Amicus Curiae Brief — Texas v. Hopwood

In the Supreme Court of the United States

OcTORER TERM, 1995

STATE OF TEXAS, ET AL., PETITIONERS

U.

CHERYL J. HOPWOOD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI!

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

DREW S. DAYS, III

Solicitor General

DEVAL L. PATRICK

Assistant Attorney General

PAUL BENDER

Deputy Solicitor General

ISABELLE KATZ PINZLER

Deputy Assistant Attorney

General

RICHARD P. BRESS

Assistant to thr Solicitor

General

DENNIS J. DIMSEY

LESLIE A. SIMON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in holding that

the University of Texas School of Law may not con-

stitutionally consider race or national origin as a

factor in its admissions process.

(1)

TABLE OF CONTENTS

Page

Interest of the United States „ 1

r 2

r die cinta adiibadddceadtbededeescsceasenceseenecnsevocess 90

D / „ 21

TABLE OF AUTHORITIES

Cases:

Adams v. Richardson, 356 F. Supp. 92 (D. D.C.),

aff'd as modified, 480 F.2d 1159 (D.C. Cir. 1973) 3

Adarand Constructors, Inc. v. Petia, 1158. Ct.

EE Tee 12, 13, 14

Atascadero State Hospital v. Scanlon, 473 US.

e 11

Brown v. Board of Education, 347 U.S. 483

eee 2

California v. Rooney, 483 U.S. 307 (1987) . 10

City of Richmond v. JA. Croson Co., 488 U.S. 469

1 13. 17. 18

Dreyer v. Illinois, 187 U.S. 71 (1902) . . 20

Elder v. Holloway, 114 8. Ct. 1019 (1994) 12

Franklin v. Gwinnett Cty. Public Schools, 503 U.S.

1 11

Gaston Cty. v. United States, 395 U.S. 285 (1969) .. 19

Geier v. Alexander, 801 F.2d 799 (6th Cir. 1986) ..... 20

Gunn v. University Comm. to End the War in

Viet Nam, 399 U.S. 383 (19700 12

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .............. 12

Highland Farms Dairy v. Agnew, 300 U.S. 608

1 19

Lewis v. Continental Bank Corp, 494 U.S. 472

1 ———— 12

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547

r 13, 15, 16, 17

(IID)

IV

Cases—Continued: Page

Pennkurst State School & Hosp. v. Halderman,

IJ k 11

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265

. 6, 9, 12, 13, 14

Seminole Tribe of Florida v. Florida, 116 8. Ct.

I 10

Sweatt v. Painter, 339 U.S. 629 (19500 . 2, 3, 15

Sweezy V. New Hampshire, 354 U.S. 234 (1957) ...... 20

United States v. Crucial, 722 F.2d 1182 (5th Cir.

. ů ——̃ —e—— — — 3

United States v. Fordice, 505 U.S. 717 (1992)... 3. 9, 18

United States v. Yonkers Bd. of Educ., 893 F 2d

II 11

Will v. Michigan Dep't of State Police, 491 U.S. 58

CEED cesecnssannasscsetnecnnatetntnsncneiscnsnmensininaibinmadaate 10

Wygant v. Jackson Bd. of Educ., 476 U.S. 267

| Ee 13, 16, 17

Constitution, statutes and regulation:

U.S. Const.:

r 10

Amend. XIV:

Equal Protection Clausssee . . 4

0 a 11

Tex. Const. Art. VII, § 7 (repealed 1969999 2

Civil Rights Act of 1964, Tit. VI, 42 U.S.C. 2000d

— ̃ j 1

I K 10, 11

Se. ee 4

a eee 4, 10

ee 0 Se 1

Miscellaneous:

William Bowen, Admissions and the Relevance of

Race, Princeton Alumni Weekly (Sept. 26, 1977) .... 14

131 Cong. Rec. 22,346 (1985) . ...... 11

132 Cong. Rec. 28,624 (1986) . . 11

Miscellaneous Continued: Page

59 Fed. Reg. (1994):

— 3

1 3

1 œ˙19—UA—A—— (ͤ———T—Uĩ)ꝗ icssemien 1. 14, 17

William H. Honan, New Attack on Race Based

Admissions, N.Y. Times, Apr. 10, 19s 9

S. Rep. No. 388, 99th Cong., 2d Sess. (1986) ............... 11

In the Supreme Court of the United States

OcToBER TERM, 1995

No. 95-1773

STATE OF TEXAS, ET AL., PETITIONERS

V.

CHERYL J. HOPWOOD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The United States Department of Education has pri-

mary responsibility for the administrative enforcement

of federal civil rights laws affecting educational institu-

tions, including Title VI of the Civil Rights Act of 1964,

42 U.S.C. 2000d et seq., which prohibits discrimination on

the basis of race, color, or national origin by recipients of

federal financial assistance. The Department’s regula-

tions and policy guidance interpreting Title VI provide

that educational institutions may take race into consid-

eration for the purposes of remedying past discrimina-

tion or enroliing a diverse student body. See 34 C.F.R.

