Hopwood v. Texas Brief for Proposed Intervenors-Appellants

    No. 94-50083

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

CHERYL J. HOPWOOD, et al.,

Plaintiffs-Appellees,

V.

STATE OF TEXAS, et a l,

Defendants-Appellees,

and

THURGOOD MARSHALL LEGAL SOCIETY and BLACK PRE-LAW ASSOCIATION,

Proposed Intervenors-Defendants-Appellants.

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

BRIEF FOR PROPOSED INTERVENORS-APPELLANTS

Janell M. Byrd 
NAACP Legal Defense & 

Educational Fund, Inc.
1275 K Street, N.W., Suite 301 
Washington, D.C. 20005 
(202) 682-1300

D avid Van Os 
Van Os & Owen 

900 Congress Avenue 
Suite 400 
Austin, TX 78701 
(512) 479-6155 
Texas Bar No. 20450700

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Alan Jenkins 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900

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

Counsel for Proposed Intervenors-Appellants



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS....................................................................  i

STATEMENT REGARDING ORAL A RG UM ENT............................................................. iii

STATEMENT OF JURISDICTION ....................................................................................  1

STATEMENT OF THE ISSUE PRESENTED ..................................................................  1

STATEMENT OF THE CASE .............................................................................................  1

I. Proceedings Below........................................................................................................  1
II. Statement of Facts........................................................................................................  4

A. The Proposed Intervenors...............................................................................  4
1. Black Pre-Law Association.................................................................. 4
2. Thurgood Marshall Legal Society......................................................  5

B. History of Discrimination Against
African-American Students By the Defendants ...........................................  7

SUMMARY OF A RG U M EN T.................................................................................  10

ARGUMENT ..........................................................................................................................  13

I. THE DISTRICT COURT ERRED IN DENYING THE MOTION TO
INTERVENE...............................................................................................................  13

A. The District Court Erred in Concluding that the Defendants Would
Adequately Represent the Proposed Intervenors’ In terests.........................  14

1. Proposed Intervenors’ Interests Are Adverse to Those of the
Defendants ........................................................................................... 15
a. Defendants Have a Long History of Adversity Against 

African-American Students as to the Very Issues in
Question in This S u it.................................................................  15

b. Defendants’ Interests As Public Officials and Institutions
Differ From Those of African-American Students ...............  16

2. Denial of Intervention is Particularly Improper Where, As 
Here, The Beneficiaries of a Remedial Affirmative Action 
Policy Seek to Defend That Policy As a Lawful Response to
Past Discrimination by the Defendant...............................................  18

3. Proposed Intervenors’ Intend to Advance Important Arguments
in Defense of the Plan that the Defendants Will Not M ake............ 20

B. History of Discrimination Against African-American Students
By the Defendants .............................................................................................  7

C. The Proposed Intervenors Established, and the District Court did Not
Challenge, the Other Requirements for Intervention as of Right .............. 21



1. The Proposed Intervenors Have a Direct Interest in the Law
School’s Admissions Policy .................................................................. 22

2. The Proposed Intervenors’ Ability to Protect Their Interests 
will be Impaired if this Action is Allowed to Proceed Without
Their Participation...............................................................................  26

3. The Proposed Intervenors’ Application Was Timely .......................  28

D. Considerations of Judicial Economy Dictate That TMLS and BPLA
Be Granted Intervention.................................................................................. 29

II. THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING
PERMISSIVE INTERVENTION.............................................................................  30

CONCLUSION........................................................................................................................  32

CERTIFICATE OF SERVICE .............................................................................................  33



TABLE OF AUTHORITIES

Cases: Pages:

Adams v. Bell,
Civ. No. 3095-70 (D.D.C. Mar. 24, 1983) ..................................................................  3

Adams v. Hufstedler,
Civ. No. 70-3095 (D.D.C. Dec. 17, 1980) ......................................................... 3, 9, 27

Adams v. Richardson,
356 F. Supp. 92 (D.D.C.), modified and affid 
en banc, 480 F.2d 1159 (D.C. Cir.
1973) ........................................................................................................................  9, 10

Associated General Contractors v. City of New Haven,
130 F.R.D. 4 (D.Conn. 1990) ....................................................................................  20

Associated General Contractors v. San Francisco,
35 Empl. Prac. Dec. 34,919 (N.D.Cal. 1985).............................................................  20

Associated General Contractors v. Secretary of
Commerce, 459 F. Supp. 766 (C.D.Cal 1978) . ! ..................................................  20

Atlantis Development Corp. v. United States,
379 F.2d 818 (5th Cir. 1967) ........................................................................  11, 26, 31

In re Birmingham Reverse Discrimination Litigation,
833 F.2d 1492 (11th Cir. 1987).................................................................................... 24

Borders v. Rippy,
247 F.2d 268 (5th Cir. 1957) ........................................................................................  7

Brown v. Board of Education,
347 U.S. 483 (1954) ........................................................................................  8, 16, 21

Bush v. Vitema,
740 F.2d 350 (5th Cir. 1984) ........................................................................  13, 14, 15

Cascade Nat. Gas Corp. v. El Paso Nat. Gas Co.,
386 U.S. 129 (1967) .................................................................................................... 13

Chiles v. Thornburgh,
865 F.2d 1197 (11th Cir. 1989)....................................................................................  18

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ............................................................................................. 18, 19



24
Cohn v. EEOC,

569 F.2d 909 (5th Cir. 1978) ..................

Contractors Association of Eastern Pennsylvania,
Inc. v. Philadelphia,
No. 89-2737 (E.D.Pa. July 31, 1989) ........................................................................  20

Diaz v. Southern Drilling Corp.,
427 F.2d 1118 (5th Cir.), cert denied, 400
U.S. 878 (1970) ..........................................................................................................  13

Dimond v. District of Columbia,
792 F.2d 179 (D.C. Cir. 1986) .................................................................................... 28

Federal Savings and Loan v. Falls Chase Special 
Taxing District,
983 F.2d 211 (11th Cir. 1993) .................................................................................... 29

Feller v. Brock,
802 F.2d 722 (4th Cir. 1986) ......................................................................................  27

Flax v. Potts,
204 F. Supp. 458 (N.D.Tex. 1962) ...............................................................................  7

Flax v. Potts,
725 F. Supp. 322 (N.D.Tex. 1989) ...............................................................................  7

Florida Gen. Contractors v. Jacksonville,
508 U.S.__ , 124 L. Ed. 2d 586 (1993)......................................................................  23

Franklin v. Gwinnett County Public Schools,
503 U.S.__ , 117 L. Ed. 2d 208 (1992)......................................................................  21

Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) .................................................................................................... 25

Henry v. First National Bank of Clarksdale,
595 F.2d 291 (5th Cir. 1979), cert denied,
444 U.S. 1074 (1980)...................................................................................................  29

Hines v. D’Artois,
531 F.2d 726 (5th Cir. 1976) ......................................................................................  15

Hodgson v. United Mine Workers,
473 F.2d 118 (D.C. Cir. 1972) ....................................................................................  28

4



Houston Independent School District v. Ross,
282 F.2d 95 (5th Cir.), cert denied,
364 U.S. 803 (1960)........................................................................................................  7

Howard v. McLucas,
782 F.2d 956 (11th Cir. 1986) .................................................................................... 24

Hunt v. Washington State Apple Advertising Commn.,
432 U.S. 333 (1977) .................................................................................................... 25

Jansen v. City of Cincinnati,
904 F.2d 336 (6th Cir. 1990) ...............................................................................  19, 20

Kneeland v. National Collegiate Athletic Assn.,
806 F.2d 1285 (5th Cir. 1987) .................................................................................... 18

Knight v. Alabama,
No. 92-6160 (11th Cir. Fed. 24, 1994) ...............................................................  11, 24

McDonald v. E. J. Lavino Co.,
430 F.2d 1065 (5th Cir. 1970) .............................................................................  13, 31

Meek v. Metropolitan Dade County,
985 F.2d 1471 (11th Cir. 1993)......................................................................  15, 18, 19

Miller v. Amusement Enterprises, Inc.,
426 F.2d 534 (5th Cir. 1970) ...............................................................................  13, 29

NRDC v. Costle,
561 F.2d 904 (D.C. Cir. 1977) .................................................................................... 28

New York Public Interest Research Group v. Regents 
of the University of State of New York,
516 F.2d 350 (2d Cir. 1975) ......................................................................... 18, 25, 26

Nuesse v. Camp,
385 F.2d 694 (D.C. Cir. 1967) ....................................................................................  27

Piambino v. Bailey,
610 F.2d 1306 (5th Cir. 1980) ........................................................................ .. . 13, 28

