Appendix — Texas v. Hopwood

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OFFICE (UF THE CLER

SUPREME COURT OF THE

OCTOBER TERM, 199

STATE OF TEXAS, et al., Petitioners

vs.

CHERYL J. HOPWOOD, et al., Respondents

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LAURENCE H. TRIBE* DAN MORALES

JONATHAN S. MASSEY Attorney General of Texas

Hauser Hall 420 JORGE VEGA

1575 Massachusetts Ave. First Assistant Attorney General

Cambridge, Mass. 02138 JAVIER AGUILAR

(617) 661-6868 Special Assistant Attorney General

Fax: (617) 661-4104

*Counsel of Record

HARRY M. REASONER P. O. Box 12548, Capitol Station

Vinson & Elkins, L.L.P. Austin, Texas 78711-2548

1001 Fannin Street (512) 463-2191

Houston, Texas 77002 Fax: (512) 463-2063

April 30, 1996

Additional Counsel Listed on Inside Cover

CHARLES ALAN WRIGHT RANDALL KENNEDY TABLE OF CONTENTS - APPENDIX

SAMUEL ISSACHAROFF Areeda Hall 335

727 E. 26th Street 1563 Massachusetts Ave.

Austin, Texas 78705 Cambridge, Mass. 02138

FIFTH CIRCUIT OPINION,

ALLAN VAN FLEET DEBORAH A. VERBIL RES eae aa Sl ae RI

BETTY R. OWENS Assistant Attorney General

BARRY D. BURGDORF Office of the Attorney General DISTRICT COURT OPINION,

Vinson & Elkins P. O. Box 12548, Capitol Station IN oo ace

Houston, Texas 77002 Austin, Texas 78711-2548

ORDER DENYING REHEARING EN BANC,

MRSS SIT SEES A a rt

ORDER STAYING MANDATE,

I sha

DISSENTING OPINIONS,

RR PAREN ee ONE Ser Pe

CONSTITUTIONAL AND

STATUTORY PROVISIONS ...........ccccccccscesesecseeeeees

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Filed March 18, 1996

No. 94-50569

CHERYL J. HOPWOOD, et al.,

VERSUS

STATE OF TEXAS, et al.,

Defendants- Appellees,

VERSUS

THURGOOD MARSHALL LEGAL SOCIETY

and

BLACK PRE-LAW ASSOCIATION,

Movants-Appeliants.

SEES EEE EEE EEE EEE ESSERE EEE EEE EEE EEE EEE RHE

DOUGLAS CARVELL, et al.,

VERSUS

STATE OF TEXAS, et al.,

Defendants- Appellees,

VERSUS

THURGOOD MARSHALL LEGAL SOCIETY,

AND BLACK PRE-LAW ASSOCIATION,

Movants-Appellants.

CEE EEE EEE EEE EEE EEE EEE EEE EERE EERE EEE ee

No. 94-50664

CHERYL J. HOPWOOD, et al.,

Plaintiffs,

CHERYL J. HOPWOOD, et ai.,

Plaintiffs-Appellants,

VERSUS

STATE OF TEXAS, et al.,

Defendants- Appellees.

CREE EEE EEE EEE EEE EEE EEE EEE EEE EEE EEE EEE EEE EEE Ee

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

an ee tee en tt alla as cre Te RL Re A i

Before SMITH, WIENER and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

With the best of intentions, in order to increase the

enrollment of certain favored classes of minority students, the

University of Texas School of Law (“the law school”)

discriminates in favor of those applicants by giving substantial

racial preferences in its admissions program. The beneficiaries

of this system are blacks and Mexican Americans, to the

we decide today 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

Supreme 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 preferences 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 district

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

eS ee

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 approximately 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

decisions upon an applicant’s so- caited Texas Index (“TI”)

number, a composite of undergraduate grade point average

(“GPA”) and Law School Aptitude Test (“LSAT”) score.' 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.

Of course, the law school did not rely upon numbers

alone. The admissions office necessarily exercised judgment in

interpreting the individual scores of applicants, taking into

consideration factors such as the strength of a student's

undergraduate education, the difficulty of his major, and

' 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.

“n,

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.’

Because of the large number of applicants and potential

admissions factors, the TI’s administrative usefulness was its

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

admissions group at issue in this case--the 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.

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 noncompetitive major or a weak

undergraduate 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

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.

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 votes--typically from nine to eleven’--among 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-preferred minorities* the TI ranges that were used to place

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

admissions season in order to achieve the appropriate number of offers.

* 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 categories--” Black/African

American,” “Native American,” “Asian American,” “Mexican American,”

“Other Hispanic” (meaning non-Mexican descent), “White,” and “Other

(describe)”--only 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

Nigeria 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

-__

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.° Mexican

Americans and blacks needed a TI of only 189 to be

presumptively admitted.° 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 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 i57. The category of

“other minority” achieved a 3.56 and 160.’

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-4c scale and others who had taken a later one scored on a |20-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.

’ The median scores of the 1992 class are as follows:

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,

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

would be admitted, even though his score was considerably

below® the level at which a white candidate almost certainly

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

exican American 3.24/157 3.38/174 *

ther minority 3.58/160 3.77/157

*\Only two matriculated applicants.

