Uzzell v. Friday

• Decision Date: 23 August 1984
• Docket Number: Civ. No. C-74-178-D.
• Citation: 592 F. Supp. 1502
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Lawrence A. UZZELL and Robert Lane Arrington, Individually, and upon behalf of all others similarly situated, Plaintiffs, and William Gwynne Head, III, and Richard Jeffrey Kania, Individually, and upon behalf of all others similarly situated, Intervening Plaintiffs, and Myra Susan Creed, Katharyn Luanne Holshouser, Jay Allen Kania, Sue Ann Kania, Myra Ann Mandeville, Patricia Dawn McKissick, Michael J. Morris, John Malcolm Overton, Edward B. Munyer, Michael L. Walker, and Timothy E. Walker, Individually, and upon behalf of all others similarly situated, Intervening Plaintiffs, and Donald Lewis Elmore, II, Individually, and upon behalf of all others similarly situated, Intervening Plaintiff, v. William C. FRIDAY, Individually, and as President of the University of North Carolina; Christopher Columbus Fordham, Individually, and as Chancellor of the University of North Carolina at Chapel Hill; Kevin Monroe, President of the Student Body of the University of North Carolina at Chapel Hill; The Board of Trustees of the University of North Carolina at Chapel Hill; and the Board of Governors of the University of North Carolina, Defendants, and Jessie Cureton, Jr., and Greg Cranford, Intervening Defendants, and Kevin Monroe, James J. Exum, Sherrod Banks, and Kevin D. Jones, Intervening Defendants.

592 F. Supp. 1502

Lawrence A. UZZELL and Robert Lane Arrington, Individually, and upon behalf of all others similarly situated, Plaintiffs,

and

William Gwynne Head, III, and Richard Jeffrey Kania, Individually, and upon behalf of all others similarly situated, Intervening Plaintiffs,

and

Myra Susan Creed, Katharyn Luanne Holshouser, Jay Allen Kania, Sue Ann Kania, Myra Ann Mandeville, Patricia Dawn McKissick, Michael J. Morris, John Malcolm Overton, Edward B. Munyer, Michael L. Walker, and Timothy E. Walker, Individually, and upon behalf of all others similarly situated, Intervening Plaintiffs, and Donald Lewis Elmore, II, Individually, and upon behalf of all others similarly situated, Intervening Plaintiff, v. William C. FRIDAY, Individually, and as President of the University of North Carolina; Christopher Columbus Fordham, Individually, and as Chancellor of the University of North Carolina at Chapel Hill; Kevin Monroe, President of the Student Body of the University of North Carolina at Chapel Hill; The Board of Trustees of the University of North Carolina at Chapel Hill; and the Board of Governors of the University of North Carolina, Defendants, and Jessie Cureton, Jr., and Greg Cranford, Intervening Defendants,

and

Kevin Monroe, James J. Exum, Sherrod Banks, and Kevin D. Jones, Intervening Defendants.

Civ. No. C-74-178-D.

United States District Court, M.D. North Carolina, Durham Division.

August 23, 1984.

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Richard L. Voorhees, Gastonia, N.C., for plaintiffs and all intervening plaintiffs.

Elizabeth C. Bunting, Asst. Atty. Gen., Andrew A. Vanore, Jr., Deputy Atty. Gen., Raleigh, N.C., for defendants Friday, Fordham, Monroe, Board of Trustees, and Board of Governors of the University of North Carolina.

Napoleon Williams, NAACP Legal Defense Fund, New York City, and Julius Levonne Chambers, James C. Fuller, Jr., Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, P.A., Charlotte, N.C., for all intervening defendants.

MEMORANDUM OPINION

BULLOCK, District Judge.

After consideration of the issues in this case on four separate occasions by the United States Court of Appeals for the Fourth Circuit, and once by the United States Supreme Court (another petition for certiorari was denied), the case is again before the district court pursuant to remand from the court of appeals for the taking of evidence and the development of a full record. After remand, this court held several hearings and conferences with counsel for the parties for the purposes of resolving certain preliminary matters and expediting the compilation of a complete record, culminating in the trial of this case before the court sitting without a jury. The case is now before the court for the entry of findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

I. STATEMENT OF THE CASE

The court will first review briefly the history of this case, examined in greater detail in other decisions in this litigation. Uzzell v. Friday, 625 F.2d 1117, 1119-20 (opinion of Winter, C.J., for the court), 1121-23 (Widener, J., dissenting) (4th Cir.), cert. denied, 446 U.S. 951, 100 S.Ct. 2917, 64 L.Ed.2d 808 (1980). The suit was commenced on June 13, 1974, by two students at the University of North Carolina at Chapel Hill (UNC at Chapel Hill) seeking declaratory and injunctive relief against three practices of UNC at Chapel Hill: (1) subsidization of a campus organization, the Black Student Movement (BSM), which until after the suit was filed excluded whites from membership; (2) a provision in the Student Constitution¹ which requires that up to two minority race students be appointed to the student legislature, the Campus Governing Council (Council), if a like number of such students is not elected to the Council; and (3) the predecessor to a provision in the Instrument of Student Judicial Governance (Instrument),² which establishes a statutory scheme giving student defendants the right to require that a majority of the judges on an individual panel of the student honor court, named the Undergraduate Court, be of his race or sex. All three practices were alleged to violate the fourteenth amendment and the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the first practice — BSM funding — Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., as well.

