Hopwood v. State of Tex.

UNITED STATES COURT OF APPEALS
for the Fifth Circuit

_____________________________________

No. 94-50083
_____________________________________

CHERYL J. HOPWOOD, ET AL.,

Plaintiffs-Appellees,

VERSUS

STATE OF TEXAS, ET AL.,

Defendants-Appellees,

VERSUS

THURGOOD MARSHALL LEGAL SOCIETY
and BLACK PRE-LAW ASSOCIATION,

Movants-Appellants.

******************************************************

DOUGLAS CARVELL, ET AL,

Plaintiffs-Appellees,

VERSUS

STATE OF TEXAS, ET AL.,

Defendants-Appellees,

VERSUS

THURGOOD MARSHALL LEGAL SOCIETY,
and BLACK PRE-LAW ASSOCIATION,

Movants-Appellants.

______________________________________________________

Appeal from the United States District Court
for the Western District of Texas
______________________________________________________
(May 11, 1994)

Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges.

PER CURIAM:
 Appellants, Thurgood Marshall Legal Society (TMLS) and Black

Pre-Law Association (BPLA) appeal the order of the district court

denying their motion to intervene in this action. We affirm.

I.

Since 1983, Texas has implemented an affirmative action policy

in its higher education system, a component of which is a race

conscious admissions policy for the University of Texas School of

Law (Law School). On September 29, 1992, two unsuccessful white

applicants to the Law School filed a lawsuit challenging the

admissions policy as racially discriminatory.1 Named as defendants

were the State of Texas, the Board of Regents of the Texas State

University System, the Law School, and a number of individuals in

their official capacities. Although the parties commenced limited

discovery, the parties' focus was a dispute over standing and

ripeness. This dispute was finally resolved on October 28, 1993,

when the district court denied defendants' motion for summary

judgment on standing and ripeness grounds. On November 18, 1993,

the district court set the following deadlines: March 11, 1994 for

a final pretrial conference; April 1, 1994, for completion of

discovery; April 15, 1994 for filing of a joint pretrial order.

On January 5, 1994, the TMLS and BPLA moved for intervention

of right and permissive intervention. The proposed intervenors

argued that they had an interest in the existing admissions policy

and in the elimination of the vestiges of past discrimination in

the Law School's admissions policy. The state defendants did not

1
The lawsuit was brought under 42 U.S.C. § 1983 and
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.

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oppose intervention, but the plaintiffs did. Without conducting a

hearing, the district court denied intervention of right, ruling

that the state defendants adequately represented TMLS and BPLA's

interests. The district court also denied permissive intervention,

reasoning that it would "needlessly increase cost and delay

disposition of the litigation." TMLS and BPLA promptly appealed.

3
 II.

In order to intervene as of right under Fed. R. Civ. P.

24(a),2 the proposed intervenor must 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. Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th

Cir. 1977).

A. Adequacy of Representation

The district court held that BPLA and TMLS failed to

demonstrate that the state did not adequately represent their

interests. The district court reached this conclusion principally

because the petitioners' ultimate objective was the same as the

State's: to defend the affirmative action program.

The BPLA and TMLS contend that the State cannot adequately

represent their interest because 1) the long history of

discrimination against African-Americans by the State weighs

against the State's willingness to vigorously represent the

interests of the African-American students; 2) the State's

2
Rule 24(a) states that
[U]pon 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.

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interests are broader in that they must balance the interests of

the African-American students against other students as well as

balancing educational goals, fiscal responsibility, administrative

concerns and public opinion; while the petitioners' only interest

is in preserving an admissions policy that remedies the past

effects of discrimination and fosters an atmosphere that is

receptive to African-American students, and 3) the petitioners are

in a better position to present evidence of recent discrimination.

The proposed intervenors have the burden of demonstrating

inadequate representation. The Supreme Court held in 1972 that the

burden is "minimal" and that the requirement "is satisfied if the

applicant shows that representation of his interest 'may be'

inadequate ..." Trbovich v. United Mine Workers, 404 U.S. 528, 538

n.10 (1972). But where the party whose representation is said to

be inadequate is a governmental agency, a much stronger showing of

inadequacy is required. See 7C Charles A. Wright and Arthur R.

Miller, Federal Practice & Procedure § 1909 (1986). In a suit

involving a matter of sovereign interest, the State is presumed to

represent the interests of all of its citizens. New Orleans Public

Service v. United Gas Pipe Line Co., 690 F.2d 1203, 1213 n.7 (5th

Cir. 1982), cert. denied, 469 U.S. 1019 (1984); Environmental

Defense Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C.Cir. 1979).

Because Texas is already a party, "the applicant for intervention

must demonstrate that its interest is in fact different from that

of the state and that the interest will not be represented by the

state." EDF at 740. See also, Mille Lacs Band of Chippewa Indians

v. Minnesota, 989 F.2d 994 (8th Cir. 1993).

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 The BPLA and TMLS argue that they have met their burden of

showing that their interests are different from the State's. They

contend that the State must balance competing goals while they are

sharply focused on preserving the admissions policy. Moreover,

they argue that because of its competing goals, the State is not in

as good a position to bring in evidence of present effects of past

discrimination and current discrimination.

In order to justify an affirmative action program, the State

must show that there are "present effects of past discrimination."

Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986); Podberesky v.

Kirwan, 956 F.2d 52, 57 (4th Cir. 1992). 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. BPLA

and TMLS have not met their burden of demonstrating that they have

a separate interest that the State will not adequately represent.

The proposed intervenors have not demonstrated that the State will

not strongly defend its affirmative action program. Nor have the

proposed intervenors shown that they have a separate defense of the

affirmative action plan that the State has failed to assert. See,

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

B. Permissive Intervention

In its January 1994 order, the district court also denied the

prospective intervenors' motion to intervene pursuant to Rule

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24(b), Fed. R. Civ. P.3 Specifically, Judge Sparks held that the

proposed intervenors' interests were adequately being represented

by the defendants in the case and that adding them to the lawsuit

would needlessly increase costs and delay disposition of the

litigation.

Intervention under Rule 24(b) is left to the sound discretion

of the district court, and this court has jurisdiction only if the

district court has abused its discretion. E.G., Woolen v. Surtran

Taxicabs, Inc., 684 F.2d 324, 330 (5th Cir. 1982) ("the denial of

amotion for permissive intervention under Rule 24(b) is not

appealable unless there is an abuse of discretion"). As we have

noted, we have never reversed a lower court's decision on Rule

24(b) intervention. E.g., Kneeland v. Nat'l Collegiate Athletic

Ass'n, 806 F.2d 1285, 1289-90 (5th Cir. 1987); Doe v. Duncanville

Independent School District, 994 F.2d 160, 168 n.10 (5th Cir.

1993). The district court plainly did not abuse its discretion in

denying petitioners' Rule 24(b) application to intervene.

AFFIRMED.

3
Rule 24(b) states that

[U]pon 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.

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