Opposition Brief — Texas v. Hopwood

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Supreme Qeurt, US.

FILED

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) OFFICE OR THE CLERK

No. 00-1609 i _ as ane

IN THE

Supreme Court of the Hnited States

STATE OF TEXAS, et al.,

Petitioners,

Vv.

CHERYL J. HOPWOOD, et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Fifth Circuit

BRIEF FOR CHERYL J. HOPWOOD AND

DOUGLAS W. CARVELL IN OPPOSITION

DOUGLAS R. Cox

Counsel of Record

MICHAEL E. ROSMAN DANIEL W. NELSON

CENTER FOR INDIVIDUAL DAVID B. SALMONS

RIGHTS JEFFREY A. WADSWORTH

1233 Twentieth Street, N.W. GIBSON, DUNN & CRUTCHER LLP

Suite 300 1050 Connecticut Avenue, N.W.

Washington, D.C. 20062 Washington, D.C. 20036

(202) 833-8400 (202) 955-8500

Counsel for Respondents

Hopwood and Carvell

QUESTIONS PRESENTED

1. Whether the University of Texas School of

Law’s 1992 admissions policy, in which it discriminated

on the basis of race, was nevertheless justified in order

to remedy the effects of past societal discrimination in

the State of Texas or to achieve racial diversity.

2.a. Whether the Fifth Circuit’s 1996 holding in this

case is now appropriate for review in this Court; and

2.b. Whether the district court’s award of attorneys’

fees was reasonable in light of the Fifth Circuit’s 1996

decision.

TABLE OF CONTENTS

QUESTIONS PREBOe ree cscisinsnsinicstcednaisasnianeidetnisteiie i

TABLE GF COG ERG E op siniicssiincccsimeetnnesennincailinesiiapianss ii

TABLE OF AUTHOR TEES issessssscteccocescesssonsesssecnetees iv

IN TRODIUC TIGIN cuisnsnassncskatsonthncscieniuagsiiaiinaieasatenseniden l

STA TEEDMEINY .:snnirscisinsssneieesaniaseiaienieanamiiiaamaniaieamasmaiiiin 2

A. The Unconstitutionality Of The Law

School’s 1992 Admissions Policy.................0++ 2

B. Procondiiaggs Tab ocsnississasessecssmnsoseventecnsssmuctes 4

OQ WOO A .xcnsnssssssaniasensnppeseemmnainioninaanmaainetins 4

Hag U0 ..ccisnsssssexsrinnsiintneeitiinannaanainnaaiatin 5

This Court’s 1996 Denial of Certiorari ............. 6

Flap BB ..uiessssassarsinnviasissemmmninenenaneniaaninatns 6

Hopwood EIT ....1.:s0:.sssssssssnsacensessenbeonsensassseseneieees 7

REASONS FOR DENYING THE WRIT ............ccc0ee000 8

A. This Case Is Less Appropriate For

Review Today Than It Was Five Years

ABO ...000<ssesnnsesensaatansiadansnassoqneonemmeeanenieonenseesesasie 8

B. The Decision Below Does Not Conflict

With Any Of This Court’s Decisions.............. 13

1. The Court Of Appeals Was Faithful

To The Holding In Bakke .............ss0esse00 13

2. The Court Of Appeals Properly

Applied This Court’s Precedents To

Conclude That The Law School’s

Admissions Policy Was Not A

Constitutional Means Of Remedying

Past Discrimination. ................sccssesceseesesees 18

TABLE OF CONTENTS

(Continued)

C. There Is Nothing Peculiar About The

Holdings Of Hopwood II Or Hopwood III

That Requires Further Review ...............+++

1. Hopwood II Was Never Improperly

“Insulated” From Further Review ........

2. Respondents’ Receipt Of Attorneys’

Fees Was Entirely Justified And Is

Not A Basis To Support This Court’s

SII 01 <sditaienctinsitpalinabiaeneiacbaiainiahintiiod

COINCLIU SION ...220cccccecccoccscccscccscccccccssccsssscecssoossoeseoes

TABLE OF AUTHORITIES

CASES - Page(s)

Adarand Constructors, Inc. v. Pena, 515 U.S.

EE siieiicssisipinsititiiiananaiidenlinpiiasiiasiainiacaiias 16, 17, 20

Arizonans for Official English v. Arizona, 520

a Ce I I ielieentchats sciatica isidalelsbenieiniai 25

Brewer v. West Irondequoit Cent. Sch. Dist., 212

Ses Re as AUNT daadiatisnsnicieanih asceansbecncinsuniniiinatinishndies 21

Carson v. American Brands, Inc., 450 U.S. 79

CIID wianseaischiaitiasichialenitcitcnitasi Saadaapieiblacatintbakintineisanaiaiia 11

City News & Novelty, Inc. v. City of Waukesha,

Se ee GR. Fae CED ricceniestesihinicnnepintneninntiinienas 24, 25

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)............ 24, 25

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

INT cnciisisicecisinenteatcediiaicaiaadeesidaainiibigiinniduiataneiil passiin

Eisenberg v. Montgomery County Pub. Sch., 197

F.3d 123 (4th Cir. 1999), cert. denied, 529

Ris. TUNE” GUI iccieeisinnnsethchnicteshiitdtnaicesieibasainincisntaatiniemcinesigs 15

Farrar v. Hobby, 506 U.S. 103 (1992)............eccseceseeseee 27, 28

Fullilove v. Klutznick, 448 U.S. 448 (1980)...............:eeseees 17

Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D.

