# Appendix — Thurgood Marshall Legal Society v. Hopwood

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1333%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1033

## Text

Co

No. 95. HR 18 46 NAY 15 1996

OFFICH OF THE CLERK
IN THE,

Supreme Court of the Anited States

OCTOBER TERM, 1995

THURGOOD MARSHALL LEGAL SOCIETY AND
BLACK PRE-LAW ASSOCIATION,
Petitioners,
va

CHERYL J. HOPWOOD, e: al.,
Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit

APPENDIX TO THE PETITION

FOR WRIT OF CERTIORARI
ELAINE R. JONES ANTHONY P. GRIFFIN
DIRECTOR-COUNSEL ANTHONY P. GRIFFIN, INC.
1115 Moody
THEODORE M. SHAW Galveston, TX 77550
NORMAN J. CHACHKIN (409) 763-0386
CHARLES STEPHEN RALSTON
*DENNIS D. PARKER DAVID VAN Os
NAACP LEGALDEFENSEAND VAN Os & OWEN
EDUCATIONAL FUND, INC. 900 Congress Avenue
99 Hudson Street Suite 400
Suite 1600 Austin, TX 78701
New York, NY 10013 (512) 479-6155

(212) 219-1900
*Counsel of Record

JANELL M. BYRD
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005
(202) 682-1300

Attorneys for Petitioners

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208 : r

TABLE OF CONTENTS

Opinion of the United States Court of Appeals
for the Fifth Circuit, March 18, 1996 ........... la

Opinion of the United States Court of Appeals
for the Fifth Circuit on intervention, May 11,
BES UE PEE TS eet Da reat te a 94a

Memorandum Opinion of the United States District
Court for the Western District of Texas, Austin
Se ES Es 6 ca wie Oe ec a's bs 10la

Order of the United States District Court for the
Western District of Texas, Austin Division, denying
renewed motion to intervene, July 15,1994 .... 188a

Order of the United States District Court for the
Western District of Texas, Austin Division, denying
motion to intervene, January 20,1994 ........ 190a

Order of the United States Court of Appeals for
the Fifth Circuit denying rehearing and rehearing
fe re ee ee ee ee 196a

la

Cheryl J. HOPWOOD, et al.,
Plaintiffs-Appellees,
v

STATE OF TEXAS, et al.,
Defendants-Appellees,

v.
THURGOOD MARSHALL LEGAL SOCIETY and
Black Pre-Law Association,
Movants-Appellants.

Douglas CARVELL, et al.,
Plaintiffs-Appellees,

v.
STATE OF TEXAS, et al.,
Defendants-Appellees,

v.

THURGOOD MARSHALL LEGAL SOCIETY and
Black Pre-Law Association,
Movants-Appellants.

Cheryl J. Hopwood, et al., Plaintiffs

Cheryl J. HOPWOOD, et al.,
Plaintiffs-Appellants,
v

STATE OF TEXAS, et al.,
Defendants-Appellees.

Douglas Carvell, et al., Plaintiffs,

Douglas CARVELL,
Plaintiff-Appellant,
v.
STATE OF TEXAS, et al.,
Defendants-Appellees.

2a
Nos. 94-50569, 94-50664.

United States Court of Appeals,
Fifth Circuit

March 18, 1996.

Before SMITH, WIENER and DeMOSS, Circuit
Judges.

JERRY E. SMITH, Circuit Judge:

With the best of intentions, in order to increase the
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 detriment of whites and non-preferred
minorities. The question 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, 199

3a

S.Ct. 706, 740, 102 L.Ed.2d 854 (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 the
appeal for want of jurisdiction.

[.
A.

The University of Texas School of Law is one of
the nation’s leading law schools, consistently ranking in
the top twenty. See, e.g, America’s Best Graduate Schools,
U.S. NEWS & WORLD REPORT Mar. 20, 1995, at 84
(national survey ranking of seventeenth). Accordingly,
admission to the law school is fiercely competitive, with
over 4,000 applicants a year competing to be among the
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-called Texas
Index ("TT") number, a composite of undergraduate grade

4a

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 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

'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.

Sa

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 Johaiason, the Chairman of the
Admissions Committee, or Dean Laquita Hamilton, the
Assisiant 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

"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.

6a

them if they believed that the TI score did not adequately
reflect potential to compete at the law school. Otherwise,
the applicant was rejected.

Applications in the middle range were subjected to
the most extensive scrutiny. For all applicants other than
blacks and Mexican Americans, the files were bundled
into stacks of thirty, which were given to admissions
subcommittees consisting of three members of the full
admissions committee.

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

*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 aplication form
segregated racial and ethnic classification into seven
categories--"Black/African American," "Native American,"
"Asian American,” "Mexican American,” "Other Hispanic”

7a

ranges that were used to place them into the three
admissions categories were lowered to allow the law
school to consider and admit more of them. In March
1992, for example, the presumptive TI admission score for
resident whites and non-preferred minorities was 199.°
Mexican Americans and blacks needed a TI of only 189
to be presumptively admitted.° The difference in the

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

"Because of a recent change in the grading scale of the
LSAT, the law school in 1992 had applicants who had taken an
earlier LSAT scored on a 10-to-48 scale and others who had
taken a later one scored on a 120-to-180 scale. Equivalence
calculations were used to compare scores received on the two
scales. For example, TI numbers of 199 (three-digit LSAT)
and 87 (two-digit LSAT) were equivalent. For the sake of
simplicity, we use three-digit numbers throughout this opinion.

“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

8a

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 157. The category of "other minority"
achieved a 3.56 and 160.’

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:

Ethnicity Resident Nonresident
GPA/LSAT GPA/LSAT
All students 3.52/162 3.61/164
White 3.56/164 3.72/166
Black 3.30/158 3.30/156

Mexican American 3.24/157 3.38/174 *
Other minority 3.58/160 3.77/157

* Only two matriculated applicants.

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

9a

These disparate standards greatly affected a
candidate’s chance of admission. For example, by March
1992, because the presumptive denial score for whites was
a TI of 192 or lower, and the presumptive admit TI for
minorities was 189 or higher, a minority candidate with a
TI of 189 or above almost certainly would be admitted,
even though his score was considerably below’ the level

166 94% 43
164 %1% 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 presumptive denial as
a white, i.e., to obtain a TI of 193 or above, her LSAT had to
be at least a 155, a score in approximately the top 32% of
test-takers. If she were black (thus, needing a 180 TI), she
would have had to score a 142 on the LSAT, ranking her only
in the top 80%. Likewise, a student similar to Carvell, who
had a 3.28 GPA, would have needed a “white” LSAT of 160
(top 17%) and a "black" 147 (top 63%). A student like
Rodgers with a 3.13 would have needed either a 162 (top 12%)
as a white or 149 as a black (top 56%). Finally, a student

10a

at which a white candidate almost certainly would be
rejected. Out of the pool of resident applicants who fell
within this range (189-192 inclusive), 100% of blacks and
90% of Mexican Americans, but only 6% of whites, were
offered admission.°

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 mintaining separate presumptive TI
levels for minorities and whites, the law school ran a
segregated application evaluation process. Upon receiving
an application form, the school color-coded it according
to race. If a candidate failed to designate his race, he was

like Elliott with a 2.98 GPA would have needed a 163 (top
10%) or 150 (top 53%), respectively.

