University System of Georgia Board of Regents v. Johnson Brief on Appeal of Intervenors Antoine Hester
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October 19, 2000
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Brief Collection, LDF Court Filings. University System of Georgia Board of Regents v. Johnson Brief on Appeal of Intervenors Antoine Hester, 2000. 0ef0d71c-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e52244c0-069f-4c47-8bd4-f173172a7cae/university-system-of-georgia-board-of-regents-v-johnson-brief-on-appeal-of-intervenors-antoine-hester. Accessed May 07, 2025.
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CASE NOS. 00-14340-C; 00-14382-C; 00-14382-CC
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA, et al.,
Defendants/ Appellants-Cross-Appellees,
and
ANTOINE HESTER, et al.,
Defendant-Intervenors/Appellants-Cross-Appellees,
v.
JENNIFER L. JOHNSON, et al.,
Plaintiffs/Appellees-Cross-Appellants
On Appeal from the United States District Court
for the Southern District of Georgia
BRIEF ON APPEAL OF INTERVENORS ANTOINE HESTER, ET AL,
I. KENNETH DIOUS
Kenneth Dious & Associates
115 Sycamore Drive, Suite B 1
Athens, Georgia 30606
(706) 546-9013
JOPIN M. CLARK
8 North Oliver Street
Old First National Bank Building
Suite 409
Elberton, Georgia 30635
(706) 283-9732
ELAINE R. JONES
Director-Counsel
THEODORE M. SHAW
NORMAN J. CHACHKIN
DENNIS D. PARKER
ELISE C. BODDIE
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, Suite 1600
New Y ork, New Y ork 10013
(212) 965-2200
JANELL M. BYRD
NAACP Legal Defense &
Educational Fund, Inc.
1444 I Street, N.W., 10th Floor
Washington, D.C. 20005
(202)682-1300
CASE NOS. 00-14340-C; 00-14382-C; 00-14382-CC
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA, et al.,
Defendants/Appellants-Cross-Appellees,
and
ANTOINE HESTER, et al.,
Defendant-Intervenors/Appellants-Cross-Appellees,
v.
JENNIFER L. JOHNSON, et al.,
Plaintiffs/Appellees-Cross-Appellants
On Appeal from the United States District Court
for the Southern District of Georgia
BRIEF ON APPEAL OF INTERVENORS ANTOINE HESTER, ET AL.
I. KENNETH DIOUS
Kenneth Dious & Associates
115 Sycamore Drive, Suite B 1
Athens, Georgia 30606
(706) 546-9013
JOHN M. CLARK
8 North Oliver Street
Old First National Bank Building
Suite 409
Elberton, Georgia 30635
(706) 283-9732
ELAINE R. JONES
Director-Counsel
THEODORE M. SHAW
NORMAN J. CHACHKIN
DENNIS D. PARKER
ELISE C. BODDIE
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
(212) 965-2200
JANELL M. BYRD
NAACP Legal Defense &
Educational Fund, Inc.
1444 I Street, N.W., 10th Floor
Washington, D.C. 20005
(202) 682-1300
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
In accordance with Eleventh Circuit Rule 26.1, Defendant-Intervenors/
Appellants-Cross-Appellees hereby certify that the following persons and entities
have or may have an interest in the outcome of this case.
Michael F. Adams - Defendant/Appellant-Cross-Appellee
Thurbert E. Baker - Attorney General (GA.), Counsel for Defendant/Appellant-
Cross-Appellee
Molly Ann Beckenhauer - Plaintiff/Appellee-Cross-Appellant
John W. Bellflower, Jr. - Counsel for Plaintiffs/Appellees-Cross-Appellants
Board of Regents for the University System of Georgia - Defendant/Appellant-
Cross-Appellee
Elise C. Boddie - Counsel for Defendant-Intervenors/Appellants-Cross-Appellees
Aimee Bogrow - Plaintiff/Appellee-Cross-Appellant
Ashlee Bolden - Defendant-Intervenor/Appellant-Cross-Appellee
Victor A. Bolden - Counsel for Defendant-Intervenors/Appellants- Cross-
Appellees
Janell M. Byrd - Counsel for Defendant-Intervenors/Appellants-Cross-
Appellees
Leroya Chester - Defendant-Intervenor/Appellant-Cross-Appellee
John M. Clark - Counsel for Defendant-Intervenors/Appellants-Cross-Appellees
Mark H. Cohen - Counsel for Defendant/Appellant-Cross-Appellee
I. Kenneth Dious - Counsel for Defendant-Intervenors/Appellants-Cross-
Appellees
Laramie Duncan - Defendant-Intervenor/Appellant-Cross-Appellee
Dennis R. Dunn - Counsel for Defendant/Appellant-Cross-Appellee
Ben Emanuel - Defendant-Intervenor/Appellant-Cross-Appellee
Honorable B. Avant Edenfield - Trial Judge
Annie Hester - Defendant-Intervenor/Appellant-Cross-Appellee
Antoine Hester - Defendant-Intervenor/Appellant-Cross-Appellee
Sidney Hester - Defendant-Intervenor/Appellant-Cross-Appellee
Jennifer L. Johnson - Plaintiff/Appellee-Cross-Appellant
Michael D. Kaufman - Counsel for Defendant/Appellant-Cross-Appellee
NAACP Legal Defense & Educational Fund, Inc. - Counsel for Defendant-
Intervenors/Appellants-Cross-Appellees
Dennis D. Parker - Counsel for Defendant-Intervenors/Appellants-Cross-
Appellees
A. Lee Parks - Counsel for Plaintiffs/Appellees-Cross-Appellants
C-2 of 3
Stephen R. Portch - Chancellor, University System of Ga. - Defendant/Appel lant-
Cross-Appellee
Parks, Chesin & Miller, P.C. - Counsel for Plaintiffs/Appellees-Cross-Appellants
Theodore M. Shaw - Counsel for Defendant-Intervenors/Appellants-Cross-
Appellees
State Law Department (Ga.) - Counsel for Defendant/Appellant-Cross-Appellee
Rodney K. Strong - Counsel for Defendant/Appellant-Cross-Appellee
John M. Tatum - Counsel for Plaintiffs/Appellees-Cross-Appellants
Troutman Sanders LLP - Counsel for Defendant/Appellant-Cross-Appellee
Tamar Washington - Defendant-Intervenor/Appellant-Cross-Appellee
Trevor Washington - Defendant-Intervenor/Appellant-Cross-Appellee
C-3 of 3
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Eleventh Circuit Rule 28-1(c), Defendant-Intervenors request oral
argument because this appeal involves important and complex constitutional issues
concerning the continuing availability of voluntary affirmative action that promises
to impact many individuals and major institutions in the State of Georgia.
i
TABLE OF CONTENTS
PAGES
CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT.......................................................C-l
STATEMENT REGARDING ORAL ARGUM ENT................................. i
TABLE OF CONTENTS ........................... ii
TABLE OF CITATIONS ........................................................................................ iv
STATEMENT REGARDING ADOPTION OF BRIEFS
OF OTHER PARTIES.................. x
STATEMENT OF JURISDICTION ..........................................................................xi
STATEMENT OF THE ISSUES ................................................................................ 1
STATEMENT OF THE C A S E ............................................................... .................. 2
Nature of the C a s e .................................................... ..................................................2
Proceedings and Disposition Below ............................................................................3
District Court’s Dispositive Ruling..............................................................................8
Statement of the Facts ................................................ ..............................................11
A. UGA’s Reasons for Considering Race and Ethnicity as a
Plus Factor in Admissions ................................................................... 12
B. Effect of UGA’s Current Admissions Practices . ..............................16
SUMMARY OF THE ARGUMENT ........ ..................................... ...................... 18
ii
ARGUMENT 21
I. The District Court Erred in Entering Judgment for Plaintiffs Without
Considering the University’s Interest in Addressing the Lingering
Effects of Georgia’s De Jure Segregated System of Higher Education . . . 21
II. The District Court Erred as a Matter of Law in Ruling that Student
Diversity in a University Setting Can Never Be a Compelling Interest . . . 24
A. Student Diversity is a Compelling Interest........................................ 24
B. Justice Powell’s Opinion in Bakke Is C ontrolling........................... 30
1. Powell’s Bakke Rationale Is Binding Precedent Under
Marks . .......................................... ............................................30
2. The Supreme Court Has Not Retreated From Justice
Powell’s Opinion in Bakke .......................................... .. 32
3. Lower Courts Consistently Have Adhered To Justice
Powell’s Opinion in B akke ...................................................... 34
III. The District Court Erred In Granting Summary Judgment to Plaintiffs
When There Were Disputed Factual Issues Regarding Defendants’
Purpose in Considering Race As a Factor in the Admissions Process . . . . 36
IV. The District Court Abused Its Discretion in Denying the Intervenors’
Motion to Enter a Special Case Management Scheduling Order, or
in the Alternative, Extend the Discovery Schedule ..................................39
CONCLUSION 43
TABLE OF CITATIONS
FEDERAL CASES
PAGES
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ....... 33
Agostini v. Felton, 521 U.S. 203 (1997) ........................ ............. 36
Ambach v. Norwich, 441 U.S. 68 (1979) ................... . .. 24, 27, 28
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............... 38
Bishop v. Wood, 426 U.S. 341 (1976) ....................... . ........ . 29
Board o f Curators v. Horowitz, 435 U.S. 78 (1978) .... ..............29
Board o f Regents o f the University o f Wisconsin v. Southworth,
120 S.Ct. 1346(2000) ............................................. .......... 19,27
Boston ’s Children First v. City o f Boston, 62 F.Supp.2d 247
(D. Mass. 1999) ................................................................... 34, 36
Brewer v. West Irondequoit Central School District,
212 F.3d 738 (2nd Cir. 2000) ................ .................. . ....... 33. 34
Brown v. Board o f Education, 347 U.S. 483 (1954) .... .............. 24
City o f Richmond Croson, 488 U.S. 469 (1989) ....... .. 18,21,22,