SD UNCED sininielndesthgehailicetlispeiiciiieteanionsseisiinihaspinioeh 15,22

Gratz v. Bollinger, 2001 U.S. Dist. LEXIS 4457

CAs SE Fs a ee Bh ciiiciiseentninstiniensincivsiintinninsntonanni 22

Grutter v. Bollinger, 2001 U.S. Dist. LEXIS

3256 (ED. Daioh. Mar. 27, ZOB1)......ccccsscsseressescesscssecssss 22

Hewitt v. Helms, 482 U.S. 755 (1987)..........:ccccccccssceserseeeees 28

TABLE OF AUTHORITIES—Continued

Page(s)

Hirabayashi v. United States, 320 U.S. 81

CT UED sensisntennacotsecsnsninsiisdasmanaistiniansiissnanesiaddedinisidanasiadaiiiian 17

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

(1990), overruled by, Adarand Constructors,

Inc. v. Pena, 515 U.S. 200 (1995).......... assntniniaaannalesanion 16

Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977).....cccccccscsscsesescercsseesenceeee 26, 27

Regents of the Univ. of California v. Bakke, 438

Ch. Be Coe secissicennsniieadabanisineiaadaiaanaibeinitaiag passim

Quern v. Jordan, 440 U.S. 332 (1979) ........ssccsscssessseeceesees 27

Smith v. Univ. of Washington Law Sch., 233

F.3d 1188 (9th Cir. 2000), petition for cert.

filed, 69 U.S.L-W. 3593 (U.S. Feb. 21, 2001)

CR GIP GED ecsvicinsestessenniaiicascciiivicianilinaiaitahiainiaiianesisiaal 12, 15

Sweatt v. Painter, 339 U.S. 629 (1950)..............sccssccesereeeeees 21

Texas v. Hopwood, 518 U.S. 1033 (1996)...........0-00++ 1, 6, 11

Texas v. Lesage, 528 U.S. 18: (1999).........cc.ccccccssceressesesescses 26

United States v. Fordice, 505 U.S. 717 (1992) ....9, 10, 20, 21

United States v. Munsingwear, Inc., 340 U.S. 36

CETTE sissinscsessitninieiiutinsiiiamieiaioniniphaciaiidiaeieaieaanaiian 25

Wessman v. Gittens, 160 F.3d 790 (1st Cir.

Ue cisecsessichetitebeisi hapa diceaacddtih leila calilaid ciiaa Neate 15

Wooden v. Bd. of Regents of the Univ. System of

Georgia, 2001 U.S. App. LEXIS 7159 (11th

Cae FAIRE BR PO si ecsisenccnitcsacasitansiiniccicheiehiieiliaiiiinetaiaiaiana 26

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

PIED snciciccsnistunindiertsspntinisiianttndmainnnteanind 17, 18, 19, 20, 21

TABLE OF AUTHORITIES—Continued

Page(s)

Statutes

42 U.B.C. § 196 BQD)....ccccccccscccsccoccccscsscsscossescscsssssscssssoosees 27, 28

BRIEF FOR CHERYL J. HOPWOOD AND

DOUGLAS W. CARVELL IN OPPOSITION

Respondents Cheryl J. Hopwood and Douglas W.

Carvell (“respondents”) respectfully submit this brief in

opposition to the petition for a writ of certiorari.

INTRODUCTION

This marks the second time in five years that peti-

tioners have asked this Court to issue an advisory opin-

ion, addressing petitioners’ use in 1992 of race-based

decisionmaking in law school admissions in order to se-

cure “target” numbers of African American and Mexi-

can American enrollees. This Court denied a substan-

tially similar petition for certiorari in this case in 1996.

Nonetheless, petitioners again ask this Court to review

the circuit court’s 1996 opinion by resurrecting and re-

packaging the same, stale arguments that this Court con-

sidered in denying certiorari in 1996.

In 1996, two Members of this Court offered their

views of the fatal flaws in this case that make it i

priate for this Court’s review: “petitioners do not defend

[the 1992 admissions policy] in this Court” and the

Court “must await a final judgment on a program genu-

inely in controversy before addressing” the issue of ra-

cial preferences in higher education admissions. Texas

v. Hopwood, 518 U.S. 1033, 1034 (1996) (Ginsburg, J.,

respecting the denial of the petition for certiorari; joined

by Souter, J.) (emphasis added). Despite this caution

from two Justices, petitioners stubbornly ignore what is

plain: there is still no such “program genuinely in con-

troversy” in this case. Nothing that has taken place

since this Court’s 1996 denial of certiorari has altered

the then-existiug deficiencies in the petition and in the

underlying record, nor rendered this case worthy of re-

view by this Court now. See id. (quoting from petition-

ers’ 1996 Reply, which “‘concede[d]’” that the “‘record

is inadequate to assess definitively’ the constitutionality

of the law school’s current consideration of race in its

admissions process”).!

Following this Court’s denial of certiorari in 1996,

the parties returned to the district court, as required by

the Fifth Circuit’s 1996 decision. In light of that deci-

sion’s clear statement of the law, and the Fifth Circuit’s

faith that petitioners would adhere to the law, respon-

dents did not seek a Rule 65 injunction on remand, and

the proceedings during the remand trial were limited

solely to issues of causation and money damages arising

out of the 1992 admissions process, and the amount of

respondents’ attorneys’ fees. Accordingly, while re-

spondents do not dispute that preventing public universi-

ties from applying unconstitutional, racially discrimina-

tory admissions policies is an issue of national impor-

tance, this case continues to be an inadequate and im-

proper vehicle for this Court to address that issue.

STATEMENT

A. The Unconstitutionality Of The Law School’s

1992 Admissions Policy

All agree that no system of de jure discrimination

has existed in the State of Texas for more than fifty

years and no form of racial discrimination—other than

the preferences in admissions for African Americans and

Mexican Americans—has existed at the law school since

the 1960s. Pet. App. 116a; 6a.

