REPLY filed by Pierre W. Banks, Giuseppe N. Colasurdo, Chiquita Collins, Joel A. Daboub, Belinda Chapa Gonzalez, John Hancock, Jay Hartzell, William L. Henrich, Robert¶

Stewart v. Texas Tech University Health Sciences Center et al, No. 5:24-cv-00169-H (N.D. Tex.) · Dkt. 50 · 2023-11-06 · PDF

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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’
REPLY IN SUPPORT OF THEIR MOTION TO DISMISS
Layne E. Kruse
Shauna Johnson Clark
Eliot Fielding Turner
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
eliot.turner@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
Argument and Authorities ........................................................................................... 1
1.

Stewart’s race-based discrimination claims are moot, and he
failed to plausibly allege that he is likely to be discriminated
against because of his race or sex. .......................................................... 1

2.

Stewart cannot sue the individual UT Defendants under Title VI
or Title IX................................................................................................. 5

3.

Stewart’s conclusory assertions fail to plausibly allege race- or
sex- based discrimination claims under Title VI, Title IX,
Section 1981, or the Equal Protection Clause. ....................................... 6

Conclusion ......................................................................................................................7
Certificate of Service..................................................................................................... 9

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TABLE OF AUTHORITIES

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Page(s)

Cases
Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013) .................................................................................................... 4
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .......................................................................................... 1, 6, 7
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) .................................................................................................. 2
Daves v. Dallas Cnt’y,
64 F.4th 616 (5th Cir. 2023) (en banc) ..................................................................... 4
Fisher v. Univ. of Tex. at Austin,
579 U.S. 365 (2016) .................................................................................................. 3
Freedom from Religion Found., Inc. v. Mack,
4 F.4th 306 (5th Cir. 2021) ....................................................................................... 6
Grutter v. Bollinger,
539 U.S. 306 (2003) .................................................................................................. 3
Hopwood v. Texas,
78 F.3d 932 (5th Cir. 1996) ...................................................................................... 3
Lowery v. Texas A&M Univ.,
No. 4:22-cv-03091, 2023 WL 6445788 (S.D. Tex. Sept. 29, 2023) ....................... 4, 5
Norswrothy v. Houston Indep. Sch. Dist.,
70 F.4th 332 (5th Cir. 2023) ..................................................................................... 1
Olivarez v. T-Mobile USA Inc.,
997 F.3d 595 (5th Cir. 2001) .................................................................................... 7
Schelske v. Austin,
No. 6:22-CV-049-H, 2023 WL 5986462 (N.D. Tex. Sept. 14, 2023) .................... 4, 5
Seminole Tribe of Fla. v. Florida,
517 U.S. 44 (1996) .................................................................................................... 6
Sossamon v. Lone Star State of Texas,
560 F.3d 316 (5th Cir. 2009) .................................................................................... 5
Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard Coll. and
Students for Fair Admissions, Inc. v. Univ. of N. Carolina et al.,
143 S. Ct. 2141 (2023) .............................................................................................. 1
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INTRODUCTION
The Supreme Court and the Fifth Circuit have stressed that Rule 8 “demands
more

than

an

unadorned,

the-defendant-unlawfully-harmed-me

accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Norswrothy v. Houston Indep. Sch.
Dist., 70 F.4th 332, 337 (5th Cir. 2023). Stewart’s response makes clear, however,
that his complaint rests on just such an allegation in a single paragraph of his
complaint, see Doc. 44 at 8 (citing Doc. 1 ¶ 33), which says only that “[e]ach of the
defendant medical schools . . .

discriminates on account of race and sex when

admitting students by giving discriminatory preferences to females and non-Asian
minorities.” Doc. 1 ¶ 33.
Stewart’s response does not identify any non-conclusory allegations in his
complaint that make his race and sex discrimination claims plausible. Because a
plaintiff must plead “more than a sheer possibility that a defendant has acted
unlawfully” and Stewart’s “naked assertion[s] devoid of further factual enhancement”
are not enough, Iqbal, 556 U.S. at 678, this Court should grant the UT Defendants’
motion to dismiss.
ARGUMENT AND AUTHORITIES
1.

