Hopwood v. State of Tex.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 94-50569

_______________

CHERYL J. HOPWOOD, et al.,

Plaintiffs-Appellees,

VERSUS

STATE OF TEXAS, et al.,

Defendants-Appellees,

VERSUS

THURGOOD MARSHALL LEGAL SOCIETY

and

BLACK PRE-LAW ASSOCIATION,

Movants-Appellants.

******************************************************************

DOUGLAS CARVELL, ET AL.,

Plaintiffs-Appellees,

VERSUS

STATE OF TEXAS, ET AL.,

Defendants-Appellees,

VERSUS

THURGOOD MARSHALL LEGAL SOCIETY,

AND BLACK PRE-LAW ASSOCIATION,

Movants-Appellants.

_______________

No. 94-50664

_______________

CHERYL J. HOPWOOD, et al.,

Plaintiffs,

CHERYL J. HOPWOOD, et al.,

Plaintiffs-Appellants,

VERSUS

STATE OF TEXAS, et al.,

Defendants-Appellees.

**********************************************

DOUGLAS CARVELL, ET AL.,

Plaintiffs,

DOUGLAS CARVELL,

Plaintiff-Appellant,

VERSUS

STATE OF TEXAS, ET AL.,

Defendants-Appellees.

_________________________

Appeals from the United States District Court

for the Western District of Texas

_________________________

March 18, 1996

Before SMITH, WIENER, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

With the best of intentions, in order to increase the en-

rollment of certain favored classes of minority students, the

University of Texas School of Law ("the law school") discrimi-

nates in favor of those applicants by giving substantial racial

preferences in its admissions program. The beneficiaries of this

2

system are blacks and Mexican Americans, to the detriment of

whites and non-preferred minorities. The question we decide to-

day in No. 94-50664 is whether the Fourteenth Amendment permits

the school to discriminate in this way.

We hold that it does not. The law school has presented no

compelling justification, under the Fourteenth Amendment or Su-

preme Court precedent, that allows it to continue to elevate some

races over others, even for the wholesome purpose of correcting

perceived racial imbalance in the student body. "Racial prefer-

ences appear to 'even the score' . . . only if one embraces the

proposition that our society is appropriately viewed as divided

into races, making it right that an injustice rendered in the

past to a black man should be compensated for by discriminating

against a white." City of Richmond v. J.A. Croson Co., 488 U.S.

469, 528 (1989) (Scalia, J., concurring in the judgment).

As a result of its diligent efforts in this case, the dis-

trict court concluded that the law school may continue to impose

racial preferences. See Hopwood v. Texas, 861 F. Supp. 551 (W.D.

Tex. 1994). In No. 94-50664, we reverse and remand, concluding

that the law school may not use race as a factor in law school

admissions. Further, we instruct the court to reconsider the

issue of damages in accordance with the legal standards we now

explain. In No. 94-50569, regarding the denial of intervention

by two black student groups, we dismiss the appeal for want of

jurisdiction.

3

I.

A.

The University of Texas School of Law is one of the nation's

leading law schools, consistently ranking in the top twenty.

See, e.g., America's Best Graduate Schools, U.S. NEWS & WORLD REPORT

Mar. 20, 1995, at 84 (national survey ranking of seventeenth).

Accordingly, admission to the law school is fiercely competitive,

with over 4,000 applicants a year competing to be among the ap-

proximately 900 offered admission to achieve an entering class of

about 500 students. Many of these applicants have some of the

highest grades and test scores in the country.

Numbers are therefore paramount for admission. In the early

1990's, the law school largely based its initial admissions deci-

sions upon an applicant's so-called Texas Index ("TI") number, a

composite of undergraduate grade point average ("GPA") and Law

School Aptitude Test ("LSAT") score.1 The law school used this

number as a matter of administrative convenience in order to rank

candidates and to predict, roughly, one's probability of success

in law school. Moreover, the law school relied heavily upon such

numbers to estimate the number of offers of admission it needed

to make in order to fill its first-year class.

1

The formulae were written by the Law School Data Assembly Service

according to a prediction derived from the success of first-year students in

preceding years. As the LSAT was determined to be a better predictor of

success in law school, the formulae for the class entering in 1992 accorded an

approximate 60% weight to LSAT scores and 40% to GPA.

The formula for students with a three-digit LSAT, see infra note 5, was

calculated as: LSAT + (10)(GPA) = TI. For students with a two-digit LSAT,

the formula was: (1.25)LSAT + (10)GPA = TI.

4

Of course, the law school did not rely upon numbers alone.

The admissions office necessarily exercised judgment in inter-

preting the individual scores of applicants, taking into consid-

eration factors such as the strength of a student's undergraduate

education, the difficulty of his major, and significant trends in

his own grades and the undergraduate grades at his respective

college (such as grade inflation). Admissions personnel also

considered what qualities each applicant might bring to his law

school class. Thus, the law school could consider an applicant's

background, life experiences, and outlook. Not surprisingly,

these hard-to-quantify factors were especially significant for

marginal candidates.2

Because of the large number of applicants and potential ad-

missions factors, the TI's administrative usefulness was its

ability to sort candidates. For the class entering in 1992SSthe

admissions group at issue in this caseSSthe law school placed the

typical applicant in one of three categories according to his TI

scores: "presumptive admit," "presumptive deny," or a middle

"discretionary zone." An applicant's TI category determined how

extensive a review his application would receive.

Most, but not all, applicants in the presumptive admit

category received offers of admission with little review.

2

Notably, but of less significance to this appeal, residency also had a

strong, if not often determinant, effect. Under Texas law in 1992, the law

school was limited to a class of 15% non-residents, and the Board of Regents

required an entering class of at least 500 students. The law school therefore

had to monitor offers to non-residents carefully, in order not to exceed this

quota, while at the same time maintaining an entering class of a manageable

size.

5

Professor Stanley Johanson, the Chairman of the Admissions

Committee, or Dean Laquita Hamilton, the Assistant Dean for

Admissions, reviewed these files and downgraded only five to ten

percent to the discretionary zone because of weaknesses in their

applications, generally a non-competitive major or a weak under-

graduate education.

Applicants in the presumptive denial category also received

little consideration. Similarly, these files would be reviewed by

one or two professors, who could upgrade them if they believed that

the TI score did not adequately reflect potential to compete at the

law school. Otherwise, the applicant was rejected.

Applications in the middle range were subjected to the most

extensive scrutiny. For all applicants other than blacks and

Mexican Americans, the files were bundled into stacks of thirty,

which were given to admissions subcommittees consisting of three

members of the full admissions committee. Each subcommittee

member, in reviewing the thirty files, could cast a number of

votesSStypically from nine to eleven3SSamong the thirty files.

Subject to the chairman's veto, if a candidate received two or

three votes, he received an offer; if he garnered one vote, he was

put on the waiting list; those with no votes were denied admission.

Blacks and Mexican Americans were treated differently from

other candidates, however. First, compared to whites and non-

3

The number of votes would change over the course of the admissions

season in order to achieve the appropriate number of offers.

6

preferred minorities,4 the TI ranges that were used to place them

into the three admissions categories were lowered to allow the law

school to consider and admit more of them. In March 1992, for

example, the presumptive TI admission score for resident whites and

non-preferred minorities was 199.5 Mexican Americans and blacks

needed a TI of only 189 to be presumptively admitted.6 The

difference in the presumptive-deny ranges is even more striking.

The presumptive denial score for "nonminorities" was 192; the same

score for blacks and Mexican Americans was 179.

While these cold numbers may speak little to those unfamiliar

4

As blacks and Mexican Americans were the only two minority categories

granted preferential treatment in admissions, it is inaccurate to say that the

law school conducted separate admissions programs for "minorities" and "non-

minorities." While the law school application form segregated racial and

ethnic classification into seven categoriesSS"Black/African American," "Native

American," "Asian American," "Mexican American," "Other Hispanic" (meaning

non-Mexican descent), "White," and "Other (describe)"SSonly American blacks

and Mexican Americans received the benefit of the separate admissions track.

Thus, for example, the law school decided that a black citizen of Nige-

ria would not get preferential treatment, but a resident alien from Mexico,

who resided in Texas, would. Likewise, Asians, American Indians, Americans

from El Salvador and Cuba, and many others did not receive a preference.

It is important to keep the composition of these categories in mind.

For the sake of simplicity and readability, however, we sometimes will refer

to two broad categories: "whites" (meaning Texas residents who were whites

and non-preferred minorities) and "minorities" (meaning Mexican Americans and

black Americans).

5

Because of a recent change in the grading scale of the LSAT, the law

school in 1992 had applicants who had taken an earlier LSAT scored on a 10-to-

48 scale and others who had taken a later one scored on a 120-to-180 scale.

Equivalence calculations were used to compare scores received on the two

scales. For example, TI numbers of 199 (three-digit LSAT) and 87 (two-digit

LSAT) were equivalent. For the sake of simplicity, we use three-digit numbers

throughout this opinion.

6

In March 1992, the resident Mexican American and black presumptive

admit lines were in parity, but they had not started that way. The initial

presumptive admit TI's were 196 for Mexican Americans and 192 for blacks.

Thus, initially, blacks received preferential treatment over Mexican Americans

by having a lower hurdle to cross to get into the discretionary zone. In

March, Professor Johanson lowered the Mexican American TI in order to admit

more of this group.

7

with the pool of applicants, the results demonstrate that the

difference in the two ranges was dramatic. According to the law

school, 1992 resident white applicants had a mean GPA of 3.53 and

an LSAT of 164. Mexican Americans scored 3.27 and 158; blacks

scored 3.25 and 157. The category of "other minority" achieved a

3.56 and 160.7

These disparate standards greatly affected a candidate's

chance of admission. For example, by March 1992, because the

presumptive denial score for whites was a TI of 192 or lower, and

the presumptive admit TI for minorities was 189 or higher, a

minority candidate with a TI of 189 or above almost certainly would

7

The median scores of the 1992 class are as follows:

Ethnicity Resident Nonresident

GPA/LSAT GPA/LSAT

All students 3.52/162 3.61/164

White 3.56/164 3.72/166

Black 3.30/158 3.30/156

Mexican American 3.24/157 3.38/174*

Other minority 3.58/160 3.77/157

*Only two matriculated applicants.

In 1992, the LSAT's national distribution was approximately as follows:

LSAT Percentile 2-Digit LSAT

166 94% 43

164 91% 41

162 88% 40

160 83% 39

158 78% 38

156 71% 36

On the basis of these percentiles, one-half of the law school's white resident

matriculants were in the top 9% of all test-takers, one-half of the resident

Mexican Americans were in approximately the top 25% of test-takers, and one-

half of the resident blacks were in the top 22% of test-takers.

8

be admitted, even though his score was considerably below8 the

level at which a white candidate almost certainly would be

rejected. Out of the pool of resident applicants who fell within

this range (189-192 inclusive), 100% of blacks and 90% of Mexican

Americans, but only 6% of whites, were offered admission.9

The stated purpose of this lowering of standards was to meet

an "aspiration" of admitting a class consisting of 10% Mexican

Americans and 5% blacks, proportions roughly comparable to the

percentages of those races graduating from Texas colleges. The law

school found meeting these "goals" difficult, however, because of

uncertain acceptance rates and the variable quality of the

applicant pool.10 In 1992, for example, the entering class

contained 41 blacks and 55 Mexican Americans, respectively 8% and

10.7% of the class.

In addition to maintaining separate presumptive TI levels for

minorities and whites, the law school ran a segregated application

8

To illustrate this difference, we consider the four plaintiffs in this

caseSSCheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David Rogers. For

a student similarly situated to Hopwood, with a GPA of 3.8, to avoid presump-

tive denial as a white, i.e., to obtain a TI of 193 or above, her LSAT had to

be at least a 155, a score in approximately the top 32% of test-takers. If

she were black (thus, needing a 180 TI), she would have had to score a 142 on

the LSAT, ranking her only in the top 80%. Likewise, a student similar to

Carvell, who had a 3.28 GPA, would have needed a "white" LSAT of 160 (top 17%)

and a "black" 147 (top 63%). A student like Rodgers with a 3.13 would have

needed either a 162 (top 12%) as a white or 149 as a black (top 56%). Fi-

nally, a student like Elliott with a 2.98 GPA would have needed a 163 (top

10%) or 150 (top 53%), respectively.

9

According to the plaintiffs, 600-700 higher-scoring white residents

were passed over before the first blacks were denied admission. There is no

specific finding on this assertion, and though the law school does not appear

to refute it, we do not rely upon it in making our decision.

10

Thus, the law school constantly had to adjust its TI range over the

course of the admissions season to reach a desired mix. See supra note 6.

9

evaluation process. Upon receiving an application form, the school

color-coded it according to race. If a candidate failed to

designate his race, he was presumed to be in a nonpreferential

category. Thus, race was always an overt part of the review of any

applicant's file.

The law school reviewed minority candidates within the

applicable discretionary range differently from whites. Instead of

being evaluated and compared by one of the various discretionary

zone subcommittees, black and Mexican American applicants' files

were reviewed by a minority subcommittee of three, which would meet

and discuss every minority candidate. Thus, each of these

candidates' files could get extensive review and discussion. And

while the minority subcommittee reported summaries of files to the

admissions committee as a whole, the minority subcommittee's

decisions were "virtually final."

Finally, the law school maintained segregated waiting lists,

dividing applicants by race and residence. Thus, even many of

those minority applicants who were not admitted could be set aside

in "minority-only" waiting lists. Such separate lists apparently

helped the law school maintain a pool of potentially acceptable,

but marginal, minority candidates.11

B.

11

The district court did not find, nor is the record clear on, how

these different classes of waiting list candidates were compared in the event

the law school made last-minute admissions decisions. The record does show

that the school carefully monitored the race of applicants in filling the last

openings in late spring and early summer.

10

Cheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David

Rogers (the "plaintiffs") applied for admission to the 1992

entering law school class. All four were white residents of Texas

and were rejected.

The plaintiffs were considered as discretionary zone candi-

dates.12 Hopwood, with a GPA of 3.8 and an LSAT of 39 (equivalent

to a three-digit LSAT of 160), had a TI of 199, a score barely

within the presumptive-admit category for resident whites, which

was 199 and up. She was dropped into the discretionary zone for

resident whites (193 to 198), however, because Johanson decided her

educational background overstated the strength of her GPA.

Carvell, Elliott, and Rogers had TI's of 197, at the top end of

that discretionary zone. Their applications were reviewed by

admissions subcommittees, and each received one or no vote.

II.

The plaintiffs sued primarily under the Equal Protection

Clause of the Fourteenth Amendment; they also claimed derivative

statutory violations of 42 U.S.C. §§ 1981 and 1983 and of title VI

of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("title VI").13

The plaintiffs' central claim is that they were subjected to

12

The district court discussed in detail the plaintiffs' qualifications

and their rejections. See 861 F. Supp. at 564-67.

