League of United Latin American Citizens v. Texas Attorney General Petition for a Writ of Certiorari

    No. 95-

In The

Supreme Court of tfje Ifmteb States?
October Term, 1995

Thurgood Marshall Legal Society and 
Black Pre-Law Association,

Petitioners,
v.

Cheryl J. H opwood, et a l,
Respondents.

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the F ifth Circuit

PETITION FOR WRIT OF CERTIORARI

E laine R. J ones Anthony  P . Gr iffin
Directo r-Counsel  Anthony  P . Gr if f in , In c .

1115 Moody
T h eodore  M. Shaw  Galveston, TX 77550
N orman J. Chachkin  (409) 763-0386
Charles St e ph e n  Ralston 

*De n n is  D. P arker  David Van  O s
NAACP Legal Defen se  and Van Os & Ow en  

E ducational F u n d , In c .
99 Hudson Street 
Suite 1600 
New York, NY 10013 
(212) 219-1900

*Counsel of Record

J anell  M. Byrd
NAACP Legal Defen se  and 

E ducational F u n d , In c .
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Petitioners

900 Congress Avenue 
Suite 400 
Austin, TX 78701 
(512)479-6155

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208



1

QUESTIONS PRESENTED
1. Should this Court grant certiorari to resolve a conflict 
among the Circuits as to the standard to determine whether 
a party may intervene as a matter of right under Rule 24(a), 
Fed. R. Civ. Proc., when the party on whose side the 
intervenor seeks to join is a governmental agency?

2. Were petitioner organizations of African-American 
students improperly prevented from protecting their 
members’ constitutional and statutory rights to seek 
admission to the University of Texas Law School free of 
racial discrimination when the courts below refused to allow 
them to intervene in this lawsuit -  in which white plaintiffs 
seek to bar any consideration of race in the Law School’s 
admissions process -  even though Petitioners sought to offer 
evidence and present defenses which the other parties to the 
case refused to advance, and which Petitioners contend 
establish the need for the Law School to take race into 
account in making admissions decisions in order to mitigate 
the continued effects of its own (and other Texas 
governmental entities’) prior, intentional racial 
discrimination and in order to neutralize the racially 
discriminatory impact of other admissions criteria utilized by 
the Law School?
3. Did the courts below err in finding that a State whose 
higher educational system continues to be subject to the 
mandate of the federal executive agency enforcing Title VI 
of the 1964 Civil Rights Act (42 U.S.C. § 2000d) requiring 
that it dismantle the remaining vestiges of its prior dual 
structure, could and would adequately represent the interests 
of African-American students who were the intended victims 
of the discriminatory practices which pervaded and underlay 
that dual structure?

4. Did the court below so far depart from the accepted 
and usual course of judicial proceedings in applying the "law 
of the case" doctrine to issues that patently were not decided



11

in prior proceedings (and which the panel itself 
characterized as having been, at best, "implicitly decided") as 
to warrant correction by this Court in the exercise of its 
supervisory authority?



PARTIES TO THE PROCEEDING

The parties to the litigation are:

Petitioners (Proposed Intervenors):
Thurgood Marshall Legal Society 
Black Pre-Law Association

Plaintiffs (Respondents):
Cheryl J. Hopwood 
Douglas W. Carvell 
Kenneth R. Elliot 
David A. Rogers

Defendants (Respondents):

The State of Texas
The University of Texas Board of Regents 
Bernard Rapoport, Ellen C. Temple, Lowell H. Leberman, 
Jr., Robert J. Cruikshank, Thomas O. Hicks, Zan W. 
Holmes, Jr., Tom Loeffler, Martha E. Smiley, and Mario 
Ramirez, members of the University of Texas Board of 
Regents
The University of Texas at Austin
Robert M. Behrdahl, President of the University of Texas at 
Austin
Mark Yudof, Dean of the University of Texas Law School 
Stanley Johanson, Professor of Law at the University of 
Texas School of Law

iii



IV

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................  i

PARTIES TO THE PROCEEDING ...........................  iii

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

JURISDICTION . .................................................    1

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ...............     1

STATEMENT OF THE CASE .................................. . 2
A. Proceedings Below ........................................  2
B. Statement of F ac ts ........................................  9

REASONS FOR GRANTING THE WRIT
INTRODUCTION......................  15

I. Certiorari should be granted to
resolve a conflict among the Circuits 
as to whether the standard for 
intervention as of right on the side of 
a governmental agency is more 
stringent than the standard 
established by Trbovich v. United
Mine Workers...........................................  17

II. This Court should review the denial 
of intervention in this case, which 
involves race conscious admissions in 
higher education and the continuing 
vitality of Bakke, from which the 
panel improperly departed, and 
which should not be resolved without 
the evidence that Petitioners sought 
to present as Intervenors........................  19



V

III. This Court should review the denial 
of Petitioners’ motions for 
intervention because the bases upon 
which the court below affirmed the 
trial court’s denials conflict with 
relevant decisions of this Court and 
depart from accepted standards of
judicial conduct. . .................................. 25

CONCLUSION ............................................................ 30



VI

TABLE OF AUTHORITIES

Cases: Pages:

Adams v. Richardson,
351 F. Supp. 636, 356 F. Supp. 92 (D.D.C.), 
modified and ajf’d 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) ....................  12, 13

Association Against Discrimination in Employment v.
City of Bridgeport,
594 F.2d 306 (2d Cir. 1979) cert, denied 455 
U.S. 988 (1982) .................... .. .................. .. . 24

Borders v. Rippy,
247 F.2d 268 (5th Cir. 1957).............................  14

Bowen v. United States,
422 U.S. 916 (1975) ........................................  21

Brody by and Through Sugzdinis v. Spang,
957 F.2d 1108 (3rd Cir. 1992) ......................... 18

Bush v. Vitema,
740 F.2d 350 (5th Cir. 1984)...............................  4

Conservation Law Foundation v. Mosbacher,
966 F.2d 39 (1st Cir. 1992) ........................... .. 19

County Court of Ulster County v. Allen,
442 U.S. 140 (1979) ........................................  21

Dimond v. District of Columbia,
792 F.2d 179 (D.C. Cir. 1986) ......................... 18



Environmental Defense Fund, Inc. v. Higginson,
631 F.2d 738 (D.C.Cir. 1979)........................... 18

Flax v. Potts,
204 F. Supp. 458 (N.D. Tex. 1962), aff’d, 313 
F.2d 284 (5th Cir. 1963).................................... 14

Groves v. Alabama State Board of Education,
776 F. Supp. 1518 (M.D. Ala. 1991)................ 23

Hopwood v. Texas
861 F. Supp. 551 (W.D. Tex. 1994)....................  1

Houston Independent School District v. Ross,
282 F.2d 95 (5th Cir. 1960) ........................ .. . 14

Kirkland v. New York Dept, of Correction Services,
628 F.2d 796 (2d Cir. 1980), cert, denied. 450 
U.S. 980 (1981) ............................................... 24

Knight v. Alabama,
14 F.3d 1534 (11th Cir. 1994)..........................  25

LULAC v. Clements,
999 F.2d 831 (5th Cir. 1993), cert, denied, 114 
S. Ct. 878 (1994)..............................................  14

Larry P. v. Riles,
793 F.2d 969 (9th Cir. 1984).............................  23

Martin v. Wilks,
490 U.S. 755 (1989) .................. ...................... 29

vii
Pages:

