student groups (or, more precisely, those who can reasonably 
claim to be actually injured by the implementation of that 
policy) may challenge that admissions standard under Title VI. 
Certainly, nothing in this lawsuit would prevent them from doing 
so.

III.

THE STUDENT GROUPS' INTERVENTION MOTIONS 
HAVE NOT BEEN TIMELY

As already shown in Part I.B of this Argument section, the 
student groups' second motion for intervention was untimely given 
that they knew that Dr. Shapiro would not be called as an expert 
witness some time before trial. Furthermore, the student groups' 
first motion in January 1994 was also untimely. Since timeliness

38



is an important part of any Rule 24 motion, the student groups' 
dilatory tactics provide yet another independent basis for 
affirming Judge Sparks' judgment.

"Timeliness" is a reguirement for any Rule 24 motion, and 
the standards for timeliness are the same regardless of whether 
the motion is brought pursuant to Rule 24(a) or Rule 24(b).
Smith Petroleum Service. Inc, v. Monsanto Chemical Co.. 420 F.2d 
1103, 1115 (5th Cir. 1970) ("an application for intervention, 
whether as a matter of right or permissive, must in every case be 
timely; Rules 24(a) and 24(b) provide for intervention 'upon 
timely application'"). This Court considers four factors in 
determining timeliness: the length of time the party knew or 
should have known of its interest in the lawsuit, the prejudice 
to existing parties, prejudice to the intervening party if 
intervention is denied, and the presence of unusual 
circumstances. Kneeland. 806 F.2d at 1289; Doe. 994 F.2d at 
167-68. This Court has indicated that the prejudice to existing 
parties is the most important factor. Smith Petroleum. 420 F.2d 
at 1115.

Here, those factors, and particularly the prejudice to 
existing parties from having failed to timely move, lead to the 
conclusion that the student groups' first motion, as well as 
their second, was untimely. The first motion was made 10 weeks 
into a 20 week discovery period, and more than 15 months after 
the case commenced. Had the student groups moved to intervene

39



earlier, plaintiffs could have pursued discovery expeditiously 
and thoroughly against them. By waiting, they deprived 
plaintiffs of the ability to do so.

Judge Sparks recognized this prejudice in his finding that 
intervention "would needlessly increase cost and delay 
disposition of the litigation" in the January 1994 Judgment.
R. 746. Although Judge Sparks' finding came in the midst of his 
discussion of the student groups' application for permissive 
intervention under Rule 24(b), the timeliness consideration, as 
already noted, is the same under Rules 24(a) or 24(b).14 Judge 
Sparks' holding in the January 1994 Judgment concerning costs and 
delay was obviously a finding of "prejudice to the existing 
parties," and controls the timeliness question under Rule 24(a) 
as well. Since the first motion was untimely, it was appropriate 
for Judge Sparks to adhere to his first decision on the student 
groups' motion to renew.

IV.

JUDGE SPARKS CORRECTLY DENIED THE STUDENT GROUPS'
MOTION FOR PERMISSIVE INTERVENTION

In this Court's first intervention decision, it noted that

[i]ntervention under Rule 24(b) is left to 
the sound discretion of the district court, 
and this court has jurisdiction only if the

14 Timeliness questions are generally reviewed under an abuse 
of discretion standard. Doe v. Duncanville Independent 
School Dist.. 994 F.2d 160, 167 (5th Cir. 1993).

40



district court has abused its discretion 
. . . As we have noted, we have never
reversed a lower court's decision on Rule 
24(b) intervention . . . The district court
plainly did not abuse its discretion in 
denying petitioners' Rule 24(b) application 
to intervene.

Hopwood v. Texas. 21 F.3d at 606. If Judge Sparks "plainly" did 
not abuse his discretion in finding that intervention in January 
would have increased costs and delayed the litigation, a 
fortiori, he would not have abused his discretion in finding that 
intervention after trial, for the purpose of reopening the trial 
and considering new evidence, would have that same effect.
Indeed, that would have been the exact result of granting the 
student groups' motion, and Judge Sparks correctly denied it.

41



Conclusion

For the foregoing reasons, Judge Sparks' judgment denying 
the student groups' second motion for intervention should be 
affirmed and/or the present appeal dismissed for want of 
jurisdiction.

Respectfully submitted,

Rosman
Center for Individual Rights 1300 19th Street, NW, Suite 260 
Washington, DC 20036
Terral R. Smith, Esq.100 Congress Ave., Suite 1200 
Austin, TX 78701-4409
Attorneys for Plaintiffs-Appellees 
Hopwood and Carvell

42



CERTIFICATE OF SERVICE

I hereby certify that, on January 20, 1995, I personally 
served two copies of the foregoing brief upon the following 
attorneys for the proposed intervenor-defendants-appellants by 
delivering said copies to their office and leaving them with a 
responsible person:

Nicole Marie Walthour, Esq.
Howard Young, Esq.
ARENT FOX KINTNER PLOTKIN & KAHN 
1050 Conncecticut Avenue, NW 
Washington, DC 20036

I further served the following attorneys by mail by placing two 
copies of the foregoing brief for each of them in separately- 
addressed envelopes, and depositing the envelopes in a United 
States mailbox, postage prepaid, on January 20, 1995, addressed 
as follows:

Steven W. Smith, Esq.
Texas Legal Foundation 
3608 Grooms Street 
Austin, TX 78705 
(Counsel for Plaintiffs- 
Appellees Elliott and Rogers)

Barry Burgdorf, Esq. 
Vinson & Elkins 
600 Congress Avenue 
Austin, TX 78701-3200 
(Counsel for Defendants- 
Appellants)

STEVEN WULF