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AMENDED COMPLAINT against Lori Rice-Spearman, Texas Tech University Health Sciences Center, John C. DeToledo, Felix Morales, Louis Perez, Monica Galindo filed by George

Stewart v. Texas Tech University Health Sciences Center et al, No. 5:23-cv-00007-H (N.D. Tex.) · Dkt. 60 · 2024-08-17 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION

George Stewart, on behalf of himself
and others similarly situated,
Plaintiff,
v.
Texas Tech University Health Sciences
Center; Lori Rice-Spearman, in her
official capacity as President of Texas
Tech University Health Sciences Center;
John C. DeToledo, in his official
capacity as Dean of the School of
Medicine at Texas Tech University
Health Sciences Center; Felix Morales,
in his official capacity as Associate Dean
for Admissions at the School of
Medicine at Texas Tech University
Health Sciences Center; Louis Perez, in
his official capacity as Senior Director of
Admissions at the School of Medicine at
Texas Tech University Health Sciences
Center; Monica Galindo, in her official
capacity as Director of Admissions at the
School of Medicine at Texas Tech
University Health Sciences Center,

Case No. 5:23-cv-00007-H

Defendants.

FIRST AMENDED CLASS-ACTION COMPLAINT
Federal law prohibits universities that accept federal funds from discriminating on
account of race. See 42 U.S.C. § 2000d (Title VI). Medical schools in Texas are flouting these requirements by using racial preferences in student admissions — a practice
that violates the clear and unequivocal text of Title VI and 42 U.S.C. § 1981, as well
as the Equal Protection Clause of the Fourteenth Amendment. The plaintiff brings

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suit to enjoin these discriminatory practices and to ensure that the defendants comply
with their obligations under federal anti-discrimination laws.
JURISDICTION AND VENUE
1.

The Court has subject-matter jurisdiction under 28 U.S.C. § 1331 and 28

U.S.C. § 1343.
2.

Venue is proper because a substantial part of the events giving rise to the

claims occurred in this judicial district. See 28 U.S.C. § 1391(b)(2). Venue is additionally proper because at least one of the defendants resides in this judicial district
and all defendants reside in Texas. See 28 U.S.C. § 1391(b)(1).
PARTIES
3.

Plaintiff George Stewart is a citizen of Texas.

4.

Defendant Texas Tech University Health Sciences Center is located in Lub-

bock, Texas. It can be served at the Office of General Counsel for the Texas Tech
University System, whose address is: System Administration Building, 1508 Knoxville
Avenue, Suite 301, Box 42021, Lubbock, Texas 79409-2021.
5.

Defendant Lori Rice-Spearman is President of Texas Tech University Health

Sciences Center. Dr. Rice-Spearman can be served at the Office of General Counsel
for the Texas Tech University System, whose address is: System Administration Building, 1508 Knoxville Avenue, Suite 301, Box 42021, Lubbock, Texas 79409-2021.
Dr. Rice-Spearman is sued in her official capacity.
6.

Defendant John C. DeToledo is Dean of the School of Medicine at Texas

Tech University Health Sciences Center. Dr. DeToledo can be served at the Office of
General Counsel for the Texas Tech University System, whose address is: System Administration Building, 1508 Knoxville Avenue, Suite 301, Box 42021, Lubbock,
Texas 79409-2021. Dr. DeToledo is sued in his official capacity.

  - 

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7.

Defendant Felix Morales is Associate Dean for Admissions and Student Af-

fairs at the School of Medicine at Texas Tech University Health Sciences Center. Dr.
Morales can be served at the Office of General Counsel for the Texas Tech University
System, whose address is: System Administration Building, 1508 Knoxville Avenue,
Suite 301, Box 42021, Lubbock, Texas 79409-2021. Dr. Morales is sued in his official
capacity.
8.

Defendant Louis Perez is Senior Director for Admissions and Student Affairs

at the School of Medicine at Texas Tech University Health Sciences Center. Dr. Perez
can be served at the Office of General Counsel for the Texas Tech University System,
whose address is: System Administration Building, 1508 Knoxville Avenue, Suite 301,
Box 42021, Lubbock, Texas 79409-2021. Dr. Perez is sued in his official capacity.
9.