Meek v. Dade County, 
985 F.2d 1471 19



Mille Lacs Band of Indians v. Minnesota,
989 F.2d 994 (8th Cir. 1993)........................ .. , 18

Regents of the University of California v. Bakke,
438 U.S. 265 (1978) ............................... .. . passim

Rodriguez de Ouijas v. Shearson/American Express,
Inc., 490 U.S. 477 (1989) ............................... .. 21

Sagebrush Rebellion, Inc. v. Watt,
713 F.2d 525 (9th Cir. 1983)........................ .. . 18

Sanguine, Ltd. v. United States Department of the
Interior, 736 F.2d 1416 (10th Cir. 1984) . 18

Smuck v. Hobson,
408 F.2d 175 (D.C. Cir. 1969) .................... 29

Stallworth v. Monsanto Co.,
558 F.2d 257 (5th Cir. 1977).............................  29

Sweatt v. Painter,
339 U.S. 629 (1950) .................... .. 10, 11, 17

Three Affiliated Tribes v. World Engineering,
467 U.S. 138 (1984) ........................................  21

Trbovich v. United Mine Workers,
404 U.S. 528 (1972) ............. ............... 17, 18, 26

United States v. Fordice,
505 U.S, 717 (1992) ........................  6, 13, 24, 25

vin

Pages:

United States v. Hooker Chemicals & Plastics, 
749 F.2d 968 (2nd Cir. 1984) ............. 18



IX

Pages:

United States v. New York,
820 F.2d 554 (2nd Cir. 1987) ........................... 18

United States v. Oregon,
839 F.2d 635 (9th cir. 1988)........................  18, 19

United States v. State of Texas,
321 F. Supp. 1043, 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)............................... .. 14

United States v. Stringfellow,
783 F.2d 821 (9th Cir. 1986), vacated 
remanded on other grounds sub nom.,
Stringfellow v. Concerned Neighbors in Action,
480 U.S. 370 (1987) ........................................  18

United States v. Texas Eastern Transmission 
Corporation,
923 F.2d 410 (5th Cir. 1991) ........................  29

United States v. Texas Education Agency (Austin),
467 F.2d 848 (5th Cir. 1972)............................. 14

Venegas v. Skaggs,
867 F.2d 527 (9th Cir.) aff’d 495 U.S. 82
(1989)................................................................  29

Walton v. Alexander,
20 F.3d 1350 (5th Cir. 1994) ...........................  21

Washington Electric Company v. Massachusetts 
Municipal Electric Company,
922 F.2d 92 (2d Cir. 1990)...............................  29



Wygant v. Jackson Board of Education,
476 U.S. 267 (1986)   22

Statutes: Pages:

Fed. R. Civ. P. 24 (a) .................................. 2, 18, 26, 29

Fed. R. Civ. P. 24(a) .............................................  3, 4, 17

Fed. R. Civ. P. 24(b) .................................................  3, 5

Tex. Const, art. VII, §7 (1925, repealed 1969) ...........  10

28 U.S.C. § 1254(1) ........................................................  1

42 U.S.C. §§ 1981 and 1983 ........................................... 2

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

34 C.F.R. § 100.3(b)(2) ...............................................  23

Pages:



OPINIONS BELOW
The opinion of the United States Court of Appeals 

for the Fifth Circuit was filed on March 18, 1996, is 
reported at 78 F.3rd 932 (5th Cir. 1996) and is reprinted in 
the Appendix at la-93a.

The May 11,1994 opinion of the United States Court 
of Appeals for the Fifth Circuit affirming the initial denial 
of intervention is reported at 21 F.3d 603 (5th Cir. 1994) 
(per curiam) and appears at 94a-100a. The August 19, 1994 
opinion of the United States District Court for the Western 
District of Texas declaring unconstitutional the admission 
process used at the University of Texas Law School is 
reported at 861 F. Supp. 551 (W.D. Tex. 1994) and can be 
found in the appendix at 101a-187a. On January 24, 1994, 
the District Court denied the Petitioners’ first motion for 
intervention the unpublished decision of the district court is 
contained in the appendix at 190a-195a. An unpublished 
order entered on July 15, 1994 by the District Court for the 
Western District of Texas denying Petitioners' second motion 
for intervention appears at 188a-189a. On March 18, 1992, 
Petitioners' suggestion for rehearing en banc was denied. 
This denial can be found at 196a-198a. The Fifth Circuit on 
April 23, 1996 issued two opinions of seven of the sixteen 
judges dissenting from the Court of Appeal’s failure to grant 
rehearing en banc in this case and the consolidated case on 
the merits both of which appear at 196a-210a.

JURISDICTION
The jurisdiction of this Court is invoked pursuant to 

28 U.S.C. § 1254(1). The judgment of the United States 
Court of Appeals was filed on March 18, 1996. The Order 
denying the petition for rehearing was entered April 4,1996.

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

This case involves the Fourteenth Amendment to the United 
States Constitution which provides, in relevant part:



2

All persons bom or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and the State wherein they reside. 
No state shall . . . deny any person within its 
jurisdiction the equal protection of the laws.

The case also involves Title VI of the Civil Rights Act of 
1964, 42 U.S.C. § 2000d, which states:

No person in the United States shall, on the ground 
of race, color or national origin, be excluded from 
participation in, be denied the benefits of, or be 
subjected to discrimination under any program or 
activity receiving Federal financial assistance.

The case also involves Fed. R.Civ. P. 24 (a), which states, in 
relevant part:

Intervention of Right. Upon timely application 
anyone should be permitted to intervene in an action 
. . .  (2) 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.

STATEMENT OF THE CASE
A. Proceedings Below

This suit was initiated by the filing of two complaints 
on September 29, 1992 and April 23, 1993 by two separate 
groups of white plaintiffs who had unsuccessfully applied for 
admission to the University of Texas Law School 
(hereinafter "the Law School") for the school year beginning 
in 1992. Plaintiffs claimed that the consideration of race by 
the Law School as part of a remedial policy of affirmative 
action in admissions violated the Fourteenth Amendment to 
the United States Constitution; 42 U.S.C. §§ 1981 and 1983;



3

and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 
2000d et seq.

The district court bifurcated the procedural and 
merits issues and allowed the commencement of discovery 
related solely to issues of standing and ripeness. The State 
of Texas filed a motion for summary judgment on 
procedural grounds on August 13, 1993 which the District 
Court denied on October 28, 1993. On November 17, 1993, 
the Court authorized the beginning of merits discovery.

On January 5, 1994, less than two months after the 
beginning of discovery and nearly three months before its 
scheduled completion, Petitioners first moved to intervene 
in the case. Petitioners are two organizations of African- 
American students. The first, the Black Pre-Law 
Association (hereinafter "the BPLA") of the University of 
Texas at Austin, consists of undergraduate students 
interested in attending law school, including at the 
University of Texas. Each year, a number of BPLA’s 
student members have applied for admission to the Law 
School.

The second organization, the Thurgood Marshall 
Legal Society ("TMLS") is an association of students at the 
Law School dedicated to advancing legal education for 
African-Americans and serving the legal and other needs of 
African-Americans.