23,33,37
Davis v. Halpern, 768 F.Supp. 968 (E.D.N.Y. 1991) ... ....... 34, 40
Dills v. City o f Marietta, Ga.,614 F.2d 1377 (11th Cir. 1982) ... 40
Eisenberg v. Montgomery County Public Schools, 197 F.3d 123
(4th Cir. 1999)............................. ................................................ 35
IV
Grutterv. Bollinger, 188 F.3d 394 (6th Cir. 1999) ....................... 21
Healy v. James, 408 U.S. 169 (1972) ..................................... ...... 27
Higgins v. City o f Vallejo, 823 F.2d 351 (9th Cir. 1987) ............. 34
Holm v. United States, 524 U.S. 236 (1998) ........................ ....... 36
Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert denied,
518 U.S. 1033 (1996) ...... .................................................. 34,35
Hopwood v. Texas, 999 F.Supp. 872 (W.D. Tex. 1998),
Gregg v. Georgia, 428 U.S. 153 (1976) .......................................... 30
appeal docketed, No. 98-50506 (5th Cir. June 1, 1998) .... . 34
Hunter v. Regents o f the University o f California, 190 F.3d 1061
(9th Cir. 1999), cert, denied, 69 USLW 3110
(U.S. Oct. 2, 2000) ............................................................. 34, 40
Johnson v. Board o f Regents o f University System, 106
F. Supp.2d 1368 (S.D. Ga. 2000) ................................... passim
Keyishian v. Board o f Regents, 385 U.S. 589 (1967) ....... . 19, 25
Lutheran Church-Missouri Synod v. Federal Communications
Commission, 141 F.3d 344 (D.C. Cir. 1998) .......................... 34
Majd-Pour v. Georgiana Community Hospital, Inc.,
724 F.2d 901(11th Cir. 1984)............................................ 17, 42
Marks v. United States, 430 U.S. 188 (1977) ....................... 19, 30
Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986). ................... ............................................ 37
McDaniel v. Barresi, 402 U.S. 39 (1971) 23
McLaughlin by McLaughlin v. Boston School Committee,
938 F.Supp. 1001 (D. Mass. 1996) ......................................... 34
McLaurin v. Oklahoma State Regents,
339 U.S. 637(1950) .................................................... 18,24,25
Metro Broadcasting, Inc. v. Federal Communications Commission,
497 U.S. 547 (1990)................................................. ....... 33,34
Missouri ex rel. Gaines, v. Canada, 305 U.S. 337 (1938) ........ 24
North Carolina State Board o f Education v. Swann,
402 U.S. 43 (1971) ............ .................................................. 18,26
Officers for Justice v. Civil Service Comm’n o f the City and
County o f San Francisco, 1991 U.S. Dist. LEXIS 8259,
Nos. C-73-0657RFP, C77-2884 RFP (consolidated)
(N.D. Ca. June 6, 1991)............................................................. 34
Patrolmen’s Benevolent Association v. City o f New York,
74 F.Supp. 2d 321(S.D.N.Y. 1999) ....................................... 34
Reeves v. Sanderson Plumbing Prod., 530 U .S.__,
147 L.Ed.2d 105, 121 (2000) ............................. ................. 37
Regents o f the University o f California v. Bakke, 438 U.S. 265
(1978) .............. passim
Regents o f the University o f Michigan v. Ewing, 474 U.S. 214
(1985) ...................................................... 29
Rodriguez de Quijas v. Shearson/Arnerican Express, Inc.,
490 U.S. 477 (1989)............................... ................ ................. . 35
McKinney v, Alabama, 424 U.S. 669 (1976) ................................ 41
VI
Rosenberger v. Rector and Visitors o f the University o f Virginia,
515 U.S. 819 (1995)................................................................... 27
San Antonio School District v. Rodriguez, 411 U.S. 1 (1973) ..... 29
Sipuel v. University o f Oklahoma, 332 U.S. 631 (1948) .............. 24
Smith v. University o f Washington Law School, 2 F. Supp.2d
1324 (W.D. Wash. 1998)............................................................ 34
Smith v. University o f Washington Law School, No. C97-335Z
Feb. 12, 1999 ..... ........................................................................ 32
State Oil v. Khan, 523 U.S. 3 (1997).............................................. 36
Swann v. Charlotte-Mecklenburg Board o f Education,
402 U.S. 1 (1971) ........................................................................ 26
Sweatt v. Painter, 339 U.S. 29 (1950).................... ........... 18, 24, 25
Sweezy v. New Hampshire, 354 U.S. 234 (1957) ................. ........ 27
Talbert v. City o f Richmond, 648 F.2d 925 (4th Cir. 1981) .3 4
Taxman v. Board ofEduc. o f Township o f Piscataway,
91 F.3d 1547 (3rd Cir. 1996) .................. .......................... . 34
Tracy v. Board o f Regents, 59 F.Supp.2d 1314,
(S.D. Ga. 1999) vacated and remanded, 208 F.3d 1313
(11th Cir. 2000) ............................................ .............................. 35,40
Tracy v. Board o f Regents o f the Univ. Sys. o f Georgia,
No. CV 497-45, 2000 U.S. Dist. LEXIS 11320
(S.D. Ga. June 16, 2000)............................................................... 9
Tracy v. Board o f Regents o f the Univ. Sys. o f Georgia,
No. CV 497-45, 2000 U.S. Dist. LEXIS 11262
(S.D. Ga. July 24, 2000) ................ ............................................... 9
vii
Tuttle v. Arlington County School Board, 195 F.3d 698
(4th Cir. 1999).......................................................................... 35,40
United States v. Fordice, 505 U.S. 717 (1992) ....... ......... 13, 14, 22
United States v. Louisiana, 692 F.Supp. 642, (E.D. La. 1988)
vacated, 751 F.Supp. 606 (E.D. La. 1990) ........................... 25
United States v. Paradise, 480 U.S. 149 (1987) ............................. 22
United States v. Virginia, 518 U.S. 515 (1998) ............................. 21
Wessman v. Gittens, 160 F.3d 796 (1st Cir. 1998).......................... 36
Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996), cert, denied,
117 S.Ct. 949 (1997) ........................................................... ......... 34
Wygant v. Jackson Board o f Education, 476 U.S. 267
(1986)....................................................................................... 23,32
FEDERAL STATUTES AND REGULATIONS
Title VI, 42 U.S.C. § 2000d ........................... ............. ............ passim
Title IX, 20 U.S.C.§ 1681(a) ............................................... ......... 3,11
34 C.F.R. § 100.3(b)(6)(i).......... ....................................................... 22
34 C.F.R. Section 100.5(h) ................................................................ 23
59 Fed.Reg. 4272(1994).................................................................... 14
59Fed.Reg. 8756, 8759-8762(1994) .......... .......... ............ ............. 35
viii
MISCELLANEOUS
Michael A. Olivas, Affirmative Action: Diversity o f Opinions,
Constitutional Criteria: the Social Science and Common Law
o f Admissions Decisions in Higher Education, 68 U.Colo.L.Rev.
1065, 1066 (Fall, 1997) ............................................................... 35
Patricia Gurin, "Selections from The Compelling Need fo r Diversity
in Higher Education, Expert Report in Defense of the University
of Michigan," 32 Equity & Excellence in Education, 36
(September 1999)........................................................................... 28
William Bowen and Derek Bok, The Shape o f the River (1998).... 28
IX
STATEMENT REGARDING ADOPTION OF
BRIEFS OF OTHER PARTIES
Defendant-Intervenors adopt Defendants’ Statement of Jurisdiction, insofar as
it addresses the standard of review on summary judgment motions, and Defendants’
Record Excerpts. Defendant-Intervenors have supplemented those Record Excerpts
to include their Answers to the Complaints in the pre-consolidated Johnson and
Bogrow actions.
STATEMENT OF JURISDICTION
The Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. On
July 24, 2000, the United States District Court for the Southern District of Georgia
issued a final decision and order granting, in part, the summary judgment motion of
the Plaintiffs below and denying the summary judgment motions of the Defendants
and the Defendant-Intervenors. Johnson v. Board o f Regents o f the University System
o f Georgia, 106 F.Supp.2d 1362 (S.D. Ga. 2000). Prior to the entry of its final
decision and order, the District Court issued an order on March 30,2000, denying the
Intervenors’ Motion to Enter a Special Case Management Scheduling Order, or, in
the Alternative, Extend the Discovery Schedule. (R8-114). The District Court entered
final judgment on July 24, 2000, and closed the case on that same date. (R11-166).
Intervenors filed a timely Notice of Appeal on August 23, 2000, seeking review of
the March 30 and July 24, 2000 orders. (R11- 173).
xi
STATEMENT OF THE ISSUES
I. Whether the district court erred in entering judgment for the Plaintiffs without
considering whether the University’s interest in voluntarily addressing the
lingering effects of Georgia’s 160-year de jure segregated system of higher
education, including the current effect of the admissions preference for
children of alumni, justifies its consideration of race as a modest plus factor in
admissions?
II. Whether the district court erred in ruling that a university’s interest in a diverse
student body, including a student enrollment that is racially and ethnically
diverse, in order to enhance educational outcomes and students’ abilities to
function in a pluralistic society, can not be a compelling interest supporting the
competitive consideration of race or ethnicity in university admissions?
A. Whether the district court erred in rejecting Justice Powell’s opinion in
Regents o f the University o f California v. Bakke, 438 U.S. 265 (1978),
as non-binding and in error?
