Uzzell v. Friday

WINTER, Circuit Judge:

We recalled our mandate issued after our split decision following remand from the Supreme Court, Uzzell v. Friday, 591 F.2d 997 (4 Cir. 1979), because that decision was rendered by an improperly constituted court. The case has been reargued before a properly constituted in banc court (one judge having recused himself), and we now vacate the judgment of the district court and remand the case for further proceedings as indicated herein.

I.

We begin with a history of this case: Initially, this litigation involved three issues concerning the validity of (1) a university regulation directing the president of the student body to appoint two black students and two women to the 18 member Campus Governing Council, the student legislative body, if an election fails to produce that result, (2) a university regulation giving a defendant appearing before the Student Honor Court, the judicial branch of the student government, the right to require that four of the seven judges be members of his or her race or sex, and (3) the university’s funding of the Black Student Movement, a campus group which at its inception had a restricted membership. The district court, without full development of the record, granted summary judgment for defendants on the ground that there was no justiciable injury, 401 F.Supp. 775 (M.D.N. C.1975), but on appeal, a panel of the court affirmed summary judgment only with respect to the Black Student Movement which opened its ranks to all students. Both the Campus Governing Council and Student Honor Court regulations were declared invalid on the ground that each is “related to race with no reasonable or compelling nexus to that classification.” 547 F.2d 801, 804 (4 Cir. 1977).

When the case was first heard by an in banc court, the entire court agreed that the issue of funding of the Black Student Movement was moot, and a split court reached the same result with respect to the two regulations as that reached by the panel. 558 F.2d 727 (4 Cir. 1977). The dissenting judges questioned plaintiffs’ standing to litigate the validity of both regulations and also stated that in their view, if the validity of the regulations was to be decided, the case should be returned to the district court for factual development of “the history of discrimination or non-discrimination at the university, the need for remedial measures, the reasonableness of the measures and how, in practice, they have operated.” 558 F.2d at 728.

Certiorari was granted by the Supreme Court, and the judgment of the first in banc court was vacated and the case remanded to us for further consideration in light of the decision in Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Friday v. Uzzell, 438 U.S. 912, 98 S.Ct. 3139, 57 L.Ed.2d 1158 (1978). When we heard the case in banc pursuant to this mandate, a senior judge, who had been a member of the original panel and who had sat as a member of the first in banc court, again sat as a member of the court. Unbeknown to us at that time and also unbeknown to counsel, Congress had amended 28 U.S.C. § 46 to provide that a court in banc should consist only of active circuit judges. The participation of the senior judge was of great significance because the in banc court split 4-3 with the senior judge voting in the majority. The majority of the court continued to hold that, notwithstanding Bakke, the two regulations in issue violated the Fourteenth Amendment and the Civil Rights Acts of 1871 and 1964 because the university “had failed to demonstrate that the accomplishment of the State’s purpose necessitates its use of a suspect classification [race] in the two student government regulations . . ” 591 F.2d 997, 1000 (4 Cir. 1979). At the same time the majority declined to remand the case to the district court to take additional evidence, because, again notwithstanding Bakke, “[t]he method here chosen for eradicating possible earlier discrimination could not be accepted, even if history revealed such conduct, because the supposedly remedial measures presently enforced impinge upon the rights of others.” 591 F.2d at 1000.

The judges dissenting from the decision of the second in banc court stated that in their view Bakke both recognized and approved “the use of racial criteria in remedial steps to redress wrongs worked by adjudicated instances of racial discrimination,” provided only that the remedy worked the least harm possible on other innocent persons who were competing for the benefit. 591 F.2d at 1101. It was essential therefore, in the view of the dissenters, that the case be returned to the district and a full trial conducted so that the various factors identified in the dissenting opinion in the first in banc decision 558 F.2d at 728, i. e., the history of discrimination and the need for and reasonableness and efficacy of remedial measures, could be developed. The dissenters also suggested that on remand the district court consider the possibility that the litigation had become moot “either because all named plaintiffs have severed their connection with the University, or at some stage of the proceedings no named plaintiff had maintained a continuing connection with the University.”¹ 591 F.2d at 1101.

Neither party sought certiorari from the decision of the second in banc court within the time permitted by law. When we became aware from other sources that the second in banc court had been improperly constituted, we sought the views of counsel as to what, if anything, should be done. Counsel were not in agreement, but we concluded to recall our mandate and to have the case reargued before a properly constituted in banc court.²

II.

Because we have not yet articulated the reasons why we thought it proper to recall our mandate and to have the case reargued, we do so now.