Petitioners sought intervention as a matter of right 
under Fed. R. Civ. P. 24(a), as well as permissive 
intervention pursuant to Fed. R. Civ. P. 24(b). They alleged 
that the State could not adequately represent their interests 
because of 1) the long history of the State’s discrimination 
against African-Americans; 2) the State’s need to balance 
the defense of the affirmative action program against other 
interests such as fiscal responsibility, administrative concerns 
and public opinion (which would necessarily constrain the 
defense of affirmative action); and 3) the fact that the



4

Petitioners were in a better position to present evidence of 
recent discrimination. 97a.

In its order denying intervention as of right, 90a, the 
District Court, citing the Fed. R. Civ. P. and Bush v. Vitema, 
740 F.2d 350 (5th Cir. 1984), relied upon a presumption that 
the State could be counted upon to adequately defend its 
own affirmative action program, and dismissed as speculative 
the Petitioners’ concerns that the State would not fully 
represent their interest in the upcoming hearing.

The district court also denied permissive intervention 
on the ground that adding Petitioners to the case "would 
needlessly increase cost and delay disposition of the 
litigation." 194a.

On appeal, the Fifth Circuit upheld the denial of 
intervention as of right, articulating both the general 
presumption of adequate representation by existing parties 
cited by the District Court and a more stringent presumption 
applicable to cases involving state parties and governmental 
agencies:

where the party whose representation is said to be 
inadequate is a governmental agency, a much 
stronger showing of inadequacy is required . . . .  In 
a suit involving a matter of sovereign interests, the 
State is presumed to represent the interests of its 
citizens.

97a-98a (citations omitted).
The Fifth Circuit ruled that these presumptions had 

not been overcome because Petitioners had demonstrated 
neither that the State would not strongly defend its 
affirmative action program nor that the Petitioners had a 
separate defense of the affirmative action plan that the State 
would not present at hearing. In reaching these 
conclusions, the Court relied explicitly upon its expectation 
that the State would present at the forthcoming trial



5

evidence that Petitioners felt was necessary to protect their 
interests:

Although the BPLA and TMLS may have ready 
access to more evidence than the State, we see no 
reason they cannot provide this evidence to the State. 
The BPLA and the TMLS have been authorized to 
act as amicus and we see no indication that the State 
would not welcome their assistance.

98a.1

At the ensuing trial, the district court limited 
Petitioners’ role to that of amici curiae and afforded them 
no opportunity to introduce evidence or argue before the 
court. Following the direction of the Fifth Circuit, 
Petitioners provided the State of Texas with evidence 
showing that the Texas Index, a statistical measure 
combining undergraduate grade-point average and LSAT 
scores used in sorting applicants to the Law School, could 
not reliably predict law school performance of first-year 
African-American students and offered the State the 
testimony of an expert qualified to present evidence that 
race-conscious admissions to the Law School were necessary 
to avoid the discrimination and potential Title VI liability 
that would result from reliance on the Texas Index 
exclusively.2 The state declined to introduce the evidence 
or the testimony of the expert witness, presented no 
evidence concerning the validity of the Texas Index and

1Noting that the Fifth Circuit had never reversed a lower court’s 
decision on Rule 24(b) permissive intervention, the Court found that the 
district court had not abused its discretion in denying petitioners' motion 
to intervene. 99a-100a.

2One need not presume animus on the part of the state to 
understand why such evidence would be awkward for the state to 
introduce.



6

raised no argument that race-conscious measures were 
required to mitigate the discriminatory effect of its use.

At the conclusion of trial, Petitioners submitted a 
post-trial amicus brief supporting the constitutionality of the 
Law School’s admission policy. In the brief, Petitioners 
again argued (relying upon the declaration of the expert 
witness proffered to the State) that rather than being an 
unjustified preference for African-American students, the 
challenged race-conscious admission process was legally 
required to ameliorate the discriminatory impact of the 
Texas Index.

Plaintiffs moved to strike portions of Petitioners’ 
post-trial amicus brief including the declaration. Although 
the district court denied the motion to strike, it indicated 
that it would consider only the evidence introduced at trial 
by the parties.

On July 12, 1994, before the district court had 
announced its judgment on the merits, Petitioners moved 
again to intervene for the limited purpose of introducing 
evidence supporting the independent defenses that the State 
failed to raise. The district court denied that motion without 
opinion on July 15, 1994. 188a-189a.

On August 19, 1994, the district court entered 
judgment on the merits for plaintiffs, holding that while 
certain types of race-conscious admissions are 
constitutionally justified at the Law School, the 1992 
admissions policy under which the plaintiffs were considered 
and rejected was not "narrowly tailored" and was therefore 
unlawful. The court awarded plaintiffs nominal damages but 
declined to order that they be admitted or to enjoin 
defendants from any consideration of race in the admissions 
process. Although the district court recognized that 
formerly dual systems of higher education are "under an 
affirmative duty to eliminate every vestige of racial 
segregation and discrimination" pursuant to United States v.



7

Fordice, 505 U.S. 717 (1992), 151a, the court did not 
consider or address the separate defenses advanced by the 
Petitioners or hold that affirmative action by the Law School 
is necessary to avoid unlawful discrimination, as urged by the 
Petitioners.

Petitioners appealed from this second denial of 
intervention and plaintiffs appealed the district court's 
judgment on the merits. Petitioners argued that the district 
court had failed to recognize the significance of the State of 
Texas's unwillingness to raise the defense of its admission 
programs which the petitioners had proffered in the course 
of trial. Petitioners contended that the court's failure to 
allow limited intervention at the conclusion of trial based 
upon the fact that the State's conduct of its defense showed 
unequivocally that Petitioners' and the State's interests and 
defenses were divergent was error. As a result, Petitioners 
alleged that they were denied the opportunity to contribute 
evidence and defenses that would have compelled the court 
to acknowledge the remedial basis for the Law School's 
admission program and therefor effectively protect their 
interest in assuring the continued presence of African- 
American students to the Law School.

A panel of the Fifth Circuit affirmed the post-trial 
denial of intervention without addressing Petitioners' claim 
that the State's failure at trial to present the evidence which 
would have compelled the use of race-conscious admissions 
at the Law School constituted undeniable proof that 
Petitioners’ interests were not in fact adequately 
represented.

Instead, the panel upheld the district court based on 
the doctrine of “law of the case”, finding that the panel 
hearing the appeal of the first denial of intervention had 
“implicitly” addressed the legal questions raised in the 
second intervention motion -  even though that motion was 
not made until after the completion of trial and after it had 
become clear that the first panel’s expectation that the State



would advance arguments urged by the plaintiffs was not to 
be realized.

At the same time, the Fifth Circuit reversed the 
district court regarding the merits case, holding in sweeping 
terms that the law school may not use race as a factor in 
admissions and dismissing out of hand the use of race to 
achieve diversity in an academic setting as well as all 
arguments that the use of race-conscious admissions was 
necessary to address the present effects of past 
discrimination.