Podberesky v. Kirwan,
838 F. Supp. 1075 (D.Md. 1993)........................................................................... 19, 21

Podberesky v. Kirwan,
956 F.2d 52 (4th Cir. 1992) .................................................................................. 19, 26

5



Ross v. Houston Indep. School Dist.,
699 F.2d 218 (5th Cir. 1983) ........................................................................................  7

Sagebrush Rebellion, Inc. v. Watt,
713 F.2d 525 (9th Cir. 1983) ......................................................................................  20

Scotts Valley Band of Pomo Indians v. United States,
921 F.2d 924 (9th Cir. 1990) ......................................................................................  13

Sierra Club v. Robertson,
960 F.2d 83 (8th Cir. 1992) ........................................................................................  29

Smith Petroleum Service, Inc. v. Monsanto Chemical
Co., 420 F.2d 1103 (5th Cir. 1970) ........................................................................  28

Stallworth v. Monsanto Co.,
558 F.2d 257 (5th Cir. 1977) ............................................................................... passim

Sweatt v. Painter,
339 U.S. 629 (1950) .................................................................................... 7, 8, 21, 22

Tasby v. Edwards,
807 F. Supp. 421 (N.D.Tex. 1992) ...................................................................... ........  7

Trbovich v. United Mine Workers,
404 U.S. 528 (1972) ............................................................................................. 14, 17

United Airlines, Inc. v. McDonald,
432 U.S. 385 (1977) .................................................................................................... 28

United States v. Fordice,
505 U.S.__ , 120 L. Ed. 2d 575 (1992)...............................................................  10, 24

United States v. Oregon,
839 F.2d 635 (9th Cir. 1988) ......................................................................................  26

United States v. State of Texas,
321 F. Supp. 1043 (E.D.Tex 1970) ...............................................................................  7

United States v. State of Texas,
330 F. Supp. 235 (E.D.Tex. 1970), affid with 
modifications, 447 F.2d 441 (5th Cir. 1971), cert
denied, 404 U.S. 1016 (1972) ........................................................................................  7

United States v. Texas Educ. Agency (AISD),
467 F.2d 848 (5th Cir. 1972) ........................................................................................  7

6



Women’s Equity Action League v. Cavazos,
906 F.2d 742 (D.C. Cir. 1990) ...............................................................................  9, 10

Wygant v. Jackson Board of Education,
476 U.S. 267 (1986) ...................................................................................................  19

Statutes and Rules: Pages:

28 U.S.C. § 1291 ........................................................................................................................  1

28 U.S.C. § 1331(a) ...................................................................................................................  1

28 U.S.C. § 1343(3) ...................................................................................................................  1

28 U.S.C. § 1343(4) ...................................................................................................................  1

29 U.S.C. § 482(b)   17

29 U.S.C. § 483 ............................................................................................................   17

34 C.F.R. § 100.3(b)(6)(i) ........................................................................................................  9

42 U.S.C. § 1981 .................................................................................................................  1, 4

42 U.S.C. § 1983 ...................................................................................................................  1, 4

42 U.S.C. § 2000d ...................................................................................................................... 1

Fed. R. Civ. P. 24 ...................................................................................................................  29

Fed. R. Civ. P. 24(a) .......................................................................................................... passim

Fed. R. Civ. P. 24(b), ...................................................................................................... 30, 31

Miscellaneous: Pages:

7C C. Wright, A. Miller & M. Kane, Federal
Practice and Procedure § 1904 (2nd ed. 1986) ..................................................  13, 25

A. Duren, Overcoming: A History of Black Integration
at the University of Texas at Austin 4 (1979) ......................................................... 8 ,9



No. 94-50083

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

CHERYL J. HOPWOOD, et al.,

Plaintiffs-Appellees,

v.

STATE OF TEXAS, et a l,

Defendants-Appellees,

and

THURGOOD MARSHALL LEGAL SOCIETY and BLACK PRE-LAW ASSOCIATION,

Proposed Intervenors-Defendants-Appellants.

On Appeal from the 
United States District Court 

for the Western District of Texas

BRIEF FOR PROPOSED INTERVENORS-APPELLANTS

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel certifies that the following listed persons have an interest in 

the outcome of this case. These representations are made in order that the Judges of this 

Court may evaluate possible disqualification or recusal.

1. The plaintiffs in this action: Cheryl J. Hopwood, Douglas W. Carvell, Kenneth

R. Elliott, and David A. Rogers.



2. Counsel for the plaintiffs: Terral R. Smith, Steven W. Smith, Michael P. 

McDonald, Joseph A. Wallace, Paul J. Harris, and R. Kenneth Wheeler.

3. The defendants in this action: The State of Texas; The University of Texas 

Board of Regents; Board of Regents members Bernard Rapopart, Ellen C. Temple, Lowell H. 

Lebermann, Jr., Robert J. Cruikshank, Thomas O. Hicks, Zan W. Holmes, Jr., Tom Loeffler, 

Mario E. Ramirez, and Martha E. Smiley, The University of Texas at Austin; Robert M. 

Berdahl, President of the University of Texas at Austin; The University of Texas School of Law, 

Mark G. Yudof, Dean of the University of Texas School of Law, and Stanley M. Johanson, 

Assistant Dean of the University of Texas School of Law.

4. Counsel for the defendants: Harry M. Reasoner, Betty Owens, Barry D.

Burgdorf, R. Scott Placek, Samuel Issacharoff, Charles Alan Wright, and Javier Aguilar.

5. The proposed intervenors-appellants: The Thurgood Marshall Legal Society and 

the Black Pre-Law Association of the University of Texas at Austin.

6. Counsel for the proposed intervenors-appellants: Elaine R. Jones, Theodore M. 

Shaw, Norman J. Chachkin, Janell M. Byrd, Alan Jenkins, Anthony P. Griffin, and David 

Van Os.

Attorney of Record for Proposed 
Intervenor^A^pellants

u



STATEMENT REGARDING ORAL ARGUMENT

Proposed intervenors-appellants hereby request that this case be set for oral argument 

unless the Court summarily reverses the order entered below. This appeal affects the rights of 

African-American students attending or seeking admission to the University of Texas School 

of Law and presents important questions concerning the circumstances under which these 

students may assert their rights and interests in the federal courts. Appellants believe that oral 

argument will be valuable to the Court.

111



STATEMENT OF JURISDICTION

The Amended Complaint in this action states claims under 42 U.S.C. §§ 1981,1983, and 

2000d, and asserts subject matter jurisdiction under 28 U.S.C. §§ 1331(a) and 1343(3) and (4). 

This is an appeal from an order denying proposed intervenors’ motion for intervention on 

Januaiy 19,1994. Proposed intervenors filed a timely notice of appeal from the order denying 

their Motion to Intervene on January 27, 1994. This Court’s jurisdiction is conferred by 28 

U.S.C. § 1291.

STATEMENT OF THE ISSUE PRESENTED

Was it proper to deny a timely motion for intervention filed by two organizations 

representing African-American students at the University of Texas in an action brought by 

white persons seeking to enjoin any consideration of race in the admissions process of the 

University’s law school, where Texas for more than a century operated its entire educational 

system on a de jure segregated basis and has never been found by any court or administrative 

agency to have eliminated completely the vestiges of that segregation?

STATEMENT OF THE CASE

I. Proceedings Below

In this case, unsuccessful white applicants to the University of Texas School of Law (the 

"Law School") challenge the Law School’s admissions policy as racially discriminatory in 

violation of 42 U.S.C. §§ 1981 and 1983, and Title VI of the Civil Rights Act of 1964 (Title VI), 

42 U.S.C. § 2000d. Specifically, plaintiffs challenge the consideration of race by the Law School 

as part of a remedial policy of affirmative action in admissions. Defendants are the State of 

Texas, the Board of Regents of the University of Texas, University of Texas at Austin,

1



University of Texas School of Law, and various officials of those institutions and governing 

bodies. Proposed intervenors-appellants Thurgood Marshall Legal Society ("TMLS") and Black 

Pre-Law Association ("BPLA") are organizations of African-American students at the Law 

School and undergraduate college of the University, respectively, who seek to intervene in this 

action in order to protect their interest in an affirmative action admissions policy (collectively, 

"proposed intervenors").

Plaintiffs filed their first complaints on September 29 ,19921 and April 23, 1993.2 After 

limited discovery addressing only the issues of standing and ripeness, defendants moved for 

summary judgment on those grounds on August 13,1993. The district court denied defendants’ 

motion on October 28,1993, and on November 18,1993 the district court authorized the parties 

to begin discovery on the merits. The first exchange of documents on the merits phase of the 

case did not begin until December 18, 1993.