13

The defendants are the State of Texas; the University of Texas Board

of Regents; the members of the board, named but sued in their official capaci-

ties; the University of Texas at Austin; the President of the university, sued

in his official capacity; the University of Texas School of Law; the dean of

the law school, sued in his official capacity; and the Chairman of the Admis-

sions Committee, sued in his official capacity.

11

unconstitutional racial discrimination by the law school's

evaluation of their admissions applications. They sought injunc-

tive and declaratory relief and compensatory and punitive damages.

After a bench trial, the district court held that the school

had violated the plaintiffs' equal protection rights. 861 F. Supp.

at 579. The plaintiffs' victory was pyrrhic at best, however, as

the court refused to enjoin the law school from using race in

admissions decisions or to grant damages beyond a one-dollar

nominal award to each plaintiff. The district court, however, did

grant declaratory relief and ordered that the plaintiffs be allowed

to apply again without paying the requisite fee. Id. at 583.

The district court began by recognizing the proper constitu-

tional standard under which to evaluate the admissions program:

strict scrutiny. Id. at 568. As it was undisputed that the school

had treated applicants disparately based upon the color of their

skin, the court asked whether the law school process (1) served a

compelling government interest and (2) was narrowly tailored to the

achievement of that goal. Under the first prong of the test, the

court held that two of the law school's five proffered reasons met

constitutional muster: (1) "obtaining the educational benefits

that flow from a racially and ethnically diverse student body" and

(2) "the objective of overcoming past effects of discrimination."

Id. at 571.

Significantly, on the second justification, the court rejected

the plaintiffs' argument that the analysis of past discrimination

should be limited to that of the law school; instead, the court

12

held that the State of Texas's "institutions of higher education

are inextricably linked to the primary and secondary schools in the

system." Id.14 Accordingly, the court found that Texas's long

history of racially discriminatory practices in its primary and

secondary schools in its not-too-distant past had the following

present effects at UT law: "the law school's lingering reputation

in the minority community, particularly with prospective students,

as a 'white' school; an underrepresentation of minorities in the

student body; and some perception that the law school is a hostile

environment for minorities." Id. at 572. The court also noted

that "were the Court to limit its review to the University of

Texas, the Court would still find a 'strong evidentiary basis for

concluding that remedial action is necessary.'" Id. (citation

omitted).

The court next evaluated whether the Texas program was

narrowly tailored to further these goals. Id. at 573. Applying a

four-factor test devised by the Supreme Court, the court held only

part of the 1992 admissions scheme unconstitutional. Those parts

that gave minorities a "plus," that is, the component of the

admissions program that treated candidates' TI scores differently

based upon race, was upheld. Id. at 578.

The court held, however, that differential treatment was not

allowed where candidates of different races were not compared at

14

Because of this conclusion, the district court examined at length the

history of race relations in Texas and discrimination in its schools. 861

F. Supp. at 554-57.

13

some point in the admission process. Thus, the court struck down

the school's use of separate admissions committees for applications

in the discretionary zone, id. at 578-79, and in dictum speculated

that presumptive denial lines would not pass muster, as many white

candidates would get no review, while similarly situated minorities

would, id. at 576 n.71.

Though it declared that the law school's 1992 admissions

program violated the plaintiffs' equal protection rights, the court

granted little relief. First, the court did not order that the

plaintiffs be admitted to the law school. Instead, it used what it

saw as analogous title VII caselaw on burden-shifting to hold that

while the state had committed a constitutional violation, the

plaintiffs had the ultimate burden of proving damages. Id. at 579-

80. The court then found that the defendants had proffered a

legitimate, non-discriminatory reason for denying the plaintiffs

admission and that the plaintiffs had not met their burden of

showing that they would have been admitted but for the unlawful

system. Id. at 582.

Moreover, the court held that the plaintiffs were not entitled

to prospective injunctive relief, because "of the law school's

voluntary change to a procedure, which on paper and from the

testimony, appears to remedy the defects the Court has found in the

1992 procedure." Id.15 To pass muster under the court's reasoning,

15

Shortly before trial, apparently in response to the filing of this

lawsuit, the law school modified its 1992 admissions practices to fit the

district court's view of the proper constitutional system. See id. at 582

n.87.

14

the law school simply had to have one committee that at one time

during the process reviewed all applications and did not establish

separate TI numbers to define the presumptive denial categories.

In other words, if the law school applied the same academic

standards, but had commingled the minority review in the discre-

tionary zone with the review of whites, its program would not have

been struck down. The same admissions result would occur, but the

process would be "fair." Id.

Finally, the court determined that the only appropriate relief

was a declaratory judgment and an order allowing the plaintiffs to

reapply to the school without charge. Id. at 582-83. No compensa-

tory or punitive damages, the court reasoned, could be awarded

where the plaintiffs had proven no harm. Moreover, the court

reasoned that as the law school had promised to change its

admissions program by abandoning the two-committee system, no

prospective injunctive relief was justified.

III.

The central purpose of the Equal Protection Clause "is to

prevent the States from purposefully discriminating between

individuals on the basis of race." Shaw v. Reno, 113 S. Ct. 2816,

2824 (1993) (citing Washington v. Davis, 426 U.S. 229, 239 (1976)).

It seeks ultimately to render the issue of race irrelevant in

governmental decisionmaking. See Palmore v. Sidoti, 466 U.S. 429,

432 (1984) ("A core purpose of the Fourteenth Amendment was to do

away with all governmentally imposed discrimination.")(footnote

15

omitted).

Accordingly, discrimination based upon race is highly suspect.

"Distinctions between citizens solely because of their ancestry are

by their very nature odious to a free people whose institutions are

founded upon the doctrine of equality," and "racial discriminations

are in most circumstances irrelevant and therefore prohibited

. . . ." Hirabayashi v. United States, 320 U.S. 81, 100 (1943).

Hence, "[p]referring members of any one group for no reason other

than race or ethnic origin is discrimination for its own sake.

This the Constitution forbids." Regents of Univ. of Cal. v. Bakke,

438 U.S. 265, 307 (1978) (opinion of Powell, J.); see also Loving

v. Virginia, 388 U.S. 1, 11 (1967); Brown v. Board of Educ., 347

U.S. 483, 493-94 (1954). These equal protection maxims apply to

all races. Adarand Constructors v. Peña, 115 S. Ct. 2097, 2111

(1995).

In order to preserve these principles, the Supreme Court

recently has required that any governmental action that expressly

distinguishes between persons on the basis of race be held to the

most exacting scrutiny. See, e.g., id. at 2113; Loving, 388 U.S.

at 11. Furthermore, there is now absolutely no doubt that courts

are to employ strict scrutiny16 when evaluating all racial classifi-

cations, including those characterized by their proponents as

16

In their initial brief on appeal, the defendants argued that interme-

diate scrutiny is appropriate here. In a supplemental brief filed to address

the subsequent opinion in Adarand, they now acknowledge that strict scrutiny

is the appropriate test.

16

"benign" or "remedial."17

Strict scrutiny is necessary because the mere labeling of a

classification by the government as "benign" or "remedial" is

meaningless. As Justice O'Connor indicated in Croson:

Absent searching judicial inquiry into the justifications

for such race-based measures, there is simply no way of

determining what classifications are "benign" or

"remedial" and what classifications are in fact motivated

by illegitimate notions of racial inferiority or simple

racial politics. Indeed, the purpose of strict scrutiny

is to "smoke out" illegitimate uses of race by assuring

that the legislative body is pursuing a goal important

enough to warrant use of a highly suspect tool. The test

also ensures that the means chosen "fit" this compelling

goal so closely that there is little or no possibility

that the motive for the classification was illegitimate

racial prejudice or stereotype.

Id. at 493 (plurality opinion).

Under the strict scrutiny analysis, we ask two questions:

(1) Does the racial classification serve a compelling government

interest, and (2) is it narrowly tailored to the achievement of

that goal? Adarand, 115 S. Ct. at 2111, 2117. As the Adarand

Court emphasized, strict scrutiny ensures that "courts will

consistently give racial classifications . . . detailed examination

both as to ends and as to means." Id.18

17

Adarand, 115 S. Ct. at 2112-13 (overruling Metro Broadcasting, Inc.

v. F.C.C., 497 U.S. 547 (1990), insofar as it applied intermediate scrutiny to

congressionally mandated "benign" racial classifications); City of Richmond v.

J.A. Croson Co., 488 U.S. 469, 495 (1989) (plurality opinion) ("the standard

of review under the Equal Protection Clause is not dependent on the race of

those burdened or benefited by a particular classification"); id. at 520

(Scalia, J., concurring in judgment); Wygant v. Jackson Bd. of Educ., 476 U.S.

267, 273 (1986) (plurality opinion) ("[T]he level of scrutiny does not change

merely because the challenged classification operates against a group that

historically has not been subject to government discrimination.").

18

While Adarand))the Supreme Court's most recent opinion on racial pref-

erences))does not directly address the application of the strict scrutiny

(continued...)

17

Finally, when evaluating the proffered governmental interest

for the specific racial classification, to decide whether the

program in question narrowly achieves that interest, we must

recognize that "the rights created by . . . the Fourteenth

Amendment are, by its terms, guaranteed to the individual. The

rights established are personal rights." Shelley v. Kraemer, 334

U.S. 1, 22 (1948).19 Thus, the Court consistently has rejected

arguments conferring benefits on a person based solely upon his

membership in a specific class of persons.20

With these general principles of equal protection in mind, we

turn to the specific issue of whether the law school's consider-

ation of race as a factor in admissions violates the Equal

Protection Clause. The district court found both a compelling

remedial and a non-remedial justification for the practice.

First, the court approved of the non-remedial goal of having

a diverse student body, reasoning that "obtaining the educational

benefits that flow from a racially and ethnically diverse student

(...continued)

test, it underscores the presumptive unconstitutionality of racial classifica-

tions. "By requiring strict scrutiny of racial classifications, we require

courts to make sure that a government classification based on race, which 'so

seldom provide[s] a relevant basis for disparate treatment,' Fullilove [v.

Klutznick, 448 U.S. 448, 534 (1980)], (Stevens, J., dissenting), is legiti-

mate, before permitting unequal treatment based on race." 115 S. Ct. at 2113.

19

See also Adarand, id. at 2111 ("[A]ny person, of whatever race, has

the right to demand that any government actor subject to the Constitution

justify any racial classification subjecting that person to unequal treatment

under the strictest judicial scrutiny.").

20

See, e.g., Croson, 488 U.S. at 498-500 (holding that past societal

discrimination against a group confers no basis for local governments to pro-

vide a specifically tailored remedy to current members of that group); Wygant,

478 U.S. at 275-76 (rejecting argument that governmental discrimination in

teacher layoffs is allowed to foster role models within a group).

18

body remains a sufficiently compelling interest to support the use

of racial classifications." 861 F. Supp. at 571. Second, the

court determined that the use of racial classifications could be

justified as a remedy for the "present effects at the law school of

past discrimination in both the University of Texas system and the

Texas educational system as a whole." Id. at 573.

A.

1.

Justice Powell's separate opinion in Bakke provided the

original impetus for recognizing diversity as a compelling state

interest in higher education. In that case, Allan Bakke, a white

male, was denied admission to the Medical School of the University

of California at Davis, a state-run institution. Claiming that the

State had discriminated against him impermissibly because it

operated two separate admissions programs for the medical school,

he brought suit under the state constitution, title VI, and the

Equal Protection Clause.

Under the medical school's admissions system, the white

applicants, who comprised the majority of the prospective students,

applied through the general admissions program. A special

admissions program was reserved for members of "minority groups" or

groups designated as "economically and/or educationally disadvan-

taged." The university set aside sixteen of the one hundred

positions in the entering class for candidates from the special

program.

19

The California Supreme Court struck down the program on equal

protection grounds, enjoined any consideration of race in the

admissions process, and ordered that Bakke be admitted. The United

States Supreme Court affirmed in part and reversed in part in an

opinion announced by Justice Powell. 438 U.S. at 271-72 (opinion

of Powell, J.). The Court reached no consensus on a justification

for its result, however. Six Justices filed opinions, none of

which garnered more than four votes (including the writer's). The

two major opinionsSSone four-Justice opinion by Justices Brennan,

White, Marshall, and Blackmun and one by Justice Stevens in which

Chief Justice Burger and Justices Stewart and Rehnquist

joinedSSreflected completely contrary views of the law.

While Justice Powell found the program unconstitutional under

the Equal Protection Clause and affirmed Bakke's admission, Justice

Stevens declined to reach the constitutional issue and upheld

Bakke's admission under title VI. Justice Powell also concluded

that the California Supreme Court's proscription of the consider-

ation of race in admissions could not be sustained. This became

the judgment of the Court, as the four-Justice opinion by Justice

Brennan opined that racial classifications designed to serve

remedial purposes should receive only intermediate scrutiny. These

Justices would have upheld the admissions program under this

intermediate scrutiny, as it served the substantial and benign

purpose of remedying past societal discrimination.

Hence, Justice Powell's opinion has appeared to represent the

"swing vote," and though, in significant part, see id. at 272 n.*,

20

it was joined by no other Justice, it has played a prominent role

in subsequent debates concerning the impact of Bakke.21 In the

present case, the significance of Justice Powell's opinion is its

discussion of compelling state interests under the Equal Protection

Clause. See id. at 305-15. Specifically, after Justice Powell

recognized that the proper level of review for racial

classifications is strict scrutiny, id. at 305-06, he rejected and

accepted respective justifications for the school's program as

"substantial enough to support the use of a suspect classifica-

tion," id. at 306. Notably, because the first step in

reviewing an affirmative action program is a determination of the

state's interests at stake,22 it often is the determinative step.

Justice Powell outlined the four state interests proffered by the

Bakke defendants:

The special admissions program purports to serve the

purposes of: (i) "reducing the historic deficit of

traditionally disfavored minorities in medical schools

and in the medical profession,"; (ii) countering the

effects of societal discrimination; (iii) increasing the

number of physicians who will practice in communities

currently underserved; and (iv) obtaining the educational

benefits that flow from an ethnically diverse student

body.

21

See, e.g., Vincent Blasi, Bakke as Precedent: Does Mr. Justice

Powell Have a Theory?, 67 CAL. L. REV. 21, 24 (1979) (arguing that Bakke's

precedential force is governed by the common conclusions of Justices Powell

and Stevens, though it is erroneous to conclude that Powell's opinion has

"controlling significance on all questions"); Robert G. Dixon, Jr., Bakke: A

Constitutional Analysis, 67 CAL. L. REV. 69 (1979) (Justice Powell's

"tiebreaking opinion . . . has acquired wide pragmatic appeal.").

