Daniel J. PODBERESKY, Plaintiff-Appellant,
v.
William E. KIRWAN, President of the University of Maryland
at College Park; University of Maryland at College Park
(UMCP); Monica Green; Maudlyn George, on her own behalf
and on behalf of her daughter Allison George; Eileen Heath;
Richard A. Dalgetty; Gerard W. Henry; Maisha Herren;
Aletha S. McRae, on her own behalf and on behalf of her
daughter Daletha McRae; Charles L. Smith, III, on his own
behalf and on behalf of his son Charles Smith, IV,
Defendants-Appellees.
Equal Opportunity Foundation; American Council on
Education; Mexican American Legal Defense and Educational
Fund; William Julius Wilson, Doctor; Association for the
Study of Afro-American Life and History; Lawyers' Committee
for Civil Rights Under Law; United States of America, Amici
Curiae. (Two Cases)
Nos. 93-2527, 93-2585.
United States Court of Appeals,
Fourth Circuit.
Argued May 10, 1994.
Decided Oct. 27, 1994.
As Amended on Denial of Rehearings
and Suggestions for Rehearing
En Banc Dec. 30, 1994.*
ARGUED: Richard Abbott Samp, Washington Legal Foundation, Washington, DC, for appellant. Evelyn Omega Cannon, Asst. Atty. Gen., Baltimore, MD; Janell Maria Byrd, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, for appellees. ON BRIEF: Daniel J. Popeo, Washington Legal Foundation, Washington, DC; Samuel Podberesky, Randallstown, MD, for appellant. J. Joseph Curran, Jr., Atty. Gen. of Maryland, Andrew H. Baida, Asst. Atty. Gen., Richard A. Weitzner, Asst. Atty. Gen., Baltimore, MD; Elaine R. Jones, Director-Counsel, Theodore M. Shaw, Norman J. Chachkin, NAACP Legal Defense & Educational Fund, Inc., New York City, William J. Murphy, John J. Connolly, Murphy & Shaffer, Baltimore, MD; Sally P. Paxton, Jacqueline R. Depew, Fulbright & Jaworski, L.L.P., Washington, DC, for appellees. Hugh Joseph Beard, Jr., Washington, DC, John Montgomery, Germantown, MD, for amicus curiae Equal Opportunity Foundation. David S. Tatel, Martin Michaelson, Daniel B. Kohrman, Hogan & Hartson, L.L.P., Washington, DC, Sheldon E. Steinbach, Gen. Counsel, American Council on Education, Washington, DC, for amicus curiae American Council on Educ. Elizabeth Guillen, Antonia Hernandez, Theresa Fay-Bustillos, Mexican American Legal Defense and Educational Fund, Los Angeles, CA, for amicus curiae MALDEF. James E. Coleman, Jr., John H. Cobb, Wilmer, Cutler & Pickering, Washington, DC, for amicus curiae Wilson. A. J. Cooper, Ginsburg, Feldman & Bress, Washington, DC, Amy B. Ginensky, Vernon L. Francis, Andrew S. Miller, Dechert, Price & Rhoads, Philadelphia, PA, for amicus curiae Ass'n for the Study of Afro-American Life and History. Thomas J. Henderson, Wendy Parker, Lawyers' Committee for Civil Rights Under Law, George W. Jones, Jr., Mark E. Haddad, Jeanne B. Szromba, Sidley & Austin, Washington, DC, for amicus curiae Lawyers' Committee. James P. Turner, Acting Asst. Atty. Gen., David K. Flynn, Leslie A. Simon, Marie K. McElderry, U.S. Dept. of Justice, Washington, DC, for amicus curiae U.S..
Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.
Vacated and remanded with instructions by published opinion. Judge WIDENER wrote the opinion, in which Judge WILKINS and Judge HAMILTON joined.
OPINION
WIDENER, Circuit Judge:
The issue in this case is whether the University of Maryland at College Park may maintain a separate merit scholarship program that it voluntarily established for which only African-American students are eligible. Because we find that the district court erred in finding that the University had sufficient evidence of present effects of past discrimination to justify the program and in finding that the program is narrowly tailored to serve its stated objectives, we reverse the district court's grant of summary judgment to the University. We further reverse the district court's denial of Podberesky's motion for summary judgment, and we remand for entry of judgment in favor of Podberesky.I
The facts and prior proceedings in this case are set forth at length in our earlier opinion, Podberesky v. Kirwan,
In our earlier decision, we remanded the case because the district court had not made a specific finding on whether there was sufficient present effect of the University's past discrimination against African-Americans so as to justify the maintenance of the race-based restriction in the Banneker scholarship program. Podberesky I,
The district court also found that the Banneker Program was narrowly tailored to remedy those four present effects of past discrimination which it found at the University.