Proposed intervenors filed a Motion to Intervene on January 5,1994. In support of the 

motion, they described in detail their direct legal interest in the existing admissions program, 

and in the elimination of the vestiges of past discrimination by the Law School and University. 

[Memorandum in Support of Motion to Intervene at 8-11] Record ("R.") 642-5.3 Moreover, 

proposed intervenors explained that their ability to protect their interests would be impaired 

if this action were allowed to proceed without their participation, icL at 11-12, and stressed that, 

given the defendants’ history of discrimination against African-Americans and continuing 

adversity of interests with the proposed intervenor organizations and their members, the

'Complaint of Cheryl Hopwood and Stephanie C. Haynes.

2Complaint of Plaintiffs Carvell, Elliott, Arnold, Rogers and Armstrong.

References to the record ("R.") are derived from the civil docket sheet provided to 
proposed intervenors by the Clerk of the United States District Court for the Western District 
of Texas.

2



existing parties could not adequately represent proposed intervenors’ interests in this case. Id  

at 13-15. Finally, proposed intervenors established that their application was timely (coming 

immediately after denial of the motion for summary judgment and at the beginning of discovery 

on the merits); that they would be well represented by counsel; and that, in addition to 

intervention as of right, permissive intervention was appropriate. Id  at 15-17.

Also in support of the motion, proposed intervenors included as exhibits: (1) the 

declarations of the student officers of the proposed intervenor organizations; (2) the 

constitutions and bylaws of those organizations; (3) excerpts from the University of Texas’ 

Educational Opportunity plans (compiled for the U.S. Department of Education/Health 

Education and Welfare ("HEW") as part of the University’s desegregation obligations); (4) the 

district court’s unpublished order in Adams v. Hufstedler, Civ. No. 70-3095 (D.D.C. Dec. 17, 

1980), requiring HEW to issue orders of compliance or noncompliance with Title VI as to the 

Texas System of Higher Education; and (5) the district court’s unpublished order in Adams v. 

Bell, Civ. No. 3095-70 (D.D.C. Mar. 24, 1983), noting that Texas had failed to eliminate the 

vestiges of its racially dual system and requiring the Department of Education to commence 

formal Title VI proceedings against Texas. [Exhibits A-F, Memorandum in Support of Motion 

to Intervene] (R. 654-725).

The Defendants filed a response stating that they did not oppose the motion to 

intervene. On January 14, 1994, Plaintiffs filed a three-page "Response to Motion to 

Intervene," opposing the motion. [Plaintiffs’ Response to Motion to Intervene at 1-2] (R. 739- 

39). Plaintiffs’ Response did not include a brief and cited no legal authority in support of its 

assertions. Nor did it include any supporting declaration or other factual proffer.

On January 19,1994, the district court issued an order denying the motion to intervene. 

The court concluded that TMLS and BPLA could not intervene as a matter of right because

3



they failed to demonstrate that their legal interests would not be adequately represented by the 

State Defendants. [Order Denying Motion to Intervene at 4] (R. 746). As to permissive 

intervention, the district court did not dispute that proposed intervenors had shown an 

independent ground for jurisdiction, that the motion was timely, or that proposed intervenors’ 

defenses and the main action have a question of law or fact in common; rather, the court 

concluded that "adding the prospective intervenors as defendants at this juncture in the lawsuit 

would needlessly increase cost and delay disposition of the litigation." Id. at 5.

Plaintiffs filed an amended complaint on February 1, 1994, adding several parties and 

reasserting claims under Title VI and 42 U.S.C. §§ 1981 and 1983. [First Amended Complaint] 

(R. 785-808).

II. Statement of Facts

A. The Proposed Intervenors

1. Black Pre-Law Association

The Black Pre-Law Association of the University of Texas at Austin is an organization 

of African-American undergraduate students with an interest in attending law school.4 The 

organization was founded in 1987 and has approximately twenty members. BPLA’s chief 

organizational goal is to increase the number of African-American students entering law school 

by promoting African-American students’ interest in the law, assisting these students in the 

application and admissions process, and preparing them for the rigors of law school and the 

legal profession. Many of BPLA’s members have an interest in attending the University of 

Texas School of Law and each year, some of its members apply to the Law School. [Exhibit

4The BPLA Constitution and the declaration of BPLA’s president, Suneese Haywood, were 
before the district court as Exhibit B to the Memorandum in Support of Motion to Intervene. 
(R. 669-78).

4



B, HH 4, 7, 9, 10 to Memorandum in Support of Motion to Intervene (Declaration of Suneese 

Haywood)] (R. 671-2).

Each year BPLA dedicates its fall semester activities to the application and admissions 

process and its spring semester activities to education about the legal profession. In the past 

semester, BPLA’s admissions activities included organizing lectures by Law School Admissions 

Test (LSAT) instructors, law school admissions officers, and law school students. BPLA seeks 

to aid students interested in attending UT Law School by providing information about the Law 

School’s admissions process. In the past semester, members of the Thurgood Marshall Legal 

Society (also proposed intervenors in this suit) attended a BPLA meeting to provide 

information and answer questions about the admissions process and the study of law at the 

University of Texas. Id. UH 7-10.

Finally, as part of its effort to provide its members with insight into the legal profession, 

BPLA sponsors discussions with attorneys and other professionals regarding the practice of law 

and the role of law in society. Id. H 11.

2. Thurgood Marshall Legal Society

The Thurgood Marshall Legal Society is an organization of students at the Law School 

dedicated to serving the needs of African Americans.5 Founded in 1983 as a chapter of the 

National Black Law Students Association, TMLS is open to all students but is predominantly 

African-American in its membership. Over 60 of the Law School’s 108 African-American 

students are members of TMLS. [Exhibit A, HH 5, 6 to Memorandum in Support of Motion 

to Intervene (Declaration of April Cheatham)] (R. 656).

5TMLS’s Constitution, and the Declaration of the organization’s president, April Cheatham, 
were included as Exhibit A to the Memorandum in Support of Motion to Intervene. (R. 659-
68).

5



TMLS’s central goals are to encourage the admission, retention, and academic success 

of greater numbers of African-American scholars at the Law School; to promote an academic 

and social atmosphere that is both attractive and receptive to students of color, and to combat 

discrimination and its effects on the Law School campus and elsewhere. Toward these ends, 

TMLS engages in a wide range of activities on campus and in the community at large. Id  11 

8-13.

In order to attract African-American students to the Law School, TMLS plays an 

important role by answering African-American prospective students’ questions about the Law 

School. In addition, TMLS has created the Heman Sweatt endowed scholarship to enable 

economically disadvantaged African-American students to attend the Law School. Members 

of the organization also serve as student participants on the admissions committee and actively 

participate in the recruitment of African-American candidates through the Law School’s 

"Project Info" and the Student Recruitment and Opportunities Committee. Id. HU 9, 10.

As part of its efforts to improve the retention of African-American students at the Law 

School, and to foster academic excellence among these students, TMLS conducts extra­

curricular academic sessions for first year students in which faculty and other students review 

course work and mock examinations. TMLS is also actively involved in public service activities 

for the benefit of African-American and low-income residents of the Austin, Texas community, 

ranging from voter registration drives to canned food collections and meals for needy families. 

Id. 11, 12.

Finally, as a major vehicle for communication and participation in campus issues, TMLS 

attempts to participate in debate and policy making surrounding most issues of discrimination 

and racial diversity that arise on the Law School campus, including such matters as faculty 

diversity, cultural affairs and community awareness. Id  U 14.

6



B. History of Discrimination Against African-American Students 
By the Defendants

Educational segregation in Texas was pervasive, affecting both the State’s secondary and 

elementary schools and its colleges and universities. See, e.g., Houston Independent School 

District v. Ross, 282 F.2d 95, 96 (5th Cir.), cert denied, 364 U.S. 803 (1960); Borders v. Rippy, 

247 F.2d 268 (5th Cir. 1957) (Dallas); United States v. Texas Educ. Agency (AISD), 461 F.2d 848 

(5th Cir. 1972) (Austin); Flax v. Potts, 204 F. Supp. 458 (N.D.Tex. 1962) (Ft. Worth); United 

States v. State o f Texas, 321 F. Supp. 1043 and 330 F. Supp. 235 (E.D.Tex. 1970), aff’d with 

modifications, 447 F.2d 441 (5th Cir. 1971), cert denied, 404 U.S. 1016 (1972) (state-wide relief). 

While some of these systems were declared unitary in the late 1980’s, this was after the period 

when the proposed intervenors’ members were attending secondary school. See, e.g., Flax v. 