Defendant Monica Galindo is Director of Admissions at the School of Med-

icine at Texas Tech University Health Sciences Center. Ms. Galindo can be served at
the Office of General Counsel for the Texas Tech University System, whose address
is: System Administration Building, 1508 Knoxville Avenue, Suite 301, Box 42021,
Lubbock, Texas 79409-2021. Ms. Galindo is sued in her official capacity.
STATEMENT OF FACTS
10. The School of Medicine at Texas Tech University Health Sciences Center,
along with nearly every medical school and university in the United States,1 discriminates on account of race when admitting students by giving discriminatory preferences to non-Asian racial minorities. This practice, popularly known as “affirmative

1. See Mark J. Perry, New Chart Illustrates Graphically the Racial Preferences for
Blacks, Hispanics Being Admitted to US Medical Schools, American Enterprise Institute, available at: https://bit.ly/3Qp0RZQ (last visited on August 17, 2024);
see also Exhibit 1 (data from the American Association of Medical Colleges showing that the mean GPAs and MCAT scores of black and Hispanic matriculants to
U.S. MD-granting medical schools in 2022–23 were significantly lower than the
mean GPAs and MCAT scores of white and Asian matriculants).

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action,” allows applicants with inferior academic credentials to obtain admission at the
expense of rejected candidates with better academic credentials.
11. These racial preferences are illegal under the clear and unambiguous text of
Title VI, which prohibits all forms of racial discrimination at medical schools and universities that receive federal funds and makes no exception for diversity-based affirmative-action programs.
12. They also violate 42 U.S.C. § 1981, which prohibits racial discrimination in
contracting and makes no exception for diversity-based affirmative-action programs.
13. Plaintiff George Stewart grew up in Texas with the desire to study science,
become a physician, and serve others with his gifting. He made the sacrifices necessary
to excel as a student from an early age and thereafter, graduating from high school
with a 4.39/4.0 GPA and from college at the University of Texas at Austin with a
3.96/4.0 unaudited GPA in Biology while also volunteering with various relief and
ministry organizations. He worked, interned, and volunteered in medical facilities at
MD Anderson Cancer Center in Houston, Neofluidics Laboratory in San Diego, and
Baylor University Medical Center in Dallas. He also scored a 511 on his MCAT. He
believed he would be a good candidate for the Texas medical schools and for two
years applied to medical schools hoping to fulfill his dream and calling to become a
physician. Unfortunately, he was denied this opportunity while over 450 lesser qualified minority students, ranging as low as a GPA of 2.82 or an MCAT of 495, were
offered admission. The schools to which Mr. Stewart applied included: Texas Tech
University Health Sciences Center; Dell Medical School at the University of Texas at
Austin; McGovern Medical School at the University of Texas Health Science Center
at Houston; John Sealy School of Medicine at the University of Texas Medical Branch
at Galveston; Long School of Medicine at the University of Texas Health Science
Center at San Antonio; and University of Texas Southwestern Medical Center.

  - 

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David Puelz
December 26, 2022

Aftercollects
his rejections,
Mr.tables
Stewart
obtainedstatistics
the admissions
data
each
of
This 14.
document
figures and
of summary
for MCAT
andfor
GPA
variables
across race and gender subsets of the admitted applicant pool. It is divided into two sections. First,
the six medical schools through an open-records request, which revealed the race, sex,
we present conditional distributions and summary statistics for admitted students. Second, we
consider
the entire
sample and
of both
admitted
rejected
students.inWe
fit a logistic
regression
grade-point
average,
MCAT
scoreand
of every
applicant
thethen
2021–2022
cycle.
model for admission decision as a function of all available variables and discuss the results.
15. The data reveal that the median and mean grade-point averages and MCAT

1. scores
Admitted
sample
of admitted
black and Hispanic students are significantly lower than the grade•point
Admitted
students
are those
with status
variable
equaland
to: Asian
“Matriculated”,
averages
and MCAT
scores
of admitted
white
students.“Withdrawn After
Acceptance”, “Offer Declined” “Deferred” and “Admitted”.

16. The data from Texas Tech, for example, reveal that blacks and Hispanics are

• The total number of applicants with these admissions statuses equals 607.

admitted with much lower MCAT scores than whites or Asians:
Texas Tech, MCAT by race

MCAT

520

510

500

African American

American Indian

Asian

Hispanic

Multiple

Unreported

White/Caucasian

race

Figure 1. MCAT score by race.
Boxes represent
the inner-quartile-range
(25th to 75th quantiles), and the solid
FACTS
RELATED
TO STANDING
black line represents the median.

