Hopwood v. Texas Reply Brief for Proposed Intervenors-Appellants
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February 15, 1995

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Brief Collection, LDF Court Filings. Hopwood v. Texas Reply Brief for Proposed Intervenors-Appellants, 1995. 852f8e61-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c6c2e65b-eae8-48de-b4df-923aad214eb7/hopwood-v-texas-reply-brief-for-proposed-intervenors-appellants. Accessed April 27, 2025.
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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