Appendix — Texas v. Hopwood
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No. 901609 APR 1 7 2002
OFFICE OF THE CLERK
jn The
Suprente Court of the United States
STATE OF TEXAS, ET AL.,
Petitioners,
Vv.
CHERYL J. HOPWOOD, ET AL.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
APPENDIX TO THE PETITION FOR WRIT OF CERTIORARI
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]
De pe
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
TABLE OF CONTENTS
Opinion of the United States District Court for the Western
District of Texas, August 19,1994 .................. la
Opinion of the United States Court of Appeals for the Fifth
Reet, IE AM ES 5s ches bce kbs Kev cas 73a
Order of the United States Court of Appeals for the Fifth
Ce, WEE Wy OI ooo 5 3k oo ie eee 1Sla
Opinicn of the United States District Court for the Western
District of Texas, March 20, 1998 ................. 163a
Judgment of the United States District Court for the Western
District of Texas, March 20, 1998 ................. 269a
Opinion of the United States Court of Appeals for the Fifth
oUeien, SOIT 0, PO sek cos ee eciccd eens 273a
Order of the United States Court of Appeals for the Fifth
oo EL SPR te See rea 319a
la
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
CHERYL J. HOPWOOD,
DOUGLAS W. CARVELL,
KENNETH R. ELLIOTT,
and DAVID A. ROGERS,
Plaintiffs,
vs.
THE STATE OF TEXAS;
UNIVERSITY OF TEXAS
BOARD OF REGENTS;
BERNARD RAPOPORT,
ELLEN C. TEMPLE,
LOWELL H. LEBERMANN, JR.,
ROBERT J. CRUIKSHANK,
THOMAS O. HICKS, ZAN W.
HOLMES, TOM LOEFFLER,
MARIO E. RAMIREZ, and
MARTHA E. SMILEY,
as members of the Board,
in their official capacities;
UNIVERSITY OF TEXAS AT
AUSTIN; ROBERT M. BERDAHL,
President of the University of
Texas at Austin in his official
capacity; UNIVERSITY OF
TEXAS SCHOOL OF LAW;
MARK G. YUDOF, Dean of the
University of Texas School of Law
in his official capacity;STANLEY
M. JOHANSON, Professor of Law
in his official capacity,
Defendants.
No. A 92 CA 563 SS
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MEMORANDUM OPINION
The plaintiffs, Cheryl J. Hopwood, a white female, and Douglas
W. Carvell, Kenneth R. Elliott, and David A. Rogers, three white
males, have brought suit against the defendants’ alleging violations
of the Fourteenth Amendment, 42 U.S.C.A. § 1981 (West
Supp.1994), 42 U.S.C.A. § 1983 (West 1981), and Title VI of the
Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (West 1981).’ All
of these provisions prohibit discrimination because of race. For the
alleged violations, the plaintiffs seek injunctive and declaratory
relief, as well as compensatory and punitive damages. The
plaintiffs contend the defendants discriminated against them by
‘Defendants Bernard Rapopart, Ellen C. Temple, Lowell H.
Lebermann, Jr., Robert Cruikshank, Thomas O. Hicks, Zan W. Holmes,
Jr., Tom Loeffler, Mario E. Ramirez, and Martha E. Smiley are sued in
. their official capacities as members of the University of Texas Board of
Regents. Defendant University of Texas Board of Regents is the
governmental entity created by Defendant State of Texas to administer
the operation of the University of Texas system, which includes
Defendant University of Texas at Austin as a component institution.
Defendant University of Texas School of Law is an American Bar
Association accredited law school operated by the University of Texas
at Austin. Defendant Robert M. Berdahl is sued in his official capacity
as president of the University of Texas at Austin. Defendant Mark G.
Yudof is currently Provost of the University of Texas at Austin. At all
times pertinent to this lawsuit, Yudof was Dean of the University of
Texas School of Law and is sued in that official capacity. Defendant
Stanley M. Johanson, a Professor of Law, is sued in his official capacity
as Chair of the University of Texas School of Law Admissions
Committee.
*The plaintiffs' Title VI, § 1981, and § 1983 claims serve as vehicles
to enforce underlying rights guaranteed by the Fourteenth Amendment.
Therefore, the law school's admissions program must be evaluated under
the equal-protection clause of the Fourteenth Amendment.
ee ee eee
a rem NS Se
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favoring less qualified black and Mexican American applicants for
admission to the University of Texas School of Law through the use
of a quota system. This cause was tried before the Court, without
a jury, on May 16th through May 20th and May 23rd through May
25th, 1994.
The cause focuses on one of the most divisive issues faced by
society, affirmative action, and highlights the tension that exists
when the individual rights of nonminorities come into conflict with
programs designed to aid minorities. The plaintiffs have contended
that any preferential treatment to a group based on race violates the
Fourteenth Amendment and, therefore, is unconstitutional.
However, such a simplistic application of the Fourteenth
Amendment would ignore the long history of pervasive racial
discrimination in our society that the Fourteenth Amendment was
adopted to remedy and the complexities of achieving the societal
goal of overcoming the past effects of that discrimination. Further,
the Supreme Court, which is continually faced with trying to
reconcile the meaning of words written over a century ago with the
realities of the latter twentieth century, has declined to succumb to
an original intent or strict constructionist argument. Therefore, the
Court will decline the plaintiffs’ invitation to ignore the law
established by the highest court of this land and to declare
affirmative action based on racial preferences as unconstitutional
per se. The issue before the Court is whether the affirmative action
program employed in 1992 by the law school in its admissions
procedure met the legal standard required for such programs to pass
constitutional muster. The Court, having carefully considered the
evidence presented at trial, the arguments of counsel, and the
briefing provided by the parties, finds that it did not.
I. HISTORICAL BACKGROUND
The reasoning behind affirmative action is simple--because
society has a long history of discriminating against minorities, it is
not realistic to assume that the removal of barriers can suddenly
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make minority individuals equal and able to avail themselves of all
opportunities. Therefore, an evaluation of the purpose and
necessity of affirmative action in Texas’ system of higher education
requires an understanding of past discrimination against blacks and
Mexican Americans, the minorities receiving preferences in this
cause, and the types of barriers these minorities have encountered
in the educational system.
A. Discrimination in Primary and Secondary Education
The history of official discrimination in primary and secondary
education in Texas is well documented in history books, case law,
and the record of this trial. The Court, therefore, will address it
only in summary fashion. Even after the Supreme Court's decision
in Brown v. Board of Education, the State of Texas adopted a
policy of official resistance to integration of its public schools.
This policy of resistance resulted in numerous lawsuits and court- |
imposed desegregation plans throughout the past twenty years.
Wright. vol. 19 at 38-44; Romo, vol. 17 at 45-51. Many of the
school «districts found to be operating dual systems of education
were also found to practice official discrimination against black and
Mexican American students. Wright, vol. 19 at 40-43; Romo, vol.
17 at 45-51; Rodriguez, vol. 17 at 8-9.
The problem of segregated schools is not a relic of the past.
Despite the fact that the public school population is approximately
half white and half minority, minority students in Texas attend
primarily majority minority schools while white students attend
primarily white schools. Glenn, vol. 23 at 46- 49. Further, as of
May 1994, desegregation lawsuits remain pending against over
forty Texas school districts. D-457; see also D-370, 373, 419; |
Wright, vol. 19 at 38-40; Romo, vol. 17 at 45-46. |
The lack of educational opportunity for minorities has been
compounded by the lower socioeconomic status of minorities in
Texas. Statistics continue to indicate significant disparities between
minority and nonminority students in skills and academic
reenact iii
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knowledge attained in the public schools. Although the generally
lower socioeconomic status of black and Mexican American
families is partially accountable for some of the disparities, the gap
is exacerbated by historically inferior educational preparation of
minorities. Glenn, vol. 23 at 30-36. Further, at each educational
level, there is a marked decline in the level of attainment by
minorities, as reflected in comparison of drop-out rates between
minorities and nonminorities and the percentages of the respective
groups that graduate from high schooi and college.’
B. Discrimination in Higher Education
As with primary and secondary education, Texas’ system of
higher education has a history of state-sanctioned discrimination.
Discrimination against blacks in the state system of higher
education is well documented in history books, case law, and the
State's legislative history. The State of Texas, by constitution and
statute, previously required the maintenance of "separate
schools . . . for the white and colored children." See Tex. Const. art.
VII, § 7 (1925, repealed 1969). This policy resulted in the
establishment of segregated schools for blacks that were inferior to
the white schools. Further, opportunities available to blacks to
attend college were extremely limited.*
*In 1990, the percentage of persons age 25 or older who completed
high school was 81.5% non-Hispanic white, 66.1% black, and 44.6%
Hispanic. D-411. College graduate rates for the same year reflect 25.2%
non-Hispanic whites, 12% black, and 7.3% Hispanic. D-412.
‘The Texas Legislature created Prairie View State Normal &
Industrial College for Colored Teachers at Prairie View (now Prairie
View A & M University) for the education of "students to be taken from
the colored population of this State." Wright, vol. 19, at 17, 19-21. Until
1947, it remained the only state-supported institution of higher learning
open to black students in Texas; no type of professional training was
avaiiable to blacks. Commentary, Tex. Const. art. VII, § 14 (West 1993).
In 1947, to avoid integration of the University of Texas, the Texas
eS
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In 1946, when Heman Sweatt, a black man, sought admission
to the law school and was refused admission, a Texas court, while
holding that Article VII, Section 7 of the Texas Constitution
precluded his admission, ordered the state to provide a law school
for blacks. See Sweatt v. Painter, 210 S.W.2d 442
(Tex.Civ.App.—Austin 1948). The State hastily created a
makeshift law school that had no permanent staff, ino library staff,
no facilities, and was not accredited. Sweatt v. Painter, 339 U.S.
629, 632, 70 S. Ct. 848, 849-50 (1950). In 1950, a unanimous
United States Supreme Court ruled that the State of Texas’
provisions regarding the legal education of white and minority
students violated the Fourteenth Amendment and ordered that
Sweatt be admitted to the previously all-white University of Texas
School of Law. Sweatt, 339 U.S. at 636, 70 S. Ct. at 851. Sweatt
left the law school in 1951 without graduating after being subjected
to racial slurs from students and professors, cross burnings, and tire
slashings. Wright, vol. 19 at 24-25.
The Sweatt case is the most flagrant incident of state-sanctioned
discrimination occurring against blacks at the University of Texas.
However, the record reflects that during the 1950s, and into the
1960s, the University of Texas continued to implement
discriminatory policies against both black and Mexican American
students. Mexican American students’were segregated in on-
campus housing and assigned to a dormitory known as the
"barracks," as well as excluded from membership in most
university-sponsored organizations. Romo, vol. 17 at 43.
Additionally, until the mid 1960s, the Board of Regents policy
prohibited blacks from living in or visiting white dormitories.
Wright, vol. 19 at 26-28; D-482.
Beginning in the mid 1970s, discrimination in Texas’ system of
higher education came under attack through a court-ordered
Legislature created the Texas State University for Negroes (now Texas
Southern University). Jd. at 21-22; D-382.
Ta
investigation by the Department of Health, Education and Welfare
(HEW) Office for Civil Rights (OCR). The investigation of Texas’
system resulted from a jJawsuit initiated in 1970 to require HEW tc
take action to enforce ihe provisions of Title VI.” The court-ordered
investigation of ten states, which did not include Texas, began in
*See Adams v. Richardson, 356 F. Supp. 92 (D.D.C.), modified and
affd, 480 F.2d 1159 (D.C. Cir. 1973), dismissed sub nom. Women's
Equity Action League v. Cavazos, 906 F.2d 742 (D.C. Cir. 1990).
Title VI proscribes discrimination that violates the equal protection
clause of the Fourteenth Amendment. See Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 286-87, 98 S. Ct. 2733, 2746-2747 (1978). The
prohibitions against discriminatory conduct contained in Titic Y! govern
"program{s] or activit[ies] receiving Federal financial assistance." 42
U.S.C.A. § 2000d. Thus, "Congress was legislating to assure federal
funds would not be used in an improper manner." United Steelworkers
v. Weber, 443 U.S. 193, 206 n.6, 99 S. Ct. 2721, 2729 n.6 (1979). The
University of Texas, as a recipient of Title VI funds, is required to
comply with Title VI.
The Department of Education, as the successor agency to HEW, is
the governmental agency charged with the enforcement of Title VI and
the review of programs funded through the DOE. The DOE has
promulgated regulations to implement the provisions of Title VI,
including regulations providing for affirmative action in certain
circumstances. The regulations state that "[i]n administering a program
regarding which the recipient has previously discriminated against
persons on the ground of race, color, or national origin, the recipient must
take affirmative action to overcome the effects of the prior
discrimination.” 45 C.F.R. § 80.3(b)(6)(i) (1993). The regulations state
further that even if a recipient has never implemented discriminatory
policies, if its services and benefits have not been equally available to
some racial or nationality groups, the recipient may "establish special
recruitment policies to make its program better known and more readily
available to such group, and take other steps to provide that group with
more adequate service.” 45 C.F.R. § 80.5(j).
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1973. In 1977, the court extended the order to an additional six
states, which included Texas. Ashworth, vol. 12 at 8; D-296.
Between 1978 and 1980, the OCR conducted an investigation
of Texas’ public higher education system. The investigation
culminated in a finding that Texas had "failed to eliminate vestiges
ofits former de jure racially dual system of public higher education,
a system which segregated blacks and whites." D- 297.
Additionally, the OCR found that Hispanics were significantly
underrepresented in state institutions and indicated it would
continue its investigation of discrimination against Hispanics. /d.
During the early 1980s, the OCR and Texas officials engaged
in considerable negotiations regarding efforts to bring Texas into
compliance with Title VI. Texas, in an effort to achieve a state-wide
desegregation plan acceptable to the OCR, attempted to address
OCR concerns through submission of the Texas Equal Education
Opportunity Plan for Higher Education (Texas Plan), which
included a commitment to the goal of equal educational opportunity
and student body desegregation for both black and Hispanic
students. D-237. In 1982, Assistant Secretary of Education
Clarence Thomas informed Governor Clements that the Texas Plan
was deficient because the numeric goals of black and Hispanic
enrollment in graduate and professional programs were insufficient
to meet Texas’ commitment to enroll those minority students in
proportion to the representation among graduates of the state's
undergraduate institutions. Ashworth, vol. 12 at 16-17; D-284.
Texas revised its plan and resubmitted it to the OCR; the OCR
found the modified plan to be deficient because it did not set targets
for increasing minority enrollment for each institution, instead of on
a statewide basis, and it did not project achievement dates for the
targeted goals. Ashworth, vol. 12 at 19-20; D-219.
In 1983, the District Court for the District of Columbia entered
an order in the ongoing Title Vl-enforcement suit, in which the
court found that "Texas has still not committed itself to the
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elements of a desegregation plan which in defendants’ judgment
complies with Title VI." D-446. The court ordered the DOE to
begin enforcement proceedings against Texas unless Texas
submitted a plan in full conformity with Title VI within forty-five
days. Ashworth, vol. 12 at 22-23; D-446. In response to the order,
the OCR submitted thirty-seven suggested measures for increasing
black and Hispanic student enrollment in professional and graduate
programs at traditionally white institutions. Among the suggestions
were that each graduate and professional school should re-evaluate
its admissions criteria and that "admissions officers will consider
each candidate's entire record and will admit black and Hispanic
students who demonstrate potential for success but who do not
necessarily meet all the traditional admission requirements." D-
220.
In June 1983, the Texas Plan, as amended to account for the
deficiencies identified by the OCR, was accepted by OCR as being
in compliance with Title VI.° However, acceptance was contingent
on adequate funding and completion of key activities within a
specified time. D-314. Further, the Texas Plan was subject to
monitoring for compliance until 1988. Ashworth, vol. 12 at 23, 25-
26. |
In November 1987, OCR contacted the state regarding the
expiration of the plan in 1988 and indicated OCR would perform a
°D-314. The revised plan raised the goal previously set for increased
minority enrollment in graduate and professional schools. The individual
goal for UT-Austin had been ten additional black students and two
additional Hispanic students. Ashworth, vol. 12 at 26-27; vol. 13 at 56-
58. The revised plan included a commitment to "seek to achieve
proportions of black and Hispanic Texas graduates from undergraduate
institutions in the State who enter graduate study or professional schools
in the State at least equal to the proportion of white Texas graduates from
undergraduate institutions in the State who enter such programs." D-
238a at 5.