It is equally undisputed that the law school’s 1992

admissions policy—the subject of this litigation—

unconstitutionally discriminated against respondents on

the basis of race. See Pet. App. 67a (district court hold-

ing policy unconstitutional); Pet. 6 (petitioners acknowl-

edging that they declined to appeal that ruling); Pet.

App. 136a (court of appeals confirming that admissions

1 Copies of petitioners’ 1996 petition and reply brief have

been lodged with the Court.

program was unconstitutional).2 That policy gave fa-

vored treatment to two and only two racially preferred

groups, African Americans and Mexican Americans.3

The preferential treatment was not limited to those ap-

plicants who were residents of Texas; nor was it limited

to those students who had attended public school in

Texas. Jd. at 19a n.22; 112a.

Applicants from the two preferred groups were spe-

cially reviewed by a separate “minority” subcommittee

charged with the goal of “‘recommend[ing] sufficient

candidates for admission to achieve a class that was 5%

Black and 10% [Mexican American].’” Jd. at 17a. The

results of this system were “virtually indistinguishable

from quotas.” Jd. at 146a-147a (Wiener, J., concur-

ring). Admissions standards for these two preferred mi-

nority groups were substantially lower and often played

a determinative role in admissions decisions.

Indeed, under the Texas Index system used to sort

applicants, the district court found that “the presumptive

denial score for nonminorities was higher than the pre-

sumptive admission score for minorities.” Jd. at 2la

(emphases added). The law school also segregated ap-

plications in other ways, including color-coding them.

according to the applicant’s race. Jd. at 8la. Those

applicants that fell into a discretionary admit category

2 Contrary to petitioners’ suggestion that the law school

was directed by the Department of Education’s Office for

Civil Rights to establish the unconstitutional admissions pol-

icy, Pet. 4, the district court specifically found in 1994 that

the law school “voluntarily” adopted its race-driven system,

Pet. App. 36a n.53, and the court of appeals reiterated this

finding in 1996, id. at 119a. F

3 The law school’s unconstitutional admissions policy thus

did not purport to apply to all “minorities,” and other racially

identifiable minority groups, such as Native Americans or

Cuban Americans, did not benefit from any special consid-

eration.

were evaluated under separate procedures, and by sepa-

rate admissions committees, based on their race. Jd. at

21a-22a.

B. Proceedings Below

Hopwood A‘

Respondents were residents of the State of Texas

who did not belong to either of the two preferred racial

groups and who were denied admission to the law

school in 1992.

The district court concluded in 1994 that the law

school unlawfully discriminated against respondents on

the basis of their race. Despite the district court’s view

that petitioners could justify their use of racial prefer-

ences in admissions in order to remedy past discrimina-

tion in Texas’s educational system and to achieve diver-

sity, it held that the 1992 policy “was not narrowly tai-

lored” to meeting those objectives because of the “sepa-

rate evaluative processes” employed for preferred and

nonpreferred racial groups. Jd. at 58a-60a, 67a.

Although the district court declared that petitioners

violated respondents’ constitutional rights to equal

treatment, it declined to order respondents’ admission to

the law school or to issue prospective injunctive relief

because the law school had changed its admissions pol-

icy since the time the suit had been brought and—

significantly—there was no “evidence of the practical

application of the new procedure... before” the court.

Id. at 67a-68a. Instead, the court ordered that respon-

dents could reapply to the law school without further

charge. The court also awarded respondents nominal

damages of one dollar each, in recognition of “the grav-

ity of the noneconomic injury to persons denied equal

4 Respondents will use the same terms used by petitioners

to refer to the opinions in the lower courts. Pet. 2.

treatment” and “the importance to organized society that

those rights be scrupulously observed.” Id. at 69a.°

Hopwood II

Petitioners did not appeal the 1994 Hopwood A

holding that they had violated respondents’ constitu-

tional rights.

Respondents, however, appealed the district court’s

failure to award further individual relief and its holding

that racial preferences could be used to achieve “diver-

sity” or to address past societal discrimination. The

court of appeals, following this Court’s precedents, re-

versed the district court in these respects and provided a

clear statement of the relevant legal principles governing

the use of racial preferences in law school admissions.

Specifically, the court of appeals held that the Constitu-

tion precluded the use of race as a factor in admissions

for the purpose of

(1) obtaining a diverse student body; (2) altering

the school’s reputation in the community; (3)

combating the school’s perceived hostile envi-

ronment toward minorities; or (4) remedying the

present effects of past discrimination by actors

other than the law school.

Id. at 129a. The court also concluded in 1996 that, in

light of its clear holding and its belief that petitioners

would adhere to the law, it was not necessary “to order

at this time that the law school be enjoined.” Jd.

In addition, the court of appeals held that the district

court had improperly assigned the burden of proof to re-

5 Petitioners now seek to minimize the district court’s rul-

ing as merely “invalidat[ing] certain details of the law

school’s 1992 admissions program,” Pet. 6, but it cannot be

disputed that the district court held that petitioners’ program

violated the Fourteenth Amendment to the Constitution of

the United States. Pet. App. 59a-60a.

spondents on the issue of whether they would have been

admitted to the law school under a constitutional admis-

sions policy. Consequently, the court of appeals re-

manded the case to the district court for a determination

of whether respondents were entitled to additional indi-

vidual relief (i.e., money damages and/or an order of

immediate admission to the law school) under a proper

application of the burden of proof. Jd. at 125a-126a.

Finally,-in a separate order, the court of appeals va-

cated the district court’s denial of respondents’ re-

quested attorneys’ fees and instructed the district court

to award respondents their reasonable attorneys’ fees on

remand. /d. at 309a n.81.