Stewart’s race-based discrimination claims are moot, and he failed to
plausibly allege that he is likely to be discriminated against because
of his race or sex.
As the UT Defendants explained, after the Supreme Court decided Students

for Fair Admissions, Inc. v. Presidents & Fellows of Harvard Coll. and Students for
Fair Admissions, Inc. v. Univ. of N. Carolina et al., 143 S. Ct. 2141 (2023) (“SFFA”),
the UT System’s Board of Regents repealed Regents’ Rule 40304, which allowed, but
did not require, system institutions to propose affirmative action plans in limited
circumstances and only implement such plans after they were found to meet certain
standards. See Doc. 35 at 6-7. The Board of Regents did so based on its understanding

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that the Supreme Court’s decision in SFAA “prohibit[s] the use of an applicant’s race
as a factor in student admissions,” Doc 35-1 at 5. In other words, UT System
institutions, including the UT Defendants, now cannot consider race in admissions,
even in the limited circumstances where they were previously allowed to under Rule
40304.
Stewart, however, claims that there is still a “live controversy,” despite the
Board of Regents’ recognition that SFFA does not allow UT System institutions to
consider “race as a factor in student admissions,” Doc. 35-1, and the Regents’ repeal
of Rule 40304. Stewart claims it “remains possible for UT institutions to continue to
use racial preferences despite the repeal of Rule 40304.” Doc. 44 at 1 (emphasis
added). 1 But that highlights another Article III problem for Stewart – in addition to
being moot, his claims are not ripe because “allegations of possible future injury are
not sufficient” to establish injury-in-fact. Clapper v. Amnesty Int’l USA, 568 U.S. 398,
409 (2013). Given the Supreme Court’s intervening decision in SFFA and the Board
of Regents’ subsequent repeal of Regents’ Rule 40304—the only rule that allowed UT
System institutions to consider race in admissions—none of the UT System medical
schools may lawfully consider race as a factor in the admissions process going
forward. Nor has Stewart made any plausible allegations that the UT Defendants are
planning to defy the Supreme Court and the Board of Regents by considering race as
a factor in the admissions process in the future.
Instead, Stewart suggests that the Court should presume that the UT
Defendants will use racial preferences because, according to him, “UT institutions”

1 Stewart claims that UT does not have a rule that “bans consideration of race,” but he ignores Regents’

Rule 10701, which was amended after SFAA and does just that. See Doc. 35-1, at 1 (“To the extent
provided by applicable law, no person shall be excluded from participation in, denied the benefits of,
or subject to discrimination under, any program or activity sponsored or conducted by the University
of Texas System or any of the institutions, on the basis of race, color, national origin, ethnicity, religion,
sex, age, veteran status, or disability.”).