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final evaluation to determine if further action would be necessary
to bring Texas into compliance with Title VI. OCR further
instructed state officials that, pending the evaluation, Texas should
continue to operate under the plan. Ashworth, vol. 12 at 32-34; D-
Sadi
Because Texas Higher Education Coordinating Board officials
determined Texas had not met the goals and objectives of the plan,
the board voluntarily developed a successor plan (Plan II) to avoid
a mandate from the federal government to negotiate another plan.
Ashworth, vol. 12 at 34-35; vol. 13 at 45-46. Plan II did not
contain any specific numeric enrollment goals but retained Texas’
commitment to increasing black and Hispanic student enrollment.
D-326 at 9.
To date, OCR has not completed its evaluation to determine if
Texas is in compliance with Title VI.’ However, in January 1994,
the DOE notified Governor Richards that OCR was continuing to
oversee Texas’ efforts to eliminate all vestiges of de jure
segregation and that it would be reviewing the Texas system in light
of United States v. Fordice, 505 U.S. 717, 112 S. Ct. 2727, 120 L.
Ed. 2d 575 (1992). Ashworth, vol. 12 at 35-38; D-293.
Against this historical backdrop, the law school's commitment
to affirmative action in the admissions process evolved.
Il. THE ADMISSIONS PROCESS
A. Evolution of the Admissions Process and Affirmative Action
The law school's admissions procedure was not always a
complicated process. In the early 1960s, all applicants who had
taken the LSAT and had at least a 2.0 or 2.2 grade point average on
"Ashworth, vol. 12 at 32-24. The government, as usual, proceeds
with "all deliberate speed."
lla
a 4.0 scale were accepted.* In about 1965, the number of applicants
began to significantly exceed the law school's capacity, and, as a
result, the law school established additional criteria to aid in the
selection process. Smith depo. at 7-8.
Under the more selective system, a baseline was established
each year ba.ed on the Texas Index (TI).? The law school
automatically admitted applicants whose TI exceeded the baseline,
and the admissions committee reviewed applicants whose TI was
below the baseline. This procedure was used until the late 1960s
when an inundation of applications meeting the baseline criterion
created a class of more students than could be adequately
accommodated and precluded review of those who did not qualify
for automatic admission. That particular year, the first-year class
of law students consisted of almost 700 students. Johanson, vol. 3
at 14.
As aresult, the law school modified the admissions process and
changed the automatic admission baseline to a presumptive
admission score. Additionally, the admissions committee began to
use a presumptive denial baseline, and applicants whose TI fell
below that. baseline were presumptively denied admission. Also
‘Johanson, vol. 3 at 12. Ernest Smith, who was a member of the
admissions committee from 1965 through 1970 and dean of the law
school from 1974 to 1979, testified by deposition that his recall of the
required grade point average at that time was 3.0. Smith depo. at 7.
Although neither Smith nor Johanson had exact recall of the number,
their testimony is consistent in that the qualifications for admission at the
time were minimal.
*The Texas Index is a composite number calculated by the Law
School Data Assembly Service (LSDAS) that reflects an applicant's
grade point average and LSAT score. The weight attributed to each
component of the TI is determined by a prediction formula derived from
the success of first year students in preceding years. Johanson, vol. 3 at
7-10.
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during the late 1960s, the law school began implementing
affirmative action by attempting to recruit minority individuals who
had performed well in the CLEO program.'® The only race or
ethnic-based scholarships available during this time, however, were
limited to "whites only." Smith depo. at 12.
A perception began to develop that the CLEO program had
shifted its focus from students who were just below the level where
law schools would seriously consider them for admission to
students who were significantly below that level. Smith depo. at
14-16. Therefore, those responsible for admissions at the law
school felt that the CLEO program could not successfully prepare
the participants in one summer to be competitive students in a
regular law school class. /d. at 16. Additionally, minorities
represented only a small percentage of the entire pool of applicants
to the law school, and law schools around the country competed for
the top minority applicants. /d. at 18. In 1971, after the law school
terminated its participation in the CLEO program, the law school
admitted no black students. Wright, vol. 19 at 32.
In the early 1970s, because of the university's concern over the
few minority students enrolled in the law school, a separate
admissions committee, informally called the "Treece committee,""'
was formed to consider applications from minority students and
The CLEO (Council on Legal Education Opportunity) program
provided summer training at participating law schools for minority
graduates of various universities. At the end of the training period, the
CLEO participants were given exams. Based on their performance on
those exams, some of the participants were admitted to the law school.
Smith depo. at 9-10.
"The committee was named after the chair of the committee,
Professor James Treece.
13a
disadvantaged nonminority students.'? The purpose of the
committee was to ensure that the applicants the committee reviewed
received "fuller consideration" than they would have in the regular
admissions process. Smith depo. at 16. The applicants were
evaluated separately from the applicants before the regular
admissions committee, and the sole criterion for applicants before.
the Treece Committee was whether the applicant had a reasonable
prospect of passing the first year.'? The Treece committee had no
set goals for the number of admissions to be made through the
committee, and the number of applicants it admitted had little
impact on the regular admissions." In 1977, the Treece committee
considered 500 applicants, including approximately 100
nonminority applicants. Of these applicants, the Treece committee
admitted sixty-eight minority students and three nonminority
students. "Thus, while the special subcommittee did consider and
grant admission to some white applicants, the predominant
objective of the special subcommittee was to increase minority
enrollment at the Law School." P-1 (Smith memo to Rogers, Oct.
"In the summer of 1974, just before Ernest Smith became dean of the
law schoot, the then president of the university, Steve Spurr, expressed
concern about the low minority population in the law school. Spurr
indicated that a public university had an obligation to train a reasonably
representative cross-section of the population in the law and that the TI,
as the focus of the admissions procedure, did not adequately account for
an applicant's ability to overcome past economic, cultural, and
discriminatory practices. Smith depo. at 17.
"Johanson, vol. 3 at 15. Professor Johanson did not recall if any of
the members of the Treece committee were also members of the regular
admissions committee.
‘During this time, the law school entering class was comprised of
500 students, and no more than 10% of the students could be
nonresidents. Johanson, vol. 3 at 17.
14a
18, 1978, at 1).
The applications before the regular admissions committee were
subjected to a different process. Because of the volume of
applications, the admissions committee could not give individual
consideration to each application. Therefore, the law school
implemented a three-category system to narrow the pool of
applications requiring committee consideration. The first category
of applicants, those with TIs above a certain number, were granted
"administrative admission"; that is, administrative personnel
automatically sent offers of admission to these applicants based on
the applicants’ TIs. A "presumptive denial" category was at the
other end of the scale, in which administrative personnel screened
the applications based on specified criteria. If the administrative
person determined the file warranted further consideration, the file
was sent to the regular admissions committee. The admissions
committee reviewed the individual applications in the middle
category or "discretionary zone," which included those referred to
the committee from the presumptive denial category.
The law school used this admissions procedure until 1978
when, as a result of the Supreme Court's decision in Bakke, the law
school reassessed its minority admissions procedure. The law
school determined that, although its procedure differed from that at
issue in Bakke, the use of the separate committees to evaluate
applicants was defective.’ Therefore, then Dean Smith directed
the admissions committee to operate as one unit rather than as two
subcommittees and instructed the committee to establish the
administrative admission and presumptive denial lines at levels that
would increase the number of applicants given individual
consideration. P-1.
'’The law school's procedure differed from the Bakke procedure in
that no fixed number of seats were set aside for minorities and some
nonminorities were evaluated by the Treece committee. P-1 (Smith
memo at 3).
15a
After 1978, Johanson set the lines to allow for a reasonable
number of minority candidates to be included with nonminorities
in the discretionary zone. Johanson, vol. 3 at 21. The discretionary
zone was then divided into five or six "bands."'® The law schoo!
offered admission to a set percentage of applicants from each band.
The percentage decreased from the first or top band to the last, a
reflection of the diminishing credentials of the bands. The minority
applicants were primarily clustered in the lower bands with few in
the upper bands. Wellborn, vol. 24 at 45.
Within each band, minority and nonminority files were blended
into groups of thirty. Each pile was reviewed by three committee
members, each of whom was allocated a certain fixed number of
votes determined by the yield desired from a particular band.
Therefore, each member of the committee ultimately had total
discretion to decide whether and what extent to implement
affirmative action for each pile of files that person reviewed.
Wellborn, vol. 24 at 9. Professor Wellborn testified he and other
faculty members perceived two problems with this system: 1)
potential unfairness to nonminority candidates who could be
affected by affirmative action solely as a result of the pile in which
they were included and 2) the application of personal affirmative
action efforts, requiring no justification to the committee as a
whole, rather than a system based on a set policy. As a result, in
1980, the law school abandoned the banding admissions procedure
and formed the minority subcommittee.
The minority subcommittee was a part of the full committee
that reviewed and voted on nonminority files. All minority files
below the presumptive admission line were studied by the minority
‘Professor Johanson testified the system used five bands, while
Professor Wellborn testified there were six bands.
a
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subcommittee.'’ The subcommittee would then bring its
recommendations to the full committee. At some point during the
middle of the admissions process, the subcommittee would present
a report to the full committee that summarized the features of the
minority files being recommended for admission. The actual files
were also available at the meeting so the full committee could make
its own determinations about the recommended minority applicants
in comparison to the nonminority applications pending at the time.
At this point in the process, the members of the full committee were
involved in reading piles of nonminority files and were cognizant
of the qualifications of the nonminorities. Although this method
often resulted in heated discussion and disagreement among
committee members over whether to admit a particular candidate,
the process also provided open discussion rather than the silent
voting, which could have reflected personal agendas, that occurred
with the banding procedure. Wellborn, vol. 24 at 15.
In the early 1980s, during these meetings, the committee
members spent considerable time debating whether individual
minority candidates met minimum admissions standards and, thus,
could do passing work in law school. As a result, the full
committee often examined specific minority files. The ultimate
Evidently, sometime between 1978 and 1991, the automatic or
administrative admission line was changed to a presumptive admission
line. The testimony is unclear as to when this o«.curred and, apparently,
even after the change was made, those involved with the admissions
procedure continued to make reference to automatic admission:
Johanson, vol. 3 at 26, 66; see also id. at 29 ("I think we used the term
‘automatic admit’ for a long period of time, when it became part of the
colloquium but did not describe the process."). Dean Sutton, who
succeeded Dean Smith and was dean from 1979 to 1984, established the
rule that approximately 55% of the resident class should fall within
the presumptive admission category. Johanson, vol. 3 at 24-25.
Approximately 75% of nonresident applicants are admitted from the
presumptive admission category for nonresidents. /d.
a
17a
effect was that the entire committee voted on each minority
applicant that the subcommittee brought before the full committee.
Goode, vol. 9 at 6. However, as the pool of minority candidates
improved, the focus of the meetings shifted to choosing among
minority candidates that the committee knew, based on their TIs,
could succeed in law school. Wellborn, vol. 24 at 33. Therefore,
less full committee review of each individual file became
necessary."
Ultimately, the admissions committee determined that the
process was inefficient and not the most effective way of processing
minority applicants. Johanson, vol. 5 at 27. In April 1991, "[a]fter
considerable debate, the [admissions] committee, over some strong
opposition, directed the chair [Johanson] to form a subcommittee
(including Deans Aleman and Hamilton and the two minority
students) which was to review the minority files and recommend
sufficient candidates for admission to achieve a class that was 5%
Black and 10% MA.""® Therefore, by 1992, the full admissions
committee no longer selected individual applicants for admission.
Wellborn, vol. 24 at 53. Instead, the minority subcommittee
compiled a list and presented it to the full committee, which made
'’Because the law school was receiving better qualified minority
applicants, the focus of the process changed from whether to accept a
particular minority applicant to a more selective process between the
individual minority applicants. Wellborn, vol. 24 at 33. Had the
admissions committee continued to apply its previous standards, the
number of minorities in the entering class would have continued to grow.
However, the committee elected instead to "take advantage of this
opportunity to have more excellent minority students than we had before,
who would be more competitive with the non-minority students, but
perhaps in more limited numbers that would still constitute reasonable
representation." Jd. at 35.
'°P.25. The percentage goals are based on the percentages of
minority college graduates. See supra note 6.
18a
a judgment of how many offers to give to minority applicants. The
minority subcommittee was then delegated the task of deciding
which individual minority applicants were to receive offers of
admission. Thus, by 1992, the admissions process, although
involving some interaction and exchange of information between
the full committee and minority subcommittee, was markedly
similar to the pre-Bakke procedure of two separate committees.
This 1992 procedure is the crux of this lawsuit.
B. 1992 Admissions Process
In 1992, the admissions committee was comprised of nine
professors, two assistant deans, and four students. Johanson, vol.
6 at 26. The minority subcommittee was comprised of Johanson,
Aleman, and Hamilton, all of whom were also members of the full
committee.”” Aleman, however, did not participate in reviewing
nonminority applications. Johanson, vol. 6 at 25-26.
In 1992 when an application arrived, administrative personnel
placed it in an individual folder, to which additional materials, such
as letters of recommendation, were added as they arrived at the law
school. Each folder was color-coded based on two criteria:
residency and race or ethnicity. The residency classification
indicated whether the applicant was a resident or nonresident of
Texas. The race or ethnicity classification was based on which of
several boxes the applicant checked on the application:
Black/African American, Native American, Asian American,
Mexican American, Other Hispanic, White, or Other. Hamilton,
vol. 2 at 19-20.
The application deadline was February 1. However, because the
law school wished to get early offers sent to top applicants in late
°Professor Johanson, who is white, has been on the admissions
committee since 1964 and chair of the committee since 1973. Dean
Aleman is an assistant dean and is Mexican American. Dean Hamilton
was an assistant dean from 1990 through 1993 and is black.
19a
January if possible, Johanson drew initial presumptive admission
lines as soon as he had an initial computer printout showing the
numbers and qualifications of the applicants. Johanson, vol. 3 at
26-27. At this point, about half of the applications were complete;
therefore, Johanson drew the initial lines relatively high to avoid
too many early offers of admission before the quality of the entire
pool of applicants was defined.’ The goal of the initial
presumptive admission lines Johanson drew was to ensure that the
top candidates in each category received offers of admission from
the law school as soon as possible.”
Once Johanson determined which files were in the presumptive
admission category, he conducted a preliminary review of the
2! At some point in the process, the presumptive admission line for
nonminority resident admissions was adjusted downward to ensure that
approximately 55% of the resident admissions would be presumptively
admitted. The 55/45 split did not apply to nonresident applicants,
approximately 75% of whom were admitted presumptively on the basis
of their TI. See supra note 17.
22 Johanson, vol. 3 at 26. In 1992, the law school received
approximately 2100 resident applications and 2300 nonresident
applications. Johanson, vol. 3 at 35. The pool of nonresident applicants
was very strong, many with credentials well above those of the
presumptively admitted residents. Jd. at 36. Accordingly, the
presumptive admission and denial scores were set at a higher level for
nonresident applicants. However, as with resident applicants, lower
scores were set for Mexican American and black nonresident applicants
than for nonminority nonresident applicants.
Johanson testified the enrollment yield for nonresidents is
approximately 26%, meaning that the law school has to offer
approximately four nonresidents admission to enroll one. /d. at 37. The
enrollment yield for residents is 66 to 68%, that is, for every 100 offers
of admission, 66 to 68 resident applicants accept.
20a
files.*’ By the end of the admissions process, Johanson reviewed
300 to 350 resident files and 200 to 250 nonresident files in this
category. Johanson, vol. 3 at 32-35. In his review of these files,
Johanson checked to see if the applicant's TI was inflated by high
grades in a noncompetitive major or at a weak school or if there
was some other questionable feature of the applicant's file.
Johanson generally held those files for further review in the
discretionary zone. Johanson dropped approximately ten percent of
the presumptive admission applicants into the discretionary
category. Those applicants with a high TI reflecting a high LSAT
and high grades in a rigorous major at a leading undergraduate
institution were admitted by Johanson, who had unilateral authority
to admit any applicant in this category without further consultation
with the full admissions committee. D-362.
At the other end of the spectrum, Johanson set another line, and
applicants whose TIs fell below that line were presumptively denied
admission. One or two members of the admissions committee
reviewed each application in this category to determine if the TI
adequately reflected the applicant's likelihood of success in law
school or competitive standing relative to the entire applicant pool.
