Hopwood v. Texas Reply Brief for Proposed Intervenors-Appellants

    No. 94-50569

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

CHERYL J. HOPWOOD, et al, 

Plaintiffs-Appellees,

v.

STATE OF TEXAS, et al,

Defendants-Appellees, 
and

THURGOOD MARSHALL LEGAL SOCIETY and BLACK PRE-LAW
ASSOCIATION

Proposed Intervenors-Defendants-Appellants.

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

REPLY BRIEF FOR PROPOSED INTERVENORS-APPELLANTS

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

David Van Os
Van Os, White & Vasquez, P.C.
200 East 6th Street
Suite 206
Austin TX 78701
(512) 479-6155
Texas Bar No. 20450700

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street, 16th Floor 
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 for Proposed Intervenors-Appellants



TABLE OF CONTENTS
Page

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

ARGUMENT -

I Proposed Intervenor’s Claims Relating to the Validity 
of the Texas Index Constitute an Important Alternative 
Defense to Plaintiffs’ Challenge that the State of Texas
Refused to A sse rt.............................................................................................................1

II The Motion to Intervene Was Timely ...................................................................... 7

III Contrary to Clear Precedent, Plaintiffs Attempt to 
Convert this Into a Rule 60(b) Motion Requiring Proof
of Extraordinary Circum stances...................................................................................11

IV TMLS and BPLA Have a Legally Protectible Interest in
the Outcome of this Case ............................................................................................ 14

V Permissive Intervention Should Have Been G ra n te d ............................................19

C onclusion...................................................................................................................................20

Certificate of Service..................................................................................................................21

Appendix A: Chronology

Table o f Authorities

Cases:

Aiken v. City o f Memphis, 37 F.3d 1155 (6th Cir. 1994) .........................................  4, 5, 6

Albemarle Paper Company v. Moody, 422 U.S. 405 (1975)......................................... „ 5

Billish v. City o f Chicago, 989 F.2d 890 (7th Cir.), cert, 
denied,__ U .S .___ , 114 S. Ct. 290 (1 9 9 3 )..........................................................  4, 5, 6

Ceres Gulf v. Cooper, 957 F.2d 1199 (5th Cir. 1992).....................................................  7

Cleburne Living Center v. City o f Cleburne, 726 F.2d 191 
(5th Cir. 1984) affd in part, vacated, 473 U.S. 432 (1 9 8 5 ).........................................  19

i



Pa^e

Cases (continued):

Cohn v. EEOC, 569 F.2d 909 (5th Cir. 1978) ...............................................................  18

Ensley Branch, NAACP v. Seibels, 31 F.3d 1548 (11th Cir.
1994)...........................................................................................................................  4, 5, 6

EPA v. Green Forest, 921 F.2d 1394 (8th Cir. 1990), cert, 
denied sub nom. Work v. Tyson Foods, 112 S. Ct. 414 (1991) ................................ 12

Florida General Contractors v. Jacksonville, 508 U .S .___,
124 L. Ed. 2d 586 (1993) ..............................................................................................  16

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)...................................................  18

Hines v. Rapides Parish School Board, 479 F.2d 762 (5th Cir.
1973)..................................................................................................................................  18

Hodgson v. United Mine Workers of America, 473 F.2d 118 
(D.C. Cir. 1972)...............................................................................................................  13

Hopwood v. State o f Texas, 861 F. Supp. 551 (W.D. Tex.
1994)..................................................... ...................................................................... 2 ,11 ,17

Hopwood v. Texas, 21 F.3d 603 (5th Cir. 1994) ..........................................................  9, 19

Howard v. McLucas, 782 F.2d 956 (11th Cir. 1986) .....................................................  18

Hunt v. Washington State Apple Advertising Comm’n,
432 U.S. 333 (1 9 7 6 ) ...................................................................................................  18-19

In re Birmingham Reverse Discrimination Litigation, 833 F.2d 
1492 (11th Cir. 1 9 8 7 )...................................................................................................... 18

Knight v. Alabama, 14 F.3d 1534, 1540 (11th Cir. 1994)..............................................  17

Meek v. Metropolitan Dade County, Fla., 985 F.2d 1471 
(11th Cir. 1 993 )........................................................................................................  12, 13

New York Public Interest Research Group, Inc. v. Regents of 
University of New York, 516 F.2d 350 (2d Cir. 1975) ................................................. 18

Pasadena City Board o f Education v. Spangler, 427 U.S.
424 (1976).................................................................................................................... i . 19

Table of Authorities (continued)

ii



Page

Cases (continued):

Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994)..........................................................  8

Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1 9 7 7 )....................................... passim

United States & Ayers v. Fordice, 505 U .S .___,
120 L. Ed. 2d 575 (592) ................................................................................................. 17

United States v. Fordice, 112 S. Ct. 2727 (1 9 9 2 )............................................................ 17

United States v. Perry County Board o f Education,
567 F.2d 277 (5th Cir. 1978)............................................................................................  18

Statutes and Rules:

42 U.S.C. § 2000e-2(l) ..........................................................................................................  6

Fed. R. Civ. P. 2 4 ....................................................................................................................  7

Fed. R. Civ. P. 6 0 (b )............................................................................................................. 11

Other Authorities:

Charles A. Wright, Arthur R. Miller & Mary K. Kane,
Federal Practice and Procedure (1986) .............................................................................  18

Table o f Authorities (continued)

iii



REPLY BRIEF FOR APPELLANTS

The Thurgood Marshall Legal Society ("TMLS") and the Black Pre-Law Association 

("BPLA"), organizations composed primarily of African-American students -  many of 

whom are current and potential beneficiaries of the affirmative action admissions program 

at the University of Texas Law School ("Law School’) — filed a new motion to intervene 

in this action after it became unequivocally clear at trial that the State defendants would 

not adequately represent their interests (R. 1451-57). This appeal is taken from the denial 

of their motion.