The persons against whom the suit was initially brought (hereinafter referred to as the original Defendants) included student and administrative officials of UNC at Chapel Hill and officials of the University of North Carolina system (UNC), comprising sixteen institutions of higher education, including UNC at Chapel Hill. This court later granted intervention to two members of BSM (hereinafter referred to as intervening Defendants). Additional Plaintiffs have subsequently been granted leave to intervene in order to avoid mootness and various persons have been substituted as Defendants.³

On September 16, 1975, this court per then Chief Judge Eugene A. Gordon granted summary judgment for all Defendants on the grounds that the claim concerning BSM had been mooted by the subsequent admission of whites and that the other two claims failed to state a cause or controversy under Article III of the Constitution. Uzzell v. Friday, 401 F.Supp. 775 (M.D.N. C.1975). On appeal a three-judge panel of the United States Court of Appeals for the Fourth Circuit affirmed this court's ruling regarding BSM, but reversed its ruling on the other two claims and remanded with instructions to enter summary judgment for Plaintiffs. Uzzell v. Friday, 547 F.2d 801 (4th Cir.1977). A sharply divided court of appeals sitting en banc confirmed this decision. Uzzell v Friday, 558 F.2d 727 (4th Cir.1977) (4-3 decision) (minority concurred in ruling on BSM claim but dissented from ruling on other two claims).

On July 3, 1978, the Supreme Court vacated the en banc judgment of the Fourth Circuit and remanded the case for further consideration in light of its then recent decision in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) hereinafter cited as Bakke. Friday v. Uzzell, 438 U.S. 912, 98 S.Ct. 3139, 57 L.Ed.2d 1158 (1978). On February 2, 1979, the Fourth Circuit sitting en banc for the second time in the case reaffirmed its previous decisions, again with a strong dissent. Uzzell v. Friday, 591 F.2d 997 (4th Cir.1979) (4-3 decision).

Within several months two new appointees to the court of appeals were commissioned. Thereafter, on November 9, 1979, the newly constituted court of appeals on its own motion withdrew its second en banc decision on the grounds that a revision in a section of the Omnibus Judgeship Act, 28 U.S.C. § 46, unknown to the court at the time, had made it improper for Senior Circuit Judge Bryan to have sat on the second en banc panel. While a petition for review of the court of appeals' action, subsequently denied, was pending before the Supreme Court, the Fourth Circuit issued a third en banc decision in this case, again a divided one, on May 12, 1980. Uzzell v. Friday, 625 F.2d 1117 (4th Cir.) (5-3 decision), cert. denied, 446 U.S. 951, 100 S.Ct. 2917, 64 L.Ed.2d 808 (1980). It affirmed this court's judgment of September 16, 1975, with respect to BSM, but vacated the judgment with respect to the minority provisions governing the Council and Undergraduate Court, and remanded the case for further development of the record. Id. at 1121. It is pursuant to this remand that trial of the instant litigation was held before this court.

The principal purpose of the remand is to provide "the university ... the opportunity to justify its regulations so that the district court can apply the Bakke test: is the classification necessary to the accomplishment of a constitutionally permissible purpose?"⁴Id. In applying the Bakke test this court is directed to take into consideration the principles set forth in the dissenting opinions to the first two en banc Fourth Circuit decisions in this case. Id. Other issues upon which this court is to make findings of fact and conclusions of law include whether this case has been mooted by the graduation of Plaintiffs from UNC at Chapel Hill, id. (adopting 591 F.2d at 1001 Winter, C.J., dissenting), and whether Plaintiffs have standing to assert their claims, see id. (adopting 558 F.2d at 727-28 Winter, C.J., concurring and dissenting).

II. FINDINGS OF FACT

With the broad scope of the Fourth Circuit's remand in mind, the court makes the following findings of fact:

A. Parties.⁵

1. Plaintiffs, who are of the white race, are current and former undergraduate, graduate, and professional students in good standing at UNC at Chapel Hill. At all times throughout this litigation at least one Plaintiff has been enrolled as such a student. At all times following the intervention of Richard Jeffrey Kania in June 1978, at least one of the enrolled Plaintiffs has been an undergraduate. Plaintiffs currently enrolled include Donald Lewis Elmore, II.

2. Original Defendant Board of Governors of UNC is a body established by the laws of North Carolina and charged by such laws with chief responsibility for the supervision and management of all programs and activities at UNC and its sixteen constituent institutions, including the activities subject to the minority provisions at issue here. N.C.Gen.Stat. § 116-3, -11; Code of UNC § 203.

3. Original Defendant President of UNC is established by the laws of North Carolina as the chief administrative and executive officer of UNC. N.C.Gen.Stat. § 116-14; Code of UNC § 501. As such, the President of UNC is responsible to the Board of Governors for carrying out its policies regarding UNC and its sixteen constituent institutions. The President of UNC has been delegated no authority per se and has in fact exercised no authority over adoption, retention, or amendment of the provisions mandating minority representation in the Council and...