In 1992, the LSAT’s national distribution was approximately as

follows:

166 94% . @

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.

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

case--Cheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David Rogers.

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

at 6 ibn

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eng) atin

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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.’

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.'® 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

presumptive denial as a white, i.¢., 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.

. According to the plaintiffs, 600-700 higher-sconing white residents

were passed over hefore 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.

= 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

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nonpreferential category. Thus, race was always an overt part

of the review of any applicant’s file. r

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. ''

Chery! 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

candidates.’ 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, 4

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.

* The district court discussed in detail the plaintiffs’ qualifications

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

ee ars

]

All

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.

Il.

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"). The plaintiffs’ central claim is that they

were subjected to unconstitutional racial discrimination by the

law school’s evaluation of their admissions applications. They

sought injunctive 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 defendants are the State of Texas; the University of Texas

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

Capacities; the University of Texas at Austin: the President of the university,

sued in his official capacity; the University of Texas Schoo! of Law: the

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

Admissions Committee, sued in his official capacity.

Al2

The district court began by recognizing the proper

constitutional 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 held that the State of Texas’s “institutions of

higher education are inextricably linked to the primary and

secondary schools in the system.” Id.‘* 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 iimit 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

* 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.

<i"

Al3

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 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.'° To pass muster under the

court’s reasoning, 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

'S 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.

Al4

the presumptive denial categories. In other words, if the law

school applied the same academic standards, but had

commingled the niinority review in the discretionary 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 compensatory or punitive damages, the court reasomed, 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 .

II.

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, 509 U.S. 630,

----, 113 S.Ct. 2816, 2824 (1993) (citing Washingtom y. Davis,

426 U.S. 229, 239 (1976)). It seeks ultimately to render the

issue of race irrelevant in governmental decisionmalking. See

Palmore v. Sidoti, 466 U.S. 429, 432 (1984) (“A come purpose

of the Fourteenth Amendment was to do away with all

governmentally imposed discrimination.”) (footnote omitted).

Accordingly, discrimination based upon race is highly

suspect. “Distinctions between citizens solely becauise of their

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

institutions are founded upon the doctrine of equaility,” 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 Constitutiom 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.

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1, 11 (1967); Brown v. Board of Educ., 347 U.S. 483, 493-94.

These equal protection maxims apply to all races. Adarand

Constructors v. Pena, 115 S.Ct. 2097, 2111, 132 L.Ed.2d 158

(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 scrutiny'® when evaluating all racial

classifications, including those characterized by their proponents

as “benign” or “remedial.”'’

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

‘© In their initial brief on appeal, the defendants argued that

intermediate scrutiny is appropriate here. In a supplemental brief filed to

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

scrutiny 1s the appropriate test.

” 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

4 group that historically has not been subject to government discrimination.” ).

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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

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 <-darand

Court emphasized, strict scrutiny ensures that “courts will

consistently give racial classifications ... detailed examination

both as to ends and as to means.” Id."*

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

= While Adarand--the Supreme Court's most recent opinion on

racial preferences--does not directly address the application of the strict

scrutiny test, it underscores the presumptive unconstitutionality of racial

Classifications. “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 (vy. Klutznick, 448 U.S. 448, 534, 100 S.Ct. 2758, 2803, 65

L.Ed.2d 902 (1980) }, (Stevens, J., dissenting), is legitimate, before

permitting unequal treatment based on race.” --- U.S. at ----, 115 S.Ct. at

2113.

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U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161 (1948)."° Thus.

the Court consistently has rejected arguments conferring benefits

on a person based solely upon his membership in a specific class

of persons.”

With these general principles of equal protection in mind,

we turn to the specific issue of whether the law school’s

consideration of race as a factor in admissions violates the Equal

Protection Ciause. 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 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.

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

? ‘See also Adarand, id, at ~--, 115 S.Ct. at 2111 (“[Ajny 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”).

- See, ¢.g., Croson, 488 U.S. at 498-500, 109 S.Ct. at 724-25

(holding that past societal discrimination against a group confers no basis for

local governments to provide a specifically tailored remedy to current

members of that group); Wygant, 476 U.S. at 275-76, 106 S.Ct. at 1847- 48

(rejecting argument that governmental discrimination in teacher layoffs is

allowed to foster role models within a group).

Al8

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

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 opinions--one 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 joined--reflected

completely contrary views of the law.

While Justice Powell found the program unconstitutiona!

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

Al9

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

Hence, Justice Powell's opinion has appeared to represent

the “swing vote,” and though, in significant part, see id. at 272

n. *,it was joined by no other Justice, it has played a prominent

role in subsequent debates concerning the impact of Bakke.” In

the present case, the significance of Justice Poweil’s opinion is

its discussion of compelling state interests under the Equal

Protection Clause. See id. at 305-15. 2 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

interests at stake,” it often is the determinative step. Justice

Powell outlined the four state interests proffered by the Bakke

defendants:

*! See, ¢.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 conciusions 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.,

: ituti is, 67 CAL.L.REV. 69 (1979) (Justice

Powell's “tiebreaking opinion ... has acquired wide pragmatic appeal.”).