22

As affirmative action programs are by definition purposeful classifi-

cations by race, they do not present the problem of governmental action that

is facially neutral but has a disparate impact and is motivated by race. See

City of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252

(1977); Washington v. Davis, 426 U.S. 229 (1976).

21

Id. at 305-06 (emphasis added, citation and footnote omitted).

Justice Powell reasoned that the second and third justifica-

tionsSSremedying societal discrimination and providing role

modelsSSwere never appropriate.23 He determined that any remedial

justification was limited to eliminating "identified discrimina-

tion" with "disabling effects." Id. at 307 (citing the school

desegregation cases). He specifically emphasized that a particu-

larized finding of a constitutional or statutory violation must be

present before a remedy is justified. He determined not only that

such findings were not present in Bakke, but that the medical

school was not even in a position to make such findings. Id. at

309.

Justice Powell further reasoned that diversity is a sufficient

justification for limited racial classification. Id. at 311-16.

"[The attainment of a diverse student body] clearly is a constitu-

tionally permissible goal for an institution of higher education."

Id. at 311. He argued that diversity of minorities' viewpoints

furthered "academic freedom," an interest under the Constitution.

While acknowledging that "academic freedom" does not appear as a

constitutional right, he argued that it had "long . . . been viewed

as a special concern of the First Amendment." Id. at 312.24

23

The Supreme Court subsequently has agreed with that position. See

Wygant, 476 U.S. at 274-76 (plurality opinion). The district court a quo

erred in suggesting that societal discrimination is constitutionally cogniza-

ble. See 861 F. Supp. at 570 n.56, 571 n.60.

24

See also Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frank-

furter, J., concurring in result) (recognizing four separate components of

"academic freedom").

22

Justice Powell presented this "special concern" as in tension

with the Fourteenth Amendment. "Thus, in arguing that its

universities must be accorded the right to select those students

who will contribute the most to the 'robust exchange of ideas,'

petitioner invokes a countervailing constitutional interest, that

of the First Amendment." Id. at 313.25 The Justice then concluded

that

[a]n otherwise qualified medical student with a particu-

lar background))whether it be ethnic, geographic,

culturally advantaged or disadvantaged))may bring to a

professional school of medicine experiences, outlooks,

and ideas that enrich the training of its student body

and better equip its graduates to render with understand-

ing their vital service to humanity.

Id. at 314 (footnote omitted). Justice Powell therefore approved

of a consideration of ethnicity as "one element in a range of

factors a university properly may consider in attaining the goal of

a heterogeneous student body." Id.

The next step for Justice Powell was to decide whether the

medical school's program was necessary to further the goal of

diversity. He said it was not. As the program made race the only

determining factor for a certain number of the open spots that had

25

Saying that a university has a First Amendment interest in this con-

text is somewhat troubling. Both the medical school in Bakke and, in our

case, the law school are state institutions. The First Amendment generally

protects citizens from the actions of government, not government from its

citizens.

Significantly, Sweezy involved a person who was called before the Attor-

ney General of New Hampshire to answer for alleged subversive activities. He

declined on First Amendment grounds to answer questions about a lecture he had

delivered at the University of New Hampshire. While Justice Frankfurter spoke

of a university's interest in openness and free inquiry, it was plainly

through the First Amendment rights of individual scholars. 354 U.S. at 262,

266-67 (Frankfurter, J., concurring in result).

23

been set aside, it did not further full diversity but only a

conception of that term limited to race.

Justice Powell speculated that a program in which "race or

ethnic background may be deemed a 'plus' in a particular appli-

cant's file, yet does not insulate the individual from comparison

with all the other candidates for the available seats," might pass

muster. Id. at 317. The Justice did not define what he meant by

a "plus," but he did write that a "plus" program would be one in

which an

applicant who loses out to another candidate receiving a

'plus' on the basis of ethnic background will not have

been foreclosed from all consideration for that seat

simply because he was not the right color or had the

wrong surname. It would only mean that his combined

qualifications, which may have included similar nonobjec-

tive factors, did not outweigh those of another appli-

cant. His qualifications would have been weighted fairly

and competitively, and he would have no basis to com-

plaint of unequal treatment under the Fourteenth Amend-

ment.

Id. at 318.

Under this conception of the Fourteenth Amendment, a program

that considered a host of factors that include race would be

constitutional, even if an applicant's race "tipped the scales"

among qualified applicants. What a school could not do is to

refuse to compare applicants of different races or establish a

strict quota on the basis of race. In sum, Justice Powell found

the school's program to be an unconstitutional "quota" system, but

he intimated that the Constitution would allow schools to continue

to use race in a wide-ranging manner.

24

2.

Here, the plaintiffs argue that diversity is not a compelling

governmental interest under superseding Supreme Court precedent.

Instead, they believe that the Court finally has recognized that

only the remedial use of race is compelling. In the alternative,

the plaintiffs assert that the district court misapplied Justice

Powell's Bakke standard, as the law school program here uses race

as a strong determinant rather than a mere "plus" factor and, in

any case, the preference is not narrowly applied. The law school

maintains, on the other hand, that Justice Powell's formulation in

Bakke is law and must be followedSSat least in the context of

higher education.

We agree with the plaintiffs that any consideration of race or

ethnicity by the law school for the purpose of achieving a diverse

student body is not a compelling interest under the Fourteenth

Amendment. Justice Powell's argument in Bakke garnered only his

own vote and has never represented the view of a majority of the

Court in Bakke or any other case. Moreover, subsequent Supreme

Court decisions regarding education state that non-remedial state

interests will never justify racial classifications. Finally, the

classification of persons on the basis of race for the purpose of

diversity frustrates, rather than facilitates, the goals of equal

protection.

Justice Powell's view in Bakke is not binding precedent on

this issue. While he announced the judgment, no other Justice

joined in that part of the opinion discussing the diversity

25

rationale. In Bakke, the word "diversity" is mentioned nowhere

except in Justice Powell's single-Justice opinion. In fact, the

four-Justice opinion, which would have upheld the special admis-

sions program under intermediate scrutiny, implicitly rejected

Justice Powell's position. See 438 U.S. at 326 n.1 (Brennan,

White, Marshall, and Blackmun JJ., concurring in the judgment in

part and dissenting) ("We also agree with Mr. Justice POWELL that

a plan like the "Harvard" plan . . . is constitutional under our

approach, at least so long as the use of race to achieve an

integrated student body is necessitated by the lingering effects of

past discrimination.") (emphasis added). Justice Stevens declined

to discuss the constitutional issue. See id. at 412 (Stevens, J.,

concurring in the judgment in part and dissenting in part).

Thus, only one Justice concluded that race could be used

solely for the reason of obtaining a heterogenous student body. As

the Adarand Court states, the Bakke Court did not express a

majority view and is questionable as binding precedent. 115 S. Ct.

at 2109 ("The Court's failure in Bakke . . . left unresolved the

proper analysis for remedial race-based government action.").

Since Bakke, the Court has accepted the diversity rationale

only once in its cases dealing with race. Significantly, however,

in that case, Metro Broadcasting, Inc. v. Federal Communications

Comm'n, 497 U.S. 547, 564-65 (1990), the five-Justice majority

relied upon an intermediate scrutiny standard of review to uphold

the federal program seeking diversity in the ownership of broad-

casting facilities. In Adarand, 115 S. Ct. at 2112-13, the Court

26

squarely rejected intermediate scrutiny as the standard of review

for racial classifications, and Metro Broadcasting is now specifi-

cally overruled to the extent that it was in conflict with this

holding. Id. at 2113. No case since Bakke has accepted diversity

as a compelling state interest under a strict scrutiny analysis.

Indeed, recent Supreme Court precedent shows that the

diversity interest will not satisfy strict scrutiny. Foremost, the

Court appears to have decided that there is essentially only one

compelling state interest to justify racial classifications:

remedying past wrongs. In Croson, 488 U.S. at 493 (plurality

opinion), the Court flatly stated that "[u]nless [racial classifi-

cations] are strictly reserved for remedial settings, they may in

fact promote notions of racial inferiority and lead to a politics

of racial hostility." (emphasis added).26

Justice O'Connor, in her Adarand-vindicated dissent in Metro

Broadcasting, joined by Justices Rehnquist, Scalia, and Kennedy,

explained this position:

Modern equal protection has recognized only one [compel-

26

See also Milwaukee County Pavers Ass'n v. Fielder, 922 F.2d 419, 422

(7th Cir.) ("The whole point of Croson is that disadvantage, diversity, or

other grounds favoring minorities will not justify governmental racial dis-

crimination . . .; only a purpose of remedying discrimination against minori-

ties will do so.") (emphasis added), cert. denied, 500 U.S. 954 (1991).

Notably, Justice Scalia rejected the use of racial classifications "in

order (in a broad sense) 'to ameliorate the effects of past discrimination.'"

Croson, 488 U.S. at 520 (Scalia, J., concurring in the judgment) (quoting

Croson, 488 U.S. at 476-77). He, however, suggested one other possible com-

pelling state interest: a social emergency. He opined that "where state or

local action is at issue, only a social emergency rising to the level of immi-

nent danger to life and limb" will justify racial classifications. Croson,

488 U.S. at 521 (Scalia, J., concurring in judgment). While such an interest

is probably consistent with the widely criticized holdings of Hirabayashi v.

United States, 320 U.S. 81 (1943), and Korematsu v. United States, 323 U.S.

214 (1944), plainly such an interest is not presented in this case.

27

ling state] interest: remedying the effects of racial

discrimination. The interest in increasing the diversity

of broadcast viewpoints is clearly not a compelling

interest. It is simply too amorphous, too insubstantial,

and too unrelated to any legitimate basis for employing

racial classifications.

497 U.S. at 612 (O'Connor, J., dissenting). Indeed, the majority

in Metro Broadcasting had not claimed otherwise and decided only

that such an interest was "important." Justice Thomas, who joined

the Court after Metro Broadcasting was decided, roundly condemned

"benign" discrimination in his recent Adarand opinion, in which he

suggests that the diversity rationale is inadequate to meet strict

scrutiny. See Adarand, 115 S. Ct. at 2119 (Thomas, J., concurring

in part and concurring in judgment).27

In short, there has been no indication from the Supreme Court,

other than Justice Powell's lonely opinion in Bakke, that the

state's interest in diversity constitutes a compelling justifica-

tion for governmental race-based discrimination. Subsequent

Supreme Court caselaw strongly suggests, in fact, that it is not.

Within the general principles of the Fourteenth Amendment, the

use of race in admissions for diversity in higher education

27

The law school places much reliance upon Justice O'Connor's concur-

rence in Wygant for the proposition that Justice Powell's Bakke formulation is

still viable. In her 1986 Wygant opinion, in the context of discussing Jus-

tice Powell's opinion, Justice O'Connor noted that "although its precise con-

tours are uncertain, a state interest in the promotion of racial diversity has

been found sufficiently 'compelling,' at least in the context of higher educa-

tion, to support the use of racial considerations in furthering that inter-

est." 476 U.S. at 286 (O'Connor, J., concurring in part and concurring in the

judgment).

The law school's argument is not persuasive. Justice O'Connor's state-

ment is purely descriptive and did not purport to express her approval or

disapproval of diversity as a compelling interest. Her subsequent statements

outlined above in Croson and Metro Broadcasting suggest strongly that reliance

upon this statement in Wygant is unjustified.

28

contradicts, rather than furthers, the aims of equal protection.

Diversity fosters, rather than minimizes, the use of race. It

treats minorities as a group, rather than as individuals. It may

further remedial purposes but, just as likely, may promote improper

racial stereotypes, thus fueling racial hostility.

The use of race, in and of itself, to choose students simply

achieves a student body that looks different. Such a criterion is

no more rational on its own terms than would be choices based upon

the physical size or blood type of applicants. Thus, the Supreme

Court has long held that governmental actors cannot justify their

decisions solely because of race. See, e.g., Croson, 488 U.S. at

496 (plurality opinion); Bakke, 438 U.S. at 307 (opinion of

Powell, J.).

Accordingly, we see the caselaw as sufficiently established

that the use of ethnic diversity simply to achieve racial

heterogeneity, even as part of the consideration of a number of

factors, is unconstitutional. Were we to decide otherwise, we

would contravene precedent that we are not authorized to challenge.

While the use of race per se is proscribed, state-supported

schools may reasonably consider a host of factors))some of which

may have some correlation with race))in making admissions deci-

sions. The federal courts have no warrant to intrude on those

executive and legislative judgments unless the distinctions intrude

on specific provisions of federal law or the Constitution.

A university may properly favor one applicant over another

because of his ability to play the cello, make a downfield tackle,

29

or understand chaos theory. An admissions process may also

consider an applicant's home state or relationship to school

alumni. Law schools specifically may look at things such as

unusual or substantial extracurricular activities in college, which

may be atypical factors affecting undergraduate grades. Schools

may even consider factors such as whether an applicant's parents

attended college or the applicant's economic and social

background.28

For this reason, race often is said to be justified in the

diversity context, not on its own terms, but as a proxy for other

characteristics that institutions of higher education value but

that do not raise similar constitutional concerns.29 Unfortunately,

this approach simply replicates the very harm that the Fourteenth

Amendment was designed to eliminate.

The assumption is that a certain individual possesses

characteristics by virtue of being a member of a certain racial

group. This assumption, however, does not withstand scrutiny.

"[T]he use of a racial characteristic to establish a presumption

that the individual also possesses other, and socially relevant,

characteristics, exemplifies, encourages, and legitimizes the mode

of thought and behavior that underlies most prejudice and bigotry

in modern America." Richard A. Posner, The DeFunis Case and the

28

The law school's admissions program makes no distinction among black

and Mexican American applicants in an effort to determine which of them, for

example, may have been culturally or educationally disadvantaged.

29

For example, Justice Powell apparently felt that persons with differ-

ent ethnic backgrounds would bring diverse "experiences, outlooks, and ideas"

to the medical school. Bakke, 438 U.S. at 314 (opinion of Powell, J.).

30

Constitutionality of Preferential Treatment of Racial Minorities,

1974 SUP. CT. REV. 12 (1974).

To believe that a person's race controls his point of view is

to stereotype him. The Supreme Court, however, "has remarked a

number of times, in slightly different contexts, that it is

incorrect and legally inappropriate to impute to women and

minorities 'a different attitude about such issues as the federal

budget, school prayer, voting, and foreign relations.'" Michael S.

Paulsen, Reverse Discrimination and Law School Faculty Hiring: The

Undiscovered Opinion, 71 TEX. L. REV. 993, 1000 (1993) (quoting

Roberts v. United States Jaycees, 468 U.S. 609, 627-28 (1984)).

