Thurgood Marshall Legal Society and Black Pre-Law Association v Hopwood Reply Brief of Respondents in Opposition to Certiorari

    No. 95-1845

IN THE
Supreme Court of tfje ®triteb States*

October Term , 1995

Thurgood Marshall Legal Society and 
Black Pre-Law Association,

Petitioners,
v.

Cheryl J. H opwood, et al,
Respondents.

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

REPLY TO BRIEF OF RESPONDENTS 
HOPWOOD AND CARVELL IN OPPOSITION 

TO CERTIORARI

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 

* Dennis D. Parker 
NAACP Legal Defense 
& Educational Fund, 
Inc.
99 Hudson Street 
New York, NY 10013 
(212) 219-1900

* Counsel of Record

Anthony P. Griffin 
Anthony P. Griffin, Inc. 
1115 Moody 
Galveston, TX 77550 
(409) 763-0386

David Van Os 
Van Os & Owen 
900 Congress Avenue 
Suite 400 
Austin, TX 78701 
(512) 479-6155

Janell M. Byrd 
NAACP Legal Defense & 
Educational Fund, Inc. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Petitioners



Page

Table of Authorities . .............................................. • • • i

ARGUMENT ............................................................ • • 1

Conclusion ........................................................................9

Table of Authorities

Cases:

Aiken v. City of Memphis,
37 F.3d 1155 (6th Cir. 1994) .............. ..............7

Billish v. City of Chicago,
989 F.2d 890 (7th Cir.), cert, denied,
114 S. Ct. 290 (1993)........................................... 8

Ensley Branch, N.A.A.C.P. v. Seibels,
31 F.3d 1548 (11th Cir. 1994) ................... • - 7-8

Forest Conservation Council v. United States
Forest Serv., 66 F.3d 1489 (9th Cir. 1995) . . 5, 6

Meek v. Metropolitan Dade County,
985 F.2d 1471 (11th Cir. 1993) ...........................6

Trbovich v. United Mine Workers,
404 U.S. 528 (1972)......................................  4n, 5

TABLE OF CONTENTS

i



Statutes and Rules:

28 U.S.C. § 2101(c) . .......... .............................................2

S. Ct. R. 10.1(a) . ............... ..........................................3n

n



In the

Supreme Court of tfte WLmttb £btateg
October Term , 1995 

NO. 95-1845

Thurgood  Marshall Legal Society and 
Black Pre-Law association,

Petitioners,
v.

Cheryl J. Hopwood, et al,
Respondents.

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

REPLY TO BRIEF OF RESPONDENTS 
HOPWOOD AND CARVELL IN OPPOSITION 

TO CERTIORARI

Respondents labor mightily but, we believe, 
ultimately unsuccessfully, to cloud the issues arising 
from the approach taken by the court of appeals to 
the question of intervention by African-American 
students in this "reverse discrimination" case. Only a 
few points require reply. 1

1. Jurisdiction of this Court. Respondents 
confuse the issue of this Court’s jurisdiction to review 
a judgment with the scope of the questions it may 
consider once it has determined to grant review. The 
argument that the Court lacks jurisdiction to review 
the court of appeals’ 1994 ruling affirming the district 
court’s first denial of intervention, because no



2

petition seeking review was filed within ninety days 
(as required by 28 U.S.C. § 2101(c)), is beside the 
point. As explicitly stated at p. 1 of the Petition, the 
Thurgood Marshall Legal Society and the Black Pre- 
Law Association have requested that this Court 
review only the March 18,1996 judgment of the court 
of appeals. Their Petition was unquestionably timely 
filed for this purpose.

To be sure, Petitioners seek review so that this 
Court may clarify the law and correct the errors 
which led the court below to enter that erroneous 
judgment. These include the grossly inappropriate 
refusal by the court of appeals — ostensibly applying 
the "law of the case" doctrine to an earlier decision 
rendered under different factual circumstances1 -  to *

'We agree with Respondents that we "‘made clear 
[our] intention to raise questions about the discriminatory 
effect of the use of the Texas Index as an admissions 
sorting device’" in briefing the first appeal (Br. Opp. at 17, 
quoting Pet. at 26). The panel on the first appeal did not 
hold, explicitly or implicitly, that intervention could not be 
justified for the purpose of assuring that this evidence was 
presented. Rather, its decision implied precisely the 
opposite -  because the panel affirmed the trial judge’s 
denial of intervention based upon its assumption that 
intervention was unnecessary to assure that the evidence 
would be introduced:

Although the BPLA and TMLS may have ready 
access to more evidence than the State, we see no 
reason they cannot provide this evidence to the