Potts, 725 F. Supp. 322 (N.D.Tex. 1989) (Ft. Worth). Still, many Texas school districts have not 

been declared unitary, see, e.g., Tasby v. Edwards, 807 F. Supp. 421 (N.D.Tex. 1992) (Dallas), 

and those that have received such declarations not on the ground that no vestiges of the 

invidious discrimination remained, but on the ground that no practicable remedy existed. See, 

e.g., Ross v. Houston Indep. School Dist, 699 F.2d 218, 224, 228 (5th Cir. 1983); Flax v. Potts, 

725 F. Supp. at 330.

The University of Texas School of Law operated from the mid-1800’s until the Supreme 

Court’s decision in Sweatt v. Painter, 339 U.S. 629 (1950), with official admissions policies and 

practices that precluded the attendance of persons of African descent. The Texas Constitution 

and state statutory provisions restricted the school to white students, id. at 631, and at the time 

Heman Sweatt applied for admission to the Law School in 1946, no law school in the State of 

Texas admitted African Americans. Ibid. The Law School was required to change its 

admission practices only through the legal challenge brought by an African-American student.

7



Following the Sweatt decision in 1950, however, the racially exclusionary practices of the 

State did not radically change. From 1950 through the 1960’s African Americans were admitted 

to and graduated from the Law School in token numbers at best.6 Moreover, the University 

continued to deny blacks admission to the University’s undergraduate college restricting them 

to other, separate all-black Texas schools until the Supreme Court’s decision in Brown v. Board 

o f Education, 347 U.S. 483 (1954). A. Duren, Overcoming: A  History o f Black Integration at the 

University o f Texas at Austin 4 (1979) (Hereinafter "Overcoming"). African-American

undergraduates were relegated to officially segregated and inadequate housing facilities at least 

until 1964, ten years after the Brown decision. Overcoming at 6,8-10, 14. Extra-curricular 

activities remained segregated during the same period. Id. at 8. The first African American 

assistant professor was not appointed until 1961. Id. at 42. The first full professor in 1968. 

Ibid.

In 1970, the Board of Regents eliminated two programs designed to facilitate the 

admission and retention of African-American and Mexican-American students. The first was 

the Program on Educational Opportunity which brought 25 minority undergraduate students 

to UT in 1969. Overcoming at 20. The second was the Council on Legal Education 

Opportunity (CLEO), a program specifically designed to bring meaningful numbers of 

African-American and Mexican-American students to the Law School. Id  at 22. Within a year 

of the termination of the CLEO program at UT Law School, the Law School had no African 

Americans in its entering class and only five Mexican Americans. Ibid The 1971 Law School 

class contained "only two or three blacks and five or six Mexican Americans." Id  at 27. The

6As late as 1972, there were only three black students in the Law School’s entering class. 
Texas Educational Opportunity Plan for Public Higher Education, 1989-1994, University of 
Texas at Austin, September 1, 1989, at 118. Excerpt attached to Memorandum in Support of 
Motion to Intervene as Exhibit C. (R. 680, et seq.).

8



1973 class contained three African Americans. Texas Educational Opportunity Plan, 1989-1994 

at 118. In a 1974 Law School class of about 1,600, there were only 10 African Americans. 

Overcoming at 32.

In 1970, a class of African-American students in 17 Southern and border states, 

including Texas, sued the United States Department of Health, Education and Welfare, 

asserting that the federal government’s funding of state systems of higher education that 

discriminated against African Americans by operating segregated institutions of higher 

education violated the Title VI of the Civil Rights Act of 1964 and the Federal Constitution. 

Adams v. Richardson, 356 F. Supp. 92 (D.D.C.), modified and affd unanimously en banc, 480 

F.2d 1159 (D.C. Cir. 1973), dismissed sub nom Women's Equity Action League v. Cavazos, 906 

F.2d 742 (D.C. Cir. 1990). The district court ordered the government to enforce Title VI in 

higher education and other areas. Id., 356 F. Supp. at 94-100.

In 1980, the Adams plaintiffs sought further relief with respect to the higher education 

systems in Texas and other states. In 1981 the Office for Civil Rights of the United States 

Department of Education ("OCR") found that Texas had failed to eliminate the vestiges of its 

former racially dual system. See Adams v. Bell, Civ. No. 70-3095, Order of March 24, 1983 at 

5.7 Thereafter, Texas submitted desegregation plans to OCR in an effort to come into 

compliance with Title VI, but OCR found those plans to be inadequate. On March 24, 1983, 

the district court ordered OCR to commence formal enforcement proceedings against Texas 

"within 45 days," unless OCR concluded that Texas had submitted a desegregation plan in full 

conformity with governing law. Id. at 7. Governing law included the Education Department’s

’Exhibit D to Memorandum in Support of Motion to Intervene (R. 698, et seq.).

9



Title VI regulations, in particular 34 C.F.R. § 100.3(b)(6)(i),8 which required Texas to adopt 

affirmative action measures to redress the effects of its racially discriminatory higher education 

system. After the 1983 Adams order, Texas submitted an amended plan to OCR in which it 

committed itself to improved measures to meet enrollment goals for black and Hispanic 

students in its professional schools. OCR approved that plan on June 14, 1983.9

The affirmative action admissions program under which the Law School currently 

operates is central to the State’s compliance with Title VI and the mandates of OCR. The 

program was developed as a remedy for past discrimination against African-American students 

and was adopted as a result of the legal challenges brought by these students. Plaintiffs in this 

case seek a permanent injunction prohibiting the use of an affirmative action admissions policy 

by the Law School. [First Amended Complaint at 23] (R. 808).

SUMMARY OF ARGUMENT

Proposed intervenors, organizations of African-American and other students at the 

University of Texas at Austin and the University of Texas Law School, have demonstrated their 

entitlement to intervention as of right under Fed. R. Civ. P. 24(a).

Proposed intervenors have a substantial interest in the continuation of the affirmative 

action admissions program. As organizations of current and prospective students at the Law 

School, they are entitled under the Equal Protection Clause of the Fourteenth Amendment and 

Title VI of the Civil Rights Act of 1964 to the assurance that the opportunity to gain admission

8That subsection provides: "[i]n administering a program regarding which the recipient [of 
federal funds] has previously discriminated against persons on the ground of race . . . the 
recipient must take affirmative action to overcome the effects of prior discrimination."

’Texas Equal Educational Opportunity Plan for Higher Education, as amended through 
May 16, 1983, at 151-52, relevant excerpt attached as Exhibit E to Memorandum in Support 
of Motion to Intervene (R. 708, et seq.).

10



and enjoy fully the educational opportunities offered by the Law School is not impaired by the 

continuing effects of the State’s former racially dual educational system. See United States v.

Fordice,__ U.S.___ , 120 L.Ed.2d 575, 592 (1992); Knight v. Alabama, No. 92-6160, Slip op.

at 5 (11th Cir. Fed. 24, 1994).

The relief plaintiffs seek would impair the ability of TMLS and BPLA to protect the 

constitutional and statutory rights of their members by prohibiting the very relief obtained by 

African-American students to remedy the vestiges of racial segregation and discrimination in 

the Texas educational system. Thus, this case has not only the possibility of creating an adverse 

stare decisis effect for TMLS and BPLA in any subsequent action — a circumstance which itself 

demonstrates an impairment of rights sufficient to warrant intervention of right, see Atlantis 

Development Corp. v. United States, 379 F.2d 818 (5th Cir. 1967); the immediate impact of a 

ruling for plaintiffs on the admission, retention and graduation of African Americans at the 

Law School also clearly infringes on BPLA’s and TMLS’s interests so as to warrant intervention 

in this action.

The State of Texas does not adequately represent the interests of TMLS, BPLA or their 

members, and the district court erred in concluding otherwise. First, there is a long history of 

adversity between the State defendants and African-American students as to the central issue 

involved in this case — the provision of educational opportunities free from the vestiges of the 

racially dual educational system. Second, while the State defendants will defend their right to 

operate an affirmative action admissions program at the Law School, as state officials and 

public institutions, the defendants necessarily are required to serve broad, diffuse, and at times 

conflicting interests. TMLS and BPLA directly represent the interests of African-American 

students and others who seek to enhance the racial diversity of the Law School and the 

representation of African Americans in the legal profession. Their interests are uniform and

11



focused on this goal. Third, the legal standard for permissive race-conscious remedies pits the 

diverse legal interests of the State defendants, including the State’s interest in avoiding future 

litigation by third parties, against those of TMLS and BPLA. Finally, because of these 

divergent interests, it is expected that BPLA and TMLS will develop the record and advance 

essential arguments that the State defendants will not make. For example, proposed 

intervenors would offer evidence of recent discriminatory practices, evidence of a hostile racial 

climate on campus, and evidence casting doubt on the predictive validity of the Texas Index (a 

combination of undergraduate grades and LSAT scores) used in the admission process. The 

State’s ability and willingness to advance such positions are at best severely constricted.