17. Mr. Stewart intends to reapply to the School of Medicine at Texas Tech
University Health Sciences Center, and he stands “able and ready” to do so. See Carney v. Adams, 141 S. Ct. 493, 499–500 (2020); Gratz v. Bollinger, 539 U.S. 244, 261
1

(2003); Northeast Florida Chapter of Associated General Contractors of America v. City
of Jacksonville, 508 U.S. 656, 666 (1993).

  - 

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18. But the racial preferences that the defendants have established and enforce
prevent Mr. Stewart from competing on equal terms with other applicants for admission on account of his race. This inflicts injury in fact. See Gratz, 539 U.S. at 261;
Jacksonville, 508 U.S. at 666.
19. This injury is caused by the defendants’ use of racial preferences in student
admissions, and it will be redressed by a declaratory judgment and injunction that
bars the defendants from considering or discriminating on account of race when admitting students to the medical schools.
CLASS-ACTION ALLEGATIONS
20. Mr. Stewart brings this class action under Rule 23(b)(2) of the federal rules
of civil procedure.
21. The class comprises all whites and Asians who stand “able and ready” to
apply for admission to the School of Medicine at Texas Tech University Health Sciences Center.
22. The number of persons in the class makes joinder of the individual class
members impractical.
23. There are questions of law common to the class. All class members stand
able and ready to apply for admission to the School of Medicine at Texas Tech University Health Sciences Center, yet each will encounter discrimination on account of
their race unless the defendants are enjoined from implementing their discriminatory
admissions practices. The common legal questions are whether the defendants’ discriminatory admissions policies violate Title VI, 42 U.S.C. § 1981, or the Equal Protection Clause.
24. Mr. Stewart’s claims are typical of other members of the class. Each class
member will face the same type of racial discrimination — discrimination in favor of

  - 

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non-Asian racial minorities and against whites and Asians— when they apply to the
School of Medicine at Texas Tech University Health Sciences Center.
25. Mr. Stewart adequately represents the interests of the class, and he has no
interests antagonistic to the class.
26. A class action is appropriate under Rule 23(b)(2) because the defendants
are acting on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole.
FIRST CLAIM FOR RELIEF — VIOLATIONS OF TITLE VI
27. Each of the defendants is violating Title VI by discriminating in favor of
non-Asian minority applicants for admission and against whites and Asians.
28. The School of Medicine at Texas Tech University Health Sciences Center is
a “program or activity” that “receives Federal financial assistance” within the meaning
of Title VI.
29. Mr. Stewart therefore seeks declaratory and injunctive relief that prohibits
the defendants from considering or discriminating on account of race any way in student admissions, and that compels the defendants to select applicants for admission
in a color-blind and race-neutral manner.
30. Mr. Stewart seeks this relief under Title VI, 42 U.S.C. § 1983, and any other
law that might supply a cause of action for the requested relief.
31. Mr. Stewart seeks this relief against each of the named defendants, including
the institutional defendants.
32. The text of Title VI makes no exceptions for “compelling state interests,”
“student-body diversity,” or race-based affirmative-action programs. It prohibits all
forms of racial discrimination at institutions that receive federal funds — regardless of
whether that racial discrimination is independently prohibited by the Equal Protection
Clause.

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33. If the Court concludes that Grutter’s interpretation of the Equal Protection
Clause should somehow control the interpretation of Title VI, the defendants’ affirmative-action programs are impermissible even under Grutter because: (1) They are not
limited in time, see Grutter v. Bollinger, 539 U.S. 306, 342 (2003) (“[R]ace-conscious
admissions policies must be limited in time”); id. at 351 (Thomas, J., concurring in
part and dissenting in part) (“I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years.”); (2) The defendants
failed to adequately consider race-neutral alternatives to achieve diversity, see Grutter,
539 U.S. 306, 339 (2003) (“Narrow tailoring . . . require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”); (3) The defendants are using quotas and racial balancing to ensure a
minimum number of black and Hispanic matriculants, see Grutter, 539 U.S. at 328
(“[A] race-conscious admissions program cannot use a quota system”); id. at 330
(“[O]utright racial balancing . . . is patently unconstitutional”); and (4) The defendants’ use of racial preferences is not narrowly tailored to advance the supposedly “compelling” interest of student-body diversity.
34. Mr. Stewart also brings suit to seek the overruling of Grutter and Fisher v.
University of Texas at Austin, 579 U.S. 365 (2016), and he respectfully preserves for
appeal his claim that Grutter and Fisher should be overruled.
SECOND CLAIM FOR RELIEF — VIOLATIONS OF 42 U.S.C.
§ 1981
35. 42 U.S.C. § 1981(a) guarantees individuals the same right to make and enforce contracts without regard to race. See 42 U.S.C. § 1981(a) (“All persons within
the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens”).