This Court’s 1996 Denial of Certiorari

Petitioners sought review of the Hopwood II deci-

sion in this Court, and that petition was denied on July 1,

1996. Justice Ginsburg, joined by Justice Souter, pro-

vided an opinion concerning the denial, in which she

explained that given petitioners’ disavowal of the 1992

admissions policy’s constitutionality and the fact that no

other policy was “genuinely in controversy,” this

_ Court’s review was unwarranted. Texas v. Hopwood,

518 US. at 1034.

Hopwood B

On remand, the district court heard evidence con-

cerning whether respondents would have been admitted

under a constitutional admissions system and the amount

of respondents’ money damages caused by the discrimi-

natory admissions system and the passage of time. No

evidence was presented whether, following the circuit

court’s clear statement of the law concerning the use of

race in admissions, an injunction should be entered

against the law school.

The district court determined that respondents

would not have gained admission to the law school in

1992 even if the law school had employed a policy that

did not unlawfully discriminate on the basis of race.

The district court also considered, as instructed by the

court of appeals, the proper amount of attorneys’ fees to

award respondents. Pet. App. 309a n.81. Although it

substantially reduced the requested attorneys’ fees, the

district court found that respondents “attained extraordi-

nary success” and “accomplished the principal goal of

the lawsuit,” and it awarded $775,760.31 in fees and

costs. Jd. at 252a. The court reaffirmed its award of one

dollar each in nominal damages, but awarded respon-

dents no additional money damages.

Finally, the district court sua sponte entered a

broadly worded injunction against the law school, Pet.

App. 270a, despite the Fifth Circuit’s conclusion that an

injunction was not necessary and the fact that respon-

dents did not renew their request for an injunction

against the law school on remand. The district court

made no factual findings to support its injunction, as re-

quired by Federal Rule of Civil Procedure 52(a).

Hopwood IIT

Both sides appealed the district court’s rulings. Al-

though petitioners sought en banc review in the first in-

stance, the court of appeals rejected their petition and

the case was heard by a three-judge panel. In an opinion

issued by Judges Wiener and Stewart, and joined by

Judge Little sitting by designation, the court of appeals

affirmed the district court’s finding that respondents

would not have been admitted to the law school under a

race-blind admissions policy and affirmed the district

court’s award of attorneys’ fees, concluding that the fee

award was legally justified under this Court’s precedents

and the amount awarded was not an abuse of discretion.

Pet. App. 298a, 310a-311la, 317a. The court applied the

law-of-the-case doctrine and rejected petitioners’ argu-

ment that the constitutional issues decided in Hopwood

IT were wrongly decided. The court also reiterated that

the Hopwood II decision was consistent with Regents of

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

and that nothing in Hopwood II conflicted with any con-

trolling precedent from this Court. Pet. App. 30la,

305a.

Finally, the court of appeals reversed the district

court’s sua sponte injunction because it lacked any sup-

porting factual findings or conclusions of law and be-

cause the district court’s injunction was in square con-

flict roe this Court’s holding in Bakke. Pet. App. 306a-

307a.

Both sides petitioned for rehearing en banc. Both

petitions were denied on January 17, 2001.

REASONS FOR DENYING THE WRIT

A. This Case Is Less Appropriate For Review |

Today Than It Was Five Years Ago :

Five years ago, petitioners asked this Court to re-

view six questions allegedly raised by Hopwood II. This )

. Court declined to grant certiorari. Today, petitioners re- |

turn to “challenge the judgment of the court of appeals ;

reaffirming [that] court’s [1996] ‘judicial instruction.’”

Pet. 23. Petitioners present questions that, fundamen- :

tally, are simply repackaged versions of the questions ;

presented in their prior petition.’ ;

6 Respondents did not defend the sua sponte injunction on

appeal because (i) respondents concurred with the circuit

courts’ view in Hopwood II that an injunction was not neces-

sary given that decision’s clear guidance, (ii) the district

court’s injunction was inconsistent with this Court’s holding

in Bakke, and (iii) the injunction indisputably lacked the fac-

tual findings required by Rule 52(a). Simply put, the sua

sponte injunction was indefensible.

7 The only even arguably new issue that petitioners present

is whether the district court’s award of attorneys’ fees was

proper. As the court of appeals noted in affirming that

award, respondents were plainly entitled to attorneys’ fees as

heiaaiicadiia aida

Petitioners again rely on their claim that the Hop-

wood II panel erred in its 1996 determination that the

law school violated the Constitution in its use of racial

classifications in admissions decisions. Petitioners do

not contend that there has been an intervening change in

the relevant law since 1996. Instead, the centerpiece of

petitioners’ arguments continues to be their patently in-

correct assertion that the Hopwood II decision is some-

how in direct conflict with Bakke. Compare Pet. 9-10

with 1996 Pet. 12-13. As discussed in more detail be-

low, however, the circuit court’s decision was fully con-

sistent with what petitioners acknowledge is the holding

in Bakke, and that fact has remained unchanged since

1996. Pet. 9; see infra.

Petitioners also attempt to justify the need for this

Court’s review by arguing that Hopwood II's holding

conflicts with this Court’s decisions in City of Richmond

v. J.A. Croson Co., 488 U.S. 469 (1989), and United

States v. Fordice, 505 U.S. 717 (1992). Pet. 14-16.

Both of these decisions were well established in 1996

when petitioners first sought this Court’s review, and pe-

titioners made essentially identical arguments then—

indeed, petitioners included a specific “question” di-

rected to the Fordice opinion in their prior petition. See

a matter of law, and the district court did not abuse its discre-

tion in determining the amount of fees to award. See infra.