Finally, BPLA and TMLS moved in a timely fashion to seek intervention. Discovery was 

bifurcated for procedural and merits issues. Prior to October 28, 1993, there was no need for 

TMLS and BPLA to intervene because only the standing and ripeness issues were being 

addressed and a decision on either of those bases could have eliminated the entire action. 

After the October 28, 1993 denial of the State’s summary judgment motion, on November 18, 

1993, the district court authorized the parties to proceed with discovery on the merits. The first 

exchange of documents thereafter occurred on December 18, 1993. TMLS and BPLA filed 

their motion for intervention on January 5, 1994. It was more than a month later before 

depositions on the merits began.

It is important that TMLS and BPLA be allowed to intervene to protect their 

constitutional rights and those of their members, to avoid potential collateral attack on the 

district court judgment, and to save judicial resources by having all interested parties before the 

court when these issues are resolved.

12



ARGUMENT

I.
THE DISTRICT COURT ERRED IN DENYING THE MOTION TO INTERVENE 

As this Court has observed, the rules governing intervention are to be construed broadly, 

in favor of the proposed intervenor. Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 537 

(5th Cir. 1970) (footnote omitted); see also Scotts Valley Band o f Porno Indians v. United States, 

921 F.2d 924, 926 (9th Cir. 1990); 7C C. Wright, A. Miller & M. Kane, Federal Practice and 

Procedure § 1904 (2nd ed. 1986). Federal Rule of Civil Procedure 24(a) provides in pertinent 

part:

Upon timely application anyone shall be permitted to intervene in an 
action . . . when the applicant claims an interest relating to the property or 
transaction which is the subject of the action and the applicant is so situated that 
the disposition of the action may as a practical matter impair or impede the 
applicant’s ability to protect that interest, unless the applicant’s interest is 
adequately represented by existing parties.

Thus, in order to merit intervention as of right under Fed. R. Civ. P. 24(a), a proposed 

intervenor need only demonstrate (1) that it has an interest in the subject matter of the action, 

(2) that disposition of the action may practically impair or impede the movant’s ability to 

protect that interest, and (3) that the interest is not adequately represented by the existing 

parties. Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1124 (5th Cir.), cert denied, 400 U.S. 

878 (1970). The application must also be timely under the circumstances of the case. 

Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977).10

“Ehe denial of a motion to intervene is appealable and is to be reviewed de novo by this 
Court. Cascade Nat Gas Corp. v. El Paso Nat Gas Co., 386 U.S. 129, 135 (1967) (construing 
both pre-1966 F. R. Civ. P. 24(a) and amended Rule); Bush v. Vitema, 740 F.2d 350, 355 n.8 
(5th Cir. 1984); Piambino v. Bailey, 610 F.2d 1306, 1320 (5th Cir. 1980). The question of 
timeliness, not reached by the district court in this case, is committed to the discretion of the 
district court. McDonald v. E. J. Lavino Co., 430 F.2d 1065, 1071 (5th Cir. 1970).

13



In their filings below, proposed intervenors demonstrated each of these elements 

through uncontroverted declarations, and public state and federal documents. The lower court 

did not dispute that proposed intervenors had met the interest, impairment, or timeliness 

requirements. Rather, the district court denied the motion on the sole ground that, in the 

court’s view, proposed intervenors had failed to demonstrate inadequate representation by the 

existing parties. [Order Denying Intervention at 4] (R. 746).

As proposed intervenors make clear below, the district court erred in concluding that 

the State of Texas, Texas institutions of higher education and their officials who are named as 

defendants in this suit adequately represent the distinct interests of the proposed intervenor 

organizations and their members, who are primarily but not exclusively African-American. 

Because proposed intervenors have interests that are adverse to those of the defendants, and 

because the other requirements of Rule 24(a) are established, this Court should reverse the 

district court’s denial of intervention.

A. The District Court Erred in Concluding that the Defendants Would Adequately 
Represent the Proposed Intervenors’ Interests

The Supreme Court has made clear that the burden of demonstrating inadequate 

representation is "minimal." Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). 

The requirement "is satisfied if the applicant shows that representation of his interest ‘may be' 

inadequate . . . ." Ibid, (emphasis added). Thus, while the district court was correct that a 

rebuttable presumption of adequate representation exists when proposed intervenors seek the 

same ultimate objective as an existing party, Bush v. Vitema, 740 F.2d 350, 355 (5th Cir. 1984), 

"[tjhis presumption, like any, serves to guide a court’s analysis of the facts. It is not a substitute 

for facts, nor is it to be given any weight if the facts tend to contradict the presumed result."

14



Meek v. Metropolitan Dade County, 985 F.2d 1471, 1477 (11th Cir. 1993). Accordingly, this 

Court has repeatedly held that the presumption of adequate representation is clearly rebutted 

where, as here, the existing party has an interest that is potentially adverse to those of the 

proposed intervenor. See, e.g., Bush, 740 F.2d at 355-56; see also Hines v. D Artois, 531 F.2d 

726, 738 (5th Cir. 1976) (granting intervention to state examiner in municipal employment 

discrimination suit where "[h]is interests . . . may not coincide completely with those of 

defendants below").

In the instant case, the State defendants have legal interests that are unquestionably 

adverse to those of TMLS, BPLA and their student members. This adversity arises from the 

defendants’ status as governmental entities, from the continuing history of civil rights 

enforcement by minority students against these defendants, and from the very nature of the 

legal showing necessary to defend affirmative action programs. Because their interests are both 

independent of and adverse to those of the defendants in several key respects, proposed 

intervenors would advance several essential and independent arguments in support of the 

admission plan that the existing defendants cannot or will not articulate. Proposed intervenors’ 

interests cannot, therefore, be adequately represented by these defendants.

1. Proposed Intervenors’ Interests Are Adverse to Those of the Defendants

a. Defendants Have a Long History of Adversity Against
African-American Students as to the Very Issues in Question in 
This Suit

As described above, there has been a forty-year histoiy of legal adversity between the 

State defendants and African-American students as to the precise subject of this litigation: the 

elimination and remediation of racial exclusion and its continuing effects. It was an 

African-American applicant, Heman Sweatt, who first challenged segregation at the University

15



of Texas Law School in 1946. It was African-American students who sued OCR to require 

meaningful desegregation efforts by the University of Texas and other Southern educational 

institutions in 1970, and it was African-American students who returned to court in 1980 to 

obtain, inter alia, full relief against the State of Texas. Throughout this period, the University 

of Texas vigorously opposed these students’ efforts to eliminate the vestiges of its formerly dual 

system. It was not until Texas was threatened with an OCR enforcement action that might 

have caused it to lose all of its federal funding that the State adopted a remedial plan that the 

federal government found satisfactory.

The history of legal adversity between African-American students and the State’s 

elementary and secondary educational system is equally long and contentious. Forty years after 

Brown v. Board o f Education, many Texas schools that operated de jure segregated systems have 

not yet been declared racially unitaiy. Other districts only achieved unitary status in the late 

1980’s -- the period during which both the plaintiffs and the proposed intervenors’ members 

were attending secondary schools. Still others were declared unitary because there was no 

practicable remedy for the remaining vestiges. While some progress has been made in recent 

years, in light of this pattern it defies reason to assert, as the district court did, that the interests 

of African-American students seeking to reverse the effects of racial discrimination by the State 

of Texas and its institutions will unquestionably be vigorously and adequately represented in 

that endeavor by those very institutions.

b. Defendants’ Interests As Public Officials and Institutions Differ 
From Those of African-American Students

As state officials and institutions, the existing defendants in this case are bound to serve 

the public interest: a broad range of concerns, some of which conflict with the narrower

16



interests of proposed intervenors. The Supreme Court recognized in Trbovich v. United Mine 

Workers, 404 U.S. 528 (1972), that this type of conflict requires that intervention be granted. 

In Trbovich, a union member sought to intervene in a suit brought by the Secretary of Labor 

to set aside a union election under the Labor-Management Reporting and Disclosure Act 

(LMRDA).11 Although the LMRDA designates the Secretary as the sole entity authorized 

to initiate such suits on behalf of union members,12 the Supreme Court found intervention as 

of right to be required, rejecting the Secretary’s argument that he would adequately represent 

the member’s interests. In so doing, the Court recognized the difference between the union 

member’s interest in a lawful election and the broader "public interest" pursued by the 

Secretary. In addition to protecting the rights of union members, "the Secretaiy has an 

obligation to protect the vital public interest in assuring free and democratic union elections 

that transcends the narrower interest of the complaining union member.. . .  Both functions are 

important, and they may not always dictate precisely the same approach to the conduct of the 

litigation." 404 U.S. at 538-39 (internal quotations omitted).