"Social scientists may debate how peoples' thoughts and behavior

reflect their background, but the Constitution provides that the

government may not allocate benefits or burdens among individuals

based on the assumption that race or ethnicity determines how they

act or think." Metro Broadcasting, 497 U.S. at 602 (O'Connor, J.,

dissenting).30

Instead, individuals, with their own conceptions of life,

further diversity of viewpoint. Plaintiff Hopwood is a fair

example of an applicant with a unique background. She is the now-

thirty-two-year-old wife of a member of the Armed Forces stationed

30

Thus, to put it simply, under the Equal Protection Clause

the distribution of benefits and costs by government on racial or

ethnic grounds is impermissible. Even though it is frequently

efficient to sort people by race or ethnic origin, because racial

or ethnic identity may be a good proxy for functional classifica-

tions, efficiency is rejected as a basis for governmental action

in this context.

Posner, supra, at 22.

31

in San Antonio and, more significantly, is raising a severely

handicapped child. Her circumstance would bring a different

perspective to the law school. The school might consider this an

advantage to her in the application process, or it could decide

that her family situation would be too much of a burden on her

academic performance.

We do not opine on which way the law school should weigh

Hopwood's qualifications; we only observe that "diversity" can take

many forms. To foster such diversity, state universities and law

schools and other governmental entities must scrutinize applicants

individually, rather than resorting to the dangerous proxy of

race.31

The Court also has recognized that government's use of racial

classifications serves to stigmatize. See, e.g., Brown v. Board of

Educ., 347 U.S. 483, 494 (1954) (observing that classification on

the basis of race "generates a feeling of inferiority"). While one

might argue that the stigmatization resulting from so-called

31

We recognize that the use of some factors such as economic or educa-

tional background of one's parents may be somewhat correlated with race. This

correlation, however, will not render the use of the factor unconstitutional

if it is not adopted for the purpose of discriminating on the basis of race.

See McCleskey v. Kemp, 481 U.S. 279 (1987). As Justice O'Connor indicated in

Hernandez v. New York, 500 U.S. 352 (1991), which was a challenge under Batson

v. Kentucky, 476 U.S. 79 (1986), based upon the prosecution's strike of poten-

tial jurors who spoke Spanish:

No matter how closely tied or significantly correlated to race the

explanation for a peremptory strike may be, the strike does not

implicate the Equal Protection Clause unless it is based on race.

That is the distinction between disproportionate effect, which is

not sufficient to constitute an equal protection violation, and

intentional discrimination, which is.

500 U.S. at 375 (O'Connor, J., joined by Scalia, J., concurring in the judg-

ment).

32

"benign" racial classifications is not as harmful as that arising

from invidious ones,32 the current Court has now retreated from the

idea that so-called benign and invidious classifications may be

distinguished.33 As the plurality in Croson warned,

"[c]lassifications based on race carry the danger of stigmatic

harm. Unless they are reserved for remedial settings, they may in

fact promote notions of racial inferiority and lead to the politics

of racial hostility." 488 U.S. at 493.34

32

According to one of the four-Justice opinions in Bakke, racial clas-

sifications stigmatize when "they are drawn on the presumption that one race

is inferior to another or because they put the weight of government behind

racial hatred and separation." 438 U.S. at 357-58 (Brennan, White, Marshall,

and Blackmun, JJ., concurring in the judgment in part and dissenting in part).

In Bakke, however, these Justices rejected strict scrutiny because the program

at issue could not be said to stigmatize as did other racial classifications.

These Justices nevertheless recognized that rational-basis scrutiny would not

be enough. Id. at 361 (Brennan, White, Marshall, and Blackmun, JJ., concur-

ring in the judgment in part and dissenting in part).

33

As Judge Posner has indicated,

the proper constitutional principle is not, no "invidious" racial

or ethnic discrimination, but no use of racial or ethnic criteria

to determine the distribution of government benefits and

burdens . . . . To ask whether racial exclusion may not have

overriding benefits for both races in particular circumstances is

to place the antidiscrimination principle at the mercy of the

vagaries of empirical conjecture and thereby free the judge to

enact his personal values into constitutional doctrine.

Posner, supra, at 25-26.

34

See also Adarand, 115 S. Ct. at 2119 (Thomas, J., concurring in part

and concurring in judgment) ("But there can be no doubt that racial

paternalism and its unintended consequences may be as poisonous and pernicious

as any other form of discrimination."). One prominent constitutional

commentator specifically has noted that where programs involve lower and

separate standards of selection, "a new badge of implied inferiority, assigned

as an incident of governmental noblesse oblige," results.

Explicit in state, local, or federal plans using separate

and lower standards by race is a statement by government that

certain persons identified by race are in fact being placed in

positions they may be presumed not likely to hold but for their

race (because they are presumed to be unable to meet standards the

government itself requires to be met). The message from

government is written very large when these plans proliferate: a

(continued...)

33

Finally, the use of race to achieve diversity undercuts the

ultimate goal of the Fourteenth Amendment: the end of racially-

motivated state action. Justice Powell's conception of race as a

"plus" factor would allow race always to be a potential factor in

admissions decisionmaking. While Justice Blackmun recognized the

tension inherent in using race-conscious remedies to achieve a

race-neutral society, he nevertheless accepted it as necessary.

Bakke, 438 U.S. at 405. Several Justices who, unlike Justices

Powell and Blackmun, are still on the Court, have now renounced

toleration of this tension, however. See Croson, 488 U.S. at 495

(plurality opinion of O'Connor, J.) ("The dissent's watered down

version of equal protection review effectively assures that race

will always be relevant in American life, and that the 'ultimate

goal' of 'eliminat[ing] entirely from government decisionmaking

such irrelevant factors as a human being's race . . . will never be

achieved.") (quoting Wygant, 476 U.S. at 320 (Stevens, J.,

dissenting)).35

(...continued)

double (and softer) standard for admission, a double (and softer) standard for

hiring, a double (and softer) standard for promotion, a double (and softer)

standard for competitive bidding, and so on. Without question, this is a

systematic racial tagging by governmentSSa communication to others that the

race of the individual they deal with bespeaks a race-related probability,

created solely by the government itself, of lesser qualification than others

holding equivalent positions.

William Van Alstyne, Rites of Passage: Race, the Supreme Court, and the

Constitution, 46 U. CHI. L. REV. 775, 787 n.38 (1979).

35

As professor Van Alstyne has argued:

Rather, one gets beyond racism by getting beyond it now: by a

complete, resolute, and credible commitment never to tolerate in

one's own life))or in the life or practices of one's

government))the differential treatment of other human beings by

(continued...)

34

In sum, the use of race to achieve a diverse student body,

whether as a proxy for permissible characteristics, simply cannot

be a state interest compelling enough to meet the steep standard of

strict scrutiny.36 These latter factors may, in fact, turn out to

be substantially correlated with race, but the key is that race

itself not be taken into account. Thus, that portion of the

district court's opinion upholding the diversity rationale is

reversibly flawed.37

B.

We now turn to the district court's determination that "the

remedial purpose of the law school's affirmative action program is

(...continued)

race. Indeed, that is the great lesson for government itself to

teach: in all we do in life, whatever we do in life, to treat any

person less well than another or to favor any more than another

for being black or white or brown or red, is wrong. Let that be

our fundamental law and we shall have a Constitution universally

worth expounding.

Van Alstyne, supra note 34, at 809-10.

36

Because we have determined that any consideration of race by the law

school is constitutionally impermissible if justified by diversity, it is not

necessary to determine whether, as plaintiffs argue, the admissions system

under which the plaintiffs applied operated as a de facto "quota" system

similar to the one struck down in Bakke. We do note that even if a "plus"

system were permissible, it likely would be impossible to maintain such a

system without degeneration into nothing more than a "quota" program. See

Bakke, 438 U.S. at 378 ("For purposes of constitutional adjudication, there is

no difference between [setting aside a certain number of places for minorities

and using minority status as a positive factor].") (Brennan, White, Marshall,

and Blackmun, JJ., concurring in the judgment in part and dissenting in part).

Indeed, in this case, the law school appeared to be especially adept at

meeting its yearly "goals." See Hopwood, 861 F. Supp. at 574 n.67.

37

Plaintiffs additionally have argued that the law school's program

was not narrowly tailored in the diversity context because (1) it failed to

award preferences to non-Mexican Hispanic Americans, Asian Americans, American

Indians, or other minorities, and (2) it failed to accord as much weight to

non-racial diversity factors, such as religion and socioeconomic background,

as it did to race.

35

a compelling government objective." 861 F. Supp. at 573. The

plaintiffs argue that the court erred by finding that the law

school could employ racial criteria to remedy the present effects

of past discrimination in Texas's primary and secondary schools.

The plaintiffs contend that the proper unit for analysis is the law

school, and the state has shown no recognizable present effects of

the law school's past discrimination. The law school, in response,

notes Texas's well-documented history of discrimination in

education and argues that its effects continue today at the law

school, both in the level of educational attainment of the average

minority applicant and in the school's reputation.

In contrast to its approach to the diversity rationale, a

majority of the Supreme Court has held that a state actor may

racially classify where it has a "strong basis in the evidence for

its conclusion that remedial action was necessary." Croson, 488

U.S. at 500 (quoting Wygant, 476 U.S. at 277 (plurality opinion)).

Generally, "[i]n order to justify an affirmative action program,

the State must show there are 'present effects of past

discrimination.'" Hopwood v. Texas ("Hopwood I"),38 21 F.3d 603,

605 (5th Cir. 1994) (per curiam) (quoting Podberesky v. Kirwan, 956

F.2d 52, 57 (4th Cir. 1992), cert. denied, 115 S. Ct. 2001 (1995));

see also Wygant, 476 U.S. at 280 (opining that "in order to remedy

the effects of prior discrimination, it may be necessary to take

38

Hopwood I is the first appeal of the intervention issue that we

address infra.

36

race into account") (opinion of Powell, J.).39

Because a state does not have a compelling state interest in

remedying the present effects of past societal discrimination,

however, we must examine the district court's legal determination

that the relevant governmental entity is the system of education

within the state as a whole. Moreover, we also must review the

court's identification of what types of present effects of past

discrimination, if proven, would be sufficient under strict

scrutiny review. Finally, where the state actor puts forth a

39

Unfortunately, the precise scope of allowable state action is of

somewhat undefined contours. Indeed, it is not evident whether permitted

remedial action extends to the "present effects of past discrimination." This

language, derived from Justice Brennan's opinion in Bakke, 438 U.S. at 362-66,

appears intended to present little resistance to wide-ranging affirmative

action plans.

While Justice Brennan began by stating that schools have a duty

affirmatively to erase the vestiges of their past discriminatory practices, he

compared this duty to the power of Congress to enforce § 1 of the Fourteenth

Amendment through § 5. He reasoned that under that wide-ranging power, the

beneficiaries of such a program need not present proof that they were

discriminated against; a showing that they were in the general class was

sufficient.

Id. at 363-64. Nor would a school need judicial findings of past

discrimination. Id. at 364. Finally, he argued that such beneficiaries would

not even

have to show that that school had a history of past discrimination, but need

only suggest that they were the victims of general societal discrimination

that prevented them from being otherwise qualified to enter the school. Id.

at 365-66. Hence, under this standard, almost any school could adopt an

affirmative action plan.

There is no question, however, that subsequent Supreme Court opinions,

notably Wygant and Croson, have rejected broad state programs that purport to

be remedial and that, presumably, would have satisfied Justice Brennan's

standard for meeting the "present effects of past discrimination." And some

members of the Court would limit any remedial purpose to the actual victims of

discrimination. See Adarand, 115 S. Ct. at 2118 (Scalia, J., concurring in

part and concurring in judgment) ("[G]overnment can never have a 'compelling

interest' in discriminating on the basis of race in order to 'make up' for

past racial discrimination in the opposite direction."). Nevertheless, we will

not eschew use of the phrase "present effects of past discrimination," as we

used this language in Hopwood I, 21 F.3d at 605, and another circuit did so in

Podberesky v. Kirwan, 38 F.3d 147, 153 (4th Cir. 1994), cert. denied, 115

S. Ct. 2001 (1995). We will, however, limit its application in accordance

with Wygant and Croson.

37

remedial justification for its racial classifications, the district

court must make a "factual determination" as to whether remedial

action is necessary. Wygant, 476 U.S. at 277-78. We review such

factual rulings for clear error.

1.

The Supreme Court has "insisted upon some showing of prior

discrimination by the governmental unit involved before allowing

limited use of racial classifications in order to remedy such

discrimination." Wygant, 476 U.S. at 274 (plurality opinion of

Powell, J.) (citing Hazelwood School Dist. v. United States, 433

U.S. 299 (1977)).40 In Wygant, the Court analyzed a collective

bargaining agreement between a school board and a teacher's union

that allowed the board to give minorities preferential treatment in

the event of layoffs. A plurality rejected the theory that such a

program was justified because it provided minority role models.

Id. at 274-77 (plurality opinion). Such a claim was based upon

remedying "societal discrimination," a rationale the Court

consistently has rejected as a basis for affirmative action.

Accordingly, the state's use of remedial racial classifications is

limited to the harm caused by a specific state actor.41

40

See Wygant, 476 U.S. at 286 (opinion of O'Connor, J., concurring in

part and concurring in judgment) ("The Court is in agreement that whatever the

formulation employed, remedying past or present racial discrimination by a

state actor is a sufficiently weighty state interest to warrant remedial use

of a carefully constructed affirmative action program.").

41

See also id. at 288 (O'Connor, J., concurring in part and concurring

in judgment) ("I agree with the plurality that a government agency's interest

(continued...)

38

Moreover, the plurality in Wygant held that before a state

actor properly could implement such a plan, it "must ensure that

. . . it has strong evidence that remedial action is warranted."

Id. at 277. Accord id. at 289 (O'Connor, J., concurring in part

and concurring in judgment). The plurality felt that "[i]n the

absence of particularized findings, a court could uphold remedies

that are ageless in their reach into the past, and timeless in

their ability to affect the future." Id. at 276.

The Croson Court further discussed how to identify the

relevant past discriminator. Writing for the Court, Justice

O'Connor struck down a minority business set-aside program

implemented by the City of Richmond and justified on remedial

grounds. While the district court opined that sufficient evidence

had been found by the city to believe that such a program was

necessary to remedy the present effects of past discrimination in

the construction industry, the Court held:

Like the "role model" theory employed in Wygant, a

generalized assertion that there had been past

discrimination in an entire industry provides no guidance

for a legislative body to determine the precise scope of

the injury it seeks to remedy. It 'has no logical

stopping point.' Wygant, 476 U.S. at 275 (plurality

opinion). 'Relief' for such an ill-defined wrong could

extend until the percentage of public contracts awarded

to [minority businesses] in Richmond mirrored the

percentage of minorities in the population as a whole.

