Kirwan v. Poberesky Petition for Writ of Certiorari

    In the

Supreme Court of the United States

October Term, 1994
------------♦ -------------

William E. Kirwan, et al.,
Petitioners,

v.

Daniel J. Podberesky, 

---------------♦ ----------------
Respondent.

On Petition For A Writ Of Certiorari 
To The United States Court Of Appeals 

For The Fourth Circuit
------------------------------------------------—  ♦ -------------------------------------------------------

PETITION FOR A WRIT OF CERTIORARI

-----------------------------♦ ------------------------------

Kevin T. Baine 
Steven M. Farina 
Williams & Connolly 

725 Twelfth Street, N.W. 
Washington, D.C. 20005 
(202) 434-5000

*Counsel of Record

J. Joseph Curran, Jr. 
Attorney General of Maryland

Evelyn O. Cannon* 
Andrew H. Baida 
Richard A. Weitzner 
Assistant Attorneys General 
200 St. Paul Place, 20th Floor 
Baltimore, Maryland 21202 
(410) 576-6330

Attorneys for Petitioners



I

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Fourteenth Amendment prohibits 
a state university from spending one percent of its 
linanciai aid budget on a race-based merit scholarship 
program when (a) the university has been racially 
segregated for almost a century and actively resistant to 
integration for at least twenty years thereafter, (b) the 
program was part of a statewide response to the United 
States Department of Education’s findings of 
discrimination m Maryland’s entire higher education 
system, and (c) the program has no appreciable adverse 
enect on any student.

ii 2 ^ e t h e r  Court’s decision m Regents o f the 
university o f California v. Bakke, 438 U.S. 265 (1978) 
perrmts a university to advance its compelling interest in 
student diversity by adopting a race-based scholarship 
program that does not have any adverse impact on the 
admission of student.



11

PARTIES TO THE PROCEEDING

The parties to the proceeding below were Daniel J. 
Podberesky (appellant below); William E. Kirwan, 
President of the University of Maryland at College Park; 
the University of Maryland at College Park; Monica 
Green; Maudlyn George, on her own behalf and on 
behalf of her daughter Allison George; Eileen Heath; 
Richard A. Dalgettv; Gerard W. Henry; Maisha Herren; 
AJetha S. McRae, on her own behalf and on behalf of her 
daughter Daletha McRae; and Charles L. Smith, III, on 
his own behalf and on behalf of his son Charles Smith, 
IV (appellees below).



I l l

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED FOR R E V IE W .................. 1

PARTIES TO THE PR O C E ED IN G ................................»

TABLE OF AUTHORITIES ......................................  »»

OPINIONS BELOW ............................. 1

JU RISD IC TIO N ...................................................................2

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED . . . . : ..................... *

STATEMENT OF THE C A S E .........................................2

1 Proceedings Below ..................................................4

2. Statement Of Facts ..................................................(

a M ary land’s H istory  Of 
Discrimination Against Blacks 
In Higher Education And At 
UMCP ..................................................

b. The Banneker Program ....................

REASONS FOR GRANTING THE WRIT

I THE DECISION BELOW CONFLICTS 
WITH THIS CO U RT’S SCHOOL 
DESEGREGATION DECISIONS AND 
MISCONSTRUES ITS AFFIRMATIVE 
ACTION D E C ISIO N S................................

II. THE DECISION BELOW CONFLICTS 
WITH DECISIONS OF OTHER COURTS 
OF APPEALS AND WITH THE RECENT 
POLICY GUIDANCE OF THE UNITED 
S T A T E S  D E P A R T M E N T  O F  
E D U C A T IO N ...............................................



IV

III T H E  C O U R T  O F  A P P E A L S  
M ISCONSTRUED THIS C O U R T ’S 
DECISION IN BAKKE TO PROHIBIT
J h e  u s e  o f  r a c e - b a s e d
SCHOLARSHIPS TO ATTAIN A 
DIVERSE STUDENT BODY 27

CONCLUSION
. 30



*

E-E.O .C ., 478 U.S. at 449. See also Part II infra 16 
The court of appeals’ presumption of invalidity was so 
trong that this effect was given no weight at all.

It is difficult to imagine how any affirmative action 
program could pass the test that the couT  of appeals 
onstructed. Its decision has thrown both the law ^nd

a r eS c ^ nraCe-baSed SCh° ,arShlP Pr° e ™ S

"■  a r o n s

THE RECENT POLICY^GITOANCe S !
S S -  d e p a r t m e n t

anD, , kReHV'eW IS als° warra°ied because the coun of
TCOnnic,s Wllh da™ o n s of other courts 

of appeals aud w„h the policy of the federal g o v e r n "

r,„a Tlle, C0un of aPPea|s held that the district c o u r t’s

appeals suggesietTiQ6 b T a f fe c te T b v ^ U n  v C.°Un of

v S .T o: r  pre^  the3 B, ^  '^ n g s ta n d m g 'h is to S
recently and cltTnues t  ^  ̂
attecnng. lor example, parents and h r t f L T™5' WayS’ 
who were excluded from .1. it nd a school counselors
Sludents’ c . ^  n l ”
coun candidly stated 4 ,6tJa) ^  the distnct
prejudices, and iUs at’best C°" tnbutes mightily to our 
suggest that a culture of b igot^m -V * " h ^  dlSinSenuous to
be erased by less than twenfy years of amH ^  CentUries can (App. 9la.) ' ■ 0 amehorative measures."



