MOTION to Dismiss For Lack of Jurisdiction and Failure to State a Claim filed by Pierre W. Banks, Giuseppe N. Colasurdo, Chiquita Collins, Joel A. Daboub, Belinda Chapa¶

Stewart v. Texas Tech University Health Sciences Center et al, No. 5:23-cv-00007-H (N.D. Tex.) · Dkt. 35 · 2023-09-12 · PDF

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

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
George Stewart,
Plaintiff;
v.

Case No. 5:23-cv-0007-H

Texas Tech University Health
Sciences Center, et al.,
Defendants.
THE UNIVERSITY OF TEXAS DEFENDANTS’
MOTION TO DISMISS AND BRIEF IN SUPPORT
Layne E. Kruse
Shauna Johnson Clark
NORTON ROSE FULBRIGHT US LLP
1301 McKinney, Suite 5100
Houston, Texas 77010
Telephone: 713-651-5151
Telecopier: 713-651-5246
layne.kruse@nortonrosefulbright.com
shauna.clark@nortonrosefulbright.com

Attorneys for the University of Texas Defendants

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TABLE OF CONTENTS

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Page

Table of Authorities ...................................................................................................... ii
Introduction .................................................................................................................. 1
Background and Overview of Complaint ..................................................................... 3
Argument and Authorities ........................................................................................... 5
1.

Stewart’s race-based discrimination claims for declaratory and
injunctive relief are moot in light of Regents’ Rule 40304’s
repeal. ...................................................................................................... 6

2.

Stewart’s claims against the individual UT Defendants fail
because they are barred and he has made no allegations that
suggest any individual UT Defendant engaged in discrimination
or took part in admissions decisions at all. ............................................ 8

3.

Stewart’s conclusory assertions fail to plausibly allege race or
gender based discrimination claims under Title VI, Title IX,
Section 1981, or the Equal Protection Clause. ..................................... 13

Conclusion ................................................................................................................... 15
Certificate of Service................................................................................................... 17

i

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TABLE OF AUTHORITIES

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Page(s)

CASES
Alegria v. Texas,
2007 WL 3256586 (S.D. Tex. Nov. 2, 2007) ............................................................. 9
Alexander v. Sandoval,
532 U.S. 275 (2001) ................................................................................................ 13
Allen v. Denver Pub. Sch. Bd.,
928 F.2d 978 (10th Cir. 1991) ................................................................................ 11
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...................................................................................... 6, 11, 13
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ............................................................................................ 5, 13
Torch Liquidating Trust ex rel. Bridge Assocs. L.L.C. v. Stockstill,
561 F.3d 377 (5th Cir. 2009) .................................................................................... 6
Carter v. Target Corp.,
541 F. App’x 413 (5th Cir. 2013) .............................................................................. 4
Chavez. v. Illinois State Police,
251 F.3d 612 (7th Cir. 2001) .................................................................................. 14
Coleman v. Houston Indep. Sch. Dist.,
113 F.3d 528 (5th Cir. 1997) .................................................................................. 11
Daniel v. Univ. of Texas Sw. Med. Ctr.,
960 F.3d 253 (5th Cir. 2020) ................................................................................ 5, 8
In re FEMA Trailer Formaldehyde Prod. Liab. Litig.,
668 F.2d 281 (5th Cir. 2012) .................................................................................... 5
Foley v. Benedict,
55 S.W.2d 805 (Tex. 1932)........................................................................................ 7
Freedom from Religion Found., Inc. v. Mack,
4 F.4th 306 (5th Cir. 2021) ............................................................................... 10, 12
Freedom from Religion Found. v. Abbott,
58 F.4th 824 (5th Cir. 2023) ............................................................................. 6, 7, 8
Gen. Bldg. Contractors Ass’n v. Pennsylvania,
458 U.S. 375 (1982) ............................................................................................... 13
ii

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Kentucky v. Graham,
473 U.S. 159 (1985) ................................................................................................ 10
Gratz v. Bollinger,
539 U.S. 244 (2003) .................................................................................................. 7
Grutter v. Bollinger,
539 U.S. 306 (2003) .................................................................................................. 7
Haverkamp v. Linthicum,
6 F.4th 662 (5th Cir. 2021) ..................................................................................... 12
Hearth, Inc. v. Dep’t of Pub. Welfare,
617 F.3d 381 (5th Cir. 1980) .................................................................................... 9
Jacquez v. Procunier,
801 F.2d 789 (5th Cir. 1986) .................................................................................. 11
In re Katrina Canal Breaches Litig.,
495 F.3d 191 (5th Cir. 2007) .................................................................................... 4
Lafleur v. Texas Dep’t of Health,
126 F.3d 758 (5th Cir. 1997) .................................................................................... 9
Lewis v. Ascension Par. Sch. Bd.,
806 F.3d 344 (5th Cir. 2015) .................................................................................. 14
Lewis v. Univ. of Texas Med. Branch at Galveston,
665 F.3d 625 ............................................................................................................. 8
Machete Prods., LLC v. Page,
809 F.3d 281 (5th Cir. 2015) .................................................................................... 5
Magellan Int’l Corp. v. Salzgitter Handel GmbH,
76 F. Supp. 2d 919 (N.D. Ill. 1999) .......................................................................... 5
Manley v. Texas Southern Univ.,
107 F. Supp. 3d 712 (S.D. Tex. 2015)............................................................... 11, 14
Murphy v. Kellar,
950 F.2d 290 (5th Cir. 1992) .................................................................................. 11
Norris v. Hearst Trust,
500 F.3d 454 (5th Cir. 2007) .................................................................................... 7
Oden v. Oktibbeha Cnty., Miss.,
246 F.3d 458 (5th Cir. 2001) .................................................................................... 9
iii