*? As affirmative action programs are by definition purposeful

Classifications 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

429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976).

A20

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: (itl) increasing the

number of physicians who will practice in communities

currently underserved: and (iv) obtaining the

student body.

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

Justice Powell reasoned that the second and third

justifications--remedying societal discrimination and providing

role models--were never appropriate.” He determined that any

remedial justification was limited to eliminating “identified

discrimination” with “disabling effects.” Id. at 307 (citing the

school desegregation cases). He specifically emphasized that a

particularized 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 constitutionally 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

= The Supreme Court subsequently has agreed with that position.

See Wygant, 476 U.S. at 274-76, 106 S.Ct. at 1847-48 (plurality opinion).

The district court a quo erred in suggesting that societal discrimination is

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

A2l

“long ... been viewed as a special concern of the First

Amendment.” Id, at 312.*

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.°° The Justice then

concluded that

{ajn otherwise qualified medical student with a

particular 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 understanding their vital service to

humanity.

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

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

of “academic freedom”).

°° Saying that a university has a First Amendment interest in this

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

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

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

citizens.

Significantly, Sweezy involved a person who was cailed before the

Attorney 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, 77 S.Ct. at 1217-18, 1219-20

(Frankfurter, J., concurring in result).

A22

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 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

applicant’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

nonobjective factors, did not outweigh those of another

applicant. His qualifications would have been weighted

fairly and competitively, and he would have no basis to

complaint of unequal treatment under the Fourteenth

Amendment.

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

a —

;

A23

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.

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 compeiling. 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

followed--at 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

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

admissions program under intermediate scrutiny, implicitly

rejected Justice Powell’s position. See 438 U.S. at 326 n. 1

A24

( 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

ion.”) (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 «sie 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 broadcasting facilities. In

Adarand,, 115 §.Ct. at 2112-13, the Court squarely rejected

intermediate scrutiny as the standard of review for racial

Classifications, and Metro Broadcasting is now specifically

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 “{uJniess [racial

Classifications] are Strictly reserved for remedial settings, they

A25

may in fact promote notions of racial inferiority and lead to a

politics of racial hostility.” (emphasis added).*°

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

[compelling 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

419, 422 (7th Cir.) (“The whole point of Croson is that disadvantage,

diversity, or other grounds favoring minorities will not jusufy governmental

racial discrimination ...; only a purpose of remedying discrimination against

minorities 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

compelling 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

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

214 (1944), plainly such an interest is not p*sented in this case.

A26

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 im part and concurring in

judgment).”’

In short, there has been no indication from the Supreme

Court, other than Justice Poweil’s lonely opinion in Bakke, that

the state’s interest in diversity constitutes a compelling

justification 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 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 wouid be

choices based upon the physical size or blood type of applicants.

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

concurrence in Wygant for the proposition that Justice Powell's Bakke

formulation is still viable. In her 1986 Wygant opinion, in the context of

discussing Justice Powell's opinion, Justice O'Connor noted that “although

its precise contours are uncertain, a state interest in the promotion of racial

diversity has been found sufficiently ‘compelling,’ at least in the context of

higher education, to support the use of racial considerations in furthering that

interest.” 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

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

disapproval of diversity «s a compelling interest. Her subsequent statements

outlined above in Croson and Metro Broadcasting suggest strongly that

reliance upon this statement in Wygant is unjustified.

A27

Thus, the Supreme Court has long held that governmental actors

cannot justify their decisions solely because of race. ;

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 decisions. 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, 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.”

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

= The law schooi’s admissions program makes no distinction among

black and Mexican American applicants in an effort to determine which of

them, for exampie, may have been culturally or educationally disadvantaged.

A28

do not raise similar constitutional concerns.*”? 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

C | the Constitutionali Pref ial T

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, iscriminati

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).”°

29 For example, Justice Powell apparently felt that persons with

different ethnic backgrounds would bring diverse “experiences, outlooks, and

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

J.).

A29

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 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 qvaiifications; 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.”

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 classifications,

efficiency is rejected as a basis for governmental action in this

context.

Posner, supra, at 22.

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

educational 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 potential 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

A30

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 (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 “benign” racial classifications is not as

harmful as that arising from invidious ones,” the current Court

has now retreated from the idea that so-called benign and

invidious classifications may be distinguished.’? As the plurality

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

judgment).

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

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

> 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.

A3l

in Croson warned, “[c}lassifications based on race carry the

danger of stigmatic harm. Unless they are reserved for remedia!

settings, they may in fact promote notions of racial inferiority

and lead to the politics of racial hostility.” 488 U.S. at 493.™

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

* ‘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 tha! 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

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 government--a 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,

Cumtuten, 660.0 775, 787 a. 38 (1979).

A32

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)).™

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.” These latter factors may, in fact, turn out to

*® 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 lite or practices of one’s government--the

differential treatment of other human beings by 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.

= 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, ii 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

munorities and using minonity 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

A33

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.*”

We now turn to the district court’s determination that

“the remedial purpose of the law school’s affirmative action

program is 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

especially adept ai meeting its yearly “goals.” See Hopwood, 861 F.Supp.

at 574 n. 67.

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.

