Petition for Writ of Certiorari — Texas v. Hopwood

Supreme Court, U.S. -

(1) FILED

001609 APR 17 2001

No.

OFFICE OF THE CLERK

jn The

Suprene Court of the United States

STATE OF TEXAS, E7 AL.,

Petitioners,

V.

CHERYL J. HOPWOOD, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN CORNYN GREGORY S. COLEMAN

Attorney General of Texas Solicitor General

Counsel of Record

ANDY TAYLOR

First Assistant Attorney MELANIE P. SARWAL

General Assistant Solicitor General

JEFFREY S. BOYD P.O. Box 12548

Deputy Attorney General Austin, Texas 78711-2548

for Litigation Telephone: (512) 936-1700

Facsimile: (512) 474-2697

COUNSEL FOR PETITIONERS

[Additional Counsel Listed on Inside Cover]

ADDITIONAL COUNSEL

HARRY M. REASONER

ALLAN VAN FLEET

BETTY R. OWENS

Vinson & Elkins L.L.P. -

1001 Fannin Street

Houston, Texas 77002-6760

Telephone: (713) 758-2358

Facsimile: (713) 615-5173 -

DOUGLAS LAYCOCK

727 E. Dean Keeton Street

Austin. Texas 78705

Telephone: (512) 232-1341

Facsimile: (512) 471-6988

SAMUEL ISSACHAROFF

435 W. 116th St.

New York, NY 10027

Telephone: (212) 854-2527

Facsimile: (212) 854-7946

JOHN L. HILL, JR.

Locke Liddell & Sapp-L.L.P.

600 Travis

Houston, Texas 77002-3095

Telephone: (713) 226-1230

Facsimile: (713) 223-3717

QUESTIONS PRESENTED

1. Does the University of Texas School of Law have a

compelling governmental interest in some limited consideration of

race to remedy the present effects of past discrimination or to

achieve reasonable ethnic diversity?

2. Cana court of appeals’s issuance of “judicial instructions”

in place of a formal injunction or declaratory judgment (a) insulate

the decision from further review, or (b) support a substantial

attorneys’ fees award?

PARTIES TO THE PROCEEDINGS

Plaintiffs-Respondents

Cheryl J. Hopwood

Douglas W. Carvell

Kenneth R. Elliott

David A. Rogers

Defendants-Petitioners

The State of Texas

The University of Texas Board of Regents

The University of Texas at Austin

The University of Texas School of Law

Patrick C. Oxford, A.W. Riter, Jr.. Woody L. Hunt, Charles

Miller, Rita Crocker Clements, A.R. Sanchez, Raul R.

Romero, and Tom Loeffler, in their official capacities as

members of the University of Texas Board of Regents

Donaid L. Evans, in his official capacity as a former member of

the University of Texas Board of Regents

Larry R. Faulkner, in his official capacity as President of the

University of Texas at Austin

M. Michael Sharlot, in his official capacity as former Dean

of the University of Texas School of Law

‘Stanley M. Johanson, in his official capacity as Professor of

Law of the University of Texas School of Law

TABLE OF CONTENTS

I co occcccaseccscdscsobeve eda a eae i

POEUN oo vc cccccacescctnencectisupes il

REEL ESE OP TOT ETE ET OT ECE CE ere ill

PEEP ETET EEE OC PPE CTE Vv

i ca Ws ub ow bh det Uobbawsss 4eiehadedeeees> 2

I eas foe on lee oe el ease wk eee ea 2

Constitutional and Statutory Provisions Involved ........... 3

eek arse a d'bk bob pean ease eben Seis 3

ce che eeeecnebinvcesnees.es 9

I. The Judgment Below Conflicts with

Decisions of This Court and of Other

re tama CR ye a haan ws & 6-48 0-6:0'4.0 0e-a 9

A. The Conflict with Bakke ............ )

B. The Conflict in the Lower Courts over

et cst ae okey eakdes ee 1]

ad The Conflict over Remedying Past

Discrimination

and Preventing Racial Identifiability .. 14

D. Confitcto—tm Summ .. cc ccc ccc ence 16

iV

I. This Case Presents a Constitutional Issue

of Great National Importance .............

If. This Case Squarely Presents Important

Issues That Are Not Squarely Presented

in Other Higher Education Cases ...........

IV. The Court of Appeals’s Judicial

Prohibition of Any Consideration of Race

in Admissions Should Now Be Reviewed.

CE eee a oOo 6 cane a ee ee os tea

20

to

Nm

30

Vv

TABLE OF AUTHORITIES

CASES PAGE

Agostini v. Felton, 521 U.S. 203 (1997) ............00 00 10

Ambach v. Norwick, 441 U.S. 68 (1979) ..............00- 13

Arizonans for Official English v. Arizona,

Oe a GILT TOFE acdc ib ovscan a taudsiennceie 28

Brewer v. West Irondequoit Cent. Sch. Dist.,

212 F.3d 738 (CA2 2000) .......... chaduekas 10, 11, 15

Brown v. Board of Ed., 347 U.S. 483 (1954) .............. 13

Carson v. American Brands, Inc., 450 U.S. 79 (1981) ...... 26

Chevron U.S.A. Inc. v. Natural Resources Defense

Ciumeh, fae., 467 US: GET CIS ik xa vas censsescavs 26

City News and Novelty, Inc. v. City of Waukesha, 121 S.Ct.

POD TENSE) 2 i kins cacecbtebise ane 27

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) ........... 27

City of Richmond v. J.A. Croson Co.,

Oe Fes LUNs ks ond Se wh hae eh ees 6, 7, 15, 16

DeFunis v. Odegaard, 416 U.S. 312 (1974) .............. 20

Eisenberg v. Montgomery County Pub. Schools,

eM Brey eS Pee er oerers rt pe 12

Farrar v. Hobby, 506 U.S. 103 (1992) .................. 25

vi

Geier v. Alexander, 801 F.2d 799 (CA6 1986) ..... se eeeee 14

Gratz v. Bollinger, 122 F.Supp.2d 811

CGE. WEG. BOSON cc chk ic cbap cisodwennes 10, 11, 13,21

Grutter v. Bollinger, No. 01-1447, 2001 WL 327822

(CAG Aad. 5, MOON). 66 cbodacatgudetesessusaueusee 21

Grutter v. Bollinger, No. 97CV75928-DT,

2001 WL 293196 (E.D. Mich. Mar. 27,2001) ... 10,20, 21

Gunn vy. Univ. Comm. To End War, 399

UD. SES (ISIE oc ccncsksisussscecudababacesisee 28

Hewitt v. Helms, 482 U.S. 755 (1987) .. 2... 0.6 ee aes 26, 28

Hopwood vy. Texas, 236 F.3d 256

CCAS BOOED co vccecccnstuustseebeevasbeeeoee pussim

Hopwood v. Texas, 78 F.3d 932 (CAS 1996) .......... passim

Hopwood v. Texas, 861 F.Supp. 551 (W.D. Tex. 1994),

rev'd, Hopwood Il, 78 F.3d 932 (CAS 1996),

cert. denied, 518 U.S. 1033 (1996) ............... passim

Hopwood v. Texas, 999 F.Supp. 872 (W.D. Tex. 1998),

aff'd in part and rev'd in part.

