BOARD OF TRUSTEES OF ALABAMA STATE UNIVERSITY, ET AL., PETITIONERS V. AUBURN UNIVERSITY, ET AL. No. 87-1200 In The Supreme Court Of The United States October Term, 1987 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-40a) is reported at 828 F.2d 1532. An earlier opinion of the court of appeals (Pet. App. 139a-154a) is reported at 791 F.2d 1450. The opinion of the district court with respect to the motion to recuse (Pet. App. 41a-61a) is reported at 582 F. Supp. 1197. The opinion of the district court with respect to the merits of the controversy (Pet. App. 62a-138a) is reported at 628 F. Supp. 1137. JURISDICTION The judgment of the court of appeals was entered on October 6, 1987. On December 29, 1987, Justice Stevens extended the time for filing a petition for a writ of certiorari to and including January 19, 1988, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the disqualification of a judge under 28 U.S.C. 455(b)(1) may be based on evidence that was not presented to the district court assigned initial responsibility for resolving the disqualification issue. 2. Whether a state university has standing under the Equal Protection Clause of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., to challenge for its own benefit the racially discriminatory actions of the state-created system of higher education of which it is a part. STATEMENT 1. Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., prohibits recipients of federal financial assistance from discriminating on the basis of race in federally assisted programs or activities. In July 1983, the United States filed suit in the United States District Court for the Northern District of Alabama, alleging that the State of Alabama, the Alabama State Board of Education, and all state-supported four-year institutions of higher education in the State of Alabama, including Alabama State University (ASU) and Alabama A & M (A & M), two historically and predominantly black colleges, had been maintaining a racially segregated system of higher education in violation of Title VI and the Equal Protection Clause of the Fourteenth Amendment (Pet. App. 3a). Both ASU and A & M, however, moved for realignment as parties-plaintiff on the ground that their interests were antagonistic to those of the other defendants (id. at 5a n.1). In addition, John F. Knight moved to intervene as representative of a plaintiff-class of ASU graduates, black adults and minor children in Alabama presently attending or eligible to attend an Alabama higher education institution in the relevant geographic area, and black citizens who are or may be employed by these higher education institutions (id. at 4a-5a). The district court, with the Honorable U. W. Clemon presiding, granted these motions (id. at 4a-5a, 12a). In September 1983, however, Auburn University and the State Superintendent of Education moved, pursuant to 28 U.S.C. 144 and 455, to disqualify Judge Clemon (Pet. App. 12a). /1/ They argued that Judge Clemon's children were potential members of the plaintiff-class; that Judge Clemon had represented the plaintiffs in Lee v. Macon County Bd. of Educ., 317 F. Supp. 103 (M.D. Ala. 1970), aff'd in part and modified in part, 453 F.2d 524 (5th Cir. 1971), a case which allegedly involved some of the same parties and presented some of the same issues; and that Judge Clemon knew and was sponsored for the bench by a member of the law firm that now represented Alabama A & M (Pet. App. 12a-13a, 18a-23a). Judge Clemon summarily rejected these arguments, finding that the affidavits accompanying the motions had not been signed by "parties," as required by 28 U.S.C. 144, and that a reasonable person viewing the true facts would not harbor doubts concerning his impartiality, as required by 28 U.S.C. 455 (Pet. App. 12a). Auburn University filed a petition for a writ of mandamus to the court of appeals with respect to the disqualification issue (Pet. App. 12a). The court of appeals granted the petition and remanded the case "with directions that another judge be assigned to hear the recusal proceedings" (No. 83-7557 (11th Cir. Nov. 10, 1983), slip op. 1). Judge Hobart Grooms was then assigned to the case (Pet. App. 12a). He held an evidentiary hearing with respect to this matter and, on December 19, 1983, ruled that Judge Clemon should be disqualified (id. at 12a-13a). On January 19, 1984, however, Judge Grooms vacated his order and recused himself from deciding the disqualification issue (id. at 13a). Accordingly, Senior Judge David W. Dyer of the court of appeals was assigned to the case (Pet. App. 13a). He determined that Judge Clemon need not disqualify himself from the underlying matter (id. at 41a-61a). Judge Dyer found that the affidavits filed by Auburn University and the Superintendent of Education "fail(ed) to state material facts with sufficient particularity to convince a reasonable man that a personal bias exists" (id. at 45a). 