Plaintiffs-Appellees’ Opposition Brief ("Op. Br.") launches a scattershot attack on 

the motion, challenging virtually every assertion contained in our opening brief, no matter 

how tangential to the central issues presented to this Court. We cannot respond to every 

charge and implication raised by plaintiffs within the page limitations of a reply; 

accordingly, we limit this brief to the key points with which the Court must deal.

ARGUMENT

I. Proposed Intervenors’ Claims Relating to the Validity of the Texas Index Constitute 
an Important Alternative Defense to Plaintiffs’ Challenge that the State of Texas 
Refused to Assert._____________________________________________

TMLS and BPLA fully agree with the grounds asserted at trial by the State of Texas

in defense of the Law School’s affirmative action admissions program and urge this Court

to affirm the judgment below on the merits appeal. However, these proposed intervenors

also pursue this appeal in order fully to protect their interests, especially in the event that

the Court holds that the defense asserted at trial by the State is not sufficient to defeat

plaintiffs’ claims. In that event, it is essential that TMLS and BPLA be permitted to

participate in any further proceedings in this action since the inadequacy of the State’s

representation of their interests is now clear.

There is, of course, no dispute that the State failed to rebut the assertion that the

Texas Index ("TI") was equally valid for both Anglo and African-American students, and

therefore failed to pursue this alternative defense to plaintiffs’ complaints and the relief

they requested. The theory upon which plaintiffs relied at trial to establish a constitutional



violation, and to support their demand to be admitted to the law school, was grounded 

explicitly upon the claimed validity of the TI for all applicants. Plaintiffs’ expert, Dr. David 

Armor, testified that the use of different cut scores by race was "critical" to his conclusion 

that the admissions program discriminated against white applicants: "[W]hen — by virtue of 

your race you can get in, you have a very high probability of getting in with a much lower 

score, I think that is a discriminatory system . . ." (Tr. Vol. 11, p. 46). Dr. Armor’s 

testimony centered around a key piece of plaintiffs’ evidence, a chart "that depicts the TI’s 

of all 1992 applicants and whether they were offered or denied admission. P-139 . . . .  The 

chart emphasizes the disparity in TIs between resident minority and nonminority applicants 

. . . ," Hopwood v. State o f Texas, 861 F. Supp. 551, 580 (W.D. Tex. 1994).1 Dr. Armor 

opined that the TI "has been proven to be a valid predictor of success in law school" (Tr. 

Vol. 10, p. 30), and that "the LSAT plus the grade point average is a very good predictor 

of first year law school performance or grades in law school" {id.).

TMLS and BPLA sought to intervene for the purpose of contesting the validity and 

legality of using the TI, without an affirmative action adjustment, as an admissions device 

at the Law School (R. 1451-57). They had repeatedly attempted, both before and during 

the trial, to convince the State to raise the TI’s invalidity for African-American students as 

an alternative defense to plaintiffs’ claims. But, although State defendants were well aware 

of the results to be anticipated from sole reliance upon the TI as a selection criterion,2 and 

although they had information revealing the relationship between TI scores and first-year 

performance of students admitted to the Law School (PX-136, -137), they presented

‘The district court explicitly found that the chart "does not prove, however, that race 
or ethnic origin was the reason behind the denial of admission. . . . [T]he evidence shows 
that 109 nonminority residents with TIs lower than Hopwood’s were offered admission. 
Sixty-seven nonminority residents with TIs lower than the other three plaintiffs were 
admitted." 861 F. Supp. at 581 (footnotes omitted).

2"[W]ithout affirmative action, the Law School’s 1992 entering class of 514 students 
would have included at most only 9 blacks (1.8%) . . . ," Brief of Appellees in Hopwood v. 
Texas, No. 94-50664 (5th Cir., filed February 10, 1995), at 5.

2



testimony supporting the TI as a fair and valid predictor of success at the Law School 

regardless of race or ethnicity (Tr. Vol. 3, p. 11). This "tactical decision" served the Law 

School’s interest in minimizing the possibility that it would be required to find or develop 

a substitute for an admissions criterion that works well for the vast majority of the students 

— Anglos — whom it enrolls, but it substantially disserved the interests of African-American 

students and potential applicants to the Law School. The State’s position substantially 

increased the risk that the outcome of this litigation would be a directive to use the same 

TI cut scores for all applicants since the State conceded its validity for all races.3 In other 

words, the State defendants allowed their interest in administrative convenience to prevail 

over African-American students’ interest in a fair and nondiscriminatory admissions 

process.

Plaintiffs seek to sweep under the rug this failure of the State defendants to 

represent the interests of the proposed intervenors by attacking the substantive merits of 

the claims intervenors sought to raise about the TI.4 Their arguments, however, rest upon 

a misreading of the decisions upon which they seek to rely and indicate the need for 

adequate factual and legal development of these issues in the district court before this 

Court may appropriately resolve them. Such development can only occur, of course, if

3Plaintiffs now contend that they do not "advocate sole, or even significant, reliance on 
‘numbers’ (i.e. Texas Index scores)," Op. Br. at 37 (quoting post-trial brief), but urge this 
Court to render a judgment that would result in the entry of an injunction prohibiting any 
consideration of race in admissions and "requiring a single standard applicable to all races," 
id. Not only is this disclaimer inconsistent with a key focus of plaintiffs’ liability theory at 
trial — which was a comparison of the TI scores of white and African-American applicants 
who were granted or refused admission -  but it also blinks the reality that, because of the 
State’s refusal to present the evidence offered by proposed intervenors, on this record the 
only "single standard" upon which admission could be based is the TI, which the parties 
agreed was valid for all groups.

“For example, plaintiffs criticize (Op. Br. at 22) the sample size of one of the studies 
utilized by proposed intervenors’ expert witness, Dr. Martin Shapiro, see Shapiro 
Declaration, Appellants’ Record Excerpts ("App. R.E."), Tab C. They fail to note that the 
studies were placed in evidence by the plaintiffs themselves (PX-136, -137), for the purpose 
of establishing the validity of the TI.