8 Petitioners complain that they are frustrated with the du-

ration of this litigation. See Pet. 22 (“It has taken this case

nine years to get here.”). It is respondents whose constitu-

tional rights were violated, and whose lives and careers have

been disrupted and delayed while petitioners attempt at every

turn to re-litigate the issues they lost in 1996. That Texas—

having admitted it unlawfully discriminated against respon-

dents on the basis of race—still seeks to postpone the indi-

vidual relief awarded to respondents is striking and offensive.

And in any event, of course, it took four years for this case

“to get here” and this Court denied certiorari at that time.

1996 Pet. 16-17, 20-21. As described more fully below,

the 1996 Hopwood II decision was (and continues to be)

fully in accord with Croson and Fordice. .

Petitioners seek to manufacture a “new” issue by

suggesting that in 1996 this Court misunderstood the na-

ture of Hopwood IIs so-called “judicial instruction” in

which it stated the clear rule of law as to when racial

classifications in an admissions system could and could

not be constitutionally employed. Pet. 29 (this Court

“had every reason to expect that either the judgment be-

low had not attempted to grant prospective relief or that,

if it had, the courts below would promptly embody that

prospective relief in a properly appealable injunction or

declaratory judgment”). Petitioners’ effort misses the

mark entirely.

The Hopwood II court could not have been more

clear in its view that a formal injunction was unneces-

sary. Pet. App. 129a (“It is not necessary ... for us to

order at this time that the law school be enjoined, as we

are confident that the conscientious administration at the

[law] school, as well as its attorneys, will heed the direc-

tives contained in this opinion.”). Thus, in 1996 there

was no reason (not petitioners’ “every reason” (Pet. 29))

for this Court to believe that a Rule 65 injunction would

be forthcoming from the courts below. Moreover, how-

ever petitioners may characterize the “judicial instruc-

tion,” they clearly understand it and have been comply-

ing with it. Pet. 24 (noting that petitioners “have com-

plied [with Hopwood II] for five years and will continue

to a so” unless that decision is overturned or super-

seded).

As petitioners elsewhere recognize, the Hopwood II

opinion contained “a clear directive from the federal

courts,” Pet. 22, that was “stated, three times, with all

the precision of an injunction or declaratory judgment.”

Id. at 24. Presumably, this Court considered that

“clear,” “precise,” and thrice-stated “directive” in 1996.

Petitioners now concede that the circuit court’s 1996 de-

cision clearly stated the law and they assert that the “ju-

dicial instruction” is reviewable by this Court. Jd. at 22,

26. Of course, the 1996 “judicial instruction” has not

suddenly become reviewable; the Hopwood II decision

was fully reviewable in 1996.

The driving force behind petitioners’ claim that this

Court misunderstood the Hopwood II decision seems to

be petitioners’ interpretation of Justice Ginsburg’s opin-

ion regarding the denial of certiorari in 1996. Pet. 22;

Texas v. Hopwood, 518 U.S. 1033 (1996). Apparently,

petitioners are of the view that this Court denied certio-

rari in this case in 1996 because the “judicial instruc-

tion” was not in the form of an injunction.? Respon-

dents are reluctant to over-interpret the one-paragraph

opinion provided by Justices Ginsburg and Souter.

Nonetheless, the crux of that opinion is that review was

inappropriate because there was no admissions policy in

controversy. See id. at 1034 (stating that the Court

“must await a final judgment on a program genuinely in

controversy”); see also id. (quoting from petitioners’

1996 Reply to explain that “‘[a]ll concede this record is

inadequate to assess definitively’ the constitutionality of

the law school’s current consideration of race in its ad-

missions process”). The record on this point is no dif-

ferent now than it was in 1996; there remains no evi-

dence concerning any admissions policy other than the

abandoned 1992 system.

Finally, petitioners invoke the development of cases

in other circuits that address the question of using racial

preferences in higher education admissions. Despite pe-

titioners’ protestations to the contrary, those cases ap-

pear to be better candidates for this Court’s considera-

9 As petitioners themselves acknowledge, however, “this

Court has recognized that form is not dispositive, and that

orders with all the practical consequences of an injunction

will support appellate jurisdiction.” Pet. 26 (citing Carson v.

American Brands, Inc., 450 U.S. 79, 83-84 (1981)).

tion of the use of race in admissions decisions—should

review be deemed appropriate at all—and those cases’

emergence in the years since this Court denied petition-

ers’ prior petition offers no reason for granting their

flawed petition now. Most fundamentally, these other

cases—unlike this case—have live controversies over

specific admissions policies. In Smith v. Univ. of Wash-

ington Law Sch., 233 F.3d 1188 (9th Cir. 2000), petition

for cert. filed, 69 U.S.L.W. 3593 (U.S. Feb. 21, 2001)

(No. 00-1341), for example, there remains an ongoing

controversy over the admissions policy at issue and the

law school continues to defend that policy. The an-

nouncement of decisions in Smith and othe ' cases in the

last several months may have brought the issue of racial

preferences in admissions to the fore, but that in no way

supports granting review of this case. 10

In sum, nothing that has transpired in the last five

years makes this case any more worthy of this Court’s

review now than it was in 1996. To the contrary, laws

enacted by the Texas Legislature since 1996 addressing

admissions procedures have made this case even less

appropriate for review. !!

10 On pages 18 through 20 of their brief, petitioners make a

host of unsubstantiated assertions about matters that are

wholly outside of the record in this case, including the con-

tention that because minority students who “approach or ap-

proximate but do not exceed the ever-rising threshold for

admission” to the law school are not being admitted, “the

pursuit of academic excellence” has been “abandon[ed].”