2. The case then proceeded to trial, with Judge Clemon presiding (Pet. App. 5a). While the case was pending, however, the Alabama State Board of Education determined that it would not recertify certain undergraduate and graduate teacher education programs of ASU (id. at 140a-141a). ASU and the Knight intervenors promptly moved the district court preliminarily to enjoin the Alabama State Board of Education from doing so (id. at 141a). On August 21, 1985, the district court issued the requested preliminary relief, finding that the decision not to recertifiy the teacher education programs was racially motivated and that the status quo should be maintained until the underlying action brought by the United States could be resolved (id. at 141a, 151a). On December 7, 1985, the district court found that, until 1965, each public college in Alabama was segregated by law and by custom, that between 1965 and 1975 the defendants had engaged in a series of actions which continued the racially dual system, and that the vestiges of the pre-1965 and 1965-1975 actions continued to exist in the Alabama higher education system (id. at 5a-6a, 62a-138a). Accordingly, it ordered the State, the Governor, the Alabama State Board of Education, and the Alabama Public School and College Authority to submit a remedial plan consistent with its findings to "'eliminate all vestiges of the dual system'" (id. at 7a). All further proceedings were stayed, however, pending disposition of the defendants' appeals (ibid.). 3. In an opinion and order rendered on June 6, 1986 in review of the district court's August 21, 1985 order (Pet. App. 139a-154a), the court of appeals upheld the preliminary relief issued by the district court against denial of recertification of ASU teacher education programs. It first ruled that ASU did not have standing under either the Fourteenth Amendment or Title VI to challenge for its own benefit the racially discriminatory actions of the state-created system of higher education of which it is a part (id. at 141a-142a). The court found that "ASU, as a creature of the state, may not raise a Fourteenth Amendment claim under Section 1983" (id. at 144a) and that "(n)othing in Title VI or its legislative history suggests that Congress conceived of a state instrumentality as a 'person' with rights under this statute" (id. at 146a). /2/ Concomitantly, however, the court found that "the trial court's entry of the preliminary injunction sought by the Knight intervenors against the Board was entirely appropriate" (id. at 151a), reasoning that "(t)he standing of the * * * intervenors remains unchallenged" (id. at 147a), that "even the partial demise of ASU would impede the ability of the trial court -- and this (c)ourt on review -- to remedy any violation of law proved in the state-wide action originally brought by the United States and joined by the Knight intervenors" (id. at 152a), and that "the intervenors had a substantial likelihood of success on the merits" (ibid.). Thus, the court affirmed "entry of this injunction, on behalf of the intervenors, against the members of the (S)tate Board in their official capacities," and reversed "the district court's entry of any injunction on behalf of ASU * * *" (id. at 153a). /3/ 4. On October 6, 1987, the court of appeals reviewed the district court's December 7, 1985 order, determined that Judge Clemon should have been disqualified from hearing the case and, accordingly, reversed and remanded without reaching the merits (Pet. App. 1a-40a). /4/ It agreed with the district court that neither the presence of Judge Clemon's two minor children in the plaintiff class nor the judge's background as a civil rights lawyer and political figure in Alabama required disqualification (id. at 18a-23a). But the court held that Judge Clemon's involvement as a legislator with the matters at issue in the litigation did require the trial judge's disqualification (id. at 23a-29a). The court rested its holding on the fact that, "(d)uring his tenure in the state legislature, the trial judge actively participated in the very events and shaped the very facts that are at issue in this suit" (Pet. App. 23a (footnote omitted)). Specifically, it found that, "(a)schairman of the Senate Rules Committee, Judge Clemon played a critical role in the confirmation of those individuals nominated for positions on the board of trustees of the defendant institutions" (id. at 23a-24a), and "(y)et Judge Clemon explicitly found at trial that the composition of defendants' governing