Petitioners then suggested rehearing en banc on the 
issue of denial of intervention.3 On April 9,1996, the Court 
denied rehearing en banc and announced the forthcoming 
release of a dissent from the denial. On April 23, 1996, the 
two dissenting opinions from the denial of rehearing in both 
of the consolidated cases were released. The first, written by 
Chief Judge Politz and joined by six additional judges, 
faulted the Court for denying rehearing of a panel decision 
which the dissenters felt "departed from the normal 
considerations of judicial restraint" by addressing issues that 
had not been properly raised in the case below and by 
effectively overruling this Court's decision in Bakke. Judge 
Stewart wrote separately to emphasize the historical irony of 
the Circuit’s failure to grant rehearing and to condemn 
Petitioners’ exclusion from the lawsuit through the denial of

3The State did not seek rehearing. In their suggestion for rehearing, 
as they do now, while acknowledging their inability to seek rehearing in 
the merits case because they were not parties, having been denied 
intervention, Petitioners stated their belief that the issues decided in the 
consolidated merits appeal were of extraordinary public importance and 
had an impact on the interests of all African Americans, including those 
represented by Petitioners .Petitioners nonetheless stated their belief that 
rehearing would be warranted due to the importance of the issues raised 
as well as the apparent conflict between the panel's decision and the 
holding of this Court in Regents of the University o f California v. Bakke, 
438 U.S. 265, 307 (1978).



9

intervention: "[a]s to the request to intervene, what class of 
persons is more qualified to adduce the evidence of the 
present effect of past discrimination than current and 
prospective black law students?" 209a.

B. Statement of Facts

The significance of the Fifth Circuit’s exclusion of 
African-American pre-law and law students from 
participation in a case that could result in the 
implementation of an admission process that effectively (and 
unjustifiably) excludes African-American and Mexican 
American students from attendance at the University of 
Texas Law School can only be understood within the context 
of historical and current discrimination affecting students 
and applicants to the Law School and the continuing 
obligation of the Law School to remedy prior discrimination. 
For that reason, the facts of the merits appeal are in some 
measure inextricable from issues raised by the Petitioners. 
Accordingly, Petitioners submit that this Court should grant 
certiorari on the question of denial of intervention as well as 
on the merits, see Petition No. 95-1773, and the facts 
relevant to both are discussed briefly below.4

Petitioners recognize that, as non-parties, they cannot themselves 
seek review of the merits ruling, but they urge this Court to grant the 
Petition filed by the State of Texas with this Court on April 30, 1996. 
The decision of the Fifth Circuit prohibiting the consideration of race in 
the admissions process at the University of Texas conflicts with relevant 
precedents of this Court including Regents o f the University of California 
v. Bakke and for the reasons given by the State and the dissenters from 
the denial of rehearing en banc, warrant review by this Court:

[t]he radical implications of this opinion, with its 
sweeping dicta, will literally change the face of public 
educational institutions throughout Texas, the other 
states of this circuit, and this nation. A case of such 
monumental import demands the attention of more 
than a divided panel.

200a.
As discussed below, Petitioners believe that fairness dictates not



10

There is no dispute that the State of Texas was 
responsible for creating and maintaining a system of higher 
education rife with discrimination:

Texas’ system of higher education has a history of 
state-sanctioned discrimination. Discrimination 
against blacks in the state system of higher education 
is well documented in history books, case law, and 
the State’s legislative history.

106a.

From the mid-1800’s until this Court’s decision in 
Sweatt v. Painter, 339 U.S. 629 (1950), the Law School 
operated with official admissions policies and practices that 
expressly excluded persons of African descent. The Texas 
Constitution and state statutory provisions restricted the 
school to white students, Tex. Const, art. VII, §7 (1925, 
repealed 1969), 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. 106a. The 
State’s response to Sweatt’s exposure of the complete 
absence of legal education for African-Americans was 
inadequate: "The State hastily created a makeshift law
school that had no permanent staff, no library staff, no 
facilities, and was not accredited. 106a-107a, citing Sweatt v. 
Painter, 339 U.S. at 632.

This Court’s unanimous decision requiring that the 
University of Texas admit Mr. Sweatt did not halt the 
flagrant discrimination to which he and other minority 
students were subjected. As the district court found, the end 
of explicit racial prohibitions did not root out deeply

only a review of the merits appeal but also the inclusion of Petitioners 
both to assure that no decision of such import is made without a 
complete record and to assure participation in the process by those who 
had suffered most from prior discrimination and who stand to lose the 
most by an adverse ruling in the matter.



11

entrenched discrimination at the Law School: "Sweatt left 
the law school in 1951 without graduating after being 
subjected to racial slurs from students and professors, cross 
burnings, and tire slashings." 107a.

The district court found that the University of Texas 
continued discriminatory policies for decades after the 
Sweatt decision. In the 1950s and 60s, the Texas Board of 
Regents prohibited blacks from living in or even visiting 
white dormitories and assigned Mexican-American students 
to segregated housing. 107a. In the 1960s, Mexican- 
Americans and African-Americans were also excluded from 
membership in most University-sponsored organizations. Id.

Continuing discrimination was not limited to 
treatment accorded minorities upon their admission to the 
Law School. The record indicated that barriers to admission 
in the law school remained in place long after the Sweatt 
decision. Notwithstanding the minimal standards for 
admission that were in place until 1965, the number of 
African-American students admitted was extremely small. 
112a.

Although the Law School tried to increase minority 
representation in the student body in the late 1960s through 
participation in the Council on Legal Education Opportunity 
(CLEO,) a program that provided summer training at 
participating law schools for minority graduates of various 
universities, the Law School’s involvement was short-lived, 
as were any gains in minority participation. During the 1971- 
72 admission cycle, after the Law School ended its 
participation in the CLEO program, the Law School 
admitted no African-Americans . 114a.

The first serious effort to remedy segregation at the 
Law School came as a result of an action brought against the 
United States Department of Health, Education and Welfare 
("HEW"), the predecessor to the United States Department 
of Education. In 1970, a class of African-American students



12

in 17 Southern and border states, including Texas, sued 
HEW asserting that the federal government’s funding of 
state systems of higher education that discriminated against 
African-Americans by operating segregated institutions 
violated Title VI of the Civil Rights Act of 1964 and the 
U.S. Constitution. Adams v. Richardson, 351 F.Supp. 636 
(D.D.C. 1972), 356 F.Supp. 92 (D.D.C.), modified and affid 
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 federal government to enforce Title VI in higher 
education.

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 de 
jure racially dual system of public higher education, a system 
which segregated blacks and whites." 109a.

In 1982, the Assistant Secretary of Education 
informed the State defendants that existing plans, which 
included a commitment to the goal of equal educational 
opportunity and student body desegregation for both blacks 
and Hispanics, were insufficient to eliminate the vestiges of 
past discrimination. The plan’s goals for the enrollment of 
African-American and Hispanic students fell short of the 
State’s earlier commitment to seek enrollment of those 
groups in proportion to their representation among 
graduates of the State’s undergraduate institutions. 104a- 
110a referring to Letter of Assistant Secretary of Education 
Clarence Thomas, D-284. The defendants responded with 
a revised plan, which OCR rejected, in part because it did 
not set targets for increasing minority enrollment for each 
institution. Id.

On March 23, 1983, the district court ordered OCR 
to commence formal enforcement proceedings against Texas



13

within 45 days, unless OCR concluded that Texas had 
submitted a desegregation plan in full conformity with 
governing law. 110a. 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. 
Under this plan, defendants agreed "to consider each 
candidate’s entire record and [to] admit black and Hispanic 
students who demonstrate potential for success but who do 
not necessarily meet all traditional admission requirements." 
110a. The plan was subject to monitoring for compliance 
until 1988. 111a.