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Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984) .................................................................................................... 2
Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256 (1979) ................................................................................................ 11
Poloceno v. Dallas Indep. Sch. Dist.,
826 F. App’x 359 (5th Cir. 2020) ...................................................................... 13, 14
Price ex rel. Price v. Louisiana Dep’t of Educ.,
329 F. App’x 559 (5th Cir. 2009) .............................................................................. 9
Priester v. Lowndes Cnty.,
354 F.3d 414 (5th Cir. 2004) ............................................................................ 11, 14
Ramming v. United States,
281 F.3d 158 (5th Cir. 2001) .................................................................................... 7
In re S. Recycling, L.L.C.,
982 F.3d 374 (5th Cir. 2020) ................................................................................ 4, 5
Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard
College and Students for Fair Admissions, Inc. v. Univ. of N.
Carolina et al.,
143 S. Ct. 2141 (2023) .......................................................................................... 2, 6
Taylor v. Johnson,
257 F.3d 470 (5th Cir. 2001) .................................................................................. 14
Texas Dep’t of Hous. & Comm. Affairs v. Inclusive Comms. Proj., Inc.,
576 U.S. 519 ............................................................................................................ 15
U.S. Navy Seals 1-26 v. Biden,
72 F.4th 666 (5th Cir. 2023) ..................................................................................... 8
Univ. of Houston v. Barth,
403 S.W.3d 851 (Tex. 2013) ...................................................................................... 7
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) .................................................................................... 11, 13, 14
Wards Cove Packing Co. v. Atonio,
490 U.S. 642 (1989) ................................................................................................ 14
Williams v. Bd. of Regents of Univ. Sys. of Georgia,
477 F.3d 1282 (11th Cir. 2007) ................................................................................ 9
iv

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Yarls v. Bunton,
905 F.3d 905 (5th Cir. 2018) .................................................................................... 6
Ex parte Young,
209 U.S. 123 (1908) ............................................................................................ 2, 12
RULES AND STATUTES
20 U.S.C. § 1681 et seq. .........................................................................................passim
42 U.S.C. § 1981 ....................................................................................................passim
42 U.S.C. § 1983 ......................................................................................... 1, 2, 9, 10, 12
42 U.S.C §§ 2000d et seq. ......................................................................................passim
42 U.S.C. § 2000e-2(k)1 ............................................................................................... 14
Fed. R. Civ. P. 12 ............................................................................................... 1, 4, 5, 7
Fed. R. Civ. P. 23 ........................................................................................................... 1
Tex. Educ. Code § 51.842 ............................................................................................. 13
Tex. Educ. Code § 65.31 ................................................................................................. 6
Tex. Gov’t Code § 572.002.............................................................................................. 8

v

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Defendants Dell Medical School at The University of Texas at Austin,
McGovern Medical School at The University of Texas Health Science Center at
Houston, the John Sealy School of Medicine at The University of Texas Medical
Branch (UTMB) at Galveston, the Long School of Medicine at The University of Texas
Health Science Center at San Antonio, The University of Texas Southwestern
Medical Center in Dallas, along with the officials at those institutions sued here in
their official capacities, 1 move to dismiss George Stewart’s complaint for lack of
subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim under
Rule 12(b)(6). 2
INTRODUCTION
George Stewart was denied admission to medical school. Stewart is white and
believes he was not admitted to medical school because the schools gave preferences
to “lesser qualified” women and minority applicants—that is students who had lower
standardized test scores, lower grade-point averages, or both. So Stewart sued five
medical schools within the UT System, along with 18 administrators at UT System
institutions in their official capacity.
Stewart seeks relief under Title VI, 42 U.S.C §§ 2000d et seq., Title IX, 20
U.S.C. § 1681 et seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Fourteenth
Amendment’s Equal Protection Clause. Claiming that he intends to reapply, Stewart
wants to certify a class under Rule 23(b)(2) to seek injunctive and declaratory relief
for “all white and Asian men” who stand “able and ready” to apply to medical school.
See Doc. 1 ¶ 53-54.; see also id. ¶ 52 (claiming Stewart’s injury “will be redressed by