(...continued)

in remedying 'societal' discrimination, that is discrimination not traceable

to its own actions, cannot be deemed sufficiently compelling to pass

constitutional muster under strict scrutiny.").

39

488 U.S. at 498.42 The Court refused to accept indicia of past

discrimination in anything but "the Richmond construction

industry." Id. at 505.

In addition, in a passage of particular significance to the

instant case, the Court analogized the employment contractor

situation to that of higher education and noted that "[l]ike claims

that discrimination in primary and secondary schooling justifies a

rigid racial preference in medical school admissions, an amorphous

claim that there has been past discrimination in a particular

industry cannot justify the use of an unyielding quota." Id. at

499. Such claims were based upon "sheer speculation" about how

many minorities would be in the contracting business absent past

discrimination. Id.

Applying the teachings of Croson and Wygant, we conclude that

the district court erred in expanding the remedial justification to

reach all public education within the State of Texas. The Supreme

Court repeatedly has warned that the use of racial remedies must be

carefully limited, and a remedy reaching all education within a

state addresses a putative injury that is vague and amorphous. It

has "no logical stopping point." Wygant, 476 U.S. at 275

(plurality opinion).

The district court's holding employs no viable limiting

principle. If a state can "remedy" the present effects of past

discrimination in its primary and secondary schools, it also would

42

Justice O'Connor was joined by Chief Justice Rehnquist and Justices

White, Stevens, and Kennedy in this portion of the opinion.

40

be allowed to award broad-based preferences in hiring, government

contracts, licensing, and any other state activity that in some way

is affected by the educational attainment of the applicants. This

very argument was made in Croson and rejected:

The "evidence" relied upon by the dissent, history of

school desegregation in Richmond and numerous

congressional reports, does little to define the scope of

any injury to minority contractors in Richmond or the

necessary remedy. The factors relied upon by the dissent

could justify a preference of any size or duration.

488 U.S. at 505. The defendants' argument here is equally

expansive.43

Strict scrutiny is meant to ensure that the purpose of a

racial preference is remedial. Yet when one state actor begins to

justify racial preferences based upon the actions of other state

agencies, the remedial actor's competence to determine the

existence and scope of the harmSSand the appropriate reach of the

remedySSis called into question. The school desegregation cases,

for example, concentrate on school districtsSSsingular government

unitsSSand the use of interdistrict remedies is strictly limited.

See Missouri v. Jenkins, 115 S. Ct. 2038, 2048 (1995); Milliken v.

Bradley, 418 U.S. 717, 745 (1974) ("[W]ithout an interdistrict

violation and interdistrict effect, there is no constitutional

wrong calling for an interdistrict remedy."). Thus, one

43

The fact that the plaintiffs named the State of Texas as one

defendant does not mean that it is proper to scrutinize the state as the

relevant past discriminator. This argument confuses a theory of liability

with a justification for a limited racial remedy. The State of Texas simply

may be responsible for the wrongs of the law school, which is a governmental

entity the state has created. The Supreme Court, however, has limited the

remedial interest to the harm wrought by a specific governmental unit.

41

justification for limiting the remedial powers of a state actor is

that the specific agency involved is best able to measure the harm

of its past discrimination.

Here, however, the law school has no comparative advantage in

measuring the present effects of discrimination in primary and

secondary schools in Texas. Such a task becomes even more

improbable where, as here, benefits are conferred on students who

attended out-of-state or private schools for such education. Such

boundless "remedies" raise a constitutional concern beyond mere

competence. In this situation, an inference is raised that the

program was the result of racial social engineering rather a desire

to implement a remedy.

No one disputes that in the past, Texas state actors have

discriminated against some minorities in public schools. In this

sense, some lingering effects of such discrimination is not

"societal," if that term is meant to exclude all state action. But

the very program at issue here shows how remedying such past wrongs

may be expanded beyond any reasonable limits.

Even if, arguendo, the state is the proper government unit to

scrutinize, the law school's admissions program would not withstand

our review. For the admissions scheme to pass constitutional

muster, the State of Texas, through its legislature, would have to

find that past segregation has present effects; it would have to

determine the magnitude of those present effects; and it would need

to limit carefully the "plus" given to applicants to remedy that

harm. A broad program that sweeps in all minorities with a remedy

42

that is in no way related to past harms cannot survive

constitutional scrutiny. Obviously, none of those predicates has

been satisfied here.

We further reject the proposition that the University of Texas

System, rather than the law school, is the appropriate governmental

unit for measuring a constitutional remedy. The law school

operates as a functionally separate unit within the system. As

with all law schools, it maintains its own separate admissions

program. The law school hires faculty members that meet the unique

requirements of a law school and has its own deans for

administrative purposes. Thus, for much the same reason that we

rejected the educational system as the proper measureSSgenerally

ensuring that the legally-imposed racially discriminatory program

is remedialSSwe conclude that the University of Texas System is

itself too expansive an entity to scrutinize for past

discrimination.44

44

And again, any such remedy here would be grossly speculative. As the

defendants concede and the district court found, there is no recent history of

overt sanctioned discrimination at the University of Texas. Hopwood, 861

F. Supp. at 572. Nor does the record even suggest such discrimination at any

of the other component schools of the University of Texas System. Thus, any

harm caused to the students of those institutions would be the result of the

present effects of past discrimination.

We do note that the law school is not autonomous. In Texas, the

management of higher education has been divided by the legislature into

different "systems." See 12 TEX. JUR. 3D, Colleges and Universities § 2 (1993).

The

University of Texas at Austin, with which the law school is associated, is

part of the University of Texas System. TEX. EDUC. CODE ANN. §§ 67.01 to 67.62

(West 1991). Accordingly, the legislature, which has ultimate control over

the school, has delegated its "management and control" to the regents of the

University of Texas System. Id. § 67.02. Thus, the law school is governed by

both the legislature and the university's board of regents.

Yet, while the state's higher authorities may have the power to require

the law school to remedy its past wrongs, they may do so consistently with the

(continued...)

43

In sum, for purposes of determining whether the law school's

admissions system properly can act as a remedy for the present

effects of past discrimination, we must identify the law school as

the relevant alleged past discriminator. The fact that the law

school ultimately may be subject to the directives of others, such

as the board of regents, the university president, or the

legislature, does not change the fact that the relevant putative

discriminator in this case is still the law school. In order for

any of these entities to direct a racial preference program at the

law school, it must be because of past wrongs at that school.

2.

Next, the relevant governmental discriminator must prove that

there are present effects of past discrimination of the type that

justify the racial classifications at issue:

To have a present effect of past discrimination

sufficient to justify the program, the party seeking to

implement the program must, at a minimum, prove that the

effect it proffers is caused by the past discrimination

and that the effect is of sufficient magnitude to justify

the program.

Podberesky v. Kirwan, 38 F.3d 147, 153 (4th Cir. 1994), cert.

denied, 115 S. Ct. 2001 (1995). Moreover, as part of showing that

the alleged present effects of past discrimination in fact justify

the racial preference program at issue, the law school must show

(...continued)

Constitution only if the remedial actions are directed at the law school.

This requirement is what the Supreme Court dictated by limiting the remedial

purpose to the "governmental unit involved." Wygant, 476 U.S. at 274

(plurality opinion).

44

that it adopted the program specifically to remedy the identified

present effects of the past discrimination.

Here, according to the district court: "The evidence

presented at trial indicates those effects include the law school's

lingering reputation in the minority community, particularly with

prospective students, as a "white" school; an underrepresentation

of minorities in the student body; and some perception that the law

school is a hostile environment for minorities." 861 F. Supp. at

572. Plaintiffs now argue that these three alleged effects are at

most examples of societal discrimination, which the Supreme Court

has found not to be a valid remedial basis. "The effects must

themselves be examined to see whether they were caused by the past

discrimination and whether they are of a type that justifies the

program." Podberesky, 38 F.3d at 154.

As a legal matter, the district court erred in concluding that

the first and third effects it identifiedSSbad reputation and

hostile environmentSSwere sufficient to sustain the use of race in

the admissions process. The Fourth Circuit examined similar

arguments in Podberesky, a recent case that struck down the use of

race-based scholarships. The university in that case sought, in

part, to justify a separate scholarship program based solely upon

race because of the university's "poor reputation within the

African-American community" and because "the atmosphere on campus

[was] perceived as being hostile to African-American students."

Id. at 152.

The Podberesky court rejected the notion that either of these

45

rationales could support the single-race scholarship program. The

court reasoned that any poor reputation by the school "is tied

solely to knowledge of the University's discrimination before it

admitted African-American students." Id. at 154. The court found

that "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." Id.

We concur in the Fourth Circuit's observation that knowledge

of historical fact simply cannot justify current racial

classifications. Even if, as the defendants argue, the law school

may have a bad reputation in the minority community, "[t]he case

against race-based preferences does not rest on the sterile

assumption that American society is untouched or unaffected by the

tragic oppression of its past." Maryland Troopers Ass'n v. Evans,

993 F.2d 1072, 1079 (4th Cir. 1993). "Rather, it is the very

enormity of that tragedy that lends resolve to the desire to never

repeat it, and find a legal order in which distinctions based on

race shall have no place." Id. Moreover, we note that the law

school's argument is even weaker than that of the university in

Podberesky, as there is no dispute that the law school has never

had an admissions policy that excluded Mexican Americans on the

basis of race.

The Podberesky court rejected the hostile-environment claims

by observing that the "effects"SSthat is, racial tensionsSSwere the

result of present societal discrimination. 38 F.3d at 155. There

46

was simply no showing of action by the university that contributed

to any racial tension. Similarly, one cannot conclude that the law

school's past discrimination has created any current hostile

environment for minorities. While the school once did practice de

jure discrimination in denying admission to blacks, the Court in

Sweatt v. Painter, 339 U.S. 629 (1950), struck down the law

school's program. Any other discrimination by the law school ended

in the 1960's. Hopwood, 861 F. Supp. at 555.

By the late 1960's, the school had implemented its first

program designed to recruit minorities, id. at 557, and it now

engages in an extensive minority recruiting program that includes

a significant amount of scholarship money. The vast majority of

the faculty, staff, and students at the law school had absolutely

nothing to do with any discrimination that the law school practiced

in the past.

In such a case, one cannot conclude that a hostile environment

is the present effect of past discrimination. Any racial tension

at the law school is most certainly the result of present societal

discrimination and, if anything, is contributed to, rather than

alleviated by, the overt and prevalent consideration of race in

admissions.

Even if the law school's alleged current lingering reputation

in the minority communitySSand the perception that the school is a

hostile environment for minoritiesSSwere considered to be the

present effects of past discrimination, rather than the result of

societal discrimination, they could not constitute compelling state

47

interests justifying the use of racial classifications in

admissions. A bad reputation within the minority community is

alleviated not by the consideration of race in admissions, but by

school action designed directly to enhance its reputation in that

community.

Minority students who are aided by the law school's racial

preferences have already made the decision to apply, despite the

reputation. And, while prior knowledge that they will get a "plus"

might make potential minorities more likely to apply, such an

inducement does nothing, per se, to change any hostile environment.

As we have noted, racial preferences, if anything, can compound the

problem of a hostile environment.45

The law school wisely concentrates only on the second effect

the district court identified: underrepresentation of minorities

because of past discrimination. The law school argues that we

should consider the prior discrimination by the State of Texas and

its educational system rather than of the law school. The school

contends that this prior discrimination by the state had a direct

effect on the educational attainment of the pool of minority

applicants and that the discriminatory admissions program was

implemented partially to discharge the school's duty of eliminating

the vestiges of past segregation.

As we have noted, the district court accepted the law school's

45

The testimony of several minority students underscores this point.

They stated generally that they felt that other students did not respect them

because the other students assumed that minorities attained admission because

of the racial preference program.

48

argument that past discrimination on the part of the Texas school

system (including primary and secondary schools), reaching back

perhaps as far as the education of the parents of today's students,

justifies the current use of racial classifications.46 No one

disputes that Texas has a history of racial discrimination in

education. We have already discussed, however, that the Croson

Court unequivocally restricted the proper scope of the remedial

interest to the state actor that had previously discriminated. 488

U.S. at 499. The district court squarely found that "[i]n recent

history, there is no evidence of overt officially sanctioned

discrimination at the University of Texas." 861 F. Supp. at 572.

As a result, past discrimination in education, other than at the

law school, cannot justify the present consideration of race in law

school admissions.

The law school now attempts to circumvent this result by

claiming that its racial preference program is really a "State of

46

The argument is that because the state discriminated in its primary

and secondary school systems, the students' educational attainment was

adversely affected, and this harm extended to their higher education, thus

justifying giving current applicants a "plus" based on race. This reasoning

is especially important in justifying benefits for Mexican Americans, as there

is no evidence that the law school implemented de jure (or even de facto)

discrimination against this group in its admissions process. Because this

logic ignores the relevant actions in this case, i.e., discrimination by the

law school, it is not necessary for us to examine the potential causational

flaws in the argument.

Moreover, if we did find that the past wrongs of Texas school districts

were the sort of discrimination that the law school could address, the school

still would have to prove the present effects of that past wrong. Without

some strong evidence in the record showing that today's law school applicants

still bear the mark of those past systems, such effects seem grossly

speculative. The district court simply assumed that "[t]his segregation has

handicapped the educational achievement of many minorities. . . ." 861 F.

Supp. at 573. And we would still have to ask whether the program was narrowly

tailored to this goal.

49

Texas" plan rather than a law school program. Under the law

school's reading of the facts, its program was the direct result of

the state's negotiations with what was then the United States

Department of Health, Education and Welfare's Office for Civil

Rights ("OCR"). To bring the Texas public higher education system

into compliance with title VI, the state adopted the so-called

"Texas Plan."

In light of our preceding discussion on the relevant

governmental unit, this argument is inapposite. Even if the law

school were specifically ordered to adopt a racial preference

program, its implementation at the law school would have to meet

the requirements of strict scrutiny.47

Moreover, these alleged actions in the 1980's are largely

irrelevant for purposes of this appeal. There is no indication

that the Texas Plan imposed a direct obligation upon the law

school. To the contrary, the law school's admissions program was

self-initiated. Moreover, the current admissions program was

formulated primarily in the 1990's, and the district court did not

hold otherwise. See 861 F. Supp. at 557 ("Against this historical

backdrop [including Texas's dealing with the OCR], the law school's

commitment to affirmative action in the admissions process

evolved."). Thus it is no more correct to say that the State of

47

To the extent that the OCR has required actions that conflict with

the Constitution, the directives cannot stand. The Supreme Court has

addressed required state compliance with federal law in the voting rights

context. Miller v. Johnson, 115 S. Ct. 2475, 2491 (1995) ("As we suggested in

Shaw[v. Reno, 113 S. Ct. 2816, 2830-31 (1993)], compliance with federal

antidiscrimination laws cannot justify race-based districting where the

challenged district was not reasonably necessary under a constitutional

reading and application of those laws.") (emphasis added).