Johanson, vol. 3 at 31-32; P-41; D-362. Generally, as a result of
this review, twenty to forty files were upgraded from the
presumptive denial zone to the discretionary zone, although
Johanson did not recall the specific number of files moved to the
discretionary zone in 1992. Johanson, vol. 5 at 24-25.
The middle category was comprised of those applicants whose
TIs fell between the presumptive denial line and the presumptive
admission line, those applicants who Johanson had moved down
from the presumptive admission category, and those applicants who
reviewers had moved up from the presumptive denial category. In
the middle discretionary category, reviewers focused less attention
Johanson reviewed minority and nonminority files together as a
group during the preliminary review process. Johanson, vol. 6 at 55.
2la
on the applicant's numbers, as all were relatively ciose, and instead
carefully evaluated the applicant's qualifications as reflected by the
entire file. Goode, vol. 9 at 4; D-362.
The standards the law school applied to assess applicants in this
system differed based on race and national origin in two ways.
First, Johanson's determination of the presumptive admission and
denial TIls varied between nonminorities and minorities.“ By
March 1992, Johanson had lowered the presumptive admission
score for resident nonminorities from a threshold setting of 202/90
to 199/87.7° Similarly, Johanson lowered the presumptive
admission score for Mexican American applicants from 196/84 to
189/78 and the presumptive admission score for black applicants
from 192/80 to 129/78. P-49. ‘The presumptive denial score for
nonminorities was 192/80, and the presumptive denial score for
blacks and Mexican Americans was 179/69. Thus, the presumptive
denial score for nonminorities was higher than the presumptive
admission score for minorities.
Additionally, the law school admissions committee had
different procedures for the review of nonminority and minority
files in the discretionary zone. Nonminority files were divided into
stacks of thirty, which were reviewed by three members of the
*4Johanson's setting of these scores was a process that evolved over
the course of the admissions process based on the pool of applicants, the
number of offers, a4 the number of acceptances. Initially, the numbers
were set high and lowered as the yield from offers and composition of the
entering class began to develop. Johanson, vol. 5, at 10-11; P-38—P-44.
?5P.38. In 1992, the law school was faced with two different types
of Tls, one based on a two digit LSAT score and one based on a three
digit LSAT score. This was a result of the change in the scaling of the
LSAT from a 10-to-48 scale to a 120-to-180 scale. Johanson therefore
had to set presumptive lines coordinated to two separate TI formulas to
accommodate the two types of Tls received for applicants. Johanson,
vol. 3 at 26-27.
22a
admissions committee.°° Each person on the three- person
subcommittee voted, on an individual basis with no verbal or
written explanation, to offer admission to a set number of applicants
from within the stack of thirty files.°’ After the three members
completed their independent screening of the files, Johanson
compiled a master tally sheet reflecting the number of votes
received by each applicant in the group of thirty-five. See, e.g., P-
73. Subject to Johanson's review, those applicants that received
two or three votes were offered admission.” In 1992, the law
school made an average of nine offers of admission per stack. P-58.
Those who received no votes were automatically denied admission
at that time.”” The law school sent a letter offering applicants who
**In 1992, the admissions committee reviewed 18 stacks in the
nonminority discretionary zone—17 stacks of 30 files and one stack of
16 files. P-58, P-59. This process began in early March and was
virtually complete by mid to late April. Johanson (by depo.), vol. 25 at
‘2
7In 1992, Johanson allotted each person on the subcommittees nine
votes per stack. D-332 at A-29. Committee members were required to
screen five stacks. P-55. Therefore, although each member of the
admissions committee reviewed more than one stack of files, no
individual reviewed all the files in the discretionary zone.
*8Johanson testified that he had "rarely, if ever" vetoed a committee
recommendation based on two or three votes, except in instances where
an administrative problem might make an individual ineligible for law
school.
>*Johanson, in rebuttal testimony provided by deposition, testified,
"[T]hose candidates who receive zero votes to admit, they're done. /
don't even look at their files. Three people have said in comparison to
our applicant pool they are not worthy of being admitted. They will—the
next day they will get their denial .. . ." Johanson (by depo.), vol. 25 at
10 (emphasis added). This testimony contradicts the statement in the law
school's "Statement of Policy on Affirmative Action," which states that
23a
received one vote a place on the waiting list.
The minority subcommittee reviewed the minority files. In
theory, each member of the subcommittee was to be part of the
three-person subcommittees that reviewed the nonminority files.
The testimony reflected, however, that in 1992 Aleman was not on
any of the nonminority screening subcommittees. Compare D-362
with Johanson, vol. 6 at 26. According to the testimony, instead of
each member of the minority subcommittee performing an
individual review of the minority files, as was the procedure for
review of nonminority files, the minority subcommittee met as a
group and reviewed each minorj}fy—applicant's file.” The
subcommittee did not review a set number of files at each meeting
but, instead, made as many decisions as the members felt
comfortable with until their "decision-making powers started to
wane." Johanson, vol. 5 at 30. Resident presumptive denial
minority files were screened exclusively by Johanson and
Hamilton. /d. at 25.
The members of the minority subcommittee attended the
meeting of the full committee and provided the full committee with
a summary of the files the subcommittee believed to be good
applicants for admission. Wellborn, vol. 24 at 18. Although the
evidence reflected that the subcommittee shared general
information about the minority pool of applicants with the full
committee, the minority subcommittee's admission decisions on
all final decisions on each applicant file are made by Johanson. See D-
362 at 4. |
Both Johanson and Hamilton attended all the meetings; Aleman's
attendance was not regular. Frequently, student members of the
subcommittee attended the meetings, although they were not voting
members of the subcommittee. Johanson, vol. 5 at 28-29.
24a
individual applicants were virtually final.”'
C. Admission Goals and Guidelines
The law school is the State's premier law school and is top-rated
nationally. The cost of a legal education at the law school, a state-
supported institution, is inexpensive in comparison to other schools
of its caliber and, therefore, a bargain for the quality of education
the law school's students receive. As a consequence, over 4000
applicants to law school each year compete for approximately 500
available seats.”
In selecting the entering class, the law school admissions
committee has two specified requirements it must achieve. First,
state law mandates the percentage of nonresidents that may be
included in the entering class. In 1992, the law school was
prohibited from having more than fifteen percent nonresidents in
the entering class.** The other fixed figure to which the admissions
committee must adhere has been set by the Board of Regents. This
mandate requires the entering class to be composed of at least 500
*' Johanson testified that, although a "particularly naughty problem"
might be brought before the entire committee, almost all final decisions
were made by the subcommittee. Johanson, vol. 5 at 29; see also
Johanson, vol. 6 at 47.
* The law school received 4,494 applications for the fall 1992
incoming class. It offered admission to 936 applicants to fill a class of
slightly over 500 students. D-447 (Aff. of Rita Bohr at A-4). The overall
median GPA for entering students was 3.52, and the overall median
LSAT was 162 (89th percentile). D-433. The median figures for
nonminorities were a GPA of 3.56 and an LSAT of 164 (93rd percentile);
for blacks, a GPA of 3.30 and an LSAT of 158 (78th percentile); and for
Mexican Americans, a GPA of 3.24 and an LSAT of 157 (75%). /d.
8 Johanson, vol. 4 at 9, 31. The percentage of nonresidents that may
comprise an entering class has recently been increased to 20%. Johanson,
vol. 4 at 46.
students.
In addition to these established figures, the law school attempts
to meet the targets established by the Office of Civil Rights through
the Texas Plan of ten percent Mexican American students and five
percent black students in an entering class. Johanson, vol. 4 at 10.
These numbers reflect an effort to achieve an entering class with
levels of minority enrollment generally consistent with the
percentages of black and Mexican American college graduates.
The OCR figures, however, are aspirations only, subject to the
quality of the pool of applicants. Johanson, vol. 4 at 9; Goode, vol.
9 at 12-13.
Personal interviews are not part of the law school's admission
process. Therefore, the law schoo! must make its decision based
on the information provided in the applicant's file, which, in
addition to the application form and LSDAS material, may include
a personal statement or letters of recommendation. The law school
used the TI as an administrative tool to order candidates for review
in the admissions process. However, the law school did not rely
solely on the TI as the basis for admissions decisions but instead
used it to create presumptions that could be overcome upon
individual review of the files.“ The importance of individual
review stems from the fact that the applicants selected for
admission come from a relatively narrow band within the full range
“Nevertheless, Hamilton, as assistant dean of admissions responsible
for recruiting the law school class, actively recruited minority students
through "one-on-one" discussions and scholarship enticements.
Hamilton, vol. 2 at 4-5, 9, 12-13.
“The practice of using the GPA/LSAT index as a sorting mechanism
is used by many nationally prominent law schools. Brest, vol. 22 at 13-
14; Stein, Vol. 18 at 15; Bollinger, vol. 16 at 11-14; Wegner depo. at 9-
10. However, none rely on the index as the sole basis for admission
decisions. /d.; see also D-448.
26a
of scores, and a difference of few points does not necessarily
correlate with more successful work in law school. Johanson, vol.
3 at 11; Stein, vol. 18 at 15. Further, the TI does not adequately ©
reflect the qualifications and characteristics a law school should
consider in developing a diverse student body, which provides
substantial educational benefit for all members of a law school
class. Brest, vol. 22 at 14.
11]. THE PLAINTIFFS
In 1992, Hopwood, Elliott, Carvell, and Rogers applied for
admission to the law school. Hopwood is a white female; Elliott,
Carvell, and Rogers are white males. None of the plaintiffs are
Mexican American and all are residents of Texas.”
A. Cheryl Hopwood
Cheryl Hopwood had a TI of 199, which placed her in the
resident presumptive admit range. Hopwood's TI reflects a 3.8
grade point average and an LSAT score of 39.°’ Hopwood's
application indicates she received an associate's degree in
accounting from Montgomery County Community College in May
“The defendants contend that Hopwood should have been evaluated
as a nonresident and, accordingly, would not have been in the
presumptive admit range for nonresidents. However, Johanson testified
that Hopwood did not misrepresent her status to the law school. She
stated in her application she was married to a person in the military who
was stationed in Texas at the time of her application. The law school
treated her application as that of a resident throughout the process.
Johanson, vol. 5 at 14. Further, Hopwood's residency classification was
consistent with the law school's policies in effect at the time. /d.;
Johanson, vol. 4 at 44-45; Hopwood, vol. 8 at 12-13.
*’Hopwood's LSAT score placed her in the 83rd percentile, well
below the median LSAT for nonminorities in the 1992 entering class. P-
145; D-433. Her two-digit Tl was an 87, which correlates to 199 in the
three-digit scoring system.
27a
1984 and a bachelor's degree in accounting from California State
University in Sacramento in 1988. The application further indicates
she is a certified public accountant in California, she worked twenty
to thirty hours a week while obtaining her undergraduate degree,
and she was active in Big Brothers and Big Sisters in California. P-
145. Hopwood submitted an additional letter to the law school
dated January 22, 1992, requesting permission to attend law school
on a limited basis the first year, if accepted, because of the needs of
her child, who had been born with cerebral palsy.** Hopwood's
application file contains no letters of recommendation.”
Additionally, her responses to the questions are brief and do not
elaborate on her background and skill. She provided no personal
statement with the application.”°
After his initial review of Hopwood's file, Johanson dropped her
*®Hopwood testified that although her child was initially diagnosed
with cerebral palsy, she has been found to have an extremely rare muscle
disease and is severely handicapped. Hopwood, vol. 8 at 8-9. This
information is not included in her admission file.
Hopwood testified that although she had been prepared to submit
letters of recommendation, a person in the admissions office informed
her that, because of the large number of applications, the school did not
have time to look at recommendations. Hopwood, vol. 8 at 6.
“Hopwood testified that while in high school, she applied for college
at Temple, Princeton, and Penn State and was offered admission at each
school. However, because she had to pay for her own education and had
to work her way through school, she could not afford to go to these
schools. Hopwood, vol. 8 at 4. However, this information is not
included in Hopwood's application despite the following statement on the
application: "Please make any other comments about your college
transcripts or your preparation for college (such as disadvantaged
educational or economic background) that you believe will help the
Admissions Committee in evaluating your application."
28a
from the presumptive admission zone to the discretionary zone
because, in his evaluation, she had not attended schools that were
academically competitive with those of the majority of the
applicants, had a large number of hours at junior colleges, and was
able to maintain a high GPA although working a substantial number
of hours.*' Her file was subsequently reviewed by a three-member
subcommittee of the admissions committee, which was comprised
of Associate Dean Michael Sharlot, Dean Hamilton, and a law
student. P-217 (Answer to int. 3). Because Hopwood received only
one vote as result of the subcommittee review, the law school sent
her a letter, dated April 8, 1992, offering her a place on the waiting
list.”
The letter, which stated "[w]e regret that we cannot grant you
admission to the 1992 entering class of the Law School at this
time,” instructed Hopwood to return the attached form to the law
school within three weeks if she wished to be placed on the waiting
list. P-145. The letter further instructed Hopwood not to put her
name on the list if she would not be able to accept an offer of
admission as late as August. Hopwood testified she subsequently
called the law school admissions office and was told offers could be
made from the waiting list through the first week of school.
Hopwood, vol. 8 at 11-12. Hopwood did not put her name on the
*'Johanson, vol. 5 at 14-17. Johanson believed that Hopwood's
ability to work a significant number of hours while maintaining a high
GPA was indicative of earning her GPA while on "a fairly slow track" at
a non- competitive institution. /d. at 15-16. In contrast, Associate Dean
Sharlot found that Hopwood's achievement of a high GPA while working
was a "definite plus." D-334. This "plus," however, was insufficient to
overcome Hopwood's below-median performance on the LSAT and
attendance at a series of "very weak schools." /d.
“Hopwood received one vote from Hamilton, who was also a
member of the minority subcommittee. P-217 (Answer to int. 4); D-333
at A-37.
29a
list because personnel in the law school's admissions office could
provide no information regarding the likelihood of admittance from
the list and Hopwood did not believe she would be in a position to
make last minute arrangements for her special childcare needs if she
were admitted either just before or in the first week of classes.
Hopwood, vol. 8 at 12.
The Court finds that, under Hopwood's circumstances, she was
effectively denied admission when she received the April 8 letter.
Her failure to accept a position on the waiting list or to seek a
deferral of admission until the following year, which information
the Court notes is not included in the law school’s April 8 letter to
Hopwood, does not negate this fact.”
B. Kenneth Elliott
Kenneth Elliott applied with a TI of 197, representing a GPA of
2.98 and an LSAT score of 167. Elliott's application indicates he
received a B.B.A. in accounting from the University of Texas in
1984, is a certified public accountant, and has worked as an auditor
or examiner for state agencies since receiving his undergraduate
degree. P-153. In addition to his personal statement, Elliott's file
contains two letters of recommendation from employment
supervisors.
In the discretionary zone of nonminority applicants, Elliott's file
“The Court notes that during 1992, individuals were offered
admission from the waiting list. Of the 332 applicants offered a position
on the waiting list in 1992, 75 were admitted. D-447 (Aff. of Rita Bohr
at A-5). Hamilton testified that as late as the first week of classes, seven
persons were admitted from the waiting list. Hamilton, vol. 2 at 65-67.
However, the Court also notes from the affidavits of Johanson and
Hamilton that Hopwood had little likelihood of acceptance from a
waiting list. In fact, Hamilton specifically stated, "It is my belief that
Ms. Hopwood [would] not have been admitted off the waiting list at a
later time." D-333 at A-39.
30a
was reviewed by a subcommittee of three that included Johanson.
D-332 at A-33. Elliott received no votes, and the law school sent
him a denial letter dated April 11, 1992. P-153. In July 1992,
Elliott's father wrote a letter to Dean Mark Yudof in which he
requested that Elliott's application for admission be reconsidered.
P-165. Elliott's father further stated that Elliott did not know he
was writing the letter and that Elliott's "friends and family all feel
that he was not accepted to U.T. because of limited openings at
U.T. due to mandatory minority and women quotas which use a
large percentage of the openings." The dean referred the letter to
Hamilton, who informed Elliott's father that although she was not
at liberty to discuss Elliott's application, she would pursue the
matter with Elliott if Elliott felt he had been treated unfairly.