boards was a relevant and important factor in this finding of liability" (id. at 25a). It further found that, "(w)hile in the statehouse, Judge Clemon also helped spearhead a bill to appropriate $10,000,000 to Alabama A & M" (ibid.), yet "(a)t trial, A & M cited the defeat of this bill as evidence of racial animus" and thus "Judge Clemon was again forced to make factual findings about events in which he was an active participant" (ibid.). Finally, it found that Judge Clemon's involvement as a lawyer in the Lee v. Macon County Bd. of Educ., supra, litigation provided him with information relating to the discrimination suffered by black high school principals, a subject on which evidence was also presented in this case (Pet. App. 26a-27a). The court concluded that, as a result of his involvement in these matters, 28 U.S.C. 455(b)(1) required his disqualification, since Judge Clemon had "personal knowledge of disputed evidentiary facts concerning the proceeding" (Pet. App. 27a). In reaching this conclusion, the court rejected the claim that it should "not consider Judge Clemon's activities as a state Senator since these facts were not presented to Judge Dyer" (Pet. App. 23a n.49). It acknowledged that "(t)he question of whether considerations of timeliness apply under (28 U.S.C.) 455 is a difficult one," noting that "Congress did not incorporate a time limitation into the amended statute, and courts have differed as to whether the timeliness requirement of the prior (Section) 455 survived" (ibid.). But the court ruled that, "(e)ven if the principle of timeliness has some application to motions brought under (Section) 455(b), it would be inappropriate to apply this principle under the circumstances of this case" (id. at 24a n.49). It reasoned that "(t)hose courts that have adopted a timeliness requirement have done so 'to prevent litigants from abusing motions to disqualify as dilatory tactics or as a means to "sample the temper of the court" before deciding whether to raise an issue of disqualification'" (ibid. (citations omitted)), that "(a)ppellants here were not acting to delay or to speculate on a favorable substantive judgment in the interim" (ibid.), that "(m)otions to disqualify Judge Clemon were filed at the earliest stages of the litigation and aggressively prosecuted throughout" (ibid.), that "(a)ppellants did not discover relevant information about Judge Clemon's activities as a state legislator until late in the litigation, and raised this ground for disqualification at the first available moment" (ibid); and, finally, that "(g)iven the critical importance of the appearance of impartiality guaranteed by (Section) 455," it would not "adopt the cramped interpretation of this statute asserted by appellees" (ibid.). ARGUMENT The decision of the court of appeals does not merit review by this Court. Although the United States adheres to its position that disqualification was improper since the claims were either untimely or lacking in merit, it is clear that the disqualification issue is essentially a factual one and that the resolution of this issue by the court below does not conflict with any decision of this Court or of any other court of appeals. Moreover, this Court has already declined to review the question whether ASU has standing to challenge for its own benefit the racially discriminatory actions of the state-created system of which it is a part (No. 86-749), and the question is no more deserving of review at this time. /5/ Accordingly, the petition for a writ of certiorari should be denied. 1. Petitioners initially err in suggesting (Pet. 14-15) that the decision below conflicts with the holdings of other courts that a litigant must raise in a timely fashion the grounds on which it seeks to disqualify a judge under 28 U.S.C. 455(b). To be sure, there is a conflict among the circuits on this question (compare In re International Business Machines Corp., 618 F.2d 923 (2d Cir. 1980) (party may not await outcome of trial before seeking to disqualify trial judge on basis of information known to party before trial); Delesdernier v. Porterie, 666 F.2d 116 (5th Cir.), cert. denied, 459 U.S. 839 (1982) (same); and United States v. Conforte, 624 F.2d 869 (9th Cir.), cert. denied, 449 U.S. 1012 (1980) (same), with United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), cert. denied, 475 U.S. 1012 (1986)). This conflict may be short-lived, however, because, as petitioners concede (Pet. 15 n.8), the Seventh Circuit "appears to be ready to reconsider." Moreover, the court of appeals in this case did not decide whether a time limitation applies to disqualification motions under 28 U.S.C. 455(b). Rather, it held that, even assuming that such a limitation