In 1987, OCR contacted state higher education 
authorities informing them that a final evaluation would 
have to be conducted prior to the expiration of the plan the 
following year in order to determine if the State met its 
obligations. 111a. Having itself determined that the goals 
and objectives of the plan had not been met, the State 
voluntarily developed a successor plan. Id. As of the time 
of the district court’s ruling in this case, OCR had not 
completed its evaluation of Texas’ compliance with Title VI. 
112a. In January 1994, the Department of Education 
notified Governor Richards that OCR was continuing to 
oversee Texas’ efforts to eliminate all vestiges of de jure 
segregation and that it would be reviewing the Texas system 
in light of United States v. Fordice, 505 U.S. 717 (1992).

In addition to its findings about the continuing 
vestiges of discrimination in the Law School, the district 
court made findings that placed the Law School within the 
context of education statewide.5 As is true in the area of 
higher education, Texas has a long and lingering history of 
discrimination at the elementary and secondary school levels:

5Since state law requires that enrollment at the Law School must 
consist of 85% Texas residents, the majority of law students attended 
Texas schools at earlier stages of their academic careers. 128a-129a.



14

"[t]he history of official discrimination in primary and 
secondary education in Texas is well documented in history 
books, case law and the record of this trial." 104a. See also 
LULAC v. Clements, 999 F.2d 831 (5th Cir. 1993, cert, 
denied, 114 S. Ct. 878 (1994)(recognizing that the long 
history of discrimination against African-Americans and 
Hispanics in all areas of public life is beyond dispute). 
Indeed, the State of Texas and virtually every major school 
system within it have been found by a court to have 
operated a racially dual system of education. See e.g. 
Houston Independent School District v. Ross, 282 F.2d 95, 96 
(5th Cir. 1960); Borders v. Rippy, 247 F.2d 268 (5th Cir. 
1957)(Dallas); United States v. Texas Education Agency 
(Austin), 467 F.2d 848 (5th Cir. 1972); Flax v. Potts, 204 
F.Supp. 458 (N.D. Tex. 1962), aff’d, 313 F.2d 284 (5th Cir. 
1963) (Ft. Worth); United States v. State of Texas, 321 F. 
Supp. 1043, 330 F. Supp. 235 (E.D. Tex. 1970), affd with 
modifications, 447 F.2d 441 (5th Cir. 1971), cert, denied, 404 
U.S. 1016 (1972) (statewide relief).

Many of these districts have not been determined to 
have eliminated (to the extent practicable) all vestiges of the 
dual systems under which they once operated. The trial 
court expressly found that, as of May 1994, "the problem of 
segregated schools is not a relic of the past" as reflected in 
the fact that desegregation lawsuits remained pending 
against more than forty Texas school districts. 105a.

The court also found that persistent racial hostility at 
the Law School had perpetuated the perception that the Law 
School was intended for white students. 153a.

After weighing the examples of persistent vestiges of 
discrimination including those cited above, the district court 
found that "[t]he defendants have shown it is not possible to 
achieve a diverse student body without an affirmative action 
program that seeks to admit and enroll minority candidates." 
156a. Dramatic proof of the need for affirmative action 
could be seen in the effect that elimination of race-conscious



15

relief would have on the racial composition of the student 
body at the Law School. The court made an evidentiary 
finding that "[h]ad the law school based its 1992 admissions 
solely on the applicants’ [Texas Index scores] without regard 
to race or ethnicity, the entering class would have included, 
at most, nine blacks and eighteen Mexican Americans." 150a.

In addition to the evidence of the present effects of 
past discrimination considered by the court, the Petitioners 
sought to intervene twice to present evidence which showed 
that admissions practices currently in use had a 
discriminatory impact on African-American students. 
Petitioners identified and made known to State defendants 
an expert witness who was qualified to present evidence that 
race-conscious admissions to the Law School were necessary 
to avoid the unlawful racial discrimination (in violation of 
Title VI) that would result from application of the same 
Texas Index requirements to white and African-American 
students. This evidence was never properly before any of 
the courts below because of the State’s refusal to present 
this defense and the lower courts’ refusal to allow Petitioners 
to intervene to present this and other defenses.

REASONS FOR GRANTING THE WRIT 

INTRODUCTION
In holding that the University of Texas Law School 

may not consider race as a factor in making admissions 
decisions, the Fifth Circuit Court of Appeals disregarded this 
Court’s decisions while excluding evidence that provided 
ample justification for the use of race-conscious criteria in 
admissions. The Court’s errors of deciding issues not fully 
presented by the case before it, of failing to recognize the 
significance of continuing effects of the State’s prior 
unconstitutional conduct, and of rejecting the holding in 
Regents of the University o f California v. Bakke, 438 U.S. 265 
(1978), that the goal of diversity in higher education is a 
sufficient justification for considering race as a factor when



16

making admissions decisions, were compounded by its 
affirmance of the district court's denial of intervention to the 
Thurgood Marshall Legal Society and the Black Pre-Law 
Association, organizations which represent African-American 
students who attend the University of Texas Law School 
and the University of Texas.

The Fifth Circuit's decision to exclude the Petitioners 
from this litigation should be reviewed by this Court not only 
because it impedes their ability effectively to protect their 
interest in preserving an admission program that counters, 
rather than perpetuates, the effects of discrimination of 
which they were historical victims but also because the effect 
of the denial of intervention was to preclude the 
introduction of evidence that would have amply justified the 
use of race-conscious measures — evidence the State refused 
to present and which only the Petitioners were prepared and 
willing to proffer at trial.

Constitutional questions as far-reaching as those 
raised in this case should be decided carefully after rigorous 
examination of all of the potential defenses and with 
consideration of all of the varying interests involved. Such 
rigor was absent in the decision below. Decisions made on 
a perfunctory basis are undesirable in any case. In this case, 
the effects were particularly serious. The failure to permit 
the parties who have the most to lose from a prohibition 
against race-conscious admissions to enter the case and the 
court's unwillingness to consider competent evidence that 
affirmative action was not only justified but compelled by the 
existence of present discrimination against African- 
Americans is particularly grave given Texas' long history of 
denying equal educational opportunity to the class of which 
Petitioners are members.

African-Americans increasingly find themselves 
reduced to the status of observers of Federal Court 
proceedings that result in loss of hard-fought achievements 
of earlier cases brought by their predecessors. The loss of



17

those achievements is felt even more harshly when, as here, 
African-Americans denied the opportunity to intervene are 
compelled to watch while the defense of their interests is 
placed entirely in the hands of entities which have for 
generations fought to deny them equal rights and which even 
today decline to use the most effective weapons in the 
arsenal of available defenses. The very same law school 
which was the subject of this Court’s landmark decision in 
Sweatt v. Painter, which first opened the doors to legal 
education for African-Americans seeking to attend in Texas, 
has failed to adequately represent the interests of African- 
American students. This Court should review the panel’s 
decision and take corrective action.

I. Certiorari should be granted to resolve a conflict 
among the Circuits as to whether the standard for 
intervention as of right on the side of a 
governmental agency is more stringent than the 
standard established by Trbovich v. United Mine 
Workers.