Hamilton, vol. 2 at 67. Hamilton testified she telephoned Elliott,
told him she had received a letter on his behalf, and invited him to
come to her office to visit. /d. at 67-68. Hamilton testified Elliott
canceled the first appointment and she scheduled a second
appointment, which she canceled. Hamilton testified she
subsequently called him back and told him she was placing him on
the waiting list.** Elliott, however, testified he had no further
conversations with anyone at the law school after the failed
meetings and did not know he had been placed on the waiting list.
Elliott, vol. 7 at 21.
Hamilton testified that on August 24, she decided to grant
Elliott an offer of admission, left a message on his answering
“P-165. The only copy of the letter in the record is an unsigned draft
provided by the plaintiffs. Hamilton testified that the letter actually
received by the law school had been administratively misplaced since the
summer of 1992. Hamilton, vol. 2 at 68-69.
**Jd. Johanson testified it was "quite unusual” for someone to be
reconsidered and placed on the waiting list without Johanson's awareness
of the decision. Johanson, vol. 5 at 19-21. He testified he knew nothing
about Elliott being placed on the waiting list. /d.
ne ae ail
3la
machine, and instructed admissions personnel to continue to try to
reach him. Hamilton, vol. 2 at 58-59. Hamilton stated that
approximately a week later, after classes had begun, Elliott returned
her call but indicated it was impossible for him to attend school at
that time. Jd. at 59-60. However, in Hamilton's affidavit, submitted
to this Court as part of the pretrial motions, Hamilton stated that
Elliott never responded to her phone calls. D-447 (Supp.Decl. of
Hamilton at 3). Further, Elliott's file contains no letters either
notifying him of his placement on the waiting list or his admission
to school, despite the existence of such documentation for others
offered admission from the waiting list late in the process.
The Court finds that Elliott had to have realized, at minimum,
his application was under reconsideration when an assistant dean
initially contacted him. However, being offered a position on the
waiting list, as the Court has already found, is not equivalent to
admission. To determine whether Elliott actually received an offer
of admission, the Court must evaluate the conflicting testimony of
Elliott and Hamilton. The discrepancies in Hamilton's affidavit and
trial testimony, as well as the law school's lack of documentation of
Elliott's status, weigh in Elliott's favor.” Accordingly, the Court
finds that Elliott was not notified of his admission to law school.
In 1992, Elliott also applied to Baylor School of Law and Texas
Tech School of Law. He was denied admission to Baylor.
Although accepted at Texas Tech, a state university, Elliott declined
the offer of admission by letter dated June 2, 1992. See D-401.
“The Court is not implying that Hamilton testified in an untruthful
manner. However, because of the number of applicant files Hamilton
was required to address and the time pressures under which she was
working as the beginning of the school year approached, the Court
believes it very possible her recall of the chronology of specific events
may be inaccurate.
32a
C. Douglas Carvell
Douglas Carvell had a TI of 197, which was based on an
undergraduate GPA of 3.28 and an average LSAT score in the 76th
percentile.*’ His application reflects that in 1991 he received his
B.A. in political science from Hendrix College in Conway, Arizona.
P-151. The LSDAS report indicates Carvell ranked 98th in his
class of 247 at Hendrix College. P-151; D-336 at A-49. Carvell
provided detailed responses to the application questions on
typewritten attachments to his application. Carvell's file included
three letters of recommendation, one from a professor at Hendrix
College that compliments his intellectual abilities but describes his
performance as uneven, disappointing, and mediocre. P-151.
Because Carvell's TI placed him in the nonminority
discretionary zone, his file was reviewed by a subcommittee of
three. He received no votes from the two faculty members on the
subcommittee, Professors Steven Goode and Mark Gergen, but did
get one favorable vote from a student member of the committee.
See D-335, D-336. Therefore, by letter dated April 15, 1992, the
law school offered him a position on the waiting list, which he
accepted. While he was on the waiting list, Carvell's file was
reviewed by Associate Dean Michael Sharlot, a member of the
admissions committee. Sharlot did not vote to admit Carvell from
the waiting list. D-334 at A-43-A-44. By letter dated July 16,
1992, the law school denied Carvell admission. P-151.
In addition to the law school, Carvell applied for admission to
Southern Methodist University School of Law and Vanderbilt
School of Law. He was denied admission to Vanderbilt, but was
accepted at SMU, where he has completed his first year of law
*’Carvell's application reflects that he took the LSAT twice, receiving
a score of 34 (61st percentile) the first time and a score of 164 (91st
percentile) the second time. The LSAT factored in his TI is an average
of these two scores.
33a i
school. Carvell, vol. 10 at 6-7. Carvell also applied to the
University of Texas School of Business and was denied admission.
Id. at 12. At SMU, Carvell is pursuing a master’s of business
administration in a joint program with the SMU law school. /d. at
6.
D. David Rogers
David Rogers had a TI of 197 based on his undergraduate GPA
of 3.13 and an LSAT score of 166. In the early to mid-1980s,
Rogers attended the University of Texas as a student in Plan Il, an
honors program. However, in 1985, he was dismissed because of
his p or scholastic performance. Rogers, vol. 11 at 55. Rogers
subsequently attended the University of Houston-Downtown and
received an undergraduate degree in professional writing in 1990.
P-171; Rogers, vol. 11 at 56. In 1992, Rogers received an
advanced degree in professional writing from the University of
Southern California. P-171. Rogers noted on his law school
application that "as a white who attended an all-minority school for
several years, and who was raised by a single mother, I have an
unusual understanding of the challenges faced by women and
minorities." P-171. Rogers's application file contains no letters of
recommendation. P-171; see also D-335 at A-46-A-47.
Rogers received no votes from any member of the
subcommittee that reviewed his file in the nonminority
discretionary zone. By letter dated April 7, 1992, he was denied
admission to the law school. P-171.
IV. DISCUSSION
A. Ripeness and Standing
As a preliminary matter, the defendants contest the ripeness of
two of the plaintiffs’ claims and the standing of all plaintiffs to
34a
bring this cause of action.“* With regard to Hopwood and Elliott,
the defendants argue their claims are not ripe because neither was
denied admission.” As stated above, the Court has found both
Hopwood and Elliott were, in effect, denied admission to the law
school. Therefore, a ripe controversy exists between these two
plaintiffs and the defendants.
The defendants contend Hopwood lacked standing to challenge
the admissions policy because she failed to accept a position on the
waiting list or to ask for deferred admission. Therefore, according
to the defendants, she has failed to exhaust the administrative
procedures available to her. The defendants further contend all
plaintiffs lack standing in that none can show they would have been
granted admission absent the challenged admissions policies.”
To have standing to challenge a governmental action, a plaintiff
must demonstrate a concrete "injury in fact," a causal relationship
between the injury and the challenged conduct, and a likelihood the
injury will be redressed by a favorable decision. Northeastern Fla.
Contractors v. City of Jacksonville, _U.S.__, 113 S. Ct. 2297,
2301-02 (1993). However, the “injury in fact" in an equal
protection case involving a barrier that makes it more difficult for
members of one group to obtain a benefit than it is for members of
another group is the denial of the equal treatment and not the
ultimate inability to obtain the benefit. /d at _, 113 S. Ct. at
2303.
“This matter was addressed at length in pretrial motions and
hearings, and the transcripts and evidence related to those motions are
evidence in this cause.
“As discussed above, the defendants claim Hopwood voluntarily
removed herself from the admissions process and Elliott was offered
admission.
With regard to Elliott, the defendants contend he lacks standing to
challenge the initial decision to deny him admission.
35a
The defendants assert this exception to requiring plaintiffs to
show a direct causal relationship is limited in its application to
challenges to the validity of express set-asides or reservations such
as those addressed in City of Jacksonville and Bakke. The Court
does not read the requirements for standing set forth in City of
Jacksonville to be limited in the manner defendants contend. In
defining standing as applied in eaval protection cases, the Supreme
Court reviewed its precedent on the issue. The overarching
proposition of the cases the Supreme Court cited in reaching its
holding was not that the causal-connection exception applied only
to specific set-asides, but that an "injury in fact" stemmed from any
governmental barrier that either created a discriminatory obstacle
or had the effect of producing unequal access to a governmental
benefit.”' Accordingly, the Court finds all the plaintiffs have
standing--they have sufficiently alleged that the law school's
admission process is the cause of their injury and that a judicial
order could redress the injury.” |
B. Standard of Review
Affirmative action plans based on race trigger strict judicial
scrutiny. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493,
109 S. Ct. 706, 721 (1989); see also Bakke, 438 U.S. at 291, 98 S.
Ct. at 2748 (Powell, J.) ("Racial and ethnic distinctions of any sort
are inherently suspect and thus call for the most exacting judicial
examination.”). Further, "the level of scrutiny does not change
merely because the challenged classification operates against a
*'See id. at 2302-03 (discussing Clements v. Fashing, 457 U.S. 957,
102 S. Ct. 2836 (1982); Bakke, 438 U.S. 265, 98 S. Ct. 2733 (1978); and
Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532 (1970)).
Further, the law school’s 1992 procedure for review of applicants
in the discretionary zone effectively prevents any nonminority candidate
from establishing that he or she would have been admitted but for the
preference given to minority applicants. See infra note 86.
Lae as
36a
group that historically has not been subject to governmental
discrimination." Wygant v. Jackson Bd. of Educ., 476 U.S. 267,
273. 106 S. Ct. 1842, 1846 (1986); see also Croson, 488 U.S. at
494. 109 S. Ct. at 722 (reaffirming equal protection analysis is not
dependent on the race of those burdened or benefited by a
classification).
The defendants contend. however, strict scrutiny is
inappropriate in this cause in light of the Supreme Court's holding
in Metro Broadcasting v. FCC, __: US. __, 110 S. Ct. 2997
(1990). In Metro Broadcasting, the Supreme Court held that
affirmative action plans adopted pursuant to federal mandates are
subject to intermediate scrutiny—a determination whether the plans
serve important governmental objectives and whether they are
substantially related to the achievement of the objectives. /d. at
___, 110 S. Ct. at 3009. The defendants contend that the Texas
Plans equate to a federal mandate because they stem from the
OCR's insistence on full compliance with Title VI, an objective that
is within the power of Congress.”
“The defendants also contend a suit against the State of Texas or the
University of Texas is an impermissible collateral attack on OCR
programs and regulations and, in support of this proposition, cite
Milwaukee County Pavers Ass'n v. Fiedler, 922 F.2d 419 (7th Cir.), cert.
denied, 500 U.S. 954, 111 S. Ct. 2261 (1991). However, in this cause the
plaintiffs are not attempting to challenge a federal statute creating
minority business set-asides by challenging the State's role in the
program. Instead, the plaintiffs in this cause are challenging the specific
procedure the law school voluntarily designed and implemented to
achieve affirmative action goals suggested by OCR. The
constitutionality of the law school's procedure is not dependent on
whether the OCR can require affirmative remedies for a Title VI
violation. See Podberesky v. Kirwan, 764 F. Supp. 364, 374 (D. Md.
1991), rev'd and remanded, 956 F.2d 52 (4th Cir. 1992), on remand, 838
F. Supp. 1075 (D. Md. 1993).
iat lia
—— ee
37a
The Court finds the argument unpersuasive. In Metro, the
FCC's minority ownership programs had been specifically
mandated and approved by Congress. /d. at 563, 110S. Ct. at 3008.
While it is true that Congress has the power to identify and redress
the effects of discrimination and has charged the DOE with assuring
compliance with Title VI, there is no similar congressional mandate
in this cause. Further, the FCC is a licensing body that, pursuant to
a congressional mandate, established specific minority ownership
policies. The OCR has provided Texas with a number of suggested
tools Texas may implement to bring the higher educational system
into compliance with Title VI; it has not, however, required the
State to adopt any specific procedures. Although the defendants
characterize the law school's efforts as pursuant to an OCR "consent
decree.” the evidence reflects that, to date, the State of Texas’
efforts to comply with Title VI have been made voluntarily in an
effort to avoid a specific mandate or the loss of federal funding.
Ashworth, vol. 13 at 34, 39.
Further, under equal protection analysis, the same level of
scrutiny applies to race-conscious affirmative action plans adopted
pursuant to consent agreements as to other voluntarily adopted
plans. See, e.g., In re Birmingham Reverse Discrimination
Employment Litig., 833 F.2d 1492, 1501 (11th Cir.1987), aff'd sub
nom. Martin v. Wilks, 490 U.S. 755, 109 S. Ct. 2180'(1989) (Title
VII consent decree). Indeed, the most recent circuit court opinion
analyzing an affirmative action plan in the education context,
specifically a scholarship plan adopted in response to protracted
litigation and OCR guidelines, upheld the lower court's application
of strict scrutiny as the proper standard for review of the plan. See
Podberesky v. Kirwan, 956 F.2d 52, 55 (4th Cir.1992).
The most compelling justification for application of strict
scrutiny in this context is to provide assurance that individual rights
are afforded the full protection they merit under the Constitution.
Only by applying strict scrutiny can a court honestly weigh the
validity and necessity of efforts to remedy past wrongs against the
38a
rights of otherwise qualified nonminorities affected by the efforts.
Although the use of racial classifications is disfavored, there are
instances when such classifications serving proper purposes should
be upheld. Only through diligent judicial examination can a court
determine if a classification is consistent with constitutional
guarantees and not related to "illegitimate notions of racial
inferiority or simple racial politics." Croson, 488 U.S. at 493, 109
S. Ct. at 721. Accordingly, the Court concludes the law school
admissions process must be subjected to a strict scrutiny test under
the Equal Protection Clause of the Fourteenth Amendment to
protect both the integrity of the process and the important
individual rights at issue.”
B. Application of Strict Scrutiny
Strict judicial scrutiny involves a determination of whether the
law school process served "a compelling governmental interest" and
whether the process is "narrowly tailored to the achievement of that
goal." See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274, 106
S. Ct. 1842, 1847 (1986). The purpose of ascertaining whether a
compelling governmental interest exists is to "smoke out"
illegitimate uses of race by ensuring that the goal is important
enough to use the suspect tool of racial preference. Croson, 488
* As an additional point, even if the Court were to find intermediate
scrutiny to be the proper standard of review, the Court would still be
required to assess whether the process imposed undue burdens on
nonminorities. See Metro Broadcasting, _U.S.at__, 110 S.Ct. at 3026
("[A] congressionally mandated benign race-conscious program that is
substantially related to the achievement of an important governmental
interest is consistent with equal protection principles so long as it does
not impose undue burdens on nonminorities."). As discussed infra pp.
58-67, the burden imposed upon nonminorities by the law school's
admissions procedure is a very troubling aspect of the process and,
ultimately, in this Court's view, renders the process constitutionally
impermissible.
39a
U.S. at 493, 109 S. Ct. at 721. The narrowly tailored analysis
"ensures that the means chosen 'fit' this compelling goal so closely
that there is little or no possibility that the motive for the
classification was illegitimate racial prejudice or stereotype." /d.
1. Compelling Governmental Interest.—Both sides expended
considerable time and effort at trial on the issue of whether a
compelling governmental interest existed sufficient to justify the
need for the law school's affirmative action program. The
defendants offered a number of reasons as justification for the law
school's affirmative action program. These reasons are set forth in |
the law school's "Statement of Policy on Affirmative Action":*
To achieve the School of Law's mission of providing a first
class legal education to future leaders of the bench and bar
of the state by offering real opportunities for admission to
members of the two largest minority groups in Texas,
Mexican Americans and African Americans;
To achieve the diversity of background and experience in its
student population essential to prepare students for the real
world functioning of the law in our diverse nation;
To assist in redressing the decades of educational
discrimination to which African Americans and Mexican
Americans have been subjected in the public school systems
of the State of Texas;
To achieve compliance with the 1983 consent decree
entered with the Office of Civil Rights of the Department of
Education imposing specific requirement for increased
efforts to recruit African American and Mexican American
“This written articulation of the purposes and policy of the law
school's affirmative action program and description of the 1992 process
was prepared in February 1994. Johanson, vol. 6 at 45-46; Yudof, vol. 20
at 30-31.
a i i |
40a
students:
To achieve compliance with the American Bar Association
and the American Association of Law Schools standards of
commitment to pluralist diversity in the law school's student
population.
D-362. Although all are important and laudable goals, the law
school's efforts, to be consistent with the Equal Protection Clause,
must be limited to seeking the educational benefits that flow from
having a diverse student body and to addressing the present effects
of past discriminatory practices. See Bakke, 438 U.S. at 313; 98S.