The individual UT Defendants are: Jay Hartzell, Claudia F. Lucchinetti, Steve Smith, Joel A.
Daboub, Giuseppe N. Colasurdo, John Hancock, Margaret C. McNeese, Charles P. Mouton, Jeffrey
Susman, Ruth E. Levine, Pierre W. Banks, William L. Henrich, Robert A. Hromas, Belinda Chapa
Gonzalez, Chiquita Collins, Daniel K. Podolskey, W.P. Andrew Lee, and Leah Schouten.
2 This motion is filed subject to and simultaneously with the UT Defendants’ motion to sever the claims
against them from those against the Texas Tech Defendants and transfer the claims against the UT
Defendants to U.S. District Court for the Western District of Texas, Austin Division.
1

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a declaratory judgment and injunction that bars defendants from considering or
discriminating on account of race or sex when admitted students”). 3
But Stewart’s claims fail for many reasons.
To begin with, his claims for declaratory and injunctive relief to prevent the
UT Defendants from considering race in admissions are now moot. That is because,
in the wake of Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard
College and Students for Fair Admissions, Inc. v. Univ. of N. Carolina et al., 143 S.
Ct. 2141 (2023), the UT System’s Board of Regents repealed Regents’ Rule 40304,
which had allowed affirmative action in admissions in some cases.
Stewart’s claims should be dismissed for other reasons too. The Eleventh
Amendment bars his Section 1981, Section 1983, and Equal Protection claims against
the individual defendants, whom he sued only in their official capacities. Nor has
Stewart pleaded a claim for injunctive relief against them under Ex parte Young, 209
U.S. 123 (1908), because his claims against the individuals do not explain how any of
them engaged in any alleged discriminatory practices (and thus he has not pleaded
how injunctive or declaratory relief entered against them would redress his claimed
injury). His Title VI and Title IX claims can be made only against institutions, not
individuals. And, in any case, Stewart’s Title VI and Title IX claims should be

3 Stewart’s complaint seeks to certify a class for only injunctive relief and his complaint repeatedly

refers only to seeking declaratory or injunctive relief including in its claims for relief. See, e.g., Doc. 1
at 3 (“The plaintiff brings this suit to enjoin these discriminatory practices”); id. ¶ 62 (stating Stewart
“seeks declaratory and injunctive relief that prohibits the defendants from considering or
discriminating on account of race and sex” for alleged Title VI and Title IX violations); id. ¶ 72 (same
for alleged Section 1981 violations); id. ¶ 83 (same for alleged Equal Protection Clause violations. On
the last page of his complaint, in his demand for relief, Stewart asserts in one line that he wants
damages. Stewart does not explain what those damages are or how he has been injured and it is not
clear that he is, in fact, seeking damages. In any case, as explained at pp. 8-12, even if Stewart were
seeking damages for his Section 1983 claims, that relief is barred by the Eleventh Amendment,
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984), and in any event, all his
claims, including damages, should be dismissed for failure to state a claim, as explained at pp. 13-15.

2

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dismissed because he has not alleged any facts that suggest the UT Medical Schools
discriminated based on race or gender.
BACKGROUND AND OVERVIEW OF COMPLAINT
Stewart is a graduate of The University of Texas at Austin who has twice
applied to several public medical schools in Texas. Doc. 1 ¶ 36. Some schools where
Stewart applied are part of The University of Texas System (“UT System”), Tex. Educ.
Code. § 65.02. 4 Those schools include Dell Medical School at The University of Texas
at Austin, McGovern Medical School at The University of Texas Health Science
Center at Houston, the John Sealy School of Medicine at The University of Texas
Medical Branch at Galveston, the Long School of Medicine at The University of Texas
Health Science Center at San Antonio, and the University of Texas Southwestern
Medical School in Dallas (together the “UT Medical Schools”). Id. Stewart, who is
white, was not admitted to any of these schools. Id.¶¶ 36, 51.
Stewart believes he was not admitted to the UT Medical Schools because the
schools’ admissions processes allegedly gave preferences to underrepresented
minorities and women over white and Asian men – thus admitting students he
contends were less qualified than him. Stewart claims that giving such preferences
violates Title VI, Title IX, 42 U.S.C. § 1981, and the Fourteenth Amendment’s Equal
Protection Clause.
Stewart makes a conclusory assertation that “nearly every medical school in
the United States” discriminates in admissions based on race and gender, Doc. 1 ¶
33, but he offers no details about how any of the UT Medical Schools discriminated
based on race or gender. Instead, Stewart included in his complaint several graphs
showing the range of admitted students’ scores on the MCAT – the standardized test

4 The UT System is governed by a board of regents, Tex. Educ. Code. § 65.11, which is “authorized and

directed to govern, operate, support, and maintain, each of the component institutions that are now or
may hereafter be included in a part of The University of Texas System.” Id. § 65.31.