A34

discrimination.’ “ Hopwood v. Texas (“Hopwood I “),* 21

F.3d 603, 605 (Sth 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, 106

S.Ct. at 1850 (opining that “in order to remedy the effects of

prior discrimination, it may be necessary ‘0 take race into

account”) (opinion of Powell, J.).°

= Hopwood | is the first appeal of the intervention issue that we

address infra.

a 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 § | 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 “preseni effects of past discrimination.”

And some members of the Court would limit any remedial purpose to the

actual victims of discrimination. See Adarand, 115 $.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

A35

Because a state does not have a compelling state interest

in remedying the present effects of past societal discriminatior:.

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 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.

The Supreme Court has “insisted upon some showing of

prior discrimination by the governmental uni: involved before

allowing limited use of racial classifications in order tc remedy

such discrimination.” Wygant, 476 U.S. at 274 (plurality

opinion of Powell, J.) (citing ist. v. Uni

States, 433 U.S. 299 (1977)).” 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

discrimination,” as we used this language in Hopwood |, 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.

“° See Wygant, 476 U.S. at 286, 106 S.Ct. at 1853 (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.”).

A36

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.*!

Moreover, the plurality in Wygant held that before a state

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

... it has convincing 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 mode!” 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

= 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 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.”).

A37

contracts awarded to [minority businesses] in Richmond

mirrored the percentage of minorities in the population

as a whole.

488 U.S. at 498.“ The Court refused to accept indicia of past

discrimination in anything but “the Richmond construction

industry.” Id. at 50S.

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 “[lJike 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 racial

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 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:

*2 Justice O’Connor was joined by Chief Justice Rehnquist and

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

A38

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.*”

Sirict 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 harm--and the appropriate reach of

the remedy--is called into question. The school desegregation

cases, for example, concentrate on school districts--singular

government units--and 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 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

“3 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.

A39

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

ihe 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 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

measure--generally ensuring that the legally-imposed racially

discriminatory program is remedial--we conclude that the

A40

University of Texas System is itself too expansive an entity to

scrutinize for past discrimination.“

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.

“ 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 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).

A4l

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 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 identified--bad reputation and

hostile environment-- were sufficient to sustain the use of race

in the admissions process. The Fourth Circuit examined similar

arguments in Podberesky, a receit case that struck down the use

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

A42

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 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”--that is, racial tensions--

were the result of present societal discrimination. 38 F.3d at

155. There 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

A43

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 community--and the perception that

the school is a hostile environment for minorities--were

considered to be the present effects of past discrimination, rather

than the result of societal discrimination, they could not

constitute compelling state 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

Ad+4

hostile environment. As we have noted, racial preferences, if

anything, can compound the problem of a hostile environment.“

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 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.“ No one disputes that Texas has a history of

“> The testimony of several minority students underscores this point.

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

of the racial preference program.

. 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.¢., 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

distncts 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

A45

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 “[{ijn 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

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

schooi'’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.“

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.

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

addressed required state compliance with federal |aw 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 consutuvonal reading

A46

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 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 musi act to

repudiate the continuing “policies or practices” of

discrimination. 505 U.S. at 731-32.“ In other words, a state

and application of those laws.”) (emphasis added).

*8 In more detail, the Fordice Court said the following:

Ii the State perpetuates policies and practices traceable to its prior

system that continue to have segregative effects--whether by

A47

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 discrimination that it did not cause.”

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.”

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.

*” 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

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

A48

IV.

While the district court declared the admissions program

unconstitutional, it granted the plaintiffs only limited retief.

They had requested injunctive relief ordering that they be

admitted to law school, compensatory and punitive damag«s, and

prospective injunctive relief preventing the school from using

race as a factor in admissions.

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

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 puzzliv¢ that

the law school wou!d set an admissions goal for Mexican Americans tat 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 rernedy 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

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.

A49

unconstitutional system. 861 F.Supp. at 579-82.°' 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.” The plaintiffs maintain, as

they did in the district court, that once they had shown a

constitutional violation, the burden of 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.

U.S. 252, 265-66 (1977).”

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:

This finding also affected the court's analysis in denying

prospective relief and compensatory damages.

2 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.

3 Some of Justice Powell's dicta in Bakke also squarely supports

the plaintiffs’ claim that unce discrimination is proved, the defendant bears

the burden of proving no damage. Bakke, 438 U.S. at 320 (opinion of

Powell, J.).

ASO

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 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.** We conclude that the Mt.

Healthy methodology is appropriate in the instant case. The Mt.

* Compare Henson v. University of Ark., 519 F.2d $76, 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 (Ist

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).

ASI

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 piaintiff 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

opinion.* In the event that the law school is unable to show (by

a preponderance of the evidence) that a respective piaintiff

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-admission--if that

occurs on remand--opens a panoply of potential relief, depending

5S 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.

AS2

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 damages® can

substitute for an order of immediate admission--relief that would

ring hollow for a plaintiff for whom an education at the law

school now is of little or no benefit.*’

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 (Sth 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

case. See, e.g., United Carolina Bank v. Board of Regents, 665 F.2d 553,

561 (Sth 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.