50

Texas implemented the program at issue than it is to assert that

the Commonwealth of Virginia, not the City of Richmond, was

responsible for the minority set-aside program in Croson.

The district court also sought to find a remedial

justification for the use of race and, at the same time, attempted

to distinguish Croson using United States v. Fordice, 505 U.S. 717

(1992). The court held that the law school had a compelling

interest to "desegregate" the school through affirmative action.

The reliance upon Fordice is misplaced, however. The district

court held that Fordice's mandate to schools "to eliminate every

vestige of racial segregation and discrimination" made Croson

inapplicable, 861 F. Supp. at 571, and reasoned that this mandate

includes the effects of such prior practices or policies.

Fordice does not overrule Croson. The central holding of

Fordice is that a state or one of its subdivisions must act to

repudiate the continuing "policies or practices" of discrimination.

505 U.S. at 731-32.48 In other words, a state has an affirmative

duty to remove policies, tied to the past, by which it continues to

discriminate. The Fordice Court did not address, in any way, a

state actor's duty to counter the present effects of past

48

In more detail, the Fordice Court said the following:

If the State perpetuates policies and practices traceable to its

prior system that continue to have segregative effects))whether by

influencing student enrollment or by fostering segregation in

other facets of the university system))and such policies are

without sound educational justification and can be practicably

eliminated, the State has not satisfied its burden of proving that

it has dismantled its prior system.

505 U.S. at 731.

51

discrimination that it did not cause.49

In sum, the law school has failed to show a compelling state

interest in remedying the present effects of past discrimination

sufficient to maintain the use of race in its admissions system.

Accordingly, it is unnecessary for us to examine the district

court's determination that the law school's admissions program was

not narrowly tailored to meet the compelling interests that the

district court erroneously perceived.50

49

In Croson, Justice O'Connor did argue that a state may act to prevent

its powers from being used to support private discrimination. 488 U.S. at

491-92 (plurality opinion) ("[A] state or local subdivision, (if delegated the

authority from the State) has the authority to eradicate the effects of

private discrimination within its own legislative jurisdiction.") (emphasis

added). Hence, a specific state actor can act to prevent the state from being

used as a "passive participant" in private discrimination. This power does

not create wide-ranging authority to remedy societal discrimination, however.

50

The plaintiffs argue that indeed there is no narrow tailoring, for at

least the following reasons: (1) In 1992, more than two-thirds of all

admission offers to blacks, and a majority of all blacks who matriculated,

involved out-of-state residents, thus undercutting the law school's stated

purpose of remedying past discrimination in Texas. (2) The system of

preferences has no termination date, thus indicating that there is no

connection between the plan and a bona fide remedial purpose. (3) Preference

is given even to blacks and Mexican Americans who graduated from private

secondary schools and thus did not suffer from state-ordered racial

discrimination.

The law school apparently chose admission goals of 5% blacks and 10%

Mexican Americans because those are the respective percentages of college

graduates in Texas who are black and Mexican American. Nothing in the record,

however, establishes any probative correlation between the degree of past

discrimination and the percentage of students from a minority group who

graduate from college.

There is no history either of de jure discrimination against Mexican

Americans in education at any level in Texas or of de facto discrimination

against Mexican Americans by the law school. Therefore, it is puzzling that

the law school would set an admissions goal for Mexican Americans that is

twice that of blacks, as to whom the history of de jure discrimination in

Texas Education in general, and by the law school in particular, is

irrefutable.

If fashioning a remedy for past discrimination is the goal, one would

intuit that the minority group that has experienced the most discrimination

would have the lowest college graduation rate and therefore would be entitled

to the most benefit from the designed remedy. The goals established by the

(continued...)

52

IV.

While the district court declared the admissions program

unconstitutional, it granted the plaintiffs only limited relief.

They had requested injunctive relief ordering that they be admitted

to law school, compensatory and punitive damages, and prospective

injunctive relief preventing the school from using race as a factor

in admissions.

A.

We must decide who bears the burden of proof on the damages

issue. The district court refused to order the plaintiffs'

admission (or award any compensatory damages), as it found that

they had not met their burden of persuasion in attempting to show

that they would have been admitted absent the unconstitutional

system. 861 F. Supp. at 579-82.51 The law school now argues that

the plaintiffs had the burden of persuasion on the issue of damages

and that the district court's findings are not clearly erroneous.52

The plaintiffs maintain, as they did in the district court, that

once they had shown a constitutional violation, the burden of

(...continued)

law school are precisely the reverse of that intuitive expectation and are

more reflective of a goal of diversity (which we hold is not compelling) than

of a goal of remedying past discrimination.

51

This finding also affected the court's analysis in denying

prospective relief and compensatory damages.

52

The district court applied a burden-shifting scheme similar to the

methodology used in the title VII context. 861 F. Supp. at 579-80 (citing St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)). The law school concedes

that the burden-shifting exercise was unnecessary, but it maintains

nonetheless that the "ultimate burden of proof," including proof of damages,

rests upon the plaintiffs. See id.

53

persuasion shifted to the school to show that the denial of

admission was not caused by that violation.

The well-established rule is that in order to collect money

damages, plaintiffs must prove that they have been injured. Carey

v. Piphus, 435 U.S. 247, 254-57 (1978). Several Supreme Court

cases, however, allow for a transfer of burden upon proof of

discrimination. See Mt. Healthy City Sch., Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 284 (1977); City of Arlington Heights v.

Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66 (1977).53

In Mt. Healthy, a discharged school teacher sued for

reinstatement, claiming his termination was a result of comments he

had made on a radio show, a violation of his First and Fourteenth

Amendment rights. The Court devised a test of "causation" that

placed the burden of proving no harm on the defendant:

Initially, . . . the burden was properly placed upon the

respondent to show that his conduct was constitutionally

protected, and that this conduct was a "substantial

factor"))or to put it in other words, that it was a

"motivating factor" in the Board's decision not to rehire

him. Respondent having carried that burden, however, the

District Court should have gone on to determine whether

the Board had shown by a preponderance of the evidence

that it would have reached the same decision as to the

respondent's reemployment even in the absence of the

protected conduct.

429 U.S. at 287. In Arlington Heights, the Court applied a similar

rule where the decision of a zoning board was challenged as

racially discriminatory. See 429 U.S. at 270 n.21. In sum, these

cases allow a defendant, who intended to discriminate or otherwise

53

Some of Justice Powell's dicta in Bakke also squarely supports the

plaintiffs' claim that once discrimination is proved, the defendant bears the

burden of proving no damage. Bakke, 438 U.S. at 320 (opinion of Powell, J.).

54

act unconstitutionally, to show that its action would have occurred

regardless of that intent.

Courts are split on whether the Mt. Healthy rubric applies in

racial preference cases.54 We conclude that the Mt. Healthy

methodology is appropriate in the instant case. The Mt. Healthy

plaintiff, like the present plaintiffs, brought a constitutional

challenge, and his injuries were analogous to the injuries alleged

here. As we have said, the title VII burden-shifting scheme is

designed to determine whether a violation of law has occurred.

In this case, there is no question that a constitutional

violation has occurred (as the district court found) and that the

plaintiffs were harmed thereby. See Adarand, 115 S. Ct. at 2105

("The injury in cases of this kind is that a 'discriminatory

classification prevent[s] the plaintiff from competing on an equal

footing.'") (citation omitted). The Mt. Healthy burden-shifting

exercise simply gives the defendant law school a second chance of

prevailing by showing that the violation was largely harmless.

As the district court held, to the contrary, that plaintiffs

had the burden, it should revisit this issue in light of what we

have said in both the liability and remedial portions of this

54

Compare Henson v. University of Ark., 519 F.2d 576, 577-78 (8th Cir.

1975) (per curiam) (placing burden of persuasion on white applicant to show

affirmative action program prevented her admission) and Martin v. Charlotte-

Mecklenburg Bd. of Educ., 475 F. Supp. 1318, 1345 (W.D.N.C. 1979) (holding

that plaintiff in non-class action bears burden of proving damages) with

Donnelly v. Boston College, 558 F.2d 634, 635 (1st Cir. 1977) (dictum) (citing

Bakke and Mt. Healthy, but finding no causation, as evidence showed that

plaintiff would not have been admitted regardless of affirmative action) and

Heit v. Bugbee, 494 F. Supp. 66, 66-67 (E.D. Mich. 1980) (adopting Bakke and

Mt. Healthy reasoning in toto for firefighter's reverse discrimination claims)

and United States v. McDonald, 553 F. Supp. 1003, 1006 (S.D. Tex. 1983)

(dictum) (same for discriminatory criminal prosecution).

55

opinion.55 In the event that the law school is unable to show (by

a preponderance of the evidence) that a respective plaintiff would

not have been admitted to the law school under a constitutional

admissions system, the court is to award to that plaintiff any

equitable and/or monetary relief it deems appropriate.

Obviously, if the school proves that a plaintiff would not

have gained admittance to the law school under a race-blind system,

that plaintiff would not be entitled to an injunction admitting him

to the school. On the other hand, the law school's inability to

establish a plaintiff's non-admissionSSif that occurs on

remandSSopens a panoply of potential relief, depending in part upon

what course that plaintiff's career has taken since trial in mid-

1994. It then would be up to the district court, in its able

discretion, to decide whether money damages56 can substitute for an

order of immediate admission SSrelief that would ring hollow for a

plaintiff for whom an education at the law school now is of little

or no benefit.57

55

The district court concluded that the plaintiffs proved only that

they had been denied equal treatment but had failed to "prove an injury-in-

fact." 861 F. Supp. at 582. To the extent that the court felt that

plaintiffs failed to show injury-in-fact because they failed to prove that

they would have been admitted under a constitutional admissions system, this

conclusion should be revisited on remand, where the district court must apply

the proper burden and redetermine whether plaintiffs would have been admitted.

56

We do not opine on any Eleventh Amendment immunity in this case.

See, e.g., United Carolina Bank v. Board of Regents, 665 F.2d 553, 561 (5th

Cir. Unit A 1982) (holding that the Eleventh Amendment barred a civil rights

suit brought by a professor against university officials in their official

capacities). This issue is simply not before us.

57

For example, if the school is unable to show that plaintiff Carvell

would not have gained admission even under a constitutional admissions system,

he may be entitled to be compensated for the difference, to which he

testified, between tuition at the law school and tuition at Southern Methodist

(continued...)

56

Additionally, the district court erred in holding that

plaintiffs did not prove that defendants had committed intentional

discrimination under title VI. "Intentional discrimination," as

used in this context, means that a plaintiff must prove "that the

governmental actor, in adopting or employing the challenged

practices or undertaking the challenged action, intended to treat

similarly situated persons differently on the basis of race."

Castaneda v. Pickard, 648 F.2d 989, 1000 (5th Cir. Unit A June

1981); see also Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60

(1992); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582

(1983). While we agree with the district court's conclusion that

the various defendants acted in good faith, there is no question

that they intended to treat the plaintiffs differently on account

of their race.

B.

The plaintiffs argue that, because they proved a

constitutional violation, and further violations were likely to

result, the district court erred in denying them prospective

injunctive relief. We review denials of this sort of relief for an

abuse of discretion. See, e.g., Peaches Entertainment Corp. v.

(...continued)

University School of Law, which he attended instead. The district court

should also consider the following paradox: The law school argued strenuously

that plaintiff Elliott did not have standing to sue, as he had been offered

admission to the schoolSSalbeit at the last momentSSand had failed to accept

that offer. The district court found that this offer of admission had not

been communicated to Elliott. 861 F. Supp. at 566. In considering damages,

however, the court held that "in all likelihood, the plaintiffs would not have

been offered admission even under a constitutionally permissible process."

Id. at 581. The district court should re-examine these contradictory results.

57

Entertainment Repertoire, 62 F.3d 690, 693 (5th Cir. 1995). The

law school avers that the district court was well within its

equitable discretion in denying relief, especially as the school

had abandoned the practices that the district court had found were

unconstitutionalSSto-wit, the use of separate admissions committees

for whites and minorities.

We review denials of prospective injunctive relief as we would

any other denial of permanent injunctive relief under FED. R. CIV.

P. 65, keeping in mind, however, the questions of mootness,

ripeness, and standing. See generally 11A CHARLES A. WRIGHT ET AL.,

FEDERAL PRACTICE AND PROCEDURE § 2942 (2d ed. 1995). That treatise

notes that

[p]erhaps the most significant single component in the

judicial decision whether to exercise equity jurisdiction

and grant permanent injunctive relief is the court's

discretion. Of course, in some situations the facts and

relevant law may indicate that an injunction clearly

should be granted or denied. However, in most cases the

determination whether to issue an injunction involves a

balancing of interests of the parties who might be

affected by the court's decision))the hardship on the

plaintiff if relief is denied as compared to the

defendant if relief is granted and the extent to which

the latter hardship can be mitigated by requiring a

security bond. Not surprisingly, therefore, the court's

decision depends on the circumstances of each case.

Id. at 41-42. Accordingly, the usual practice upon reversal of a

denial of injunctive relief is to remand for a reweighing of the

equities. Id. § 2962, at 448; See, e.g., James v. Stockham Valves

& Fittings Co., 559 F.2d 310, 354-55 (5th Cir. 1977). In other

situations, the appellate court may order the district court to

enter an injunction. See, e.g., Southeastern Promotions, Ltd. v.

City of Mobile, 457 F.2d 340 (5th Cir. 1972).

58

According to the district court, the school had abandoned the

admissions procedureSSconsisting of the separate minority

subcommitteeSSthat was used in 1992, 1993, and 1994. The court

reasoned that, as a new procedure was developed for 1995, a

prospective injunction against the school was inappropriate. We

conclude, however, that, while the district court may have been

correct in deciding that the new procedure eliminates the

constitutional flaws that the district court identified in the 1992

system, there is no indication that the new system will cure the

additional constitutional defects we now have explained.

The new system utilizes a small "administrative admissions

group" and does not use presumptive admission and denial scores.

See Hopwood, 861 F. Supp. at 582 n.87. Most significantly, there

is no indication that in employing the new plan, the law school

will cease to consider race per se in making its admissions

decisions. To the contrary, as the district court recognized, the

law school continues to assert that overt racial preferences are

necessary to the attainment of its goals. See Hopwood, 861 F. Supp.

at 573-75.