3

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taken by prospective medical students – during one of the years he applied, broken
down by race for each of the UT Medical Schools. Id. ¶¶ 39, 42, 44, 46, and 47. He
included similar graphs showing the range of MCAT scores for admitted students
broken down by gender for four of the five UT Medical Schools. Id. ¶¶ 43, 44, 46, and
47. Although Stewart alleges that he also obtained “grade-point average” information
for applicants during this period, he makes no allegations about how admitted
students’ GPAs correlate with their MCAT scores or even whether they show the
same pattern he claims demonstrates discrimination in admissions based on MCAT
scores. Nor does Stewart’s complaint have allegations about any of the many other
considerations that go into deciding whether an applicant should be admitted to
medical school (like experience, letters of recommendation, or personal statements)
or how any of those factors are weighted or reviewed at any of the UT Medical Schools.
Finally, other than for himself, Stewart fails to allege how these scores or other
admissions criteria for admitted students compare with those of other students who
applied to the UT Medical Schools but were not admitted.
Other than the John Sealy School of Medicine at UTMB, Stewart does not point
to any UT Medical School’s admissions policy that says race is considered in
admissions. Doc. 1 ¶ 49. Moreover, the UTMB policy Stewart cites was not in effect
when Stewart applied to UTMB and it is no longer in effect. See Appendix at 1-2
(Declaration of P. Banks ¶¶ 5-6). 5 And Stewart cites no policy from any UT Medical
School saying that gender is considered in admissions.

5 This Court may consider UTMB’s updated policy. It bears directly on Stewart’s potential injury from

the alleged ongoing use of racial preferences, should he reapply to medical school, and so is properly
before the Court under Rule 12(b)(1). In re S. Recycling, L.L.C., 982 F.3d 374, 379 (5th Cir. 2020).
Likewise, it may be considered under Rule 12(b)(6) because its predecessor is “referred to in the
complaint[]” and is “central to the plaintiff[’s] claims.” In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007). The original policy has been superseded, and Stewart cannot prevent the
Court’s consideration of the operative version by refusing to acknowledge its existence. See Carter v.
Target Corp., 541 F. App’x 413, 417 (5th Cir. 2013) (per curiam) (considering plaintiff’s EEOC charges
under Rule 12(b)(6) because “[t]heir contents are essential to determining” the issues and “[plaintiff’s]

4

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Stewart’s claims should be dismissed. His race-based discrimination claims for
declaratory and injunctive relief are moot given the intervening actions by the UT
System’s Board of Regents to repeal its former rule under which system institutions
had previously been authorized to develop affirmative action policies in limited
circumstances. Other claims are barred by the Eleventh Amendment. And even were
there jurisdiction over these claims, Stewart has failed to state a claim for either race
or gender discrimination.
ARGUMENT AND AUTHORITIES
Rule 12(b)(1) requires dismissal if a court “lacks the statutory or constitutional
power to adjudicate” the claim. In re FEMA Trailer Formaldehyde Prod. Liab. Litig.,
668 F.2d 281, 286 (5th Cir. 2012). Stewart, as the party invoking subject matter
jurisdiction, must show it exists. Daniel v. Univ. of Texas Sw. Med. Ctr., 960 F.3d 253,
256 (5th Cir. 2020). In considering a Rule 12(b)(1) motion, a court assumes the
complaint’s factual allegations are true, but need not accept legal conclusions
“couched as . . . factual allegation[s].” Id. (quoting Machete Prods., LLC v. Page, 809
F.3d 281, 287 (5th Cir. 2015)). “A district court may dismiss a case under Rule 12(b)(1)
based on ‘(1) the complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.’” In re S. Recycling, L.L.C., 982 F.3d at 379.
Rule 12(b)(6) requires that a plaintiff plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Those factual allegations must “raise a right to relief above the speculative
level.” Id. at 555. A complaint must also contain “direct allegations or permit properly

failure to include them does not allow her complaint to bypass [defendant’s] motion to dismiss
unexamined”); cf. Magellan Int’l Corp. v. Salzgitter Handel GmbH, 76 F. Supp. 2d 919, 922–23 (N.D.
Ill. 1999) (considering full chain of correspondence under Rule 12(b)(6) despite plaintiff’s reference to
select messages and noting the “wasteful[ness]” of “uphold[ing] a claim on the false premise created
by less than complete documentation”).

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drawn inferences to support every material point necessary to sustain a recovery.”
Torch Liquidating Trust ex rel. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377, 384
(5th Cir. 2009) (internal quotation marks and citation omitted). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
1.