250 F.S0 2tO Cees Be 0 6a 44. 4.0.60%04c5RR ROS passim

Hunter v. Regents of Univ. of Cal., 190 F.3d 1061

CCAD SSPOD caccicvscdnsiissuueesecueteneee 1]

JE. Riley Inv. Co. v. Comm 'r, 311 U.S. 55 (1940) ......... 27

Vii

Johnson v. Bd. of Regents of Univ. Sys. of Ga.,

106 F.Supp.2d 1362 (S.D. Ga. 2000) ......... scoe Mae

Kromnick v. School Dist. of Philadelphia, 739 F.2d 894

CS Ts 4c dk unde chespacaseeseee ee 11

Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871 (1990) ........ 23

Lutheran Church-Mo. Synod v. F.C.C., 141 F.3d 344

RE ec sev bodnciess dNikdbakecsaeoener eee 12

Missouri v. Jenkins, 515 U.S. 70 (1995) .............045. 23

Perez v. Ledesma, 401 U.S. 82 (1971) ...............605- 28

Regents of the University of California v. Bakke,

ee ah, Td w6 6005 6d 6800645 h0s00s00os passim

Rodriguez de Quijas v. Shearson/American Express,

SUES. Gre Ce coves ckccsasdncadudbednesuagacs 10

Shane vw. nt, SUT UG. FOP IFO occ vckcnsddcivecesacs 14

Smith v. Univ. of Washington, 233 F.3d 1188

(CA9 2000), petition for cert. filed, US.L.W. __

~ (U.S. Feb. 21, 2001) (No. 00-1341) .............-.. passim

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

ft aT |) eT errr rrr ye errr eT T 12

Sweatt v. Painter, 339 U.S. 629 (1950) .............. 4,5, 13

Sweezy v. New Hampshire, 354 U.S. 234 (1957) ........... 12

Vill

Texas v. Lesage, $28 US. 1B (1999) 2. ccc csescccsccces 28

Tuttle v. Arlington County Sch. Bd., 195 F.3d 698

(CA41999). cert. dismissed, 529 U.S. 1050 (2000) ...... 12

United States v. Fordice, 505 U.S. 717 (1992) ......... passim

United States v. Munsingwear, Inc., 340 U.S. 36 (1950) .... 28

United States v. Paradise, 480 U.S. 149 (1987) ........... 14

Wessmann vy. Gittens, 160 F.3d 790 (CA1 1998)........ 10, 12

Wittmer v. Peters, 87 F.3d 916 (CA7 1996) .............. 1

Wygant v. Jackson Board of Ed., 476 U.S. 267

| LTE SOP TET ee EE EE TEE Te TT ye Ty Fy 6, 13

STATUTES AND RULES

28 U.S.C. §1254(1) oo... eee. Sere eye 2, 26

Foie ws rere errr rrr PPECe POET CTP eT 26

eID 6 ha nck ceeds wewerssbateWeua vada eaves 3

a I Av aw ab cknenve seinen dee tebssewmeeaan 3

EE Lieb cn nea Ride wie koddaducaarcees eas 3

EE I ik 5 4 bso kk vs eed po benee sks 19

TEX. Be. COM SSE BED oo cc ccc csctvicseresececesecs 19

CONSTITUTIONAL PROVISIONS

US. Cont. amen. FEV. OE nck cscecacestectesracvenes 3

OTHER AUTHORITIES

Diana Jean Schemo, Head of U. of California Seeks to

End SAT Use in Admissions, N.Y. TIMES,

RE Sore rr rr Poin Perr rT rey 19

Kenneth R. Weiss, UC Minority Applications Surge,

Li Fe I BECO a ota ceca th vance deaasen 19

Mary Ann Roser, UT Law School Recoups Some Minority

Losses, AUSTIN AMERICAN-STATESMAN,

RE FRO ado dicca nn cdserndass nee tense dsnenen 18

Texas Comptroller of Public Accounts, Population Forecasts

for Texas Counties by Race/Ethnicity 1990-2030,

http://www.cpa.state.tx.us/cgi-bin/poppgm (2000) ...... 18

Texas Journal, WALL ST. J., Sept. 6, 2000 ............... 18

an The

Suprenve Court of the United States

STATE OF TEXAS, ET AL.,

Petitioners, —

¥.

CHERYL J. HOPWOOD, ET AL.,

JUD, Ef

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

This case presents fundamental questions about the

constitutionality of affirmative action in higher education. The

Court should grant this petition because the decision of the court of

appeals addresses issues of national significance for higher

education on which the lower federal courts are in direct

disagreement and exemplifies the lower courts’ unsettled

understanding of the Court’s decision in Regents of the University

of California v. Bakke, 438 U.S. 265 (1978), as well as the proper

analysis for remedial, race-conscious state action. Since the Fifth

Circuit issued its original Hopwood decision five years ago, the

tension among the circuits has only increased and has resulted in

irrational and unbearable variation in applicable law. The

prevailing uncertainty is drawn into sharp relief by the fact that the

sheer fortuity of a school’s geographic location dictates the

governing law on admissions criteria. Due to the great importance

2

of the issues to the country’s public institutions of education, as

well as to the larger arena of the States” use of racial classifications,

petitioners request that the Court grant this petition.

OPINIONS BELOW

There have been three substantial opinions in the district court

and three in the court of appeals, each styled Hopwood v. Texas. In

the nomenclature adopted by the court of appeals, the three

appellate opinions are Hopwood I, I], and III, respectively. The

second and third opinions of the district court are Hopwood A and

B, respectively. The first opinion in the district court received no

short-form designation. The first opinion in each court dealt with

unsuccessful motions to intervene and are not at issue in this

petition. The two relevant sets of opinions are reported as follows:

Hopwood A, 861 F.Supp. 551 (W.D. Tex. 1994) (Pet. App.

la-72a), rev'd, Hopwood II, 78 F.3d 932 (CAS) (Pet. App.

73a-150a), reh'g en banc denied, 84 F.3d 720 (CAS) (Pet.

App. 15la-162a), cert. denied, 518 U.S. 1033 (1996).

Hopwood B, 999 F.Supp. 872 (W.D. Tex. 1998) (Pet. App.

163a-268a), aff'd in part and rev'd in part. Hopwood III,

236 F.3d 256 (CA5 2000) (Pet. App. 273a-318a). In an

unreported order, the court of appeals denied both sides’

petitions for rehearing en banc. Pet. App. 319a-321a. _

JURISDICTION

The court of appeals entered judgment on Decemter 21, 2000.

It denied timely petitions for rehearing en banc on January 17,

2001. This Court has jurisdiction under 28 U.S.C. §1254(1).

3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Equal Protection Clause provides that no State shall “deny

to any person within its jurisdiction the equal protection of the

laws.” U.S. CONST. amend. XIV, §1.

Title VI of the Civil Rights Act of 1964 provides:

No person shall, on the ground of race, color, or national

origin, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance.

42 U.S.C. §2000d.

STATEMENT OF THE CASE

Respondents are unsuccessful applicants for admission to the

University of Texas School of Law. They filed this action alleging

that they were denied admission because of their race. The district

court had jurisdiction under 28 U.S.C. §§1331 and 1343.

After an eight-day trial, the district court held that the law

school’s consideration of race in admissions served compelling

interests in maintaining a diverse student body and in overcoming

the effects of past discrimination by the law school and by other

units of public education in Texas. Hopwood A, 861 F.Supp.., at

569-73. The district court interpreted the law school’s claims of

compelling interest in light of the State’s “affirmative duty to

eliminate every vestige of racial segregation and discrimination in

its educational system.” /d., at 571 (citing United States v. Fordice,

505 U.S. 717 (1992)).

Texas’s system of public education, including the law school,

has a long history of discrimination against minority students at all

levels. Jd., at 554-57, 571-73. The State believes that it has rid

itself of overt discriminatory practices, but vestiges of its past

discrimination remain. The present effects of past discrimination

4

are especially evident in the racial identifiability of the pool of

applicants who meet the demanding competitive admissions criteria

at its most selective institutions of higher education, including the

law school. For over twenty years, the Department of Education’s

Office for Civil Rights (OCR) has demanded that the university and

the law school take affirmative, race-conscious measures to

eliminate the current effects of past discrimination in Texas’s public

education system. /d., at 556-57. OCR’s enforcement actions were

directed in part by orders of the United States District Court for the

District of Columbia, which held in 1983 that Texas had not yet

adopted a sufficient plan for desegregating higher education. /d.,

at 556.