100.3(b)(6)(i); 59 Fed. Reg. 8756, 8759-8762 (1994).

The Department of Education's Office for Civil Rights

has engaged in efforts to eliminate the vestiges of the

dual systems of higher education that previously were

operated by a number of States, including Texas. The

(1)

United States Department of Justice is participating in

Title VI litigation to desegregate the systems of higher

education in Mississippi, Louisiana, Alabama, and

Tennessee. The United States has a strong interest in

desegregating institutions of higher education and in

ensuring that the States are not hampered in their

efforts to remedy the effects of unconstitutional discri-

mination on those systems.

STATEMENT

1. In 1946, acting pursuant to the requirements of the

Texas Constitution, the University of Texas School of

Law (the Law School) denied admission to Heman

Sweatt, a black man, solely on account of his race. This

Court reversed that decision, unanimously rejecting the

assertion that an unaccredited, makeshift law school

that Texas had established for blacks could provide

Sweatt with an equal educational opportunity. Sweatt v.

Painter, 339 U.S. 629 (1850). Sweatt thereafter became

the only non-white student in the Law School. He left

the school in 1951, without graduating, because of severe

racial harassment from his classmates and professors.

Pet. App. B6.

After Sweatt was decided, the University of Texas

continued officially to discriminate against black and

Mexican-American students with regard to housing and

facilities. Enforced segregation pervaded the State's

entire educational system well into the 1960s. Texas

responded to Brown v. Board of Education, 347 U.S. 488

(1954), with a policy of official resistance to the integra-

tion of its public schools, Pet. App. B4, and as recently

as the 1980s some Texas school districts continued to

! Tex. Const. art. VII, § 7 (repealed 1969) (requiring the main-

tenance of “separate schools * * for the white and colored children”).

3

practice overt race-based segregation, see, ¢.g., United

States v. Crucial, 722 F.2d 1182, 1184-1185 (5th Cir.

1983). In many Texas school districts, the effects of prior

de jure segregation continue to manifest themselves in

segregated schools. Pet. App. B4.

2. In the late 1970s, the Department of Health,

Education and Welfare’s Office for Civil Rights (OCR)

began an investigation of the Texas public higher educa-

tional system, pursuant to the court order in Adams v.

Richardson, 356 F. Supp. 92 (D. D.C., aff'd as modified,

480 F.2d 1159 (D.C. Cir. 1973). OCR found that Texas

had failed to eliminate the vestiges of its dual higher

education system. It began negotiations with the State to

bring it into compliance with Title VI by removing those

vestiges. Pet. App. B7-B8. In 1983, Texas submitted a

desegregation plan acceptable to OCR. That plan in-

cluded both a general commitment “to seek to achieve

proportions of black and Hispanic graduates from under-

graduate institutions in the State who enter graduate

study or professional schools in the State at least equal to

the proportion of white Texas graduates from under-

graduate institutions in the State who enter such

programs,” and a specific commitment by the University

of Texas to increase the number of black and Hispanic

college graduates entering its graduate and professional

schools. Id. at BY n.6. OCR (now within the Department

of Education) has committed to evaluating whether, in

light of United States v. Fordice, 505 U.S. 711 (1992), the

State has eliminated all vestiges of its former de jure

segregated higher education system. See 59 Fed. Reg.

4271, 4272 (1994); Pet. App. B9-B10.

The Law School first initiated affirmative efforts to

include minorities in its student body in the late 1960s,

almost 20 years after Sweatt was decided. Pet. App. B11.

The Law School discontinued this program in 1971; it

consequently admitted no black students that year. /d.

at B12. Since then, its affirmative action efforts have

taken various forms. In 1992, the year respondents were

denied admission, a minority admissions subcommittee

reviewed the files of all black and Mexican-American ap-

plicants and used lower presumptive admissions stan-

dards (based on standardized test scores and college

grade-point averages) for them. The subcommittee pre-

sented recommendations to the full admissions com-

mittee, which accorded them dispositive weight. Id. at

B17-B25.

3. Respondents, three white men and one white

woman, were denied admission to the Law School in 1992.

They filed suit in the United States District Court for

the Western District of Texas, alleging that, “by favoring

less qualified black and Mexican American applicants,”

defendants discriminated against them on the basis of

race, in violation of the Fourteenth Amendment; Title

VI; 42 U.S.C. 1981 and 42 U.S.C. 1983. Pet. App. B2.