The district court has already granted some equitable relief:

It directed that the plaintiffs be permitted to re-apply to the law

school without incurring further administrative costs. In

accordance with this opinion, the plaintiffs are entitled to apply

under a system of admissions that will not discriminate against

anyone on the basis of race. Moreover, the plaintiffs have shown

that it is likely that the law school will continue to take race

59

into account in admissions unless it receives further judicial

instruction to the effect that it may not do so for the purpose of

(1) obtaining a diverse student body; (2) altering the school's

reputation in the community; (3) combating the school's perceived

hostile environment toward minorities; or (4) remedying the present

effects of past discrimination by actors other than the law school.

It is not necessary, however, for us to order at this time

that the law school be enjoined, as we are confident that the

conscientious administration at the school, as well as its

attorneys, will heed the directives contained in this opinion. If

an injunction should be needed in the future, the district court,

in its discretion, can consider its parameters without our

assistance. Accordingly, we leave intact that court's refusal to

enter an injunction.

C.

The plaintiffs contend that the district court's application

of the wrong standard causes it to deny punitive damages. The

plaintiffs aver that the court applied an animus standard, when it

should have asked whether the school acted with "reckless

indifference" to their constitutional rights. They ask for a

remand on this issue.

It is not apparent, from the record, what standard the

district court applied in considering the punitive damages issue.

The court did determine, however, that the law school had always

acted in good faith. This is a difficult area of the law, in which

60

the law school erred with the best of intentions. As a result, the

plaintiffs have not met the federal standard for punitive damages

as stated in Smith v. Wade, 461 U.S. 30, 56 (1983). Thus, we agree

with the district court that punitive damages are not warranted.

We note, however, that if the law school continues to operate a

disguised or overt racial classification system in the future, its

actors could be subject to actual and punitive damages.

V.

Consolidated with the appeal of the merits issues of this

appeal is No. 94-50569, challenging the district court's denial of

a motion to intervene. The proposed intervenorsSSthe Thurgood

Marshall Legal Society and the Black Pre-Law Association (the

"associations")SSask this court, for the second time, for the right

to intervene. On their first attempt, the associations moved to

intervene prior to trial either as of right or by permission. The

district court denied intervention, and we affirmed. See Hopwood

v. Texas, 21 F.3d 603 (5th Cir. 1994) (per curiam) ("Hopwood I").

Now, following the trial, the associations believe they can

show that the law school has failed to assert one of their proposed

defenses, a circumstance they contend establishes their right to

intervene. We apply the law of the case doctrine and dismiss No.

94-50569 for want of jurisdiction.

A.

The proposed intervenors are black student organizations at

61

the University of Texas at Austin and its law school that, just

prior to the trial of the merits appeal, sought to intervene,

arguing that the law school would not effectively protect their

interests in continuing racial preferences at the law school. The

district court denied the proposed intervention on the ground that

the law school and the two associations had the same objective:

preservation of the status quo.

On expedited appeal, this court affirmed on the ground that

the associations had failed to show that the law school had an

interest different from theirs. We also commented that the two

groups had failed to show "a separate defense of the affirmative

action plan that the State has failed to assert." Id. at 606. The

panel implicitly considered and rejected, as one potential

divergence of interests, the possibility that the law school would

not raise a defense based upon the legality of the use of TI scores

under title VI, as the associations argued that possibility as one

basis for intervention.

After their first motion to intervene was denied, the

associations remained involved in the case. Throughout the course

of the trial, they acted as amici curiae. And, at the close of

trial but before judgment, the district court intimated that it

would allow them to submit information for the record.

Accordingly, the associations sought to introduce testimonial and

documentary evidence supporting their arguments that (1) the TI by

itself was an unlawful basis for admissions decisions under title

VI and (2) that affirmative action at the university was

62

constitutionally required. The plaintiffs opposed the introduction

of evidence on these "new defenses," and the district court agreed.

The associations were allowed to submit amicus briefs and highlight

evidence that was already in the record but were not allowed to

raise new issues or supplement the record.

Shortly thereafter, the associations again sought to intervene

under FED. R. CIV. P. 24(a)(2) (intervention as of right), claiming

that the law school had failed to raise their two "new defenses"

and, accordingly, that events now showed that that representation

inadequately protected their interests. They sought to reopen the

record to introduce evidence supporting these arguments.

The district court summarily refused this request. That order

is the focus of this separate appeal, in which the associations

present only the title VI defense and ask to be allowed to present

such evidence only if we do not affirm the judgment.

B.

There is no caselaw in this circuit that directly addresses

how to review successive motions to intervene.58 The parties direct

us to Hodgson v. United Mine Workers, 473 F.2d 118, 125-26 (D.C.

58

There is circuit law regarding successive motions, but the pertinent

opinions do not examine the standard of review explicitly. See, e.g.,

Kneeland v. National Collegiate Athletic Ass'n, 806 F.2d 1285 (5th Cir.)

(implicit application of de novo review without discussion of standard), cert.

denied, 484 U.S. 817 (1987); United States v. Louisiana, 669 F.2d 314, 315

(5th Cir. 1982) (application of abuse of discretion review for timeliness

determination on second motion where proposed intervenor failed to argue for

first motion after remand); Calvert Fire Ins. Co. v. Environs Dev. Corp., 601

F.2d 851, 857 (5th Cir. 1979) (implicit application of de novo review where

district court treated second motion as both a reconsideration of prior motion

and a new motion).

63

Cir. 1972); United States Envt'l Protection Agency v. City of Green

Forest, 921 F.2d 1394, 1401 (8th Cir. 1990), cert. denied, 502 U.S.

956 (1991); and Meek v. Metropolitan Dade County, 985 F.2d 1471,

1477 (11th Cir. 1993). These courts, which were examining whether

the appeal from a successive motion was timely as per the appellate

requirements, devised the general rule that a second motion would

be treated as independent of the first if it was reached under

materially changed circumstances.

Here, the associations assume that their second intervention

motion is separate and distinct from their earlier failed attempt,

because the law school's failure to raise their proposed defense

constitutes a changed circumstance.59 Thus, they ask that we engage

in de novo review of their motion.

The plaintiffs, however, note that this motion was entitled a

"renewed motion for intervention." The plaintiffs argue that the

district court was reconsidering its previous denial order under

59

The associations ground this argument in language taken from the

prior appeal. One necessary element for intervention is a showing that the

present parties will inadequately represent the proposed intervenors'

interests. While the associations lost on this ground on the last appeal,

they now claim that the opinion supports the argument that the law school's

defense is inadequate. In the last appeal, we cited Jansen v. City of

Cincinnati, 904

F.2d 336 (6th Cir. 1990), as support for the following statement: "Nor have

the proposed intervenors shown that they have a separate defense of the

affirmative action plan that the State has failed to assert." Hopwood I, 21

F.3d at 606. Because the law school, now after trial, still has not asserted

the associations' title VI defense, the associations maintain that they now

can meet their burden.

In Jansen, however, the court found that the proposed intervenors had an

interest different from that of the defendant city. 904 F.2d at 343. This

was the basis for that court's holding that the city's representation was

inadequate. See id. ("Proffering this alleged violation of the consent decree

as an affirmative defense is directly counter to the City's interest.")

(emphasis added). Here, we have already found that the law school's and the

associations' interests are the same. Jansen therefore does not support

intervention.

64

its FED. R. CIV. P. 60(b) powers, and we should review merely for

abuse of discretion.

C.

While the "changed circumstances" test may have meritSSan

issue we do not decide todaySSwe do not find it applicable to this

case. Instead, the "law of the case" doctrine militates against

reconsideration of this motion. Normally, when a prior panel

discusses an issue on the merits, a later panel cannot reach a

contrary conclusion under the preclusive principle of law of the

case. See Williams v. City of New Orleans, 763 F.2d 667, 669 (5th

Cir. 1985). There is no question that the Hopwood I panel

addressed the intervention as a matter of right de novo, on the

merits, including the potential that the law school would not raise

every defense proposed by the associations.

The question of whether we can rely upon the law of the case

doctrine, however, is clouded because of the "anomalous" rule that

exists in this circuit concerning the procedural posture of these

intervention cases. Under that rule, we have only provisional

jurisdiction to review a district court's denial of a motion to

intervene.

If we agree with the district court, our jurisdiction

"evaporates." Hence, the denial of leave to intervene when the

party had a right to intervene is immediately appealable. On

appeal, however, our rule "requires a merit review of any claim of

intervention in order for [us] to determine whether or not the

65

district court's order is appealable." Weiser v. White, 505 F.2d

912, 916 (5th Cir. 1975). If the claim is without merit, then the

order "is not appealable, the appellate court has no jurisdiction,

and the appeal should be dismissed." Id. Thus, despite the merits

review, this is a dismissal for want of jurisdiction.60

Our anomalous rule complicates the analysis of the preclusive

effects of the prior panel decision, because dismissals for lack of

jurisdiction normally do not have preclusive effect. See, e.g.,

FED. R. CIV. P. 41(b). Accordingly, while appellate courts review

denials of intervention motions on the merits, it is uncertain to

what extent such a review has preclusive effect. Nonetheless, we

recognize the possibility of issue preclusion on the question of

jurisdiction itself.

While a dismissal for lack of jurisdiction does not operate as

an adjudication on the merits, "[t]his provision means only that

the dismissal permits a second action on the same claim that

corrects the deficiency found in the first action. The judgment

remains effective to preclude relitigation of the precise issue of

jurisdiction or venue that led to the initial dismissal." 7C WRIGHT

60

At least one set of commentators has eschewed this traditional rule.

Their position is that "[a]ny denial of intervention should be regarded as an

appealable final order." 7C WRIGHT ET AL., supra, § 1923, at 508. Under this

proposed rule, the federal court would "affirm denial of intervention when

previously, having determined on the merits that the trial court was right, it

would dismiss the appeal." Id. at 509. We have acknowledged that this would

be the better rule. See Korioth v. Briscoe, 523 F.2d 1271, 1279 n.26 (5th

Cir. 1975) (citing WRIGHT ET AL., supra). In fact, the Hopwood I panel affirmed

rather than dismissing for want of jurisdiction. Under the suggested rule,

because we would have a final order on the merits from a previous panel on

this issue, this case would probably be at an end. Nonetheless, as the

anomalous rule constitutes our circuit caselaw, we are bound to follow it.

66

ET AL., supra, § 4436, at 338.61 Thus, a party is precluded from

successively appealing the same intervention motion.

Here, the record shows that the associations raised this same

title VI argument before the Hopwood I panel in both their brief

and at oral argument. That panel, reviewing de novo the merits of

the associations' claims, denied intervention. Accordingly, the

last panel implicitly addressed this issue, and we must respect its

decision to deny intervention. The law of the case doctrine

prevents merits review, and we dismiss No. 94-50569 for want of

jurisdiction.62

VI.

In summary, we hold that the University of Texas School of Law

61

A dismissal for want of jurisdiction, however, leaves open the

possibility that the deficiency can be cured. If that occurs, no issue

preclusion

exists. See 7C WRIGHT ET AL., supra, § 4436, at 338. It is at this point in the

analysis that "changed circumstances" may become relevant. Arguably, the

"changed circumstances" analysis, in effect, "cures" the earlier

jurisdictional deficiency. Thus, if the circumstances of the case change to

such an extent that jurisdiction would lie, the subsequent motion to intervene

should not be dismissed for lack of jurisdiction. In effect, the posture of

the case has changed, as it would any time a given jurisdictional problem is

cured.

62

In Hopwood I, we decided that (1) the interests of the associations

were adequately represented by the law school and the state, and (2) as a

practical matter, disposition in the principal suit would not impair or impede

either of those groups' interests. 21 F.3d at 605. The law of the case

doctrine militates against revisiting that decision here.

For purposes of any future litigation, however, we note a necessary

effect of our previous holding when coupled with the law school's failure to

raise a title VI argument: Neither the district court's decision nor ours in

this appeal is binding on the associations as res judicata, law of the case,

collateral estoppel, or any other theoretical bar.

In short, as the title VI issue has not been litigated, the associations

are not precluded from instituting a separate and independent title VI

challenge to the law school's use of the TI. We neither express nor imply an

opinion on the viability of such a challenge.

67

may not use race as a factor in deciding which applicants to admit

in order to achieve a diverse student body, to combat the perceived

effects of a hostile environment at the law school, to alleviate

the law school's poor reputation in the minority community, or to

eliminate any present effects of past discrimination by actors

other than the law school. Because the law school has proffered

these justifications for its use of race in admissions, the

plaintiffs have satisfied their burden of showing that they were

scrutinized under an unconstitutional admissions system. The

plaintiffs are entitled to reapply under an admissions system that

invokes none of these serious constitutional infirmities. We also

direct the district court to reconsider the question of damages,

and we conclude that the proposed intervenors properly were denied

intervention.

In No. 94-50569, the appeal is DISMISSED for want of

jurisdiction. In No. 94-50664, the judgment is REVERSED and

REMANDED for further proceedings in accordance with this opinion.

WIENER, Circuit Judge, specially concurring.

"We judge best when we judge least, particularly in

controversial matters of high public interest."63 In this and every

other appeal, we should decide only the case before us, and should

do so on the narrowest possible basis. Mindful of this credo, I

63

League of United Latin American Citizens, Council No. 4434 v. Clements, 999

F.2d 831, 931 (5th Cir. 1993)(Wiener, J., dissenting).

68

concur in part and, with respect, specially concur in part.

The sole substantive issue in this appeal is whether the

admissions process employed by the law school for 1992 meets muster

under the Equal Protection Clause of the Fourteenth Amendment. The

law school offers alternative justifications for its race-based

admissions process, each of which, it insists, is a compelling

interest: (1) remedying the present effects of past discrimination

(present effects) and (2) providing the educational benefits that

can be obtained only when the student body is diverse (diversity).64

As to present effects, I concur in the panel opinion’s

analysis: Irrespective of whether the law school or the University

of Texas system as a whole is deemed the relevant governmental unit

to be tested,65 neither has established the existence of present

effects of past discrimination sufficient to justify the use of a

racial classification.66 As to diversity, however, I respectfully

disagree with the panel opinion’s conclusion that diversity can

never be a compelling governmental interest in a public graduate

school. Rather than attempt to decide that issue, I would take a

considerably narrower path — and, I believe, a more appropriate

one — to reach an equally narrow result: I would assume arguendo

that diversity can be a compelling interest but conclude that the

admissions process here under scrutiny was not narrowly tailored to

64

See Hopwood v. State of Tex., 861 F.Supp. 551, 570 (W.D. Tex. 1994).

65

I agree with the panel opinion that the defendants are overreaching when

they urge that the State of Texas or its primary and secondary school system

should be the relevant governmental unit.

66

Panel Opn. at 43 & n.44.

achieve diversity.

I

THE LAW

A. EQUAL PROTECTION

The Equal Protection Clause provides that "[n]o State shall .