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36. 42 U.S.C. § 1981(a) protects whites (and Asians) on the same terms that it
protects “underrepresented” racial minorities. See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 295 (1976) (“[T]he Act was meant, by its broad terms,
to proscribe discrimination in the making or enforcement of contracts against, or in
favor of, any race.”).
37. The individual defendants are violating 42 U.S.C. § 1981(a) by discriminating in favor of non-Asian racial minorities in student admissions, and against whites
and Asians.
38. Mr. Stewart therefore seeks declaratory and injunctive relief that prohibits
the individual defendants from considering or discriminating on account of race in
any way in student admissions, and that compels the defendants to select applicants
for admission in a color-blind and race-neutral manner.
39. Mr. Stewart seeks this relief under 42 U.S.C. § 1983, as well as the implied
right of action that the Supreme Court has recognized to enforce 42 U.S.C.
§ 1981(a), and any other law that might supply a cause of action for the requested
relief. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459–60 (1975).
40. Mr. Stewart seeks this relief only against the individual defendants, and not
against the institutional defendants, as 42 U.S.C. § 1981 neither abrogates nor waives
a state institution’s sovereign immunity from suit. See Sessions v. Rusk State Hospital,
648 F.2d 1066 (5th Cir. 1981) (“Section 1981 contains no congressional waiver of
the state’s eleventh amendment immunity.”).
41. The text of 42 U.S.C. § 1981(a) makes no exceptions for “compelling state
interests,” “student-body diversity,” or race-based affirmative-action programs. It prohibits all forms of racial discrimination in contracting — regardless of whether that
racial discrimination is independently prohibited by the Equal Protection Clause.

  - 

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42. If the Court concludes that Grutter’s interpretation of the Equal Protection
Clause should somehow control the interpretation of 42 U.S.C. § 1981(a), the defendants’ affirmative-action programs are impermissible even under Grutter because:
(1) They are not limited in time, see Grutter v. Bollinger, 539 U.S. 306, 342 (2003)
(“[R]ace-conscious admissions policies must be limited in time”); id. at 351 (Thomas,
J., concurring in part and dissenting in part) (“I agree with the Court’s holding that
racial discrimination in higher education admissions will be illegal in 25 years.”); (2)
The defendants failed to adequately consider race-neutral alternatives to achieve diversity, see Grutter, 539 U.S. 306, 339 (2003) (“Narrow tailoring . . . require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve
the diversity the university seeks.”); (3) The defendants are using quotas and racial
balancing to ensure a minimum number of black and Hispanic matriculants, see Grutter, 539 U.S. at 328 (“[A] race-conscious admissions program cannot use a quota
system”); id. at 330 (“[O]utright racial balancing . . . is patently unconstitutional”);
and (4) The defendants’ use of racial preferences is not narrowly tailored to advance
the supposedly “compelling” interest of student-body diversity.
43. Mr. Stewart also brings suit to seek the overruling of Grutter and Fisher v.
University of Texas at Austin, 579 U.S. 365 (2016), and he respectfully preserves for
appeal his claim that Grutter and Fisher should be overruled.
THIRD CLAIM FOR RELIEF — EQUAL PROTECTION CLAUSE
44. As a public institution, the School of Medicine at Texas Tech University
Health Sciences Center is subject to the commands of the Equal Protection Clause,
which prohibits state universities or their components from denying to any person the
equal protection of the laws.
45. The Supreme Court has held that the Equal Protection Clause prohibits
racial discrimination by state universities in all but the most compelling situations. See

