_____________________________________________________

IN THE

UNITED STATES COURT OF APPEALS

for the THE FOURTH CIRCUIT

____________________

Docket No. 01-5567

____________________

ZOE SHAPO,

Appellant/Cross-Appellee,

v.

AMES UNIVERSITY, BOARD OF REGENTS OF AMES UNIVERSITY,

JOHN SMITH, PRESIDENT OF AMES UNIVERSITY,

in his official capacity,

LINCOLN-WASHINGTON SCHOOL OF LAW,

JOSEPH BROWN, DEAN OF LINCOLN-WASHINGTON SCHOOL OF LAW,

in his official capacity, and

BOARD OF GOVERNORS OF LINCOLN-WASHINGTON SCHOOL OF LAW,

Appellees/Cross-Appellants.

____________________

Appeal from the United States District Court

for the District of Ames

____________________

BRIEF FOR APPELLEES/CROSS-APPELLANTS

ORAL ARGUMENT REQUESTED

____________________

_____________________________________________________

TABLE OF CONTENTS

     I. Summary judgment was appropriate against Plaintiff's 
claim that Defendants violated the 14th Amendment when Plaintiff 
was denied admission to Lincoln-Washington School of Law. ....... 10 

	A. There is no genuine dispute that controlling precedent
permits consideration of race in university admissions practices
because diversity is a compelling government interest. .......... 10 

	B. The law school's admissions policies and practices
comply with the controlling precedent. .......................... 13 

	C. The Fourth Circuit must follow the controlling
precedent. ...................................................... 16 

    II. Defendants Lincoln-Washington School of Law and the
Board of Governors of the Lincoln-Washington School of Law have
11th Amendment immunity from damages. ........................... 18 

	A. The District Court applied the wrong rule. The
correct rule is found in Cash v. Granville, 242 F.3d 219 
(4th Cir. 2001). ................................................ 18 

	B. A state university shares in its state's 11th
Amendment immunity when a judgment against the university would 
be paid from state funds. ....................................... 19 

	C. State financial support at the level of 40% raises
LWSL to the level of an arm of the state and therefore protected
by 11th Amendment immunity. ..................................... 20 

TABLE OF AUTHORITIES

STATEMENT OF JURISDICTION

The District Court had jurisdiction over this action pursuant to 28 U.S.C. § 1331 with respect to causes of action arising under the United States Constitution, and pursuant to 28 U.S.C. § 1343(a) with respect to causes of action arising under 42 U.S.C. § § 1981 and 1983. The Fourth Circuit has jurisdiction based on the District Court's final decision granting summary judgment for Lincoln-Washington School of Law (hereafter "LWSL") and for the Board of Governors of LWSL regarding whether the law school's admission procedures violate the Fourteenth Amendment or 42 U.S.C. § § 1981 and 1983. Also, the Fourth Circuit has jurisdiction based on the District Court's final decision holding that LWSL and the Board of Governors of LWSL are not immune from damages in the lawsuit by Ms. Zoe Shapo, Appellant/Cross- Appellee. See 28 U.S.C. §§ 1291; 1294. The notice of appeal was filed August 30, 2002, within 30 days after entry of the District Court's order on August 29, 2002. 4th Cir. R. 4(a). The appeal is from a final order or a final judgment that disposes of all claims with respect to all parties.

STATEMENT OF THE ISSUES

I. Under Justice Powell's controlling opinion in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), racial diversity is a compelling government interest. Plurality decisions are the law until the Supreme Court says otherwise. Under Bakke, did the District Court correctly hold that LWSL's admmissions policy is used to remedy a compelling government interest such that the Defendants are entitled to a summary judgment?

II. Under Cash v. Granville Co. Bd. of Educ., 242 F.3d 219 (4th Cir. 2001), whether a State entity is an arm of the State is determined by whether a judgment against the entity would have to be paid from the State's treasury. Forty percent of of LWSL's budget comes from the treasury of the State of Ames. Under Cash, does LWSL qualify as an arm of the State and thus have 11th Amendment immunity from compensatory and/or punitive damages in a law suit brought under the equal protection clause of the 14th Amendment of the U.S. Constitution?

STATEMENT OF THE CASE

First, Plaintiff has appealled the District Court's summary judgment in favor of Defendants; Defendants ask that this Court affirm the District Court's summmary judgment.