B. Whether the district court erred in granting summary judgment to
Plaintiffs based on a conclusion that Defendants were motivated by a
desire for proportional representation and a stereotypic belief that all
minorities share the same viewpoint when there was a genuine issue of
material fact regarding these issues?
III. Whether the district court erred in denying the Intervenors’ Motion to Enter a
Special Case Management Scheduling Order, or, in the Alternative, Extend the
Discovery Schedule in order to allow an opportunity to develop the record
showing the continuing effects of Georgia’s segregated and discriminatory
educational system and the educational benefits of diversity in a university
setting in this very important case?
STATEMENT OF THE CASE
Nature of the Case
This case presents the question of under what circumstances a state with a
longstanding, deeply rooted history of racial discrimination may be barred from
taking voluntary race-conscious measures to ameliorate the effects of that
discrimination, including efforts to ensure that its citizens are educated in an
academic environment that includes the views of both those benefitted and burdened
by the state’s discrimination and efforts to prepare its citizens to function successfully
in the multi-racial society in which they live.
2
Proceedings and Disposition Below
On August 10, 1999, Plaintiff Jennifer Johnson filed a complaint against the
Board of Regents of the University System of Georgia d/b/a University of Georgia
(“UGA”) and the Chair of the Board of Regents, Stephen Portch, and UGA President,
Michael Adams, in their individual and official capacities,1 challenging the denial of
her application for admission to the 1999 freshman class at UGA. She alleged
discrimination on the basis of her race and gender in violation of Title VI, 42 U.S.C.
§ 2000d, Title IX, 20 U.S.C.§ 1681(a), and the Equal Protection Clause of the
Fourteenth Amendment.2 Ms. Johnson requested that the court certify a class of past,
present and future similarly situated applicants to UGA, sought to enjoin UGA from
any future consideration of race or gender in admissions,3 and requested damages.
On August 30,1999, Aimee Bogrow and two other unsuccessful applicants to the Fall
The Board of Regents and individual defendants are referred to herein
collectively as “Defendants” or “the Board” unless specifically designated by name.
2On August 13, 1999, (after this suit was filed, but before service of process
and before the start of the University of Georgia’s Fall semester), Johnson was
offered admission to the entering 1999 freshman class, but declined. (R3-38-10).
Efforts to dismiss her claims as moot were denied. Johnson, 106F. Supp. 2d at 1380-
81.
3In August of 1999, UGA rescinded its policy of considering gender in its
admissions process. (R-38-12, 44).
3
1999 entering class filed suit on the same grounds. Their case was consolidated with
the Johnson litigation on November 15, 1999. (R4-55).4
On November 8, 1999, African-American and white students Antoine Hester,
et ah, (hereinafter “Intervenors”) moved to intervene in both the Johnson and Bogrow
cases. (R3-44). Intervenors’ initial pleadings made clear their intention to develop
a record in support of a remedial justification for the University’s admissions policy
and in further support of diversity at UGA. (R3-45-2,4; R4-48-2, 15-19). The court
granted intervention on December 15, 1999. (R5-75).
Pending at the time of intervention were Plaintiffs’ Motions for a Temporary
and Preliminary Injunction, (R2-28), and motions for Partial Summary Judgment,
(R1 -7). Shortly thereafter, on November 22 and 24,1999, respectively, the Board and
the Intervenors moved for reconsideration of the grant of class certification. (R4-60;
R5-64). On December 2, 1999, Plaintiffs filed a Motion to Add Parties and to
Supplement the Complaint with disparate impact claims. (R5-66). Recognizing the
plethora of open questions, on December 27, 1999, Intervenors filed a Motion for a
More Definite Statement, (R6-80), seeking to clear up the confusion caused by
Plaintiffs’ December 2, 1999 motion. On January 20,2000, Plaintiffs filed a second
motion to add parties and supplement the Bogrow complaint. (R6-91).
4A11 plaintiff parties are referred to collectively herein as “Plaintiffs,” unless
otherwise specifically designated by name.
4
Noting the complexity of the case and that it “raises critical constitutional
issues,” on February 8, 2000, Intervenors moved for a Special Case Management
Scheduling Order, or, in the Alternative, [to] Extend the Discovery Schedule for three
months so as to permit sufficient time to resolve the questions regarding the scope of
the litigation and to develop a record on educational diversity and the vestiges of the
dual system. (R6-96; R7-97-2,3). On February 9, 2000, the court decertified the
plaintiff class, denied Plaintiffs’ motion to reconsider its November 12, 1999
qualified immunity ruling on the gender claims,5 dismissed claims for prospective
injunctive relief, instructed Plaintiffs to brief the Court “on the issues remaining in
the case, including the propriety of individual injunctive relief and the factual bases
for their damages claims,” (R7-99-13),6 and gave Defendants and Intervenors an
opportunity to respond to that submission. (Id.) On February 15, 2000, Intervenors
filed a Motion to Stay Expert Discovery and the Joint Status Report, (R7-103), noting
that in view of the February 9 Order, “the scope of this case and the nature of
Plaintiffs’ residual claims remain uncertain.” (Id. at 3).
5The November 12 Order dismissed the official capacity claims against Portch,
(R4-55-21), and individual capacity claims against Portch and Adams, (Id.).
6Plaintiffs filed an interlocutory appeal of the February 9 Order, which each of
the parties fully briefed. By Order of this Court on October 12, 2000, that Appeal,
No. 00-10977, has not been consolidated with the appeals from the July 24, 2000
judgment.
5
The Board opposed Intervenors’ Motion to Enter a Special Case Management
Scheduling Order, or, in the Alternative, Extend the Discovery Schedule, arguing that
the extension would unduly prolong the litigation, that the case was no longer
complex with the decertification of the class, and that the Intervenors’ attempt to
address the question of vestiges of the de jure segregated school system should be
rejected.
While Defendants agree that the chronology of this federal supervision
. . . is relevant to the discussion of how and why UGA uses race as one
factor in . . . admissions, Defendants have never contended that this
limited use of race is required or necessary due to any remaining
vestiges of discrimination. Defendant-Intervenors’ attempt to resurrect
an issue that was laid to rest over a decade ago should be rejected.
(R7-104-3,4) (emphasis added). The Board asserted that the only issues remaining
in the case were whether individual plaintiffs have legal grounds to recover damages
and/or be ordered admitted to UGA and that these were issues of law that could be
decided on summary judgment. (Id.). The Plaintiffs agreed. They argued that
[sjince Defendant-Intervenors have attained their goal of protecting the
future use of the admissions policy, they have no asserted interest in the
individual actions of the plaintiffs.. . . [ Intervenors’] professed interest
in ensuring an ability to attend a racially diverse educational institution
is no longer part of this action. Therefore, . . . [they] do not possess an
interest in the remaining issues in this litigation.
(R7-107-4,5).7
7Two additional lawsuits were subsequently filed challenging UGA’s
(continued...)
6
On February 18,2000, the parties submitted a Joint Status Report. Intervenors
stated that in view of the February 9 Order, “it is unclear what relevant contentions
of fact remain,” (R7-105-5), and asserted, inter alia, their contention that:
to the extent that the use of race affected in any way the admission of
any of the individual applicants, UGA’s consideration of race in the
admissions process is consistent with the University’s obligation to
eliminate vestiges of its prior de jure segregated system pursuant to
United States v. Fordice, 505 U.S. 717 (1992), and is therefore lawful.
(Id. at 6).
On March 30,2000, the District Court denied the Intervenors’ motion to extend
discovery and motion to stay expert discovery and ordered them to file any expert
reports within ten days. (R8-114-8,10). In compliance with the scheduling order, on
April 21, 2000, all parties filed their summary judgment motions.7 8 Defendants and
Plaintiffs moved for summary judgment on the question whether UGA’s freshman
admissions policy was permissible under Bakke. (R8-121; R9-130). The Intervenors
moved for summary judgment on the ground that Plaintiffs’ denial of admission was
due to their relatively low curriculum difficulty scores, and not, as Plaintiffs had
7(...continued)
consideration of race in freshman admissions. Both cases settled, with UGA agreeing
to suspend the consideration of race for the upcoming admissions cycle pending the
outcome of this appeal.
Plaintiffs’ earlier motions for partial summary judgment were denied without
prejudice. (R8-114-3).
7
asserted, because of their race and/or their gender.9 No party moved for summary
judgment on the issue whether present effects of the de jure segregated school system
would justify the University’s consideration of race in admissions.
The District Court granted in part and denied in part Plaintiffs’ motion for
summary judgment and denied both Defendants’ and Intervenors’ respective
summary judgment motions. This appeal followed.
District Court’s Dispositive Ruling
On July 24, 2000, the district court ruled that “the promotion of student body
diversity in higher education is not a compelling interest sufficient to overcome Title
V i’s prohibition against racial discrimination.” Johnson v. Board o f Regents o f the
University o f Georgia, 106 F. Supp. 2d 1362, 1375 (S.D. Ga. 2000). It reasoned that
the narrowest ground of the Supreme Court’s fractured decision in Bakke was the
statutory Title VI reasoning by Justice Stevens rather than Justice Powell’s
constitutional holding. Thus, the district court held, the rationale announced in
Justice Powell’s opinion is not binding precedent, id. at 1368-69. The court viewed
Justice Powell’s endorsement of a diversity-based program to be dictum, and opined
9The District Court rejected this argument, Johnson, 106 F.Supp.2d at 1376-77;
and the Intervenors are not appealing this portion of the District Court’s opinion.
8
that Supreme Court decisions since Bakke indicate that support for Justice Powell’s
diversity rationale has effectively been eroded. Id. at 1369-70.