Ct. at 2760 (environment fostering robust exchange of ideas makes
goal of diversity “of paramount importance in the fulfillment of [a
university's] mission"); United States v. Paradise, 480 U.S. 149, |
167, 107 S. Ct. 1053, 1064 (1987) ("The government |
unquestionably has a compelling interest in remedying past and |
present discrimination by a state actor."); Podberesky, 956 F.2d at
57 (race- related remedy may be used in attempt to remedy effects
of past discrimination). Accordingly, the Court will evaluate the |
program in light of these goals.” The plaintiffs do not dispute that |
under the holding of Bakke, obtaining the benefits that flow from a
racially and ethnically diverse student body is a compelling interest
“Notwithstanding the personal views of this judge, it appears the
goal of increasing the number of minority members in the legal
profession and judiciary of Texas is not a legally sufficient reason to
justify racial preferences under fourteenth amendment analysis. See
Croson, 488 U.S. at 496-98, 109 S. Ct. at 723-24. Further, the desires
and goals of a private entity such as the ABA or AALS, though important
considerations for an accredited law school, do not provide sufficient
justification for racial classifications. Similarly, Texas’ "consent decree '
with the OCR, though having evidentiary value in terms of past
discrimination in Texas’ higher education system, is not, in and of itself,
a valid justification.
4la
justifying the use of racial preferences.”’ Nevertheless, the plaintiffs
suggest that under more recent Supreme Court decisions, the only
compelling interest recognized for race-conscious programs is
remedying the past effects of racial discrimination.* However,
none of the recent opinions is factually based in the education
context and, therefore, none focuses on the unique role of education
in our society.” Absent an explicit statement from the Supreme
Court overruling Bakke, this Court finds, in the context of the law
school's admissions process, obtaining the educational benefits that
flow from a racially and ethnically diverse student body remains a
The plaintiffs do contend the law school's affirmative action
program is not narrowly tailored to meet the objective of diversity, an
issue the Court will address below.
“*In support of this proposition, the defendants cite Croson, 488 U.S.
at 493, 109 S. Ct. at 722 ("Unless [racial classifications] are strictly
reserved for remedial settings, they may in fact promote notions of racial
inferiority and lead to politics of racial hostility."), and dissenting
opinions from Metro Broadcasting and Johnson vy. Transportation
Agency, Santa Clara, California. See Metro Broadcasting, ___ U.S. at
__. 110 S. Ct. at 3035 (O'Connor, J., dissenting); Johnson, 480 U.S.
616, 673-75, 107 S. Ct. 1442, 1473-1474 (Scalia, J., dissenting).
The Supreme Court recognized the vital role education plays in our
society in Brown v. Board of Education:
[Education] is the very foundation of good citizenship. Today it
is a principal instrument for awakening the child to cultural
values, in preparing him for later professional training, and in
helping him to adjust normally to his environment. In these
days, it is doubtful that any child may reasonably be expected to
cover succeed in life if he is denied the opportunity of an
education.
Brown v. Board of Educ., 347 U.S. 483, 493, 74 S. Ct. 686, 691 (1954).
42a
sufficiently compelling interest to support the use of racial
classifications.
The defendants presented evidence, which included the
testimony of deans from law schools across the country and the
testimony of former and current law students, that the benefit to the
law school educational experience derived from a diverse student
population is substantial. See, e.g., Brest, vol. 22 at 22-23; Stein,
vol. 18 at 20-21; Bollinger, vol. 16 at 23-26; Spector, vol. 15 at 9-
10. Additionally, several professors testified regarding the
educational benefit of having a diverse group of students in the
classroom setting. See, e.g., Goode, vol. 9 at 20-21; Yudof, vol. 21
at 59-60. According to the evidence presented at trial, without
affirmative action the law school would not be able to achieve this
goal of diversity. Had the law school based its 1992 admissions
solely on the applicants’ TIs without regard to race or ethnicity, the
entering class would have included, at most, nine blacks and
eighteen Mexican Americans.”
Although under current law the goal of diversity is sufficient by
itself to satisfy the compelling governmental interest element of
strict scrutiny, the objective of overcoming past effects of
discrimination is an equally important goal of the !aw school's
affirmative action program. The plaintiffs have asserted that any
past discrimination against blacks occurred so long ago, it has no
present effects and that the law school has never discriminated
against Mexican Americans. °' The plaintiffs further assert the
*°D-441. The Court believes such meager representation would be
woefully inadequate in a state university supported, in part, by revenues
from all state residents. Further, the Court concurs with the defendants
that diversity requires more than token representation of minorities; strict
reliance on the TIs for admission would not further the goal of diversity.
*'The plaintiffs’ expert, James Armor, a senior fellow at the Institute
of Public Policy, George Mason University, in Fairfax, Virginia, testified
43a
Court should limit its review of past discrimination to official acts
and policy of the University of Texas law school and should not
consider discrimination in Texas’ educational system as a whole.
As support for this contention the plaintiffs cite Croson, in which
the Supreme Court struck down a city set-aside program that
required thirty percent of city contracts to be subcontracted to
minority businesses. 488 U.S. at 499, 109 S. Ct. at 724 ("Like the
claim that discrimination in primary and secondary school justifies
a rigid racial preference in medical school admissions, an
amorphous claim that there has been past discrimination in a
particular industry cannot justify the use of an unyielding racial
quota.”).
Recently, however, the Supreme Court held that a system of
higher education is under an affirmative duty to eliminate every
vestige of racial segregation and discrimination in its educational
system and to reform those policies and practices that required or
contributed to separation of the races. United States v. Fordice, __
U.S. __, 112 S. Ct. 2727, 2743 (1992). Thus, it appears the
Supreme Court has recognized that the restrictions it has applied in
ascertaining the present effects of past discrimination in the
employment context, specifically the prohibition against remedying
effects of "societal discrimination” and discrimination implemented
by another governmental unit, are not appropriate in the education
context. See also Podberesky v. Kirwan, 838 F. Supp. 1075, 1098
& n. 79 (D. Md. 1993). "Applicants do not arrive at the admissions
office of a professional school in a vacuum," and, in fact, have
ordinarily been students in an educational system for sixteen years.
Geier v. Alexander, 801 F.2d 799, 809 (6th Cir. 1986). The Court
believes, therefore, the residual effects of past discrimination in a
there are no present direct effects of past discrimination in Texas’
educational system. Armor, vol. 10 at 45-48. Armor testified the only
cities in Texas he has visited are Dallas and Houston. Armor, vol. 11 at
41. The Court does not find Armor to be a credible witness.
44a
particular component of a state's educational system must be
analyzed in the context of the state's educational system as a whole.
The State's institutions of higher education are inextricably linked
to the primary and secondary schools in the system. Accordingly,
this Court has not limited its review to the law school or Texas’
higher education system in evaluating the present effects of past
discrimination.® However, were the Court to limit its review to the
University of Texas, the Court would still find a "strong evidentiary
basis for concluding that remedial action is necessary." Podberesky
v. Kirwan, 956 F.2d at 55.
As discussed above, Texas’ long history of discrimination
against blacks and Mexican Americans in public education is.
chronicled in court opinions, the findings of the OCR, and the
continuing desegregation suits against the State.© The State of
Texas engaged in overt discrimination against blacks until the
practices were forcibly dismantled in the relatively recent past.
Discrimination in education was at the center of official
discrimination against black Texans. Additionally, the University
of Texas has a history of racial discrimination.
Similarly, the State has subjected Mexican Americans to
**See also Ayers v. Allain, 893 F.2d 732, 751 (Sth Cir. 1990):
Brown states that the stigmatizing effects of segregation are not
_ created by legally compelled attendance but rather from the
vestiges of legally compelled separation. Thus the lesson of
Brown is that the malignancy of apartheid does not vanish in
state-sponsored forums simply because attendance is voluntary
and admittance race-neutral.
**See, e.g., League of United Latin Am. Citizens v. Clements, 999
F.2d 831, 866 (Sth Cir. 1993). cert. denied, _U.S.__, 114 S. Ct. 878
(1994) ("Texas’ long history of discrimination against its black and
Hispanic citizens in all areas of public life is not the subject of
dispute ....").
45a
discriminatory practices in the education area as reflected in the
findings of unlawful de jure discrimination in the numerous
desegregation lawsuits. Less documentation exists of overt official
discrimination against Mexican Americans than against blacks at
the University of Texas. However, the legacy of Texas’
discriminatory practices continues to hinder the Univérsity of
Texas' efforts to attract qualified Mexican American students.
In recent history, there is no evidence of overt officially
sanctioned discrimination at the University of Texas. The evidence
reflects that the university has made genuine efforts in the last
decade to end discrimination by recruiting and maintaining
minority faculty members and students and condemning racial
incidents occurring on campus or involving student organizations.
Despite these efforts, however, the legacy of the past has left
residual effects that persist into the present. The evidence presented
at trial indicates those effects include the law school's lingering
reputation in the minority community, particularly with prospective
students, as a "white" school; an underrepresentation of minorities
in the student body; and some perception that the law school is a
hostile environment for minorities.
The university's efforts to recruit minorities has led to a modest
increase in the number of minorities attending the law school.
However, admissions and recruitment personnel face difficulties in
attracting qualified minorities to enroll in the law school. These
difficulties stem from negative perceptions of the racial climate at
the law school as a result of past discrimination.” Because of the
law school's legacy of discrimination, it must overcome a
perception that it is a "white institution." Wright, vol. 19 at 33-34.
*Hamilton, vol. 2 at 49-50, 52-53; Wright, vol. 19 at 33-36. Sweatt
v. Painter is often studied in undergraduate courses and contributes to
undergraduate minorities’ perception of the University of Texas as an
institution that does not welcome minorities. Wright, vol. 19 at 33-36;
Romo, vol. 17 at 64.
46a
Recent racial incidents, although not officially sanctioned by the
school, have reinforced the perception that the university is hostile
to minorities and has hurt its ability to recruit minority students.
Wright, vol. 19 at 29-31. An affirmative action program is
therefore necessary to recruit minority students because of the past
discrimination.
The effects of the State's past de jure segregation in the
educational system are reflected in the low enrollment of minorities
in professional schools, including the law school. The OCR
findings and the OCR's continuing review of Texas’ efforts to
desegregate demonstrate the pervasive nature of past discrimination
. in the higher education system.” As a result of policies of official
discrimination in the Texas higher education system, a generation
of blacks and Mexican Americans who are the parents of those
presently of law school age were denied meaningful opportunities
for higher education. G/enn, vol. 23 at 51-53; Romo, vol. 17 at 63-
64; Wright, vol. 19 at 45-47. The denial of these opportunities to
the generation of minority parents bears a causal connection to the
diminished educational attainment of the present generation.
Glenn, vol. 23 at 51-52; Romo, vol. 17 at 53-54.
Further, many public schools in Texas continued to have a
substantial degree of racial and ethnic segregation during the 1970s
and 1980s, the decades in which the majority of 1992 law school
applicants attended primary and secondary schools. Glenn, vol. 23
at 48-51; D-379. This segregation has handicapped the educational
achievement of many minorities. The ultimate effect of the inferior
educational opportunity, combined with the lower socioeconomic
status of minorities in Texas, is a disproportionately smaller pool of
minority applicants to law school. D-379 at 6-7; see also supra
**The plaintiffs contend the OCR's findings are invalid because the
OCR did not apply the standards recently set forth by the Supreme Court
in Fordice. However, neither the validity of the OCR investigation, nor
the retroactive application of Fordice is the issue before this Court.
47a
note 3.
In addition, some minority students enrolled in the law school
feel isolated even with the current commitment to affirmative action
and diversity and are often hesitant to participate in class discussion
when they are the sole minority or one of a few minorities in a
class. Longoria, vol. 15 at 32-34; Rodriguez, vol. 17 at 24-25.
Some minority students continue to perceive a hostile racial
environment on the campus, which they assert is reflected in
insensitive comments by fellow students and faculty. Bell, vol. 14
at 16, 29- 34; Escobedo, vol. 14 at 41-42; Longoria, vol. 15 at 32-
24.
Accordingly, despite the plaintiff's protestations to the contrary,
the record provides strong evidence of some present effects at the
law school of past discrimination in both the University of Texas
system and the Texas educational system as a whole. Therefore.
the Court finds the remedial purpose of the law school's affirmative
action program is a compelling governmental objective.
2. Narrowly Tailored—The Court must next decide if the
admissions process was narrowly tailored to achieve the goals of
diversity and overcoming the present effects of past discrimination.
This determination requires the application of four factors: the
efficacy of alternative remedies; the flexibility and duration of the
relief; the relationship of the numerical goals to the percentage of
minorities in the relevant population; and the impact of the relief
on the rights of third parties. See United States v. Paradise, 480
U.S. 149, 171, 107 S. Ct. 1053, 1066 (1987).
The defendants have shown it is not possible to achieve a
diverse student body without an affirmative action program that
seeks to admit and enroll minority candidates. Brest, vol. 22. at 15.
As stated above, in 1992, the entering class would have included at
most nine blacks and eighteen Mexican Americans, had the review
of minorities been limited to those applicants in the presumptive
admit and discretionary zones for white applicants. D-441: Yudof,
48a
vol. 21 at 44; Johanson, vol. 6 at 38. These numbers reflect the
maximum potential and assume no adverse affect on the number of
applicants stemming from the abandonment of affirmative action.
Further, the record indicates the ultimate effect of abandoning
affirmative action at the law school would be to redirect minorities
to the historically separate state law school at Texas Southern
University, thereby resegregating the law school.” Alternatives,
such as minority scholarships and increased minority recruitment,
while effective tools in conjunction with the affirmative action
program, would not be effective means by themselves to meet the
compelling governmental interests of true diversity and remedying
the effect of past de jure segregation. In fact, the record in this case
demonstrates that, without affirmative action, the perception of the
law school as a "white" institution would be exacerbated, which
would compound the difficulties of attracting top minority students.
Wright, vol. 19 at 36-37; Goode, vol. 9 at 19; Rodriguez, vol. 17 at
25.
The evidence shows that despite genuine efforts to end
discrimination, the legacy of the past continues to hinder the law
school's efforts to attract highly qualified minority students.
Accordingly, the Court finds affirmative action in the law school's
admissions program is an effective and necessary means to
overcome the legacy of the past and to achieve the diversity
* Ashworth, vol. 12 at 44-45; D-432; D-453; D-454. In 1971, the
year following the Board of Regents disapproval of the law school's
participation in the CLEO program, the law school entering class had no
blacks. As late as 1974 only ten of the law school’s 1600 students were
black. Wright, vol. 19 at 31-33. Texas Southern University, the law
school Texas created to avoid integration of the law school, enrolls
almost 50% of all entering minority law students in Texas. This
percentage would increase dramatically in the absence of the law school's
affirmative action program. Wright, vol. 19 at 21-22; Ashworth, vol. 12
at 44-45; D-432; D-452; D-453.
49a
necessary for a first-class university.
The plaintiffs argue the admissions program establishes the
functional equivalent of an impermissible quota system in which
the law school attempts to camouflage quotas through the use of the
term “goals.” The plaintiffs contend because the admissions
committee knows the approximate number of students in an
incoming class, the five percent black and ten percent Mexican
American figures translate into specific numbers.
The admissions data from the past ten years shows variations in
the admission figures for the two groups receiving admissions
preferences at the law school-- blacks and Mexican Americans.
The data reflects that between 1983 and 1993, the percentage of
black admissions varied from a low of 3.2 percent, occurring in
1987, to a high of 9.3 percent in 1983. The percentage in 1992 was
8.0 percent. Mexican American admissions varied from a low of 10
percent, occurring in both 1983 and 1993, and a high of 14.3
percent occurring in 1984. The percentage in 1992 was 10.7."
*’The admissions data from 1983 to 1993 reflects the following
minority admissions, both in percentages and actual numbers of students:
Year Black Mexican American
1983 9.3 (47) 10.0 (51)
1984 6.2 (32) 14.3 (74)
1985 4.6 (25) 11.2 (61)
1986 4.4 (24) 13.1 (71)
1987 3.2 (17) 10.2 (55)
1988 7.0 (44) 10.7 (60)
1989 6.0 (35) 11.4 (58)
1990 7.1 (39) 11.6 (64)
199] 6.9 (35) 10.6 (54)
1992 8.0 (41) 10.7 (55)
1993 5.9 (31) 10.0 (53)
D-71.