The amendment to 28 U.S.C. § 46 was made by Pub.L. 95-486, effective October 20, 1978. We heard the second in banc case on November 16, 1978 and decided it February 2, 1979, thus it is clear that the senior judge was not authorized to participate. We think that United States v. American-Foreign Steamship Corp., 363 U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960), compels the conclusion that we should take steps to remedy our own oversight. In that case, the Court vacated an in banc decision in which a sitting judge took senior status after the case had been submitted but prior to an amendment of § 46 which permitted a senior judge who was a member of the panel to participate in a rehearing in banc.³ Therefore, we conclude that our previous judgment must be stricken. We think it significant that when American-Foreign Steamship was remanded, the Second Circuit reconsidered the case in banc, and this is the procedure we too have followed.

We do not think that Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) requires a different result. There it was held, to the extent pertinent here, that a party could not contest the composition of a three-judge court convened under 28 U.S.C. § 2284 for failure to include the judge to whom the application for an injunction was made. The order appointing the court had called for early filing of any objection to the composition of the court and no protest was made. The Court said that the requirement of § 2284 that the judge to whom the application for an injunction was made be a member of the court was “not . . . jurisdictional,” and that the objection was waived when it was not raised until appeal. 422 U.S. at 338, n.5, 95 S.Ct. at 2286, n.5. Hicks is distinguishable from the instant case. First, it is manifest from what was decided and ordered in American-Foreign Steamship that the requirement of non-participation by a senior judge in a rehearing in banc is jurisdictional. Second, unlike Hicks, there is no factual basis for concluding that there was a waiver here. Counsel were unaware of the amendment of § 46 until after the case had been heard and decided. By contrast, in Hicks, the requirement of § 2284 was and had been the law for some time prior to the designation of the court, and there was an order requiring an early objection to the composition of the court if one was to be made.

III.

When brought to the merits, a majority of the present in banc court concludes that with respect to the two regulations still in issue, the dissenting view in the first in banc decision, in which it was asserted that the case should be remanded to the district court for a fuller development of the record, and the dissenting view in the second in banc decision, in which it was asserted that the case should be remanded to the district court for the taking of evidence and reconsideration in the light of Bakke, are the correct ones which the majority adopts as its own. The university should have the opportunity to justify its regulations so that the district court can apply the Bakke test: is the classification necessary to the accomplishment of a constitutionally permissible purpose? 438 U.S. at 305, 98 S.Ct. at 2756. As the dissent maintained in the second in banc decision:

Bakke teaches that as a necessary remedial measure a victimized group may be preferred at the expense of other innocent persons. What cries out for determination in the instant case is whether such preferment is justified under the principles of Bakke.

591 F.2d at 1101. Furthermore, although it is by no means a precedent which is applicable here,⁴ we think that the spirit and some of the language of United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) confirms this view. In the context of a collective bargaining agreement and employee training programs, Weber illustrates that racially conscious action which impinges upon one class in order to serve an ameliorative purpose is not unlawful per se:

It would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice . . . constituted the first legislative prohibition of all voluntary, private, race conscious efforts to abolish traditional patterns of racial segregation and hierarchy.

443 U.S. at 204, 99 S.Ct. at 2728.

We therefore affirm the judgment of the district court with respect to the funding of the Black Student Movement. With respect to the two regulations, we vacate the judgment of the district and remand the case for the development of a full record and for findings of fact and conclusions of law in the light of Bakke and what was said in the dissenting opinions in the first and second in banc cases. On remand the district court should consider also the possible mootness issue discussed as part II of the dissenting opinion in the second in banc case. (591 F.2d at 1101).

AFFIRMED IN PART; VACATED IN PART AND REMANDED.

1 . The first possibility may have been obviated by our order of December 18, 1979, granting leave to intervene to additional plaintiffs, but that, and the second possibility, may be considered by the district court on remand.

2 . At the time that the case was reargued, the composition of the court had been increased by the addition of two new judges and the filling of a vacancy theretofore existing. One of the three new judges recused himself from participation in the case because of his past relationship with one of the parties.

3 . Section 46, after its amendment by Pub.L. 95 — 486, is almost identical to the language of § 46 in effect when American-Foreign Steamship was decided.

4 . The Court distinguished its analysis of Title VII from Title VI and the equal protection clause 443 U.S. at 200, fn. 6, 99 S.Ct. at 2726 and addressed “the narrow statutory issue of whether Title VII forbids private employers and unions from volunteering upon bona fide affirmative action plans.” The Court relied upon the legislative history of Title VII, the temporary nature of the plan, and the fact that only private parties were involved.