After an eight-day bench trial, the district court

concluded that two of the purposes set forth in the Law

School’s “Statement of Policy on Affirmative Action”

(see id. at B39) were sufficiently compelling, under strict

scrutiny, to support race-conscious admissions practices:

(1) achieving the educational benefits of a diverse student

body; and (2) remedying the present effects of past

discrimination in the Law School and in Texas’s edu-

cational system as a whole. Jbid.* Although the court

The court concluded, based on the evidence at trial, that a diverse

student population provides substantial educational benefits “for all

members of a law school class.” Pet. App. B25. The court also found

that the continuing effects of the Law School’s own past discrimination

presented “a strong evidentiary basis for concluding that remedial ac-

tion is necessary.” Id. at B43. Observing, moreover, that t he State’s

institutions of higher education are inextricably linked to the primary

5

observed that “[a]lternatives, such as minority scholar-

ships and increased minority recruitment” are “effective

tools in conjunction with the affirmative action pro-

gram,” it concluded that those measures “would not be

effective means by themselves to meet the compelling

governmental interests of true diversity and remedying

the effeetſs] of past de jure segregation.” Id. at B47-B48.*

The district court determined, however, that the Law

School’s use of a separate minority subcommittee effec-

tively precluded individual comparisons between minor-

ity and nonminority applicants and thus did not satisfy

the narrow tailoring requirement of strict scrutiny. For

that reason, the court held that the Law School’s 1992

admissions practices violated respondents’ right to equal

protection. Pet. App. B38-B59, B66-B67.

The district court denied respondents’ prayer for

relief in most other respects. It awarded only nominal

damages, and declined to order respondents’ admission to

the Law School, having concluded from the evidence

that, “in all likelihood, [respondents] would not have been

offered admission even under a constitutionally per-

missible process.” Pet. App. B65. The court also de-

—

and secondary schools in the system,“ ibid., the court found an addi-

tional compelling remedial interest in redress ꝙ the effects of the dis-

crimination that pervaded the Texas educational system as a whole, id.

at B46.

Under its general admissions criteria, and absent affirmative

action, the Law School’s 1992 entering class would have included, at

most, a very small number of black and Mexican-American students.

Pet. App. B41 & n.60, B47. The district court also found that the effect

of eliminating affirmative action at the Law School would be to direct

even more minority students to Texas Southern University Law

School—the school Texas created, in response to Heman Sweatt's

lawsuit, in order to avoid integration of the University of Texas. Id. at

B47 & n.66.

6

clined to issue an injunction against the Law School’s

future consideration of race in the admissions process.

The court noted that Law School had, during the course

of the litigation, adopted new admissions practices that

eliminated the minority subcommittee and the use of

differing presumptive admissions standards. The new

practices “appear{ed] to remedy the defects the Court

hald] found in the 1992 procedure”; and, in any event,

the application of the new practices was not before the

court. Jd. at B67. The court directed that respondents

be permitted to reapply (without fee) for admission to

the 1995 entering class under the new admissions prac-

tices. Id. at B67-B68.

4. Petitioners did not appeal the district court’s ruling

that the Law School’s 1992 admissions process vio-

lated equal protection; respondents appealed the district

court’s denial to them of damages and injunctive relief.

The court of appeals reversed.’ Expressly rejecting the

continuing force of this Court’s holding in Regents of the

Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), the panel

majority held that, no matter how narrowly tailored the

process, “the law school may not use race as a factor in

law school admissions.” Pet. App. A3.

The court of appeals concluded that this Court’s opin-

ions since Bakke leave no room for the view that a law

school may ever take race into account for the purpose of

obtaining the educational benefits of a diverse student

population. Although none of the cases cited by the panel

majority involved school admissions standards, the panel

4 The court of appeals affirmed the district court’s order denying the

request of two black student groups to intervene for the purpose of

introducing evidence of discriminatory effects of the Law School's

current admissions procedures. Those denied intervention have filed a

petition (No. 95-1845) seeking review of that decision.

majority read them to establish that, irrespective of

context, remedying past discrimination is the only

governmental interest that may warrant consideration of

race. Pet. App. A24-A26.

The court then rejected, as insufficiently compelling,

the Law School’s and State’s interest in remedying the

effects of de jure segregation in the Texas system of

public education. It held that, just as “a state does not

have a compelling state interest in remedying the effects

of past societal discrimination,” a particular state actor

has no governmental interest in remedying official

discrimination that has occurred at other levels of state

government. Pet. App. A35, A36-A40. Past discrimina-

tion in Texas’s primary and secondary schools, in its

system of higher education, or at the University of Texas

itself could not, in the court’s view, “justify the present

consideration of race in law school admissions.” Id. at

A45.

With regard to the Law School’s interest in remedying

its own history of official discrimination, the majority

held that neither the Law School’s, reputation as a

“white” institution, nor its hostile racial climate, justify

consideration of race in its admissions process. Those

conditions result, in its view, from (respectively) mere

“knowledge of historical fact” and “present societal dis-

crimination.” Pet. App. A42.