3



TMLS and BPLA are permitted to intervene if there are any further proceedings in this 

matter.

Relying upon a series of employment cases, all involving consent decrees,5 plaintiffs 

assert that proposed intervenors raise "no[] defense at all" because a public agency may not 

justify race-conscious affirmative action on the ground that its selection device is racially 

discriminatory. Op. Br. at 23-25. The situations in each of these cases, however, are very 

different from the record before this Court.

In each of the employment cases, Title VII plaintiffs had challenged hiring or 

promotion decisions based on tests that had a racially discriminatory impact (i.e., that 

disqualified minority applicants at much higher rates than whites) and had never been 

validated (i.e., had not been shown to measure skills or qualities necessary to perform 

successfully the jobs for which they were being used). In particular, there had been no 

showing that the tests had predictive validity for any employees, white or minority, in the 

sense that high ranking on the tests had been shown to correlate well with good job 

performance by incumbents. In each case, the municipal defendants in those Title VII 

actions had settled the cases, promising to develop "validated" selection criteria.6 Until 

those new procedures could be developed, the decrees — approved by the courts — provided 

that race-conscious adjustments could be made to mitigate the discriminatory impact of the 

unvalidated examinations.

Despite the language of the decrees, none of the municipalities devised new and 

validated selection methods; instead, for periods ranging from eight to fifteen years, some 

hiring or promotions continued to be made on an explicitly racial basis, justified by

5Aiken v. City o f Memphis, 37 F.3d 1155 (6th Cir. 1994)(en banc)\ Ensley Branch, 
NAACP v. Seibels, 31 F.3d 1548 (11th Cir. 1994); Billish v. City o f Chicago, 989 F.2d 890 
(7th Cir.) (en banc), cert, denied,__ U .S .___ , 114 S. Ct. 290 (1993).

6See Aiken, 37 F.3d at 1164; Ensley, 31 F.3d at 1571-72; Billish, 989 F.2d at 894.

4



reference to the original, non-validated tests.7 The three cases upon which plaintiffs rely 

were brought to challenge this continued use of explicitly racial criteria for decisionmaking. 

In each, the Courts of Appeals expressed great concern at the municipalities’ failure to 

devise job-valid procedures that might eliminate the need for race-consciousness. But none 

of the cases announced the sort of sweeping rule described by plaintiffs (Op. Br. at 23). 

Instead, each case was remanded to the district courts to determine whether there were, 

in fact, alternatives to race-based decisionmaking.8

In the present case, the Law School’s preferred selection device (the TI) appears to 

have some predictive validity for the majority of its students -  Anglos — as proposed 

intervenors’ expert Dr. Shapiro found through a differential validation analysis, see 

Albemarle Paper Company v. Moody, 422 U.S. 405, 435 (1975). However, the TI appears 

to have virtually no validity at all for African Americans, see Shapiro Declaration, App. 

R.E., Tab C, at 16-17. TMLS and BPLA contend that by lowering the cut scores for 

African Americans, the Law School therefore was not discriminating against whites but was 

avoiding discrimination against African Americans by neutralizing the discriminatory impact 

of a selection mechanism which, as to them, had no validity. The three cases upon which 

plaintiffs rely are inapposite, since in each one what was involved was a non-validated test

1See, e.g., Ensley, 31 F.3d at 1575 ("Until valid job-selection procedures are in place, 
some use of racial preferences is necessary to counteract the ongoing effect of racially 
discriminatory testing").

8Indeed, the Courts of Appeals took pains to avoid announcing any rigid rules. In 
Billish, for example, the dicta quoted by plaintiffs, Op. Br. at 23, concerning the invalidity 
of "bootstrapping" a justification for race-conscious decisionmaking by continuing to utilize 
a biased test, follows the Court’s holding that a public entity should avoid the use of racial 
criteria "whenever it is possible to do so," 989 F.2d at 894. Similarly, in Ensley, 31 F.3d at 
1575, the Court noted that "even after valid selection procedures are in place, affirmative 
action may be needed to cure past discrimination by the City and the Board." Finally, in 
Aiken, the district court was instructed on remand to consider whether the race-conscious 
remedy could still be considered "narrowly tailored" in light of "the City’s failure to utilize 
or even develop validated procedures for promotions in the police and fire departments" 
37 F.3d at 1167.

5



rather than a measure with predictive validity for one group and little or no validity for 

another.9

Because neither the plaintiffs nor the defendants contested, but rather each affirmed, 

the validity of the TI for African Americans, the question whether there are available some 

other selection standards having equal validity for Anglos and minority students was never 

raised.10 (Indeed, as noted above, plaintiffs’ case was bottomed upon the assumption that 

the TI was equally valid for minority and non-minority applicants.11) It may be that other 

selection criteria that meet the Law School’s desire to admit students who can perform 

successfully in their first year may also have differential validity across racial and ethnic 

groups.12 If that is the case, differential application of those criteria, as in the case of the 

TI, would be justified by "business necessity" and would not constitute discrimination 

against plaintiffs or any other members of a particular racial or ethnic group. The one 

thing that is certain is that the question was neither raised nor tried before the district 

court and, therefore, this defense to the Law School’s practices cannot be rejected by this

9Plaintiffs also cite (Op. Br. 25) 42 U.S.C. § 2000e-2(l), which makes illegal the 
adjustment of scores according to race on "employment related tests." The quoted phrase 
is entirely consistent with the holdings in the cases discussed above, which recognize the 
legitimacy of race-conscious action to avoid any discriminatory impact from tests that are 
not validated as job-related. Apart from the fact that no such provision applies to 
Fourteenth Amendment or Title VI claims, the TI is "unrelated" in a classic sense for 
African Americans, for whom the instrument has no validity for predicting success at the 
Law School.

10Selection by lottery, suggested in passing by plaintiffs (Op. Br. at 36), would hardly 
seem to be capable of validation as manifestly related to the goal of admitting students 
likely to succeed during the first year.