” 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

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 school--albeit at the last moment--and had failed to

accept that offer. The district court found that this offer of admission had not

been communicated to Elliot. 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.

AS3

is NO question that they intended to treat the plaintiffs differently

on account of their race.

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.

Entertainment Repertoire, 62 F.3d 690, 693 (Sth 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 unconstitutional--to-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

[pjerhaps 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

AS4

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 (Sth 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 (Sth

Cir. 1972).

According to the district court, the school had abandoned

the admissions procedure--consisting of the separate minority

subcommittee--that 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 quad ¢ 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

ASS

shown that it is likely that the law school will continue to take

race 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.

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 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.

AS6

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 intervenors--the

Thurgood Marshall Legal Society and the Black Pre-Law

Association (the “associations” )--ask 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 (Sth 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.

The proposed intervenors are black student organizations

at 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.

AS7

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

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.

There is no caselaw in this circuit that directly addresses

how to review successive motions to intervene.“ The parties

*8 There is circuit law regarding successive motions, but the

pertinent opinions do not examine the standard of review explicitly. See,

¢.g.. Kneeland vy. National Collegiate Athletic Ass'n, 806 F.2d 1285 (Sth

Cir.) (implicit application of de novo review without discussion of standard),

cert. denied, 484 U.S. 817 (1987); United States v. Louisiana, 669 F.24

AS8

direct us to Hodgson vy. United Mine Workers, 473 F.2d 118,

125-26 (D.C.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

Dade County, 985 F 24 1471, 1477 (11th Cir.1993). These

courts, which were e¢x.mining 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

314, 315 (Sth Cir.1982) (application of abuse of discretion review for

umeliness 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 (Sth 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).

AS9

proposed defense constitutes a changed circumstance.” Thus,

they ask that we engage in de novo review of their motion.

a “renewed motion for intervention.” The plaintiffs argue that

under its FED.R.CIV.P. 60(b) powers, and we should review

merely for abuse of discretion.

While the “changed circumstances” test may have merit--

an issue we do not decide today--we 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,

» comes

‘The associations ground this argument in language taken from the

prior appeal. One necessary element for intervention is a showing that the

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 Cincinnat,, 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 |, 2!

F.3d at 606. Because the law school, now after trial, still has not asserted

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

A60

669 (Sth 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 re'y 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

district court’s order is appealable.” Weiser v. White, 505 F.2d

912, 916 (Sth 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.”

Our anomalous rule complicates the analysis of the

preclusive effects of the prior panel decision, because dismissals

% At least one set of commentators has eschewed this traditional

tule. Their position is that “{a}]ny denial of intervention should be regarded

as an appealable final order.” 7C WRIGHT, ET AL., supra, § 1923, at S08.

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 (Sth 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.

A6él

for lack of jurisdiction normally do not have preclusive effect.

See, ¢.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

ream dnl x Ring Pe Bagh: Boy Boag Ali

WRIGHT ET AL., supra, § 4436, at 338.°' Thus, a party is

precluded from successively appealing the same intervention

motion.

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.”

*! 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.

® In Hopwood J, we decided that (1) the interests of the

associations were adequately represented by the law school and the state, and

A62

. V1.

In summary, we hold that the University of Texas School

of Law 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.

(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.

A63

WIENER, Circuit Judge, specially concurring.

“We judge best when we judge least, particularly in

controversial matters of high public interest.”' 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 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).’

As to present effects, | 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,’ neither has established the

existence of present effects of past discrimination sufficient to

justify the use of a racial classification.‘ As to diversity,

however, I respectfully disagree with the panel opinion’s

conclusion that diversity can never be a compelling

1 . , . ,

League of United Latin American Citizens, Council No. 4434 v.

Clements, 999 F.2d 831, 931 (Sth Cir.1993) (Wiener, J., dissenting).

2 See Hopwood vy. State of Tex., 861 F.Supp. 551, 570

(W.D.Tex. 1994).

> | 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.

* Panel Opn. at 43 & n. 44.

A64

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 achieve diversity.

THE LAW

A. EQUAL PROTECTION

The Equal Protection Clause provides that “[nJo State

shall ... deny to any person within its jurisdiction the equal

protection of the laws.”’ Accordingly, “all racial classifications,

imposed by whatever federal, state, or local governmental actor,

must be analyzed by a reviewing court under strict scrutiny.”°

Racial classifications will survive strict scrutiny “only if they

are narrowly tailored measures that further compelling

governmental interests.”’ Thus, strict scrutiny comprises two

inquiries of equal valence: the “compelling interest” inquiry and

the “narrow tailoring” inquiry.* Moreover, these inquiries are

conjunctive: To avoid constitutional nullity, a_ racial

> US. Const., amend. 14, § 1

® Adarand Constructors, Inc. vy. Pena, 115 S.Ct. 2097, 2115, 132

L.Ed.2d 158 (1995) (emphasis added).

” Id.

. 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. 2475,

2490 (1995) (“To satisfy strict scrutiny, the State must demonstrate that its

districting legislation is narrowly tailored to achieve a compelling

governmental interest.”).

A65

classification must satisfy both inquiries. Failure to satisfy either

is fatal.

