UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 94-50083
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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.
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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.
2
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.
4
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).
5
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
6
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.
7