The court of appeals noted that the standard for 
intervention as a matter of right under Rule 24(a), Fed. 
Rules of Civ. Proc., ordinarily imposes a minimal burden on 
the movant, citing this Court’s decision in Trbovich v. United 
Mine Workers, 404 U.S. 528, 538 n. 10 (1972), holding that 
the requirement "is satisfied if the applicant shows that 
representation of his interest ‘may be’ inadequate." 97a. 
The court below denied intervention to petitioners, however, 
by applying a "much stronger showing of inadequacy" 
because the party in question is a government agency, on the 
ground that in "a suit involving a matter of sovereign 
interest, the State is presumed to represent the interests of 
all of its citizens." 97a-98a.

There is substantial conflict and confusion among the 
courts of appeals as to whether the minimal Trbovich 
standard, or the Fifth Circuit’s "much stronger" standard 
governs where the party whose representation is claimed to



18

be inadequate is a governmental agency. This is an 
important and recurring issue in the lower federal courts, 
and the conflict among them should be resolved by this 
Court.

The Second and Third Circuits have applied 
substantially the same parens patriae presumption as the one 
applied by the Fifth Circuit here. See Brody by and Through 
Sugzdinis v. Spang, 957 F.2d 1108, 1122 (3rd Cir. 1992); 
United States v. Hooker Chemicals & Plastics, 749 F.2d 968, 
987 (2nd Cir. 1984); but cf, United States v. New York, 820 
F.2d 554, 558 (2nd Cir. 1987)(parens patriae presumption 
applies only when state acts as the sovereign representative 
of all of its people, not applicable when state sued in its 
capacity as an employer under Title VII of the Civil Rights 
Act of 1964).

On the other hand, the Ninth and Tenth Circuits 
have applied the Trbovich standard consistently in cases 
where the party whose representation is claimed to be 
inadequate is a governmental agency. See Sagebrush 
Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983); 
United States v. Stringfellow, 783 F.2d 821, 827 (9th Cir. 
1986), opinion vacated and remanded on other grounds sub 
nom., Stringfellow v. Concerned Neighbors in Action, 480 U.S. 
370 (1987); United States v. Oregon, 839 F.2d 635, 637-38 
(9th cir. 1988); Sanguine, Ltd. v. United States Department of 
the Interior, 736 F.2d 1416, 1419 (10th Cir. 1984).

Still other Circuits have taken different positions in 
different cases. Thus, the Court of Appeals for the District 
of Columbia Circuit followed the parens patriae rule in 
Environmental Defense Fund, Inc. v. Higginson, 631 F.2d 738 
(D.C.Cir. 1979), but has permitted liberal intervention, 
holding that Rule 24 (a) is satisfied when it can be said that 
the applicant intervenor has an interest different from the 
governmental agency Dimond v. District of Columbia, 792 
F.2d 179 (D.C. Cir. 1986); accord, Mille Lacs Band of 
Indians v. Minnesota, 989 F.2d 994, 1000-1002 (8th Cir.



19

1993)(announcing parens patriae rule, but following Dimond 
in liberally finding inadequacy of representation); Meek v. 
Dade County, 985 F.2d 1471, n.77-78 (11th Cir.
1993)(presumption of adequacy of representation dissipates 
upon any showing of divergence of interests). See generally 
Conservation Law Foundation v. Mosbacher, 966 F.2d 39, 41- 
43 (1st Cir. 1992)(noting the split among the other circuits 
while finding government representation inadequate in case 
at bar).

In short, it is clear that under the standard of the 
Ninth Circuit, for example, Petitioners would have been 
permitted to intervene, since the State of Texas would not 
and did not "make all the arguments the applicants would 
make." United States v. Oregon, 839 F.2d at 638. The same 
result would have obtained in the Tenth Circuit and, most 
probably, in the District of Columbia, Eighth, and Eleventh 
Circuits as well. As we will now discuss, the issues raised by 
this case, and the arguments and evidence that would have 
been made by the Petitioners had they been granted party 
status through intervention exemplify the ways in which 
erroneous decisions respecting intervention can affect a 
court’s judgment on the merits and underscore the need for 
this Court to state the correct standard.

II. This Court should review the denial of 
intervention in this case which involves race 
conscious admissions in higher education and 
the continuing vitality of Bakke from which 
the panel improperly departed, and which 
should not be resolved without the evidence 
that Petitioners sought to present as 
Intervenors.
The Fifth Circuit's decision on the companion merits 

appeal was far ranging and broad in its scope:

In summary, we hold that the University of Texas 
School of Law may not use race as a factor in



20

deciding which applicants to admit in order to 
achieve a diverse student body, to combat the 
perceived effects of a hostile environment at the law 
school, to alleviate the law school's poor reputation 
in the minority community, or to eliminate any 
present effects of past discrimination by actors other 
than the law school.

76a-77a.

This single sentence not only sums up a holding 
purporting to relate to infirmities of the selection process 
used by the Law School in 1992 but also effectively 
articulates a fundamental departure from and narrowing of 
the permissible use of race in admissions in higher 
education. As recognized by the judges dissenting from the 
denial of en banc consideration,”[t]he radical implications of 
this opinion, with its sweeping dicta, will literally change the 
face of public educational institutions throughout Texas, the 
other states of this circuit, and this nation.” 200a. That the 
panel saw fit to disregard and effectively to overrule this 
Court's decision in Regents of the University of California v. 
Bakke, 438 U.S. 265 (1978) permitting the consideration of 
race for purposes of obtaining a diverse student body, is 
itself sufficiently problematic. That it did so in a case which 
did not require a large-scale re-examination of what 
constitutes a compelling interest justifying the consideration 
of race as a factor in admissions in higher education adds 
injury to the initial insult.

This judicial overreaching is particularly egregious 
because, in addition to the reasons cited in the dissents, had 
any of the lower courts granted Petitioners' intervention 
motions, an additional, narrower basis for deciding the issue 
of the constitutionality of race-conscious admissions would 
have been before the court.

Both the concurring opinion of the three-judge panel 
and the dissents from denial of rehearing en banc, faulted



21

the panel and the entire court for violating basic restrictions 
on judicial authority. As a preliminary matter, "[t]he 
Supreme Court has left no doubt that as a constitutionally 
inferior court [the Fifth Circuit is] to follow faithfully a 
directly controlling Supreme Court precedent unless and 
until the Supreme Court itself determines to overrule it.” 
201a, citing Rodriguez de Ouijas v, ShearsonjAmerican 
Express, Inc., 490 U.S. 477 (1989).

In addition to the constraints imposed upon Courts 
of Appeals by decisions of the United States Supreme Court, 
judicial restraint counsels against deciding constitutional 
issues not necessary to the disposition of individual cases, a 
principal that the court below has recognized in other 
contexts but refused to apply in this case:

[I]t is settled that courts have a “strong duty to avoid 
constitutional issues that need not be resolved in 
order to determine the rights of the parties to the 
case under consideration.” County Court o f Ulster 
County v. Allen, 442 U.S. 140, 154 (1979). This 
responsibility to avoid unnecessary constitutional 
adjudication is a fundamental rule of judicial 
restraint. Three Affiliated Tribes v. World Engineering, 
467 U.S. 138, 157 (1984). All this, of course, applies 
not only to the Supreme Court but to lower courts as 
well. See Bowen v. United States, 422 U.S. 916 
(1975).

Walton v. Alexander, 20 F.3d 1350, 1356 (5th Cir. 1994).