Having concluded that Justice Powell’s opinion has no controlling effect, and
noting simply that the Board makes no claim that its plan is necessitated by the
lingering effects of discrimination, id.,10 the district court considered whether student
diversity can be a compelling interest. In concluding that it cannot, the court relied
upon several grounds. First, following its earlier decision in a separate but related
case, Tracy v. Board o f Regents o f the University System o f Georgia, 59 F.Supp.2d
1314, 1317 (S.D. Ga. 1999), vacated and remanded, 208 F. 3d 1313 (11th Cir. 2000)11
- specifically the section entitled “The Road Ahead” where the district court opined
in dicta that “UGA cannot constitutionally justify the affirmative use of race in its
admission decisions,” id. at 1321 — the court repeated its conclusion that “the very
concept of ‘diversity’ has ‘become so malleable that it can instantly be conscripted
to march in any ideologue’s army, and exploited by government officials to avoid
l0The Court did not address the fact that Intervenors had raised the issue.
1 'On remand, the district court reinstated the grant of partial summary judgment
to plaintiff Tracy and summary judgment to defendants on the plaintiffs’ remaining
claims, Tracy v. Board o f Regents o f the Univ. Sys. o f Georgia, No. CV 497-45,2000
U.S. Dist. LEXIS 11320, at *24 (S.D. Ga. June 16, 2000) (reconsideration denied in
Tracy v. Board o f Regents o f the Univ. Sys. o f Georgia, No. CV 497-45, 2000 U.S.
Dist. LEXIS 11262, at *20 (S.D. Ga. July 24, 2000)). A separate appeal of that
decision is pending before this Court in Appeal No. 00-14322-A.
9
answering tough questions.’” Johnson, 106 F. Supp. 2d at 1371. The court ruled
that “UGA’s inability ‘to meaningfully show how [racial diversity] actually fosters
educational benefits,’ see Tracy, 59 F.Supp.2d at 1322, further bespeaks the
inherently amorphous nature of this concept.” Id. at 1371 (Johnson). The court
rejected as “syllogism and speculation” the unrebutted affidavit of former UGA
President Charles Knapp about the value of student diversity. Id. at 1372.
Second, the district court concluded that “[t]he record shows that UGA is
plying a ‘diversity = proportionalism’ rationale.” Id. at 1371. “Here the record shows
that UGA’s racial preference has just such a proportionalism goal.” Id. at 1373.
Relying in this instance on Justice Powell’s statement in Bakke that “[preferring
members of any one group for no reason other than race or ethnic origin is
discrimination for its own sake,” 438 U.S. at 307, the district court concluded that
UGA was engaged in “naked racial balancing,” which is forbidden by the
Constitution. Johnson, 106 F. Supp.2d at 1373.
As a third reason supporting its holding that student diversity cannot be a
compelling interest, the district court found that UGA’s diversity rationale “treads
upon constitutional prohibitions by relying on stereotypical beliefs about the
contributions of members of particular races.” Id. “UGA merely presumes,
stereotypically, that all members of a particular minority race will think, act, etc.,
10
differently from whites and thus ‘contribute’ to the student body’s ‘overall
educational experience’.” Id. at 1373-74. The court stated that UGA used race as a
proxy: “A policy relying on the crude, and dangerous, proxy of race for ideological
diversity sits in antipathy to this principle [of individual rights].” Id. at 1374.
On the theory that “the standard for finding gender discrimination under Title
IX is the same as Title V i’s standard for racial discrimination, which is identical to
the Equal Protection Clause’s standard for racial classifications,” id. at 1367, the
district court applied strict scrutiny to UGA’s consideration of gender in admissions
and found the policy to be in violation of Title IX.12
The court granted injunctive relief directing that Plaintiffs be admitted to the
University and awarded damages to each of the Plaintiffs. Id. at 1380-81.
Statement of the Facts
It is undisputed that UGA utilized a plus factor for race and ethnicity, in
addition to a wide range of other factors, at one stage of the three stage process it
used to admit freshmen for the 1999-2000 school year. In the first stage, applicants
12UGA has voluntarily discontinued its consideration of gender in admissions
and has not appealed the district court ruling on this issue. Brief of Appellant Board
of Regents in No, 00-14382-C, filed October 2, 2000, at n .l. As such, despite
questions about the legal standards applied by the district court, that issue is not
before this Court on appeal.
11
could be admitted or denied on the basis of a minimum score on an “academic index”
(“AI”) that combined an applicant’s standardized test scores and grade point average.
UGA admitted approximately 85% of its 1999 freshman class in this manner. (R3-
38-9).
Applicants who were not admitted or rejected at the AI stage proceeded to a
second stage in the process — the “total student index” stage (“TSI”). Here, the
applicant was assessed according to a range of academic and non-academic factors,
including race or ethnicity, each of which was accorded a certain weight. (Id. at 7,
Exhibits 5 and 6). An applicant whose TSI score exceeded a certain threshold at this
stage was admitted to UGA; an applicant whose score was below a certain minimum
was denied admission. If the TSI score fell somewhere in between, the applicant
proceeded to a third stage called the “Edge Read” (“ER”), where the student’s
application was reviewed by an individual reader. (R3-38-9). Race was not
considered at the ER stage. (R8-114-6).
A. UGA’s Reasons for Considering Race and Ethnicity as a
Plus Factor in Admissions
The record reflects that Defendants have at least three reasons for their decision
to consider race as a modest plus factor in admissions: a) UGA’s history of prior de
jure discrimination and federal supervision over the University System of Georgia,13
13Despite the record evidence reflecting that remedial considerations were one
(continued...)
12
b) the desire to have a diverse student body to enhance the quality of learning and
students’ ability to function successfully in a pluralistic society, and c) the desire to
offset the effects of its alumni preference.
Defendants’ memorandum of law in support of their summary judgment motion
refers to the 160-year history of racial exclusivity at UGA, followed by the court-
ordered admission of Hamilton Holmes and Charlayne Hunter in 1961. Defendants
then cite the 1970 determination of the Office for Civil Rights of the United States
Department of Health, Education and Welfare (“OCR”) that Georgia was continuing
to operate a segregated system of higher education in violation of Title VI. This
section ends by quoting a 1989 letter from OCR stating that Georgia had
“substantially complied with the terms” of its desegregation plan, and therefore was
in compliance with Title VI, meaning that OCR would not require additional
desegregation measures, but that the State “must continue to comply with Title VI.”
(R8-122-5-7).
However, the 1989 letter is not dispositive because in 1992, the Supreme Court
announced the standard for Title VI and Fourteenth Amendment compliance for states
with formerly de jure segregated systems of higher education in United States v.
Fordice, 505 U.S. 717(1992). Thereafter, OCR recognized that it had used a lesser 13
13(...continued)
of several motivating factors for Defendants’s plan, thus far Defendants have not
directly relied upon a remedial objective to justify their plan.
13
standard in releasing eight states from further Title VI obligations,14 and on January
31, 1994, OCR issued a Federal Register Notice on the Application of For dice:
In light of the Fordice decision, the Department reaffirms that all
States[l] with a history of de jure segregated systems of higher
education have an affirmative duty to ensure that no vestiges of the de
jure systems are having a discriminatory effect on the basis of race.
[1] Included are the eight states which, in the late 1980's before the
Supreme Court rendered its decision in Fordice, OCR found in
compliance with Title VI. The states OCR found to have complied with
Title VI were . . . Georgia . . . . OCR’s findings were based on its
investigations that showed these States had implemented their OCR-
approved desegregation plans. . . .
59 Fed. Reg. 4272 (1994).15 It is undisputed that there has never been a finding under
the Fordice standard by any court or agency that Georgia has eliminated the vestiges
of its de jure segregated system.
The continuing salience of this history is recognized by UGA. In his
deposition, President Adams repeatedly refers to Georgia’s historically
discriminatory system of education when asked why UGA decided to continue to
consider race in admissions.
'“OCR’s 1989 letter does not purport to address Georgia’s responsibilities
under the Fourteenth Amendment. In fact, OCR’s enforcement authority extends
only to Title VI. 42 U.S.C. § 2000d-l.
15OCR sent a letter and copy of the notice on January 27, 1994, to Georgia’s
Governor, Zell Miller, copied to Harry Downs, Acting Chancellor, Board of Regents
of the University System of Georgia. (Defendant-Intervenors’ Appendix at A1-A7),
14
Well, I don’t know if we are overtly doing things that hinder [African-
American admission] or not. . . ,[B]ut I do think there is the issue of
climate and how receptive this community appears to be to African-
Americans and I also think there’s the issue of history.
When you perhaps have been told for a long period of time that you’re
not wanted somewhere and then that directive is taken away, it may take
some time for people to, shall we say, step across the threshold even
though the door may be open and sometimes you have to kind of reach
out and lead somebody across the threshold.
(Doc 140 - Pgs 26-27 (Adams Deposition)). When asked about the decision to
continue to consider race as a factor in admissions, while dropping the consideration
of gender, President Adams stated:
While I don’t believe that males as a group have ever borne either
discrimination or lack of opportunity in this country, I grew up in South
Georgia and I remember a time pretty well, and to some extent it
probably still exists, where I’m not convinced that African-Americans
had the same educational opportunity that I did.
{Id. at 21; accord 22-24, 28-31; R8-124-^f ^ 5-7, 30 (Affidavit of former UGA
President Dr. Charles B. Knapp)).
President Adams also testified about the benefits of student body diversity that
the University seeks with the consideration of race and ethnicity:
[SJtudents learn a great deal from each other outside the classroom. I
remember in my own undergraduate . . . time becoming a really good
friend with a guy who was Jewish from the Bronx. I had never really
spent any time with anybody like that and that taught me a lot. I think
having a discussion about World War II when there are descendants of
a German Jew sitting in the classroom has an impact. I think talking
about race relations in the South when there are African-Americans
15
participating in the discussion whose parents lived through the sixties
like I did, I think there is educational advantage there.