Stewart’s race-based discrimination claims for declaratory and
injunctive relief are moot in light of Regents’ Rule 40304’s repeal.
“Article III restrict[s] [federal] jurisdiction to cases and controversies.”

Freedom from Religion Found. v. Abbott, 58 F.4th 824, 831 (5th Cir. 2023). And
“[t]here must be a case or controversy through all stages of a case—not just when a
suit comes into existence but throughout its existence.” Id. (quoting Yarls v. Bunton,
905 F.3d 905, 909 (5th Cir. 2018)) (emphasis added). Thus, “any set of circumstances
that eliminates actual controversy after commencement of a lawsuit renders that
action moot.” Id.
Here, Stewart’s race-based discrimination claims for declaratory and
injunctive relief are now moot due to actions taken by the UT System’s Board of
Regents after Stewart sued and following the Supreme Court’s June 29, 2023 decision
in Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard College and
Students for Fair Admissions, Inc. v. Univ. of N. Carolina et al., 143 S. Ct. 2141
(2023), which held that Harvard University’s and the University of North Carolina’s
consideration of race in admissions to their undergraduate programs violated Title
VI and, in the case of UNC, the Equal Protection Clause.
After Students for Fair Admissions was decided, the Board of Regents
exercised its rulemaking authority, see Tex. Educ. Code § 65.31(c), and eliminated the
ability of UT System institutions, including the UT Medical Schools, to consider race
in admissions. The Regents did so by repealing Regents’ Rule 40304, see Appendix at
3-4 (Aug. 24, 2023 Regents’ Meeting Minutes), which had allowed, but did not require,
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UT System institutions to propose affirmative action plans for admissions in certain,
narrow circumstances. See Appendix at 6 (Regents’ Rule 40304). 6
Even when Rule 40304 was in effect, UT System institutions could propose
affirmative action policies only after they found, following “serious good faith
consideration, that race-neutral alternatives are inadequate.” Id. § 2. Any policy also
had to follow the standards the Supreme Court announced in Grutter v. Bollinger,
539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003). Id. § 1. And finally,
any policy had to be reviewed and approved by the UT System’s Office of General
Counsel and the Executive Vice Chancellor who oversees the institution before they
could be implemented. Id. § 4. (Although not named as defendants, the UT System’s
General Counsel and Executive Chancellor are both in Austin.)
In other words, as a result of Rule 40304’s repeal, race can no longer be
considered in admissions decisions for UT System institutions, including the UT
Medical Schools that are defendants here. That means Stewart’s race-based
discrimination claims for declaratory and injunctive relief are moot because if he were
to reapply to medical school he would not be subject to the policies he claims are
discriminatory.
Indeed, courts routinely find that cases are moot when, as here, a statute or
rule being challenged in litigation is repealed or amended. Freedom from Religion
Found., 58 F.4th at 832 (collecting cases finding disputes moot after repeal or change
of legislation or regulation being challenged). 7

6 In deciding a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a court may consider

matters outside the pleadings, Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Even
under Rule 12(b)(6), consideration of the Regents’ Rules would be proper as they are matters of public
record. Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007).
7 Regents’ Rules are accorded the force of law in Texas. See Univ. of Houston v. Barth, 403 S.W.3d 851,
855 (Tex. 2013) (“[W]e have held that rules enacted by the University of Texas’s Board of Regents
under the University of Texas’s predecessor enabling statute ‘are of the same force as would be a like
enactment of the Legislature.’”) (quoting Foley v. Benedict, 55 S.W.2d 805, 808 (Tex. 1932)).

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For example, earlier this year, the Fifth Circuit found that a dispute over
whether the Texas state government’s exclusion of an exhibit from the state capitol
violated the First Amendment was moot after the state government repealed both the
rule and the regulation that created the public forum that the plaintiff was excluded
from. Id. at 832-33. The Fifth Circuit reached the same conclusion in another recent
case challenging the Navy’s vaccination requirements after Congress passed a statute
directing the Secretary of Defense to rescind vaccine mandates in the armed forces
and the Navy did so. U.S. Navy Seals 1-26 v. Biden, 72 F.4th 666, 672 (5th Cir. 2023).
Those results make sense because “[t]here is no need to enjoin policies that no
longer exist.” Id. Moreover, “mootness is the default rule” in cases (like this one)
involving state actors 8 who end challenged practices because state actors are
presumed to “act in good faith” when they discontinue a challenged practice. Freedom
from Religion Found., 58 F.4th at 833.
Because the Regents have repealed Rule 40304, which previously allowed the
UT Medical Schools to develop affirmative action plans, race can no longer be
considered in admissions to the UT Medical Schools. Accordingly, Stewart’s racebased discrimination claims for declaratory and injunctive relief are moot and should
be dismissed.
2.