Second, Defendants are appealing the District Court's ruling that they would not have 11th Amendment immunity in case this Court should overturn the District Court's ruling of summary judgment in favor of Defendants. In case this Court should overturn the District Court's rule of summary judgment, we ask that this Court rule that the Defendants would have 11th Amendment immunity.

Appellant sued in District Court alleging that Appellees Ames University, the Board of Regents of Ames University, LWSL, the Board of Governors of LWSL, Ames University President John Smith (in his official capacity), and LWSL Dean Joseph Brown (in his official capacity) had denied her admission to the law school because the law school's admission program granted preferences to African-American applicants in violation of the Fourteenth Amendment of the United States Constitution. Appellant also alleged that, in evaluating her law school application, the Appellees had discriminated against her on the basis of her race and that this was in violation of 42 U.S.C. § 1981.

Appellant sought a court order that would admit her to the law school, and she asked for compensatory and punitive damages, and for attorneys' fees.

In Appellee's answer to Appellant's initial complaint, only two points of the complaint were denied: Appellees deny that Appellant was denied admission to the law school because the law school's admission program granted preferences to African-American applicants in violation of the Fourteenth Amendment of the U.S. Constitution, and Appellees deny violating 42 U.S.C. §§ 1981 and 1983.

Appellee's answer to the complaint included two affirmative defenses:

(1) that the complaint failed to state a claim upon which relief may be granted (Rule 56 of the Federal Rules of Civil Procedure), and (2) that Appellees LWSL and the Board of Governors of LWSL are immune from any money damages awarded for Appellant's claims pursuant to the Eleventh Amendment of the U.S. Constitution.

Appellees are appealing the District Court decision that LWSL and the Board of Governors of LWSL are not immune from damages in the lawsuit. Appellees also are responding to Appellant's appeal of the District Court's August 29, 2002, declaratory judgment that LWSL's admissions process is not in violation of the Fourteenth Amendment or 42 U.S.C. § 1981.

STATEMENT OF THE FACTS

This case asks whether a law school may consider more than only law school apptitude test scores and undergraduate grades in deciding which applicants to offer admission to law school. Specifically, it asks whether an applicant's race can be considered as a "plus factor" in the admission process.

History:

LWSL came into being in 1969, by state statue, when the State Legislature recognized the previously private Washington School of Law as a division of Ames University and ratified the merger of Washington School of Law with the Lincoln School of Law, already a school of Ames University. The Legislature determined that the merged school would be known as the Lincoln- Washington School of Law. Ames Laws 1969, c. 5, § 7, par. 3.

Before 1969, the State of Ames was required by Ames Constitution, Article V, § 3 (1925, repealed 1969) to "maintain separate schools, colleges, and professional schools for white and colored students." Ames University and all of its divisions came under that State law. Until the section was repealed in 1969, African-Americans seeking admission to state law schools were routinely refused admission based on the State Constitution. (See Joint Appendix 14; jointly stipulated fact #3.) (Joint Appendix hereafter JA; jointly stipulated fact/s hereafter JSF.)

Funding:

Approximately 40 percent of the funding for LWSL comes from State appropriations; the University of Ames Board of Regents has direct unlimited control over that amount. (JA 15; JSF #12.) Half the places on the Governing Board of LWSL are appointed by the governor of the State of Ames. (JA 15; JSF #11.)

Admission:

Admission to LWSL is competitive; over 3,000 applicants compete for about 900 offers of admission to create an entering class of about 500 students. (JA 15; JSF #13.) Initial admission decisions are based largely on an applicant's undergraduate grade point average (GPA) and his Law School Aptitude Test (LSAT) score; those two numbers are combined to create what the law school calls a Washington Index (WI) number. (JA 15; JSF #14.)

Based on WI numbers, the law school sorts applications into three groups: "presumptive admit," "presumptive deny," or between those two groups in a "discretionary zone." Presumptive-admit and presumptive-deny applications are reviewed only briefly; from five to ten percent of such applications are moved into the discretionary zone. (JA 16; JSF #21, #22, #23.) It is the applications in the discretionary zone that are scrutinized most extensively. (JA 16; JSF #24.)

Diversity:

LWSL's "Statement of Policy on Affirmative Action" makes clear the school's attempt to "achieve the diversity of background and experience in its student population essential to prepare students for the real world functioning of the law in our diverse nation," and along with Appellees, Appellant has stipulated that "[t]here is evidence that the benefit to the law school educational experience derived from a diverse student population is substantial." (JA 16; JSF #26, #27.)