*According to the plaintiffs, 600-700 higher-scoring white
residents were passed over before the first blacks were denied
admission. There is no specific finding on this assertion, and
though the law school does not appear to refute it, we do not
rely upon it in making our decision.

“Thus, the law school constantly had to adjust its TI range
over the course of the admissions season to reach a desired
mix. See supra note 6.

lla

presumed to be in a nonpreferential category. Thus, race
was always an overt part of the review of any applicant’s
file.

The law school reviewed minority candidates within
the applicable discretionary range differently from whites.
Instead of being evaluated and compared by one of the
various discretionary zone subcommittees, black and
Mexican American applicants’ files were reviewed by a
minority subcommittee of three, which would meet and
discuss every minority candidate. Thus, each of these
candidates’ files could get extensive review and discussion.
And while the minority subcommittee reported summaries
of files to the admissions committee as a whole, the
minority subcommittee’s decisions were "virtually final."

Finally, the law school maintained segregated
waiting lists, dividing applicants by race and residence.
Thus, even many of those minority applicants who were
not admitted could be set aside in “minority-only" waiting
lists. Such separate lists apparently helped the law school
maintain a pool of potentially acceptable, but marginal,
minority candidates."'

B.

Cheryl Hopwood, Douglas Carveil, Kenneth Elliott,
and David Rogers (the "plaintiffs") applied for admission

"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.

12a

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, a score barely
within the presumptive-admit category for resident whites,
which was 199 and up. She was dropped into the
discretionary zone for resident whites (193 to 198),
however, because Johanson decided her educational
background overstated the strength of her GPA. Carvell,
Elliott, and Rogers had TI’s of 197, at the top end of that
discretionary zone. Their applications were reviewed by
admissions subcommittees, and each received one or no
vote.

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

"The district court discussed in detail the plaintiffs’
qualifications and their rejections. See 861 F. Supp. at 564-67.

“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 School 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.

13a

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. Tue 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.
Ia. at 583.

The district court began by recognizing the proper
constitutional standard under which to evaluate the
admissions program: strict scrutiny. Jd. 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

l4a

the primary and secondary schools in the system." Jd."
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." Jd. at 572. The court also
noted that "were the Court to limit its review to the
University of Texas, the Court would still find a ‘strong
evidentiary basis for concluding that remedial action is
necessary.’ " Id. (citation omitted).

The court next evaluated whether the Texas
program was narrowly tailored to further these goals. Id.
at 573. Applying a four-factor test devised by the
Supreme Court, the court held only part of the 1992
admissions scheme unconstitutional. Those parts that
gave minorities a "plus," that is, the component of the
admissions program that treated candidates’ TI scores
differently based upon race, was upheld. Jd. 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

“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.

15a

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. Jd. 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 the presumptive
denial categories. In other words, if the law school
applied the same academic standards, but had
commingled the minoity review in the discretionary zone
with the review of whites, its program would not have

‘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.

l6a

been struck down. The same admissions result would
occur, but the process would be "fair." Jd.

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. Jd. at 582-83. No compensatory or
punitive damages, the court reasoned, could be awarded
where the plaintiffs had proven no harm. Moreover, the
court reasoned that as the law school had promised to
change its admissions program by abandoning the
two-committee system, no prospective injunctive relief was
justified.

Il.

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,
125 L. Ed. 2d 511 (1993) (citing Washington v. Davis, 426
U.S. 229, 239, 96 S. Ct. 2040, 2047, 48 L. Ed. 2d 597
(1976)). It seeks ultimately to render the issue of race
irrelevant in governmental decisionmaking. See Palmore
v. Sidoti, 466 U.S. 429, 432, 104 S. Ct. 1879, 1881-82, 80
L. Ed. 2d 421 (1984) ("A core 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
because of their ancestry are by their very nature odious
to a free people whose institutions are founded upon the
doctrine of equality," and "racial discriminations are in
most circumstances irrelevant and therefore prohibited.

17a

..." Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.
Ct. 1375, 1385, 87 L. Ed. 1774 (1943). Hence,
"[p]referring members of any one group for no reason
other than race or ethnic origin is discrimination for its
own sake. This the Constitution forbids." Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265, 307, 98 S. Ct. 2733,
2757, 57 L. Ed. 2d 750 (1978) (opinion of Powell, J.); see
also Loving v. Virginia, 388 U.S. 1, 11, 87 S. Ct. 1817,
1823, 18 L. Ed. 2d 1010 (1967); Brown v. Board of Educ.,
347 U.S. 483, 493-94, 74 S. Ct. 686, 691-92, 98 L. Ed. 873
(1954). These equal protection maxims apply to all races.
Adarand Constructors v. Peta, US. __, _, 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 __, 115 S. Ct. at 2113; Loving, 388 US. at 11, 87 S.
Ct. at 1823. 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."””

“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 is the appropriate test.

“Adarand, __ US. at __ -_, 115 S. Ct. at 2112-13
(overruling Metro Broadcasting, Inc. v. F.C.C., 497 U.S. 547, 110
S. Ct. 2997, 111 L. Ed. 2d 445 (1990), insofar as it applied
intermediate scrutiny to congressionally mandated "benign"
racial classifications); City of Richmond v. J.A. Croson Co., 488

18a

Strict scrutiny is necessary because the mere
labeling of a classification by the government as "benign"
or "remedial" is meaningless. As Justice O’Connor
indicated in Croson:

Absent searching judicial inquiry into the
justifications for such race-based measures, there
is simply no way of determining what classifications
are "benign" or "remedial" and what classifications
are in fact motivated by illegitimate notions of
racial inferiority or simple racial politics. Indeed,
the purpose of strict scrutiny is to "smoke ovt"
illegitimate uses of race by assuring that the
legislative body is pursuing a goal important
enough to warrant use of a highly suspect tool.
The test also ensures that the means chosen "fit"
this compelling goal so closely that there is little or
no possibility that the motive for the classification
was illegitimate racial prejudice or stereotype.

Id. at 493, 109 S. Ct. at 721 (plurality opinion).