Stewart’s claims against the individual UT Defendants fail because
they are barred and he has made no allegations that suggest any
individual UT Defendant engaged in discrimination or took part in
admissions decisions at all.
Each count in Stewart’s complaint names the individual UT Defendants and

he seeks relief against them under Title VI, Title IX, Section 1981, Section 1983, and

8 The UT Medical Schools are state agencies under Texas law, see Tex. Gov’t Code § 572.002, and the

Fifth Circuit has repeatedly held that the UT System and its institutions are “arms of the state”
entitled to Eleventh Amendment immunity. See, e.g., Daniel, 960 F.3d at 260 (UT Southwestern
entitled to Eleventh Amendment immunity); Lewis v. Univ. of Texas Med. Branch at Galveston, 665
F.3d 625, 630 (UTMB entitled to Eleventh Amendment Immunity).

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the Fourteenth Amendment’s Equal Protection Clause. Each of these claims against
the individual defendants fail for several, independent reasons.
To begin with, individuals cannot be held liable under Title VI and Title IX.
See Price ex rel. Price v. Louisiana Dep’t of Educ., 329 F. App’x 559, 561 (5th Cir.
2009) (affirming dismissal of claims against individual defendants noting that “only
public and private entities can be held liable under Title VI”); Alegria v. Texas, 2007
WL 3256586, at *6 (S.D. Tex. Nov. 2, 2007) (“individuals may not be held liable under
Title IX”). And although Stewart says he seeks relief for the alleged violations of Title
VI and Title IX under Section 1983, Doc. 1 ¶ 63, he cannot circumvent Title VI’s or
Title IX’s limitations on individual liability by suing under Section 1983. See Williams
v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1300 (11th Cir. 2007)
(affirming dismissal of Section 1983 claims against individuals based on Title IX
violation because “allow[ing] plaintiffs to use § 1983 in this manner would permit an
end run around Title IX’s explicit language limiting liability to funding recipients”).
As a result, Stewart’s Title VI and Title IX claims cannot proceed against the
individual UT Defendants.
All Stewart’s remaining claims against the individual UT Defendants are,
however styled, Section 1983 claims. Section 1983 does not itself provide substantive
rights, but allows plaintiffs to sue for violations of federal law by any person acting
under color of state law. See Lafleur v. Texas Dep’t of Health, 126 F.3d 758, 759 (5th
Cir. 1997). Put differently, Stewart’s claims for violations of Section 1981 and the
Equal Protection Clause are only actionable through Section 1983. See Hearth, Inc.
v. Dep’t of Pub. Welfare, 617 F.3d 381, 382-83 (5th Cir. 1980) (holding rights under
Fourteenth Amendment must be enforced through Section 1983); Oden v. Oktibbeha
Cnty., Miss., 246 F.3d 458, 462–64 (5th Cir. 2001) (violation of Section 1981 can be
enforced only through Section 1983).

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Stewart’s Section 1983 claims against the individual UT Defendants fail
because he has sued them all in their official capacities and Section 1983 claims
against state officers in their official capacity are barred by the Eleventh Amendment.
See Freedom from Religion Found., Inc. v. Mack, 4 F.4th 306, 312 (5th Cir. 2021)
(“[T]he Supreme Court’s Will [v. Mich. Dep’t of State Police, 491 U.S. 58 (1989)]
decision squarely prohibits official capacity claims against state officers under
§ 1983.”). 9 It likewise bars any attempts to secure money damages from the individual
defendants in their official capacity. Kentucky v. Graham, 473 U.S. 159, 169 (1985)
(“[A]bsent a waiver by the State or valid congressional override, the Eleventh
Amendment bars a damages action against a State in federal court. This bar remains
in effect when State officials are sued for damages in their official capacity.”) (internal
citations omitted). Because Stewart cannot bring claims under Section 1983 against
the individual defendants in their official capacity, all his claims against them must
be dismissed for lack of jurisdiction.
But even if his claims against the individual defendants were not barred by
the Eleventh Amendment, Stewart has still failed to state a claim under Section 1983.
That is because he alleges nothing more about each individual defendant than their
title, the institution they are affiliated with, and how he believes they can be served.
Stewart has not alleged how any individual took part in admissions decisions,
whether they were responsible for any admissions policies (he alleges no facts at all
about the admissions policies at four of the five UT Medical Schools), or whether they
engaged in discrimination. That is not enough.
To state a claim under Section 1983, Stewart needed to plead how “each
Government-official defendant, through the official’s own individual actions, has

9 Stewart recognizes that he cannot bring his Section 1981 and Equal Protection-based claims against

the UT Medical Schools, and has only sought relief from the individual defendants for these claims.
See Doc. 1 ¶¶ 74, 85.