With respect to certain forms of relief sought by re-

spondents, the court of appeals concluded that the dis-

trict court erred in placing the burden of proof on re-

spondents to demonstrate that they would have been ad-

mitted to the Law School under a constitutionally per-

missible admissions policy. Pet. App. A48-A51. It in-

structed that each respondent must, on remand, be

awarded admission to the Law School and given the op-

portunity to establish monetary damages, unless the Law

8

School proves that that respondent would not have been

admitted in 1992 under a completely race-blind proce-

dure. Jd. at A51-A52. The court of appeals further

directed that, should they choose to reapply, respondents

“are entitled to apply under a system of admissions that

will not discriminate against anyone on the basis of race.”

Id. at A54.

Finally, the court of appeals affirmed the distriet

court’s denial of prospective injunctive relief, “confident

that the conscientious administration at the school, as

well as its attorneys, wiould] heed the directives

contained in [its] opinion.” Pet. App. A55. It cautioned,

however, “that if the law school continues to operate a

racial classification system in the future, its actors

could be subject to actual and punitive damages.” Ibid.

Judge Weiner concurred only in the judgment. Pet.

App. A63-A75. He saw no need in this case to determine

whether diversity is a compelling governmental interest

in the graduate school context, id. at A63-A70, and

(noting that respondents had challenged only the Law

School’s 1992 admissions policy), faulted the majority for

issuing what amounted to a “de facto” prospective in-

junction, id. at A73.

Considering the matter sua sponte, the court of

appeals denied rehearing en banc. Pet. App. CI-C3.

Seven of the Circuit’s sixteen active judges dissented

from the denial.° Jd. at EI-EII. Chief Judge Politz’s

dissenting opinion argued that the “radical implications”

and “monumental import” of the case demanded en banc

review, id. at E2, and criticized the panel for “stringing

together pieces and shards of recent Supreme Court

opinions * * * asa justification for overruling Bakke,”

id. at E3. Judge Stewart, writing separately, noted that

5 Judge Garza did not participate in the decision. Pet. App. C3.

5

9

official segregation had occurred at the Law School in

the relatively recent past, and stressed the need to

carefully consider that legacy when judging the lawful-

ness of the school’s present remedial efforts. Id. at E9-

Ell.

ARGUMENT

The court of appeals has flatly held that the

University of Texas School of Law may not consider the

race of applicants as a relevant factor in making its

admissions decisions. If left unreviewed, this decision

will effectively eliminate all affirmative action admissions

programs in higher education within the Fifth Circuit.°

The court of appeals recognized that its decision is

inconsistent with the holding of this Court in Regents of

the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). By

disregarding two decades of established law under

Bakke, the decision has already created substantial

confusion and upheaval among colleges and universities

nationwide.’ It also calls into question the lawfulness of

existing Department of Education policies and regula-

tions, and interferes with the federal government’s

efforts to obtain voluntary compliance by the States with

® Because the constraints imposed by Title VI on affirmative action

programs are the same as those imposed by the Constitution, see

United States v. Fordice, 505 U.S. 717, 732 n.7 (1992), the decision

affects private colleges and universities that receive federal assistance

as well as state institutions. We are informed by the National Center

for Education Statistics, within the Department of Education, that

there are more than 240 colleges and universities offering four-year

degrees in Texas, Louisiana, and Mississippi.

The Attorney General of one State outside the Fifth Circuit

(Georgia) has already recommended that affirmative action policies in

the State’s colleges and universities be revised or eliminated in light of

the decision below. See William H. Honan, New Attack on Race-Based

Admissions, N.Y. Times, Apr. 10, 1996, at BS.

10

their desegregation obligations. The decision below thus

raises issues of national importance that call for this

Court’s review.

1. The court of appeals’ conclusion that the Law

School has no compelling interest that warrants its

consideration of race or national origin in its admissions

process cannot be dismissed as mere “statements in [an]

opinion{].” California v. Rooney, 483 U.S. 307, 311 (1987).

That conclusion was essential to the terms of the court’s

remand order. In remanding the case to the district

court to consider remedy, the court of appeals ruled that,

for relief to be denied to a respondent, the Law School

must prove that that respondent would not have been

admitted under what the court of appeals held, in the

liability portion of its opinion, to be the only consti-

tutionally permissible admissions policy, i.e., a completely

“race-blind system.” Pet. App. A5l. The court of

appeals’ conclusion that the Law School may not consti-

tutionally consider race in admissions was therefore an

essential part of the court’s holding, and not merely

“unfortunate dicta” (id. at ES).

* Petitioners suggest (Pet. 22-24) that the Eleventh Amendment

bars federal courts jurisdiction in suits against the States under Title

VI. Even if that were so, the district court would have jurisdiction to

afford prospective injunctive relief (in the form of admission to the Law

School) against the individual petitioners in their official capacities

under 42 U.S.C. 1983. See Will v. Michigan Dep't of State Police, 491

U.S. 58, 71 n.10 (1989). Such relief is not barred by sovereign immu-

nity. See Seminole Tribe v. Florida, 116 S. Ct. 1114, 1131 nn. 14, 16

(1996).