25

matter of law, to justify the Banneker Program. (App. 
9a-13a.) The Eleventh Circuit has expressly recognized, 
however, that "a university that maintains a climate 
traceable to segregation with continuing segregative 
effects must remedy the climate to the extent that such 
can be done in a practicable and educationally sound 
manner." Knight v. Alabama, 14 F.3d 1534, 1553 (11th 
Cir. 1994). Courts of appeals in the Fifth and Eighth 
Circuits have also reached decisions contrary to the 
decision below. See Morrow v. Crisler, 49] F.2d 1053 
1056 (5th C ir.) (en banc), cert, denied, 419 U.S. 895 
(1974) ( M[W]e are not sanguine enough to be of the view 
that benign recruitment programs can purge in two years 
a reputation which discriminatory practices of 
approximately 30 years have enirenched in the minds of 
blacks in Mississippi"); Carter v. Gallagher, 452 F.2d 

^31 M b Cir. 1971), cert, denied, 406 U.S. 950 
(1972) ("Given the past discriminatory hiring policies of 
the Minneapolis Fire Department, which were well 
known in the minority community, it is not unreasonable 
t° assume that minority persons will still be reluctant to 
apply f°r employment, absent some positive assurance 
that if qualified they will in fact be hired on a more than 
token basis ")

In addition, the court of appeals’ first decision in 
this case conflicts with other federal circuit court 
decisions 1 In Podberesk\' /, the court of appeals held 
that OCR’s findings that the State maintained a racially- 
segregated higher education system in violation of federal 
law did not provide a constitutionally sufficient 
justification for the Banneker Program, even though OCR

1 Although the University did not seek immediate review 
ot the court ot appeals’ decision in Podberesby /, it may now. 
See Sheet Metal Workers v. E.E.O.C., 478 U.S. at 444 n.24.



26

had continued to monitor the State’c effXw .
‘he vestiges of past discrimination a t t h f  time ate
was admitted to the University (A h , ! !  resP°“dent 
contrast the Eiphth pi /  CApp. 103a-106a.) By
upheld ’.he ^ d h v  ^ r a c e  Z *
implemented under circumsL^ baSed remedlal action
'hose under which t h e ^ n  n „VmUa">' id“ Mcal to

arose. 5ue

454 U S. 1124 (1981) (holdtng that o c r ^ T / ^ -  
Past discrimination jusiified 1 “  *  S find,n*s of
implemented to eliminate the remedies
Arkansas's racially-segregated h w h ^ T ' 01'' effec,s of 
Palmer a. D istrict b L !  o f  T r S e l s J l T ° p  SyS'! m); 
Junior College 748 F 2d soc , {  J  Sl Pet^sburg
with respect fo Florida's Wnh! (i 1,h C ir  1984> Came 

Alexander, 801 F M  7 9 9 no SySlem>l G e t"  
graduate admtsston f r o g m ^  j„ S f ie 1 ?  S * * * 0"1* 
discrimination and conitnuing fideral overs.gSt”, '° £S ° f

co n n ,c ,? :,,Ch7 e F e b ^ ISi 7jU? |™ n' I” ,h“  “ “  also 
‘he t'.S Depanment nf ph ’ • 4 Po,Ic.v Guidance of
approach that the district J m ' a H ’ Wt ‘Cb embraces 'he
“ 'leges and universities awa^d3^
'*choJarships jn several d race‘targeted
including (a) when a Slate seeks” ,n circumstances, 
discnminaiorv conduct or d remedy its own past

educaiton msthuitons “ haTs.a e T d 'f t ! '°  h “  h‘gheror university seeks in ant. j - ’ and ^  when a college 
59 Fed. Reg 8759 <7 i" “ d' VerSe S,ude“' body. See
conflta below, but ar^tedm aul!!?'™ ' flacknowledged this 
because "the DOE polfL  is mr h 00115101 ,s ‘“significant
If*- ■ ■ N o v e m b e r!  " " ■  « * *  « *
Rehearing at 8. On the M ntrar^ m °"Se '°  Pe" lion for 
decision conflicts with existing ^  C° Urt ° f aPPeaJs ’ 
scholarship program J S X t S



A

t

government would specifically allow at UMCP and at 
other colleges and universities throughout the nation.

Review is warranted to resolve these conflicts 
between the court of appeals’ decisions and the law of 
other circuits and the policy of the United States 
government.

III. T H E  C O U R T  OF A P P E A L S
MISCONSTRUED THIS COURT’S 
DECISION IN BAKKE TO PROHIBIT 
T H E  USE OF R A C E - B A S E D
SCHOLARSHIPS TO ATTAIN A 
DIVERSE STUDENT BODY.