II
Because it chose the Banneker Program, which excludes all races from consideration but one, as a remedial measure for its past discrimination against African-Americans, the University stands before us burdened with a presumption that its choice cannot be sustained. As we have said before,
"Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination." Wygant v. Jackson Board of Education,
Maryland Troopers Ass'n v. Evans,
Although the district court correctly recited in its opinion that the standard of review of such an overtly open racial yardstick was strict scrutiny, and despite the fact that that standard has been adopted time and again both by the Supreme Court and by this circuit, e.g., City of Richmond v. J.A. Croson Co.,
We have established a two-step analysis for determining whether a particular race-conscious remedial measure can be sustained under the Constitution: (1) the proponent of the measure must demonstrate a " 'strong basis in evidence for its conclusion that remedial action [is] necessary;' " and (2) the remedial measure must be narrowly tailored to meet the remedial goal.1 Maryland Troopers,
At the outset, we note that the district court held that any present effect of past discrimination found by the University would be sufficient under our Maryland Troopers decision and the Supreme Court's opinion in City of Richmond v. J.A. Croson Co.,
* Turning to the present effects articulated by the University, we disagree with the district court that the first effect, a poor reputation in the African-American community, and the fourth effect, a climate on campus that is perceived as being racially hostile, are sufficient, standing alone, to justify the single-race Banneker Program. As the district court's opinion makes clear, any poor reputation the University may have in the African-American community is tied solely to knowledge of the University's discrimination before it admitted African-American students. There is no doubt that many Maryland residents, as well as some citizens in other States, know of the University's past segregation, and that fact cannot be denied. However, mere knowledge of historical fact is not the kind of present effect that can justify a race-exclusive remedy. If it were otherwise, as long as there are people who have access to history books, there will be programs such as this one. Our decisions do not permit such a result. See, e.g., Maryland Troopers,
The hostile-climate effect proffered by the University suffers from another flaw, however. The main support for the University's assertion that the campus climate is hostile to African-American students is contained in a survey of student attitudes and reported results of student focus groups.2 For an articulated effect to justify the program, however, there must be a connection between the past discrimination and the effect. United States v. Fordice, --- U.S. ----, ---- n. 4,
Podberesky argues that the claimed hostility did not have its genesis in the University's discriminatory acts of the past. He points to several northern universities that suffer from comparable racial problems.3 The district court rejected this argument for the reason that it found that most northern universities had experienced de facto segregation, and it held that racial hostility on the northern universities' campuses was the present effect of those universities' past de facto, not de jure, discrimination.
The district court's analysis cannot be sustained on this point. When we begin by assuming that every predominately white college or university discriminated in the past, whether or not true, we are no longer talking about the kind of discrimination for which a race-conscious remedy may be prescribed. Instead, we are confronting societal discrimination, which cannot be used as a basis for supporting a race-conscious remedy. Podberesky I,
B
We next turn to the two effects that rely on statistical data: underrepresentation of African-American students at the University and low retention and graduation rates for African-American students. The district court found that there was strong evidence of African-American underrepresentation in the University's entering-student classes. With respect to the low retention and graduation rates, the district court found that the statistics showed that African-American students had higher attrition rates than any other identifiable group on campus.
The district court erred in its analysis of the underrepresentation evidence and the attrition evidence for a fundamental reason: the posture of the case before the district court was that cross-motions for summary judgment had been filed. We review grants of summary judgment de novo. Higgins v. E.I. DuPont de Nemours & Co.,
Rule 56 provides, "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We have held that the rule's language is clear that it is not enough for the district court to determine that the moving party has the winning legal argument; in accepting that argument, the district court must also ensure that there is no genuine issue as to any material fact before a grant of summary judgment is proper. See, e.g., Charbonnages de France v. Smith,
Taking the facts in the light most favorable to Podberesky, the non-moving party, we find that the district court erred in granting the University's motion for summary judgment. As to the low retention and graduation rates, there is a dispute in the evidence about why African-American students leave the University of Maryland in greater numbers than other students. Podberesky offered evidence tending to show that the attrition rate revealed by the statistics was the result of economic and other factors and not because of past discrimination. The district court rejected Podberesky's study by reasoning that economic concerns are often more pressing for African-American students because many of those students come from less wealthy backgrounds. The district court then reasoned that the disproportionate number of less wealthy African-American families is the result of past discrimination in society. The district court also found some evidence in some of the University's exhibits that showed that the University's poor reputation and hostile climate have an effect on attrition rates.