(Doc 140 - Pgs 47-48; accord at 32-33, 35-36, 39, 107, 108 (“We put most things
here through a testing mechanism or sifter of all belief systems and I think that’s a
healthy process”); R8-124-6-8(Knapp Affidavit)). In pursuing diversity, Adams
explained that there was no assumption that people in different racial and ethnic
groups think alike or a particular way, but rather that “when you have a broad
representation from different backgrounds and cultures you are more likely to have
a diversity of experience and a diversity of opinion.” (Doc 140 - Pgs 48,49; see also
107-08).
An additional justification for the consideration of race is the need to address
the disproportionate benefit that whites receive from the alumni preference.
We also in the rating give preference to legacies, and virtually all of the
legacies that I see here are white; and about all we’ve done with the
point system in the TSI, and one of the reasons that I let it remain there,
is to try to level the playing field a little bit, so I don’t consider what we
do a really aggressive affirmative action program.
(Doc 140- Pg 24; accord 28- 30).
B. Effect of UGA’s Current Admissions Practices
UGA’s African-American undergraduate enrollment is substantially lower than
the population of African-American students who could satisfy its admissions
standards and who thus are academically qualified to attend UGA. For example, of
16
the students enrolling at UGA in the Fall of 1997,16 only 246 of 4,244, or 5.8%, were
African-American. This figure contrasts dramatically with the qualified eligible pool
of African-American students from Georgia who are estimated to comprise 13.9% to
17.1% of the population. (R3-4 5-Exhibit C, f 8, Declaration of Martin Shapiro). The
statistical improbability of such a result is “less than one-in-one-billion,
corresponding to more than 15 standard deviations.” (Id. at If 9). In the Fall of 1999,
only 243 of 4,272, or 5.68%, of the students enrolling at UGA were African-
American. (RIO-134-Exhibits A and B).
Standard of Review
Intervenors adopt the discussion of the standard of review set out in
Defendants’ brief with respect to the summary judgment issues. The denial of the
Motion to Enter a Special Case Management Scheduling Order, or, in the Alternative,
Extend the Discovery Schedule is reviewed under an abuse of discretion standard.
See Majd-Pour v. Georgiana Community Hospital, Inc., 724 F.2d 901,903 (11th Cir.
1984).
16Since 1996, UGA has utilized the three-stage admissions process described
above with some modifications and lessening of the weight given to the plus factor
for race. (R3-38-5-9).
17
SUMMARY OF THE ARGUMENT
Intervenors raise several arguments on appeal, all of which warrant vacating
and/or reversing the judgment entered for Plaintiffs insofar as it relates to the
consideration of race and ethnicity.
First, Intervenors repeatedly raised as a justification for the University’s
voluntary consideration of race and ethnicity as a plus factor in admissions the need
to remedy the present effects of Georgia’s 160-year history of exclusion of African
Americans from UGA. This justification is legally sufficient to uphold UGA’s
consideration of race as a factor in admissions. See City o f Richmond v. Croson, 488
U.S. 469, 500 (1989). The entry of judgment for Plaintiffs prior to resolution of this
defense of the program was reversible error.
Second, the district court erred in ruling that student diversity in a university
setting is not a compelling governmental interest. The Supreme Court has repeatedly
recognized the important educational value in student diversity, including racial and
ethnic diversity, see e.g., Bakke, 438 U.S. 265 (Opinion of Powell, J.); Sweatt v.
Painter, 339 U.S. 29 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637
(1950); North Carolina State Board o f Education v. Swann, 402 U.S. 43 (1971), and
has valued and respected a university’s “academic freedom” to determine how best
to educate its students by giving special deference to such judgments, see Bakke, 438
18
U.S. (Opinion of Powell, J.); Board o f Regents o f the University o f Wisconsin v.
Southworth, 120 S.Ct. 1346 (2000); Keyishian v. Board o f Regents, 385 U.S.
589(1967). Indeed, given the special First Amendment interests involved, Justice
Powell balanced a university’s interest in student diversity with the Equal Protection
rights involved and correctly concluded that the interests of a party challenging the
consideration of race in admissions do not automatically outweigh the university’s
interest in diversity, but rather are fully considered at the narrow tailoring stage of the
inquiry. See Bakke, 438 U.S. at 313 (Opinion of Powell, J.).
Moreover, in Bakke, five Justices agreed that the issue whether race could ever
be taken into account in university admissions was before the Court, 438 U.S. at 270,
325, and without any showing that the University was remedying any discrimination
of its own reversed the California Supreme Court in holding that “the State has a
substantial interest that legitimately may be served by a properly devised admissions
program involving the competitive consideration of race and ethnic origin.” Id. at
320; see also id. at 326. Justice Powell’s diversity rationale is the narrowest ground
supporting the Court’s judgment and is thus the binding rationale for the decision
under Marks v. United States, 430 U.S. 188 (1977). Subsequent decisions of the
Court have not disavowed Justice Powell’s opinion.
19
Third, the district court committed reversible error in granting summary
judgment for Plaintiffs because there were genuine factual disputes on the record
before the court with respect to UGA’s reasons for considering race as a modest plus-
factor in admissions, see infra at 36-37, and with respect to whether UGA was using
a constitutionally impermissible “stereotype” of minority applicants in concluding
that they would enhance the diversity of viewpoints at the school, see infra at 38.
Moreover, the district court’s view of these issues was tainted by the lack of a
remedial record, see infra at 37-38.
Finally, the district court abused its discretion in denying Intervenors’ Motion
to Enter a Special Case Management Scheduling Order, or, in the Alternative, Extend
the Discovery Schedule for a short three month period in order to allow an adequate
opportunity to develop a record supportive of the diversity and remedial rationales
for UGA’s program. The short history of this case involved a large number of
complex procedural motions, including some that could have completely obviated the
need to reach the merits of the case, and a fully briefed interlocutory appeal to this
Court prior to the discovery cut-off on April 10, 2000. The district court’s refusal to
allow a short extension of the discovery period to clarify the scope of the litigation
and to allow Intervenors an opportunity to develop a record on complex constitutional
issues — especially when Defendants had made clear their intent not to do so — was
20
an abuse of discretion in a case of this importance, j ustifying an order vacating the
judgment with respect to the consideration of race and ethnicity and remanding the
case to the district court to allow Intervenors an opportunity to develop the record.
ARGUMENT
I. The District Court Erred in Entering Judgment for Plaintiffs Without
Considering the University’s Interest in Addressing the Lingering Effects
of Georgia’s D e J u re Segregated System of Higher Education
In defense of UGA’s consideration of race as a plus factor in admissions,
Intervenors asserted the need to remedy the lingering effects of the de jure segregated
system. While Defendants did not directly assert a remedial justification for their
plan, perhaps out of concern that they might thereby trigger renewed specific Title VI
obligations and OCR oversight, the record demonstrates such a justification
motivating the program.17 No party sought summary judgment disposition of this
issue. Thus, this important defense remained for resolution at trial after the district
defendan ts’ failure to assert this defense directly does not in any way bar
Intervenors from raising it. Courts are not required simply to accept the justification
offered by public actors, but instead may look behind such articulated justifications
to determine the actual purpose or purposes motivating the action. See United States
v. Virginia, 518 U.S. 515, 535 (1998) (Public actors’ “proffered” justification “will
not be accepted automatically.”); City o f Richmond v. Croson, 488 U.S. 469, 493
(1989); Grutter v. Bollinger, 188 F.3rd 394, 401(6* Cir. 1999).
21
court resolved the summary judgment motions.18 The district court erred in entering
judgment for Plaintiffs without addressing the remedial justification asserted in
defense of the program.
Without question, the use of race-conscious measures to remedy fully “deeply
rooted Fourteenth Amendment violations” has been sanctioned by the Supreme Court.
United States v. Paradise, 480 U.S. 149,185 (1987); accord Croson, 488 U.S. at 492-
93. In no area of the law is the Supreme Court’s imprimatur clearer than in
education. In United States v. Fordice, the Court embraced principles enunciated in
a long line of elementary and secondary education cases in holding that states that
operated formerly de jure segregated systems of higher education have a broad,
affirmative duty under both the Fourteenth Amendment and Title VI to dismantle
those systems. 505 U.S. 717 n.7 (1992). Similarly, Title VI regulation 34 C.F.R. §
100.3(b)(6)(i) provides:
In administering a program regarding which the recipient has previously
discriminated against persons on the ground of race, color, or national
origin, the recipient must take affirmative action to overcome the effects
o f prior discrimination.
18Thus, Plaintiffs’ summary judgment motion should appropriately have been
considered only a motion for partial summary judgment on the diversity question.
Intervenors repeatedly raised the remedial issue and it remains unresolved, despite the
lower court’s premature entry of judgment on the merits of the entire case for
Plaintiffs.
22
(emphasis added).19 Moreover, the Court has upheld public school officials’
voluntary use of race-conscious integration measures, because desegregation
“invariably” takes account of race, McDaniel v. Barresi, 402 U.S. 39, 41 (1971), and
has been careful to protect efforts to voluntarily eliminate the effects of racial
discrimination. Thus, establishing a firm basis in evidence for a belief that the
effects of the prior discrimination persist today — an evidentiary burden well short of
that needed to establish liability — would be sufficient to support the voluntary
consideration of race, such as that used by UGA. See Croson, 488 U.S. at 500
(analogizing “strong basis in evidence” test to a “prima facie case of constitutional
or statutory violation”);20 see also 34 C.F.R. Section 100.5(h). The district court
committed clear error in entering judgment for Plaintiffs without addressing this
legally determinative issue.