applies, the motion for disqualification in this case was timely filed (Pet. App. 23a-24a n.49). The court found that "(m)otions to disqualify Judge Clemon were filed at the earliest stages of the litigation and aggressively prosecuted throughout," and that "(respondents) did not discover relevant information about Judge Clemon's activities as a state legislator until late in the litigation, and raised this ground for disqualification at the first available moment" (ibid.). Accordingly, the decision below does not add to the circuit conflict or provide a vehicle for resolving it. 2. Petitioners similarly err in suggesting (Pet. 15-18) that the decision below conflicts with decisions of other courts in which remands were ordered to permit the development of a factual record on the disqualification issue. In the cases that petitioners cite, the remands were ordered because the facts material to the disqualification issue were in dispute. See Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 802 (5th Cir. 1986), cert. granted, No. 86-957 (Mar. 9, 1987); Price Bros. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th Cir. 1980), cert. denied, 454 U.S. 1099 (1981); United States v. Conforte, 457 F. Supp. 641, 645 (D. Nev. 1978). Here, by contrast, the court of appeals apparently concluded that the facts material to the disqualification issue were not in dispute and that the issue could be resolved without further factfinding by a district court; the court of appeals believed that the undisputed facts established that Judge Clemon was intimately involved as a state legislator with matters at issue in this case. See Pet. App. 23a-29a. Accordingly, its decision not to remand the case for further proceedings is not in conflict with the decisions that petitioners cite. /6/ 3. Petitioners next argue (Pet. 18-22) that the facts upon which the court of appeals relied do not require Judge Clemon's disqualification. But the question is inherently fact-bound and non-recurring. Accordingly, in our view, it is not sufficiently important to justify review by this Court. /7/ 4. Finally, petitioners err in suggesting (Pet. 22-27) that the court of appeals erred in holding that ASU and A & M were without standing under either the Equal Protection Clause or Title VI to challenge for their own benefit the racially discriminatory actions of the state education system of which they are a part. This Court has long held that, "(b)eing but creatures of the State, municipal corporations have no standing to invoke the * * * provisions of the Fourteenth Amendment of the Constitution in opposition to the will of their creator." Coleman v. Miller, 307 U.S. 433, 441 (1939) (footnote omitted). See generally Williams v. Mayor of Baltimore, 289 U.S. 36, 40 (1933); Risty v. Chicago, R.I. & Pac. Ry., 270 U.S. 378, 389-390 (1926); Trenton v. New Jersey, 262 U.S. 182, 188 (1923); Hunter v. Pittsburgh, 207 U.S. 161, 179 (1907). Title VI likewise is designed to protect individual rights and, in enacting that statute, Congress made no suggestion that it was granting state-created entities any rights that heretofore were unavailable under the Fourteenth Amendment. Cf. Regents of the University of California v. Bakke, 438 U.S. 265, 287 (1978) (opinion of Powell, J.) (Title VI proscribes "only those racial classifications that would violate the Equal Protection Clause"); id. at 328 (opinion of Brennan, White, Marshall, Blackmun, JJ.) (same). Accordingly, the decision of the court below -- that state-created entities like ASU and A & M may not rely on either the Equal Protection Clause or Title VI to challenge for their own benefit the discriminatory actions of the state that created them -- is correct. Petitioners acknowledge (Pet. 23) that "a line of cases (from this Court exists) holding that disputes between arms or creatures of a State do not normally implicate federal rights." But petitioners repeat the argument that was advanced, and that this Court declined to review, in No. 86-749, to wit, that the court of appeals failed to consider cases "which have allowed claims such as those asserted here when they were brought by state-created entities or their board members, in pursuit of their obligation under the Supremacy Clause to conform thier conduct to the federal Constitution or a federal statute" (Pet. 23). As we noted in our brief in opposition in No. 86-749 (at 6), however, the court of appeals could not consider an argument that was not presented to it. ASU did not argue to the court of appeals that it was representing the interests of its students, faculty, or administrators, or that it was pursuing an obligation under the Supremacy Clause to conform its conduct to the federal Constitution