"To the extent that plaintiffs had sought to prove this assumption at the trial below, 
in order to try to move this case closer to Aiken, Ensley and Billish, this merely emphasizes 
the importance, to the protection of proposed intervenors’ interests, of contesting the 
assumption -- which the State defendants consciously chose not to do.

12The Office for Civil Rights of the U.S. Department of Health, Education & Welfare 
recognized this in 1975 when it informed Texas of the need to validate its admission criteria 
by program and by race (R. 1253).

6



Court without an adequate record before it. Only the proposed intervenors seek to make 

that record, but they must be admitted to the case as parties in order to do so.

II. The Motion to Intervene Was Timely.

By focusing sharply on the issue of timeliness of the first motion to intervene filed 

by TMLS and BPLA,13 plaintiffs’ opposition brief gives little attention to the question at 

issue on the instant appeal — whether the second motion was timely filed. Because the time 

frame and the scope of the two requests for intervention are wholly different, and because 

they rest upon different showings with respect to when movants knew and could 

demonstrate that the State’s representation of their interests would be inadequate, 

plaintiffs’ argument serves more to confuse than to elucidate the issue.

The factors established by this Court for guiding determinations of timeliness under 

Fed. R. Civ. P. 2414 are:

1. The length of time during which the would-be intervenor actually knew or 
reasonably should have known of his interest in the case before he petitioned 
to intervene . . .  2. The extent of the prejudice that the existing parties to the 
litigation may suffer as a result of the would-be intervenor’s failure to apply 
for intervention as soon as he actually knew or reasonably should have known 
of his interest in the case . . .  3. The extent of prejudice that the would-be 
intervenor may suffer if his petition for leave to intervene is denied . . . [and]
4. The existence of unusual circumstances militating either for or against a 
determination that the application is timely.

13Neither the district court, nor this Court in its affirmance of the denial of the first 
motion to intervene, ruled that the motion was untimely (R. 742-46, 1240-47). The district 
court’s discussion of potential "delay," in its ruling denying the first motion for intervention, 
is substantively and legally distinct from a finding that the motion was untimely under the 
standards set by this Court. See text infra. Plaintiffs’ attempt to construe this language in 
the district court’s first order denying intervention as a timeliness determination relevant 
to the motion to intervene as of right (Op. Br. at 4) is most inappropriate, especially in 
view of the fact that the court’s discussion of delay came in the portion of its order 
discussing the request for permissive intervention (R. 746).

14Plaintiffs’ assertion that the timeliness issue should be reviewed only for abuse of 
discretion, Op. Br. at 40 n.14, is wrong. See Ceres Gulf v. Cooper, 957 F.2d 1199, 1202 n.8 
& accompanying text (5th Cir. 1992) (where district court does not indicate timeliness as 
reason for denial of intervention the standard of review on each of the factors is de novo).

7



Stallworth v. Monsanto Co., 558 F.2d 257, 263-66 (5th Cir. 1977); see also Sierra Club v. 

Espy, 18 F.3d 1202 (5th Cir. 1994). The relevant inquiry on the first factor is the timeliness 

of the application for intervention at the time it was made in relation to the point at which 

the proposed intervenor "became aware that her interest ‘would no longer be protected by 

the named representative,’" Stallworth, 558 F.2d at 264 (internal citations omitted).15

First, proposed intervenors filed their renewed motion to intervene in a timely 

manner -  less than three weeks after the district court ruled that the evidence on the 

validity of the Texas Index would not be considered. Plaintiffs contend that proposed 

intervenors’s motion is untimely because its was not filed prior to trial.16 However, that 

is absurd. The appeal on the denial of the first motion to intervene was pending in this 

Court until five days prior to trial (R. 1240). In affirming, this Court ruled that there was 

not a sufficient demonstration that the State defendants would not adequately represent 

the interests of TMLS and BPLA. After that ruling, no fact changed until defendants 

rested their case without rebutting the validity of the Texas Index as applied to African 

Americans.17 This changed circumstance demonstrated the inadequacy of the State’s 

representation of proposed intervenors’ interests. A new motion to intervene coming on

15Because plaintiffs misleadingly omit key dates in their discussion, a chronology of 
relevant events is set out in Appendix A to this brief. It demonstrates that TMLS and 
BPLA made a consistent and timely effort to participate in this action, from the time that 
the potential inadequacy of the State’s representation first appeared through the time that 
its actuality was demonstrated at trial.

16Op. Br. at 14 ("student groups should have made their renewed motion prior to trial"), 
id. at 27 ("they should have made their second motion long before the trial") (emphasis in 
original), id. at 28 ("[hjaving failed to make the second motion before trial, the students 
groups have created a situation where nothing but prejudice to the parties can result") 
(emphasis in original).

17During trial proposed intervenors offered Dr. Shapiro to State defendants to rebut 
evidence regarding the validity of the TI, but defendants rejected the offer, maintaining the 
position that they would not challenge the TI.

8



the heels of this Court’s affirmance would have done nothing more than possibly provide 

a basis for sanctions against proposed intervenors.

At that point, when defendants rested, the trial court announced that TMLS and 

BPLA would be allowed to put their evidence in the record.18 A motion at the close of 

trial therefore would have been unnecessary; the relief movants sought was then available. 

It was not until the trial judge ruled that the evidence regarding the Texas Index would not 

be considered that the inadequacy of the representation became demonstrable and 

palpable. (We note, however, that the renewed motion was not made necessary by any 

failure on the part of proposed intervenors to seek to demonstrate, at the time of their 

initial attempt to enter the case, that the State would not challenge the validity of the TI.19)

18"I am already committed to at least ten days to intervenors who have been very patient 
sitting there. They will be able to produce whatever they would like in the record," Tr. Vol. 
25, at 11-12 [emphasis added]. On May 25, 1994, the Court added: "For the intervenors 
which I have permitted, they will have the same time. I will not make any limitations. The 
intervenors will not be barred or limited by the local rules on pleadings in this particular 
case," Tr. Vol. 27, at 48-49. From these statements, TMLS and BPLA understood that the 
Court was inviting their participation and that their evidence would be allowed in the 
record, thereby obviating the need to renew their motion to intervene.