Pet. 18, 20. None of these baseless assertions has ever been

reviewed by a court.

11 According to petitioners, the legislature ‘seapeciliil to

Hopwood IT” by guaranteeing admission to any Texas public

university to those Texas high school students who graduate

in the top 10% of their class and by directing Texas universi-

ties to consider many admission factors, which petitioners

believe act as “proxies” for racial diversity. Pet. 19.

B. The Decision Below Does Not Conflict With

Any Of This Court’s Decisions

1. The Court Of Appeals Was Faithful To

The Holding In Bakke

Petitioners grossly misconstrue this Court’s holding

in Bakke, the Fifth Circuit’s interpretations of Bakke,

and its holdings in this case.

As they did in 1996, petitioners begin by properly

quoting, in its entirety, the only paragraph from Bakke’s

equal protection analysis that garnered five votes:

In enjoining petitioner from ever considering

the race of any applicant, however, the courts

below failed to recognize that the State has a

substantial interest that legiti ly may be

served by a properly devised admissions pro-

gram involving the competitive consideration of

race and ethnic origin. For this reason, so much

of the California court’s judgment as enjoins pe-

titioner from any consideration of the race of

any applicant must be reversed.

Pet. 9 (citing Bakke, 438 U.S. at 320 (Part V-C of the

opinion of Powell, J.) and id. at 328 (opinion of Bren-

nan, J., concurring in Part V-C along with three others));

1996 Pet. 12-13. Petitioners acknowledge that these two

sentences are “the holding in Bakke.” Pet. 9.

Shortly after recognizing the “holding” of Bakke,

however, petitioners engage in a classic sleight of hand

and condemn the court of appeals for failing to follow

the various “rationales” presented in Bakke, Pet. 9, and

for “reject[ing] Bakke’s authority as law.” Id. at 10.

Arguing that Bakke dictates that diversity in higher edu-

cation is a compelling government interest, petitioners

attack the Hopwood II opinion as inconsistent with this

notion. Throughout their discussion of Bakke’s diversity

rationale, however, petitioners are unable to cite to

Bakke to support their argument, opting instead to cite

lower court cases discussing Justice Powell’s lone opin-

ion on the diversity rationale. Jd. at 10-13.

Of course, both the Hopwood II and the Ho

IIT panels fully conformed to “the holding” in Bakke. Id.

at 9. Contrary to petitioners’ repeated distortions, the

court of appeals has not held that race could never be

considered in admissions. Jd. Instead, the Hopwood IJ

court considered the four justifications that the law

school proffered for its use of racial classifications in

admissions and concluded that none of them was consti-

tutionally adequate to justify the racially discriminatory

practices being employed. Pet. . 136a. As the cir-

cuit court’s discussion indicates, however, it did not

foreclose the use of race in all conceivable situations,

and in fact noted that if the law school itself had en-

gaged in past discrimination, the effects of which were

presently being felt, the law school could be justified in

remedying its own prior conduct. Jd. at 114a.!2

Were there any doubt about the Fifth Circuit’s faith-

stan te Delia the Hopwood III court's explicit de-

nunciation of the district court’s overly broad sua sponte

injunction should lay that doubt to rest. Although pe

tioners state that reversal of the injunction was

ily on procedural grounds,” Pet. 8, the Fifth Circuit was

quite clear that: “On its its face, the district court’s injunc-

tion impermissibly conflicts with the square holding in

Bakke.” Pet. App. 307a.

Petitioners spin their incorrect assertion that the

court of appeals rejected Bakke as authoritative law, into

the quite separate argument that other courts have em-

12 Petitioners contradict themselves on this point by assert-

ing that the court of appeals imposed a “blanket ibition

of any consideration of race in admissions,” Pet. 9, but rec-

ognizing two pages later that “the Fifth Circuit[] [held] that

consideration of race is limited to remedial interests.” Jd at

11.

Pa Ee ee ee

braced Justice Powell’s diversity rationale. Jd. at 11-13.

But as even petitioners acknowledge, most courts that

have considered the diversity rationale have simply

adopted the approach that Judge Wiener took in his

pao fd ro pepapren ‘ling assumed a that

iversity a compelling interest before striking

down a racial preference system on other grounds. See,

e.g., Eisenberg v. Montgomery County Pub. Sch., 197

F.3d 123, 130 (4th Cir. 1999), cert. denied, 529 U.S.

1019 (2000); Wessman v. Gittens, 160 F.3d 790, 796

(1st Cir. 1998). These courts thus did not endorse the

reasoning that petitioners press in their brief, i.e., that

Bakke requires the conclusion that diversity is a compel-

ling interest.

The only cases that petitioners cite to support their

position that diversity is a compelling interest are Smith

v. Univ. of Washington Law Sch., 233 F.3d 1188 (9th

Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3593

(U.S. Feb. 21, 2001) (No. 00-1341), and Gratz v. Bollin-

ger, 122 F. Supp. 2d 811 (E.D. Mich. 2000). And only

the Smith court concluded—erroneously—that Bakke

somehow mandated that conclusion. Compare Smith,

233 F.3d at 1200 (stitching together its conclusion with

the hypothesis that Justice Brennan (and Justices White,

Marshall, and Blackmun) “would have embraced [the

diversity rationale] if need be”) with Gratz, 122 F. Supp.

2d at 819, 822 (“It is clear that no five Justices in Bakke

expressly held that diversity was a compelling interest

under the Equal Protection Clause”; but nonetheless

concluding that Supreme Court precedent does not

“bar[]” finding that diversity could be compelling).