  - 

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Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600
U.S. 181, 207 (2023).
46. The defendants’ use of racial preferences in student admissions is incompatible with the Equal Protection Clause as interpreted in Students for Fair Admissions.
47. The defendants’ racial preferences are also incompatible with Grutter v. Bollinger, 539 U.S. 306 (2003), and Fisher v. University of Texas at Austin, 579 U.S. 365
(2016), because: (1) They are not limited in time, see Grutter v. Bollinger, 539 U.S.
306, 342 (2003) (“[R]ace-conscious admissions policies must be limited in time”);
id. at 351 (Thomas, J., concurring in part and dissenting in part) (“I agree with the
Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years.”); (2) The defendants failed to adequately consider race-neutral alternatives to achieve diversity, see Grutter, 539 U.S. 306, 339 (2003) (“Narrow tailoring
. . . require[s] serious, good faith consideration of workable race-neutral alternatives
that will achieve the diversity the university seeks.”); (3) The defendants are using
quotas and racial balancing to ensure a minimum number of black and Hispanic matriculants, see Grutter, 539 U.S. at 328 (“[A] race-conscious admissions program cannot use a quota system”); id. at 330 (“[O]utright racial balancing . . . is patently unconstitutional”); and (4) The defendants’ use of racial preferences is not narrowly
tailored to advance the supposedly “compelling” interest of student-body diversity.
48. Even if the medical schools’ affirmative-action programs were consistent
with Grutter and Fisher, they would remain illegal under the text of Title VI and 42
U.S.C. § 1981, which categorically prohibit racial discrimination with no caveats or
allowances for “compelling interests, “student body diversity,” or anything else.
49. And if the Court somehow concludes that the medical schools’ affirmativeaction programs are allowable under Grutter and Fisher, then Mr. Stewart will respectfully seek the overruling or reconsideration of Grutter and Fisher on appeal.

  - 

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50. Mr. Stewart therefore seeks declaratory and injunctive relief that prohibits
the defendants from considering or discriminating on account of race in any way in
student admissions, and that compels the defendants to select applicants for admission
in a color-blind manner.
51. Mr. Stewart seeks this relief under 42 U.S.C. § 1983 and any other law that
might supply a cause of action for the requested relief.
52. Mr. Stewart seeks this relief only against the individual defendants, and not
against the institutional defendants, as 42 U.S.C. § 1983 authorizes lawsuits only
against “persons” and not states or state institutions. See Will v. Michigan Dep’t of
Police, 491 U.S. 58, 64–71 (1989) (a state is not a “person” under 42 U.S.C. § 1983).
DEMAND FOR RELIEF
53. Mr. Stewart respectfully requests that the court:
a.

certify the class described in paragraph 21;

b.

declare that each of the defendants is violating Title VI by discriminating in favor of non-Asian racial minorities in student admissions;

c.

declare that the individual defendants (but not the institutional defendants) are violating 42 U.S.C. § 1981(a) and the Equal Protection
Clause by discriminating in favor of non-Asian racial minorities in student admissions;

d.

permanently enjoin the defendants from considering race in student
admissions;

e.

permanently enjoin the defendants from asking or allowing an applicant for admission to reveal their race;

f.

enter an award of nominal, compensatory, and punitive damages;

  - 

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g.

appoint a court monitor to oversee all decisions relating to the defendants’ admission of students to ensure that these decisions are free
from racial discrimination of any sort;

h.

appoint a court monitor to oversee any “diversity office” that may
exist at Texas Tech University Health Sciences Center to ensure that
it does not aid or abet violations of the nation’s civil-rights laws;

i.

award costs and attorneys’ fees;

j.

grant all other relief that the Court deems just, proper, or equitable.
Respectfully submitted.

G P. H
Virginia Bar No. 80434
Vice-President and General Counsel
R  D. R*
D.C. Bar No. 400153
A  J. B*
Virginia Bar No. 91537
N R. B*
Tennessee Bar No. 031963
America First Legal Foundation
300 Independence Avenue SE
Washington, DC 20003
(202) 964-3721
gene.hamilton@aflegal.org
reed.rubinstein@aflegal.org
andrew.block@aflegal.org
nicholas.barry@aflegal.org
Dated: August 17, 2024

  - 

/s/ Jonathan F. Mitchell
J F. M
Texas Bar No. 24075463
Mitchell Law PLLC
111 Congress Avenue, Suite 400
Austin, Texas 78701
(512) 686-3940 (phone)
(512) 686-3941 (fax)
jonathan@mitchell.law

* admitted pro hac vice
Counsel for Plaintiff
and Proposed Class

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CERTIFICATE OF SERVICE
I certify that on August 17, 2024, I served this document through CM/ECF
upon:
B S. W
Assistant Attorney General
General Litigation Division
Post Office Box 12548
Austin, Texas 78711
(512) 463-2120 (phone)
(512) 320-0667 (fax)
benjamin.walton@oag.texas.gov
Counsel for Defendants
/s/ Jonathan F. Mitchell
J F. M
Counsel for Plaintiff and Proposed Class

  - 

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