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violated the” the law. Iqbal, 556 at 676 (emphasis added); see also Murphy v. Kellar,
950 F.2d 290, 292 (5th Cir. 1992) (“[A] plaintiff bringing a section 1983 action must
specify the personal involvement of each defendant”); Jacquez v. Procunier, 801 F.2d
789, 796 (5th Cir. 1986) (“[T]o successfully plead a cause of action in § 1983 cases,
plaintiffs must enunciate a set of facts that illustrate the defendants’ participation in
the wrong alleged.”); Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 983 (10th Cir. 1991)
(“A claim seeking personal liability under section 1981 must be predicated on the
actor’s personal involvement. There must be some affirmative link to causally connect
the actor with the discriminatory action.”) (internal citations omitted).
Stewart would also have to allege that the individual UT Defendants engaged
in intentional discrimination. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause.”); Priester v. Lowndes
Cnty., 354 F.3d 414, 424 (5th Cir. 2004) (“To state a claim of racial discrimination
under the Equal Protection Clause and section 1983, the plaintiff must allege and
prove that he received treatment different from that received by similarly situated
individuals and that the unequal treatment stemmed from a discriminatory intent.”)
(internal quotation marks and citation omitted); Manley v. Texas Southern Univ., 107
F. Supp. 3d 712, 720 (S.D. Tex. 2015) (“To state a § 1981 claim, a plaintiff must allege
facts showing that he or she was the subject of intentional discrimination.”) (citing
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997)). That would
require Stewart to allege that the individual UT Defendants took a “particular course
of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon
an identifiable group.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). But
given that Stewart has not pleaded any facts about what actions any individual
defendant took, much less why they might have taken them (if they even did), he has
failed to allege that any defendants engaged in intentional discrimination and his
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Section 1983 claims against them fail. Thus, even if they were not otherwise barred,
Stewart fail to state a claim under Section 1983.
Stewart’s failure to offer any factual allegations about the individual
defendants also dooms any attempt to plead claim for injunctive relief under Ex parte
Young, if Stewart has tried to plead such a claim. 10 That is because a plaintiff
pursuing “an official-capacity equitable claim” under the doctrine must plead “(1) the
defendant is a state officer, (2) the complaint seeks injunctive relief for an ongoing
violation of federal law, and (3) the defendant state officer bears a sufficiently close
connection to the unlawful conduct that a district court can meaningfully redress that
injury with an injunction against that officer.” Mack, 4 F.4th at 311–12.
Stewart only alleges that the individual defendants are state officers. As
explained earlier, he cannot allege that there is an ongoing violation of federal law
because, following the repeal of Regents’ Rule 40304, the UT Medical Schools are no
longer authorized to consider race in admissions. He only makes conclusory
allegations that the UT Medical Schools consider gender in admissions at all, which
of course, is not enough to suggest that there is any ongoing violation of federal law.
Stewart also failed to allege how any individual defendant “bears a sufficiently close
connection” to the allegedly unlawful conduct because he has not alleged that any
have both “‘the authority to enforce the challenged law’ [and] ‘a sufficient connection
to the enforcement of the challenged act’,” which likewise means any attempt to
assert a claim under Ex parte Young would fail. Haverkamp v. Linthicum, 6 F.4th
662, 669-70 (5th Cir. 2021).
For these reasons, Stewart’s claims against the individual UT Defendants
should be dismissed.

10 Stewart’s complaint never mentions Ex parte Young.

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Stewart’s conclusory assertions fail to plausibly allege race or gender
based discrimination claims under Title VI, Title IX, Section 1981, or
the Equal Protection Clause.
In his complaint, Stewart offers a few graphs that show the distribution of

MCAT scores for admitted students at the UT Medical Schools organized by race and
gender, which he contends show that the schools discriminated in admissions. These
allegations fall short of what Twombly and Iqbal require.
Foremost, each of Stewart’s claims requires that he allege intentional
discrimination. See Alexander v. Sandoval, 532 U.S. 275, 281 (2001) (“Title VI itself
directly reach[es] only instances of intentional discrimination.”); Poloceno v. Dallas
Indep. Sch. Dist., 826 F. App’x 359, 362 (5th Cir. 2020) (“[O]nly intentional
discrimination, not disparate impact, is actionable under Title IX.”); Gen. Bldg.
Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982) (“[Section] 1981 can be
violated only by intentional discrimination”); Vill. of Arlington Heights, 429 U.S. at
265 (“Proof of racially discriminatory intent or purpose is required to show a violation
of the Equal Protection Clause.”). Stewart does not plausibly allege that any school
intentionally discriminated on the basis of race or gender.
Stewart’s graphs likewise do not even support an inference that there was
intentional discrimination. His comparison of MCAT scores between men and women
admitted at the four UT Medical Schools for which he prepared graphs shows near
parity. At best, Stewart’s graphs of admitted students’ MCAT scores organized by
race show that the UT Medical Schools accept students from different races with a
range of different MCAT scores (including a number of white students who had lower
MCAT scores than he did). 11 But the fact that different applicants are admitted with
different MCAT scores does not suggest discrimination or show disparate impact. One
Additionally, discrimination cannot plausibly be inferred from MCAT scores. As Stewart
acknowledges in his complaint many factors are considered in admissions decisions and the UT
Medical Schools cannot make admissions decisions based on MCAT scores alone. See Tex. Educ.
Code § 51.842(b).
11