The Fifth Circuit violated both the charge to follow 
Supreme Court precedent and the prohibition against 
deciding unnecessary constitutional issues by treating this 
Court's decision in Bakke as no longer binding and issuing 
a blanket prohibition against the consideration of race in 
admission to the Law School:

Rather than following this universally recognized 
canon, adhering to our established rules, and



22

applying Supreme Court precedent, the panel charted 
a path into terra incognita. Judicial self-restraint was 
the first casualty . . . .  The teachings proscribing the 
consideration of constitutional issues unnecessary to 
the decision soon followed. With these two 
limitations adroitly set aside, the panel majority 
apparently considered itself positioned to overrule 
Bakke.

205a.

The exclusion of Petitioners, and of the arguments 
and evidence that they sought to introduce is particularly 
ironic given the fact that those arguments and evidence 
would have expressly addressed the panel’s concern that 
there was insufficient showing of a factual basis for the Law 
School’s belief that it had a remedial justification for its 
racial classifications. 43a, citing Wygant v. Jackson Board of 
Education, 476 U.S. 267, 277-78 (1986).

Petitioners sought to intervene precisely for the 
purpose of providing such remedial justification. They 
initially suggested to defendants that the Texas Index 
measure is invalid as to African-Americans and that its use 
in the admissions process had a discriminatory effect on 
African-Americans. As soon as it became clear that the 
State would not use this defense, Petitioners sought to 
introduce it themselves through a declaration prepared by 
Dr. Martin Shapiro. In his declaration, Dr. Shapiro summed 
up the results of his examination of the evaluation of 
statistics about the Law School’s entering classes of 1986, 
1987 and 1988 that were in the trial record:

Specifically, I have concluded (1) that regression 
analysis results obtained by the Law School 
Admission Services [Plaintiffs Exhibits 136 and 137] 
conclusively demonstrate that the selection criteria 
which the Law School has used to evaluate African- 
American applicants were invalid, (2) that the Texas



23

Index should not have been used as an initial sorting 
criterion for African-American applicants, but (3) 
that the practice of reducing the numerical values of 
the Texas Index required of African-American 
applications had, at least some, ameliorative effect 
upon the invalid application of the Texas Index.

Shapiro Declaration at 117.
Shapiro further concluded that "[t]he best, most valid, 

[admissions] procedure would have been to eliminate the use 
of the Texas Index as an initial sorting criterion for the 
African-American applicants and to proceed directly to the 
more extensive evaluation and review of the applications." 
Shapiro Declaration at 1135. Failing that, however, lowering 
the Texas Index values used to sort African-American 
applications -- the course actually taken by the Law School 
— "at least partially ameliorated the invalid preclusive effect 
of the Texas Index" by disfavoring fewer blacks under a 
measure that was invalid for them as a group. Id. at 1137.

In contrast, Dr. Shapiro found that "the least valid 
procedure would have been to sort initially all applicants by 
applying the same required Texas Index values to both 
White and African-American applicants" id. at 11 38 
(emphasis added) -- the alternative sought by plaintiffs. The 
result of this process would be to eliminate unlawfully 
"almost all African-American applicants, generally, and to 
eliminate many or all of the most qualified African- 
American applicants." Shapiro Declaration at 11 18.

The use of invalid measures that have a 
discriminatory effect on African-Americans is unlawful. See 
34 C.F.R § 100.3(b)(2)(1993) (U.S. Department of 
Education regulations implementing Title VI); Larry P. v. 
Riles, 793 F.2d 969 (9th Cir. 1984)(use of non-validated IQ 
tests with discriminatory effect on black children to place 
students in classes for the educable mentally retarded 
violates Title VI); Groves v. Alabama State Board of



24

Education, 776 F. Supp. 1518 (M.D. Ala. 1991) (enjoining, 
under Title VI, state board of education from using 
minimum ACT score as requirement for admission to 
undergraduate teacher training program); see also United 
States v. Fordice, 505 U.S. at 718-719,(expressing serious 
doubts about the constitutionality of Mississippi’s continued 
use of ACT cut-scores for admission to its white colleges).

Compliance with anti-discrimination law requires 
eliminating or diminishing reliance on invalid, discriminatory 
measures as to those groups that are disproportionately 
excluded. See Kirkland v. New York Dept, of Correction 
Services, 628 F.2d 796 (2d Cir. 1980), cert, denied, 450 U.S. 
980 (1981) (Title VII decision affirming trial court’s addition 
of 250 points to the raw scores of group adversely impacted 
by invalid examination); Association Against Discrimination 
in Employment v. City of Bridgeport, 594 F.2d 306 (2d Cir. 
1979) cert, denied 455 U.S. 988 (1982)(Title VII decision 
suggesting lowering the cut-off score for minority test takers 
as suitable remedy for an invalid test with a discriminatory 
effect).

Evidence of the continuing discriminatory effect of 
the Texas Index complements the extensive record of OCR 
findings of persistent vestiges of discrimination and 
demonstrates the unequivocal existence of present effects of 
discrimination. In light of the totality of the evidence, the 
challenged admission process was not a racial preference but 
rather a necessary and lawful response to the invalidity of 
applying this measure to African-American and Mexican- 
American applicants.

The failure of any of the courts below to address this 
evidence at any level creates an inadequate foundation for 
the broad-reaching decision rendered by the Fifth Circuit. 
This Court should grant certiorari on both the merits 
petition and this petition to assure that in reaching its 
decisions on issues that will have a dramatic impact on both 
institutions of higher learning and African-Americans, the



25

Court has the benefit of the full presentation of relevant 
evidence which is obtained only through adequate 
representation of important interests and argument on 
behalf of all parties.
III. This Court should review the denial of 

Petitioners’ motions for intervention because 
the bases upon which the court below 
affirmed the trial court’s denials conflict with 
relevant decisions of this Court and depart 
from accepted standards of judicial conduct.
Despite the strong interest Petitioners have in the 

outcome of this matter, and the fact that they would have 
brought to the litigation relevant evidence rejected and 
disregarded by the party which the Court entrusted to 
defend and represent their interests, the courts below have 
repeatedly denied them intervention. This denial is 
inconsistent with the ruling of this Court and prevailing 
decisions in other circuits.

On no occasion has a court held in this case that 
Petitioners’ bid for intervention as of right should fail 
because it was untimely, or because Petitioners lacked an 
interest relating to the subject of the ongoing litigation or 
did not face the prospect of suffering an impairment or 
impediment to their ability to represent their interests. 
Petitioners, African-Americans who are present and 
prospective students of the Law School, have an undeniable 
interest in assuring continued opportunities for non- 
discriminatory admission and retention. See United States v. 
Fordice, 505 U.S. 717, 723 (1992) (recognizing role of private 
plaintiffs in vindicating their interest in elimination of 
vestiges of discrimination in prior dual university system); 
Knight v. Alabama, 14 F.3d 1534, 1540 (11th Cir. 
1994)(recognizing interest identified in Fordice). The Fifth 
Circuit’s prohibition on the consideration of race in 
admissions notwithstanding (a) the past history of 
discrimination against African-Americans at the Law School



26

and throughout the state educational system, (b) the 
discriminatory impact of the use of the Texas Index and (c) 
the desirability of maintaining diversity coupled with the 
virtual certainty that strict use of the Texas Index without 
considering race would greatly reduce the number of 
African-Americans admitted to the Law School each provide 
ample proof of the extent to which Petitioners’ interests 
were subject to impairment.