As to the underrepresentation, our decisions and those of the Supreme Court have made clear that the selection of the correct reference pool is critical. The district court must first determine as a matter of law whether it is appropriate to apply a pool consisting of the local population or whether another pool made up of people with special qualifications is appropriate. In the employment context, this determination is made by looking at the job requirements. If the job is an unskilled one, the general population is more likely the relevant pool. If, however, the job requires some special skills or training, the relevant pool is made up of only those people who meet the criteria. E.g., Johnson v. Transportation Agency,
The district court rejected a pool which consisted of all graduating high school seniors because that pool "does not take into account even flexible minimum admission requirements."
The factual disputes in this case are not inconsequential and could have been resolved only at trial. A district court may not resolve conflicts in the evidence on summary judgment motions, and the district court erred in so doing here.
III
We next turn to the denial of Podberesky's motion for summary judgment. An order denying summary judgment is ordinarily not appealable. See, e.g., President & Directors of Georgetown College v. Madden,
Even if we assumed that the University had demonstrated that African-Americans were underrepresented at the University and that the higher attrition rate was related to past discrimination,9 we could not uphold the Banneker Program. It is not narrowly tailored to remedy the underrepresentation and attrition problems, and the district court erred in its analysis of this issue as well.
It is difficult to determine whether the Banneker scholarship program is narrowly tailored to remedy the present effects of past discrimination when the proof of present effects is so weak. See Croson,
A. Attraction to Only High-Achieving Black Students
The district court found that the Banneker Program attracted "high-achieving black students" to the University, which "directly increases the number of African-Americans who are admitted and likely to stay through graduation. Even more importantly, the Program helps to build a base of strong, supportive alumni, combat racial stereotypes and provide mentors and role models for other African-American students. Continuation of the Program thus serves to enhance [the University's] reputation in the African-American community, increase the number of African-American students who might apply to the University, improve the retention rate of those African-American students who are admitted and help ease racial tensions that exist on campus."
B. Including Non-Residents of Maryland
The district court also erred in giving no weight to Podberesky's argument that the Banneker Program is not narrowly tailored because the scholarships are open to non-Maryland residents.11 The district court stated that the goals of the program would be served "whether Banneker Scholars are Maryland natives or not."
The University, throughout this case, has taken the position that the pool from which the students eligible to enter UMCP is drawn are from "qualified African-American high school students in Maryland," A. 3476, and "the University expects that the racial composition of its student body will reflect the racial composition of qualified college-eligible high school graduates." A. 3476. While all of the prerequisites for membership in the pool were a matter of dispute between the parties, that the University measured its desired number of black students against Maryland high school graduates who are qualified to attend the University is not a matter of dispute. That being true, it is obvious that awarding Banneker Scholarships to non-residents of Maryland is not narrowly tailored to correcting the condition that the University argues, that not enough qualified African-American Maryland residents attend at College Park. Cf. Croson,
C. Arbitrary Reference Pool
The district court found the program to be narrowly tailored to increasing representation because an increase in the number of high-achieving African-American students would remedy the underrepresentation problem. The district court so found because it reasoned that the Banneker Scholars would serve as mentors and role models for other African-American students, thereby attracting more African-American students. The Supreme Court has expressly rejected the role-model theory as a basis for implementing a race-conscious remedy, as do we. Wygant v. Jackson Bd. of Educ.,
Furthermore, the district court's analysis of underrepresentation, although it relied on various academic criteria to determine eligibility, relied on each relevant criterion item by item instead of in combination. It is axiomatic that if all of the relevant criteria (270 verbal SAT score, 380 math SAT score, UMCP general course-curriculum requirements, and 2.0 GPA) were applied simultaneously, as indeed UMCP itself claims it most commonly does in determining admissions qualifications, the percentage of eligible Maryland residents who are African-American might well be significantly lower than the percentage satisfying the least burdensome of those criteria relied upon.12 In other words, even within the confines of its own analysis, the district court's conclusion is based on flawed reasoning, and results in a series of inconclusive and possibly inflated figures regarding the makeup of the reference pool.