In any event, Texas has no sovereign immunity from suits brought

under Title VI. In 1986, Congress, “act{ing] pursuant to a valid exercise

of power,” Seminole Tribe, 116 S. Ct. at 1123, expressly abrogated the

States’ Eleventh Amendment immunity under Title VI. See Pub. L.

No. 99-506, Tit. X, § 1003, 100 Stat. 1845, codified at 42 U.S.C. 2000d-7;

see also Franklin v. Gwinnett Cty. Public Schools, 503 U.S. 60, 72-73

11

Moreover, although the court of appeals declined to

authorize a formal injunction at this time barring the

Law School from any consideration of race or national

origin in its admissions program, the court’s opinion

effectively amounts to such an injunction. The court

directed that, “[iJn accordance with [its] opinion,” respon-

dents must be permitted to reapply “under a system of

admissions that will not discriminate against anyone on

the basis of race,” Pet. App. A54, and expressly warned

that the Law School's failure to “heed” the “directives

contained within [its] opinion” would provide cause for

punitive damages. Id. at A55.“ [When confronted with

(1992). Section 2000d-7 was enacted in response to this Court's decision

in Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242-243 (1985).

It provides that a “state shall not be immune under the Eleventh

Amendment * * * from suit in Federal Court fora violation of * * *

Title VI.“ The legislative history of the provision shows that Congress

acted pursuant to its authority under Section 5 of the Fourteenth

Amendment. See S. Rep. No. 388, 99th Cong., 2d Sess. 27 (1986): 131

Cong. Ree. 22,346 (1985); 132 Cong. Rec. 28,624 (1986). The only court of

appeals to consider the issue upheld Section 2000d-7 against an

Eleventh Amendment challenge on that basis. See United States v.

Yonkers Bd. of Edue., 893 F 2d 498, 503 (2d Cir. 1990). In addition, and

contrary to petitioners’ suggestion (Pet. 24 n.17), Congress's explicit

decision that the States be subject to suit in federal court under Section

2000d-7 “makes it clear to the [Skates that their receipt of Federal

funds constitutes a waiver of their [E Jleventh [Amendment immunity.”

132 Cong. Ree. 28,624 (1980), See Pennhurst State School & Hosp. v.

Halderman, 451 U.S. 1, 1 (1981).

* The panel subsequently noted the “necessity” that petitioners

“implement as soon as possible thie] court’s mandate to end racial dis-

crimination in admissions at the law school.” Pet. App. Do (emphasis

added). The court of appeals would also likely conclude that the panel's

“directives” established the law of the circuit with sufficient clarity to

foreclose a claim of qualified immunity for university or state officials

sued for damages for considering race as a factor in admissions deci-

12

such an opinion by a federal court, state offitials would

no doubt hesitate long before disregarding it.” Gunn v.

University Comm. to End the War in Viet Nam, 399 U.S.

383, 390 (1970). Having “all of the substantive earmarks

of an injunction,” the court of appeals’ opinion is cor-

rectly treated as such. Pet. App. A73.”

2. In Bakke, this Court affirmed the judgment of the

California Supreme Court holding unconstitutional a

state medical school’s use of a rigid race had admissions

quota, but reversed that portion of the state-court judg-

ment that completely prohibited the school from con-

sidering race in its admissions process. Five Justices

agreed in Bakke that the medical school could consti-

tutionally consider race under a “properly devised admis-

sions program.” 438 U.S. at 320 (opinion of Powell, J.);

id. at 328 (Brennan, J., concurring in the judgment in

part, and dissenting in part). Bakke’s landmark hold-

sions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Elder v.

Holloway, 114 8. Ct. 1019, 1021 (1994).

Petitioners correctly assert (Pet. 28-29) that respondents lacked

standing to assert the rights of nonparties, and that the court of appeals

therefore had no jurisdiction to issue injunctive relief barring

consideration of race by the Law School with respect to other

applicants. See Lewis v. Continental Bank Corp., 494 U.S. 472, 479

(1990) (AT ne Article III question is not whether the requested relief

would [affect] the world at large, but whether [respondents] halve] a

stake in the relief.”). The court of appeals’ directives were also related,

however, to the court's instruction that respondents personally be

accorded the right to reapply to the Law School under a race-blind

system. Pet. App. A54. To the extent that any respondent demon-

strated “a real and immediate” possibility that he or she would in fact

reapply, that would provide standing and establish the court of appeals’

jurisdiction to afford individual prospective injunctive relief. See, „.