The district court found that many Texans in the pool of

potential law students had attended segregated schools, and that

“this segregation has handicapped the educational achievement of

- many minorities” and constricted the pool of qualified minority

applicants to the law school. /d., at 573. More than forty Texas

school districts remained under judicial supervision in

desegregation litigation when this case was tried in 1994 (and when

the law school class of 2016 entered kindergarten). /d., at 554.

The district court also found that the legacy of the law school’s

own segregation continued to shape minority attitudes toward the

law school, as evidenced by the racial identity of the applicant pool

and the reluctance of minority applicants to accept offers of

admission. /d., at 572-73. The law school was segregated de jure

for many decades, see Sweatt v. Painter, 339 U.S. 629 (1950), and

then segregated de facto by its rising admission standards. The law

school’s first experiments with affirmative action admitted too

many weak students and were abandoned. Hopwood A, 861

F.Supp., at 557. The immediate consequence of abandoning

affirmative action was that in 1971, the law school’s entering class

of more than 500 students contained zero blacks. /d., at 558, 573

n.66.

ia aaa

5

Beginning in the 1970s, the law school developed admissions

procedures designed to remedy the effects of past discrimination

and enhance the diversity of the student body while preserving

highly selective criteria for admission. Details of the plan changed

from year to year, but the law school consistently sought to admit

additicnal black and Mexican-American students who were well- ~

qualified but would not otherwise be admitted to the law school.

Id., at 557-63, 582 n.87. Over time, as the pool of minority

applicants became stronger, the law school gradually reduced its

reliance on racial preferences. /d., at 560 n.18, 575 & n.69. “The

applicants selected for admission come from a relatively narrow

band within the full range of scores.” Jd., at 563. Preferring

minorities within that band substantially increased minority

enrollment with negligible impact on the academic strength of the

class as a whole and only modest impact on any other applicant’s

individual chances for admission.

The district court found that eliminating all consideration of

race in admissions would lead directly to “resegregating the law

school,” and to a large majority of Texas minority law students

attending Texas Southern University, the “separate-but-equal” law

schoo! created by Texas in the 1940s to avoid desegregation. /d.,

at 573 & n.66; see Sweatt, supra. The district court also found

substantial educational benefits from racial and ethnic diversity in

law school classrooms. Hopwood A, 861 F.Supp., at 571. Based on

these findings, and on this Court’s judgment in Regents of the

University of California v. Bakke, 438 U.S. 265 (1978), the court

held that considering race in admissions served compelling interests

in remedying the effects of past discrimination and in achieving

educational diversity.

'See Hopwood B, 999 F .Supp., at 886 n.29 (setting out testimony and

data showing small anticipated increases in admission rates for

nonpreferred applicants in the absence of affirmative action).

6

The district court invalidated certain details of the law school’s

1992 admissions program, holding that the school’s procedures

were not narrowly tailored to serve the identified compelling

interests. Hopwood A, 861 F.Supp., at 578-79. The law school had

already corrected these features of its program, id., at 582 & n.87,

and did not appeal this aspect of the district court's decision.

Plaintiffs appealed the district court’s denial of their request for an

injunction prohibiting all consideration of race.

The court of appeals reversed, forbidding “any consideration of

race” in admissions, Hopwood II, 78 F.3d, at 948 n.36 (emphasis

added), “even as part of the consideration of a number of factors,”

id., at 946, 962. The court of appeals did not overturn the district

court's findings on any of the facts summarized in this petition;

instead, it rejected the relevance of those facts. The court of

appeals held that the law school may remedy only its own

discrimination, and that discrimination against minority applicants

by other public education entities in Texas is mere “societal

discrimination,” beyond the State’s power to address with race-

conscious means. /d., at 949-52. The court also concluded that the

principal continuing effects of past discrimination by the law

school—the limited number of minority applications, the resulting

low minority matriculation rate, and the law school’s reputation in

the minority community—are irrelevant and cannot justify even

limited consideration of race in admissions. /d., at 952-54. The

court further held that the law school’s interest in racial and ethnic

diversity is irrational, id., at 945, and that its constitutional duty to

eliminate all vestiges of past discrimination is irrelevant to this

case, id., at 954-55.

The court of appeals relied heavily on contract set-aside cases

such as City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989),

and employment cases like Wygant v. Jackson Board of Education,

476 U.S. 267 (1986), while rejecting the relevance of the Court’s

higher education cases. The court refused to follow Bakke because

ee

7

there was no majority in that case for any single governmental

interest justifying affirmative action and because the court of

appeals believed that Bakke had been implicitly overruled by

subsequent decisions. Hopwood II, 78 F.3d, at 944-45. The court

of appeals rejected the relevance of United States v. Fordice, 505

U.S. 717 (1992), holding that Fordice did not modify earlier cases

such as Croson, and that the duty to eliminate all vestiges of

segregation in higher education means only that the law school may

address the (narrowly defined) effects of its own past

discrimination—not that it may or must address the effects of

discrimination by other actors in the Texas educational system.

Hopwood II, 78 F.3d, at 955.

The court of appeals issued a detailed “judicial instruction” to

defendants:

{I]t 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.

Id., at 958. It followed the instruction with the threat of “actual

and punitive damages” if the law school did not comply. /d., at

959. Yet it declined to order that defendants 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.” /d., at 958. After the closely divided court denied

rehearing en banc, Pet. App., at 15la-162a, this Court denied

certiorari. 518 U.S. 1033 (1996).

After a four-day second trial on remand, the district court

enjoined the law school from any consideration of race in

admissions. Hopwood B, 999 F.Supp., at 923. The district court

found that none of the plaintiffs would have been admitted to the

law school under a race-neutral system of admissions, but awarded

$704,000 in attorney's fees after awarding only nominal damages.

Id., at 901, 923-24. Both sides appealed.

The court of appeals affirmed the denial of actual damages.

Hopwood II], 236 F.3d, at 263-72. It repeated and reaffirmed its

earlier “judicial instruction” prohibiting any consideration of race

in law school admissions, id., at 273-74, and concluded that

Hopwood I] did not squarely contradict any decision of this Court,

and thus was not “dead wrong.” /d., at 272-76.

The court of appeals reversed the injunction against any

consideration of race, but primarily on procedural grounds. It

remanded for findings of fact and conclusions of law explaining the

necessity of the injunction. /d., at 276-77. The court also decided

that by prohibiting any consideration of race, the injunction went

beyond Hopwood IIs “judicial instruction” forbidding

consideration of race for any of four stated reasons. /d. But

because the four reasons encompassed all the reasons why the law

school might consider race in admissions, and were plainly so

understood in both Hopwood I] and Hopwood III, there was no

practical difference between the court of appeals’s “judicial

instruction” and the district court’s injunction.

With the reversal of the injunction, plaintiffs were left with no

actual damages, no order of admission, and no formal injunction or

declaratory judgment controlling the future behavior of the law

school. Even so, as a practical matter the court of appeals’s

“judicial instruction” ended all consideration of race in the law

school’s admissions decisions by direct judicial order, and by its

deterrent effect eliminated all consideration of race in admissions

or financial aid anywhere in public higher education in Texas.