B. RACIAL CLASSIFICATION

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 dispositive’) 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 ciass:fied 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. '°

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

Jusuce Powell in Regents of the University of California v.

Bakke" to support that postulate. The panel opinion rejects that

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).

10 Adarand, 115 S.Ct. at 2115.

'! 438 U.S. 265 (1978). Justice Powell opens his discussion of

equal protection and diversity in Bakke by stating that the “attainment of a

A66

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.” '”

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 framework of achieving diversity in public graduate

schools.'? 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 and--it seems to me--more

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.

'2 Panel Opn. at 25 (emphasis added).

= Adarand, 115 S.Ct. at 2117 (“When race-based action is

- -Mecessary 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.”).

A67

principled way to decide the case before us.'* 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."* 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 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,'° particularly in the realm of

higher education."

4 See, ¢.g., Rust_v. Sullivan, 500 U.S. 173, 224 (199i)

(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

Reservation v. Wold Engineering, P.C., 467 U.S. 138, 157 (1984)).

'S Panel Opn. at 26-29.

one compelling stale 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)).

‘7 Panel Opn. at 28 n. 27, (quoting Wygant v. Jackson Bd. of

Educ., 476 U.S. 267 (1986) (O'Connor, J. concurring in part and concurring

A68

Between the difficulty inherent in applying Bakke'* and

the minimal guidance in Adarand," the definition and application

in the judgment)). (“[{AJ]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.”).

7% 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.

os 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.’ ”

A69

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.”” Thus, for the purpose of this appeal I assume,

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.

= Id. (“{WyJhen 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.”).

A70

without deciding, that diversity is a compelling interest,*' and

proceed to the narrowly tailored inquiry.

E. 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?” 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

2! Although I assume without deciding that diversity is a compelling

interest, if | had no choice but to address compelling interest | 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 froin the re- districting context; it comprises only

the public higher education context and implicates the uneasy marriage of the

First and Fourteenth Amendments. See Bakke, 438 US. 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) (“[AJlthough 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.”)).

2 United States v. Paradise, 480 U.S. 149, 171 (1987).

A7l

Mexican Americans, and a third for other races, narrowly

tailored to achieve diversity?” [ 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 array of qualifications and

characteristics of which racial or ethnic origin is bui a single

though important element.””’

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. 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 percentages--virtually

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

23 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 minority applicants,

was not necessary to attain diversity. Id.

4 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.

A72

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

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,” 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.

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 language of injunction or affixing that

label to its holding, the panel opinion’s discussion of the remedy

3 1 also concur in my colleagues’ conclusion that intervention by

the two black student organizations is not mandated, and do so for the same

reasons.

A73

on remand is “strongly suggestive” and has all of the substantive

earmarks of an injunction:

[The] plaintiffs have shown that it is likely that the law

school will continue to take race 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.”

Essentially, the substance of the quoted portion of the panel

opinion constitutes a de facto injunction -- telling the district

court precisely what to tell the law school that it can and can't

do -- albeit without the use of the word injunction. To me, if

“it” has feathers, swims, waddles, and quacks like a duck, it is

a duck; and I find such an “un-injunction” inappropriate. If

instead we were simply to reverse and remand on the violation

issue, we would stop short of finding de novo that the law

It seems unavoidable to me that until the district court

determines that there has been a violation, a remedy cannot be

A74

fashioned and should not be the subject of appellate

speculation. ”’

The district court denied the plaintiffs injunctive relief,

but only after assigning the burden of proof to the wrong party.”

No member of this panel questions that, in the initial stanza of

the burden- shitting minuet of _Mt. Healthy Sch. Dist. Bd. of

Educ. v. Doyle,” the plaintiffs met their burden. Once the

plaintiffs did that, the burden should have shifted to the law

school. Instead, the district court left it with the plaintiffs and

concluded that they had failed to carry the ultimate burden. The

district court’s failure to shift the burden to the law school, and

the conclusion of that court which followed, were errors.

Accordingly, like my colleagues of the panel, I would remand

the case to the district court with instructions to relieve the

plaintiffs of the misplaced burden while affording the law school

the opportunity to prove that the prima facie violation

established by the plaintiffs was essentially harmless. But it

seems Clear to me that this is where our analysis should end. As

a result, | depart from the “commentary” in the panel opinion

regarding the precise elements of the remedy to be fashioned by

the district court if it should conclude on remand that the law

school shall have failed to bear its burden.

Ill

CONCLUSION

” Hay v. Waldron, 834 F.2d 481, 484 (Sth Cir. 1987) (The law is

well-settled that the grant or denial of injunctive relief rests in the sound

discretion of the district court ); v.

Sch. Dist., 669 F.2d 1038, 1048 (Sth Cir. 1982), cert. denied, 459 U.S. 1155,

103 S.Ct. 800, 74 L.Ed.2d 1003 (1983).

28 Panel Opn. at 55 (“We conclude that the Mt. Healthy

methodology is appropriate in the instant case.”). On this point, | agree with

the panel majority that the Mt. Healthy burden-shifting minuet should apply.

29 429 U.S. 274, 284 (1977).