Adarand Constructors, Inc. v. Petia, 115 8. Ct. 2097, 2104 (1995).

un The remaining Justices would have affirmed the state court's

holding that Bakke’s exclusion from the medical schee! violated Title

13

ing has guided the admissions policies of public and

private institutions of higher education in the United

States for almost two decades. The panel below never-

6 that Bakke’s holding is no longer good

w

Justice Powell's opinion in Bakke applied strict seru-

tiny. Bakke, 438 U.S. at 291. It rested its approval of

the use of race in the context of a properly devised ad-

missions program on the educational benefits of a diverse

student body. Id. at 311-315. This Court has cited Bakke

for the proposition that “a ‘diverse student body’ con-

tributing to a ‘robust 2 of ideas’ is a constitu-

tionally permissible goal’ on which a race-conscious uni-

versity admissions program may be predicated.” Metro

Broadcasting, Inc. v. FCC, 497 U.S. 547, 568 (1990),

overruled in part, Adarand Constructors, Inc. v. Peta,

115 S. Ct. 2097 (1995); see also Wygant v. Jackson Bd. of

Educ., 476 U.S. 267, 286 (1986) (O'Connor, J., con-

curring) (AAllthough 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.”).

The court of appeals declined to follow Bakke because,

in its view, a majority of this Court has since rejected the

diversity rationale as a permissible predicate for affirma-

tive action. See Pet. App. A1l7-A33. In so concluding,

the court of appeals relied on cases involving affirmative

action in public contracting, such as Adarand, supra,

and City of Richmond v. J.A. Croson Co., 488 U.S. 469

(1989), rather than decisions regarding higher education

VI. They expressly declined to address the constitutionality of the

admissions program. See 438 U.S. at 408-409 (Stevens, J. concurring

in the judgment in part and dissenting in part).

14

admissions programs.” The Court’s suggestion in Croson

that racial classifications should be “reserved for reme-

dial settings,” 488 U.S. at 493, was made in the context

of public contracting, where redress of past discrimina-

tion may be the only compelling governmental purpose

for the use of racial preferences. See id. at 512-513

(Stevens, J., concurring). Affirmative action may also

serve vital remedial interests in the university admissions

setting. See pp. 16-20, infra. It may, in addition, con-

tribute to—indeed be necessary to—achieving the goal of

educational diversity,” a goal not relevant in the

awarding of construction contracts.

E Adarand and Croson established that strict scrutiny applies to

race-conscious affirmative action programs. The Court expressly noted

in Adarand that Justice Powell also applied “the most exacting judicial

examination” when he concluded in Bakke that diversity constitutes a

sufficiently weighty state interest in the context of admissions in

higher education. See Adarand, 115 S8. Ct. at 2108 (quoting Bakke, 438

U.S. at 291 (opinion of Powell, J.)).

The Department of Education has relied upon Justice Powell's

opinion in Bakke as a basis for concluding that diversity-based

affirmative action in higher education does not violate Title VI, so long

as it meets the constitutional standards described by Justice Powell.

See 59 Fed. Reg. 8756, 8760-8762 (1994). Relying on Justice Powell's

opinion in Bakke, the district court concluded in this case that the Law

School's 1992 practice was constitutionally infirm, not because it

considered race as a factor in admissions, but because it utilized a

“separate process” that failled] to afford each individual applicant a

comparison with the entire pool of applicants, not just those of the

applicant’s own race.” Pet. App. B59. We agree that the 1992

“separate process” policy was constitutionally flawed in this manner.

Petitioners did not appeal the district court's ruling with respect to the

1992 policy, “having abandoned that policy in 1994 in favor of one that

treated race as simply a factor in the individualized consideration and

comparison of applicants to the Law School.” Pet. 3-4. The consti-

tutionality of the means by which the Law School has taken race into

account is therefore not at issue. Rather, the question here is whether

15

Justice Powell’s observation in Bakke (a case involving

medical school admissions) that “an otherwise qualified

* * * student with a particular background * * may

bring to a professional school ** * * experiences, outlooks

and ideas that enrich the training of its student body and

better equip its graduates,” 438 U.S. at 314," has even

greater force with regard to schools that educate and

train lawyers. Law students cannot effectively be

trained “in isolation from the individuals and institutions

with which the law interacts.” Sweatt, 339 U.S. at 634.

This Court correctly concluded in Sweatt that a black

student could not receive an effective legal education in

Texas while being kept separate from “members of racial

groups which numberſed] 85% of the population of the

State.“ Jbid. The predominantly white University of

Texas Schoo! of Law may similarly conclude today that,

absent racial diversity in its classrooms, its students will

not effectively be prepared to be lawyers in Texas’s (or

the Nation’s) racially diverse society.

