Podberesky v. Kirwan
| Decision Date | 30 December 1994 |
| Docket Number | 93-2585,Nos. 93-2527,s. 93-2527 |
| Citation | 38 F.3d 147 |
| Parties | , 95 Ed. Law Rep. 52 Daniel J. PODBERESKY, Plaintiff-Appellant, v. William E. KIRWAN, President of the University of Maryland at College Park; University of Maryland at College Park (UMCP); Monica Green; Maudlyn George, on her own behalf and on behalf of her daughter Allison George; Eileen Heath; Richard A. Dalgetty; Gerard W. Henry; Maisha Herren; Aletha S. McRae, on her own behalf and on behalf of her daughter Daletha McRae; Charles L. Smith, III, on his own behalf and on behalf of his son Charles Smith, IV, Defendants-Appellees. Equal Opportunity Foundation; American Council on Education; Mexican American Legal Defense and Educational Fund; William Julius Wilson, Doctor; Association for the Study of Afro-American Life and History; Lawyers' Committee for Civil Rights Under Law; United States of America, Amici Curiae. (Two Cases) |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Richard Abbott Samp, Washington Legal Foundation, Washington, DC, for appellant. Evelyn Omega Cannon, Asst. Atty. Gen., Baltimore, MD; Janell Maria Byrd, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, for appellees. ON BRIEF: Daniel J. Popeo, Washington Legal Foundation, Washington, DC; Samuel Podberesky, Randallstown, MD, for appellant. J. Joseph Curran, Jr., Atty. Gen. of Maryland, Andrew H. Baida, Asst. Atty. Gen., Richard A. Weitzner, Asst. Atty. Gen., Baltimore, MD; Elaine R. Jones, Director-Counsel, Theodore M. Shaw, Norman J. Chachkin, NAACP Legal Defense & Educational Fund, Inc., New York City, William J. Murphy, John J. Connolly, Murphy & Shaffer, Baltimore, MD; Sally P. Paxton, Jacqueline R. Depew, Fulbright & Jaworski, L.L.P., Washington, DC, for appellees. Hugh Joseph Beard, Jr., Washington, DC, John Montgomery, Germantown, MD, for amicus curiae Equal Opportunity Foundation. David S. Tatel, Martin Michaelson, Daniel B. Kohrman, Hogan & Hartson, L.L.P., Washington, DC, Sheldon E. Steinbach, Gen. Counsel, American Council on Education, Washington, DC, for amicus curiae American Council on Educ. Elizabeth Guillen, Antonia Hernandez, Theresa Fay-Bustillos, Mexican American Legal Defense and Educational Fund, Los Angeles, CA, for amicus curiae MALDEF. James E. Coleman, Jr., John H. Cobb, Wilmer, Cutler & Pickering, Washington, DC, for amicus curiae Wilson. A. J. Cooper, Ginsburg, Feldman & Bress, Washington, DC, Amy B. Ginensky, Vernon L. Francis, Andrew S. Miller, Dechert, Price & Rhoads, Philadelphia, PA, for amicus curiae Ass'n for the Study of Afro-American Life and History. Thomas J. Henderson, Wendy Parker, Lawyers' Committee for Civil Rights Under Law, George W. Jones, Jr., Mark E. Haddad, Jeanne B. Szromba, Sidley & Austin, Washington, DC, for amicus curiae Lawyers' Committee. James P. Turner, Acting Asst. Atty. Gen., David K. Flynn, Leslie A. Simon, Marie K. McElderry, U.S. Dept. of Justice, Washington, DC, for amicus curiae U.S..
Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.
Vacated and remanded with instructions by published opinion. Judge WIDENER wrote the opinion, in which Judge WILKINS and Judge HAMILTON joined.
The issue in this case is whether the University of Maryland at College Park may maintain a separate merit scholarship program that it voluntarily established for which only African-American students are eligible. Because we find that the district court erred in finding that the University had sufficient evidence of present effects of past discrimination to justify the program and in finding that the program is narrowly tailored to serve its stated objectives, we reverse the district court's grant of summary judgment to the University. We further reverse the district court's denial of Podberesky's motion for summary judgment, and we remand for entry of judgment in favor of Podberesky.