The same dichotomy of interests exists in the instant case. While the existing defendants 

seek in a broad sense to defend the Law School’s admissions policy, they are bound and limited 

in doing so by a broad range of public interests and concerns. For example, defendants must 

balance the competing interests of the student body, faculty, educational goals, fiscal 

responsibilities, administrative concerns, and public opinion. In contrast, proposed intervenors’ 

interest in this case is sharply focused on preserving an admissions policy that remedies the 

effects of past discrimination and fosters an atmosphere that is attractive and receptive to 

African-American students and applicants. As this and other courts have recognized, this

n29 U.S.C. § 482(b).

“29 U.S.C. § 483.

17



divergence of interests presents an unacceptable risk that representation will be inadequate. 

See, e.g., Kneeland v. National Collegiate Athletic Assn., 806 F.2d 1285, 1288 (5th Cir. 1987) 

(recognizing adversity of interests arising from "conflicts between agency attempts to represent 

the regulated parties and statutory mandates to serve the ‘public interest’") (citations omitted); 

Chiles v. Thornburgh, 865 F.2d 1197, 1214-15 (11th Cir. 1989) (alien detainees have distinct 

interest in conditions of confinement that may not be served by county government concerned 

with effect of institution on outside community); Meek v. Metropolitan Dade County, Fla., 985 

F.2d 1471, 1478 (11th Cir. 1993) (while voters sought to intervene in voting rights suit solely 

to defend at large system, county commissioner defendants "had to consider the overall fairness 

of the election system,. . .  the expense of litigation,. . .  and the social and political divisiveness 

of the election issue"); New York Public Interest Research Group v. Regents o f the University o f 

State o f New York, 516 F.2d 350, 352 (2d Cir. 1975) (putative intervenors, an association of 

pharmacists, had a narrower, economic interest in regulatory statute than did the defendant 

Regents). The existing defendants’ zone of interests in this case, including public and political 

considerations and administrative costs, conflicts in important ways with those of the proposed 

intervenors.

2. Denial of Intervention is Particularly Improper Where, As Here, The 
Beneficiaries of a Remedial Affirmative Action Policy Seek to Defend 
That Policy As a Lawful Response to Past Discrimination by the 
Defendant

Race-conscious remedies such as the Law School’s admissions policy are lawful when 

they are narrowly tailored to address the continuing effects of past discrimination. City o f 

Richmond v. JA.. Croson Co., 488 U.S. 469, 491-92 (1989). Thus, a key element of the defense 

in the instant case will be evidence of past racial discrimination by the defendant institutions

18



and continuing effects or vestiges of that discrimination, including the racial atmosphere and 

reputation for discrimination currently existing at the institution. Although an institution need 

not demonstrate that it is presently liable for unlawful racial discrimination in order to defend 

a race-conscious remedial plan, Wygant v. Jackson Board o f Education, 476 U.S. 267, 286 (1986) 

(opinion of O’Connor, J.), it must demonstrate a "strong basis in evidence for its conclusion 

that remedial action was necessary." Croson, 488 U.S. at 500, quoting Wygant, 476 U.S. at 277 

(plurality opinion); Podberesky v. Kirwan, 956 F.2d 52, 57 (4th Cir. 1992).

Clearly this standard pits the diverse legal interests of the defendants, including their 

interest in avoiding future litigation by third parties, against those of affected African 

Americans in preserving affirmative anti-discrimination remedies. See, e.g., Jansen v. City o f 

Cincinnati, 904 F.2d 336, 343 (6th Cir. 1990) (where city and African-American putative 

intervenors disagreed as to factual predicate for affirmative action plan, intervention, must be 

granted).

In addition to the threat of subsequent litigation, the public airing of an institution’s 

history of discrimination against particular groups is contrary to that institution’s political, 

financial and reputational interests. See, e.g., Podberesky v. Kirwan, 838 F. Supp. 1075, 1082 

n.47 (D.Md. 1993) (noting that a university defending an affirmative action program is put in 

the "unusual position" of having "to engage in extended self-criticism in order to justify its 

pursuit of a goal that it deems worthy"); see also Meek v. Metropolitan Dade County, Fla., 985 

F.2d 1471, 1478 (11th Cir. 1983) (in defending at-large voting system, County Commissioners 

"were likely to be influenced by their own desires to remain politically popular and effective 

leaders" as well as "the social and political divisiveness of the election issue"). These factors are 

likely to influence the defendants’ commitment to the litigation, the legal arguments adopted,

19



and the evidence produced at trial in a way that will prejudice proposed intervenors’ interest 

in preserving a meaningful remedy for past discrimination.

In light of such considerations, courts have routinely granted intervention to the minority 

beneficiaries of race-conscious anti-discrimination remedies seeking to defend such programs. 

See, e.g, Jansen v. City o f Cincinnati, supra, Associated General Contractors v. San Francisco, 35 

Empl. Prac. Dec. 34,919 (N.D.Cal. 1985) (allowing minority business concerns to intervene in 

constitutional challenge to city’s race-conscious contracting ordinance); Associated General 

Contractors v. City o f New Haven, 130 F.R.D. 4, 11 (D.Conn. 1990) (same); Contractors 

Association o f Eastern Pennsylvania, Inc. v. Philadelphia, No. 89-2737, slip op. at 1 (E.D.Pa. July 

31, 1989) (allowing minority contractors’ association to intervene to represent "private" 

interests); Associated General Contractors v. Secretary o f Commerce, 459 F. Supp. 766, 771 

(C.D.Cal 1978) (allowing civil rights organizations to intervene in challenge to federal 

affirmative action program).

3. Proposed Intervenors’ Intend to Advance Important Arguments in 
Defense of the Plan that the Defendants Will Not Make

Another consideration in assessing the adequacy of representation by existing parties is 

"whether [the defendant] will undoubtedly make all of the intervenor’s arguments, whether [the 

defendant] is capable of and willing to make such arguments, and whether the intervenor offers 

a necessary element to the proceedings that would be neglected." Sagebrush Rebellion, Inc. v. 

Watt, 713 F.2d 525, 528 (9th Cir. 1983) (citations omitted). If allowed to participate as parties 

in this case, proposed intervenors would make essential arguments and introduce important 

evidence that the defendants cannot or will not advance.

20



For example, proposed intervenors intend to present evidence of racial segregation and 

discrimination by defendants from the period after the Sweatt and Brown decisions to the very 

recent past. While such evidence is important to demonstrating the existing effects of past 

discrimination, see generally Podberesky v. Kirwan, 838 F. Supp. 1075 (D.Md. 1993), defendants 

are unlikely to produce such evidence due to the considerations of potential civil rights liability, 

OCR compliance, and other constraints described above.

Proposed intervenors also will seek to demonstrate that a racially hostile environment 

continues to exist at the University of Texas. See Podberesky, 838 F. Supp. at 1092-94 (racially 

hostile campus a present effect of past discrimination). This showing also potentially implicates

Title VI liability, See Franklin v. Gwinnett County Public Schools,___U.S.___ , 117 L.Ed.2d 208

(1992) (damages available for sexual harassment under Title IX of Education Amendments of 

1972, companion statute to Title VI), and the defendants cannot be expected to advance such 

an argument. Additionally, proposed intervenors’ defense of the existing admissions program 

may cast doubt on the predictive value of the Texas Index — a combination of undergraduate 

grades and LSAT scores -- in the selection of applicants. Each of these arguments, and others 

intervenors expect to advance, is important to this case yet contrary to the defendants’ 

institutional interests. Under the circumstances, proposed intervenors’ interests are plainly not 

represented by the defendants.

C. The Proposed Intervenors Established, and the District Court did Not Challenge, 
the Other Requirements for Intervention as of Right

The district court did not dispute that proposed intervenors had demonstrated the other 

criteria for intervention as of right: an interest in the subject of the suit; impairment of their 

ability to protect that interest absent intervention; and timely filing. Stallworth v. Monsanto, 558

21



F.2d 257,263,269 (5th Cir. 1977). Moreover, proposed intervenors demonstrated each of these 

elements in the court below, supported by uncontroverted documentation. Proposed 

intervenors continue to meet each of these requirements.

1. The Proposed Intervenors Have a Direct Interest in the Law School’s 
Admissions Policy

Proposed intervenors have a significant, protectable interest in the subject matter of this 

suit — the gravamen of which is an effort to enjoin permanently the Law School from operating 

a race-conscious affirmative action admissions program. [First Amended Complaint at 23] (R. 

808). Should plaintiffs prevail, the result would impede the proposed intervenors’ significant 

interest in remedying the harm caused by the defendants’ dual educational system, and the 

subsequent pattern of discrimination against African-Americans.