Because the law school seeks a diverse student body, the school looks at more than just an applicant's WI number. Admissions decisions are made after consideration of various other factors such as strength of undergraduate education, difficulty of undergraduate major, trends in the applicant's undergraduate grades, the applicant's background, life experience, race, work experience, and foreign nationality. (JA 15, 16; JSF #15, #16, #17, #18.)

For African-Americans, race is considered a strong "plus"; five points are added to the WI number of every African- American applicant. (JA 16; JSF #17.) Other points are added for applicants with other specific characteristics. (JA 16; JSF #18.)

The law school also uses scholarship and recruitment to try to increase the number of African-American students. However, as stipulated by both Appellees and Appellant, the law school could not achieve "the compelling governmental interests of true diversity" without the added-points system. (JA 17; JSF #28.) Without the added-points system, the African-Americans in the entering class of 2002 would have numbered no more than six percent of the class -- 30 students in an incoming class of 500. (JA 17; JSF #28.)

About 15 percent of college graduates in the State of Ames are African-Americans, and the law school aspires to admit a class with about 15 percent African-Americans. (JA 16; JSF #19.) However, the law school does not always meet its goal because acceptance rates are uncertain and the applicant pool varies from year to year. (JA 16; JSF #20.)

Plaintiff Applicant:

The Appellant sought an offer of admission to the 2002 entering law school class at LWSL. The combination of her undergraduate GPA, her LSAT score, and additional points added to her WI number based on her various individual characteristics placed the Appellant in the "presumptive deny" group. Ultimately, she was denied admission. (JA 16; JSF #25.)

SUMMARY OF ARGUMENT

I. There are no genuine issues of material fact to preclude summary judgment in favor of Defendants/Appellees. The District Court's declaratory judgment on this issue is correct because, as District Judge Pound found, remedial action is necessary for the law school to achieve the compelling government interest of diversity, and the remedial measure used by the law school is narrowly tailored to meet the remedial goal. Judge Pound correctly applied the Supreme Court's Bakke plurality decision.

II. Lincoln-Washington School of Law and the Board of Governors of LWSL have 11th Amendment immunity against compensatory or punitive damages in this law suit brought under the 14th Amendment because the "Eleventh Amendment bars suit by a private party to recover monetary damages from the state or its alter egos...." Williams v. N.C. A&T State Univ., 1997 U.S. Dist. LEXIS 3811, at 10 (M.D.N.C., 1997), citing Huang v. Board of Governors of the Univ. of N.C., 902 F.2d 1134 (4th Cir. 1990). Forty percent of the law school's budget comes from the State of Ames; that raises the law school to the level of a state governmental entity that is an "alter ego" of the state.

ARGUMENT

The Fourth Circuit reviews questions of law under a de novo standard. Pierce v. Underwood, 487 U.S. 552 (1988). The District Court's decision was an interpretation of the Constitution and statutes; therefore, the case is to be reviewed de novo.

I. Summary judgment was appropriate against Plaintiff's claim that Defendants violated the 14th Amendment when Plaintiff was denied admission to Lincoln-Washington School of Law.

A. There is no genuine dispute that controlling precedent permits consideration of race in university admissions practices because diversity is a compelling government interest.

The Supreme Court offers specific guidelines for the allowance of governmental action that includes consideration of race, and LWSL's admission policies fall within those guidelines. Because race is a suspect category, action that includes the consideration of race is held to the strict scrutiny test. As found in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 234 (1995), the test asks two questions:

Appellant's brief incorrectly argues that racial diversity "is not a conclusive and automatic compelling governmental interest under the plurality decision in Bakke." (Appellant's brief, part I, subtopic B.) However, as the Ninth Circuit wrote in Smith v. Univ. of Wash. Law School, 233 F.3d 1188, 1199 (2000), citing Marks v. United States, 430 U.S. 188, 193 (1977), "[W]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judments on the narrowest grounds.'"

In Bakke, five justices (Justices Powell, Brennan, White, Marshall, and Blackman) agreed that a state university could NOT be prohibited from using race as a factor in admissions. As the Smith court said, despite other Court decisions dealing with race, the Supreme Court "has not returned to the area of university admissions [since Bakke], and has not indicated that Justice Powell's approach has lost its vitality. ... [R]egardless of what we think the Supreme Court might do, we must let it decide." Smith, 233 F.3d at 1199. As the Smith court reasoned, let the Supreme Court overrule its own decisions. A Supreme Court decision that has not been overruled controls; and the Supreme Court's decision has been that diversity is a compelling government interest.