The court of appeals’ suggestion that the Law School

may constitutionally consider non-racial factors, includ-

ing economic and social background, that might be

the Law School may consider race at all in making its admissions

Justice Powell recognized in Bakke, 438 U.S. at 312 n.48 (quoting

William Bowen, Admissions and the Relevance of Race, Princeton

Alumni Weekly (Sept. 26, 1977) at 9), that

a great deal of learning occurs informallyl.) * * through

interactions among students of both sexes; of different races,

religions and backgrounds; who come from cities and rural areas,

from various states and countries; who have a wide variety of

interests, talents and perspectives; and who are able, directly or

indirectly, to learn from their differences and to stimulate one

another to reexamine even their most deeply held assumptions

about themselves and their world.

16

closely correlated with race, Pet. App. A27, A29 n.31, ig-

nores the Law School’s compelling educational interest in

maintaining a racially diverse student body. In the law

school admissions context, race is not merely a “proxy for

other, more germane bases of classification,” Metro

Broadcasting, 497 U.S. at 621 (O'Connor, J., dissenting),

such as economic disadvantage. As the district court

found from the evidence at trial, Pet. App. B41, at this

time in the history of Texas and the United States, the

inclusion in the law school educational process of those

who have experienced, and will continue to experience,

racial minority status, is essential to achieving meaning-

ful educational diversity. That view does not rest on

impermissible racial stereotypes; it does not equate race

with particular viewpoints; and it does not presume that

all individuals of a particular race act or think alike. An

admissions program that values racial diversity recog-

nizes that a black (or Mexican-American) student reared

in this country is likely to have had different life

experiences, precisely because of his or her race, than an

otherwise similarly situated white student. What each

individual takes from those life experiences is unique;

indeed, students may benefit from diversity by learning

first-hand that “particular and distinct viewpoint[s) [do

not] inhere in certain racial groups.“ Metro Broad-

casting, 497 U.S. at 618 (O'Connor, J., dissenting). Cf.

Wygant, 476 U.S. at 316 (Stevens, J., dissenting)”

5 Assuming that a law school may constitutionally consider race as

a factor for purposes of educational diversity, the means by which it

does so must be narrowly tailored to advance that interest, in order to

ensure that the school’s race-sensitivity does not reflect or promote

racial stereotypes, see Adarand, 488 U.S. at 493, or impose dispro-

portionate harm on nonminority applicants, see Wygant, 476 U.S. at 287

(O Connor, J., concurring). See also 59 Fed. Reg. at 8760-8762. A law

school may not, for example, employ rigid numerical goals amounting

17

3. The legitimacy of the Law School’s concern for

diversity in this case is underscored by the history of

educational discrimination in Texas. The vestiges of that

history have kept many black and Mexican-American

students separated from white students for most of their

educational lives. In prohibiting the use of race in Law

School admissions, the court of appeals acknowledged

that official discrimination against minorities has existed

in the State’s public schools, see Pet. App. A39, and it did

not dispute the district court’s finding (id. at B45) that

t ne effects of the State’s past de jure segregation in the

education system are reflected in the low enrollment of

minorities in pr fessional schools, including the law

school.” The court held, however, that the Law School's

constitutionally valid remedial interests extend no

further than redressing the effects of its own prior racial

discrimination. Id. at A38n.43. That conclusion finds no

support in this Court’s jurisprudence; it ignores the close

nexus between a state university and the State’s public

schools; and it represents an unwarranted intrusion into

state governmental structures.

a The practical effect of the court of appeals’ holding

will be to return the most prestigious institutions within

state university systems to their former “white” status,

and thereby to prolong, rather than eliminate, the ves-

tiges of unconstitutional exclusion and segregation. That

result ignores Texas’s strong interest in eliminating the

vestiges of state-sponsored discrimination—an interest

to fixed quotas or set-asides, which deny each applicant's right to be

treated as an individual in the admissions process in a pool of

— : 2 of all races. See Bakke, 438 U.S. at 318-220 (opinion of

owell, J.).

18

that is not satisfied by the mere adoption of race-neutral

policies. See Fordice, 505 U.S. at 721, 729-732."

The court of appeals’ position is not supported by this

Court’s holding in Croson that the City of Richmond had

no compelling interest in remedying past discrimination

in the national construction industry. 488 U.S. at 498.

The Law School was not motivated here by generalized

assertions of societal discrimination, which is an imper-

missible ground for affirmative action. Rather, it was

attempting to address the effects on the Law School of

the State’s former de jure segregated system of public

education. The court recognized that “‘[a]pplicants do

not arrive at the admissions office of a professional school

ina vacuum.“ Pet. App. B43. Texas has imposed a re-

quirement that most (in 1992, 85%; now, 80%) of the Law

School’s entering class be Texas residents. Id. at B23-B24

& n.33. Most students considered for admission in 1992

would therefore have attended Texas public schools

during a period (the 1970s and 1980s) when many of the

State’s primary and secondary schools remained

segregated as a result of prior de jure segregation. The

district court here found that the effects of that segrega-

tion “are reflected in the low enrollment of minorities in

* * * the law school.” Pet. App. B45.

