# Petition for Writ of Certiorari — Texas v. Hopwood

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 929

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1105%3A1. Public record. Not legal advice.