Under the strict scrutiny analysis, we ask two
questions: (1) Does the racial classification serve a

U.S. 469, 495, 109 S. Ct. 706, 722-23, 102 L. Ed. 2d 854 (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 494,
109 S.Ct. at 722 (Scalia, J., concurring in judgment); Wygant v.
Jackson Bd. of Educ., 476 U.S. 267, 273, 106 S.Ct. 1842, 1846,
90 L.Ed.2d 260 (1986) (plurality opinion) ("[T}he level of
scrutiny does not change merely because the challenged
classification operates against a group that historically has not
been subject to government discrimination.").

19a

compelling government interest, and (2) is it narrowly
tailored to the achievement of that goal? Adarand, _
U.S. at _, _, 115 S. Ct at 2111, 2117. As the
Adarand Court emphasized, strict scrutiny ensures that
“courts will consistently give racial classifications . . .
detailed examination both as to ends and as to means."
Id.

Finally, when evaluating the proffered
governmental interest for the specific racial classification,
to decide whether the program in question narrowly
achieves that interest, we must recognize that "the rights
created by . . . the Fourteenth Amendment are, by its
terms, guaranteed to the individual. The rights
established are personal rights." Shelley v. Kraemer, 334
U.S. 1, 22, 68 S. Ct. 836, 846, 92 L. Ed. 1161 (1948).”
Thus, the Court consistently has rejected arguments

“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 {v. 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." _ US.
at__, 115 S. Ct. at 2113.

See also Adarand, id. at ___, 115 S. Ct. at 2111 ("[A]}ny
person, of whatever race, has the right to demand that any
government actor subject to the Constitution justify any racial
classification subjecting that person to unequal treatment under
the strictest judicial scrutiny.").

2Ca

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 Clause. The district court
found both a compelling remedial and a non-remedial
justification for the practice.

First, the court approved of the non-remedial goal
of having a diverse student body, reasoning that
"obtaining the educational benefits that flow from a
racially and ethnically diverse student 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." Jd. at 573.

See, e.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); Wyant,
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).

ee, =

th

Justice Powell’s separate opinion in Bakke provided
the original impetus for recognizing diversity as a
compelling state interest in higher education. In that
case, Allan Bakke, a white male, was denied admission to
the Medical School of the University of California at
Davis, a state-run institution. Claiming that the State had
discriminated against him impermissibly because it
operated two separate admissions programs for the
medical school, he brought suit under the state
constitution, title VI, and the Equal Protection Clause.
Under the medical school’s admissions system, the white
applicants, who comprised the majority of the prospective
students, applied through the general admissions program.
A special admissions program was reserved for members
of “minority groups" or groups designated as
“economically and/or educationally disadvantaged." The
university set aside sixteen of the one hundred positions
in the entering class for candidates from the special
program.

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,
98 S. Ct. at 2738-39 (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

22a

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
unconstitutional under the Equal Protection Clause and
affirmed Bakke’s admission, Justice Stevens declined to
reach the constitutional issue and upheld Bakke’s
admission under title VI. Justice Powell also concluded
that the California Supreme Court’s proscription of the
consideration of race in admissions could not be
sustained. This became the judgment of the Court, as the
four-Justice opinion by Justice Brennan opined that racial
classifications designed to serve remedial purposes should
receive only intermediate scrutiny. These Justices would
have upheld the admissions program under this
intermediate scrutiny, as it served the substantial and
benign purpose of remedying past societal discrimination.

Hence, Justice Powell’s opinion has appeared to
represent the "swing vote," and though, in significant part,
see id. at 272 n. *, 98 S. Ct. at 2738, it was joined by no
other Justice, it has played a prominent role in
subsequent debates concerning the impact of Bakke.”! In

"See, e.g., Vincent Blasi, Bakke as Precedent: Does Mr.
Justice Powell Have a Theory?, 67 CAL. L. REV. 21, 24 (1979)
(arguing that Bakke’s precedential force is governed by the
common conclusions of Justices Powell and Stevens, though it
is €rroneous to conclude that Powell’s opinion has "controlling
significance on all questions"); Robert G. Dixon, Jr., Bakke:
A Constitutional Analysis, 67 CAL. L. REV. 69 (1979) (Justice
Powell’s "tiebreaking opinion . . . has acquired wide pragmatic
appeal.").

23a

the present case, the significance of Justice Powell’s
opinion is its discussion of compelling state interests
under the Equai Protection Clause. See id. at 305-15, 98
S. Ct. at 2756-61. Specifically, after Justice Powell
recognized that the proper level of review for racial
classifications is strict scrutiny, id. at 305-06, 98 S. Ct. at
2756-57, he rejected and accepted respective justifications
for the school’s program as "substantial enough to support
the use of a suspect classification," id. at 306, 98 S. Ct. at
2757.

Notably, because the first step in reviewing an
affirmative action program is a determination of the
state’s interests at stake,” it often is the determinative
step. Justice Powell outlined the four state interests
proffered by the Bakke defendants:

The special admissions program purports to serve
the purposes of: (i) "reducing the historic deficit
of traditionally disfavored minorities in medical
schools and in the medical profession,"; (ii)
countering the effects of societal discrimination;
(ili) increasing the number of physicians who will
practice im communities currently underserved;
and (iv) obtaining the educational benefits that
flow from an ethnically diverse student body.

“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. See Village of
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S.
252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977); Washington v.
Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976).

24a

Id. at 305-06, 98 S. Ct. at 2756-57 (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, 98 S. Ct. at 2757 (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. Jd. at 309, 98 S. Ct. at
2757-58.

Justice Powell further reasoned that diversity is a
sufficient justification for limited racial classification. Id.
at 311-16, 98 S. Ct. at 2759-62. "[The attainment of a
diverse student body] clearly is a constitutionally
permissible goal for an institution of higher education."
Id. at 311, 98 S. Ct. at 2759. He argued that diversity of
minorities’ viewpoints furthered "academic freedom," an
interest under the Constitution. While acknowledging
that "academic freedom" does not appear as a
constitutional right, he argued that it had "long . . . been

“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.

25a

viewed as a special concern of the First Amendment." /d.
at 312, 98 S. Ct. at 2759.”

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." /d. at 313, 98 S. Ct. at 2760.~ The
Justice then concluded that

[ajn otherwise qualified medical student with a
particular background--whether it be ethnic,
geographic, culturally advantaged or

“See also Sweezy v. New Hampshire, 354 U.S. 234, 263, 77
S. Ct. 1203, 1218, 1 L. Ed. 2d 1311 (1957) (Frankfurter, J.,
concurring in result) (recognizing four separate components of
"acadeinic 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 generally protects citizens from the
actions of government, not government from its citizens.