. . deny to any person within its jurisdiction the equal protection

of the laws."67 Accordingly, "all racial classifications, imposed

by whatever federal, state, or local governmental actor, must be

analyzed by a reviewing court under strict scrutiny."68 Racial

classifications will survive strict scrutiny "only if they are

narrowly tailored measures that further compelling governmental

interests."69 Thus, strict scrutiny comprises two inquiries of

equal valence: the "compelling interest" inquiry and the "narrow

tailoring" inquiry.70 Moreover, these inquiries are conjunctive:

To avoid constitutional nullity, a racial classification must

satisfy both inquiries. Failure to satisfy either is fatal.

B. RACIAL CLASSIFICATION

67

U.S. Const., amend. 14, § 1.

68

Adarand Constructors Inc. v. Pena, 115 S.Ct. 2097, 2115 (1995) (emphasis

added).

69

Id.

70

See id. at 2117. ("Racial classifications . . . must serve a compelling

governmental interest and must be narrowly tailored to further that

interest.")(emphasis added); see also Miller v. Johnson, 115 S.Ct. 2474, 2490

(1995)("To satisfy strict scrutiny, the State must demonstrate that its

districting legislation is narrowly tailored to achieve a compelling governmental

interest.").

70

None dispute that the law school's admission process for 1992

employed a racial classification. Depending on an applicant's

race, his request for admission was considered under one of three

different (and, as explained in the panel opinion, often

dispositive71) TI admission ranges: one for blacks only, a second

for Mexican Americans only, and a third for all other races and

nationalities, including non-Mexican Hispanic Americans. In short,

each applicant for admission to the law school was classified by

race, and his application was treated differently according into

which of those three racial classifications it fell. Thus, the

law school's 1992 admissions process, like all racial

classifications by the government, is subject to strict scrutiny.72

C. STRICT SCRUTINY

The law school contends that it employs a racially stratified

admissions process to obtain, inter alia, the educational benefits

of a diverse student body. Translated into the constitutional

idiom, the law school insists that achieving student body diversity

in a public graduate school is a compelling governmental interest.

The law school invokes the opinion of Justice Powell in Regents of

71

See Panel . Opn. at 6-7 (explaining that a Mexican American or a black

applicant with a TI of 189 is presumptively admitted, while an "other race"

applicant with an identical TI is presumptively denied).

72

Adarand, 115 S.Ct. at 2115.

71

the University of California v. Bakke73 to support that postulate.

The panel opinion rejects that support, concluding that from its

inception Bakke had little precedential value and now, post-

Adarand, has none. My fellow panelists thus declare categorically

that "any consideration of race or ethnicity by the law school for

the purposes of achieving a diverse student body is not a

compelling interest under the Fourteenth Amendment."74

This conclusion may well be a defensible extension of recent

Supreme Court precedent, an extension which in time may prove to be

the Court's position. It admittedly has a simplifying appeal as an

easily applied, bright-line rule proscribing any use of race as a

determinant. Be that as it may, this position remains an extension

of the law--one that, in my opinion, is both overly broad and

unnecessary to the disposition of this case. I am therefore unable

to concur in the majority's analysis.

My decision not to embrace the ratio decidendi of the majority

opinion results from three premises: First, if Bakke is to be

declared dead, the Supreme Court, not a three-judge panel of a

circuit court, should make that pronouncement. Second, Justice

O'Connor expressly states that Adarand is not the death knell of

affirmative action — to which I would add, especially not in the

73

438 U.S. 265 (1978). Justice Powell opens his discussion of equal

protection and diversity in Bakke by stating that the "attainment of a diverse

student body . . . clearly [is] a constitutionally permissible goal for an

institution of higher education," id. at 311-12, and, in the unique context of

institutions of higher learning, he concludes that diversity is a compelling

interest. Id. at 312.

74

Panel Opn. at 25 (emphasis added).

72

framework of achieving diversity in public graduate schools.75

Third, we have no need to decide the thornier issue of compelling

interest, as the narrowly tailored inquiry of strict scrutiny

presents a more surgical andSQit seems to meSQmore principled way

to decide the case before us.76 I am nevertheless reluctant to

proceed with a narrowly tailored inquiry without pausing to

respond briefly to the panel opinion’s treatment of diversity in

the context of the compelling interest inquiry

D. IS DIVERSITY A COMPELLING INTEREST?

Along its path to a per se ban on any consideration of race in

attempting to achieve student body diversity, the panel opinion

holds (or strongly implies) that remedying vestigial effects of

past discrimination is the only compelling interest that can ever

justify racial classification.77 The main reason that I cannot go

along with the panel opinion to that extent is that I do not read

the applicable Supreme Court precedent as having held squarely and

unequivocally either that remedying effects of past discrimination

is the only compelling state interest that can ever justify racial

classification, or conversely that achieving diversity in the

75

Adarand, 115 S.Ct. at 2117 ("When race-based action is necessary to further

a compelling interest, such action is within the constitutional constraints if

it satisfies the 'narrow tailoring' test this Court has set out in previous

cases.").

76

See, e.g, Rust v. Sullivan, 500 U.S. 173, 224 (1991)(O'Connor, J,

dissenting)("It is a fundamental rule of judicial restraint . . . that this Court

will not reach constitutional questions in advance of the necessity of deciding

them.")(citing Three Affiliated Tribes of Fort Berthold Reservation v. Wold

Engineering, P.C., 467 U.S. 138, 157 (1984)).

77

Panel Opn. at 26-29.

73

student body of a public graduate or professional school can never

be a compelling governmental interest. Indeed, the panel opinion

itself hedges a bit on whether the Supreme Court's square holdings

have gone that far,78 particularly in the realm of higher

education.79

Between the difficulty inherent in applying Bakke80 and the

78

The Court appears to have decided that "there is essentially only one

compelling state interest to justify racial classification: remedying past

wrongs." Panel opn. at 27 (citing City of Richmond v. J.A. Croson Co., 488 U.S.

469, 493 (1989)(plurality opinion)(emphasis added)).

79

Panel Opn. at 28 n.27, (quoting Wygant v. Jackson Bd. of Educ., 476 U.S.

267, 286 (1986) (O'Connor, J. concurring in part and concurring in the judgment).

(“[A]lthough its precise contours are uncertain, a state interest in the

promotion of racial diversity has been found to be sufficiently `compelling’ at

least in the context of higher education to support the use of racial

considerations in furthering that interest.”).

80

I readily concede that problems are encountered when efforts are made to

apply the Supreme Court's Bakke decision. Panel Opn. at 20, 25, & 26

(respectively pointing out that (1) Bakke comprises multiple opinions and

divergent analyses, (2) no Justice, other than Justice Powell, discusses

diversity, and (3) Bakke is questioned in Adarand). The panel opinion fails to

describe this last problem with precise accuracy. That opinion's expurgated

version of the quotation at 26, lines 736-42 makes it appear as though the

Adarand majority questioned Bakke. In full, the sentence reads "[the Court's]

failure to produce a majority opinion in Bakke, Fullilove, and Wygant left

unresolved the proper analysis for remedial race-based governmental action."

Thus, although the Court acknowledges that Bakke et al. left things unresolved,

I do not read this quotation, (as the panel opinion suggests) as an order to

throw out Bakke--bath water, baby, and all.

Nevertheless, the fractured nature of Bakke's holding has left more

questions than answers in its wake. As observed in the instant panel opinion,

there has been "no [other] indication from the Supreme Court, . . . [whether] the

state's interest in diversity [in higher education] constitutes a compelling

justification for governmental race-based classifications." Panel Opn. at 28.

I agree that Bakke is the only indication that diversity is a compelling

interest. But, unlike the panel opinion, which jettisons Justice Powell's Bakke

opinion because of its singularity, I find that singularity to be precisely the

factor that makes Justice Powell's opinion the most pertinent Supreme Court

statement on this issue. Therefore, when and if the Supreme Court addresses

this case or its analog, the Court will have no choice but to go with, over,

around, or through Justice Powell's Bakke opinion. By assuming, as I do, that

diversity is a compelling interest, however, these problems are avoided

altogether.

74

minimal guidance in Adarand,81 the definition and application of the

compelling interest inquiry seems to be suspended somewhere in the

interstices of constitutional interpretation. Until further

clarification issues from the Supreme Court defining "compelling

interest" (or telling us how to know one when we see one), I

perceive no "compelling" reason to rush in where the Supreme Court

fears — or at least declines — to tread. Instead, I would

pretermit any attempt at a compelling interest inquiry and accept

Justice O'Connor's invitation to apply the Court's more discernible

and less intrusive "narrow tailoring" precedent.82 Thus, for the

purpose of this appeal I assume, without deciding, that diversity

is a compelling interest,83 and proceed to the narrowly tailored

81

Recently, in Adarand the Supreme Court stated that it had "altered the

[equal protection] playing field in some important respects." 115 S.Ct. at 2118.

In her opinion for the majority, however, Justice O'Connor repeatedly emphasizes

that Adarand did not drive a stake through the heart of affirmative action. To

the contrary, she emphatically states, "we wish to dispel the notion that strict

scrutiny is 'strict in theory, but fatal in fact.'" Id. at 2117 (quoting

Fullilove, 448 U.S. 448, 519 (Marshall, J., concurring in judgment). Moreover,

"[w]hen race-based action is necessary to further a compelling interest, such

action is within the constitutional constraints if it satisfies the 'narrow

tailoring' test this Court has set out in previous cases." Id.

It seems to me that as a practical matter, Adarand resolves very little.

In fact, the much heralded change is quite limited: Race-based classifications,

imposed by the federal government, are now subject to strict scrutiny. Curiously

(or perhaps not so curiously given the enigmatic difficulty of the task), the

Supreme Court declined to define compelling interest or to tell us how to apply

that term. Indeed, the Court did not even decide the case before it, opting

instead to remand the case for further adjudication.

82

Id. ("[W]hen race-based action is necessary to further a compelling

interest, such action is within the constitutional constraints if it satisfies

the 'narrow tailoring' test this Court has set out in previous cases.").

83

Although I assume without deciding that diversity is a compelling interest,

if I had no choice but to address compelling interest I would do so in the

context in which the issue is presented, i.e., the constitutionally permissible

means of constructing an entering a class at a public graduate or professional

school. This unique context, first identified by Justice Powell, differs from

the employment context, differs from the minority business set aside context, and

differs from the re-districting context; it comprises only the public higher

(continued...)

75

inquiry.

F. TEST FOR NARROW TAILORING

When strictly scrutinizing a racial classification for narrow

tailoring, the first question is "What is the purpose of this

racial classification?"84 The present effects rationale having

proven feckless in this case, today’s answer to that first question

is a given: The law school's purpose is diversity. Accordingly, I

perceive the next question to be, "Was the law school's 1992

admissions process, with one TI range for blacks, another for

Mexican Americans, and a third for other races, narrowly tailored

to achieve diversity?" I conclude that it was not. Focusing as it

does on blacks and Mexican Americans only, the law school's 1992

admissions process misconceived the concept of diversity, as did

California's in the view of Justice Powell: Diversity which

furthers a compelling state interest "encompasses a far broader

(...continued)

education context and implicates the uneasy marriage of the First and Fourteenth

Amendments. See Bakke, 438 U.S. at 311-12. Consequently, we play with fire

when we assume an easy crossover of Fourteenth Amendment maxims pronounced in

cases decided in such other contexts.

The panel opinion concludes that this contextual distinction is

unimportant, holding that, whatever the context, remedying the past effects of

discrimination is the only compelling interest that can justify a racial

classification. Panel Opn. at 26-29. That opinion acknowledges, however, that

Supreme Court precedent does not go this far: namely, the higher education

context is different. Indeed the panel opinion quotes Justice O'Connor's words

expressly stating that higher education is different. Panel Opn. at 28 n.27

(quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) ("[A]lthough

its precise contours are uncertain, a state interest in the promotion of racial

diversity has been found to be sufficiently 'compelling' at least in the context

of higher education to support the use of racial considerations in furthering

that interest.")).

84

United States v. Paradise, 480 U.S. 149, 171 (1987).

76

array of qualifications and characteristics of which racial or

ethnic origin is but a single though important element."85

When the selective race-based preferences of the law school's

1992 admissions process are evaluated under Justice Powell’s broad,

multi-faceted concept of diversity, that process fails to satisfy

the requirements of the Constitution.86 The law school purported

to accomplish diversity by ensuring an increase in the numbers of

only blacks and Mexican Americans in each incoming class to produce

percentagesSQvirtually indistinguishable from quotas--of

approximately five and ten percent, respectively. Yet blacks and

Mexican Americans are but two among any number of racial or ethnic

groups that could and presumably should contribute to genuine

diversity. By singling out only those two ethnic groups, the

initial stage of the law school's 1992 admissions process ignored

altogether non-Mexican Hispanic Americans, Asian Americans, and

Native Americans, to name but a few.

In this light, the limited racial effects of the law school's

preferential admissions process, targeting exclusively blacks and

85

Bakke, 438 U.S. at 316. In the portion of his opinion that addresses narrow

tailoring, Justice Powell concluded that California's admission process

misconceived the concept of "diversity." Id. California's preferential program,

focused as it was solely on aiding black applicants, was not necessary to attain

diversity. Id.

86

In the instant litigation, the law school created its own Catch-22 by

advancing two putative compelling interests that ultimately proved to produce so

much internal tension as to damage if not fatally wound each other. Under the

banner of prior discrimination, Texas had no choice but to single out blacks and

Mexican-Americans, for those two racial groups were the only ones of which there

is any evidence whatsoever of de facto or de jure racial discrimination by the

State of Texas in the history of its educational system. But, by favoring just

those two groups and doing so with a virtual quota system for affirmative action

in admissions, the law school estops itself from proving that its plan to achieve

diversity is ingenuous, much less narrowly tailored.

77

Mexican Americans, more closely resembles a set aside or quota

system for those two disadvantaged minorities than it does an

academic admissions program narrowly tailored to achieve true

diversity. I concede that the law school's 1992 admissions process

would increase the percentages of black faces and brown faces in

that year’s entering class. But facial diversity is not true

diversity, and a system thus conceived and implemented simply is

not narrowly tailored to achieve diversity.

Accordingly, I would find that the law school's race-based

1992 admissions process was not narrowly tailored to achieve

diversity and hold it constitutionally invalid on that basis. By

so doing I would avoid the largely uncharted waters of a

compelling interest analysis. Although I join my colleagues of the

panel in their holding that the law school's 1992 admissions

process fails to pass strict scrutiny,87 on the question of

diversity I follow the solitary path of narrow tailoring rather

than the primrose path of compelling interest to reach our common

holding.

II

REMEDY

Before concluding, I am compelled to add a few words about the

panel opinion’s “commentary” regarding the remedy to be imposed by

the district court on remand. Without employing the express

87

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