Based on that, the court of appeals held that plaintiffs had achieved

9

prevailing-party status with Hopwood I] and affirmed the

substantial award of attorneys’ fees. /d., at 277-78.

REASONS FOR GRANTING THE WRIT

I. THE JUDGMENT BELOW CONFLICTS WITH DECISIONS OF

THIS COURT AND OF OTHER CIRCUITS.

A. The Conflict with Bakke. The court of appeals’s blanket

prohibition of any consideration of race in admissions conflicts

with the only clear holding of Regents of the University of

California v. Bakke, 438 U.S. 265 (1978). Bakke is the Court’s

only decision on the merits of affirmative action in higher

education, and it directly controlled this case. Although Bakke was

a fractured decision, a majority of the Court united in one clear

holding (in Part V(C) of the lead opinion) that universities may take

race into account in admissions:

“In enjoining petitioner from ever considering the race of

any applicant, however, the courts below failed to recognize

that the State has a substantial interest that legitimately may

be served by a properly devised admissions program

involving the competitive consideration of race and ethnic

origin. For this reason, so much of the California court’s

judgment as enjoins petitioner from any consideration of the

race of any applicant must be reversed.” /d., at 320

(opinion of the Court per Powell, J.).

See also id., at 328 (opinion of Brennan, J., joining in Part V-C of

Justice Powell’s opinion). That is the holding in Bakke, and the

Court has never overruled it. Bakke reversed an injunction,

substantially identical to the “judicial instruction” issued by the

court of appeals in this case, that prohibited any consideration of

race in admissions. Because members of the Bakke majority relied

on different justifying compelling interests, the court of appeals

refused to follow any of Bakke’s rationales, and thus refused to

abide by the Court’s judgment.

10

Unable to distinguish Bakke on the facts, the court of appeals

openly rejected Bakke’s authority as law. Hopwood II, 78 F.3d, at

944-45; see also Smith v. Univ. of Washington, 233 F.3d 1188,

1200 n.9 (CA9 2000) (noting conflict with Bakke), petition for cert.

filed, _ US.L.W. __ (U.S. Feb. 21, 2001) (No. 00-1341);

Wessmann v. Gittens, 160 F.3d 790, 795(CAI1 1998) (same); Gratz

v. Bollinger, 122 F.Supp.2d 811, 820-21 (E.D. Mich. 2000) (same).

And in Hopwood II], even with the passage of time for reflection,

the court of appeals declined to reconsider the first panel’s

disregard of Bakke. 236 F.3d, at 274-75. Now district courts have

also begun to hold that Bakke is not authority they are bound to

respect. See, e.g., Grutter v. Bollinger, No. 97CV75928-DT, 2001

WL 293196, at *45 (E.D. Mich. Mar. 27, 2001) (enjoining

consideration of race in admissions to University of Michigan Law

School); Johnson v. Board of Regents of Univ. Sys. of Ga., 106

F.Supp.2d 1362, 1367-69 (S.D. Ga. 2000) (invalidating

consideration of race in admissions to University of Georgia);

Brewer v. W. Irondequoit Cent. Sch. Dist., 32 F.Supp.2d 619, 628-

29 (W.D.N.Y. 1999) (relying on Hopwood I] and rejecting racial

diversity of student body as legitimate governmental interest),

rev ‘d, 212 F.3d 738 (CA2 2000).

The Fifth Circuit has put the status of Bakke in controversy.

See, e.g, Hopwood II, 78 F.3d, at 944-45 (“[{T]he Bakke Court did

not express a majority view and is questionable as binding

precedent.”). If Bakke is still good law, this Court must say so. If

Bakke is to be modified or overruled, only this Court can say so.

Whatever the ambiguities of the opinion, and whatever seemingly

discernible hints may have followed in subsequent decisions on

affirmative action in other contexts, Bakke is the decision that most

directly governs affirmative action in education, and the lower

courts remain bound by it until the Court expressly says otherwise.

See Agostini v. Felton, 521 U.S. 203, 237-38 (1997); Rodriguez de

Quijas v. Shearson/American Express, 490 U.S. 477, 484 (1989).

B. The Conflict in the Lower Courts over Diversity. By

refusing to respect the authority of Bakke, the Fifth Circuit has also

brought itself into square conflict with other circuits. In Smith v.

University of Washington Law School, the Ninth Circuit held that

Bakke is good law, that diversity is a compelling interest in higher

education, and that “a properly designed and operated race-

conscious admissions program” at the University of Washington’s

law school would not be in violation of Title VI or the Fourteenth

Amendment. 233 F.3d, at 1201. Both the Fifth and Ninth Circuits

expressly recognized their conflict. See id., at 1200 n.9 (“We

acknowledge that Hopwood [ll] decided to the contrary.”);

Hopwood Ill, 236 F.3d, at 275 n.66 (“We respectfully

disagree . . . with the Ninth Circuit’s holding that Justice Powell's

diversity rationale is binding Supreme Court precedent.”).

The division in the lower courts is further evidenced by courts’

disagreement with the Fifth Circuit’s holding that consideration of

race is limited to remedial interests. See Brewer v. West

Irondequoit Cent. Sch. Dist., 212 F.3d 738, 752-53 (CA2 2000)

(reduction of racial isolation resulting from de facto segregation can

be compelling interest, even when not caused by school district);

Hunter v. Regents of Univ. of Cal., 190 F.3d 1061 (CA9 1999)

(recognizing as a compelling state interest the operation of a

research-oriented elementary “lab” school aimed at improving

urban education); Wittmer v. Peters, 87 F.3d 916, 919, 921 (CA7

1996) (holding effective management of prison boot camp

compelling governmental interest, justifying race-conscious hiring);

Kromnick v. School Dist. of Philadelphia, 739 F.2d 894, 906-07

(CA3 1984) (upholding voluntary race-conscious teacher

assignments in light of school system’ s de facto segregation); Gratz

v. Bollinger, 122 F.Supp.2d 811, 816-24 (E.D. Mich. 2000)

(rejecting Hopwood I] and finding that diversity in higher education

is a compelling interest that can justify narrowly tailored

consideration of race in admissions). It remains true that “[iJn the

education context, Hopwood is the only appellate court to have

12

rejected diversity as a compelling interest.” Wessman, 160 F.3d, at

795; see also Brewer, 212 F.3d, at 748 (“the Fifth Circuit is the

only circuit since Bakke to hold that a non-remedial state interest,

such as diversity, may never justify race-based programs in the

educational context”); Tuttle v. Arlington County Sch. Bd., 195 F.3d

698, 704 (CA4 1999) (“The only circuit to hold that diversity is not

a compelling interest is the Fifth”), cert. dismissed, 529 U.S. 1050

(2000).

Some circuits have avoided the head-on conflict by opting not

to rely on the lack of a compelling interest and considering instead

whether States have narrowly tailored their programs to a presumed

interest. See, e.g., Eisenberg v. Montgomery County Pub. Schools,

197 F.3d 123, 130 (CA4 1999) (noting that “whether diversity is a

compelling interest remains unresolved, and in this case, we also

choose to leave it unresolved”); Wessman v. Gittens, 160 F.3d 790,

796 (CA1 1998) (concluding that it “need not definitively resolve

this conundrum today” and deciding case on alternative grounds);

Lutheran Church-Mo. Synod v. F.C.C., 141 F.3d 344, 354, 356

(CADC 1998) (commenting that it did “not think diversity can be

elevated to the ‘compelling level’” but striking down challenged

regulation on narrow-tailoring grounds). This approach has

inevitably led to extensive analysis of factual matters to ascertain

whether a classification is narrowly tailored, while governmental

purposes go unexamined and States remain without guidance on

proper compelling interests.