19TMLS and BPLA requested a hearing on their initial motion (Letter of January 5, 
1994 from Anthony Griffin to Deputy Clerk Robert J. Williams, submitted with Motion to 
Intervene) but the district court denied intervention without a hearing; thus, there was no 
opportunity to make an evidentiary record. They asserted on appeal from that denial of 
intervention that the State would fail to challenge the TI, but this Court concluded that 
proposed intervenors had not "shown that they have a separate defense of the affirmative 
action plan that the State has filed to assert," Hopwood v. Texas, 21 F.3d 603, 606 (5th Cir. 
1994) (emphasis added). The Court added that it expected proposed intervenors to provide 
their evidence to the State, which would present it (id. at 605-06):

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

Only after the trial was completed was it undeniable that the State had failed to assert this 
important defense against plaintiffs’ charge of racial discrimination.

9



Second, plaintiffs’ assertion of prejudice from the timing of the filing of the motion 

to intervene is also without merit. "[T]he relevant issue is not how much prejudice would 

result from allowing intervention, but rather how much prejudice would result from the 

would-be-intervenor’s failure to request intervention as soon as he knew or should have 

known of his interest in this case," Stallworth, 558 F.2d at 267 (emphasis added). There was 

no delay of any significance in filing the second motion to intervene in this case. Less than 

three weeks passed between the district court’s order stating that it would not consider Dr. 

Shapiro’s declaration and the date of filing. Nothing happened during that period that 

would have caused plaintiffs any prejudice from a grant of intervention on the 12th of July, 

when the motion was filed, that would not also have existed on the 22nd of June, when the 

district court ruled that it would not consider the evidence, or on May 25th when the trial 

ended. The district court did not issue its opinion until August 19, 1994.

Moreover, plaintiffs were aware prior to trial that, if they were granted intervention, 

TMLS and BPLA planned to challenge the validity of the TI for African-American 

students. Even though that intervention was denied, plaintiffs themselves sought to prove 

the validity of the TI in their case in chief, through the testimony of Dr. Armor and their 

exhibits PX-136 and -137. Plaintiffs would therefore have suffered no more prejudice had 

the district court allowed proposed intervenors to rebut that presentation than they would 

have experienced if the State had sought to counter their showing20

The third factor that the Court considers in determining timeliness — prejudice to 

the movants in the event intervention is denied -  weighs in favor of TMLS and BPLA. 

If this Court reverses the district court’s ruling insofar as it allows the State to continue to 

consider race as a factor in admissions and directs the district court to grant the injunctive 

relief sought by plaintiffs, the ability of any African American to require the State to 

reinstitute the consideration of race, as a practical and legal matter, will be virtually nil.

“ In fact, depositions of rebuttal witnesses occurred during the middle of the trial. On 
May 22, 1994, plaintiffs took the deposition of defendants’ witness Mr. De La Garza.

10



While plaintiffs dance delicately around the issue and suggest that the number of African 

Americans at the Law School may not diminish if affirmative action in admissions is 

eliminated (Op. Br. at 35), the trial record unmistakably establishes the likelihood that the 

African American presence at the Law School will diminish precipitously, as the district 

court found, 861 F. Supp. at 571. Even an admissions program that considers 

"disadvantage" — which arguably is race neutral — will likely be insufficient without race as 

an independent factor. Plaintiffs’ expert witness conceded at trial that the history of 

discrimination in education means that race itself is a significant disadvantage for African 

Americans.21 Allowing plaintiffs to seek to show discrimination against them by the Law 

School based primarily on the use of the TI in the admissions process, without 

consideration of the critical fact that the TI is not a valid predictor of performance at the 

Law School for African Americans, prejudiced movants in a most serious and substantial 

manner.22

Consideration of all of the factors strongly supports a conclusion that the motion to 

intervene was timely.

III. Contrary to Clear Precedent, Plaintiffs Attempt to Convert this Into a Rule 60(b)
Motion Requiring Proof of Extraordinary Circumstances.______________________

Plaintiffs suggest that proposed intervenors were required to establish "extraordinary 

circumstances" in order to obtain the relief sought in their second motion, Op. Br. at 15-17, 

because, they say, the second TMLS and BPLA motion to intervene was a motion for 

reconsideration that should have been brought under Fed. R. Civ. P. 60(b). However, the

21Dr. Armor testified that socioeconomic characteristics of students’ parents, including 
parental education level, are the strongest correlates of both black and white achievement 
levels. He admitted that to the extent that there was a constriction of opportunity for the 
first generation [parents], one would expect that "constriction of opportunity to be 
manifested in the socioeconomic status of generation 2 [children]," thereby affecting 
negatively the educational attainment of the children (Tr. Vol. 11, pp. 28-29).

22See Appellants’ Opening Brief at 25 for a discussion of the fourth Stallworth factor, 
which militates in favor of proposed intervenors.

11



motion at issue did not seek "reconsideration" of the original ruling denying intervention; 

rather, it sought intervention for the limited purpose of presenting evidence of a defense 

that the State defendants failed to raise, and without which the trial court’s analysis of the 

issues presented might have been fundamentally impaired (to the detriment of proposed 

intervenors).

Plaintiffs urge this Court to ignore the rulings of all of the other federal Courts of 

Appeal that have considered this issue, which have held that successor petitions for 

intervention appropriately can be considered by district courts, in their discretion, when the 

circumstances have changed after disposition of an earlier motion. In EPA v. Green Forest, 

921 F.2d 1394, 1401 (8th Cir. 1990), cert, denied sub nom. Work v. Tyson Foods, 112 S. Ct. 

414 (1991), for example, the Eighth Circuit ruled that a second motion to intervene brought 

in a context "different from the context in which intervention . . . had been sought [earlier]" 

could be granted where developments in the case "resulted in a change in circumstances 

that made a renewed motion for intervention legitimate." In that case, the movants had 

expressed concern some sixteen months earlier (in their first motion to intervene) about 

harm from a possible settlement, but the settlement possibility then was merely "inchoate." 