B. The law school's admission policies and practices comply with the controlling precedent.

Compelling Interest: Despite the words in Appellant's brief, in the joint stipulation of facts (J.A. 14), Appellant stipulated that "the benefit to the law school educational experience derived from a diverse student population is substantial." (JA 16; JSF #27) Appellant further stipulated to there being "compelling governmental interests of true diversity." (JA 17, JSF #29.)

As the District Court judge wrote in his decision (JA 22),

Since Plaintiff already has stipulated to the Defendants' argument on this point, there is no disputed evidence on this point.

Narrowly Tailored:

(1) Are there other effective, alternative remedies? No. As both Appellees and Appellant stipulated in the joint stipulation of facts, "Without this affirmative action program, the law school would not be able to achieve its goal of diversity." (JA 17; JSF #28.)

(2) Is the program flexible and not rigidly applied? Yes. The fact that the percentage of African-Americans admitted varied from year to year shows that LWSL's admissions program was not inflexible and that there was no pre-established number of African-Americans who would be admitted. The school "aspired" to a admitting a class of 15 percent African-Americans, but those aspirations are not always met. In 1999, the class had eight percent African-Americans. (JA 16; JSF #19, #20.) The law school has not stated and it is unknown how long this admission system will continue.

(3) Do the numerical goals relate reasonably to the relevant population? Yes. LWSL's hope is to admit a class with 15 percent African-Americans; about 15 percent of new college graduates in the State of Ames are African-Americans. (JA 16, JSF #19.)

(4) What will be the impact on third parties? It is difficult to determine any impact of the admissions program on third parties. As quoted by Donald T. Kramer in What Constitutes Reverse or Majority Race or National Origin Discrimination Violative of Federal Constitution or Statues (Nonemployment cases), 152 A.L.R. Fed. 1, Robert M. O'Neil "pointed out that unlike employment quotas and school desegregation orders, preferential policies in higher education do not include or exclude anyone solely on the basis of race. The effect of increasing the number of minority participants, Professor O'Neill explained, is not to bar any white applicant on the basis of race, but only to reduce slightly the chances of whites whose prospects would be marginal even without a minority preference. ... Professor O'Neill concluded that the selection is among qualified applicants on the basis of a number of factors of which race may be one." Robert M. O'Neill, Racial Preference and Higher Education, 60 Virginia L. Rev. 925 (1974).

The Lincoln-Washington School of Law does not admit unqualified applicants.

The Equal Protection Clause of the Fourteenth Amendment, as interpreted in Bakke, allows the "attainment of a diverse student body" as a "clearly constitutionally permissible goal for an institution of higher education." Regents of Univ. of Cal. v. Bakkee, 438 U.S. 265, 311 (1978). "Academic freedom ... long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body." Id. at 311.

C. The Fourth Circuit must follow the controlling precedent that diversity is a compelling government interest.

The law that governs whether diversity is a compelling government issue is Bakke even though, to date, the Fourth Circuit has avoided ruling that diversity is a compelling government interest. As noted in Tuttle by Tuttle v. Arlington County School Board, 195 F.3d 698, 704 (4th Cir. 1999), "We have never decided the question of whether diversity is a compelling interest. ... [W]e have explicitly avoided deciding the question..."

Affirming the District Court's decision allowing LWSL's admission policies would put this Circuit in line with the Supreme Court's ruling that diversity is a compelling government interest in state educational institutions in the Fourth Circuit. As the District Court noted,

"Under the holding in Bakke, obtaining the benefits that flow from a racially diverse student body is a compelling interest justifying the use of racial preferences. The importance of diversity flows from the unique role of education in our society." (JA 22.)

"[A]chieving a diverse student body is a constitutionally permissible goal," as the Sixth Circuit said in Grutter v. Bollinger, 288 F.3d 732 (2002). The Ninth Circuit reasoned similarly in Smith in 2000. Smith, 233 F.3d 1188.

The Fifth Circuit has been well-publicized for its decision in Hopwood v. State of Tex., 78 F.3d 932 (1996), which disallowed an admissions system at the University of Texas School of Law. However, with the UT system, minority applicants were reviewed by a separate subcommittee, and each minority applicant's file was extensively reviewed. Additionally, UT's system "maintained segregated waiting lists." Hopwood, 78 F.3d at 937. The admission system used by LWSL is unlike the system used by UT.