3

reach the m erits o f Petitioners’ appeal from the 
district court’s denial of their second request to 
intervene in the action.2

State. The BPLA and the TMLS have been 
authorized to act as amicus and we see no 
indication that the State would not welcome their 
assistance. BPLA and TMLS have not met their 
burden of demonstrating that they have a separate 
interest that the State will not adequately 
represent. The proposed intervenors have not 
demonstrated that the State will not strongly 
defend its affirmative action program. Nor have 
the proposed intervenors shown that they have a 
separate defense of the affirmative action plan that 
the State has failed to assert. See, Jansen v. 
Cincinnati, 904 F.2d 336 (6th Cir. 1990).

(App. 98a-99a.) Following this action by the first panel, 
the State refused to present the evidence questioning the 
validity of the Texas Index as an admissions criterion. 
The propriety of denying intervention under these 
circumstances — diametrically opposite those anticipated 
by the first panel -  therefore had never been ruled upon 
by the first panel and the second panel’s refusal to 
consider the issue on the ground of "law of the case" was 
patently in error.

Petitioners believe that the application of the "law of 
the case" doctrine by the court below "so far departed 
from the accepted and usual course of judicial 
proceedings . . .  as to call for an exercise of this Court’s 
power of supervision." S. Ct. R. 10.1(a).



4

But the approach of the panel below also 
reflected the established and incorrect Fifth Circuit 
standard for determining whether proposed 
intervenors’ interests will be adequately represented 
by existing parties. The court of appeals’ holding 
that Texas’ refusal to introduce the evidence 
proffered by Petitioners did not amount to sufficient 
"changed circumstances" justifying intervention flowed 
directly from its adherence to the requirement that 
proposed intervenors must demonstrate "that the 
present parties will inadequately represent the 
proposed intervenors’ interests" (App. 72a n.59 
[emphasis added]). That standard, of course, is 
inconsistent with the principles announced in 
Trbovich3 and followed by many other Circuits. The 
fact that the decision in Petitioners’ appeal from the 
first denial of intervention rested principally upon 
this same incorrect legal standard hardly insulates it 
from correction by this Court in these proceedings.

Considering and correcting that legal error in 
the course of reviewing the 1996 judgment of the 
court of appeals will not involve retrospective 
reopening and reversal or modification of the earlier 
1994 judgment, even assuming arguendo that it was a 
"final" order requiring immediate appeal.4 Hence,

3Trbovich v. United Mine Workers, 404 U.S. 528 (1972).

ASee Br. Opp. at 14-16, noting unsettled state of the 
law on this question. This Court need not resolve the 
question in order to decide this case.



there is no jurisdictional impediment preventing this 
Court’s review of the intervention question decided 
below.

2. Conflict among the Circuits. Respondents 
assert that we have manufactured a conflict among 
the Courts of Appeals about the standard to be 
applied in judging adequacy of representation where 
intervention is sought on the same side of an action 
on which a governmental agency is a party. They 
imply, for example, that the Ninth Circuit now 
follows the more stringent parens patriae presumption 
of adequacy, citing Forest Conservation Council v. 
United States Forest Serv., 66 F.3d 1489, 1498-99 (9th 
Cir. 1995). The distinction between the approach of 
the Ninth Circuit panel and that of the court below 
could not be greater, however.

The Ninth Circuit court begins its 
consideration of adequacy of representation by 
recognizing that a proposed intervenor’s "burden in 
showing inadequate representation is minimal: it is 
sufficient to show that representation may be 
inadequate. Trbovich v. United Mine Workers [citation 
omitted]." 66 F.3d at 1498. While the court goes on 
to recognize that "‘a presumption of adequate 
representation generally arises when the 
representative is a governmental body or officer 
charged by law with representing the interests of the 
absentee,’" [citations omitted], it holds that the 
presumption is no more difficult to overcome than it 
would be to meet the general rule of Trbovich.



6

In the Ninth Circuit’s view, a demonstration 
that the interests of the proposed intervenors are not 
identical with the general public interest that the 
governmental agency must uphold suffices to "satisf[y] 
the minimal showing required that the Forest Service 
may not adequately represent their interests in 
defending against the issuance of a broad injunction," 
66 F.3d at 1499 [emphasis supplied]. The trial court’s 
denial of intervention was reversed because ”[t]he 
Forest Service is required to represent a broader view 
than the more narrow, parochial interests of the State 
of Arizona and Apache County." Id. Accord, Meek 
v. Metropolitan Dade County, 985 F.2d 1471, 1478 
(11th Cir. 1993)("the intervenors sought to advance 
their own interests in achieving the greatest possible 
participation in the political process. Dade County, 
on the other hand, was required to balance a range 
of interests likely to diverge from those of the 
intervenors. . . . These divergent interests created a 
risk that Dade County might not adequately 
represent the applicants").5

Thus, there is a real and significant difference 
in approach among the Courts of Appeals on the 
standard for intervention that warrants this Court’s 
review.