Without resorting to the type of guesswork that the

Ninth Circuit undertook in Smith, the conclusion that the

Fifth Circuit’s decision is somehow in “conflict with

Bakke,” as petitioners state, is erroneous. Pet. 9. As pe-

titioners’ quotation of “the holding” of Bakke makes

clear, Justice Powell’s diversity rationale is not included

in Part V-C of the Bakke decision, and thus is not bind-

ing precedent.

Moreover, even Justice Powell’s view of diversity

was far more complex than the simplistic, race-based

approach that the law school embraced in its 1992 ad-

missions policy. Justice Powell’s opinion did not state

that adding a target number of students from minority

ethnic groups would satisfy the state’s high burden in

justifying the use of racially discriminatory admissions

practices. Rather, he stated that an “admissions pro-

gram, focused solely on ethnic diversity, would hinder

rather than further attainment of genuine diversity.”

Bakke, 438 U.S. at 315 (opinion of Powell, J.). “Prefer-

ring members of any one group for no reason other than

race or ethnic origin is discrimination for its own sake.

This the Constitution forbids.” Jd. at 307. Yet the law

school’s use of racial preferences had the sole result of

increasing “facial diversity” not “true diversity,” Pet.

App. 147a (Wiener, J., concurring), and thus did not

conform even to Justice Powell’s concept of diversity.

Finally, no other decision from this Court has found

diversity to be a compelling state interest under strict

scrutiny analysis.13 Indeed, as four Members of this

Court have expressly stated: “Modern equal protection

doctrine has recognized only one such [compelling] in-

terest: remedying the effects of racial discrimination.”

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 612

(1990) (O’Connor, J., dissenting), overruled by, ’ Ada-

rand Constructors, Inc. v. Pena, 515 U.S. 200, 227

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

(1990), this Court applied intermediate scrutiny in determin-

ing that diversity in the ownership of broadcasting facilities

is an “important governmental objective.” Jd at 567-68.

Metro Broadcasting’s use of intermediate scrutiny was ex-

pressly overruled by Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 227 (1995).

(1995); see also Croson, 488 U.S. at 507 (rejecting “out-

right racial balancing” as a compelling interest). !4

The Fifth Circuit’s decision not to embrace Justice

Powell’s singular views regarding the strength of a “di-

versity” interest in higher education was entirely in

keeping with Bakke’s holding and with subsequent deci-

sions of this Court.

14 Petitioners occasionally argue that this Court’s precedent

regarding racial preferences from outside the context of edu-

cation has no relevance for this case, and that Bakke is the

only pertinent decision. E.g., Pet. 12 (attacking court of ap-

peals for having relied on cdses that “say next to nothing

about education”); id. at 13 (court of appeals “inappropriately

and bluntly applied th[is] Court’s conclusions” from public

contract cases). That position is inconsistent with petition-

ers’ own claim at the outset of their petition that review of

this case is justified because of the importance of these issues

“to the larger arena of the States’ use of racial classifications”

outside public education. Jd at 2. Moreover, this Court has

emphasized the consistency and continuity of the Court’s

equal protection analysis in this area. In Adarand—a deci-

sion not cited by petitioners—this Court traced the treatment

of the issue from the 1940s “through Croson” and empha-

sized that the same legal standard applies whatever the par-

ticular government policy at issue. See Adarand, 515 U.S. at

214-27. This Court’s analysis has never sought to isolate the

principles announced in a case involving higher education

from the principles announced in a case involving public

contracts, or any other context. See, e.g., id at 214, 218-21

(analyzing Hirabayashi v. United States, 320 U.S. 81 (1943),

Bakke, Fullilove v. Klutznick, 448 U.S. 448 (1980), and Wy-

gant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), each of

which involved a very different form of race-based govern-

mental . ‘tion).

2. The Court Of Appeals Properly Applied

This Court’s Precedents To Conclude

That The Law School’s Admissions Pol-

icy Was Not A Constitutional Means Of

Remedying Past Discrimination

As in 1996, petitioners again appear to attack the

circuit court’s conclusion that the 1992 admissions pol-

icy was not justified on the grounds that it was remedy-

ing effects of past discrimination. Pet. 14-16; 1996 Pet.

16-20. The Fifth Circuit’s conclusion was correct and

entirely consistent with this Court’s precedents.

Petitioners argue that the law school’s admissions

policy was justified by the State of Texas’s discrimina-

tion in the students’ “earlier years” in primary and sec-

ondary education. Pet. 14. This Court has rejected this

very argument. Sez Croson, 488 U.S. at 499 (rejecting

notion that “discrimination in primary and secondary

schooling justifies” race preferences in professional

school admissions). Any preferential treatment on the

basis of race must be designed to remedy prior discrimi-

nation “by the governmental unit involved,” i.e., the law

school. Wygant, 476 U.S. at 274 (plurality opinion). 15

And, in any event, Texas did not narrowly tailor its ra-

cial preferences to students who were products of the

Texas public school system.

Petitioners have also sought to justify the admis-

sions program on the grounds that it will remedy “ef-

fects” of past discrimination such as the law school’s

“lingering reputation in the minority community . . . as a

‘white’ school” and “some perception that the law

15 For this reason, the court of appeals concluded that be-

cause petitioners’ argument regarding the “underrepresenta-

tion” of minorities in the law school was tied to past dis-

crimination by Texas’s educational system as a whole—and

not by the law school—it did not justify the law school’s ra-

cially discriminatory practices. Pet. App. 117a-119a.

y UNI SP RT TPN T HE SIID NL NER OMI ITG, Mon rod GH Piet an ‘

school is a hostile environment for minorities.” Pet.