Id. "In their second motion, the citizens made specific reference to the proposed settlement 

and articulated their specific objections to the consent decree . . . ." Id. Thus the existence 

of the consent decree constituted the change in circumstances that warranted the court’s 

consideration and approval of the renewed motion to intervene. See id. at 1401-02.

Similarly, in Meek v. Metropolitan Dade County, 985 F.2d 1471, 1475 (11th Cir. 1993), 

two registered voters were initially denied intervention because the court determined that 

their interests were "identical" to those of the existing official defendants who could be 

relied upon to represent the voters adequately. Prior to trial, the voters unsuccessfully 

renewed their motion to intervene, explicitly seeking to preserve the ability to take an 

appeal. Following a three-week trial, the district court ruled against the defendant county, 

which subsequently decided not to appeal. The voters again renewed their motion to

12



intervene for the purpose of taking an appeal, id. at 1476. The Court ruled that the

county’s "decision to forego its right to appeal the district court’s injunction was a sufficient

change in circumstances to justify a renewed motion for intervention . . . Id. at 1477.

In Hodgson v. United Mine Workers o f America, 473 F.2d 118, 125 (D.C. Cir. 1972),

the Court ruled that district courts are required to "exercise a considerable degree of

discretion" on applications for intervention, and that the "various factors which guide the

exercise of discretion may change substantially as the litigation progresses":

Where, as here, a court’s ruling has discretionary elements based on 
circumstances which are subject to alteration, the law recognizes the power 
and responsibility of the court to reconsider its ruling if a material change in 
circumstances occurred.

Id. The panel held that courts routinely consider renewed motions for summary judgment, 

for example, where additional facts become available, or proof of such facts becomes 

uncontrovertible. Id. at 126 & n.38. The court concluded that the changed circumstances 

in the four months between the first and second applications for intervention "required" 

consideration of the second motion to intervene, independent of the first. Id. at 126. The 

most important new circumstance justifying the court’s consideration of the second motion 

to intervene was the fact that the district court had entered an opinion holding certain 

actions illegal and requesting the defendant to file a proposed remedial decree. This added 

"new urgency and weight" to the application for intervention because it bore out the 

proposed intervenors’ claim and without intervention they would have no voice in 

fashioning the relief. Id. at 126. The Court approved the post-trial motion to intervene.

These cases establish that changed circumstances, such as those occurring here, 

warrant the court’s consideration of the second request to intervene without a showing of 

"extraordinary circumstances" under Rule 60.23

23Plaintiffs argue that the denial of the first motion was "final" because it was upheld 
on appeal, and for this reason it should weigh heavily in favor of requiring a showing of 
"extraordinary circumstances" on any successor motion (Op. Br. at 17). However, this 
Court’s jurisprudence establishes that where the Court of Appeals concludes that the denial

13



IV. TMLS and BPLA Have a Legally Protectible Interest in the Outcome of this 
Case._____________________________________________________________

Plaintiffs challenge proposed intervenors’ assertion that they have a legally

protectible interest in the outcome of this matter, both as organizations and on behalf of

their members. Specifically, plaintiffs argue that (1) the organizations have no legally

protectible interests as organizations because they have asserted only "broad organizational

goals" for which the law provides no protection; (2) that the organizations have not

identified by name their members whose interests will be impaired, and some of the

persons who were members of the organizations at the time the motion for intervention was

filed have now graduated; and (3) that the interests of proposed intervenors are "irrelevant

and speculative" because, according to plaintiffs, there is no policy traceable to the de jure

system at issue in this case and it is wholly speculative whether the relief requested by

plaintiffs -  a bar on any consideration of "race or sex" (Op. Br. at 37) in admissions -

would result in,fewer African Americans at the Law School. As demonstrated below,

movants have direct, substantial and legally protectible interests in this litigation

notwithstanding plaintiffs’ strained arguments to the contrary.

Plaintiffs’ opening brief on the merits sets out the primary goal of this litigation,

which is to enjoin permanently any consideration of race by the Law School in admissions.

Brief for Plaintiffs-Appellants Hopwood and Carvell, No. 94-50664 (5th Cir. filed December

19, 1994), at 49. As stated in proposed intervenors’ opening brief (at 26):

th[is] result would impede proposed intervenors’ 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.

The consideration of race in admissions serves as a remedy for the State’s racially 

dual system in several ways. As outright exclusion of African Americans from the public

of intervention was correct, appellate jurisdiction "evaporates because the proper denial of 
leave to intervene is not a final decision . . . ." Stallworth, 558 F.2d at 263.

14



schools of Texas designated for whites, including the Law School, was the hallmark of the 

racially dual system, the racial focus of the violation meant that the injury had a distinctly 

racial character. The consideration of race in admissions recognizes this harm and attracts 

and matriculates more African-American students, thereby creating a less isolating 

experience for black law students and aiding long-term recruitment, retention and 

graduation. The policy helps to remedy the dearth of African-American attorneys caused 

by past discrimination, and by attracting and admitting meaningful numbers of high- 

achieving African Americans, the policy helps to eliminate the stigmatic message of 

inferiority and exclusion that are part and parcel of segregated systems. The admissions 

program also increases ethnic and ideological diversity on campus, to the benefit of all 

students. The ability to consider the key factor of race is critical to the Law School’s 

efforts to achieve these goals. Each of these goals directly implicates the interests of the 

proposed intervenor organizations and their members.