Significantly, Sweezy involved a person who was called
before the Attorney General of New Hampshire to answer for
alleged subversive activities. He declined on First Amendment
grounds to answer questions about a lectuie 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).

26a

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.

Id. at 314, 98 S. Ct. at 2760 (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." Jd.

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 nct. 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. Jd. at 317, 98
S. Ct. at 2762. 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,

27a

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, 98 S. Ct. at 2762.

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 scaies” among qualified
applicants. What a school could not do is to refuse to
compare applicants of different races or establish a strict
quota on the basis of race. In sum, Justice Powell found
the school’s program to be an unconstitutional "quota"
system, but he intimated that the Constitution would
allow schools to continue to use race in a wide-ranging
manner.

2.

Here, the plaintiffs argue that diversity is not a
compelling governmental interest under superseding
Supreme Court precedent. Instead, they believe that the
Court finally has recognized that only the remedial use of
race is compelling. In the alternative, the plaintiffs assert
that the district court misapplied Justice Powell’s Bakke
standard, as the law school program here uses race as a
strong determinant rather than a mere "plus" factor and,
in any case, the preference is not narrowly applied. The
law school maintains, on the other hand, that Justice
Powell’s formulation in Bakke is law and must be
followed--at least in the context of higher education.

28a

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, 98 S.
Ct. at 2766 n. 1 (Brennan, White, Marshall, and
Blackmun JJ., concurring in the judgment in part and
dissenting) ("We also agree with Mr. Justice POWELL
that a plan like the "Harvard" plan . . . is constitutional
under our approach, at least so long as the use of race to
achieve an integrated student body is necessitated by the
lingering effects of past discrimination.") (emphasis added).
Justice Stevens declined to discuss the constitutional issue.
See id. at 412, 98 S. Ct. at 2810 (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

29a

student body. As the Adarand Court states, the Bakke
Court did not express a majority view and is questionable
as binding precedent. _ U.S. at___, 115 S. Ct. at 2109
("The Court’s failure in Bakke . . . leit unresolved the
proper analysis for remedial race-based government
action.").

Since Bakke, the Court has accepted the diversity
rationale only once in its cases dealing with race.
Significantly, however, in that case, Metro Broadcasting,
Inc. v. Federal Communications Comm’n, 497 U.S. 547,
564-65, 110 S. Ct. 2997, 3008-09, 111 L. Ed. 2d 445
(1990), the five-Justice majority relied upon aa
intermediate scrutiny standard of review to uphold the
federal program seeking diversity in the ownership of
broadcasting facilities. In Adarand, _US.at_ -_,
115 S. 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. Jd. at ___, 115 S. Ct. at 2113. No case since
Bakke has accepted ted diversity as a compelling state iterest
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, 109 S. Ct. at 722 (plurality opinion), the
Court flatly stated that "[uJnless [racial classifications} are
strictly reserved for remedial settings, they may in fact

30a

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

racial discrimination. The interest in increasing
the diversity of broadcast viewpoints is clearly not

*See also Milwaukee County Pavers Ass’n v. Fiedler, 922 F.2d
419, 422 (7th Cir.) ("The whole point of Croson is that
disadvantage, diversity, or other grounds favoring minorities will
not justify governmental racial discrimination . . + only a
purpose of remedying discrimination against minorities will do
so.") (emphasis added), cert. denied, 500 U.S. 954, 111 S. Ct.
2261, 114 L. Ed. 2d 714 (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, 109
S. Ct. at 736 (Scalia, J., concurring in the judgment) (quoting
Croson, 488 U.S. at 476-77, 109 S. Ct. at 713). 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, 109 S. Ct. at 736 (Scalia, J., concurring
in judgment). While such an interest is probably consistent
with the widely criticized holdings of Hirabayashi v. United
States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943), and
Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L.
Ed. 194 (1944), plainly such an interest is not presented in this
case.

3la

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, 110 S. Ct. at 3034 (O’Connor, J.,
dissenting). Indeed, the majority in Metro Broadcasting
had not claimed otherwise and decided only that such an
interest was "important." Justice Thomas, who joined the
Court after Metro Broadcasting was decided, roundly
condemned "benign" discrimination in his recent Adarand
opinion, in which he suggests that the diversity rationale
is inadequate to meet strict scrutiny. See Adarand, __
U.S. at__, 115 S. Ct. at 2119 (Thomas, J., concurring in
part and concurring in judgment).”

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, 106
S. Ct. at 1853 (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 as a
compelling interest. Her subsequent statements outlined above
in Croson and Metro Broadcasting suggest strongly that reliance
upon this statement in Wygant is unjustified.

32a

In short, there has been no indication from the
Supreme Court, other than Justice Powell’s lonely opinion
in Bakke, that the state’s interest in diversity constitutes
a compelling 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
would be choices based upon the physical size or blood
type of applicants. Thus, the Supreme Court has long
held that governmental actors cannot justify their
decisions solely because of race. See, e.g, Croson, 488
U-S. at 496, 109 S. Ct. at 723 (plurality opinion); Bakke,
438 U.S. at 307, 98 S. Ct. at 2757 (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

33a

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 do not raise similar constitutional
concerns.” Unfortunately, this approach simply

*The law school’s admissions program makes no distinction
among black and Mexican American applicants in an effort to
determine which of them, for example, may have been
culturally or educationally disadvantaged.

*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, 98 S. Ct. at 2760 (opinion of Powell,
J.).

34a

replicates the very harm that the Fourteenth Amendment
was designed to eliminate.

The assumption is that a certain individual
possesses characteristics by virtue of being a member of
a certain racial group. This assumption, however, does
not withstand scrutiny. "[T]he use of a racial
characteristic to establish a presumption that the
individual also possesses other, and socially relevant,
characteristics, exemplifies, encourages, and legitimizes
the mode of thought and behavior that underlies most
prejudice and bigotry in modern America." Richard A.
Posner, The DeFunis Case and the Constitutionality of
Preferential Treatment of Racial Minorities, 1974 SUP. CT.
REV. 12 (1974).

To believe that a person’s race controls his point
of view is to stereotype him. The Supreme Court,
however, "has remarked a number of times, in slightly
different contexts, that it is incorrect and legally
inappropriate to impute to women and minorities ‘a
different attitude about such issues as the federal budget,
school prayer, voting, and foreign relations.’" Michael S.
Paulsen, Reverse Discrimination and Law School Faculty
Hiring: The Undiscovered Opinion, 71 TEX. L. REV. 993,
1000 (1993) (quoting Roberts v. United States Jaycees, 468
U.S. 609, 627-28, 104 S. Ct. 3244, 3255, 82 L. Ed. 2d 462
(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

35a

act or think." Metro Broadcasting, 497 U.S. at 602, 110 S.
Ct. at 3029 (O’Connor, J., dissenting).”