A75

I end where I began: We should only decide the issues

necessarily before this court, and then only on the narrowest

bases upon which our decision can rest. This is not a class

action; nothing is before us here save the claims of four

individual plaintiffs. These four individual plaintiffs properly

challenge only the admissions process employed by the law

school in 1992 -- not the admissions process that was in place

and employed in 1995, not the admissions process that is being

employed in 1996, and not the admissions process to be applied

in any future years. In sum, I would remand, and in the process

I would take care not to eviscerate the discretion of the district

court with excessive “commentary” or implicit directions on the

precise nature of the remedy that must ensue. Rather, my

remand would simply instruct the district court to apply the

correct burden-shifting process articulated in Mt. Healthy, then

see how the law school deals with it. That way, if the Mt.

Healthy application should demonstrate the need for a remedy,

the district court would be free to fashion the appropriate relief--

including injunctive if necessary--for those among the individual

plaintiffs whose individual cases warrant it. For this court to do

anything beyond that impresses me as overreaching. Thus I

concur in the judgment of the panel opinion but, as to its

conclusion on the issue of strict scrutiny and its gloss on the

order of remand, I disagree for the reasons I have stated and

therefore concur specially.

United States District Court,

W.D. Texas,

Austin Division.

Filed Avgust 19, 1994

Cheryl J. HOPWOOD, Douglas W. Carvell, Kenneth R.

Elliott, and David A. Rogers,

Plaintiffs,

The STATE OF TEXAS; University of Texas Board of

Regents;

Bernard Rapopart,

Ellen C. Temple, Lowell H. Lebermann, Jr., Robert J.

Cruikshank, Thomas O.

Hicks, Zan W. Holmes, Tom Loeffler, Mario E. Ramirez,

and Martha E. Smiley, as

members of the Board, in their official capacities; University

of Texas at

Austin; Robert M. Berdahl, President of the University of

Texas at Austin in

his official capacity; University of Texas School of Law;

Mark G. Yudof, Dean

of the University of Texas School of Law in his official

capacity; Stanley M.

Johanson, Professor of Law in his official capacity,

Defendants.

No. A 92 CA 563 SS.

MEMORANDUM OPINION

The plaintiffs, Cheryl J. Hopwood, a white female, and

Douglas W. Carvell, Kenneth R. Elliott, and David A. Rogers,

three white males, have brought suit against the defendants'

alleging violations of the Fourteenth Amendment, 42 U.S.C.A.

§ 1981 (West Supp.1994), 42 U.S.C.A. § 1983 (West 1981),

and Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. §

2000d (West 1981).2 All of these provisions prohibit

discrimination because of race. For the alleged violations, the

plaintiffs seek injunctive and declaratory relief, as well as

compensatory and punitive damages. The plaintiffs contend the

defendants discriminated against them by favoring less qualified

black and Mexican American applicants for admission to the

University of Texas School of Law through the use of a quota

system. This cause was tried before the Court, without a jury,

on May 16th through May 20th and May 23rd through May

25th, 1994.

| Defendants Bernard Rapopart, Ellen C. Temple, Lowell H.

Lebermann, Jr., Robert Cruikshank, Thomas O. Hicks, Zan W. Holmes, Sr.,

Tom Loeffler, Mario E. Ramirez, and Martha E. Smiley are sued in their

official capacities as members of the University of Texas Board of Regents.

Defendant University of Texas Board of Regents is the governmental entity

created by Defendant State of Texas to administer the operation of the

University of Texas system, which includes Defendant University of Texas

at Austin as a component institution. Defendant University of Texas School

of Law is an American Bar Association accredited law school operated by the

University of Texas at Austin. Defendant Robert M. Berdwhl is sued in his

official capacity as president of the University of Texas at Austin. Defendant

Mark G. Yudof is currently Provost of the University of Texas at Austin. At

all times pertinent to this lawsuit, Yudof was Dean of the University of Texas

School of Law and is sued in that official capacity. Defendant Stanley M.

Johanson, a Professor of Law, is sued in his official capacity as Chair of the

University of Texas School of Law Admissions Committee.

2 The plaintiffs’ Title VI, § 1981, and § 1983 claims serve as

vehicles to enforce underlying rights guaranteed by the Fourteenth

Amendment. Therefore, the law school’s admissions program must be

evaluated under the equal-protection clause of the Fourteenth Amendment.

. " >

a Te ee ae

The cause focuses on one of the most divisive issues

faced by society, affirmative action, and highlights the tension

that exists when the individual rights of nonminorities come into

conflict with programs designed to aid minorities. The plaintiffs

have contended that any preferential treatment to a group based

on race violates the Fourteenth Amendment and, therefore, is

unconstitutional. However, such a simplistic application of the

Fourteenth Amendment would ignore the long history of

pervasive racial discrimination in our society that the Fourteenth

Amendment was adopted to remedy and the complexities of

achieving the societal goal of overcoming the past effects of that

discrimination. Further, the Supreme Court, which is

continually faced with trying to reconcile the meaning of words

written over a century ago with the realities of the latter

twentieth century, has declined to succumb to an original intent

or strict constructionist argument. Therefore, the Court will

decline the plaintiffs’ invitation to ignore the law established by

the highest court of this land and to declare affirmative action

based on racial preferences as unconstitutional per se. The issue

before the Court is whether the affirmative action program

employed in 1992 by the law school in its admissions procedure

met the legal standard required for such programs to pass

constitutional muster. The Court, having carefully considered

the evidence presented at trial, the arguments of counsel, and the

briefing provided by the parties, finds that it did not.