Moreover, and more important, eligibility is not the only relevant criterion in determining the reference pool in this case. We note the critical fact that application for admission to college is voluntary rather than obligatory. In addition, the choice of which institution to attend is voluntary, and is dependent upon many variables other than race-based considerations. Further, economic concerns and other factors, offered by Podberesky below, may induce many otherwise-eligible African-American high school graduates not to enter college in numbers which are proportionately higher than those of their non-African-American peers.
In short, the district court failed to account for statistics regarding that percentage of otherwise eligible African-American high school graduates who either (1) chose not to go to any college; (2) chose to apply only to out-of-state colleges; (3) chose to postpone application to a four-year institution for reasons relating to economics or otherwise, such as spending a year or so in a community college to save money; or (4) voluntarily limited their applications to Maryland's predominantly African-American institutions.13 What if, for example, in some year only 2/3 of those academically eligible African-American Maryland high school graduates applied to any college, while 90% of eligible non-African-American Maryland high school graduates did? What then would be the relevance of measuring the percentage of those eligible against the percentage of African-Americans in the UMCP student body?
We will not speculate as to what extent these variables might reduce the size of the reference pool, since no definitive information regarding these types of statistics is in the record.14 We can say with certainty, however, that the failure to account for these, and possibly other, nontrivial variables cannot withstand strict scrutiny. In analyzing underrepresentation, disparity between the composition of the student body and the composition of a reference pool is significant in this case only to the extent that it can be shown to be based on present effects of past discrimination. In more practical terms, the reference pool must factor out, to the extent practicable, all nontrivial, non-race-based disparities in order to permit an inference that such, if any, racial considerations contributed to the remaining disparity. This the district court simply has not done. The result is no more than a collection of arbitrary figures upon which it held UMCP may rely in its efforts to recruit African-Americans using facially racial classifications.
The Supreme Court has stated in Croson, which involved a 30% racial set-aside quota, that "the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing." Croson,
The district court has approved the use of the Banneker Program to affirmatively admit African-American students solely on the basis of race until the composition of African-Americans on the University campus reflects the percentage of African-American Maryland high school graduates who potentially might participate in higher education at UMCP, without an accurate determination of either the extent to which the present disparity exists, see supra, or the extent to which that disparity flows from past discrimination, see supra part I. The program thus could remain in force indefinitely based on arbitrary statistics unrelated to constitutionally permissible purposes. Without specific determination of what measure should be used, if any, to remedy the effects of past discrimination that still exist, " 'relief' ... could extend until the percentage of [African-American students at UMCP] mirrored the percentage of [African-Americans] in the population as a whole." Croson,
D. Race-Neutral Alternatives
The district court also suggested that an increase in the number of high-achieving African-American students would remedy the low retention and graduation rates for African-American students at the University. Podberesky submitted a 1993 study by two University of Maryland professors which indicates that after the freshman year, in which grades are the principal problem, students leave the University for financial and other reasons.15 Specifically, students who left the University "tended to be more likely to provide their own expenses, live off campus with long commutes, have a job with long hours, spend few free hours on campus, and have few friends on campus." Roger W. McIntire & Sandra Smith, Work and Life Styles Among Dropouts and Ongoing College Students, 4 J.A. 1062, 1067 (survey of 455 drop-out and 455 returning University of Maryland students). "[M]ales, minority groups and transfer students show greater attrition because they are more likely to provide their own expenses and have little time for campus activities and friends due to off campus living and work." 4 J.A. at 1068. That study suggests that the best remedy is "campus job opportunities and convenient, attractive, and economically reasonable campus housing ... available to a greater proportion of students." 4 J.A. at 1070-71.
The district court rejected Podberesky's argument because it found that, in addition to economic hardship,
[i]n given cases an absence of commitment to the school because of its poor reputation in the community from which a student comes, the lack of shared experience with family members to help the student through the arduous process of higher education, the absence of African-American members of the faculty to serve as mentors and the existence of a hostile racial atmosphere on campus are other significant contributing factors.