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 qualifications; we only observe
that "diversity" can take many forms. To foster such
diversity, state universities and law schools and other
governmental entities must scrutinize applicants

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

the distribution of benefits and costs by government on
racial or ethnic grounds is impermissible. Even though
it is frequently efficient to sort people by race or ethnic
origin, because racial or ethnic identity may be a good
proxy for functional classifications, efficiency is rejected
as a basis for governmental action in this context.

Posner, supra, at 22.

36a

individually, rather than resorting to the dangerous proxy
of race.*!

The Court also has recognized that government’s
use of racial classifications serves to stigmatize. See, e.g.,
Brown v. Board of Educ., 347 U.S. 483, 494, 74 S. Ct. 686,
691, 98 L. Ed. 873 (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

“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, 107 S. Ct. 1756, 95 L. Ed.
2d 262 (1987). As Justice O’Connor indicated in Hernandez v.
New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395
(1991), which was a challenge under Batson v. Kentucky, 476
U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (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
sufficient to constitute an equal protection violation,
and intentional discrimination, which is.

500 U.S. at 375, 111 S. Ct. at 1874 (O’Connor, J., joined by
Scalia, J., concurring in the judgment).

STKE. eT OY Pee

37a

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 in Croson warned,
"[c]lassifications based on race carry the danger of
stigmatic harm. Unless they are reserved for remedial
settings, they may in fact promote notions of racial

* 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, 98 S. Ct. at 2782 (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. Jd. at 361, 98 S.
Ct. at 2784 (Brennan, White, Marshall, and Blackmun, JJ.,
concurring in the judgment in part and dissenting in part).

As Judge Posner has indicated,

th 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.

38a

inferiority and lead to the politics of racial hostility." 488

U.S. at 493, 109 S. Ct. at 722.34

“See also Adarand, — US. at___, 115 S. Ct. at 2119
(Thomas, J., concwrring 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
government that certain persons identified by race are
in fact being placed in positions they may be presumed
not likely to hold but for their race (because they are
presumed to be unable to meet Standards the
government itself requires to be met). The message
from government is written very large when these plans
proliferate: a 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, Rites of Passage: Race, the Supreme

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

Oe ey ee ee ee ee ee, ee a

39a

Finally, the use of race to achieve diversity
undercuts the ultimate goal of the Fourteenth
Amendment: the end of racial: motivated sta‘e 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, 98 S. Ct.
at 2806. Several Justices who, unlike Justices Powell and
Blackmun, are still on the Court, have now renounced
toleration of this tension, however. See Croson, 488 U.S.
at 495, 109 S. Ct. at 722 (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,
106 S. Ct. at 1871 (Stevens, J., dissenting)).*°

**As professor Van Alstyne has argued:

Rather, one gets beyond racism by getting beyond it
now: by a complete, resolute, and credible commitment
never to tolerate in one’s own life--or in the life or
practices of one’s government--the differential
treatment of other human beings by 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.

PBI 8 228.588 ee rrr

40a

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 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.”’

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, it likely would be impossible to
maintain such a system without degeneration into nothing more
than a "quota" program. See Bakke, 438 US. at 378, 98 S. Ct.
at 2793 ("For surposes of constitutional adjudication, there is
no difference hetween [settinx, uside a certain number of places
for minorities and using rf." sority status as a positive factor].”)
(Brennan, White, Marshall, and Blackmun, JJ., concurring in
the judgment in part and dissenting in part). Indeed, in this
case, the law school appeared to be especially adept at meeting
its yearly “goals.” See Hopwood, 861 F. Supp. at 574 n. 67.

I awnrr Oe ea eee a

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.

4la
B.

We now turn to the district court’s ¢ziermination
that "the remed*1; purpose of the law schoo'’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 coniend 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 respouse, notes Texas’s well-
documested 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, 109 S. Ct.
at 730 (quoting Wygant, 476 U.S. at 277, 106 S. Ct. at
1849 (plurality »pinion)). Generally, “[i}n order to justify
an affirmative action program, the State must show there
are ‘present effects of past discrimination.’ " Hopwood v.
Texas ("Hopwood I"),* 21 F.3d 603, 605 (Sth Cir. 1994)
(per curiam) (quoting Podberesky v. Kirwan, 956 F.2d 52,
57 (4th Cir. 1992), cert. denied, US. ___, 115 S.Ct.
2001, 131 L. Ed. 2d 1002 (1995)); see also Wygant, 476

* Hopwood I is the first appeal of the intervention issue that
we address infra.

42a

U.S. at 280, 106 S. Ct. at 1850 (opining that "in order to
remedy the effects of prior discrimination, it may be
necessary to take race into account") (opinion of Powell,
hi?

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, 98 S.
Ct. at 2784-87, appears intended to present little resistance to
wide-ranging affirmative action plans.

While Justice Brennan began by stating that schools
have a duty affirmatively to erase the vestiges of their past
discriminatory practices, he compared this duty to the power of
Congress to enforce § 1 of the Fourteenth Amendment through
§ 5. He reasoned that under that wide-ranging power, the
beneficiaries of such a program need not present proof that
they were discriminated against; a showing that they were in
the general class was sufficient. Jd. at 363-64, 98 S. Ct. at
2785-86. Nor would a school need judicial findings of past
discrimination. Id. at 364, 98 S. Ct. at 2785-86. 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. Jd. at 365-66, 98 S. Ct. at
2786-87. 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 mecting the “present effects of past
discrimination.” And some members of the Court would limit

43a

Because a state does not have a compelling state
interest in remedying the present effects of past societal
discrimination, however, we must examine the district
court’s legal determination that the relevant governmental
entity is the system of education within the state as a
whole. Moreover, we also must review the court’s
identification of what types of present effects of past
discrimination, if proven, would be sufficient under strict
scrutiny review. Finally, where the state actor puts forth
a 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, 106 S. Ct. at 1848-49. We review such factual
rulings for clear error.

1.

The Supreme Court has "insisted upon some
showing of prior discrimination by the governmental unit
involved before allowing limited use of racial
classifications in order to remedy such discrimination."
Wygant, 476 U.S. at 274, 106 S. Ct. at 1847 (plurality

any remedial purpose to the actual victims of discrimination.
See Adarand, __ U.S. at __, 115 S. Ct. at 2118 (Scalia, J.,
concurring in part and concurring in judgment) ("[Gjovernment
can never have a ‘compelling interest’ in discriminating on the
basis of race in order to ‘make up’ for past racial discrimination
in the opposite direction."). Nevertheless, we will not eschew
use of the phrase "present effects of past discrimination,” as we
used this language in Hopwood I, 21 F.3d at 605, and another
circuit did so in Podberesky v. Kirwan, 38 F.3d 147, 153 (4th
Cir. 1994), curt. denied, U.S. ___, 115 S. Ct. 2001, 131 L.
Ed. 2d 1002 (1995). We will, however, limit its application in
accordance with Wygant and Croson.