The Fifth Circuit sought to justify the denial of 
intervention by determining that the existing parties were 
able adequately to represent the Petitioners’ interests. This 
finding is contrary to prevailing law and counter to the facts 
of this case.

This Court has held that an applicant for intervention 
can satisfy the requirements of Fed. R. Civ. P. 24 (a)(2) by 
demonstrating that representation by the existing parties may 
be inadequate and that the burden of making that showing 
is minimal. Trbovich v. United Mine Workers, 404 U.S. 528, 
538 n.10 (1972) (reversing denial of union member’s motion 
for leave to intervene in suit brought by Secretary of Labor 
pursuant to complaint by that member).

The district court denied the first motion for 
intervention by employing a standard more stringent than 
that articulated by this Court in Trbovich. Petitioners raised 
the possibility of conflict in the State’s defense of its 
affirmative action program, noting that the State represented 
a multiplicity of interests of its numerous citizens, some of 
whom likely would not share Petitioners’ concern for the 
maintenance of race-conscious admissions, and that the State 
was potentially liable for acts of discrimination against 
African-Americans and might thus be less than vigorous in 
raising defenses that might expose it to liability. Petitioners 
also made clear their intention to raise questions about the 
discriminatory effect of the use of the Texas Index as an 
admissions sorting device. Despite these clearly articulated 
reasons for believing that the State would not adequately



27

represent the interests of African-American students, the 
district court rejected the potential conflict as being 
speculative. 193a.

Relying on a number of cases in which the state 
appeared in either a regulatory, enforcement or parens 
patriae capacity, the Fifth Circuit applied a much stronger 
"state government" presumption of adequacy. 96a.

This presumption was applied in a way which made 
intervention virtually impossible. Even though there were 
clearly articulated conflicts in the State’s interests in 
sustaining both its affirmative action plan and its other Law 
School admissions criteria and even though the State was 
not only appearing in its parens patriae capacity but also as 
an entity that had constructed and maintained a dual system 
of education which discriminated on the basis of race and 
continued to employ practices in admission to the Law 
School which had a disproportionate impact on African- 
Americans, the Court below found the presumption of 
adequate representation was not rebutted.

The second ground for upholding the denial of 
intervention created a similarly difficult barrier to 
Petitioners’ participation. The Fifth Circuit effectively relied 
upon a presumption of altruism on the State’s part:

Although the BPLA and the TMLS may have ready 
access to more evidence than the State, we see no 
reason they cannot provide this evidence to the State. 
The BPLA and the TMLS have been authorized to 
act as amicus and we see no indication that the State 
would not welcome their assistance.

98a.
By so holding, the Fifth Circuit effectively 

transformed the legal standard from one under which a 
potential intervenor must make a minimal showing that 
existing parties may not adequately represent the



28

intervenor’s interest to one under which a movant is 
required to show that existing parties will categorically refuse 
to assert a specific defense or introduce specific evidence. 
Short of obtaining an affidavit or pleading indicating hostile 
intentions, it is difficult to imagine how such a burden might 
be met.

The error of enforcing these heightened standards 
was highlighted by subsequent events in the proceeding. 
After the State’s presentation at trial made clear that the 
State would not offer Petitioners’ defense and evidence and 
that the Petitioners’ interests would be impaired, both the 
district court and the Fifth Circuit still denied intervention. 
Neither court addressed the fact that Petitioners’ defenses 
and evidence had undeniably been excluded from the 
proceedings as a result of the denial of intervention. The 
district court order contains no discussion whatsoever of the 
facts. 188a-189a. By its misplaced reliance on the "law of the 
case” doctrine, the second panel of the Fifth Circuit 
successfully evaded the impact of its earlier decision.6 Thus, 
although Petitioners were proven correct in their belief that 
the State would not adequately represent their interests, 
their claims were never properly addressed.

Nor can Petitioners find consolation in the fact that 
the Fifth Circuit held out the possibility of a new Title VI 
action directed at the discriminatory effect of the Texas 
Index. This invitation serves only to emphasize how the 
courts below subverted the very purposes of the Federal 
Rules of Civil Procedure by denying intervention. Although 
it is true that Petitioners could file a new complaint, 
disposition would have to await the completion of a lengthy 
and costly new round of litigation on the identical issues

6The assertion by the court below that the first panel "implicitly" 
passed upon the adequacy of Petitioners’ Texas Index claims as a basis 
for intervention if the evidence were not presented by the State is 
patently wrong.



29

raised in the instant case.7 This clearly frustrates the goal 
of judicial economy and fairness which inform Fed. R. Civ. 
P. 24, whose purpose is "to foster economy of judicial 
administration and to protect non-parties from having their 
interests adversely affected by litigation conducted without 
their participation." Stallworth v. Monsanto Co., 558 F.2d 
257, 265 (5th Cir. 1977); United States v. Texas Eastern 
Transmission Corporation, 923 F.2d 410, 412 (5th Cir. 1991) 
(quoting Smuck v. Hobson, 408 F.2d 175, 179 (D.C. Cir. 
1969) (en banc))', Washington Electric Company v. 
Massachusetts Municipal Electric Company, 922 F.2d 92 (2d 
Cir. 1990); Venegas v. Skaggs, 867 F.2d 527, 530 (9th Cir.) 
ajfd  495 U.S. 82 (1989).

The effects of the decisions denying intervention in 
this action on the ability of African-American Petitioners to 
protect their interests in being free of discrimination in 
seeking admissions to the Law School are only exacerbated 
by the manifest unfairness of excluding the class of victims 
of prior constitutional and statutoiy discrimination from 
proceedings which will have an impact on the very programs 
designed to remedy prior violations against African- 
Americans. The unseemly prospect of relegating Petitioners 
to the role of sideline observers to proceedings that may 
affect their own future educational opportunities requires

7In fact, the suggested new action would more successfully create a 
Gordian knot than assure the vindication of all potential interests. Were 
Petitioners to be successful in an attack alleging the discriminatory effect 
of the Texas Index either through the judgment of a court or agency or 
consent judgment with the State, any remedy would be subject to attack 
by plaintiffs or any similarly situated non-minority Law School applicant. 
See Martin v. Wilks, 490 U.S. 755 (1989). Assuming that the same 
standard of intervention applied to white movants for intervention as was 
used for Petitioners, their sole means of recourse would be the initiation 
of a new action against the State, from which Petitioners again would 
presumably be excluded. With no reasonable end in sight to these 
needlessly restricted hearings, the effect on the fair and efficient 
functioning of the judicial process would be grave.



30

the grant of certiorari in this case.

CONCLUSION
For the foregoing reasons, Petitioners Thurgood 

Marshall Legal Society and Black Pre-Law Association 
respectfully pray that a Writ of Certiorari be issued to 
review the judgment of the United States Court of Appeals 
for the Fifth Circuit in this matter.

Respectfully submitted,

Elaine R. Jones 
Director Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston

* Dennis D. Parker 
NAACP Legal Defense and

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

* Counsel o f Record

Anthony P. Griffin 
Anthony P. Griffin, Inc. 

1115 Moody 
Galveston, TX 77550 
(409) 763-0386

David Van Os 
Van Os & Owen 

900 Congress Avenue 
Suite 400 
Austin, TX 78701 
(512) 479-6155

Janell M. Byrd 
NAACP Legal Defense and 

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

Attorneys for Petitioners