BPLA’s central organizational objective is to increase the number of African 

American legal scholars entering the University of Texas and other law schools.24 The 

Declaration of the BPLA’s president, Suneese Haywood (R. 761),25 emphasizes the 

following:

10. BPLA seeks to aid African-American students in applying to the Law 
School [University of Texas]. In 1993 BPLA arranged for members of the 
Thurgood Marshal Legal Society (an organization of African American 
students at the Law School) to speak to BPLA members about the Law 
School’s admissions process and the study of Law at the University of Texas.

12. Because many of BPLA’s members seek admission to the University of 
Texas School of Law, the Law School’s affirmative action admission policy 
is vital to BPLA’s goals and the interest of our members.

^BPLA Constitution, Art. I, II, Exhibit 1 to Exhibit B of Proposed Intervenors’ 
Memorandum in Support of Motion to Intervene (R. 674); see also (R. 760-68).

“ The documents filed in support of the first motion to intervene, which, inter alia, 
identified the proposed intervenors, were incorporated by reference in the renewed motion 
to intervene (R. 1451-52).

15



Beyond BPLA’s organizational goals, the members of BPLA are primarily African 

American undergraduates, many of whom will apply and be considered under the Law 

School’s admission policy. BPLA members, therefore, have a direct interest in a program 

that will aid their admission to law school. Cf Florida Gen. Contractors v. Jacksonville, 508

U .S .___, 124 L.Ed. 2d 586, 599 (1993) (where organization’s members regularly bid on

defendant’s public contracts, organization has standing to challenge impediments to 

successful bid). The Law School’s positive consideration of race in the admissions process 

is designed primarily to correct the former policy of whites-only admissions and the State’s 

channelling of students by race to law schools under the dual structure which continues to 

exist with the Thurgood Marshall Law School, (known as "the house that Sweatt built"), 

being the institution primarily designated by the State for the legal education of African 

Americans.26 BPLA members have an interest in being considered under a policy 

designed to counter the illegal segregated structure that continues to operate.

TMLS’s key organizational goals include encouraging a racially mixed student body 

and eliminating racial discrimination at the Law School.27 The Declaration of April 

Cheatham, the President of TMLS and a former BPLA member (R. 769-71), states as 

follows:

8. TMLS’fs] central goals are to encourage the admission, retention, and 
academic success of greater numbers of African-American scholars at the 
Law School; to promote an academic and social atmosphere that is both 
attractive and receptive to students of color; and to combat discrimination 
and its effects on the Law School campus and elsewhere.128'

“ Plaintiffs admit the existence of this school is a vestige of the racially dual system (R. 
1401, Par. 56).

27TMLS Constitution, Art. 1, Section B, Exhibit 1 to Exhibit A of proposed intervenors 
Memorandum in Support of Motion to Intervenor (R. 659), see also (R. 769-82).

“ Plaintiffs argued that no TMLS members have an interest, distinct from those of the 
organization, because any change in the number of black students admitted would take 
place over several years. Therefore, they reason, persons who were TMLS members in July 
of 1994, when the motion to intervene was filed, will have graduated and will not be

16



9. In order to help attract African-American students to the Law School, 
TMLS’s members act as a source of information for African-American 
prospective law students, answering their questions about the Law School and 
encouraging their attendance.

17. All of TMLS’s members are students at the Law School and each of 
them is directly affected by the racial atmosphere on campus, the school’s 
reputation for discrimination, and other effects of the Law School’s past 
discrimination. Elimination of the existing admissions policy would drastically 
increase these negative effects.

TMLS, BPLA and their members have a direct, substantial and legally protectible 

interest in a desegregated law school where they are assured that the State "has met its 

affirmative duty to dismantle its prior dual university system." United States & Ayers v.

Fordice, 505 U .S .___, 120 L.Ed.2d 575, 592 (592); see also id. at 590 (recognizing role of

private plaintiffs); Knight v. Alabama, 14 F.3d 1534, 1540 (11th Cir. 1994) (same).

Plaintiffs concede that some African American students "might" have an interest 

under United States v. Fordice, 112 S. Ct. 2727 (1992), in attending a university that has 

dismantled its racially dual system, Op. Br. at 33. They assert, incredibly, that that "interest 

has nothing to do with this lawsuit." Id. Indeed, it was plaintiffs’ theory of the case that 

the history of discrimination by the State essentially evaporated without a trace. The 

district court expressly considered the legal duty imposed by Fordice, 861 F. Supp. at 571, 

and rejected plaintiffs’ theory. "Accordingly, despite the plaintiffs [s/c] protestations to the 

contrary, the record provides strong evidence of some present effects at the law school of 

past discrimination in both the University of Texas system and the Texas educational system 

as a whole." Id. at 573. * *

affected by the time the change occurs. Op. Br. at 33, n.12. The record of admissions at
that Law School demonstrates that the number of black law students can drop and has 
dropped dramatically in the course of one year. 861 F. Supp. at 574, n.67. Furthermore, 
the organization gains new members each year whose rights and interests TMLS seeks to 
protect in a representational capacity.

17



Comm’n, 432 U.S. 333, 342-45 (1976), the Court recognized the standing of the State Apple 

Advertising Commission in a representative capacity to protect the interests of the State’s 

apple growers. In this case, BPLA and TMLS have a substantial and protectible legal 

interest both in their own right, in defending their organizational goals, and on behalf of 

their members who share the goals of the organizations and who are the beneficiaries of 

the Law School’s affirmative action policy.

Plaintiffs further criticize proposed intervenors for allegedly failing to comply with 

Cleburne Living Center v. City o f Cleburne, 726 F.2d 191 (5th Cir. 1984), tiff'd in part, vacated 

in part, 473 U.S. 432 (1985), which plaintiffs assert requires the organizations to name their 

individual members who are likely to be affected. Plaintiffs complain that "the student 

groups have never bothered to identify anyone (much less a member) whose interests are 

at stake." Op. Br. at 31. Apart from whether plaintiffs have correctly interpreted that 

opinion, their argument can be put to rest by noting simply that movants submitted two 

declarations in support of their motion, that of Suneese Haywood and April Cheatham. 