In rejecting the law school’s diversity interest, the court of

appeals relied on decisions by the Court that say next to nothing

about education, and that do not undermine Bakke. The court of

appeals did not appropriately consider either the Court’s deference

to education officials’ design of academic policy, see, e.g., Swann

v. Charlotte-Mecklenburg Bd. of Ed.,402 U.S. 1, 16(1971); Sweezy

v. New Hampshire, 354 U.S. 234, 263 (1957), or the special

significance diversity takes on in the school setting. As the Court

ee ore nee Tne em «

13

put it in Brown v. Board of Education, education is “the very

foundation of good citizenship” and “a principal instrument in

awakening the [student] to cultural values.” 347 U.S. 483, 493

(1954). Diversity is a critical tool for schools in their function as

“an assimilative force by which diverse and conflicting elements in

our society are brought together on a broad but common ground...

inculcating fundamental values necessary to the maintenance of a

democratic political system.” Ambach v. Norwick, 441 U.S. 68, 77

(1979) (quotations and citation omitted); see also Wygant v.

Jackson Bd. of Ed., 476 U.S. 267, 315 (1986) (Stevens, J.,

dissenting) (expressing similar view). Such benefits are simply

lacking and often impossible in other contexts, such as

broadcasting, employment, or industry contracting. In the school

setting, by contrast, people from different backgrounds are

intermingled in a learning environment. As Justice Powell made

the common-sense recognition in Bakke, “the nation’s future

depends upon leaders trained through wide exposure to the ideas

and mores of students as diverse as this Nation of many peoples.”

438 U.S., at 313 (opinion of Powell, J.) (quotation and citation

omitted).

The academic benefits of a student body representing differing

ideas, values, backgrounds, and life experiences are widely

recognized. See, e.g., Sweatt, 339 U.S., at 634 (“The law school,

the proving ground for legal learning and practice, cannot be

effective in isolation from the individuals and institutions with

which the law interacts.”); Gratz, 122 F.Supp.2d, at 822-23

(reviewing expert evidence of racial diversity’s contributions to

school and students). The court of appeals inappropriately and

bluntly applied the Court’s conclusions regarding the financial

windfall of contract set-asides to the Bakke benefits of an enriched

academic life.

14

C. The Conflict over Remedying Past Discrimination and

Preventing Racial Identifiability. The Court has recognized a

State’s interest in remedying past discrimination. See, e.g., Shaw

v. Hunt, 517 U.S. 899, 909 (1996) (“A State’s interest in remedying

the effects of past or present racial discrimination may in the proper

case justify a government’s use of racial distinctions.”); United

States v. Paradise, 480 U.S. 149, 196 (1987) (O’Connor, J.,

dissenting) (stating that there is “a compelling interest in remedying

past and present discrimination’). Yet the court of appeals’s severe

limitations on the law school’s remedial use of race strictly limited

the State’s ability to accomplish that interest. Hopwood I] confined

its inquiry into past discrimination to the acts of a single academic

department and held thai discrimination in public education in

earlier years of a student’s life is mere societal discrimination that

the law school must ignore. 78 F.3d, at 949-52. That decision

squarely conflicts with Geier v. Alexander, 801 F.2d 799 (CA6

1986), in which the Sixth Circuit upheld consideration of race in

admissions to the University of Tennessee Law School:

“Applicants do not arrive at the admissions office of a

professional school in a vacuum. To be admitted, they

ordinarily must have been students for sixteen years . . . .

The consent decree in this case does not seek to remedy

some amorphous ‘societal’ wrong. It is directed solely at

the continuing effects of past practices that adversely

affected black Tennesseans as they moved through the

public school systems and the higher education systems of

the state.” /d., at 809-10.

For the first time in American history, a formerly segregated

State institution has been prohibited from any ameliorative

consideration of race in attempting to remedy past discrimination

in the State’s public education system. The judgment below is thus

in substantial tension with United States v. Fordice, 505 U.S. 717

(1992), which clearly emphasized that the inquiry must extend to

15

the whole state: “/TJhe State of Mississippi had the constitutional

duty to dismantle the dual school system that its laws once

mandated. ... Thus we have consistently asked whether existing

racial identifiability is attributable to the State ....” Id., at 727-28

(emphasis added).

The Fifth Circuit’s holding that the State is confined to race-

neutral admissions policies in its efforts to remedy the present

effects of past discrimination and to prevent de facto resegregation

of the law school is also at odds with Fordice:

“We do not agree . . . that the adoption and implementation

of race-neutral policies alone suffice to demonstrate that the

State has completely * ~ndoned its prior dual system. That

college attendance is vy choice and not by assignment does

not mean that a race-neutral admissions policy cures the

constitutional violation of a dual system.” /d., at 729.

For similar reasons, the judgment below conflicts with Erewer v.

West Irondequoit Cent. Sch. Dist.,212 F.3d 738 (CA2 2000), which

expressly rejected Hopwood II and held that elimination of de facto

segregation is a compelling interest that can justify consideration of

race in admissions, even when the school has no past history of de

jure segregation. 212 F.3d, at 745-46, 752-53.

Petitioners believe that the State’s interest in affirmative action

is at its zenith in selective and formerly segregated institutions of

higher education, and that the education cases are thus far more

relevant than cases on contract set-asides and other contexts. But

the judgment below conflicts even with some portions of the

Court’s opinions rejecting contract set-asides on the basis of race.

Justice O’Connor’s opinion in Croson rejected the claim that a city

is required to “limit any race-based remedial efforts to eradicating

the effects of its own prior discrimination.” 488 U.S., at 486

(plurality opinion). Instead, the Justices took the broad view that

if a “city could show that it had essentially become a ‘passive

~—--

Poh vied ener eMynin nale ae bt i tne tal

16

participant’ in a system of racial exclusion practiced by elements of

the local construction industry, we think it clear that the city could

take affirmative steps to dismantle such a system.” /d., at 492. In

other words, they concluded that a governmental actor even less

culpable than the law school could a act to remedy the effects of

racial discrimination.

Struggling to reconcile the Croson opinion with Hopwood ITs

holding that the law school must ignore the effect of past

discrimination in-Texas public education on its applicant pool, the

court of appeals in Hopwood II] reached a remarkable conclusion:

the law school could have considered race for remedial purposes if

it had been a passive participant in private discrimination, see

Croson, 488 U.S., at 492, but it was barred from using race because

it had instead been an active participant in governmental

discrimination. 236 F.3d, at 274 & n.61. Despite Hopwood IITs

attempted distinctions, the decision conflicts with Croson. By

improperly narrowing the scope of possible past discrimination to

be remedied, the court of appeals simply refused to consider the law

school’s evidence of the present effects of past discrimination.

D. Conflicts—In Sum. The Court’s long silence on

consideration of race in higher education has left conflict and

confusion in the lower courts. Various conflicts on specific issues

comprise a deeper conflict on the basic question of the

constitutionality of affirmative action in higher education, and this

case presents the most critical issues of that conflict. At least in the

context of a formerly segregated state educational system, the

absence of reasonable racial diversity is a form of racial

identifiability. Racial identifiability isa measure of segregation and

often a consequence of past discrimination, particularly in an

educational system that was once segregated de jure into two

completely separate and unequal educational systems. Diversity,

past discrimination, and desegregation are doctrinally distinct, but

|

17

they necessarily coexist in the context of a formerly segregated

system.