or a federal statute. Rather, ASU argued only that it had standing as an institution to seek the preliminary injunction. Thus, in answering respondents' argument to the court of appeals that petitioner ASU was without standing, ASU contended only that "Alabama State University as a creature of the State has federally protected rights under the Constitution and the Laws of the United States" (ASU C.A. Br. 21). Accordingly, the court below had only to decide "whether any given constitutional provision or law protects the interests of the body in question," to wit, ASU. See Pet. App. 143a-144a (emphasis added). Petitioners' recharacterization of the cause in this petition for a writ of certiorari cannot change the question presented to and decided by the court below. /8/ Petitioners therefore err (Pet. 22-26) in suggesting that the decision below conflicts with decisions of this Court and other courts which have held that state-created entities may challenge on behalf of their students, faculties, and board members the discriminatory actions of their state-creators. The school boards in the cited cases either alleged that a state statute or some other state action required a constitutional or statutory duty to be violated by board members (see, e.g., Washington v. Seattle School District No. 1, 458 U.S. 457 (1982); Board of Educ. v. Allen, 392 U.S. 236 (1968)), or that they were representing the constitutional rights of their students or faculty (see, e.g., Akron Bd. of Educ. v. State Bd. of Educ., 490 F.2d 1285 (6th Cir.), cert. denied, 417 U.S. 932 (1974); Bradley v. School Bd., 338 F. Supp. 67 (E.D. Va.), rev'd on other grounds, 462 F.2d 1058 (4th Cir. 1972), aff'd by an equally divided court, 412 U.S. 92 (1973); School Bd. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987). Here, by contrast, ASU alleged only that its own rights an an institution were in issue. Thus, it is clear that petitioners ask this Court to resolve a conflict that does not exist. The suggestion (Pet. 26-27) that decision below "leaves a significant gap in the means of protecting the constitutional rights of (their) students" is equally meritless. The United States and the intervenors in this litigation have adequately represented and will continue adequately to represent the students and faculty of the Alabama schools -- the persons who would truly benefit from the desegregation of the Alabama system of higher education. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General JESSICA DUNSAY SILVER MARK L. GROSS Attorneys MARCH 1988 /1/ 28 U.S.C. 144 and 455 are reprinted in full at Pet. App. 13a-15a n.21. /2/ The court, however, rejected the "broad contention that (ASU), as a creature of state government, has no federally protected rights whatsoever under the Constitution or laws of the United States" (Pet. App. 142a). /3/ The Board of Trustees of Alabama State University petitioned for certiorari on the court of appeal' ruling as to standing. The Court denied the petition (No. 86-749 (Feb. 23, 1987)). /4/ The court also held (Pet. App. 29a-39a) that the United States had improperly alleged that the entire system of public higher education was covered by Title VI and had failed to identify the particular programs or activities at individual colleges receiving federal funds. The court instructed (id. at 39a) that, on remand, the United States should prepare and file a new complaint. /5/ We are lodging with the Clerk and sending to petitioners a copy of our brief in opposition in No. 86-749. /6/ Petitioners note (Pet. 13-14) that this Court has granted certiorari and heard argument in Liljeberg, which involves a question concerning the timeliness of a disqualification motion under 28 U.S.C. 455(a). But petitioners properly do not ask that their petition be held pending the disposition of Liljeberg. That case involves allegations concerning the "appearance of impropriety" of a judge, not personal knowledge of important facts. Accordingly, the decision there should not bear on the proper resolution of the timeliness question that sometimes arises under 28 U.S.C. 455(b). /7/ There is no basis for petitioners' suggestion (Pet. 14) that the disqualification decision in this case was based upon Judge Clemon's race. /8/ As we noted in our brief in opposition in No. 86-749 (at 6 n.1), it may be that ASU intended to argue to the court of appeals that it was representing the interests of its students, faculty, and administrators, as well as the interests of the institution as a whole. But, as we also noted there (ibid.), ASU did not make these intentions clear to the court of appeals and, accordingly, the fault in the decision below, if any, lies with ASU, not with the court of appeals.