(R. 760-782). Suneese Haywood is currently a member of BPLA with an application for 

admission pending at the Law School.30 The declarations name other members of TMLS 

and BPLA who were officers and persons with a direct interest in this litigation.

V. Permissive Intervention Should Have Been Granted.

Plaintiffs argue that because permissive intervention was properly denied with 

respect to the first motion, because the district court found movants were adequately 

represented and that intervention would cause delay, see 21 F.3d at 606, denial of the 

second motion for permissive intervention was necessarily proper. Op. Br. at 41.31 At the

30Plaintiffs’ suggestion that because some of the organizations’ members will have 
graduated that none of the members have a legally protectible interest is equally without 
merit. As long as there is one party with standing to bring an action the case remains 
justiciable. See Pasadena City Bd. o f Educ. v. Spangler, 427 U.S. 424, 430-31 (1976).

31Plaintiffs’ jurisdictional argument (Op. Br. at 1) fails to understand the essence of the 
Court’s "provisional jurisdiction" governing the appealability of orders denying intervention,

19



end of the trial, however, inadequacy of representation was firmly established and movants’ 

evidence had been placed before the Court, minimizing if not eliminating any delay. 

Plaintiffs and proposed intervenors were like the workers in Stallworth, which this Court 

described as "a classic example of the type of case in which the rights asserted by two 

groups of workers employed by the same defendant should be adjudicated in one action 

rather than two," 558 F.2d at 270. TMLS and BPLA urge the Court to hold that the 

district court abused its discretion in denying permissive intervention.

CONCLUSION

For the reasons set forth herein, this Court should (1) reverse the district court’s 

denial of Appellants’ Motion to Intervene and direct that TMLS and BPLA be granted 

intervention in order that they may participate in any future proceedings in this litigation, 

and (2) in the event that any aspect of the district court opinion approving the 

consideration of race in admissions is reversed or vacated, direct the district court to allow 

TMLS and BPLA to present evidence on remand relating to the validity of the Texas Index.

Respectfully submitted,

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

Theodore M. Shaw 
Norman J. Chachkin

Elaine R. Jones 
Director-Counsel

David Van Os
Van Os, White & Vasquez, P.C.
200 East 6th Street
Suite 206
Austin TX 78701
(512) 479-6155
Texas Bar No. 20450700

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street, 16th Floor
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 for Proposed Intervenors-Appellants

see Stallworth, 558 F.2d at 263, and therefore misses the mark.

20



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Reply Brief for Proposed Intervenors- 
Appellants have been served by depositing same in first-class United States mail on this 
21st day of February, 1995, addressed as follows:

Steven W. Smith 
3608 Grooms Street 
Austin, TX 78705

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

Terral R. Smith 
100 Congress Ave., #1100 
Austin, TX 78768-2023

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

Counsel for Plaintiffs

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

Javiar Aguilar, Esq.
Special Assistant Attorney General 
209 W. 14th Street 
Austin, TX 78701

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

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

Counsel for Defendants

Norman J. Chachkin

21



APPENDIX A

CHRONOLOGY

September 29, 1992 — Complaint of Cheryl Hopwood filed

April 23, 1993

August 13, 1993

October 28, 1993

Complaint of Plaintiffs Carvell, Elliott, Rogers filed as separate 
action [subsequently consolidated with Hopwood on October 
12, 1993]

Defendants’ motion for summary judgment on 
issues of standing and ripeness filed

District court denies defendants’ motion for summary judgment 
on standing and ripeness grounds

[Discovery up to this point was bifurcated and addressed only the issues of standing and 
ripeness. Discovery on the merits did not begin until the district court authorized such 
discovery on November 17, 1993.]*

November 17, 1993 — 

December 18, 1993 -  

January 5, 1994

January 20, 1994 

January 26, 1994 

February 1, 1994 

February 7, 1994 

February 8, 1994 

February 8, 1994

District Court authorizes the parties to begin discovery on the 
merits

The first exchange of documents on the merits phase of the 
case begins

Proposed Intervenors TMLS and BPLA filed motion to 
intervene and by letter from counsel Anthony Griffin, 
requested a hearing

District Court denies motion to intervene 

Notice of Appeal of the denial of intervention filed 

First Amended Complaint filed

Certified Copy of the docket entries lodged by district court

Motion to Expedite Appeal filed by TMLS and BPLA

TMLS and BPLA file motion seeking provisional party status 
pending the appeal

‘Prior to October 28, 1993, there was no need for TMLS and BPLA to intervene 
because only the standing and ripeness issues were being addressed and a decision on either 
of those bases could have eliminated the entire action.

A -l



February 15, 1994 — Order denying motion for provisional party status

February 24, 1994 — Order denying motion to expedite appeal

February 28, 1994 -- Motion to Reconsider the Denial of the Motion to Expedite 
the Appeal

March 11, 1994 Motion to Expedite the Appeal granted, with order directing 
that the matter be placed on the calendar for the week of May 
2, 1994

March 17, 1994 Brief of Proposed Intervenors filed

March 24, 1994 Brief of Plaintiffs in Opposition to intervention filed

March 26, 1994 Reply Brief of Proposed Intervenors filed

May 11, 1994 Court of Appeals decision affirming the denial of intervention

May 16, 1994 Trial begins in the district court

May 24, 1994 District Court states that intervenors will be able to place in 
the record any materials they would like

May 25, 1994 Trial ends

June 13, 1994 Post-trial briefs filed, amicus brief on behalf of TMLS and 
BPLA with Shapiro Declaration attached filed

June 21, 1994 Plaintiffs move to strike Shapiro Declaration and other 
materials attached to amicus brief

June 22, 1994 Motion to Strike denied, district court states that evidence 
outside of the trial record will not be considered

July 12, 1994 TMLS and BPLA file a renewed motion to intervene for the 
sole purpose of introducing evidence relating to the validity of 
the Texas Index

July 18, 1994 Order denying motion to intervene

August 19, 1994 District Court decision on the merits

A-2