19Voluntary compliance is central to the approach that Congress envisioned
when it enacted Title VI. See 42 U.S.C. § 2000d-l (a determination that voluntary
compliance cannot be achieved is necessary prior to fund termination proceedings).
20For example, Justice O’Connor recognized the dilemma that public actors
would face if they were required to prove that they had engaged in illegal
discrimination before they could voluntarily engage in affirmative action. This
“would severely undermine public employers’ incentive to meet voluntarily their civil
rights obligations.” Wygantv. Jackson Board o f Education, 476 U.S. 267,290 (1986)
(O’Connor, J.).
23
II. The District Court Erred as a Matter of Law in Ruling that Student
Diversity in a University Setting Can Never Be a Compelling Interest
A. Student Diversity is a Compelling Interest
The Supreme Court has consistently emphasized the vital role of public
schools, including institutions of higher education, in the development and
preparation of citizens for modem society. This was the centerpiece of Brown v.
Board o f Education:
Today, education is perhaps the most important function of state and
local governments. . . . It is required in the performance of our most
basic public responsibilities, even service in the armed forces. It is the
very foundation of good citizenship. Today it is a principal instrument
in awakening the child to cultural values, in preparing him for later
professional training, and in helping him to adjust normally to his
environment.
347 U.S. 483, 493 (1954). Brown relied squarely on decisions involving higher
education, id. at 491-93 (citing McLaurin v. Oklahoma State Regents, 339 U.S. 637
(1950); Sweattv. Painter, 339 U.S. 29 (1950); Sipuelv. University o f Oklahoma, 332
U.S. 631 (1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)); see also
Ambach v. Norwich, 441 U.S. 68, 76 (1979) (educational institutions are central in
“the preparation of individuals for participation as citizens, and in the preservation
of the values on which our society rests.”)
24
In Bakke, Justice Powell recognized two enduring and important functions
served by student diversity, including racial and ethnic diversity, in higher education.
First, u[t]he atmosphere o f ‘speculation, experiment and creation’ - so essential to the
quality of higher education — is widely believed to be promoted by a diverse student
body,” 438 U.S. at 312; second, “the ‘nation’s future depends upon leaders trained
through wide exposure’ to the ideas and mores of students as diverse as this Nation
of many peoples,” id. at 313 (quoting Keyishian v. Board o f Regents, 385 U.S. 589,
603 (1967)).
The Supreme Court has embraced the value of student diversity in the higher
education and elementary and secondary education contexts. In Sweatt v. Painter the
Court recognized
although the law is a highly learned profession, we are well aware that
it is an intensely practical one. The law school . . . cannot be effective
in isolation from the individuals and institutions with which the law
interacts. Few students and no one who has practiced law would choose
to study in an academic vacuum, removed from the interplay of ideas
and the exchange of views with which the law is concerned.
339 U.S. at 634. The Court was particularly troubled by the fact that the petitioner
was isolated from the racial group which comprised 85% of the population of the
State. Id.; see also McLaurin, 339 U.S. at 641 (physically separating petitioner from
the class impaired “his ability to study, to engage in discussions and exchange views
25
with other students, and . . . to learn his profession”). A three-judge district court in
the Louisiana higher education case also recognized the value of racial diversity:
[W]e cannot overlook the socio-economic value of having integration
at the college level. The interaction of the better minds, the exchange
of various thoughts and aspirations, and the contacts made at college are
factors to be considered, for these benefits carry over to the business
world. In other words, there is something to the ‘old boy network.’
Separate colleges for blacks and whites obviously promotes a
continuation of separate societies after graduation.
Unites States v. Louisiana, 692 F.Supp. 642, 657 (E.D. La. 1988), vacated 751
F.Supp. 606 (E.D. La. 1990).21 In North Carolina State Board o f Education v.
Swann, 402 U.S. 43, 45 (1971), the Supreme Court held that
school authorities have wide discretion in formulating school policy, and
. . . as a matter of educational policy school authorities may well
conclude that some kind of racial balance in the schools is desirable
quite apart from any constitutional requirements.
Accord Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1, 16
(1971)(speaking approvingly of deference to school officials pursuing voluntary
racial integration to prepare students to participate in a pluralistic society).
Recognizing that academic freedom "long has been viewed as a special concern
of the First Amendment," 438 U.S. at 312, Justice Powell concluded that a
university’s interest in student diversity furthers this distinct constitutional interest.
2IThe three-judge district court’s decision was vacated pursuant to the Fifth
Circuit decision in Fordice, which was subsequently reversed by the Supreme Court,
505 U.S. 717.
26
Id. at 312-14. In Keyishan, the Supreme Court stated that “[o]ur nation is deeply
committed to safeguarding academic freedom, which is of transcendent value to all
of us 385 U.S. at 603. The Court has repeatedly reaffirmed the central
importance of academic freedom. See Board o f Regents o f the University o f
Wisconsin v. Southworth, 120 S. Ct. 1346, 1356 (2000)(a university “may determine
that its mission is well served if students have the means to engage in dynamic
discussions on philosophical, religious, scientific, social, and political subjects in
their extracurricular campus live outside the lecture hall.”); accord Rosenberger v.
Rector and Visitors o f the University o f Virginia, 515 U.S. 819, 835-36 (1995);
Ambach, 441 U.S. at 77; Healy v. James, 408 U.S. 169, 180-81 (1972).
In Sweezy v. New Hampshire, 354 U.S. 234 (1957), Justice Frankfurter
described academic freedom as follows:
It is the business of a university to provide that atmosphere which is
most conductive to speculation, experiment and creation. It is an
atmosphere in which there prevail ‘the four essential freedoms’ of a
university - to determine for itself on academic grounds who may teach,
what may be taught, how it shall be taught, and who may be admitted to
study.
Id. at 263 (Frankfurter, J., concurring)(citation omitted). Justice Powell drew directly
on this language in Bakke in emphasizing that academic freedom encompasses the
freedom of a university "to determine for itself on academic grounds . . . who may be
admitted to study." 438 U.S. at 312.
27
Giving educators the freedom to pursue educational and citizenship or
democracy benefits through the creation of a diverse student body, including racial
and ethnic diversity, has long been a recognized value and is supported by a wealth
of evidence, including the unrebutted record evidence in this case, {supra at 15-16),
and the recent study by William Bowen and Derek Bok, The Shape o f the River
(1998),22 and Patricia Gurin,“Selections from The Compelling Need for Diversity in
Higher Education, Expert Report in Defense of the University of Michigan,” 32
Equity & Excellence in Education, 36 (September 1999). (R4-48-15). See also Brief
of Amici Curiae American Council on Education, et al., October 10, 2000.
Accordingly, in Ambach v. Norwich, 441 U.S. 68 (1979), the Supreme Court held:
Other authorities have perceived public schools as an “assimilative
force” by which diverse and conflicting elements in our society are
brought together on a broad but common ground. These perceptions of
the public schools as inculcating fundamental values necessary to the
maintenance of a democratic political system have been confirmed by
the observations of social scientists.
Id. at 77-78 (citations omitted).
22Describing the study as the “most rigorous empirical study of affirmative
action in higher education to date,” Interveners cited key findings that attending a
racially diverse institution of higher learning has a profound educational impact on
black and white students. “Among the findings were that students were more likely
to know and have close friends of other races at college, id. at 229-233, more likely
to interact across racial lines after graduation, id. at 240, and more likely to appreciate
the importance of racial understanding. Id. at 228.” (R4- 48-15).
28
The value placed on academic freedom has meant that federal courts have
given significant deference to decisions by educators as to how best to engage and
educate students and to prepare them to be good citizens in our society. See Board
o f Curators v. Horowitz, 435 U.S. 78, 89-90 (1978); Regents o f the University o f
Michigan v. Ewing, 474 U.S. 214, 226 (1985); Bishop v. Wood, 426 U.S. 341, 349
(1976); San Antonio School District v. Rodriguez, 411 U.S. 1, 42-43 (1973).
Justice Powell concluded that student diversity was a compelling interest after
balancing the Equal Protection interest of the Fourteenth Amendment with the
"countervailing constitutional interest" under the First Amendment in academic
freedom. Bakke, 438 U.S. at 313. His opinion made clear that at the compelling
interest stage of strict scrutiny analysis, the rejected applicant's Fourteenth
Amendment rights do not automatically negate or outweigh the university's interest
in student diversity — the "right to select those students who will contribute the most
to the 'robust exchange of ideas.' " Id, at 313. If it finds a compelling interest, the
court proceeds to the narrow tailoring stage of the analysis where it applies strict
scrutiny in analyzing the manner in which the program utilizes race to determine its
ultimate constitutionality.23
23This issue was not reached by the district court and would be appropriate for
consideration on remand.
29
B. Justice Powell’s Opinion in B a k k e Is Controlling
Critically, in Bakke, four Justices (Brennan, White, Marshall, and Blackmun,
JJ.) joined Justice Powell in Part V.C. of his opinion holding - in the absence of proof
of prior discrimination-that “the State has a substantial interest that legitimately may
be served by a properly devised admissions program involving the competitive
consideration of race and ethnic origin.” 438 U.S. at 320.
1. Justice Powell’s B a k k e Rationale Is Binding
Precedent Under M a rk s
Under Marks v. United States, 430 U.S. 188 (1977), “[wjhen a fragmented
Court decides a case and no single rationale explaining the result enjoys the assent
of five Justices, ‘the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest grounds.’” Id. at
193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976)). Applying this
standard, the district court found that Justice Stevens’ opinion, joined by Chief Justice
Burger, and Justices Stewart and Rehnquist, which reached only the validity of the
Davis Medical School’s admissions program under Title VI and declined to consider
whether race could properly be considered under any university admissions policy,
see Bakke, 438 U.S. at 411, supplied the narrowest grounds for the judgment of the
Court. Johnson, 106 F. Supp.2d at 1368-69.