In Bakke, the Court held that compelling interests in diversity, |

or in remedying past discrimination, or at least in the two

combined, can justify some consideration of race in professional

school admissions. In Fordice and other desegregation decisions,

the Court took a broad view of the States’ authority and

responsibility to address the present effects of past de jure

segregation. The Fifth Circuit took an extraordinarily narrow view

of both Bakke and Fordice, putting itself in conflict with this Court

and other circuits. Confusion and conflict now reign with respect

‘to what a State may do to cure the effects of past discrimination and

achieve reasonable racial diversity. The Court should grant

certiorari to begin resolving these conflicts.

II. THIs CASE PRESENTS A CONSTITUTIONAL ISSUE OF GREAT

NATIONAL IMPORTANCE.

There is consensus that the issues in this case are of national

significance. See Hopwood, 518 U.S., at 1033 (Ginsburg, J.,

concurring in denial of writ of certiorari) (stating that “[w]hether it

is constitutional for a public college or graduate school to use race

or national origin as a factor in its admissions process is an issue of

great national importance”); Smith v. University of Wash., No. 00-

1341, Pet. for Cert., at 2 (Feb. 21, 2001) (asserting that whether

achievement of a diverse student body is a compelling

governmental interest is “issue of profound national importance”);

Texas v. Hopwood, No. 95-1773, Br. for the United States as

Amicus Curiae Supporting Petitioners, at 10 (stating that the case

“raises issues of national importance that call for this Court’s

review”). The future of Bakke has obvious importance to both

public and private colleges and universities across America, and the

current inconsistency among the circuits in the law governing

admissions programs confirms the continuing national significance

of the issues.

18

The issue is even more important in those States that once

operated de jure segregated systems of higher education. Sixteen

States were sued under Title VI in the long-running Adams

litigation in the District of Columbia. See Hopwood A, 861

F.Supp., at 555-56. These States now operate under a variety of

judicial decrees and desegregation plans negotiated with the

executive branch, all designed to eliminate racially identifiable

institutions of higher education. The judgment below conflicts with

many of those plans, and questions about the relationship of

affirmative action to desegregation continue to be of profound

importance throughout the South.

Hopwood IIs effect on racial identifiability was swift and

dramatic. In the first class admitted subsequent to that decision, the

law school enrolled four black students and 26 Mexican-American

students in a class of about 500—one-tenth the number of blacks

and fewer than half the number of Mexican-Americans as had

enrolled in 1992. See Hopwood A, 861 F.Supp., at 554 n.67; Mary

Ann Roser, UT Law School Recoups Some Minority Losses,

AUSTIN AMERICAN-STATESMAN, Aug. 26, 1998, at BI. Massive

recruiting efforts have raised those numbers somewhat, to 18 blacks

and 34 Mexican-Americans in the 2000 entering class of roughly

500 students, but the law school remains substantially racially

identifiable in a State that is more than 40% black and Mexican-

American. See Texas Journal, WALL ST. J., Sept. 6, 2000, at T1;

Texas Comptroller of Public Accounts, Population Forecasts for

Texas Counties by Race/Ethnicity 1990-2030, http://www.cpa.-

state.tx.us/cgi-bin/poppgm (2000).

The law school has been forbidden to admit highly qualified

minority students who approach or approximate but do not exceed

the ever-rising threshold for admission in each year’s competitive

admissions process. It is prohibited from considering race even

within the narrow band of academic credentials from which most

students are admitted. Many of the brightest minority law students

19

are wooed to law schools in other States by strong minority

admissions and financial aid programs, which remain constitutional

elsewhere.

Other consequences of the judgment below are less obvious but

equally drastic. The legal and rhetorical force of this Court’s

desegregation opinions helped make it constitutionally, politically,

and socially unacceptable for selective public institutions to be

overwhelmingly white. Carefully limited affirmative action plans

were the one effective mechanism that enabled selective public

universities to pursue the highest academic standards and also

achieve some degree of racial diversity.

Now, institutions of higher education have resorted to

alternative means in an effort to retain diversity’s contributions for

their schools. The Texas Legislature responded to Hopwood I] with

well-intentioned legislation that unavoidably has the effect of

lowering undergraduate admission standards. TEX. EDUC. CODE

§51.803 guarantees admission to any public university in Texas to

any student who graduates in the top ten percent of his Texas high

school class, without regard to test scores or high school

curriculum. And Tex. Epuc. CoDE §51.805(c) directs Texas

universities to consider “all of, any of, or a combination of”

eighteen admissions factors, mostly having nothing to do with

academics, in the hope that some of these factors will turn out to be

proxies that increase the number of minority students. The

University of California, under similar pressure because of state-

law prohibitions on considering race, has guaranteed admission to

any student in the top four percent of his high school class, and its

President has proposed ending the use of the Scholastic Aptitude

Test. See Diana Jean Schemo, Head of U. of California Seeks to

End SAT Use in Admissions, N.Y. TIMES, Feb. 17, 2001, at Al:

Kenneth R. Weiss, UC Minority Applications Surge, L.A. TIMES,

Jan. 31, 2001, at B1. Likewise, in the Michigan Law School case,

to prevent substantial declines in minority enrollment, the district

20

court suggested “decreasing the emphasis for all applicants on the

undergraduate GPA and LSAT scores, using a lottery system for all

qualified applicants. or a system whereby a certain number or

percentage of the top graduates from various colleges and

universities are admitted.” Grutter, 2001 WL 293196, at *26.

The essence of these approaches is to abandon the pursuit of

academic excellence. The law school’s interest in avoiding racial

identifiability is compelling in itself; it is also inextricably linked

to the law school’s compelling interest in maintaining the highest

possible academic standards. For the last two decades, institutions

of higher education have relied on Bakke to include race among

their considerations in-composing student bodies. Wholly

eliminating that practice would change the face of American higher

education. Whether federal law requires that momentous step is a

question of great importance—all the more so in a formerly

segregated institution—that should be reviewed by the Court.

Ill. THis CASE SQUARELY PRESENTS IMPORTANT ISSUES

THAT ARE NOT SQUARELY PRESENTED IN OTHER

HIGHER EDUCATION CASES.

Over 25 years ago, the Court remarked in dismissing as moot a

case regarding the proper use of race in law school admissions that

“there is no reason to suppose that a subsequent case attacking

those procedures will not come with relative speed to this Court.”

DeFunis v. Odegaard, 416 U.S. 312, 318 (1974). Such a case has

had a long-awaited arrival, and academic institutions and the States

need guidance from the Court to design their admissions programs

constitutionally and put an end to the public doubt, educators’

unease, and attacks on various admissions programs. The need for

resolution by the Court will not abate, but instead will intensify as

these lawsuits proliferate and schools struggle to find fair and

acceptable alternatives to race-conscious admissions.

21

Other pending cases present some of the issues presented in this

case. Several pending cases present the important question whether

diversity in higher education is a compelling governmental interest.

But for now, and for some time to come, only this case squarely

presents the equally important issue of whether remedying the

effects of past discrimination is a compelling interest in the context

of admissions to higher education.

Smith v. University of Washington Law School, No. 00-1341,

presents the diversity issue. But Washington’s educational system

was never de jure segregated, and no issue of past discrimination is

presented either in the petition or in the opinion below. At the very

least, the Court should hold this case if it grants in Smith. If Smith

is affirmed, the “judicial instruction” in this case would have to be

reversed. But if Smith is reversed, or if the Smith petition is denied,

important issues in this case would remain to be decided.

The University of Michigan cases, now pending in the Sixth

Circuit, present the spectacle of conflicting decisions within the

same campus. See Grutter v. Bollinger, 2001 WL 293196 (E.D.