50a
An illegal quota, as defined by the Supreme Court, exists when
a fixed number of seats are set aside or an unyielding number is set
to achieve a goal. See Bakke, 438 U.S. at 288, 98 S. Ct. at 2747
(defining quota as fixed number of seats set aside); see also Metro
Broadcasting, 497 U.S. at 599, 110 S. Ct. at 3027 (equating quota
with a "fixed quantity set aside"); Croson, 488 U.S. at 499, 109 S.
Ct. at 724-25 (describing thirty percent minority set-aside as rigid
and unyielding quota); Fullilove v. Klutznick, 448 U.S. 448, 498,
100 S. Ct. 2758, 2785 (1980) (equating quota with set-aside).
Though it is evident from the admissions figures that the
percentages of desired minorities in a class derived from the OCR
investigation served as guidelines, the iaw school did not rigidly
and inflexibly apply the numbers. Instead, the percentages fiuctuate
randomly, albeit within a relatively narrow range, and show no
consistent pattern of increase. In some years, the law school has
failed to meet its goals because of the relatively weak strength of
the minority applicant pool. Goode, vol. 9 at 13-17. No evidence
was presented at trial that the law school granted a set-aside for any
particular group or that competition for any specific seat in the class
was closed to some students because of race or. ethnicity.”
Accordingly, the Court finds the 1992 admissions process did not
use an illegal quota but was, in fact, flexible in achieving its goals
based on the strength of the minority applicant pool.
As for duration, the law school has not stated precisely how
long it envisions maintaining its affirmative action admissions
program. However, in the 1990s, as the minority applicant pool
improved, the admissions committee made the decision not to admit
greater numbers of minority students but to attempt to close the gap
°§ The law school maintains racially segregated "wait lists," which
the plaintiffs contend the law school uses to adjust the racial composition
of the incoming class to meet its goals. However, the evidence at trial
showed that there is no "last seat," as in Bakke, fur which an applicant's
race is the deciding factor. See, e.g., Johanson, vol. 4 at 43.
Sla
in credentials of minority and nonminority students. Wellborn, vol.
24 at 31-35; Goode, vol. 9 at 7, 17-18. Therefore, in 1992, despite
a significant increase in the number of minority applicants from the
previous years, the law school's minority admissions remained
relatively stable. Johanson, vol. 6 at 13-14; P-47; D-438; D-439.
The current objective of the law school, as articulated at trial, is
to continue to narrow the gap to the point where affirmative action
will not be required to achieve a representative percentage of
minorities in the entering classes.” The evidence reflects that the
law school admissions committee regularly reviews and adjusts the
remedy to evaluate its necessity and efficacy.” Certainly, an
indefinite program would violate the Equal Protection Clause.
However, the law school's use of the program until the OCR has
determined Texas is in compliance with Title VI and until the gap
in minority and nonminority credentials has narrowed such that the
State will remain in compliance with Title VI without the need for
affirmative action does not offend the Constitution. See
Podberesky, 764 F. Supp. at 376.
The third factor, the relationship of the numerical goals to the
relevant population, is easily satisfied under these facts. The law
school has not attempted to set goals that reflect the percentage of
minorities in the general population or the percentage of minorities
attending college. Instead the law school's goals for minority
See Goode, vol. 9 at 32 ("My position on the committee for many
years has been, we ought to work and strive to decreasing the gap, little
by little if we have to, but one day to the point where, in fact, we won't
have such a gap, where we can truly have a race-blind system of
admission. We're not there."); see also Wellborn, vol. 24 at 35; P-1.
The evidence shows that the qualifications of minority applicants
today are roughly equivalent to the qualifications of nonminority
applicants 20 years ago. D-433. These figures demonstrate the progress
that has occurred in the qualifications of minorities applying for law
school. Glenn, vol. 23 at 52.
52a
enrollment are generally in line with the percentages of black and
Mexican American college graduates in the State of Texas. These
goals stem from the OCR investigation and the resulting Texas
Plans. Goode, vol. 9 at 12-13; Johanson, vol. 4 at 9-12. They are
reasonable and logically related to the size of the relevant pool of
minority prospects for higher education.
The final factor, the impact of the procedure on the rights of
innocent third parties, is the most difficult to evaluate. By
definition, if one person is given preferential treatment based on
race or ethnicity to overcome a heritage of past societal wrongs,
another person is penalized. However, the person penalized or that
person's ancestors may never have discriminated against the
preferred race or ethnicity. Although the past history of societal
discrimination in certain institutions may justify the remedy, in the
end, individuals pay the price. Therefore, it is imperative that the
mechanics of any program implementing race-based preferences
respect and protect the rights of individuals who, ultimately, may
have to sacrifice their interests as a remedy for societal wrongs.
In 1992, admissions subcommittees of three reviewed all the
nonminority files. With the exception of Johanson and Hamilton,
none of the members of the subcommittees reviewed the individual
minority files. Nonminority applicants receiving no votes were
denied admission without any further consideration or any direct
comparison to minority applicants. In fact, as early as February 28,
1992, the law school had sent denial letters to 201 resident
applicants, none of whom were black or Mexican American. P-43.
By March 24, 1992, 718 denial letters had been sent to resident
applicants, all to nonminority applicants. P-52. The law school did
not reject any minority applicants until later in the admissions
process. P-60.
The lack of individual comparison between minority and
nonminority files resulted primarily from the separate admissions
procedures for minorities and nonminorities in the discretionary
Re ee ee ee eee wo
ha aii
53a
zone; this is the aspect of the procedure that is at issue with respect
to the four plaintiffs in this cause, who were evaluated in the
discretionary zone. However, the setting of different presumptive
denial lines for minorities and nonminorities creates a similar
problem: some nonminority applicants who fell below the
nonminority presumptive denial line, though having a higher score
than minority applicants placed in the discretionary zone, were
rejected early in the process with no comparison to the individual
minority applicants.”' Further, although a presumptive denial score
”'The use of different presumptive admission lines to identify the top
candidates in the different groups does not present the same problem for
several reasons. First, the evidence shows that Johanson reviewed all
candidates in the top category, both minority and nonminority.
Additionally, those applicants that were not offered admission from this
category were not denied admission but moved to the discretionary zone.
Further, Johanson testified to the necessity of making offers. of
admissions to the top candidates in the minority pools as soon as possible
because of the small pool of qualified applicants and the nationwide
competition for them. A tool that considers the disparity in past
educational opportunity based on historical discrimination to assist in
attracting the top minorities does not create an undue burden on the rights
of nonminorities when appropriately used. Conversely, the use of
differing presumptive denial lines effectively removed some nonminority
applicants from consideration early in the process without being provided
a general, much less individual, comparison with a fully developed pool
of minority applicants. One or two separate reviewers from the general
admissions committee unilaterally made determinations with regard to
these applicants. However, none of the plaintiffs in this lawsuit was
affected directly by this aspect of the 1992 procedure. Further, the new
admissions procedure adopted by the law school will no longer use
presumptive denial lines to preclude comparison of applicants. See infra
note 87. The Court, therefore, need not address the issue. If the issue
were before the Court, the Court would find this aspect of the procedure
suffers from the same infirmity that use of the minority subcommittee
created in the discretionary zone—lack of individual comparison between
54a
was established for minorities, in 1992, every minority applicant
not admitted from the presumptive admit category was treated as if
in the minority discretionary zone. P-103.
The defendants defend the system used in 1992 as more
effective in controlling the use of race for limited, legitimate
purposes than the previous procedure of commingling minority and
nonminority files in the stacks of thirty, a procedure that allowed
individual reviewers complete discretion on the extent, if any, to
implement affirmative action. Wellborn, vol. 24 at 8-17. The
defendants assert the 1992 process was also more efficient in that
minority files were reviewed by the persons most experienced in
reviewing and evaluating minority files. Goode, vol. 9 at 3. The
defendants concede that in 1992, with the exception of Johanson
and Hamilton, no members of the general admissions committee
reviewed individual minority files. However, they contend that the
full committee was sufficiently apprised of the relative strengths of
the minority and nonminority applicant pools through information
provided by the minority subcommittee. Because the minority
subcommittee shared this information with the full committee, the
defendants argue that the full committee could reach aconsensus on °
the weight to give race in the admissions process and evaluate the
nonminority stacks of files with the relative strengths of the
applicant pools in mind. Wellborn, vol. 24 at 10, 14-16; Goode,
vol. 9 at 8-9. The defendants also defend the law school's process
as consistent with similar processes used at major law schools
across the country.” However, review of admissions procedures
minority and nonminority applicants.
”The defendants imply that because the law school's affirmative
action is fundamentally similar to that used at the major law schools
around the country, it is constitutional. The evidence, however, reflects
that while there are similarities, the other programs differ significantly
from that at issue in this cause. Judith Wegner, Dean of the University
of North Carolina School of Law, testified by deposition that the
55a
for equal protection violations requires a fact-specific inquiry. The
fact that other schools may use processes with similar components
does not resolve the issue of whether the defendants deprived the
four plaintiffs in this cause of equal protection under the law.
In Bakke, Justice Powell stated that although race or ethnicity
could be a "plus" factor in consideration of a particular applicant,
race or ethnicity should "not insulate the individual from
comparison with all other candidates for the available seats."
Bakke, 438 U.S. at 317, 98 S. Ct. at 2762. Justice Powell further
discussed the importance of assuring applicants that they were
treated as individuals in the admissions process:
The applicant who loses out on the last available seat to
University of North Carolina School of Law does not set separate
presumptive admission and denial scores based on race, does not have
waiting lists segregated by race, and does not have separate committee
review based on race. Wegner depo. at 48-49. Robert Stein, Dean of the
University of Minnesota Law School, testified that the University of
Minnesota uses mechanisms in the admissions procedure similar in
function to those used by the law school. However, all applicants offered
admission at the University of Minnesota, with the exception of those
offered "automatic" admission based on high indices, are ultimately
reviewed by the full admissions committee. Stein, vol. 18 at 12. The
minority subcommittee does not have authority to admit applicants, only
to recommend specific applicants to the full committee. Stein, vol. 18 at
48. Paul Brest, Dean of the Stanford Law School, testified his school
uses a system comparable to that used by the law school, with a single
admissions chair who has ultimate discretion on all admissions. Brest,
vol. 22 at 19. Instead of a using a minority subcommittee, Stanford has
one person that reviews minority files and makes recommendations to the
admissions chair. Jd. at 8-19. Until recently, that person reviewed only
minority files. However, as the result of a recent settlement with OCR,
the person began reviewing some nonminority files so that she would
have a better sense of the entire pool of applicants and be able to make
more appropriate comparisons between the applicants. Jd. at 39.
56a
another candidate receiving a "plus" on the basis of ethnic
background will not have been foreclosed from all
consideration for that seat simply because he was not the
right color or had the wrong surname. It would mean only
that his combined qualifications, which may have included
similar nonobjective factors, did not outweigh those of the
other applicant. His qualifications would have been
weighed fairly and competitively, and he would have no
basis to complain of unequal treatment under the Fourteenth
Amendment.
Id. at 318, 98 S. Ct. at 2762. The defendants contend this express
language is limited in its application to only those affirmative
action programs that, like the one at issue in Bakke, use a quota
system to achieve diversity. They assert that Justice Powell's
reasoning calling for a one-on-one comparison may have
application when the primary objective is to obtain a diverse class
based on a number of different qualifications. However, this
reasoning does not apply, according to the defendants, when a
primary objective is to remedy past discrimination. In such
circumstances, the defendants maintain individuals need not be
compared one-to-one, as long as the admissions committee had a
generalized knowledge of the strengths of the minority and
nonminority applicant pools.”’ The Court disagrees.
* Additionally, the defendants assert that nothing in the case law
following Bakke suggests that individual comparison of files is required
in an admissions process redressing past discrimination, and in fact,
indications exist to the contrary. See Croson, 488 U.S. at 519, 109 S. Ct.
at 735 (Kennedy, J., concurring) (narrow tailoring standards should not
be so strict as to chill state's ability to voluntarily eliminate results of past
discriminatory actions); Sheet Metal Workers v. EEOC, 478 U.S. 421,
471, 106 S. Ct. 3019, 3047-48 (1986) (narrow tailoring does not require
specific beneficiaries of affirmative action be victims of past
discrimination). The defendants assert that requiring a one-to-one
comparison of over 4000 applicants a year would be incredibly
57a
Overcoming the effects of past discrimination is an important
goal for our society. The preservation and protection of individual
rights are equally important. Society must be careful not to ignore
the latter to achieve the former, for to do so would serve only to
perpetuate actions of the type affirmative action attempts to redress.
Two wrongs do not make a right; nor does blatant discrimination
cure the ills of past discrimination. Indeed, affirmative action that
ignores the importance of individual rights may further widen the
gap between the races that the law school so diligently attempts to
close and create racial hostility. The only proper means of assuring
that all important societal interests are met, whether in the context
of creating diversity or redressing the ill effects of past wrongs, is
to provide a procedure or method by which the qualifications of
each individual are evaluated and compared to those of all other
individuals in the pool, whether minority or nonminority.
The law school owes a duty to the citizens of Texas to allow
access to a legal education to the best qualified applicants. This
does not imply that those applicants with the highest numbers or
most prestigious pedigrees are necessarily the best qualified. A
multitude of factors, as discussed by Justice Powell in Bakke.
should be considered in developing the best qualified class from a
burdensome. However, the Court finds no reason, when evaluating
affirmative action in the educational context, that the protection afforded
individuals under the Fourteenth Amendment should change based on the
governmental goal that is to be achieved. Further. the defendants, citing
Bakke, have asserted diversity as a constitutional ly valid goal of the law
school's affirmative action program. Bakke gives no indication that the
burden to a school in implementing a constitutionally valid program
should be considered as a reason to diminish the need for individual
comparison. Additionally, more recent case law has made it clear that
administrative convenience cannot support a finding that an affirmative
action program is narrowly tailored to remedy the effects of past
discrimination. Croson, 488 U.S. at 508, 109 S. Ct. at 729-730.
4K 58a
given group of applicants.” "Indeed, the weight attributed to a
particular quality may vary from year to year depending upon the
‘mix’ both of the student body and the applicants for the incoming
class." Jd. at 317-18, 98 S. Ct. at 2762. To achieve the compelling
governmental goal of remedying past discrimination, race and
ethnicity are factors that deserve "pluses" in the weighing of
qualifications. To achieve the compelling governmental goal of
diversity, nonobjective qualifications of nonminorities and
minorities alike may deserve a similar "plus" factor.” Only by
comparing the entire pool of individual applicants can both these
goals be achieved and the best qualified class of entering law
students be admitted.
The law school's 1992 admissions procedure, in theory, was
designed to select the best qualified applicants from the thousands
of applications it received. In 1992, the law school's affirmative
action program involved a determination of those applicants who
were the best qualified fromthe entire minority pool and an attempt
to enroll sufficient numbers of those applicants in the entering class
to satisfy the compelling governmental objectives at issue. The law
“In addition to race, Justice Powell suggested "[s]uch qualities could
include exceptional personal talents, unique work or service experience,
leadership potential, maturity, demonstrated compassion, a history of
overcoming disadvantage, ability to communicate with the poor, or other
qualifications deemed important." 438 U.S. at 318, 98 S. Ct. at 2762.
A nonminority applicant from a disadvantaged background,
although offered admission to prestigious colleges, who elects to attend
less-prestigious schools for economic reasons but nonetheless performs
well, seems to be penalized under the current system for not having
financial means or opportunities commensurate with other nonminorities
dealt a different lot in life. Therefore, the affirmative action program, as
applied in 1992, seems to have had the somewhat ironic effect of
affecting the rights of less advantaged and, indeed, even disadvantaged,
nonminorities rather than the group of nonminorities as a whole.
59a
school evaluated all nonminority applications through a separate
process, with the goal of admitting the best qualified nonminorities.
The defendants maintain this bifurcated process does not violate the
Fourteenth Amendment because affirmative action is lawful and
those minorities selected are evaluated against nonminority
applicants by comparison of the general qualifications of the two
-pools of applicants. The Process, however, incorporates no
meaningful evaluation between the applicants selected from each
pool—a crucial element for protection of individual rights.