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previously used racial preferences “in the teeth of federal anti-discrimination laws
that prohibited all forms of racial discrimination at institutions that receive federal
funds.” Doc. 44 at 1 (citing Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996)) (footnote
omitted). In other words, Stewart suggests that the UT Defendants cannot be trusted
to follow the law in the future because other UT institutions failed to follow it in the
past. But Stewart’s attempt to paint the UT Defendants as scofflaws confirms just
the opposite.
In its 1996 Hopwood decision, the Fifth Circuit held that “any consideration of
race or ethnicity . . . for the purpose of achieving a diverse student body is not a
compelling interest under the Fourteenth Amendment.” 78 F.3d at 944. In the wake
of Hopwood, UT institutions changed their admissions practices to eliminate the
consideration of race. See, e.g., Fisher v. Univ. of Tex. at Austin, 579 U.S. 365, 371
(2016) (discussing UT Austin’s post-Hopwood adoption of “a new admissions policy,”
under which “race was not a consideration”). In 2003, the Supreme Court overruled
Hopwood, holding that “student body diversity is a compelling state interest that can
justify the use of race in university admissions” under both the Equal Protection
Clause and Title VI—the “federal anti-discrimination laws” that Stewart now
invokes. Grutter v. Bollinger, 539 U.S. 306, 325, 343 (2003).
After Grutter, some UT institutions again changed their admissions policies to
allow limited consideration of race, as Grutter expressly permitted. See, e.g., Fisher,
579 U.S. at 372-73. Others did not. And in 2016, the Supreme Court reaffirmed
Grutter’s holding in Fisher, id. at 381, which remained good law until the SFFA
decision four months ago. This history, which reflects UT’s consistent compliance
with the law despite shifting judicial interpretations, undermines Stewart’s
suggestion that the UT Defendants cannot be trusted to obey the law.
Stewart next argues that his claims for declaratory and injunctive relief are
not moot because, even if the UT Defendants will not consider race in admissions
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going forward, the repeal of Rule 40304 is an act of “voluntary cessation.” Doc. 44 at
2. Stewart is wrong again. As this Court recently observed: “[a]t its core, the
voluntary-cessation exception ‘evaluates the risk that a defendant is engaging in
litigation posturing to avoid judicial review.’” Schelske v. Austin, No. 6:22-CV-049-H,
2023 WL 5986462, at *9 (N.D. Tex. Sept. 14, 2023) (quoting U.S. Navy SEALs 1–26
v. Biden, 72 F.4th 666, 673 (5th Cir. 2023)). It prevents potential gamesmanship
where “a defendant could engage in unlawful conduct, stop when sued to have the
case declared moot, then pick up where he left off, repeating this cycle until he
achieves all his unlawful ends.” Id. (quoting Already, LLC v. Nike, Inc., 568 U.S. 85,
91 (2013)). Stewart’s rote invocation of “voluntary cessation” does not even try to raise
such concerns, which would be unfounded in any case. See Doc. 44 at 2–3.
For one, the Regents, who are not defendants, repealed Rule 40304 not
voluntarily, but in response to the Supreme Court’s binding decision in SFFA
prohibiting the consideration of race as a factor in the admissions process. In other
words, the Board of Regents acted to ensure that UT System institutions complied
with the law after the Court’s decision in SFFA. That is not “voluntary” cessation.
See, e.g., Daves v. Dallas Cnt’y, 64 F.4th 616, 634-35 (5th Cir. 2023) (en banc) (holding
that a county’s change in its bail procedures to comply with recent bail legislation
wasn’t voluntary cessation); Lowery v. Texas A&M Univ., No. 4:22-cv-03091, 2023 WL
6445788, at *6 (S.D. Tex. Sept. 29, 2023) (recognizing that “change compelled by force
of law isn’t voluntary”).
Finally, Stewart claims that the UT Defendants are not entitled to the
presumption of good faith accorded to other government officials because, he says, it
only applies to “public representatives” who are politically accountable to voters. Doc.
44 at 3. But Stewart’s unsupported argument ignores the rationale for presuming
that governmental defendants act in good faith, which is that “they are public
servants, not self-interested private parties.” Sossamon v. Lone Star State of Texas,
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560 F.3d 316, 325 (5th Cir. 2009). Stewart also ignores that the Fifth Circuit and
district courts in this circuit have repeatedly applied the good-faith presumption to
university officials and other unelected public officials. See U.S. Navy SEALs 1-26 v.
Biden, 72 F.4th 666 (5th Cir. 2023) (applying presumption of good faith and finding
mootness in action against Navy Secretary); Lowery, 2023 WL 6445788, at *6
(presuming good faith of university officials and finding mootness); Schleske, 2023
WL 5986462, at *9 (holding that Army Secretary’s rescission of vaccine mandates
following a change in law was mainly involuntary, and was entitled to a presumption
of good faith to the extent it was voluntary).
In short, Stewart fails to plausibly allege that the UT Defendants discriminate
based on race, and the Supreme Court’s SFFA decision and actions taken by the UT
Board of Regents moot his claims for prospective relief.
2.