30
The district court erred. Although Justice Powell agreed with Justice Stevens
that the Davis program violated Title VI, he disagreed with Justice Stevens’ view that
this holding fully resolved the case. Justice Powell recognized that in the judgment
under review, the California Supreme Court prohibited the medical school “from
taking race into account in any way in making admissions decisions,” id. at 270 n.+,
and that the Regents attacked this relief as unnecessarily broad even if the Davis plan
were invalid. Justice Powell therefore concluded that the issue whether any
consideration of race in the admissions process is lawful was properly before the
Court for resolution. Id. Four other Justices agreed with Powell on that point. Id. at
325. Thus a different Five-Justice majority determined that the issue of race was
before the Court and supported that part of the Supreme Court’s own judgment that
reversed the judgment of the California Supreme Court insofar as it prohibited the
school from taking race into account at all as a factor in admissions. Id. at 326. It is
that portion of the Bakke judgment that is relevant here.
With respect to that part of the Supreme Court’s judgment, four of the Justices
differed with Powell on how broadly race could be used in university admissions.
Voting to apply an intermediate level of scrutiny, id. at 359, Justices Brennan,
Marshall, Blackmun, and White declined to follow Powell’s reasoning that a non-
remedial consideration of race was constitutional only if it was in service of the
31
university’s goal of providing student diversity for its educational mission. Instead,
the four Justices determined that race could be considered within the broad
framework of remedying societal discrimination, id. at 362, and ultimately concluded
that the Davis program was constitutional, id. at 325-26. Because Justice Powell’s
analysis is narrower than the approach of these four Justices, it supplies the
controlling rationale supporting the Court’s judgment on the questions at issue in this
matter.24
2. The Supreme Court Has Not Retreated from
Justice Powell’s Opinion in B akke
Contrary to the district court’s conclusion, the Supreme Court has not retreated
from Powell’s considered determination that student diversity in the context of higher
education is a compelling governmental interest. In Wygant, 467 U.S. 267, the Court
repudiated a plan to retain minority teachers and lay off non-minorities in order to
provide role models for minority schoolchildren. The plurality opinion, authored by
Justice Powell and joined by Chief Justice Burger and Justice Rehnquist,
distinguished between a permissible hiring goal, which it analogized to a race-based
affirmative action plan in higher education, and the contested layoffs. Id. at 283 n.
24See Smith v. Univ. o f Washington Law School, No. C97-335Z, Order, Feb. 12,
1999, appeal pending, (“Justice Powell’s opinion represents the narrowest grounds
for the Court’s judgment under the Marks analysis, and therefore should be
considered the holding of the [Supreme] Court.”).
32
11. And Justice O’Connor, in her concurrence, observed that “a state interest in the
promotion of racial diversity has been found sufficiently ‘compelling,’ at least in the
context of higher education, to support the use of racial considerations in furthering
that interest.”25 Id. at 286 (O’Connor J., concurring).
Similarly, although Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995),
overruled the holding of Metro Broadcasting, Inc. v. Federal Communications
Commission, 497 U.S. 547 (1990), that benign racial classifications mandated by
Congress should be subject to intermediate scrutiny, Adarand, 515 U.S. at 233-34,
it did not address, much less disturb, Powell’s opinion that student diversity in higher
education is a compelling state interest, id. at 257-58 (Stevens, J., dissenting). In
Croson, 488 U.S. 469, involving contracting, there are dicta suggesting that the
consideration of race should be limited to the remedial context, but the Court did not
“reach the issue of whether a non-remedial purpose could constitute a compelling
government interest.” Brewer v. West Irondequoit Central School District, 212 F.3d
738, 748 (2nd Cir. 2000).
25 Justice O’Connor also refused to rule out non-remedial justifications for race-
conscious affirmative action policies, concluding that “nothing the Court has said
today necessarily forecloses the possibility that the Court will find other
governmental interests . . . to be sufficiently . . . ‘compelling’ to sustain the use of
affirmative action policies.” Id. at 286 (O’Connor J., concurring).
33
3. Lower Courts Consistently Have Adhered To Justice Powell’s
Opinion in B a k k e
Apart from the Fifth Circuit in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996),
cert, denied, 518 U.S. 1033 (1996), no other Circuit has concluded that student
diversity is not a compelling interest,26 and many federal courts confronting this issue
have expressly adopted the diversity rationale.27 In addition, many universities and
26See Brewer, 212 F.3d at 748 (“[T] he Fifth Circuit is the only circuit since
Bakke to hold that a non-remedial state interest, such as diversity, may never justify
race-based programs in the educational context.”); c f Hunter v. Regents o f the Univ.
o f California, 190F.3d 1061,1064 (9th Cir. 1999), cert, denied, 69USLW 3110 (U.S.
Oct. 2, 2000) (“The Supreme Court has never held that only a state’s interest in
remedial action can meet strict scrutiny.”). Moreover, the Fifth Circuit has not yet
had the final word on this issue as the case once again is before the Court on the
question whether the district court erred on remand in barring any consideration of
race in the admissions process. See Hopwood v. Texas, 999 F. Supp. 872 (W.D. Tex.
1998), appeal docketed, No. 98-50506 (5th Cir. June 1, 1998).
21 See, e.g., Boston’s Children First v. City o f Boston, 62 F. Supp. 2d 247, 258,
259 (D. Mass. 1999); Smith v. Univ. o f Washington Law School, 2 F. Supp.2d 1324,
1334 (W.D. Wash. 1998); McLaughlin by McLaughlin v. Boston School Committee,
938 F. Supp. 1001, 1014 (D. Mass. 1996); Davis v. Halpern, 768 F. Supp. 968, 975
(E.D.N.Y. 1991). Courts have also approved non-remedial justifications for race
conscious action outside of the educational context. See Metro Broadcasting, Inc.
v. Federal Communications Commission, 497 U.S. 547; Wittmer v. Peters, 87 F.3d
916, 918 (7th Cir. 1996), cert, denied, 117 S. Ct. 949 (1997); Higgins v. City o f
Vallejo, 823 F.2d351,357 (9* Cir. 1987); Talbert v. City o f Richmond, 648 F.2d925,
931-32 (4th Cir. 1981); Patrolmen’s Benevolent Ass ’n v. City o f New York, 74 F.
Supp.2d 321, 329 (S.D.N.Y. 1999); Officers for Justice v. Civil Seiwice Comm ’n o f
the City and County o f San Francisco, Nos. C-73-Q657 RFP, C-77-2884 RFP
(consolidated), 1991U.S. Dist. LEXIS 8259, at *13, (N.D. Ca. June 6, 1991); but see
Lutheran Church-Missouri Synod v. Federal Communications Comm ’n, 141 F.3d 344
(D.C. Cir. 1998); Taxman v. Board ofEduc. o f Township ofPiscataway, 91 F.3d 1547
(continued...)
34
colleges have relied on Bakke in devising admissions programs to cultivate student
diversity on their campuses,27 28 and federal agencies have followed Justice Powell’s
opinion as well.29
Whatever the district court’s view of the vitality of Justice Powell’s opinion,
it is not the prerogative of a lower court to declare that a Supreme Court ruling is not
binding precedent. See Hopwood, 78 F.3d at 963 (opinion of Weiner, J., specially
concurring) (“If Bakke is to be declared dead, the Supreme Court, not a three-judge
panel of a circuit court, should make that pronouncement.”); Eisenberg v.
Montgomery County Public Schools, 197 F.3d 123, 130 (4th Cir. 1999); Tuttle v.
Arlington County School Board, 195 F.3d 698, 705 (4th Cir. 1999). The Supreme
Court spoke to this question in Rodriguez de Quijas v. Shear son/American Express,
Inc., 490 U.S. 477, 484 (1989):
If a precedent of this Court has direct application to a case, yet appears
to rest on reasons rejected in some other line of decisions, [lower courts]
27(... continued)
(3rd Cir. 1996).
2SSee Michael A. Olivas, Affirmative Action: Diversity o f Opinions,
Constitutional Criteria: the Social Science and Common Law o f Admissions
Decisions in Higher Education, 68 U.COLO.L.REV. 1065, 1066 (Fall, 1997)
(describing Justice Powell’s decision in Bakke as “a primer that has lasted nearly two
decades and has become thoroughly enmeshed in the millions of admissions decisions
that are made each year”).
2959 Fed. Reg. 8756, 8759-8762 (1994).
35
should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.
See also Hohn v. US., 524 U.S. 236, 252-53 (1998); State Oil v. Khan, 523 U.S. 3,
20 (1997); Agostini v. Felton, 521 U.S. 203, 237-38 (1997). At a minimum, the
proper course for a lower court is to leave to the Supreme Court the task of
determining whether a plurality opinion is binding precedent. See Wessman, 160
F.3d at 796; Boston’s Children First, 62 F. Supp.2d at 259 n.27. In failing to exercise
such restraint, the district court exceeded the scope of its authority, and its judgment
must be reversed.
III. The District Court Erred In Granting Summary Judgment to Plaintiffs
When There Were Disputed Factual Issues Regarding Defendants’
Purpose in Considering Race As a Factor in the Admissions Process
The notion that UGA was pursuing “proportional representation” with an
admissions program that produced approximately 5-6% African Americans in
entering classes, only a small portion of whom benefitted from the plus factor for
race, in a state that is 30% black with a qualified pool of high school graduates that
is from 13 to 17% African-American seems obviously wrong. Nonetheless, the
district court accepted Plaintiffs’ rhetorical argument that UGA’s diversity rationale
was really just a means of pursuing proportional representation. Johnson, 106
F.Supp.2d at 1371, 1373. This was a key contention advanced by Plaintiffs and
36
specifically disputed by Defendants, who cited the unrebutted testimony of former
President Knapp, President Adams, and the Director of Undergraduate Admissions,
Nancy McDuff. (RIO-149-6-9).