The Court holds that the aspect of the law school's affirmative
action program giving minority applicants a "plus" is lawful. But
the failure to provide comparative evaluation among all individual
applicants in determining which were the best qualified to comprise
the class, including appropriate consideration of a “plus” factor,
created a procedure in which admission of the best qualified was
not assured in 1992. Under the 1992 procedure, the possibility
existed that the law school could select a minority, who, even with
a "plus" factor, was not as qualified to be a part of the entering class
as a nonminority denied admission. Thus. the admission of the
nonminority candidate would be solely on the basis of race or
ethnicity and not based on individual comparison and evaluation.
This is the aspect of the procedure that is flawed and must be
eliminated.
The constitutional infirmity of the 1992 law school admissions
procedure, therefore, is not that it gives preferential treatment on the
basis of race but that it fails to afford each individual applicant a
comparison with the entire pool of applicants, not just those of the
applicant's own race.” Because the law school's 1992 admissions
*The record shows that two of the plaintiffs’ applications were
reviewed by members of the minority subcommittee who had familiarity
with both pools of applicants, minority and nonminority. Initially,
Johanson reviewed Hopwood's file early in the process before the entire
pool of applications had developed. After he moved her to the
60a
process was not narrowly tailored, the Court finds the procedure
violated the Equal Protection Clause of the Fourteenth Amendment.
C. Effect of Process on Plaintiffs
The next issue the Court must address is whether, but for the
manner in which the law school improperly considered race in its
1992 admissions procedure, the plaintiffs would have been offered
admission. The defendants argue that the burden is on the plaintiffs
to prove they would have been admitted. The plaintiffs argue that
once they prove a constitutional violation, the burden shifts to the
defendants to establish there was no but-for causation between the
unconstitutional procedure and the denial of admission to each
plaintiff.
Generally, in cases where a plaintiff establishes a constitutional
deprivation, the burden shifts to the defendant to establish a
legitimate, nondiscriminatory reason for the action. See, e.g., Carey
v. Piphus, 435 U.S. 247, 263, 98 S. Ct. 1042, 1052 (1978) (plaintiff
seeking damages for due-process violation must show injuries
resulted from denial of due process, not from corresponding
justifiable deprivation); Mt. Healthy City Bd. of Educ. v. Doyle,
429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977) (once employee
established conduct constitutionally protected, burden shifted to
discretionary zone, a subcommittee of three that included Hamilton
reviewed her file. Elliott's file was reviewed by a subcommittee of three
that included Johanson. Arguably, because Johanson and Hamilton had
familiarity with individual minority applicant files, the procedure as
applied to these two plaintiffs was not impermissible. However, because
the other reviewers on the subcommittees had no familiarity with
individual minority files, the Court finds the constitutional violation
applies to all four plaintiffs. Additionally, the fact that these plaintiffs
were reviewed by persons familiar with the entire pool was an
inadvertent effect of Johanson's and Hamilton's dual roles and the
random shuffle of the files into reviewing stacks; it did not result from
the design of the procedure.
6la
employer to show it would have reached same decision). Justice
Powell's opinion in Bakke suggests the same holds true in Title VI
discrimination suits when evidence of alternative reasons exists.”
The Supreme Court has recently taken the analysis one step further
in the context of Title VII discrimination cases and held that the
failure of a defendant to produce credible evidence of legitimate
nondiscriminatory reasons is insufficient to support a finding of
discrimination because the "ultimate burden of persuasion" remains
at all times with the plaintiff. See St. Mary's Honor Ctr. v. Hicks,
__ U.S.__,___, 113 S. Ce. 2742, 2749 (1993). In making this
"The trial court in Bakke placed the burden of proof on Bakke.
Therefore, although the court found the Davis program violated Bakke's
fourteenth amendment rights, it denied him injunctive relief because he
had failed to prove he would have been admitted in the absence of the
impermissible program. On appeal, the Supreme Court of California.
analogizing Bakke's situation to that of a plaintiff under Title VII, ruled
that because Bakke established the university had discriminated against
him, the burden of proof shifted to the university to prove that it would
not have admitted him in the absence of the special admissions program.
Bakke v. Regents of Univ. of Cal., 553 P.2d 1152, 1172 (Cal. 1976).
Because the university conceded its inability to carry the burden, the
California court ordered Bakke's admission. Jd On review, the Supreme
Court of the United States noted the burden shift but stated that because
the university had not challenged that aspect of the decision, the issue of
the proper placement of the burden of proof was not before it for
consideration. Bakke, 438 U.S. at 280 n.13. 98 S. Ct. at 2743 n.13. At
the end of his opinion, Justice Powell, affirming the injunction, noted that
remanding the case would serve no useful purpose in light of the
university's concession that it could not meet the burden imposed upon
it by the burden shift. /d. at 320, 98 S. Ct. at 2764. In distinguishing
Bakke from Mt. Healthy C ity Board of Education v. Doyle, Justice Powell
noted that there was no question that race had been the reason for Bakke's
rejection and no record existed in Bakke that legitimate alternative
grounds for the university's decision existed. /d at 320 n.54; 98 S. Ct. at
2764 n.54.
62a
clarification, Justice Scalia stated that a court has no authority to
impose liability upon an entity for alleged discriminatory practices
unless a factfinder determines, according to proper procedures, that
the entity has unlawfully discriminated. Jd. at, 113 S.Ct. 2751.
Courts have borrowed the burden of proof standards formulated for
Title VII in deciding claims brought under statutes prohibiting
discrimination by educational institutions receiving federal funding.
See, e.g., Elston v. Talladega County Bd. of Educ., 997 F.2d 1394,
1404 (11th Cir. 1993) (Title VI disparate impact claim). But see
Cohen v. Brown Univ., 991 F.2d 888, 901-02 (1st Cir. 1993) (Title
IX plaintiff bears burden of showing disparity and unmet interest).”*
The Court finds that the cue in Justice Powell's opinion and the
holdings of other constitutional cases suggest that a burden
allotment similar to that in Title VII cases is appropriate.
Therefore, because the plaintiffs established a prima facie case--
they proved the law school's 1992 admissions procedure was
constitutionally flawed—the burden shifted to the defendants to
establish legitimate grounds for the decision not to admit these
plaintiffs, notwithstanding the procedure followed. Unlike the
university in Bakke, the defendants in this cause did not concede the
plaintiffs would have been admitted had their applications been
compared on a individual basis to minority files. Instead, they
offered legitimate, nondiscriminatory reasons for denying each of
the plaintiffs applications. D-332 (Hopwood, Elliott); D-334
(Hopwood, Carvell); D-335 (Carvell, Rogers); D-336 (Carvell).
Further, a statistical analysis of the 1992 admissions data supports
the defendants’ assertion of the non-race based weaknesses in the
plaintiffs’ applications. D-338 at A-60—A-71.
*’The court in Cohen held that the burden shift applicable to Title VII
cases should not apply to Title IX cases, a statute similar to Title VI.
Among the reasons the court offered were the different scope and
purpose of the two statutes and the largely aspirational goal of Title IX
in comparison to the peremptory goal of Title VII. 991 F.3d at 902.
63a
The plaintiffs placed in evidence a chart created by the law
school that depicts the TIs of all 1992 applicants and whether they
were offered or denied admission. See P-139. The chart
distinguishes minority and nonminority applicants, as well as
residents and nonresidents.” The chart emphasizes the disparity in
TIs between resident minority and nonminority applicants: the
highest nonminority TI was 220, the highest black TI was 199 (the
same as Hopwood's TI), and the highest Mexican American TI was
208. In the resident nonminority category, of fifty-one applicants
with TIs of 199, six were denied admission. Additionally, the law
school denied admission to ten nonminorities with TIs higher than
Hopwood's TI. With regard to minority applicants with Tls of 199,
the chart shows one black applicant, who was admitted, and three
Mexican American applicants, all who were admitted.” With
regard to a TI of 197, the TI shared by the other three plaintiffs, of
fifty-seven resident nonminority applicants, the law school denied
admission to nineteen. Only one black resident fell in this category,
who was admitted. No Mexican-American applicants had a TI of
197.
On the other end of the scale, out of four black resident
applicants with a TI of 185, one was denied admission. However,
the law school offered admission to one nonminority resident with
the same TI. Applicants with the lowest T] offered admission were
“The Court has focused on the statistics for residents in this
discussion. The Court notes the chart reflects across-the-board higher
numbers for nonresidents and correspondingly more difficult thresholds
for admittance.
On the chart, "D" indicates denied, "A" indicates admitted, and "C"
indicates canceled. For purposes of evaluation of the numbers, applicants
in the "C" category are counted as admissions because they were
admitted but canceled the acceptance. See Johanson, vol. 6 at 16.
“Two.of the Mexican American applicants canceled.
64a
all minorities.*’ However, the lowest nonminority TI was only a
couple of points higher at 185.
There are many possible methods of evaluating the numbers on
the chart and making comparisons of the applicants’ relative TIs.
The plaintiffs placed the chart in evidence to show their numerical
standing above that of the majority of minorities offered admission.
The Court agrees with the plaintiffs that the chart shows a
significant disparity in TIs between the minority and nonminority
pools. But the visual depiction of this disparity further reinforces
the Court's finding that the evaluation of applicants must include
other nonobjective factors to achieve the compelling governmental
interest of overcoming the past effects of dis¢rimination.
What the chart does not prove, however. is that race or ethnic
origin was the reason behind the denial of admission to the
plaintiffs. Although the plaintiffs had higher TIs than the majority °
of minority applicants offered admission, the evidence shows that
109 nonminority residents with TIs lower than Hopwood's were
offered admission.” Sixty-seven nonminority residents with TIs
lower than the other three plaintiffs were admitted.*°
Additionally, the Court has reviewed the files of the four
plaintiffs as well as the files placed in evidence of other applicants
reviewed in the discretionary zone, both minority and nonminority.
P-146 to P-150, P-155 to P-164 (white applicants admitted); P-224
to P-237 (black and Mexican American applicants admitted).
Based on the applications in evidence, it appears the majority of
applicants, both minority and nonminority, made considerable
*'Of five black applicants with a TI of 183, the law school admitted
three: of eleven Mexican American applicants, the law school admitted
two (one cancelled).
Twenty-nine of these applicants canceled.
Thirteen of these applicants canceled.
65a =
effort to inform the admissions committee of their special
qualifications through extensive answers to the questions on the
application form or through personal statements. See P-146 to P-
150, P-155 to P-163, P-225 to P-237. Most files contained one, if
not several, letters of recommendation. See, e.g., P-155, 157, 158,
161, 225, 231, 233-236. In fact, of all the applications the Court
reviewed, Hopwood's provides the least information about her
background and individual qualifications and is the least impressive
in appearance, despite her relatively high numbers. The files
further reveal that both minorities and nonminorities were offered
admission from the waiting lists. See P-146, 148, 156, 158, 162
(nonminority); P-231, 285 (minority).
“The Court notes that several of the applicants, some of which, in the
Court's opinion, were weaker cand idates, initially were denied admission
but offered a position on the waiting list. They were offered admission
relatively late in the process from the waiting list.
66a
experience and expertise in evaluating the law school applications.
See id.
Therefore, the Court finds the defendants have met the burden
of producing credible evidence that legitimate, nondiscriminatory
grounds exist for the law school's denial of admission to each of the
four plaintiffs and that, in all likelihood, the plaintiffs would not
have been offered admission even under a constitutionally
permissible process. The plaintiffs, who maintain the ultimate
burden of persuasion, have failed to prove otherwise.*’ The Court
simply cannot find from a preponderance of the evidence that the
plaintiffs would have been offered admission under a constitutional
system.
The Court is mindful that the ultimate burden on the plaintiffs
is a difficult and, perhaps, almost impossible obstacle to overcome
in a case of this nature.” However, the Court may not ignore the
*° In this cause, the plaintiffs’ initial position was that any
consideration of race in an admissions procedure is improper. Upon the
Court's indication that such a position was untenable under the law, the
plaintiffs redirected their efforts to proving the law school improperly
used race in the admissions process. However, the plaintiffs’ causation
evidence consisted of a demonstration that many more minority students
were admitted in 1992 than would have been under a strictly race-blind
process and that, had the plaintiffs been minorities, there was a high
probability they would have been offered admission. Johanson, vol. 5 at
37; vol. 6 at 18-19. This evidence, although proof of affirmative action,
does not establish that the plaintiffs, who are not minorities, would have
received sufficient votes to be offered admission if individual minority
files had been reviewed by the general admissions committee.
**In closing argument, the plaintiffs’ counsel stated the plaintiffs
could not prove they were denied admission because of their race because
it was an impossible burden to meet. 7. Smith, vol. 26 at 11, 40. Justice
Souter, in expressing concern for Title VII plaintiffs with similar
burdens, criticized the holding in St. Mary's as establishing a scheme,
i lt A
67a
precedent of other constitutional cases because, as a practical
matter, the burden may be too difficult for plaintiffs to overcome.
D. Relief and Damages
The plaintiffs seek declaratory and injunctive relief, as well as
compensatory and exemplary damages. Because the Court has
found the admission procedure the law school used in 1992 was not
narrowly tailored in that it impermissibly and unnecessarily harmed
the rights of the plaintiffs, the Court will enter a judgment
providing the plaintiffs with their requested declaratory relief.
Specifically, the Court will enter judgment that the law school's use
of the separate evaluative processes for minority and nonminority
applicants in the discretionary zone violated the Fourteenth
Amendment.
However, "the right to equal treatment guaranteed by the
Constitution is not coextensive with any substantive rights to the
benefits denied’ the party discriminated against." Heckler y
Mathews, 465 U.S. 728, 739, 104 S. Ct. 1387, 1395 (1984). As
discussed above, the Court cannot find from a preponderance of the
evidence that the plaintiffs would have been admitted under a
constitutional system. The Court, therefore, will not order
injunctive relief. Nor does the Court find prospective injunctive
relief necessary in light of the law school’s voluntary change to a
which, as a practical matter, could never be met by a plaintiff without
direct evidence of discrimination. St. Mary's, 113 S. Ct. at 2761 (Souter,
J., dissenting).
The Court agrees that the plaintiffs have an impossible burden absent
direct evidence. However, the difficulty does not stem from the
unconstitutional aspects of the procedure alone but from the random
shuffle of files into stacks of thirty, with each stack reviewed by different
subcommittees of three. Under such a system, it is virtually impossible
to establish the outcome of a comparison of the plaintiffs’ applications
against the other applicants, whether minority or nonminority.
$
68a
procedure, which on paper and from the testimony, appears to
remedy the defects the Court has found in the 1992 procedure.*’
Further, neither a plaintiff denied admission under the new system
nor evidence of the practical application of the new procedure is
before this Court.
Although the plaintiffs have failed to prove an injury-in-fact,
they have proved they were deprived of their right to equal
treatment. The appropriate relief for a denial of equal treatment in
a discriminatory government program is aremedy mandating equal
treatment.** Therefore, the Court finds it appropriate to allow the
plaintiffs to reapply to the law school for admission in the 1995
entering class, if they so desire, without requiring them to incur
further administrative costs, and for them to be fairly evaluated in
comparison to all other applicants for admission in 1995."
*’The law school followed the admissions procedure used in 1992 in
1993 and 1994. However, for selecting the 1995 entering class, the law
school has established a new procedure that eliminates the minority
subcommittee. D-363. All admissions decisions will be made by a small
"administrative admissions group,” which will be comprised of Johanson,
Hamilton's successor, Dean Tonya Brown, and a faculty member who, as
of the trial date, had not been selected. The new procedure will not use
presumptive admission and denial scores. Johanson, vol. 6 at 34. The
law school changed its procedure because "when one gets sued in federal
court it catches one's attention." /d. at 57.
**See Heckler, 465 U.S. at 740, 104 S. Ct. at 1395. This remedy may
be accommodated by an end to preferential treatment of others. /d. at
n.8. In the context of affirmative action, the Court interprets this to mean
an end to unlawful preferential treatment of others.