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reason is that alleging disparate impact requires showing a substantial disparity
between the racial composition of admitted students and the racial composition of the
applicant pool—but Stewart’s complaint says nothing about the applicant pool. See
Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-652 (1989), superseded by statute
on other grounds by 42 U.S.C. § 2000e-2(k)1, (disparate impact in hiring for
noncannery jobs must be shown through a comparison to the “pool of qualified job
applicants” for noncannery jobs). Without allegations about the racial or gender
composition of the applicant pool (and their attendant qualifications), Stewart cannot
show that any admissions policies “bear[] more heavily on one race than another.”
Vill. of Arlington Heights, 429 U.S. at 266; see also Lewis v. Ascension Par. Sch. Bd.,
806 F.3d 344, 360 (5th Cir. 2015) (“[Parties may not prove discrimination merely by
providing the court with statistical analyses. The statistics proffered must address
the crucial question of whether one class is being treated differently from another
class that is otherwise similarly situated.”) (quoting Chavez. v. Illinois State Police,
251 F.3d 612, 638 (7th Cir. 2001)).
Even if Stewart had sufficiently alleged disparate impact, courts routinely
dismiss similar claims of race and gender discrimination under Title VI, Title IX or
the Equal Protection Clause when all the plaintiff does is allege facts that show
disparate impact. See Poloceno, 826 F. App’x at 362 (“disparate impact” not actionable
under Title IX); Manley, 107 F. Supp. 3d at 724 (“disparate impact allegations cannot
sustain a Title VI claim”); id. at 721 (disparate impact allegations are “not actionable
under § 1981, § 1983, or the Equal Protection Clause”); Priester v. Lowndes County,
354 F.3d 414, 424 (5th Cir. 2004) (“To state a claim of racial discrimination under the
Equal Protection Clause and section 1983, the plaintiff ‘must allege and prove that
he received treatment different from that received by similarly situated individuals
and that the unequal treatment stemmed from a discriminatory intent.’”) (quoting
Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001)).
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Finally, Stewart has not alleged that any of the UT Medical Schools had
policies giving gender-based preferences in admissions. Likewise, apart from UTMB,
Stewart has not alleged that any of the UT Medical Schools considered race at all
when making admissions decisions. And for UTMB, Stewart cites a policy that was
not in effect when he applied to UTMB and that is no longer in effect today. See
Appendix at 1-2 (Declaration of P. Banks ¶¶ 5-6). In sum, having failed to plausibly
allege that any of the UT Medical Schools considered race or gender in admissions
when he applied to them or that they do now, Stewart’s claims must be dismissed.
See also Texas Dep’t of Hous. & Comm. Affairs v. Inclusive Comms. Proj., Inc., 576
U.S. 519, 542 (“[A] disparate-impact claim that relies on a statistical disparity must
fail if the plaintiff cannot point to a defendant’s policy or policies creating that
disparity”).
Because Stewart has not done any more than allege facts suggesting that
admitted students of different races have different (but overlapping) ranges of scores
and that admitted men and women have similar scores, he has failed to plausibly
allege intentional discrimination. Additionally, his claims under Title VI, Title IX and
the Equal Protection Clause cannot rely on a disparate impact theory, which he has
failed to allege in any case. Accordingly, Stewart’s Title VI, Title IX, and Equal
Protection Clause claims must be dismissed.
CONCLUSION
For the reasons explained here, the UT Defendants ask that this Court (1)
dismiss Stewart’s claims seeking declaratory and injunctive relief prohibiting the
consideration of race in admissions to the UT Medical Schools as moot (2) dismiss his
claims against the individual defendants in their official capacity as barred by the
Eleventh Amendment; and (3) dismiss his Title VI, Title IX, Section 1981, and Equal
Protection Clause claims based on the consideration of gender and race in admissions
for failure to state a claim.
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Respectfully submitted,
/s/ Layne E. Kruse
Layne E. Kruse
(Texas Bar No. 11742550)
Shauna Johnson Clark
(Texas Bar No. 00790977)
NORTON ROSE FULBRIGHT US LLP
1301 McKinney, Suite 5100
Houston, Texas 77010
Telephone: 713-651-5151
Telecopier: 713-651-5246
layne.kruse@nortonrosefulbright.com
shauna.clark@nortonrosefulbright.com

Attorneys for the University of Texas Defendants

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CERTIFICATE OF SERVICE
I certify that on September 12, 2023, I served a copy of this document on all
counsel of record by electronic means.
/s/ Layne Kruse
Layne Kruse

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