The affirmative action admissions program serves as a remedy for the State’s segregation 

and discrimination against African Americans in several ways. As outright exclusion of African- 

Americans from the Law School was the centerpiece of the dual system, the current admissions 

policy facilitates the admission of meaningful numbers of black students to the Law School. 

By attracting and matriculating more African-American students and, in particular, those who 

are highly likely to be successful, the admissions policy creates a more receptive and less 

isolating experience for black law students, thereby aiding long-term retention and graduation. 

In addition, the policy aids the recruitment and retention of African-American law students by 

sending a strong message to prospective and current students that the Law School of Sweatt v. 

Painter is committed to reversing its past discriminatory practices. The affirmative action 

admissions program is central to any effort to achieve these goals.

22



The State’s system of elementary and secondary education has a similar history of 

separate and unequal operation. The discriminatory denial of equal educational opportunity 

to African Americans during their formative academic years is directly related to the 

underrepresentation of African Americans in the Law School applicant pool. The challenged 

admissions policy also addresses the effects of that discriminatory pattern.

In addition to remedying the dearth of African-American legal scholars and attorneys 

caused by past discrimination, the admissions policy also addresses other vestiges of the former 

system. By attracting and admitting meaningful numbers of qualified African-American 

students, the policy seeks to eliminate the institutional reputation for discrimination, the racially 

hostile atmosphere and the stigmatic message of inferiority and exclusion that are part and 

parcel of segregated systems. The program also increases ethnic and ideological diversity on 

campus, to the benefit of all students. Each of these goals directly implicates the interests of 

the proposed intervenor organizations and their African-American members.

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

legal scholars entering the University of Texas and other law schools.13 This goal is furthered 

significantly by the affirmative action admissions program at the Law School. Beyond its 

organizational goals, the members of BPLA are primarily African-American undergraduates, 

many of whom will apply and be considered under the Law School’s admissions policy. BPLA 

members, therefore, have a direct interest in a program that will aid their admission to law

school. Cf. Florida Gen. Contractors v. Jacksonville, 508 U.S.__ , 124 L.Ed.2d 586, 599 (1993)

(where organization’s members regularly bid on defendant’s public contracts, organization has 

standing to challenge impediments to successful bid). As the current admissions policy is

UBPLA Constitution, Art. I, II, Exhibit 1 to Exhibit B of Proposed Intervenors’
Memorandum in Support of Motion to Intervene (R. 674).

23



designed primarily to correct the former policy of whites-only admissions, BPLA members also 

have an interest in being considered under a policy that addresses that past racial exclusion.

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

eliminating racial discrimination at the Law School.14 Both of these goals are furthered by the 

existing admissions program. Moreover, TMLS’s members are current students at the Law 

School who will be affected directly by the institution’s success or failure in efforts to eliminate 

the racially isolating and deleterious effects of past discrimination. There is no doubt that 

African-American students have a direct and legally protectable interest in ensuring that an 

institution of higher learning "has met its affirmative duty to dismantle its prior dual university

system." United States v. Fordice, 505 U.S.___, 120 L.Ed.2d 575, 592 (1992); see also id. at 590

(recognizing role of private plaintiffs); Knight v. Alabama, No. 92-6160, Slip op. at 5 (11th Cir. 

Feb. 24, 1994) (recognizing interest identified in Fordice).

An adverse ruling in this case would have an immediate negative impact both on the 

Proposed intervenors’ organizational interests and on the interests of their members because, 

in all likelihood, it would decrease substantially the number of African Americans entering and 

graduating from the Law School. Moreover, elimination of an affirmative action admissions 

policy would greatly exacerbate the racial isolation, negative racial atmosphere, and other 

remnants of past discrimination against African Americans by the defendants. Proposed 

intervenors’ interests are directly implicated by this litigation. See Cohn v. EEOC, 569 F.2d 909 

(5th Cir. 1978) (existing employees have interest in ensuring that anti-discrimination remedy 

does not improperly displace them); In re Birmingham Reverse Discrimination Litigation, 833 

F.2d 1492, 1496 n.13 (11th Cir. 1987) (same); Howard v. McLucas, 782 F.2d 956 (11th Cir.

14TMLS Constitution, Art. I, §B, Exhibit 1 to Exhibit A of proposed intervenors’
Memorandum in Support of Motion to Intervene (R. 659).

24



1986) (same); New York Public Interest Research Group, Inc. v. Regents o f Univ. o f New York, 

516 F.2d 350, 351-52 (2d Cir. 1975) (per curiam) (pharmaceutical organization has interest in 

enforcement of regulation from which its members benefit); 7C C. Wright, A. Miller, & M. 

Kane, Federal Practice and Procedure: Civil 2d, § 1908 at 285 (1986) ("in cases challenging 

various statutory schemes as unconstitutional or as improperly interpreted and applied, the 

courts have recognized that the interests of those who are governed by those schemes are 

sufficient to support intervention").

The Supreme Court has recognized that organizations such as TMLS and BPLA have 

significant legal interests in their own right and as representatives of their members when their 

organizational goals or interests are threatened. In Havens Realty Corp. v. Coleman, 455 U.S. 

363, 379 (1982), for example, the Court recognized for standing purposes that a Virginia 

nonprofit corporation whose purpose was to "make equal opportunity in housing a reality in 

the Metropolitan Richmond Area" had a significant legal interest in challenging violations of 

the Fair Housing Act by Richmond area realtors. Id. at 368. The Court found that there was 

no question that the organization suffered a legal injury in fact by the alleged racial steering 

practices that impaired its ability to accomplish its organizational goal. Id  at 379. Similarly, 

in Hunt v. Washington State Apple Advertising Commn., 432 U.S. 333, 342-45 (1977), the Court 

recognized the standing of the State Apple Advertising Commission in a representational 

capacity to protect the interests of the State’s apple growers. In this case, BPLA and TMLS 

have a protectable legal interest both in their own right (in defending their organizational goals) 

and on behalf of their members who are the beneficiaries of the challenged policy.

Moreover, proposed intervenors’ interest in the subject of this litigation is both 

immediate and direct. If plaintiffs persuade the district court to enjoin the current admissions

25



policy, the resulting impediment to the admission of African Americans, decline in enrollment, 

and increased racial isolation will be felt immediately by TMLS, BPLA and its members.

2. The Proposed Intervenors’ Ability to Protect Their Interests will be
Impaired if this Action is Allowed to Proceed Without Their Participation

If allowed to stand, the district court’s denial of leave to intervene will fundamentally 

impair TMLS’s and BPLA’s ability to protect their interests. First, if TMLS and BPLA are 

denied intervention, the negative stare decisis effect of an adverse decision in this case would 

in all likelihood permanently prevent proposed intervenors’ from preserving the current 

admissions policy through subsequent litigation. Potential adverse stare decisis effects are alone 

sufficient to demonstrate impairment of interest so as to warrant intervention as of right. 

Atlantis Development Corp. v. United States, 379 F.2d 818 (5th Cir. 1967); New York Public 

Interest Research Group, 516 F.2d at 352; United States v. Oregon, 839 F.2d 635, 638 (9th Cir. 

1988). In Atlantis, supra, this Court reversed a district court denial of intervention to a 

development company that claimed ownership of coral reefs in a case in which the federal 

government had sued other parties to protect the reefs from commercial development. The 

Atlantis Court held that the potential application of stare decisis jeopardized the company’s 

interests in the subject matter of the suit (title to the reefs) so as to require intervention as of 

right. Id  at 828-29.

The same result should obtain in the instant case. Key factual issues in this litigation 

include whether there are present effects of past discrimination and whether the affirmative 

action remedial program is appropriately tailored to address those present effects. See 

Podberesky v. Kirwan, 956 F.2d 52, 55 (4th Cir. 1992). The predicate factual finding made by 

OCR — that the Texas educational system has failed to eliminate the vestiges of its dual

26



system — was obtained through litigation and administrative advocacy by African-American 

students, predecessors of the current members of TMLS and BPLA. Adams v. Hufstedler, Civ. 

No. 70-3095, Consent Order (D.D.C. December 1980).15 A contraiy resolution of the question 

of continuing vestiges, or of issues regarding the appropriate scope of a remedial plan will 

clearly have a prohibitive stare decisis effect on any subsequent litigation proposed intervenors 

could bring to eliminate the effects of past discrimination through race-conscious programs.

In addition to the adverse effect of stare decisis, the injunctive relief sought by plaintiffs 

would immediately and detrimentally alter the process under which the applications of current 

BPLA members and other African Americans will be considered. Elimination of the existing 

admissions policy would also rapidly effect the African-American student body at the Law 

School. Irrespective of the precedent created by this case, proposed intervenors would almost 

certainly be unable to correct this immediate harm through collateral litigation.