Mich. Mar. 27, 2001); Gratz v. Bollinger, 122 F.Supp.2d 811 (E.D.

Mich. 2000); Grutter v. Bollinger, No. 01-1447, 2001 WL 327822

(CA6 Apr. 5, 2001) (granting a stay). But they too present only

some of the important issues presented here. The university has

defended each case on the ground of diversity, but it has not

defended either case on grounds of past discrimination or

desegregation. Gratz, 122 F.Supp.2d, at 816.5; Grutter, 2001 WL

293196, at *11-*12.° The same is true in the University of Georgia

*Intervenors have raised issues in the Michigan cases that the Grutter

court described as involving “societal discrimination.” The Grutter court

rejected the arguments, see 2001 WL 293196, at *42 (“[T]here has been

no evidence, or even an allegation, that the law school or the University

of Michigan has engaged in racial discrimination.”), and similar issues

raised by intervenors in Gratz are still pending in the district court. 122

22

case. Johnson v. Bd. of Regents of Univ. Sys. of Ga., 106 F.Supp.2d

1362, 1369 & n.5 (S.D. Ga. 2000) (stating that Georgia makes “no

... Claim” that its affirmative action efforts are “necessitated by the

lingering effects of past discrimination”) (quotation omitted).

The issues presented here are of critical importance to higher

education in Texas, yet they cannot again arise in Texas—because

the State’s entire educational system is complying with the court of

appeals’s “judicial instruction.” To do otherwise involves the risk

of large litigation costs, substantial liability for attorneys’ fees, the

actual and punitive damages threatened in Hopwood II, and the

opprobrium of a state institution defying a clear directive from the

federal courts. It has taken this case nine years to get here; the

Court should not lightly assume that some other case, not yet

pending, will soon be filed in some other southern state, that it will

be fully litigated, that it will develop all the issues raised in this

case, that those issues will be presented on the basis of a detailed

record from twelve days of trial, and that it will reach this Court in

a timely fashion. The issues presented are important, they are well

developed, and they should be decided now.

IV. THE COURT OF APPEALS’S JUDICIAL PROHIBITION OF

ANY CONSIDERATION OF RACE IN ADMISSIONS SHOULD

Now BE REVIEWED.

This Court denied a petition for certiorari in this case five years

ago, with two Justices noting that the Court needed to be presented

with an admissions program genuinely in controversy and a

challenge to the lower court judgment before addressing the

questions presented. See Texas v. Hopwood, 518 U.S. 1033 (1996);

id. (Ginsburg, J., concurring). That time has now arrived.

F.Supp.2d, at 814 n.3. Whatever issues intervenors may present in the

Michigan cases, they will not present the extent or degree of

discrimination that is a recent part of educational history in Texas.

23

It is of course settled that neither the earlier denial of certiorari

nor the earlier and unreviewed opinions of the court of appeals

preclude review in this Court. This Court has full power to review

Hopwood II] and any part of the judgment in Hopwood II on which

Hopwood III depends. See, e.g., Missouri v. Jenkins, 515 U.S. 70,

83-86 (1995) (reviewing question decided by court of appeals on

prior appeals, on which Court had previously denied certiorari);

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 881 & n.1 (1990)

(reviewing question decided by court of appeals on prior appeal).

Petitioners challenge the judgment of the court of appeals

reaffirming the court’s “judicial instruction” that the law school

may not consider race in admissions decisions. If the Court decides

that one or more of the State’s compelling governmental interests

justifies some limited consideration of race in admissions, then the

law school will again consider race along with the many other

factors now considered in the admissions process.’ The court of

appeals’s “judicial instruction” presents the issues in the same

absolute terms as the injunction in Bakke (and in the district

‘The current admissions policy considers, beyond the LSAT and

GPA:

“the rigor of the undergraduate course of study as reflected by

the applicant’s college transcripts, graduate study, demonstrated

commitment to public service, work experience, leadership

experience, extracurricular or community activities, history of

overcoming economic or other disadvantage, personal

experiences with discrimination, overcoming disability,

disadvantaged socio-economic background, geographic

diversity (particularly underrepresented regions of Texas),

diversity of experience and background, maturity, ability to

communicate, foreign language proficiency, honors and awards,

service in the Armed Forces, publications, exceptional personal

talents, and other factors.” The Univ. of Tex. School of Law

Application and Admissions Bulletin, p.38 (2001).

24

court)}—whether any consideration of race, however limited and

however administered, is absolutely prohibited.

The court of appeals’s “judicial instruction” was in every

practical respect a de facto injunction or declaratory judgment.

Defendants, plaintiffs, and the courts below have all treated it as

such. The court of appeals’s “judicial instruction™ is not something

that must be gathered from contestable analysis of a discursive

opinion. It was stated, three times, with all the precision of an

injunction or declaratory judgment:

“[T]}he University of Texas School of Law may not use race

as a factor in deciding which applicants to admit in order to

achieve a diverse student body, to combat the perceived

effects of a hostile environment at the law school, to

alleviate the law school’s poor reputation in the community,

or to eliminate any present effects of past discrimination by

actors other than the law school.” Hopwood I], 78 F.3d, at

962.

The instruction is repeated verbatim and reaffirmed in Hopwood 1/1.

236 F.3d, at 273-74. In each repetition, the party subject to the

order is named, the forbidden conduct is identified, and the

prohibited justifications are listed. The judicial instruction is

backed by an explicit threat of penalties. See Hopwood I/, 78 F.3d,

at 959. Judge Wiener noted that the instruction “has all of the

substantive earmarks of an injunction” and that it “constitutes a de

facto injunction . . . albeit without the use of the word injunction.”

Id., at 966-67 (Wiener, J., concurring).

Defendants treated this “judicial instruction” as an injunction;

they have complied for five years and will continue to do so until

the instruction is vacated or superseded. Plaintiffs, too, treated the

“judicial instruction” as an injunction that gave them all the

prospective relief they wanted. At the first trial and on the first

appeal, they sought an injunction against any use of race. Hopwood

25

II, 78 F.3d, at 955, 957-58. But once they obtained Hopwood II's

“judicial instruction,” they opposed any attempt to implement it

with a formal injunction. When the district court on remand issued

the very injunction plaintiffs had originally requested, plaintiffs

appealed. They argued that “[t}his Court [the court of appeals] has

already set forth the limitations on defendant's conduct, 78 F.3d at

958, and accordingly the Court should vacate the injunction as it

corrects the district court’s other errors.” Hopwood II] Reply Brief

& Brief in Opp. of Plaintiffs Hopwood & Carvell, at 43. The

transparent purpose of this argument was to render more difficult

any further review of the “judicial instruction.”

The courts below also treated the “judicial instruction” as either

an injunction or declaratory judgment—a formal judgment

sufficient to support a substantial award of attorneys’ fees. In

Hopwood II, the court of appeals, in its judgment order, instructed

that fees be awarded on remand. See Hopwood II], 236 F.3d, at 278

n.81. The district court awarded substantial fees because:

“plaintiffs attained extraordinary success in the appellate

courts. The plaintiffs accomplished the principal goal of the

lawsuit—to dismantle all forms of racial preferences in

public higher education in Texas.” Hopwood B, 999

F.Supp., at 916.

The court of appeals affirmed the fee award on the same ground.