Stewart cannot sue the individual UT Defendants under Title VI or
Title IX.
Stewart’s response clarifies that he is not seeking damages claims against any

of the individual UT Defendants, but that he still seeks injunctive and declaratory
relief against them. Doc. 44 at 4. Stewart tries to dismiss the UT Defendants’
argument that the individual UT Defendants cannot be held liable under Title VI or
Title IX by saying that the cases the UT Defendants cited only bar claims against
individuals for damages. But Stewart cites no case allowing a Title VI or Title IX
claim to proceed against an individual because it only seeks declaratory or injunctive
relief. Indeed, it would make little sense to allow Stewart to seek injunctive and
declaratory relief against the individual UT Defendants, given that sovereign
immunity does not prevent him from seeking that relief directly against the state
agencies he has sued under Title VI and Title IX. See, e.g., Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 74 (1996) (recognizing that courts should not allow Ex parte
Young actions against state officials when federal law provides a remedy against the
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state itself). Put differently, a plaintiff should not be permitted to seek relief against
state officials under Ex parte Young when, as here, he can obtain relief against the
state.
In any event, all of Stewart’s claims for injunctive relief under Ex parte Young
fail because he has not plausibly alleged an ongoing violation of federal law. Freedom
from Religion Found., Inc. v. Mack, 4 F.4th 306, 311-12 (5th Cir. 2021). As explained
above and in the UT Defendants’ motion to dismiss, see Doc. 35 at 12, his claims for
race based-discrimination are moot and he has not made any plausible allegations
that the UT Defendants ever considered sex in admissions, much less that they are
now doing so in violation of federal law. Stewart’s claims against the individual UT
Defendants should be dismissed.
3.

Stewart’s conclusory assertions fail to plausibly allege race- or sexbased discrimination claims under Title VI, Title IX, Section 1981, or
the Equal Protection Clause.
Stewart claims that he has stated a claim for relief based on a single,

conclusory allegation that the UT Defendants gave discriminatory preferences to
“females and non-Asian minorities.” See Doc. 44 at 8 (citing Doc. 1 ¶ 33).
Stewart neither addresses nor contests the fact that each of his claims requires
him to plead (and later prove) that the defendants intentionally discriminated on the
basis of race or sex. And intentional discrimination requires more than Stewart has
pleaded. Indeed, “purposeful discrimination requires more than intent as volition or
intent as awareness of consequences”; rather, “[i]t instead involves a decisionmaker’s
undertaking a course of action because of, not merely in spite of, the action’s adverse
effects on an identifiable group.” Iqbal, 556 U.S. at 676-77 (internal quotation marks
and citations omitted). Stewart’s failure to allege any facts about whether the UT
Defendants adopted a policy or took any action because of its effects on identifiable
groups, means that Stewart has failed to “plead sufficient factual matter to show

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[defendants] adopted and implemented the [admissions] policies . . . for the purpose
of discriminating.” Id. at 677.
The one conclusory allegation of discrimination Stewart cites is not enough to
save his claim. Indeed, in Iqbal, the Court rejected similarly conclusory allegations
as insufficient to state a claim. There, the Court evaluated the plaintiff’s allegation
that the defendants “knew of, condoned, and willfully and maliciously agreed to
subject him to harsh conditions of confinement as a matter of policy, solely on account
of his religion, race, and/or national origin and for no legitimate penological interest.”
Iqbal, 556 U.S. at 680. But the court found that those “bare assertions” were no more
than “the formulaic recitation of the elements of a constitutional discrimination
claim” and should be disregarded. Id. at 680-81. So too here. See also Olivarez v. TMobile USA Inc., 997 F.3d 595, 600-601 (5th Cir. 2001) (finding allegation that
defendants “discriminated against [Olivarez] based on [a] disability” conclusory and
affirming dismissal of ADA claims).
Stewart failed to allege any policy that the UT Defendants adopted giving
preferences in admissions based on race or sex. He has alleged no facts suggesting
that the UT Defendants undertook any actions because of their effects on whites and
Asians or men. In short, there is nothing more in the complaint than Stewart’s sayso that defendants discriminated. That is not enough.
CONCLUSION
For the reasons explained here and in the UT Defendants’ brief in support of
their motion to dismiss, Stewart’s claims should be dismissed.

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Respectfully submitted,
/s/ Layne E. Kruse
Layne E. Kruse
(Texas Bar No. 11742550)
Shauna Johnson Clark
(Texas Bar No. 00790977)
Eliot Fielding Turner
(Texas Bar No. 24066224)
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
eliot.turner@nortonrosefulbright.com

Attorneys for the University of Texas Defendants

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CERTIFICATE OF SERVICE
I certify that on November 6, 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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