The Eleventh Circuit dealt with a similar case and specifically said, "[W]e ... do not decide [the issue of whether student body diversity is a compelling issue sufficient to withstand the strict scrutiny that courts must apply to government decision-making based on race] because ... the University's ... admissions policy is not narrowly tailored to achieve this interest." Johnson v. Board of Regents of the University of Georgia, 263 F.3d 1234, 1237 (11th Cir., 2001).

The Supreme Court has spoken in Bakke; the Sixth Circuit spoke in Grutter; the Ninth Circuit spoke in Smith. It is time for the Fourth Circuit to speak in Shapo to make clear that it is in line with the Supreme Court decision that found diversity to be a compelling interest. Because the cases from the Fifth Circuit and the Eleventh Circuit are distinguished from Shapo, such a decision from the Fourth Circuit would not be in conflict with the Fifth or the Eleventh Circuits, and such a decision would be in line with the Sixth and Ninth Circuits, and with the Supreme Court.

II. Defendants/Appellees Lincoln-Washington School of Law and the Board of Governors of the Lincoln-Washington School of Law have 11th Amendment immunity from damages.

A. The District Court applied the wrong rule.

The District Court cited an Eighth Circuit case and used the wrong test in deciding that LWSL and the Board of Governors of LWSL are not immune from the money damages that Appellant's complaint requested. The correct rule is found in Cash v. Granville Co. Bd. of Educ., 242 F.3d 219 (4th Cir. 2001).

The 11th Amendment provides that "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one on the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The Eleventh Amendment came into being in 1798, five years after the nation was shocked by Chisholm v. Georgia, 2 Dall. 419 (1793), a Supreme Court decision that held a State liable to suit. See discussion in Edelman v. Jordon, 415 U.S. 651, 662 (1974). The nation passed the Amendment in clear recognition of the sovereignty of each individual State in the new nation.

B. A state university shares in its state's 11th Amendment immunity when a judgment against the university would be paid from state funds.

In deciding "whether a governmental entity within a State is an arm of the State, ... [t]he principal factor, upon which courts have virtually always relied, is whether a judgment against the governmental entity would have to be paid from the State's treasury." Cash v. Granville Co. Bd. of Educ., 242 F.3d 219, 223 (4th Cir. 2001), an appeal out of the Eastern District of North Carolina. "[T]he State treasury factor is 'the most salient factor in Eleventh Amendment determinations.'" Quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48 (1994).

"[W]hether a money judgment against a state instrumentality ... would be enforceable against the State is of considerable importance..." Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430 (1997).

Appellant's brief before the Court argues that any judgment would "not have to be paid out of the state treasury," because a "mere 40% of the funding for Lincoln-Washington School of Law comes from state appropriations" of money.

C. State financial support at the level of 40% raises LWSL to the level of an arm of the state and therefore protected by 11th Amendment immunity.

First, there is no evidence in the record that any money award would come only from privately raised funds. Second, to paraphrase the late Senator Dirkson, "Forty cents of this dollar, forty cents of that dollar, forty cents of every dollar, and pretty soon you're talking real money." Forty percent of each dollar is substantial and cannot be made less substantial with the words "a mere 40 percent." Any monetary award to Appellant would impact the treasury of the State of Ames.

The District Court erred in finding that LWSL and its Board of Governors could be liable for damages in such a suit as the Appellant's. This Court should overturn that ruling of the District Court because the amount of state funding of the law school would grant Defendants/Appellees 11th Amendment immunity as "alter egos" of the State of Ames.

CONCLUSION

For the above reasons, this Court should affirm the District Court's summary judgment that LWSL did not violate the Plaintiff's rights under the 14th Amendment, and this Court should overturn the District Court's decree that Defendants Lincoln-Washington School of Law and the Board of Governors of the Lincoln-Washington School of Law have no 11th Amendment immunity.

REQUEST FOR ORAL ARGUMENT

Appellee/Cross-Appellant hereby requests time for an oral argument.

DATED this _______ day of December 2002.

OFFICE OF THE ATTORNEY GENERAL
50 Legal Way
Central City, State of Ames
(703) 555-1212

CERTIFICATE OF SERVICE

I hereby certify that on this _______ day of December 2002 at ____________ a copy of the foregoing Appellee's Brief was mailed to the following (by hand delivery to a designated mail box):

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