Finally, participation by proposed intervenors in this case as amici curiae would not 

provide sufficient protection against these practical impairments because it would not allow 

them to participate fully in the case, to present evidence, to file motions, or to appeal a final 

judgment in the litigation. See, eg., Feller v. Brock, 802 F.2d 722, 730 (4th Cir. 1986); Nuesse 

v. Camp, 385 F.2d 694, 704 n.10 (D.C. Cir. 1967). In particular, TMLS and BPLA cannot 

introduce the necessary evidence of past discrimination by the defendants, and its continuing 

effects, without full participation as parties in this case.

“Exhibit F to Memorandum in Support of Motion to Intervene (R. 721).

27



3. The Proposed Intervenors’ Application Was Timely

Proposed intervenors’ motion was timely under Rule 24(a). The relevant inquiry for

timeliness purposes is the point at which the proposed intervenor knew or should have known

that its interests would not be adequately represented by the existing parties. See, e.g., United

Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977) ("as soon as it became clear to the

[intervenor] that the interests of the unnamed class members would no longer be protected by

the named class representatives, she promptly moved to intervene to protect those interests");

Piambino v. Bailey, 610 F.2d 1306, 1321 (5th Cir. 1980) ("the question of timeliness is at least

partially linked to the question of adequate representation"); Stallworth v. Monsanto, 558 F.2d

257,264-65 (5th Cir. 1977) (timeliness determined based on time intervenor knew of its interest

in the case or that its interest might not be represented adequately). Applying this principle,

"courts have allowed intervention months or even years after the original filing of the suit where

the substantial litigation of the issues had not been commenced when the motion to intervene

was filed. Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1115 (5th

Cir. 1970), quoting 3B Moore, Federal Practice 11 24.13, at p. 24-523 (2nd ed. 1969).16

Discovery in this case was bifurcated on procedural and merits issues. Prior to the

district court’s October 28,1993 ruling denying defendants’ motion for summary judgment, the

discovery conducted in the case was limited to the procedural standing and ripeness issues.

After that ruling, the district court issued a scheduling order on November 19, 1993, and the

parties proceeded to discovery on the merits. The first exchange of documents on the merits

phase of the case did not begin until December 18,1993 and the first depositions on the merits
*

16See, e.g.,Dimond v. District o f Columbia, 792 F.2d 179,193 (D.C. Cir. 1986) (intervention 
allowed after entry of judgment); NRDC v. Costle, 561 F.2d 904, 907-08 (D.C. Cir. 1977) 
(intervention allowed three years after complaint filed); Hodgson v. United Mine Workers, 473 
F.2d 118, 130 (D.C. Cir. 1972) (allowing intervention seven years after complaint filed).

28



began in late February of 1994. Declaration of Samuel Issacharoff, Exhibit to Motion to 

Expedite Appeal. The parties designated experts on March 11. Proposed intervenors filed 

their motion to intervene on January 5, 1994, substantially before discovery on the merits was 

to be completed.

Prior to the district court’s resolution of defendants motion for summary judgement, 

intervention by TMLS and BPLA was unnecessary. Indeed, had TMLS and BPLA sought to 

intervene prior to the denial of defendants’ summary judgment motion the lower court’s finding 

of adequate representation would present a much closer question. By seeking to intervene 

almost immediately after the denial of summary judgement, and at the very beginning of 

discovery on the merits, proposed intervenors clearly acted in a timely fashion.

Moreover, proposed intervenors do not seek to revisit the standing or ripeness issues 

resolved in the district court’s October 28, 1993 Order. Thus, intervention would neither have 

delayed the proceedings nor prejudiced the existing parties. Henry v. First National Bank o f 

Clarksdale, 595 F2d 291, 308 (5th Cir. 1979), cert denied, 444 U.S. 1074 (1980).

D. Considerations of Judicial Economy Dictate That TMLS and BPLA 
Be Granted Intervention

One of the primary goals of Fed. R. Civ. P. 24, as amended, is to conserve judicial 

resources and prevent redundant or conflicting rulings by adjudicating all parties’ claims at 

once. Thus the courts have consistently held that "[a]ny doubt concerning the propriety of 

allowing intervention should be resolved in favor of the proposed intervenors because it allows 

the court to resolve all related disputes in a single action." Federal Savings and Loan v. Falls 

Chase Special Taxing District, 983 F.2d 211,216 (11th Cir. 1993), citing Sierra Club v. Robertson, 

960 F.2d 83, 86 (8th Cir. 1992); see also Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 537

29



(5th Cir. 1970) (footnote omitted) (noting "liberal" standard for intervention). By allowing 

intervention by TMLS and BPLA, this Court will avert the redundant litigation that might 

occur if proposed intervenors bring collateral litigation in pursuit of an affirmative remedy for 

defendants’ past racial exclusion.

n.
THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING 

PERMISSIVE INTERVENTION

The district court also erred in denying proposed intervenors permissive intervention 

under Fed. R. Civ. P. 24(b).17 In considering a motion for permissive intervention, a district 

court must determine whether the applicant’s claim or defense and the main action have a 

question of law or fact in common, and whether intervention will unduly delay the proceedings 

or prejudice the rights of existing parties. Stallworth v. Monsanto Co., 558 F.2d 257, 269 (5th 

Cir. 1977). This Court reviews the former determination de novo and the later for an abuse 

of discretion. Id. at 269-70.

As outlined above, there is no dispute that proposed intervenors’ defenses share 

common questions of law and fact. The district court denied TMLS’s and BPLA’s motion for 

permissive intervention on the ground that "adding the prospective intervenors as defendants 

at this juncture in the lawsuit would needlessly increase cost and delay disposition of the 

litigation." [Order Deny Motion to Intervene at 5 (footnote omitted)] (R. 747).

17Rule 24(b) provides in pertinent part:

Upon timely application anyone may be permitted to intervene in an action . .
. when an applicant’s claim or defense and the main action have a question of 
law or fact in common. . . .  In exercising its discretion the court shall consider 
whether the intervention will unduly delay or prejudice the adjudication of the 
rights of the original parties.

30



Delay of proceedings is an appropriate consideration for permissive intervention. 

However, proposed intervenors were timely in their application and do not seek to engage in 

redundant discovery of the information or materials already covered by the existing parties. 

As described herein, proposed intervenors seek participation in this litigation only to provide 

important evidence and argument justifying the continued operation of an affirmative action 

admissions policy.1®

Considerations of judicial economy also support permissive intervention. See Atlantis 

Dev. Corp. v. United States, 379 F.2d at 825 (noting the "great public interest. . .  [in] having a 

disposition . . .  of as much of the controversy to as many of the parties as fairly possible"). By 

allowing intervention, this Court will avoid subsequent litigation by proposed intervenors and 

protect the existing parties’ interest in the finality of the instant suit. Indeed, this is a case in 

which m[w]ith little strain on the court’s time and no prejudice to the litigants, the controversy 

can be stilled and justice completely done’ if the appellants are granted permission to 

intervene." Stallworth, 558 F.2d at 270, quoting McDonald v. E. J. Lavino Corp., 430 F.2d 1065, 

1074 (5th Cir. 1970).

If this Court should determine that the district court did not commit error in denying 

intervention under Fed. R. Civ. P. 24(a), the Court should hold that the district court abused 

its discretion in denying intervention under Rule 24(b).

18Intervenors note that they could not introduce this factual evidence nor appeal an adverse 
judgment if, as the district court suggested, they were allowed to participate only as amicus 
curiae. See [Order Denying Motion to Intervene at 5 n.3] (R. 747).

31



CONCLUSION

For all the reasons set forth herein, and in the interest of minimizing delay, this Court 

should summarily reverse the district court’s denial of appellants’ Motion to Intervene and 

remand with directions to the lower court to grant intervention as of right or, alternatively, to 

allow permissive intervention.

Respectfully submitted,

D irector-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Alan Jenkins 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Janell M. Byrd 
NAACP Legal Defense & 

Educational Fund, Inc.
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

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

David Van  Os 
Van Os & Owen 

900 Congress Avenue 
Suite 400 
Austin, TX 78701 
(512) 479-6155 
Texas Bar No. 20450700

Counsel for Proposed Intervenors-Appellants

32



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Plaintiffs’ BRIEF FOR PROPOSED 

INTERVENORS-APPELLANTS, have been served by depositing same with Federal Express, 
on this 17th of March 1994, addressed to the following:

Steven W. Smith 
3608 Grooms Street 
Austin, Texas 78705

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

Counsel for Plaintiffs

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

Javiar A guilar, Esq .
Special Assistant Attorney General 
1019 Congress, Suite 1550 
Houston, Texas 77007-1702

Counsel for Defendants

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

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

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

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