The facts and prior proceedings in this case are set forth at length in our earlier opinion, Podberesky v. Kirwan, 956 F.2d 52 (4th Cir.1992) (Podberesky I). In sum, Daniel Podberesky challenges the University of Maryland's Banneker scholarship program, which is a merit-based program for which only African-American students are eligible. The University maintains a separate merit-based scholarship program, the Francis Scott Key program, which is not restricted to African-American students. Podberesky is Hispanic; he was therefore ineligible for consideration under the Banneker Program, although he met the academic and all other requirements for consideration. Podberesky was ineligible for consideration under the Key program because his academic credentials fell just shy of its more rigorous standards.
In our earlier decision, we remanded the case because the district court had not made a specific finding on whether there was sufficient present effect of the University's past discrimination against African-Americans so as to justify the maintenance of the race-based restriction in the Banneker scholarship program. Podberesky I, 956 F.2d at 57. The district court allowed additional discovery to take place, after which cross-motions for summary judgment were filed. Podberesky v. Kirwan, 838 F.Supp. 1075, 1076-77 (D. Md.1993). The University claimed that four present effects of past discrimination exist at the University: (1) The University has a poor reputation within the African-American community; (2) African-Americans are underrepresented in the student population; (3) African-American students who enroll at the University have low retention and graduation rates; and (4) the atmosphere on campus is perceived as being hostile to African-American students. 838 F.Supp. at 1082. The district court reasoned that if a strong evidentiary basis existed to support any of the four present effects articulated by the University, the Banneker Program would be justified. The district court then found that there was a strong evidentiary basis to support the existence of each of those four present effects. 838 F.Supp. at 1083.
The district court also found that the Banneker Program was narrowly tailored to remedy those four present effects of past discrimination which it found at the University. 838 F.Supp. at 1094. The district court then granted the University's summary judgment motion and denied Podberesky's summary judgment motion. This appeal followed.
Because it chose the Banneker Program, which excludes all races from consideration but one, as a remedial measure for its past discrimination against African-Americans, the University stands before us burdened with a presumption that its choice cannot be sustained. As we have said before,
"Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination." Wygant v. Jackson Board of Education, 476 U.S. 267, 273, 106 S.Ct. 1842, 1846, 90 L.Ed.2d 260 (1986) (plurality opinion) (quoting Regents of the University of California v. Bakke, 438 U.S. 265, 291, 98 S.Ct. 2733, 2748, 57 L.Ed.2d 750 (1978) (Powell, J.)). The rationale for this stringent standard of review is plain. Of all the criteria by which men and women can be judged, the most pernicious is that of race. The injustice of judging human beings by the color of their skin is so apparent that racial classifications cannot be rationalized by the casual invocation of benign remedial aims. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 109 S.Ct. 706, 724, 102 L.Ed.2d 854 (1989). While the inequities and indignities visited by past discrimination are undeniable, the use of race as a reparational device risks perpetuating the very race-consciousness such a remedy purports to overcome.... It thus remains our constitutional premise that race is an impermissible arbiter of human fortunes.
Maryland Troopers Ass'n v. Evans, 993 F.2d 1072, 1076 (4th Cir.1993) (parallel citations omitted).
Although the district court correctly recited in its opinion that the standard of review of such an overtly open racial yardstick was strict scrutiny, and despite the fact that that standard has been adopted time and again both by the Supreme Court and by this circuit, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989); Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 212 (4th Cir.1993), its restlessness in compliance with that standard showed through as it rejected explicitly cases from four other Courts of Appeals and a reference pool of those high school graduates who were in fact eligible for admission to the University: 838 F.Supp. at 1089. When we add (as we demonstrate below) that both the Supreme Court and this court have used a pool of qualified applicants as a reference pool in other than employment context, it is not out of order to note that this restlessness carried through its opinion. Indeed, in the penultimate section thereof, the court justified this analysis by its statement that "I have reached the conclusion that in our earlier opinions both I and the Fourth Circuit may have construed too rigid a framework of analysis," and this "[b]ecause I have come to believe that (1) precedents involving employment disputes provide imperfect analogies for determining the constitutionality of an affirmative action program in an education context, and (2) focusing solely upon past discrimination in education cases blurs vision and obstructs understanding...." 838 F.Supp. at 1097. Altogether, these insights into the way ...
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