Hopwood III, 236 F.3d, at 278.*

‘Plaintiffs were also awarded nominal damages of $1 each. Hopwood

B, 999 F.Supp., at 923. This relief cannot support a fee award of

$704,000, see Farrar v. Hobby, 506 U.S. 103, 114-16 (1992), and these

substantial fees were not awarded on that basis. If nominal damages are

the only relief, “the only reasonable fee is usually no fee at all.” /d., at

115. ;

26

In awarding substantial fees on this ground, the courts below

necessarily treated the “judicial instruction” as a judgment, for it is

settled that a mere statement of law in a judicial opinion cannot

support a fee award. See Hewitt v. Helms, 482 U.S. 755, 759-63

(1987). Nor could this fee award be supported by the catalyst

theory now before the Court in Buckhannon Bd. & Care Home, Inc.

v. West Va. Dep't of Health & Human Resources Dep't, No. 99-

1848. In the catalyst cases, the lawsuit “produces voluntary action

by the defendant that affords the plaintiff all or some of the relief he

sought through a judgment.” Hewitt, 482 U.S. at 760 (emphasis

added). The law school, by contrast, has complied only under the

coercive threat of a “judicial instruction” that it has persistently

sought to appeal for five years. If the “judicial instruction” can

support a fee award, it is only because it is for all practical purposes

a judgment.

Even in cases appealed under 28 U.S.C. §1292(a)(1), where an

order granting, denying, or modifying an injunction is essential to

jurisdiction, this Court has recognized that form is not dispositive,

and that orders with all the practical consequences of an injunction

will support appellate jurisdiction. See Carson v. American Brands,

Inc., 450 U.S. 79, 83-84 (1981) (“Although the District Court’s

order declining to enter the proposed consent decree did not in

terms ‘refus[e]’ an ‘injunctio[n],’ it nevertheless had the practical

effect of doing so.”).

In addition, the judgment below fully satisfies the purposes of

the prudential rule that “this Court reviews judgments, not

opinions.” Chevron, U.S.A., Inc. v. Natural Resources Defense

Council. Inc., 467 U.S. 837, 842 (1984).° The rule is one of

substance, not of form. Its purpose is not to insulate judgments

*The rule is not jurisdictional in appeals from federal courts of

appeals; 28 U.S.C. §1254(1) does not require that there even be an

appellate judgment to support jurisdiction in this Court.

27

from review in this Court, but rather to focus review on what the

court below did and not on the reasons it gave. The rule means that

“where the decision below is correct it must be affirmed by the

appellate court though the lower tribunal gave a wrong reason for

its action.” J.E. Riley Inv. Co. v. Comm’r, 311 U.S. 55, 59 (1940).

In Chevron, the question was whether a concededly erroneous

opinion had “resulted in an erroneous judgment on the validity of

the regulations.” 467 U.S., at 842.

Both this Court and the States have a strong interest in full

appellate review of judgments striking down state laws and state

programs. In City of Erie v. Pap’s A.M., 529 U.S. 277 (2000), the

Court reviewed a judgment invalidating a municipal ordinance,

even though the business challenging the ordinance had closed and

its owner had retired to Florida. The Court explained that the city

had an ongoing injury from the unreviewed judgment: “If the

challenged ordinance is found constitutional, then Erie can enforce

it, and the availability of such relief is sufficient to prevent the case

from being moot.” /d., at 288. The business’s attempt to preserve

its judgment by mooting the case triggered the Court’s “interest in

preventing litigants from attempting to manipulate the Court’s

jurisdiction to insulate a favorable decision from review.” Jd. The

Court reiterated these concerns in City News and Novelty, Inc. v.

City of Waukesha, holding moot on similar facts a case in which the

city had prevailed. 121 S.Ct. 743 (2001). The Court explained that

dismissal of the writ of certiorari did not “keep Waukesha under the

weight of an adverse judgment,” or “reward an arguable

manipulation of our jurisdiction,” because it was the losing party

who mooted the case by ceasing the conduct potentially in violation

of municipal code. /d., at 747 & n.1.

The same principles apply in this case. An important state

policy has been terminated, and any implementing program

prohibited. by a “judicial instruction” from the court of appeals. —

28

The law school cannot remain forever bound by a decree that is

binding for all purposes except appellate review.

If the court of appeals’s “judicial instruction” is not reviewable

in this Court, other consequences follow. The award of attorneys’

fees should be summarily reversed on the merits, for if the three

repetitions of the “judicial instruction” are mere statements in

opinions, they cannot support a fee award. See Hewitt, 482 U.S.. at

759-63. More fundamentally, if it was not a binding judgment, the

judicial instruction itself should be vacated, because as it now

stands, it has all the effect of a judgment. In cases where the lack

of a formai injunction defeats appellate jurisdiction, this Court has

vacated and remanded “with instructions to enter a fresh decree

from which the parties may take an appeal,” Perez v. Ledesma, 401

U.S. 82, 88 (1971), or pointedly advised the district court :o “now

take formal action of sufficient precision and clarity to insure to any

aggrieved party the availability of an appeal.” Gunn v. Univ.

Comm. To End War, 399 U.S. 383, 390 n.6 (1970).

If on such a remand, plaintiffs continue to disclaim any desire

for an injunction, then their claim to prospective relief must be

dismissed. Their damages claims have all been adjudicated; they

now have standing only to the extent that they “challenge[] an

ongoing race-conscious program and seek[] forward-looking

relief.” Texas v. Lesage, 528 U.S. 18, 21 (1999). If plaintiffs no

longer seek “forward-looking relief,” their claim to such relief

would be moot. When federal judgments become unreviewable

because of mootness, “the established practice . . . is to reverse or

vacate the judgment below and remand with a direction to dismiss.”

Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997);

see also United States v. Munsingwear, Inc., 340 U.S. 36, 39

(1950).

On the facts of this case, the rationale of Arizonans and

Munsingwear—that petitioners in the Court should not be bound by

a judgment that has become unreviewable through no fault of their

|

29

own—requires that each appearance of the “judicial instruction” in

this case be vacated. See Arizonans, 520 U.S.. at 71-72. Jae

Munsingwear, 340 U.S., at 39-41. The law school is in precisely

that situation until the “judicial instruction” below is either

reviewed or vacated. When the Court denied certiorari in 1996, it

had every reason to expect that either the judgment below had not

attempted to grant prospective relief or that, if it had, the courts

below would promptly embody that prospective relief in a properly

appealable injunction or declaratory judgment. That reasonable

expectation having been disappointed, the only possible remedies

now are either to treat the “judicial instruction” as an appealable

order, or to vacate its appearances in Hopwood I] as well as in

Hopwood III.

30

CONCLUSION

The petition should be granted. In the alternative, the award of

attorneys’ fees should be summarily reversed and the “judicial

instruction” to end consideration of race in admissions should be

vacated and remanded with instructions to dismiss or to enter a

properly appealable judgment. If the petition is granted in Smith v.

University of Washington Law School, No. 00-1341, then this case

should be held.

JOHN CORNYN

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney

General

JEFFREY S. BOYD

Deputy Attorney General for

Litigation

GREGORY S. COLEMAN

SOLICITOR GENERAL

Counsel of Record

MELANIE P. SARWAL

Assistant Solicitor General

P.O. Box 12548

Austin, TX 78711-2548

Telephone: (512) 463-1700

Facsimile: (512) 474-2697

Respectfully submitted,

HARRY M. REASONER

ALLAN VAN FLEET

BETTY R. OWENS

Vinson & Elkins L.L.P.

1001 Fannin Street

Houston, Texas 77001-6760

DOUGLAS LAYCOCK ;

727 E. Dean Keeton Street

Austin, Texas 78705

SAMUEL ISSACHAROFF

435 W. 116th St.

New York, NY 10027

JOHN L. HILL, JR.

Locke Liddell & Sapp L.L.P.

3400 Chase Tower, 600 Travis

Houston, Texas 77002-3095

COUNSEL FOR PETITIONERS