This Court has “repeatedly recognized that the Government

possesses a compelling interest in remedying the effects of identified

race discrimination.” Metro Broadcasting, 497 U.S. at 611 (O'Connor.

J., dissenting). States and state subdivisions have both the “consti-

tutional duty to take affirmative steps to eliminate the continuing

effects of [their] past unconstitutional discrimination,” Wygant, 476

U.S. at 291 (O’Connor, J., concurring); id. at 280 (plurality opinion), and

the constitutional “authority to eradicate the effects of [even] private

discrimination” within their respective jurisdictions, Croson, 488 U.S.

491-492 (opinion of O'Connor, J.).

19

If the Law School is completely prohibited from taking

those effects into account in its admissions process, the

legacy of de jure discrimination will be left unremedied

for another generation, and the Law School itself will be

forced to become “a ‘passive participant’ in a system of

racial exclusion,” using “public dollars, drawn from the

tax contributions of all citizens” to finance unlawful seg-

regation. Croson, 488 U.S. at 492 (opinion of O’Connor,

J.): ef. Gaston Cty. v. United States, 395 U.S. 285, 296.

297 (1969) (Harlan, J.) (given the history of official

segregation and systemic deprivation of educational op-

portunities to blacks, “ ‘{i}mpartial’ administration of the

literacy test today would serve only to perpetuate * * *

inequalities”). The Constitution does not prohibit a State

from attempting to compensate for injuries at one stage

of the educational process through a remedial program at

a later stage.”

' The Court stated in Croson that “discrimination in primary and

secondary schooling” cannot justify “a rigid racial preference in

medical school admissions.” 488 U.S. at 499. The Court there was

apparently adverting to Justice Powell’s conclusion in Bakke that the

medical school could not rely on generalized societal discrimination

(including generalized discrimination in education) to justify its use of

a fixed numerical quota. In this case, the University of Texas School of

Law is attempting to remedy recent, documented segregation in

Texas’s primary and secondary schools. The court of appeals has,

moreover, prohibited al! use of race in the admissions process—not only

the use of fixed or rigid quotas.

As petitioners note (Pet. 18 & n.11), the court of appeals’ view that a

school of higher education may not take into account in its admissions

process the effects of segregation at the primary and secondary school

levels conflicts with the position taken by the Sixth Circuit in Geier v.

Alexander , 801 F.2d 799 (1986). In Geier, the court of appeals upheld the

University of Tennessee’s consideration of race in admissions to a pre-

professional program, on the ground that the university was not

“seek[ing] to remedy some amorphous ‘societal’ wrong, but rather

20

b. There is no warrant for the court of appeals’ insis-

tence that, “for the admissions scheme to pass constitu-

tional muster, the State of Texas, through its legislature,

would have to find that past segregation has present

effects.” Pet. App. A39. [A] contemporaneous or ante-

cedent finding of past discrimination by a court or other

competent body is not a constitutional prerequisite” to

the adoption of an affirmative action plan. Wygant, 476

U.S. at 289 (O’Connor J., concurring). The unlawful

segregation of blacks and Mexican-Americans in Texas’s

public school systems is an undisputed matter of public

record. In light of its extensive experience with students

drawn from the State’s public schools, the Law School is

particularly well placed to assess the effects of that

segregation on its minority applicants.

Moreover, “how power shall be distributed by a state

among its governmental organs is commonly, if not

always, a question for the state itself.“ Highland Farms

Dairy v. Agnew, 300 U.S. 608, 612 (1937) (Cardozo, J.).

Here, the Texas legislature, “which has ultimate control

over the school, has delegated its ‘management and

control’ to the regents of the University of Texas

system,” Pet. App. B40 n.44, and the Board of Regents

has in turn largely delegated the responsibility to fashion

lawful and educationally beneficial admissions policies to

the individual schools within the system. The Constitu-

tion does not require (or, indeed, permit) federal courts

to second-guess the wisdom of those delegations.”

addressing “the continuing effects of past practices that adversely

affected blackls * * as they moved through the public school

systems and the higher education system of the state.” 801 F.2d at 809-

810.

See, e.g., Dreyer v. Illinois, 187 U.S. 71, 84 (1902) (Harlan, J.);

Sweezy v. New Hampshire, 354 U.S. 234, 256 (1957) (Frankfurter, J.,

concurring in the judgment).

2)

CONCLUSION

The petition for a writ of certiorari should be granted

to review the court of appeals’ holding that the

University of Texas School of Law may not consider race

or national origin in any manner in its admissions

process.

Respectfully submitted.

Drew S. Days, III

Solicitor General

DEVAL L. PATRICK

Assistant Attorney General

PAUL BENDER

Deputy Solicitor General

ISABELLE KATZ PINZLER

Deputy Assistant Attorney

General

RICHARD P. BRESS

Assistant to the Solicitor

General

DENNIS J. DIMSEY

LESLIE A. SIMON

Attorneys

MAY 1996