I. HISTORICAL BACKGROUND

The reasoning behind affirmative action is simple--

because society has a long history of discriminating against

minorities, it is not realistic to assume that the removal of

barriers can suddenly make minority individuals equal and able

to avail themselves of all opportunities. Therefore, an

evaluation of the purpose and necessity of affirmative action in

Texas’ system of higher education requires an understanding of

past discrimination against blacks and Mexican Americans, the

minorities receiving preferences in this cause, and the types of

barriers these minorities have encountered in the educational

system.

A. Discrimination in Primary and Secondary Education

The history of official discrimination in primary and

secondary education in Texas is well documented in history

books, case law, and the record of this trial. The Court,

therefore, will address it only in summary fashion.

Even after the Supreme Court’s decision in Brown v.

Board of Education, the State of Texas adopted a policy of

official resistance to integration of its public schools. This

policy of resistance resulted in numerous lawsuits and court-

imposed desegregation plans throughout the past twenty years.

Wright, vol. 19 at 38-44; Romo, vol. 17 at 45-51. Many of the

school districts found to be operating dual systems of education

were also found to practice official discrimination against black

and Mexican American students. Wright, vol. 19 at 40-43;

Romo, vol. 17 at 45-51; Rodriguez, vol. 17 at 8-9.

The problem of segregated schools is not a relic of the

past. Despite the fact that the public school population is

approximately half white and half minority, minority students in

Texas attend primarily majority minority schools while white

students attend primarily white schools. Glenn, vol. 23 at 46-

49. Further, as of May 1994, desegregation lawsuits remain

pending against over forty Texas school districts. D-457; see

also D-370, 373, 419; Wright, vol. 19 at 38-40; Romo, vol. 17

at 45-46.

The lack of educational opportunity for minorities has

been compounded by the lower socioeconomic status of

minorities in Texas. Statistics continue to indicate significant

disparities between minority and nonminority students in skills

and academic knowledge attained in the public schools.

Although the generally lower socioeconomic status of black and

Mexican American families is partially accountable for some of

the disparities, the gap is exacerbated by historically inferior

educational preparation of minorities. Glenn, vol. 23 at 30-36.

Further, at each educational level, there is a marked decline in

the level of attainment by minorities, as reflected in comparison

of drop-out rates between minorities and nonminorities and the

percentages of the respective groups that graduate from high

school and college.’

B. Discrimination in Higher Education

As with primary and secondary education, Texas’ system

of higher education has a history of state-sanctioned

discrimination. Discrimination against blacks in the state system

of higher education is well documented in history books, case

law, and the State’s legislative history. The State of Texas, by

constitution and statute, previously required the maintenance of

“separate schools ... for the white and colored children.” See

Tex. Const. art. VII, § 7 (1925, repealed 1969). This policy

resulted in the establishment of segregated schools for blacks

that were inferior to the white schools. Further, opportunities

available to blacks to attend college were extremely limited.*

In 1946, when Heman Sweatt, a black man, sought

admission to the law school and was refused admission, a Texas

court, while holding that Article VII, Section 7 of the Texas

> In 1990, the percentage of persons age 25 or older who completed

high school was 81.5% non-Hispanic white, 66.1% black, and 44.6%

Hispanic. D- 411. College graduate rates for the same year reflect 25.2%

non-Hispanic whites, 12% black, and 7.3% Hispanic. D-412.

* The Texas Legislature created Prairie View State Normal &

Industrial College for Colored Teachers at Praiiic View (now Prairie View

A&M _ University) for the education of “students to be taken from the colored

population of this State.” Wright, vol. 19, at 17, 19-21. Until 1947, it

remained the only state-supported institution of higher learning open to black

students in Texas; no type of professional training was available to blacks.

Commentary, Tex. Const. art. VII, § 14 (West 1993). In 1947, to avoid

integration of the University of Texas, the Texas Legislaiure created the

Texas State University for Negroes (now Texas Sothern University). /d. at

21-22; D-382.

Constitution precluded his admission, ordered the state to

provide a law school for blacks. See Sweatt v. Painter, 210

S.W.2d 442 (Tex.Civ.App.--Austin 1948). The State hastily

created a makeshift law school that had no permanent staff, no

library staff, no facilities, and was not accredited. Sweatt v.

Painter, 339 U.S. 629, 632, 70 S.Ct. 848, 849-50, 94 L.Ed.

1114 (1950). In 1950, a unanimous United States Supreme

Court ruled that the State of Texas’ provisions regarding the

lega! education of white and minority students violated the

Fourteenth Amendment and ordered that Sweatt be admitted to

the previously all-white University of Texas School of Law.

Sweatt, 339 U.S. at 636, 70 S.Ct. at 851. Sweatt left the law

school in 1951 without graduating after being subjected to racial

slurs from students and professors, cross burnings, and tire

slashings. Wright, vol. 19 at 24-25.

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