The causes of the low retention rates submitted both by Podberesky and the University and found by the district court have little, if anything, to do with the Banneker Program. To the extent that the district court's opinion can be read as having found a connection between the University's poor reputation and hostile environment and the Banneker Program, it is on either a role model theory or a societal discrimination theory, neither of which can be sustained. In addition, there is no connection between the Banneker Program and shared experience with family members, African-American faculty members, or jobs and housing. Even if there is some connection between the two, the University has not made any attempt to show that it has tried, without success, any race-neutral solutions to the retention problem. Thus, the University's choice of a race-exclusive merit scholarship program as a remedy cannot be sustained.
Because we find that the University has not shown that its programs and quota goals are narrowly tailored, we reverse the district court's grant of summary judgment to the University. We also reverse the district court's denial of Podberesky's summary judgment motion.
IV
In our first opinion in this case, we required that should no further evidence be available upon remand, summary judgment for Podberesky should be granted.
Simply put, since the summary judgment motion of the University has failed, it may be argued that we might well enter judgment in favor of Podberesky. Because such failure, however, has consisted at least in part of the district court's weighing evidence on a motion for summary judgment, and we expressed no opinion on the subject previously, we have not without more directed entry of judgment in favor of Podberesky. Instead, we have examined the Banneker Program and have concluded it is not narrowly tailored so as to justify its principal feature, which is its mandatory reliance on race as a qualification for participation therein.
The University has had two opportunities to justify its position and has failed.
Accordingly, on remand, the district court will enter its order denying the University's motion for summary judgment, granting Podberesky's motion for summary judgment, and requiring the University to re-examine Podberesky's admission to the Banneker Program as of the date it was made. On such re-examination, the University will be enjoined from enforcing that part of the qualifications for entry into the Banneker Program which require that the applicant be of the African-American race. Following such re-examination, the district court will award appropriate relief if required.
The judgment of the district court is vacated, and the case is remanded for action consistent with this opinion.
VACATED AND REMANDED WITH INSTRUCTIONS.*
Notes
Luttig, Motz, Circuit Judges, did not participate in this decision
The district court sets forth an alternate analysis that it thinks should be used instead of an analysis grounded in Croson and Wygant.
The hostile climate is claimed to manifest itself in the student newspaper, the fraternity and sorority system, and in the fact that students tend to segregate themselves in classrooms, social situations, and the dining halls. In addition, there have been claimed instances of racist and patronizing comments by faculty members. Some instances of white and black backlash have occurred when the University has either implemented or trimmed minority-student programs. See
This table includes both northern and southern schools, as is apparent
Black Enrollment Trends (1984-1990) at Major State Universities in States with
Sizeable Black Populations*
Undergraduate Enrollment - % Black
Institution 1984 1986 1988 1990
UMCP 8.1% 8.9% 9.7% 10.7%
Undergraduate Enrollment - % Black
Institution 1984 1986 1988 1990
Univ. of Alabama 9.7% -- 9.5% 9.6%
Auburn 3.0% 3.6% 3.7% 4.3%
Univ. of Arkansas 5.5% 5.2% 4.9% 6.7%
Univ. of Delaware 3.3% 3.9% 4.4% 4.6%
Univ. of Florida 6.0% 6.3% 6.4% 6.5%
Univ. of Georgia 5.7% 5.3% 5.1% 5.8%
Univ. of Illinois (Urbana) 3.9% 4.5% 5.7% 6.9%
Louisiana State University 7.0% 7.6% 7.7% 8.1%
Univ. of Mich. (Ann Arbor) 4.7% 5.2% 5.8% 6.4%
Univ. of Mississippi 6.2% 5.7% -- 7.5%
Univ. of Missouri (Col.) 3.8% 3.5% 3.7% 4.0%
Rutgers (New Brunswick, N.J.) 8.1% 8.1% 8.7% 8.8%
SUNY (Binghamton) 3.7% 4.5% 5.2% 5.0%
Univ. of N.C. (Chapel Hill) 9.7% 8.6% 8.8% 9.6%
Ohio State (Main Campus) 4.7% 4.6% 4.5% 5.4%
Clemson (S.C.) 4.7% 4.6% 4.5% 7.0%
Univ. of S.C. (Columbia) 15.4% 13.9% 13.5% 13.9%
Univ. of Tenn. (Knoxville) 4.6% 4.4% 4.5% 5.1%
Univ. of Texas (Austin) 3.7% 3.7% 3.9% 3.8%
Virginia Polytechnic Inst. 4.7% 3.7% 3.7% 4.6%
Univ. of Va. (Main Campus) 8.5% 7.6% 9.1% 10.0%
Source: DOEd Data
States included are those with Black populations equal to at least 10% of the overall population, based on 1990 census data. Universities selected are the largest and/or most prestigious state research institutions like UMCP. For several states more than one institution is listed
The district court also should have determined as a matter of fact that part of the population which possessed the qualifications. In this case, however, the number of students meeting the criteria advocated by Podberesky was not determined because the University did not submit sufficient data to allow the corresponding percentage to be determined. The fact that the numbers are not in the record is not a sufficient basis, however, for rejecting the pool. The pool must be determined based on the qualifications, not by determining which numbers exist in the record and then adopting the corresponding qualifications, which is one way of characterizing what occurred in the district court. The district court could have denied the University's motion for summary judgment and given it more time to come up with the relevant figures
The above note and associated text assumes the statistical validity of any pool. See Part III.C., infra.