This case also presents the important question 
whether, even in the absence of unlawful discrimination, 
race-based scholarships may be employed to achieve a 
diverse student body. This Court has recognized that "a 
diverse student body’ contributing to a ‘robust exchange 

of ideas is a constitutionally permissible goal’ on which 
a race-conscious university admissions program may be 
predicated ." Metro Broadcasting, Inc. v. Federal 
Communications Commission, 497 U.S. at 568 (quoting 
Bakke. 438 U.S. at 311-13). The interest in racial 
diversity is "sufficiently ‘compelling,’ at least in the 
context of higher education, to support the use of racial 
considerations in furthering that interest." Wygant, 476 
U.S at 286 (O’Connor. J.. concurring). The University 
relied upon its compelling interest in diversity as an 
additional basis for the Banneker Program. (App. 
213a.)

27

The holding of Bakke, as determined by Justice 
Powell’s opinion, was that race may be used as a factor, 
but not as a prerequisite, in college or university 
admissions decisions. Bakke does not address, however,



28

"uciuer race mav be uspH
Programs l0 further t h e goaf ^requisite in.scholarsh.p 
scholarshlp programs £ * 2  °  d‘v^ « y -  Race-based

J t ffZ7̂  ra“ -b- e < f a d m t f oa”nekerP r°g ram a «cntical respects. missions programs in two

X 'r a m r T a ™ ^  ad™ s.ons and 
substantially different As th** h non-minorities are 
Baeneker Program a w ld  ^ ™ ' {o^ .  (he 
admission decisions are made ,  S.c”° ,arsh.ps only after 
a non-black student's ability “  "“ effect"on
(APP 87a.) °'mP 10 anend the University.

Second, the evidence «
resTictive. ye, equally .here is „0 less
exclusive scholarships as a ’ aJternatlve to race- 
P ^ i M  ,mereS' “  ^ e arsftyeanS £ « £ ” * *  t o

Z :  U“~  t o ?  had en?eedn ra°Ce ° f
admissions, concluded that US1!„  e as a l“cior ,0

a . l l  7D?9CeS, n , s 0i T 7 " Sl1 ^  “  ^ 3 8  v 7
"''hence from college' a n d l " " ™ ’ 'be “ controverted 
ahm,„is,ra,o r s s W s ^  and aroersity presidents and 
3 scholarship program » ?  raCe as a mere factor 
Promoting siuden, d ie ”  „y " ' a 73 0 ^ ^  ■

- U.A 3023; 3028; 3060.)
United Staiec n

acknowledged tha, jud gm en t"  ° f Educa,,OD has
a mponam differences between a d l° " ° g ’ha' ,t,ere are
its a 59 Fed ReS 8762 the D e n i  ° ” S and  fina”cial 

s a8reement with the DePartmem has expressed 
comments arguing £  ‘

” “  faa ° r “  aWardi"S fiaan ah ,Da r m a 0yrigbe”



inadequate to achieve diversity." Id. at 8761.18 Those 
expert judgments are entitled to considerable weight, 
particularly absent any adverse impact of the Banneker 
Program on non-black students. C f Regents o f the 
University o f Michigan v. Ewing, 474 U.S. 214, 225-26 
& n.12 (1985); Sweezv v. New Hampshire, 354 U.S. 234, 
263 (1957).

The court of appeals implicitly rejected these 
distinctions between race-based admissions and 
scholarship programs. In its first opinion, the court cited 
BakJce and noted that "[i]n this case, the scholarship funds 
are set aside for black students only . . . ." (App. 103a- 
104a n 4.) The court added that "ethnic diversity does 
noi appear to be the real interest behind the program." 
(Id.) Following remand, however, the University 
explicitly found in further administrative proceedings that 
the Banneker Program advanced two important interests: 
remedying past discrimination and achieving diversity. 
(App 139a. 157a; 164a; 213a.) Both rationales were 
asserted in the courts below. The distnct court found it 
unnecessary to address the diversity argument, however, 
and the court of appeals implicitly rejected it by ignoring 
the University’s request for a remand to permit the 
district court to address the issue. That issue has been 
clearly raised and preserved, and review is warranted to 
resolve Finally whether a race-based scholarship program 
is a constitutionally legitimate means of advancing the

18 See also "Minority Designated Scholarship Programs, 
A Compilation of Available Data on the Scope and Extent of 
Programs." American Council on Education, 1991 (63% of 
higher education institutions surveyed consider minority-based 
financial aid programs to be very important in attracting and 
retaining minority students).



30

goal of educational diversity. 19

C O NCLUSIO N

wn, should jss

p'a, es . C°“" Of Appeals fo,J ?ifmT  ° f  ,he CJnijed 
,Dg reVKW’ Judgment £ ? £ ^

Kevin T. Baine 
Stcven m . Farina 

d h ^ s  & Connolly
-  welfth Street, N .w

^ h m g to n , D.C. 20005 
<“02) **34-5000

Respectfujjy submitted,

•C W e / of Record

JJ ° SEPH Curran, jr .
mey Generai of Maryland

Evelyn o . Cannon*
^ drew H. Baida 
Richard a . We g n e r

m s t antPAt,torneys Gener*l200 st. Paul P]ace 2Qth

Attorneys for Petitioners