Plainly, the district court’s analysis of this issue was tainted by its failure even
to consider the remedial interests expressed by university officials: to the extent that
those officials spoke generally of the desire to have representativeness and to be
inclusive, it was against the backdrop of exclusion of African Americans from
Georgia’s flagship higher education institution for more than a century. Surely, the
Constitution does not forbid official sensitivity to the perceived harmful effects of
such exclusion. The benchmark for progress in remedying the exclusion properly
includes consideration of the gross underrepresentation of black Georgians at UGA.
See e.g. Croson, 488 U.S. at 500 (strong basis in evidence shown by a prima facie
case of discrimination). Had the district court not erred in failing to acknowledge that
there were several purposes motivating UGA’s consideration of race, it would have
been able to view the comments in the full context of the university’s goals.30 Thus
the court erred in concluding that UGA was pursuing proportional representation. At
30See Reeves v. Sanderson Plumbing Prod., 530 U .S . , 147L.Ed.2d 105, 121
(2000)(“In the analogous context of summary judgment under Rule 56, we have
stated that the Court must review the record ‘taken as a whole. ’”) (quoting Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
37
the very least, there is a genuine factual issue as to UGA’s purpose that warrants a
remand for trial.
The district court also erred in finding that the university’s diversity rationale
was invalid because it “presumes, stereotypically, that all members of a particular
minority race will think, act, etc. differently from whites.” Johnson, 106 F.Supp.2d
at 1373-74. There is no evidence that that was the case. Rather, as President Adams
testified, “when you have a broad representation from different backgrounds and
cultures you are more likely to have a diversity of experience and a diversity of
opinion.” (Doc 140 - Pgs 48,49; see also 107-08). Here again, the record evidence
is contrary the district court’s findings, which on Plaintiffs’ summary judgment
motion requires the district court to view it in the light most favorable to the non
moving parties - Defendants and Intervenors. See Anderson v. Liberty Lobby, Inc.,
A ll U.S. 242, 255 (1986). Moreover, had the district court allowed Intervenors’ to
build a record regarding the history of discrimination against African Americans, that
history would have informed its judgment about the salience of race in a segregated
society with a discriminatory history like Georgia’s. The district court erred in
granting Plaintiffs summary judgment given the record evidence proffered by
Defendants disputing Plaintiffs’ naked arguments and given Intervenor’s explicit
38
announcement of their desire to present evidence, after discovery, on the remedial
justification issue.
IV. The District Court Abused Its Discretion in Denying Intervenors’ Motion
to Enter a Special Case Management Scheduling Order, or, in the
Alternative, Extend the Discovery Schedule
This case involves complex constitutional issues of significant importance. In
the district court a broad array of procedural motions were raised by all parties which
created confusion about the scope and viability of Plaintiffs’ remaining claims31 and
the discovery timeline.32 In the midst of these proceedings Plaintiffs filed an
interlocutory appeal to this Court, which was fully briefed. All of this occurred in the
span of less than three months and two weeks for Intervenors and in the context of
the State making clear that it would not develop a factual record on the remedial or
diversity rationales. UGA took the position that the facts were largely undisputed and
that the issues to be resolved were legal ones. For Intervenors, who were allowed to
31(See R8-114-3 n.2) (March 30,2000 Order) (“Re-filing [motions for summary
judgment] will benefit both the Court and the parties because plaintiffs undoubtedly
will update their motions in light of this Court’s recent Orders and the ever-evolving
legal landscape surrounding this case.”).
32(R7-103-l-2) (Defendant-Intervenors’ Motion to Stay Expert Discovery and
the Joint Status Report and Memorandum of Law in Support) (“Because the scope of
the claims in this case will be defined once all parties have had the chance to brief the
Court and the Court has had the opportunity to resolve such outstanding issues, expert
discovery and the deadline for filing the Joint Status Report should be stayed pending
the additional briefing requested by the Court and the Court’s ruling on such
motion.”)).
39
participate in the case beginning on December 15,2000, the original scheduling order
set an unrealistic timetable33 — in effect giving the Intervenors slightly over three
months to develop a comprehensive, fact-intensive record while keeping pace with
the numerous motions filed in the case. See supra at 4-8.
Seeking to develop a record on the remedial and diversity rationales for the
University’s admissions policy, on February 8, 2000, the Intervenors moved for a
special case management order, or, in the alternative, to extend the discovery
schedule for three months. (R8-96). The need to develop the factual record was real.
In the remedial context, for example, a court looks for a strong evidentiary basis
supporting the consideration of race by governmental actors. See Croson, 488 U.S.
at 500; Wygant, 476 U.S. at 276 (describing need for “particularized findings”). In
the diversity context, some courts regard the nature of the state’s diversity interest as
a mixed question of law and fact34 and the narrow tailoring inquiry is also fact
intensive.35
On March 30, 2000, the district court denied the motion. Citing its February
9 order decertifying the plaintiff class and dismissing Plaintiffs’ claims for
33(R7-97-3, Exhibits B, C, D (describing significantly longer discovery period
afforded to parties in comparable case involving University of Michigan)).
34 See Hunter, 190 F.3d 1061; Davis, 768 F. Supp. 968.
35 See e.g., Tuttle, 195 F.3d at 706.
40
prospective injunctive relief, the court asserted that only the Plaintiffs’ individual
claims remained, (R8-114-2), and, therefore, that the case was “greatly simplified],”
and the facts were, “largely undisputed and uncomplicated,” (id. at 8). In concluding
that the case was “greatly simplified,” the court did not address the remedial rationale
Intervenors repeatedly raised in defense of the program, (R8-114; R4-48-16-1 8; R7-
105). The district court further asserted that “previous legal challenges [had]
accorded intervenors’ counsel ample time with which to acquaint themselves with the
facts and law driving plaintiffs’ claims.” (R8-114-8) (emphasis added).36
In denying the motion, the district court severely prejudiced Intervenors’ ability
to adduce specific evidence in support of their defense of the program. Not only did
the district court fail to address the remedial justification in its entirety, the absence
of a remedial record adversely affected the district court’s view of the University’s
purpose in considering race, see supra Section III. Furthermore, in explaining its
rejection of the diversity justification in its decision, the district court asserted that the
Board failed “‘to meaningfully show how [racial diversity] actually fosters
educational benefits.’” See Johnson, 106 F. Supp.2d at 1371. Intervenors were
36Intervenors are not entitled to any less discovery simply because their counsel
participated in a related case. C f McKinney v. Alabama, 424 U.S. 669,675-76 (1976)
(subsequent party must be in privity with earlier party to be bound by earlier
judgment,); Dills v. City o f Marietta, Ga., 674 F.2d 1377, 1379-80 (11th Cir. 1982)
(same).
41
undoubtedly harmed by the district court’s refusal to grant the short extension of
discovery and contend that the district court abused its discretion in denying that
reasonable request. SeeMajd-Pourv. Georgiana Community Hospital, Inc., 724 F.2d
at 903 (“[W]e hold that the district court’s dismissal without affording the plaintiff
any opportunity to proceed with reasonable discovery was premature and an abuse
of the court’s discretion.”). Intervenors respectfully request that this Court vacate the
judgment below and remand the case with instructions to grant Intervenors a fair
opportunity to build a record in support of their position in the case.
42
CONCLUSION
For the reasons stated above, Intervenors respectfully request that this Court
vacate and/or reverse the judgment of the district court with respect to the
consideration of race and remand the case with directions to allow Intervenors
adequate time to complete discovery in the case.
Respectfully submitted,
I. KENNETH DIOUS
Kenneth Dious & Associates
115 Sycamore Drive, Suite B 1
Athens, Georgia 30606
(706) 546-9013
JOHN M. CLARK
8 North Oliver Street
Old First National Bank Building
Suite 409
Elberton, Georgia 30635
(706)283-9732
ELAINE R. JONES
THEODORE M. SHAW
NORMAN J. CHACHKIN
DENNIS D. PARKER
ELISE C. BODDIE
NAACP Legal Defense
& Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
(212) 965-2200
JANELL M. BYRD
NAACP Legal Defense
& Educational Fund, Inc.
14441 Street, NW, 10th Floor
Washington, D.C. 20005
(202) 682-1300
43
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in
FRAP 32(a)(7)(B). This brief contains 10,385 words.
NAACP Legal Defense
& Educational Fund, Inc.
1444 Eye Street, N.W.,
Tenth Floor
Washington, D.C. 20005
(202) 682-1300
CERTIFICATE OF SERVICE
This is to certify that I have this 1 9 ^ day of October, 2000, served two
corrected copies of the Brief on Appeal of Defendant-Intervenors, Antione Hester,
et ah, on counsel for each of the parties to this appeal by placing the same in the
United States Mail, first-class, with adequate postage affixed thereto, properly
addressed as follows:
John R. Tatum,
Hunter, Maclean, Exley & Dunn, P.C.
200 East St. Julian Street
P.O. Box 9848
Savannah, GA 31412
A. Lee Parks
Parks, Chesin, Walbert &
Miller, P.C.
2600 The Grand
75 Fourteenth Street
Atlanta, GA 30309
Thurbert E. Baker
Dennis R. Dunn
Office of the Attorney General
40 Capitol Square, SW.
Atlanta, GA 30334-1300
Mark H. Cohen
Michael D. Kaufman
Special Assistant Attorneys General
Troutman Sanders LLP
600 Peachtree Street, NE, Suite 5200
Atlanta, GA 30308-2216
Assistant Counsel
NAACP Legal Defense &
Educational Fund, Inc.
1444 Eye Street, NW, Tenth Floor
Washington, D.C. 20005