Because plaintiff Carvell has taken advantage of the opportunity to
obtain a legal education at SMU, this aspect of the remedy may have
little value to him. Carvell, in all probability, will be a practicing
member of the bar long before the other plaintiffs, if offered admission
to the law school under a constitutional admissions procedure, obtain law
-
ee
69a
In addition, though the plaintiffs did not prove they suffered any
other actual injury, the Court will not ignore the gravity of the
noneconomic injury to persons denied equal treatment. Therefore,
although normally assessed in the context of procedural due-process
violations, the Court believes this to be an appropriate case for the
assessment of nominal damages:
By making the deprivation of such rights actionable for
nominal damages without proof of actual injury, the law
recognizes the importance to organized society that those
rights be scrupulously observed; but at the same time, it
remains true to the principle that substantial damages
should be awarded only to compensate actual injury or, in
the case of exemplary or punitive damages, to deter or
punish malicious deprivations of rights.
Carey v. Piphus, 435 U.S. at 266, 98 S. Ct. at 1054. The Court,
therefore, will award each plaintiff nominal damages of one dollar.
With regard to general monetary damages, the evidence at trial
consisted of each plaintiff's testimony and speculation about the
value of a law degree.” Because the plaintiffs have failed to
establish that they would have been admitted under a constitutional
system, they are not entitled to these damages. Further, had the
plaintiffs been entitled to damages, none of them established
degrees.
Elliott testified he thought the median income for recent law school
graduates was $57,000 per year. Elliott, vol. 7 at 30. Rogers had a
somewhat less inflated concept, testifying the average first-year salary
for a graduate from the law school was $52,000. Rogers also testified
that the defendants had "taken the top off my career" and requested some
amount he could not quantify to compensate him for the loss. Rogers,
vol. 11 at 67.
70a
monetary damages as required under the law and rules of this
circuit. See Haley v. Pan American World Airways, 746 F.2d 311,
316 (Sth Cir. 1984) ("A damage award cannot stand when the only
evidence to support it is speculative or purely conjectural.").
Finally, the Court would not award Title VI damages even were
such damages appropriate because the Court does not believe the
defendants intended to discriminate against the plaintiffs in an
unlawful manner. See Carter v. Orleans Parish Pub. Schs., 725
F.2d 261, 264 (Sth Cir. 1984) (recovery of damages under Title VI
precluded unless action intentional or manifested discriminatory
animus); Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348,
1356-57 (Sth Cir. 1983) (same). Indeed, the evidence reflects the
contrary. The defendants acted in good faith and made sincere
efforts to follow federal guidelines and to redress past
discrimination. The record contains no evidence that the defendants
intended to discriminate against or to harm the plaintiffs. Under
these facts, an award of damages, especially the punitive damages
the plaintiffs request, would be inappropriate.
IV. CONCLUSION
It is regrettable that affirmative action programs are still needed
in our society. However, until society sufficiently overcomes the
effects of its lengthy history of pervasive racism, affirmative action
is a necessity. Further, although no one likes employing racial
classifications and distinctions, "it would be impossible to arrange
an affirmative action program in a racially neutral way and have it
successful." Bakke, 438 U.S. at 407, 98 S. Ct. at 2808 (Blackmun,
J., concurring in part and dissenting in part).
Commitment to affirmative action programs in educational
institutions as just and necessary, however, does not imply that the
individual rights of nonminorities should fall by the wayside or be
ignored. The concern for individual rights requires that programs
implementing racial and ethnic preferences be subjected to the most
searching judicial examination of strict scrutiny. Only by applying
7la
strict scrutiny can the judicial branch assure society that the
important individual rights protected by the Fourteenth Amendment
have not been unnecessarily and unfairly burdened solely as a
function of the color of an individual's skin. The judicial branch
must carefully and honestly assess the harm to those individual
rights in light of the compelling interests served and benefit
bestowed upon society by the affirmative action program. To do
otherwise would do little more than, in the words of Justice
Kennedy, move us from "separate but equal" to "unequal but
benign." Metro Broadcasting, __ U.S. at __. 1108S. Ct. at 3047
(Kennedy, J., dissenting).
Further, if we wish to progress to a society in which affirmative
action is no longer necessary, we must be cognizant of pitfalls and
dangers created by affirmative action in the form of the stigma
some associate with racial preferences and the potential
institutionalization of a process that was designed to overcome
institutionalized discrimination. The interests of all require that the
government not diminish the importance of individual rights,
whether belonging to a minority citizen or a nonminority citizen,
through programs, that although well-intentioned, unwittingly
"permit the seeds of race hate to be planted unde: sanction of law."
Plessy v. Ferguson, 163 U.S. 537, 560, 16S. Ct. 1138, 1147 (1896)
(Harlan, J., dissenting).
The Court realizes that some individuals will continue to
complain that any admissions program employing preferences
based on race, no matter how carefully designed and administered
to provide individualized consideration, deprives nonminorities of
their rights. However, when the program functions to overcome the
effects of years of discrimination and to serve important societal
goals, affirmative action "is consistent with equal protection
principles as long as it does not impose undue burdens on
nonminorities." Metro Broadcasting, ___ US. at ee oe
at 3026. The Court believes the only way of assuring an undue
burden is not placed on innocent parties in an admissions procedure
72a
is to treat all applicants as individuals and to consider al/
qualifications in selecting the best qualified candidates to comprise
an entering class. Using the color of an applicant's skin to limit the
degree of individual comparison between the races neither serves
societal goals nor sufficiently protects individual rights under our
Constitution.”
SIGNED on this the 19th day of August 1994.
/s/ Sam Sparks
UNITED STATES DISTRICT JUDGE
*!"The hand that rounded Peter's dome,/ And groined the aisles
of Christian Rome,/ Wrought in a sad sincerity./ He builded
better than he knew!”
Those who devised the Fourteenth Amendment wrought in grave
sincerity. They may have builded better than they knew.
They vitalized and energized a principle, as old and as
everlasting as human rights. To some of them, the sunset of life
may have given mystical lore.
They builded, not for a day, but for all time; not for a few, or for
a race; but for man. They planted in the Constitution a
monumental truth . . . the golden rule.
Roscoe Conkling, Oral Argument in County of San Mateo v. Southern
_ Pacific R.R., 116 U.S. 138, 6 S. Ct. 317 (1885), in Oral Argument on
Behalf of Defendant by Roscoe Conkling 34 (1883).
73a
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-50569
CHERYL J. HOPWOOD, et al.,
Plaintiffs-Appellees,
VERSUS
STATE OF TEXAS, et al.,
Defendants-Appellees,
VERSUS
THURGOOD MARSHALL LEGAL SOCIETY
and
BLACK PRE-LAW ASSOCIATION,
Movants-A ppellants.
hha aL ELLLLLLLLL TTT TT Ter errr ee eee
DOUGLAS CARVELL, ET AL.,
Plaintiffs-A ppellees,
VERSUS
STATE OF TEXAS, ET AL..
Defendants-Appellees,
VERSUS
THURGOOD MARSHALL LEGAL SOCIETY,
AND BLACK PRE-LAW ASSOCIATION,
Movants-Appellants.
No. 94-50664
CHERYL J. Hopwood, et al.,
Plaintiffs,
74a
CHERYL J. HOPWOOD, et al.,
Plaintiffs-Appellants,
VERSUS
STATE OF TEXAS, et al.,
Defendants-Appellees.
KKKKEEEEEEEEEEE EERE EREEEREEEEERERE
DOUGLAS CARVELL, ET AL.,
Plaintiffs,
DOUGLAS CARVELL,
Plaintiff-Appellant,
VERSUS
STATE OF TEXAS, ET AL.,
Defendants-Appellees.
Appeals from the United States District Court
for the Western District of Texas
March 18, 1996
Before SMITH, WIENER and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
With the best of intentions, in order to increase the enrollment
of certain favored classes of minority students, the University of
Texas School of Law ("the law school") discriminates in favor of
those applicants by giving substantial racial preferences in its
admissions program. The beneficiaries of this system are blacks
and Mexican Americans, to the detriment of whites and non-
preferred minorities. The question we decide today in No. 94-
50664 is whether the Fourteenth Amendment permits the school to
discriminate in this way.
75a
We hold that it does not. The law school has presented no
compelling justification, under the Fourteenth Amendment or
Supreme Court precedent, that allows it to continue to elevate some
races Over others, even for the wholesome purpose of correcting
perceived racial imbalance in the student body. "Racial preferences
appear to ‘even the score’. . . only if one embraces the proposition
that our society is appropriately viewed as divided into races,
making it right that an injustice rendered in the past to a black man
should be compensated for by discriminating against a white." C ity
of Richmond v. J.A. Croson C. 0., 488 U.S. 469, 528 (1989) (Scalia,
J., concurring in the judgment).
As a result of its diligent efforts in this case, the district court
concluded that the law school may continue to impose racial
preferences. See Hopwood v. Texas. 861 F. Supp. 551 (W.D. Tex.
1994). In No. 94-50664, we reverse and remand, concluding that
the law school may not use race as a factor in law school
admissions. Further, we instruct the court to reconsider the issue of
damages in accordance with the legal standards we now explain. In
No. 94- 50569, regarding the denial of intervention by two black
student groups, we dismiss the appeal for want of jurisdiction.
I.
A.
The University of Texas School of Law is one of the nation's
leading law schools, consistently ranking in the top twenty. See,
e.g., America's Best Graduate Schools, U.S. News & World Report
Mar. 20, 1995, at 84 (national Survey ranking of seventeenth).
Accordingly, admission to the law school is fiercely competitive,
with over 4,000 applicants a year competing to be among the
approximately 900 offered admission to achieve an entering class
of about 500 students. Many of these applicants have some of the
highest grades and test scores in the country.
76a
Numbers are therefore paramount for admission. In the early
1990's, the law school largely based its initial admissions decisions
upon an applicant's so- called Texas Index ("TI") number, a
composite of undergraduate grade point average ("GPA") and Law
School Aptitude Test ("LSAT") score.’ The law school used this
number as a matter of administrative convenience in order to rank
candidates and to predict, roughly, one's probability of success in
law school. Moreover, the law school relied heavily upon such
numbers to estimate the number of offers of admission it needed to
make in order to fill its first- year class.
Of course, the law school did not rely upon numbers alone. The
admissions office necessarily exercised judgment in interpreting the
individual scores of applicants, taking into consideration factors
such as the strength of a student's undergraduate education, the
- difficulty of his major, and significant trends in his own grades and
the undergraduate grades at his respective college (such as grade
inflation). Admissions personnel also considered what qualities
each applicant might bring to his law school class. Thus, the law
school could consider an applicant's background, life experiences,
and outlook. Not surprisingly, these hard-to-quantify factors were
especially significant for marginal candidates.”
'The formulae were written by the Law School Data Assembly
Service according to a prediction derived from the success of first-year
students in preceding years. As the LSAT was determined to be a better
predictor of success in law school, the formulae for the class entering in
1992 accorded an approximate 60% weight to LSAT scores and 40% to
GPA. The formula for students with a three-digit LSAT, see infra note
5, was calculated as: LSAT +(10)(GPA)=TI. For students with a two-
digit LSAT, the formula was: (1.25) LSAT + (10) GPA = TI.
*Notably, but of less significance to this appeal, residency also had
a strong, if not often determinant, effect. Under Texas law in 1992, the
law school was limited to a class of 15% non-residents, and the Board of
77a
Because of the large number of applicants and potential
admissions factors, the TI's administrative usefulness was its ability
to sort candidates. For the class entering in 1992--the admissions
group at issue in this case--the law school placed the typical
applicant in one of three categories according to his TI scores:
"presumptive admit," “presumptive deny," or a middle
"discretionary zone." An applicant's TI category determined how
extensive a review his application would receive.
Most, but not all, applicants in the presumptive admit category
received offers of admission with little review. Professor Stanley
Johanson, the Chairman of the Admissions Committee, or Dean
Laquita Hamilton, the Assistant Dean for Admissions, reviewed
these files and downgraded only five to ten percent to the
discretionary zone because of weaknesses in their applications,
generally a noncompetitive major or a weak undergraduate
education.
Applicants in the presumptive denial category also received
little consideration. Similarly, these files would be reviewed by one
or two professors, who could upgrade them if they believed that the
TI score did not adequately reflect potential to compete at the law
school. Otherwise, the applicant was rejected.
Applications in the middle range were subjected to the most
extensive scrutiny. For all applicants other than blacks and
Mexican Americans, the files were bundled into stacks of thirty,
which were given to admissions subcommittees consisting of three
members of the full admissions committee. Each subcommittee
member, in reviewing the thirty files, could cast a number of votes--
Regents required an entering class of at least 500 students. The law
school therefore had to monitor offers to non-residents carefully, in order
not to exceed this quota, while at the same time maintaining an entering
class of a manageable size.
78a
typically from nine to eleven’--among the thirty files. Subject to
the chairman's veto, if a candidate received two or three votes, he
received an offer; if he garnered one vote, he was put on the waiting
list; those with no votes were denied admission.
Blacks and Mexican Americans were treated differently from
Other candidates, however. First, compared to whites and non-
preferred minorities,’ the TI ranges that were used to place them
into the three admissions categories were lowered to allow the law
school to consider and admit more of them. In March 1992, for
example, the presumptive TI admission score for resident whites
and non-preferred minorities was 199.° Mexican Americans and
‘The number of votes would change over the course of the
admissions season in order to achieve the appropriate number of offers.
~*As blacks and Mexican Americans were the only two minority
categories granted preferential treatment in admissions, it is inaccurate
to say that the law school conducted separate admissions programs for
"minorities" and "non-minorities." While the law school application
form segregated racial and ethnic classification into seven categories—
"Black/African American," "Native American," "Asian American,”
"Mexican American," "Other Hispanic" (meaning non-Mexican descent),
"White," and "Other (describe)"—only American blacks and Mexican
Americans received the benefit of the separate admiissions track. Thus,
for example, the law school decided that a black citizen of Nigeria would
not get preferential treatment, but a resident alien from Mexico, who
resided in Texas, would. Likewise, Asians, American Indians,
Americans from El Salvador and Cuba, and many others did not receive
a preference. It is important to keep the composition of these categories
in mind. For the sake of simplicity and readability, however, we
sometimes will refer to two broad categories: "whites" (meaning Texas
residents who were whites and non-preferred minorities) and "minorities"
(meaning Mexican Americans and black Americans).
‘Because of a recent change in the grading scale of the LSAT, the law
school in 1992 had applicants who had taken an earlier LSAT scored on
79a
blacks needed a TI of only 189 to be presumptively admitted.° The
difference in the presumptive-deny ranges is even more striking.
The presumptive denial score for "nonminorities" was 192: the
same score for blacks and Mexican Americans was 179.
While these cold numbers may speak little to those unfamiliar
with the pool of applicants, the results demonstrate that the
difference in the two ranges was dramatic. According to the law
school, 1992 resident white applicants had a mean GPA of 3.53 and
an LSAT of 164. Mexican Americans scored 3.27 and 158; blacks
scored 3.25 and 157. The category of "other minority" achieved a
~ 3.56 and 160.’
a 10-to-48 scale and others who had taken a later one scored on a 120-to-
180 scale. Equivalence calculations were used to compare scores
received on the two scales. For example, TI numbers of 199 (three-digit
LSAT) and 87 (two-digit LSAT) were equivalent. For the sake of
simplicity, we use three-digit numbers throughout this opinion. —--
"In March 1992, the nesident Mexican American and black
presumptive admit lines were in parity, but they had not started that way.
The initial presumptive admit TI's were 196 for Mexican Americans and
192 for blacks. Thus, initially, blacks received preferential treatment
over Mexican Americans by having a lower hurdle to cross to getintothe
discretionary zone. In March, Professor Johanson lowered the Mexican
American TI in order to admit more of this group.
’The median scores of the 1992 class are as follows:
Ethnicity Resident Nonresident
GPA/LSAT GPA/LSAT a
All students 3.52/162 3.61/164
White 3.56/164 3.72/166
Black 3.30/158 3.30/156
Mexican American 3.24/157 3.38/174*
Other minority 3.58/160 3.77/157
80a
These disparate standards greatly affected a candidate's chance
of admission. For example, by March 1992, because the
presumptive denial score for whites was a TI of 192 or lower, and
the presumptive admit TI for minorities was 189 or higher, a
minority candidate with a TI of 189 or above almost certainly
would be admitted, even though his score was considerably below*
*Only two matriculated applicants.
In 1992, the LSAT's national distribution was approximately as follows:
LSAT Percentile 2-Digit LSAT
166 94% 43
164 91% 4]
162 88% 40
160 83% 39
158 78% 38
156 71% 36
On the basis of these percentiles, one-half of the law school's white
residen
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