44a

opinion of Powell, J.) (citing Hazelwood School Dist. v.
United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d
768 (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. Jd. at 274-77,
106 S. Ct. at 1847-49 (plurality opinion). Such a claim
was based upon remedying "societal discrimination," a
rationale the Court consistently has rejected as a basis for
affirmative action. Accordingly, the state’s use of
remedial racial classifications is limited to the harm
caused by a specific state actor."

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." Jd. at 277, 106 S. Ct. at
1848. Accord id. at 289, 106 S. Ct. at 1854-55 (O’Connor,

“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.").

“See also id. at 288, 106 S. Ct. at 1854 (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.").

45a

J., concurring in part and concurring in judgment). The
plurality felt that "[iJn 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." Jd. at 276, 106 S. Ct. at 1848.

The Croson Court further discussed how to identify
the relevant past discriminator. Writing for the Court,
Justice O’Connor struck down a minority business
set-aside program implemented by the City of Richmond
and justified on remedial grounds While the district
court opined that sufficient evidence had been found by
the city to believe that such a program was necessary to
remedy the present effects of past discrimination in the
construction industry, the Court held:

Like the "role model" theory employed in Wygant,
a generalized assertion that there had been past
discrimination in an entire industry provides no
guidance for a legislative body to determine the
precise scope of the injury it seeks to remedy. It
‘has no logical stopping point.’ Wygant, 476 U.S.
at 275 [106 S. Ct. at 1848] (plurality opinion).
‘Relief for such an ill-defined wrong could extend
until the percentage of public contracts awarded to
{minority businesses] in Richmond mirrored the
percentage of minorities in the population as a
whole.

488 U.S. at 498, 109 S. Ct. at 724. The Court refused
to accept indicia of past discrimination in anything but

“Justice O’Connor was joined by Chief Justice Rehnquist
and Justices White, Stevens, and Kennedy in this portion of the
opinion.

46a

"the Richmond construction industry." Id. at 505, 109 S.
Ct. at 728.

__ In addition, in a passage of particular significance
to the instant case, the Court analogized the employment
contractor situation to that of higher education and noted
that "[l]ike claims that discrimination in primary and
secondary schooling justifies a rigid racial preference in
medical school admissions, an amorphous claim that there
has been past discrimination in a particular industry
cannot justify the use of an unyielding racial quota." Jd.
at 499, 109 S. Ct. at 724. Such claims were based upon
“sheer speculation" about how many minorities would be
in the contracting business absent past discrimination. Jd.

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, 106 S. Ct. at 1847 ‘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:

4b. -

47a

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, 109 S. Ct. at 728. The defendants’
argument here is equally expansive.“

Strict scrutiny is meant to ensure that the purpose
of a racial preference is remedial. Yet when one state
actor begins to justify racial preferences based upon the
actions of other state agencies, the remedial actor’s
competence to determine the existence and scope of the
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, _US.__,_,
115 S. Ct. 2038, 2048, 132 L. Ed. 2d 63 (1995); Milliken
v. Bradley, 418 U.S. 717, 745, 94 S. Ct. 3112, 3127, 41 L.
Ed. 2d 1069 (1974) ("[W]ithout an interdistrict violation
and interdistrict effect, there is no constitutional wrong

“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.

48a

calling for an interdistrict re -aedy."). 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 primary and secondary schools in Texas.
Such a task becomes even more improbable where, as
here, benefits are conferred on students who attended
out-of-state or private schools for such education. Such
boundless "remedies" raise a constitutional concern
beyond mere competence. In this situation, an inference
is raised that the program was the result of racial social
engineering rather a desire to implement a remedy.

No one disputes that in the past, Texas state actors
have discriminated against some minorities in public
schools. In this sense, some lingering effects of such
discrimination is not "societal," if that term is meant to
exclude all state action. But the very program at issue
here shows how remedying such past wrongs may be
expanded beyond any reasonable limits.

Even if, arguendo, the state is the proper
government unit to scrutinize, the law school’s admissions
program would not withstand our review. For the
admissions scheme to pass constitutional muster, the State
of Texas, through its legislature, would have to find that
past segregation has present effects; it would have to
determine the magnitude of those present effects; and it
would need to limit carefully the "plus" given to applicants
to remedy that harm. A broad program that sweeps in all
minorities with a remedy that is in no way related to past

49a

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 University of Texas
System is itself too expansive an entity to scrutinize for
past discrimination.“

“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,

50a

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 stil] 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.

y

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

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, 106 S. Ct. at 1847 (plurality opinion).

Sla

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, _U.S. __, 115 S. Ct. 2001, 131 L. Ed. 2d
1002 (1995). Moreover, as pari 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 recent case that struck down the use of race-based
scholarships. The university in that case sought, in part,
to justify a separate scholarship program based solely

52a

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." Jd. 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." Jd. 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." /d.
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.

53a

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 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, 70 S.
Ct. 848, 94 L. Ed. 1114 (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
$55.

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

54a

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 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.

“The testimony of several minority students underscores
this point. They stated generally that they felt that other
students did not respect them because the other students
assumed that minorities attained admission because of the
racial preference program.

ae wee ee

55a

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 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, 109 S. Ct. at 724-25. The

“The argument is that because the state discriminated in its
primary and secondary school systems, the students’
educational attainment was adversely affected, and this harm
extended to their higher education, thus justifying giving
current applicants a "plus" based on race. This reasoning is
especially important in justifying benefits for Mexican
Americans, as there is no evidence that the law school
implemented de jure (or even de facto) discrimination against
this group in its admissions process. Because this logic ignores
the relevant actions in this case, i.e., discrimination by the law
school, it is not necessary for us to examine the potential
causational flaws in the argument.

Moreover, if we did find that the past wrongs of Texas
school districts were the sort of discrimination that the law
school could address, the school still would have to prove the
present effects of that past wrong. Without some strong
evidence in the record showing that today’s law school
applicants still bear the mark of those past systems, such effects
seem grossly speculative. The district court simply assumed
that "[t]his segregation has handicapped the educational
achievement of many minorities ... ." 861 F. Supp. at 573.
And we would still have to ask whether the program was
narrowly tailored to this goal.

S6a

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 school’s reading of the facts, its
program was the direct result of the state’s negotiations
with what was then the United States Department of
Health, Education and Welfare’s Office for Civil Rights
("OCR"). To bring the Texas public higher education
System into compliance with title VI, the state adopted
the so-called "Texas Plan.”