The University has no formal requirements for admission with respect to SAT scores and grade-point averages (GPA). Thus, for the years in question, the district court should have determined what the effective minimum criteria for admission were by determining the lowest GPA and SAT scores achieved by admittees to the University that year
The district court also rejected several pools advocated by the University, including a pool of all African-American students graduating from Maryland high schools.
Like the University, Podberesky presented several possible pools to the district court. As to the qualifications needed to be eligible for admission, Podberesky argued in part that the appropriate reference pool consisted of those African-Americans who completed the required high school curriculum, maintained a grade-point average of 2.0 or above, attained a verbal SAT score of 270 or better, and attained a math SAT score of 380 or better. Podberesky contends that the University's admissions data reveal that these were the effective minimum criteria for admission.
In addition, any intergenerational effects of segregated education are the product of societal discrimination, which cannot support a program such as this one. Maryland Troopers,
We do not discuss here the hostile environment and poor reputation effects because they are not sufficient to justify the program. See Part II.A, supra
Because the Banneker requirement of African descent does not establish the same kind of racial quota as a 50% promotion requirement, the tests articulated in Justice Brennan's plurality opinion and Justice Powell's concurring opinion in United States v. Paradise,
In 1992, for example, 17 of the 31 Banneker scholarships were awarded to non-residents of Maryland. Podberesky says without refutation that in 1989 a Banneker scholarship was offered to a Jamaican. Thus, the University gives African-American a hemispheric meaning
This is because the least burdensome criterion for admission to UMCP is a limiting factor: no greater number of people can be accepted to UMCP than those satisfying this criterion, whichever one it is, in any given year. In point of fact, many of those satisfying this least burdensome criterion will fail to satisfy some or all of the other criteria, and thus will not be eligible to attend UMCP. Accordingly, the district court's failure to determine what percentage of the Maryland high school graduates were African-American and also satisfied all of these criteria, may well have inflated its determinations of the size of the relevant reference pool
We can infer that significant numbers of UMCP-eligible Maryland African-Americans do choose to go to the predominantly African-American Maryland schools, such as Coppin State, Bowie State, and UM Eastern Shore, whether their reasons are economic, academic, geographic, or cultural, because the percentages of African-Americans in the student bodies at those schools are so high
Although it is not necessary to this analysis, because the district court's conclusion on this point cannot withstand strict scrutiny for failure altogether to consider these variables, we are convinced, based on common sense and what evidence there is in the record, that if these variables were accounted for in determining the relevant reference pool, the percentage of African-Americans in that pool would be lower than any figure postulated by the district court, and the disparity between UMCP's African-American population and that of the reference pool would be correspondingly reduced to a point where there might well be no statistically significant underrepresentation
Students participating in the survey were asked to check a list of factors that were factors in their decisions to leave the University. We note that the students had the opportunity to choose that they "felt discriminated against due to race, gender, religion, or sexual preference." 4 J.A. at 1075
Podberesky has not asked for relief against the intervenors who have been awarded Banneker scholarships prior to this decision, therefore, none will be awarded against them except taxable costs and attorneys fees. Podberesky, also, has not asked for relief against any other student who has been awarded a Banneker scholarship prior to this decision; therefore, this decision has no effect on such students. We note that attorneys' fees are not awarded as a matter of course against unsuccessful intervenors, see Independent Federation of Flight Attendants v. Zipes,