IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION




MARK MALOOLY, )
Plaintiff, )
)
v. ) Civil No.
) A96CA229SS
STATE OF TEXAS; THE UNIVERSITY OF )
TEXAS SYSTEM; BERNARD RAPOPORT, )
THOMAS HICKS, MARTHA SMILEY, )
LINNET DEILY, DONALD EVANS, ZAN )
HOLMES, JR., LOWELL LEBERMANN, )
JR., TOM LOEFFLER and ELLEN )
CLARKE TEMPLE, Regents of The )
University of Texas System, in )
their official capacities; )
WILLIAM CUNNINGHAM, Chancellor of )
The University of Texas System, )
in his official capacity; THE )
UNIVERSITY OF TEXAS AT AUSTIN; )
ROBERT BERDAHL,President of The )
University of Texas at Austin, )
in his official capacity; )
UNIVERSITY OF TEXAS SCHOOL OF )
LAW; MICHAEL SHARLOT, Dean of )
the University of Texas School )
of Law, in his official capacity; )
STANLEY JOHANSON, head of the )
admissions committee of the )
University of Texas School of )
Law, in his official capacity, )
Defendants.



FIRST AMENDED COMPLAINT


    Nature of the Case
  1. This is a civil action for monetary and declaratory relief to enforce the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
  2. As set forth more fully below, Defendants, through the application of an affirmative action admissions program, unlawfully discriminated against Plaintiff.

    Jurisdiction and Venue

  3. The jurisdiction of this Court is invoked under Title 28, United States Code, Sections 1331 and 1343.
  4. Venue is proper in this judicial district under Title 28, United States Code, Section 1391(b)(2).

    Parties

  5. At all times material to this lawsuit, plaintiff Mark Malooly was and is a citizen of the United States and a resident of the State of Texas.
  6. The defendants in this lawsuit are: State of Texas; The University of Texas System; Bernard Rapoport, Thomas Hicks, Martha Smiley, Linnet Deily, Donald Evans, Zan Holmes, Jr., Lowell Leberman, Jr., Tom Loeffler and Ellen Clarke Temple, Regents of T he University of Texas System, in their official capacities; William Cunningham, Chancellor of The University of Texas System, in his official capacity; The University of Texas at Austin; Robert Berdahl, President of The University of Texas at Austin, in his official capacity; University of Texas School of Law; Michael Sharlot, Dean of the University of Texas School of Law, in his official capacity; Stanley Johanson, head of the admissions committee of the University of Texas School of Law, in his officia l capacity.
  7. Defendants have appeared and answered in this lawsuit.

    Facts

  8. Defendants State of Texas, The University of Texas System, The University of Texas at Austin, and the University of Texas School of Law receive federal financial assistance.
  9. Defendants have established and are maintaining, under color of the laws of the State of Texas, an affirmative action admissions program at the University of Texas School of Law that classifies applicants on the basis of race and ethnicity and denie s academically qualified white and non-preferred minority applicants the equal protection of the laws.
  10. Plaintiff is classified as white under the challenged affirmative action admissions program.
  11. Plaintiff applied for admission to the School of Law for the term beginning in September 1994. His application for admission was timely and complete in every respect.
  12. Although he met all formal requirements and was academically qualified to enter the School of Law, Plaintiff was denied admission.
  13. Plaintiff would have been admitted to the School of Law for the term beginning in September 1994 if the challenged affirmative action admissions program did not exist.

    Cause of Action

  14. In violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Title 42, United States Code, Sections 1981, 1983, and 2000d, Defendants intentionally discriminated against Plaintiff on the basis of rac e and ethnicity.

    Monetary Relief

  15. As a result of Defendants' unlawful actions, Plaintiff has suffered and will continue to suffer monetary and other damage.

    Equitable Relief

  16. Plaintiff has no adequate remedy at law other than this action for declaratory relief.
  17. Plaintiff is suffering irreparable injury as a result of Defendants' actions and that injury will continue unless those acts are declared unlawful by this Court.

    Attorney's Fees

  18. In accordance with Title 42, United States Code, Section 1988, Plaintiff is entitled to recover the costs and expenses of this lawsuit together with his reasonable attorney's fees.

    Prayer for Relief

For these reasons, Plaintiff requests that this Court:
  1. enter judgment declaring that, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Title 42, United States Code, Sections 1981, 1983, and 2000d, Defendants intentionally discriminated agains t Plaintiff on the basis of race and ethnicity;
  2. award Plaintiff monetary relief for the damages suffered by him due to Defendants' unlawful actions;
  3. award Plaintiff the costs and expenses of this lawsuit together with his reasonable attorney's fees; and
  4. award Plaintiff such other and further relief to which he is entitled.

Dated:____________, 1996.
Respectfully submitted,

Law Offices of Steven W. Smith
308 Grooms Street
Austin, Texas 78705
(512) 322-0129 - Telephone
(512) 322-0347 - Facsimile

By: ________________________

Steven W. Smith
State Bar No. 18685873

Certificate of Service
I hereby certify that a true and correct copy of the foregoing document has been hand-delivered on _______________, 1996 to:

Deborah A. Verbil
Assistant Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711

_______________________
Steven W. Smith