In light of our preceding discussion on the relevant
governmental unit, this argument is inapposite. Even if
the law school were specifically ordered to adopt a racial
preference program, its implementation at the law school
would have to meet the requirements of strict scrutiny.”

“To the extent that the OCR has required actions that
conflict with the Constitution, the directives cannot stand. The
Supreme Court has addressed required state compliance with
federal law in the voting rights context. Miller v. Johnson, __
US.__,__, 115 S. Ct. 2475, 2491, 132 L. Ed. 2d 762 (1995)
("As we suggested in Shaw [v. Reno, S09US.630,__ - _—, 113
S. Ct. 2816, 2830-31, 125 L_ Ed. 2d 511 (1993) }, compliance
with federal antidiscrimination laws cannot justify race-based
districting where the challenged district was not reasonably
necessary under a constitutional reading and application of those
laws.") (emphasis added).

ee ee ee ae ee ee

57a

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, 112 S. Ct. 2727, 120 L. Ed. 2d 575
(1992). The court held that the law school had a
compelling interest to “desegregate" the school through
affirmative action.

The reliance upon Fordice is misplaced, however.
The district court held that Fordice’s mandate to schools
"to eliminate every vestige of racial segregation and
discrimination” made Croson inapplicable, 861 F. Supp. at
571, and reasoned that this mandate includes the effects
of such prior practices or policies.

Fordice does not overrule Croson. The central
holding of Fordice is that a state or one of its subdivisions
must act to repudiate the continuing “policies or practices"
of discrimination. 505 U.S. at 731-32, 112 S. Ct at

58a

2737-38." In other words, a state has an affirmative
duty to remove policies, tied to the past, by which it
continues to discriminate. The Fordice Court did not
address, in any way, a state actor’s duty to counter the
present effects of past 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

“In more detail, the Fordice Court said the following:

If the State perpetuates policies and practices traceable
to its prior system that continue to have segregative
effects--whether by influencing student enrollment or by
fostering segregation in other facets of the university
system--and such policies are without sound educational
justification and can be practicably eliminated, the State
has not satisfied its burden of proving that it has
dismantled its prior system.

505 U.S. at 731, 112 S. Ct. at 2737.

“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, 109 S. Ct. at 720-21
(plurality opinion) ("[A] state or local subdivision, (if delegated
the authority from the State) has the authority to eradicate the
effects of private discrimination within its own legislative
jurisdiction.”) (emphasis added). Hence, a specific state actor
can act to prevent the state from being used as a “passive
participant" in private discrimination. This power does not
create wide-ranging authority to remedy societal discrimination,
however.

59a

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.”

“The plaintiffs argue that indeed there is no narrow
tailoring, for at least the following reasons: (1) In 1992, more
than two-thirds of all admission offers to blacks, and a majority
of all blacks who matriculated, involved out-of-state residents,
thus undercutting the law school’s stated purpose of remedying
past discrimination in Texas. (2) The system of preferences has
no termination date, thus indicating that there is no connection
between the plan and a bona fide remedial purpose. (3)
Preference is given even to blacks and Mexican Americans who
graduated from private secondary schools and thus did not
suffer from state-ordered racial discrimination.

The law school apparently chose admission goals of 5%
blacks and 10% Mexican Americans because those are the
respective percentages of college graduates in Texas who are
black and Mexican American. Nothing in the record, however,
establishes any probative correlation between the degree of
past discrimination and the percentage of students from a
minority group who graduate from college.

There is no history either of de jure discrimination
against Mexican Americans in education at any level in Texas
or of de facto discrimination against Mexican Americans by the
law school. Therefore, it is puzzling that the law school would
set an admissions goal for Mexican Americans that is twice that
of blacks, as to whom the history of de jure discrimination in
Texas Education in general, and by the law school in particular,
is irrefutable.

If fashioning a remedy for past discrimination is the
goal, one would intuit that the minority group that has
experienced the most discrimination would have the lowest

60a

IV.

While the district court declared the admissions
program unconstitutional, it granted the plaintiffs only
limited relief. They had requested injunctive relief
ordering that they be admitted to law school,
compensatory and punitive damages, and prospective
injunctive relief preventing the school from using race as
a factor in admissions.

A.

We must decide who bears the burden of proof on
the damages issue. The district court refused to order the
plaintiffs’ admission (or award any compensatory
damages), as it found that they had not met their burden
of persuasion in attempting to show that they would have
been admitted absent the unconstitutional system. 861 F.
Supp. at 579-82.°' 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

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.

*'This finding also affected the court’s analysis in denying
prospective relief and compensatory damages.

The district court applied a burden-shifting scheme similar
to the methodology used in the title VII context. 861 F. Supp.

ee ee ee a ee eens oe

6la

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, 98 S. Ct.
1042, 1047-49, 55 L. Ed. 2d 252 (1978). Several Supreme
Court cases, however, allow for a transfer of burden upon
proof of discrimination. See Mt. Healthy City Sch., Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S. Ct. 568,
574-75, 50 L. Ed. 2d 471 (1977); Village of Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252,
265-66, 97 S. Ct. 555, 563-64, 50 L. Ed. 2d 450 (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:

Initially, . . . the burden was properly placed upon

at 579-80 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
113 S. Ct. 2742, 125 L. Ed. 2d 407 (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.

8Some of Justice Powell’s dicta in Bakke also squarely
supports the plaintiffs’ claim that once discrimination is proved,
the defendant bears the burden of proving no damage. Bakke,
438 U.S. at 320, 98 S. Ct. at 2763-64 (opinion of Powell, J.).

62a

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, 97 S. Ct. at 576. 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, 97 S. Ct. at 566 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

“Compare Henson v. University of Ark., 519 F.2d 576, 577-78
(8th Cir.1975) (per curiam) (placing burden of persuasion on
white applicant to show affirmative action program prevented
her admission) and Martin v. Charlotte-Mecklenburg Bd. of
Educ., 475 F. Supp. 1318, 1345 (W.D.N.C. 1979) (holding that
plaintiff in non-class action bears burden of proving damages)
with Donnelly v. Boston College, 558 F.2d 634, 635 (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

63a

the Mt. Healthy methodology is appropriate in the instant
case. The Mt. Healthy plaintiff, like the present plaintiffs,
brought a constitutional challenge, and his injuries were
analogous to the injuries alleged here. As we have said,
the title VII burden-shifting scheme is designed to
determine whether a violation of law has occurred.

In this case, there is no question that a
constitutional violation has occurred (as the district court
found) and that the plaintiffs were harmed thereby. See
Adarand, __ US. at___, 115 S. Ct. at 2105 ("The injury
in cases of this kind is that a ‘discriminatory classification
prevent{s] the plaintiff from competing on an equal
footing.’ ") (citation omitted). The Mt. Healthy
burden-shifting exercise simply gives the defendant law
school a second chance of prevailing by showing that the
violation was largely harmless.

