# Hopwood v. Texas > Court of Appeals for the Fifth Circuit · April 4, 1996 · 84 F.3d 720 URL: https://www.frixlaw.com/law-library/cases/6939171 ## Case - **Full name:** Cheryl J. HOPWOOD v. STATE OF TEXAS v. THURGOOD MARSHALL LEGAL SOCIETY and Black Pre-Law Association, Movants-Appellants Douglas CARVELL v. STATE OF TEXAS v. THURGOOD MARSHALL LEGAL SOCIETY and Black Pre-Law Association, Movants-Appellants Cheryl J. HOPWOOD, Cheryl J. Hopwood v. STATE OF TEXAS, Defendants-Appellees Douglas CARVELL, Douglas Carvell v. STATE OF TEXAS - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** April 4, 1996 - **Citations:** 84 F.3d 720 - **Precedential status:** Published - **Opinion:** Dissent by Stewart - **Judges:** Demoss, Smith, Stewart, Wiener - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6939171 ## Opinion text STEWART, Circuit Judge, dissenting from failure to grant rehearing en banc. I wholeheartedly concur in the dissent to the denial of en banc rehearing. I write separately to underscore the lack of historical perspective and sensitivity in both the panel majority’s opinion and the vote not to consider this case en bane. That it is the University of Texas School of Law’s admissions policy at issue is a fact whose significance has not been lost on any of us. In 1946, this very school denied admission to Heman Marion Sweatt because he was black, prompting him to sue the University. Sweatt’s real difficulties began fifty years before when the United States Supreme Court scripted one of this nation’s *725 most evil conceits in Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896), declaring “separate but equal” treatment of black Americans constitutional. Plessy was no more than a license for continued racial discrimination. However, in 1950 the Supreme Court held that excluding Sweatt on account of his race violated the Equal Protection Clause of the Fourteenth Amendment. Sweatt v. Painter, 339 U.S. 629 , 70 S.Ct. 848 , 94 L.Ed. 1114 (1950). 1 History, in its characteristic irony, takes this court to that hallowed ground of civil rights jurisprudence to assess the University’s effort to encourage minority enrollment and counter its legacy of segregation. It is an unfortunate, further irony that the panel majority opinion should so overreach in its decision. In Sweatt’s case, the Supreme Court explicitly adhered to the “principle of deciding constitutional questions only in the context of the particular case before the Court,” drawing its decision “as narrowly as possible.” Id. at 631 , 70 S.Ct. at 849 (citing Rescue Army v. Municipal Court, 331 U.S. 549 , 67 S.Ct. 1409 , 91 L.Ed. 1666 (1947)). If there ever were a time to end legalized segregation, that was the time. The Court was in a position to paint with a broad brush and eliminate the very regime which denied civil rights to Sweatt and other blacks. Chief Justice Vinson’s opinion for the Court, however, resisted calls to wax on “[bjroader issues ... urged for our consideration.” Id. The panel majority in our case displayed no such discipline, instead taking the unauthorized liberty of deciding the appropriateness of diversity as an admissions criterion, not just the merits of the instant admissions policy. Constitutional interpretation is a sensitive project. Limiting ourselves to the facts before the court keeps the process measured — it is a traditional check which respects the need to calibrate rights and interests carefully. Given the sensitivity of constitutional interpretation, the panel majority’s decision disrespects the importance of the facts. Refusing to correct this travesty en banc is a grave error. As to the request to intervene, what class of persons is more qualified to adduce the evidence of the present effects of past discrimination than current and prospective black law students? Reading Sweatt as a benchmark decision marking the end of de jure segregation is akin to shelving Trotsky’s The History of the Russian Revolution upon reading only the preface. Just as those initial pages fail to give a true rendition of the entire work, so too does Sweatt give only a superficial understanding of the racism it hardly addressed. A year after the Supreme Court ordered that Sweatt be admitted, he left the law school “without graduating after being subjected to racial slurs from students and professors, cross burnings, and tire slashings.” Hopwood v. State of Texas, 861 F.Supp. 551, 555 (1994). Furthermore, “the record reflects that during the 1950s, and into the 1960s, the University of Texas continued to implement discriminatory policies against both black and Mexican American students.” Id. It was not until 1983 that Texas even agreed, after years of threats of federal action, to an acceptable plan to desegregate its higher education system. In 1987 and again in 1994, the Department of Education instructed Texas to maintain its plan. To this day, Texas’s higher education system still has not been declared in compliance with Title VI and the Fourteenth Amendment. Id. at 556-57 . “The life of the law,” Justice Oliver Wendell Holmes observed, “is not logic, but experience.” To divorce the time in which it was legally possible for Sweatt to attend the Law School from the reality he experienced there is to ignore the very insidiousness of racial discrimination. It was the vestiges of that discrimination which, far from being destroyed, thrived and drove Sweatt out of the Law School. We act no less callously now in pretermitting the consideration of that legacy of discrimination by denying rehearing. *726 For all these reasons and those expressed in the collective dissent, I vehemently disagree with our court’s decision not to rehear this case en banc. . When a court ordered the State to provide a law school for blacks, Texas created a “makeshift law school that had no permanent staff, no library staff, no facilities, and was not accredited.” Hopwood v. State of Texas, 861 F.Supp. 551, 555 (1994). This “law school” consisted of 3 rooms in a basement and had two professors. Paul Butler, Affirmative Action Admissions, Dallas Morning News, April 7, 1996, at 1J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6939171. Public record. Not legal advice.