5We apologize to the Court for the typographical 
error at p. 19 of the Petition, at which this case was cited. 
The pinpoint citation should have read "1477-78" rather 
than "n.77-78."



7

3. The relevance o f petitioners’ evidence about the 
Texas Index. Respondents attempt to minimize the 
significance of the evidence about the Texas Index’s 
invalidity by characterizing it as "quixotic" (Br. Opp., 
at 19 n. 10) and citing three cases for the proposition 
that "the use of an invalid test does not justify 
subsequent race-conscious decision-making to 
‘remedy’ the use of the invalid test." Id. [emphasis 
in original]. However, each of the decisions cited by 
Respondents recognized that following a 
demonstration that a test or other selection process 
was invalid and had a discriminatory effect, race­
conscious re lie f  is p ro p er un til valid, 
nondiscriminatory procedures can be implemented. 
Each of the cited decisions condemned as not 
"narrowly tailored" the continued, long-term use of 
race-conscious measures by public agencies that 
exhibited no interest in developing and validating new 
selection criteria.

See Aiken v. City o f Memphis, 37 F.3d 1155, 
1164 (6th Cir. 1994) (en banc) ("over 15 years ago the 
City stipulated that it is ‘currently in the process of 
developing’ such procedures, and that ‘development 
of fully validated processes is two to three years from 
accomplishment’ . . . Yet, incredibly, the City 
continues to make police and fire department 
promotions according to procedures that have not 
been validated as racially neutral. This dereliction 
cuts against a finding that the race-based remedies at 
issue here are narrowly tailored"); Ensley Branch, 
N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1571 (11th Cir. 
1994) ("The goal of eliminating discrimination may



8

justify some interim use of affirmative action, but 
affirmative action selection provisions are themselves 
a form of discrimination that cannot continue forever. 
An end to racial discrimination demands the 
development of valid, non-discriminatory selection 
procedures to replace race-conscious selection 
procedures. . . . [T]he single most important race- 
neutral alternative contained in the decrees was the 
requirement that the Board develop and put in place 
non-discrim inatory selection procedures--a 
requirement that the Board has not satisfied"); Billish 
v. City o f Chicago, 989 F.2d 890, 894-95 (7th Cir.) (en 
banc) ("Of course if the city had a desperate need for 
twenty captains just then, and the only eligibility list 
it had was based on a quite possibly biased 
examination that had been given in 1979, a modest 
departure in favor of remedial racial balance might 
well be justified. . . . But the record does not reveal 
whether the city had an urgent need for twenty 
captains and thus could not await the administering 
and scoring of an unbiased exam"), cert, denied, 114 
S. Ct. 290 (1993).

Thus, far from being "quixotic," Petitioners’ 
evidence, if it had been presented to the trial court, 
would have justified race-conscious relief until truly 
nondiscriminatory admissions criteria could be 
developed by the University of Texas Law School.

4. Reversal of the judgment below will not require 
this Court to decide issues other than those raised in the 
Petition. In a final attempt to complicate this matter, 
Respondents assert that if this Court grants review,



9

it will be required "to resolve numerous fact-specific 
questions not passed upon by the lower courts" (Br. 
Opp., at 20). None of those questions was answered 
by the court of appeals, and the answer to none of 
those questions was articulated by the panel as the 
basis for its judgment. This Court therefore need not 
deal with any of those questions in order to correct 
the legal errors by the court below that did undergird 
its judgment.

Conclusion

For the reasons stated herein, as well as those 
given in the Petition, the Writ of Certiorari should be 
issued.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
Dennis D. Parker 
NAACP Legal Defense 
& Educational Fund, 
Inc.
99 Hudson Street 
New York, NY 10013 
(212) 219-1900

Anthony P. Grifein 
Anthony P. Griffin, Inc. 
1115 Moody 
Galveston, TX 77550 
(409) 763-0386

David Van Os 
Van Os & Owen 
900 Congress Avenue 
Suite 400 
Austin, TX 78701 
(512) 479-6155

* Counsel of Record



10

Janell M. Byrd 
NAACP Legal Defense & 
Educational Fund , Inc. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Petitioners