As the district court held, to the contrary, that
plaintiffs had the burden, it should revisit this issue in
light of what we have said in both the liability and
remedial portions of this opinion.* In the event that the

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).

*SThe 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

64a

law school is unable to show (by a preponderance of the
evidence) that a respective plaintiff would not have been
admitted to the law school under a constitutional
admissions system, the court is to award to that plaintiff
any equitable and/or monetary relief it deems appropriate.

Obviously, if the school proves that a plaintiff
would not have gained admittance to the law school under
a race-blind system, that plaintiff would not be entitled to
an injunction admitting him to the school. On the other
hand, the law school’s inability to establish a plaintiff's
non-admission--if that occurs on remand--opens a panoply
of potential reiief, depending in part upon what course
that plaintiff's career has taken since trial in mid-1994. It
then would be up to the district court, in its able
discretion, to decide whether money 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.’

court must apply the proper burden and redetermine whether
plaintiffs would have been admitted.

**We do not opine on any Eleventh Amendment immunity
in this case. See, e.g., United Carolina Bank v. Board of Regents,
665 F.2d 553, 561 (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

ales

65a

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, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992);
Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 103
S. Ct. 3221, 77 L. Ed. 2d 866 (1983). While we agree
with the district court’s conclusion that the various
defendants acted in good faith, there is no question that
they intended to treat the plaintiffs differently on account
of their race.

B.

The plaintiffs argue that, because they proved a
constitutional violation, and further violations were likely
to result, the district court erred in denying them

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 Elliott. 861 F. Supp. at 566. In
considering damages, however, the court held that "in all
likelihood, the plaintiffs would not have been offered admission
even under a constitutionally permissible process." Jd. at 581.
The district court should re-examine these contradictory results.

66a

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 Associates,
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,
ARTHUR R. MILLER & MARY KAY KANE,
FEDERAL PRACTICE AND PROCEDURE § 2942 (2d
ed. 1995). That treatise notes that

[p]erhaps the most significant single component in
the judicial decision whether to exercise equity
jurisdiction and grant permanent injunctive relief
is the court’s discretion. Of course, in some
situations the facts and relevant law may indicate
that an injunction clearly should be granted or
denied. However, in most cases the determination
whether to issue an injunction involves a balancing
of interests of the parties who might be affected by
the court’s decision--the hardship on the plaintiff
if relief is denied as compared to the defendant if
relief is granted and the extent to which the latter
hardship can be mitigated by requiring a security
bond. Not surprisingly, therefore, the court’s
decision depends on the circumstances of each

case.

67a

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. Jd. § 2962, at 448; See, e.g,
James v. Stockham Valves & Fittings Co., 559 F.2d 310,
354-55 (5th Cir. 1977). In other situations, the appellate
court may order the district court to enter an injunction.
See, e.g., Southeastern Promotions, Ltd. v. City of Mobile,
457 F.2d 340 (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 granted some
equitable relief: It directed that the plaintiffs be

68a

permitted to re-apply to the law school without incurring
further administrative costs. In accordance with this
opinion, the plaintiffs are entitled to apply under a system
of admissions that will not discriminate against anyone on
the basis of race. Moreover, the plaintiffs have shown
that it is likely that the law school will continue to take
race 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.

Cc.

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
Gamages issue. The court did determine, however, that

69a

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, 103 S. Ct. 1625,
1640, 75 L. Ed. 2d 632 (1983). Thus, we agree with the
district court that punitive damages are not warranted.
We note, however, that if the law school continues to
operate a disguised or overt racial classification system in
the future, its actors could be subject to actual and
punitive damages.

V.

Consolidated with the appeal of the merits issues
of this appeal is No. 94-50569, challenging the district
court’s denial of a motion to intervene. The proposed
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.

70a
A.

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 schoo] 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." Jd. at 606. The panel
implicitly considered and rejected, as one potential
divergence of interests, the possibility that the law school
would not raise a defense based upon the legality of the
use of TI scores under title VI, as the associations argued
that possibility as one basis for intervention.

After their first motion to intervene was denied,
the associations remained involved in the case.
Throughout the course of the trial, they acted as amici
curiae. And, at the close of trial but before judgment, the
district court intimated that it would allow them to submit
information for the record. Accordingly, the associations
sought to introduce testimonial and documentary evidence
supporting their arguments that (1) the TI by itself was an
unlawful basis for admissions decisions under title VI and
(2) that affirmative action at the university was
constitutionally required. The plaintiffs opposed the

Tla

introduction of evidence on these "new defenses," ard the
district court agreed. The associations were allowed to
submit amicus briefs and highlight evidence that was
already in the record but were not allowed to raise new
issues or supplement the record.

Shortly thereafter, the associations again sought to
intervene under FED. R. CIV. P. 24(a)(2) (intervention
as of right), claiming that the law school had failed to
raise their two "new defenses" and, accordingly, that
events now showed that that representation inadequately
protected their interests. They sought to reopen the
record to introduce evidence supporting these arguments.

The district court summarily refused this request.
That order is the focus of this separate appeal, in which
the associations present only the title VI defense and ask
to be allowed to present such evidence only if we do not
affirm the judgment.

B.

There is no caselaw in this circuit that directly
addresses how to review successive motions to
intervene.* The parties direct us to Hodgson v. United

**There is circuit law regarding successive motions, but the
pertinent opinions do not examine the standard of review
explicitly. See, eg., Kneeland v. 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, 108 S. Ct. 72, 98 L. Ed. 2d 35 (1987); United States v.
Louisiana, 669 F.2d 314, 315 (Sth Cir. 1982) (application of
abuse of discretion review for timeliness determination on
second motion where proposed intervenor failed to argue for

72a

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, 112 S. Ct. 414, 116 L. Ed. 2d 435 (1991);
and Meek v. Metropolitan Dade County, 985 F.2d 1471,
1477 (11th Cir. 1993). These courts, which were
examining whether the appeal from a successive motion
was timely as per the appellate requirements, devised the
general rule that a second motion would be treated as
independent of the first if it was reached under materially
changed circumstances.

Here, the associations assume that their second
intervention motion is separate and distinct from their
earlier failed attempt, because the law school’s failure to
raise their proposed defense constitutes a changed
circumstance.” Thus, they ask that we engage in de

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).

The associations ground this argument in language taken
from the prior appeal. One necessary element for intervention
is a showing that the present parties will inadequately represent
the proposed intervenors’ interests. While the associations lost
on this ground on the last appeal, they now claim that the
opinion supports the argument that the law school’s defense is
inadequate. In the last a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1333%3A2. Public record. Not legal advice.