App. 45a. As the court of appeals made clear, these ef-

fects are not attributable to the law school’s past con-

duct, but rather result from “knowledge of historical

fact” and present societal discrimination. Jd. at 115a-

117a. As this Court has explained, remedying the ef-

fects of “societal discrimination” is not a valid justifica-

tion for racial classifications:

This Court never has held that societal discrimi-

nation alone is sufficient to justify a racial clas-

sification. Rather, the Court has insisted upon

some showing of prior discrimination by the

governmental unit involved before allowing

limited use of racial classifications in order to

remedy such discrimination.

Wygant, 476 U.S. at 274 (plurality opinion); see id. at

288 (O’Connor, J., No (“I agree with the plural-

ity that a governmental agency’s interest in remedying

‘societal’ discrimination, that is, discrimination not

traceable to its own actions, cannot be deemed suffi-

ciently compelling to pass constitutional muster under

—. porutiny-” ; see also Croson, 488 U.S. at 498-99,

505.

16 Petitioners’ assertion that the Hopwood III decision con-

flicts with the “passive participant” reference by three Mem-

bers of this Court in Croson is mistaken. Pet. 15-16. First,

Hopwood III merely notes that the State never claimed that

the University was ever a “passive participant” in either a

private or public system of racial discrimination. Pet. App.

301la & n.61. Second, petitioners’ interpretation stretches the

passive participant reference so far as to conflict with Croson

itself, which rejected the use of racial classifications to rem-

edy societal discrimination. See Croson, 488 U.S. at 498-99,

505. The “passive participant” theory thus cannot be used to

justify—as petitioners seem to suggest—government’s at-

tempts to remedy acts of private discrimination under the

guise that it was a “passive participant” in allowing that pri-

vate discrimination to take place. Indeed, such an approach

As in 1996, petitioners also invoke United States v.

Fordice, 505 U.S. 717 (1992), to contend that the 1992

admissions policy was justified. Pet. 14-15; 1996 Pet.

20-21. According to petitioners, Fordice somehow dic-

tates that the law school can remedy prior discrimination

that it had no part in, but was solely attributable to the

State of Texas. Pet. 14-15.

The premise of petitioners’ argument is unfounded.

‘In Fordice, this Court held that a State that had

a dual system of higher education must “reform[] to the

extent practicable and consistent with sound educational

practices” those policies “traceable” to the de jure era of

segregation. Fordice, 505 U.S. at 729 (emphasis added).

Petitioners have failed to identify any law school admis-

sions practice that is traceable to the de jure era in Texas

education. In fact, the record makes clear that beginning

in the 1960s petitioners employed admissions policies

that granted preferences to minorities. Pet. App. 12a.

There was thus a clean break with the de jure practices

of the 1940s. Moreover, it is undisputed that neither the

State of Texas nor the law school ever engaged in any

discrimination against Mexican Americans in education.

would transcend the limitation established by this Court’s re-

jection of the “societal discrimination” rationale, and would

have “no logical stopping point.” Croson, 488 U.S. at 498;

see also Adarand, 515 U.S. at 220-24 (citing with approval

both Wygant’s clear rejection of the “societal discrimination”

justification and the holding in Croson).

Id. at 122a n.50.!7 Fordice, thus, offers no support for

petitioners. 18

3. Contrary To Petitioners’ Claim, This

Case Is Not Uniquely Appropriate For

Review

Petitioners attempt to ae this case from

other cases in which the issue of racial preferences in

admissions is more squarely in controversy, by arguing

that this is the only case that involves both a diversity ra-

tionale and a remedial rationale for racial preferences.

17 The Hopwood II court concluded that “there is no dispute

that the law school has never had an admissions policy that

excluded Mexican Americans on the basis of race,” and that

“[w]hile the school once did practice de jure discrimination

in denying admission to blacks” that practice ceased with this

Court’s decision in Sweatt v. Painter, 339 U.S. 629 (1950).

Pet. App. 1 16a.

18 Petitioners also cite a Second Circuit case, Brewer v.

West Irondequoit Cent. Sch. Dist., 212 F.3d 738 (2d Cir.

2000), and claim that Brewer recognized a non-remedial jus-

tification for racial classifications as a compelling interest

and thus conflicts with Hopwood II. Pet. 15. Brewer is not

inconsistent with Hopwood II for several reasons. First, the

Brewer court was not confronted with either diversity or

remedying effects of past discrimination as purported justifi-

cations for racial classifications. The court expressly noted

that Bakke and its various rationales are “not directly on

point.” Brewer, 212 F.3d at 751. Second, the factor that led

the Brewer court to conclude that combating de facto segre-

gation could be a compelling interest was that it felt con-

strained by its own prior case law that had never been over-

tuled. See Brewer, 212 F.3d at 752. Finally, after reviewing

this Court’s decisions in Croson and Wygant, the Second

Circuit expressly stated that “Supreme Court precedent, ad-

mittedly, provides fairly strong support for the District

Court’s conclusion that there is no compelling interest in the

Program here.” Jd. at 748. All of these distinguishing char-

acteristics limit Brewer, at most, to its particular setting.

Pet. 21-22. That assertion is inaccurate and petitioners’

reasoning is unconvincing in any event.

As an initial matter, this is not the only case that

presents both a “remedy” and a “diversity” rationale.

Petitioners recognize, but seek to gloss over, the Grutter

and Gratz cases currently pending in the Sixth Circuit.

Pet. 21 n.2. In both of cae cases, defendants and inter-

venors have. attempted to justify racially discriminatory

admissions policies at the University of Michigan and its

law school on the grounds that the policies are intended

to achieve diversity and to remedy present effects of

past discrimination. See Grutter v. Bollinger, 2001 U.S.

Dist. LEXIS 3256, at *85, *139-*142 (E.D. Mich. Mar.

27, 2001) (rejecting both the University of Michigan

Law School’s diversity justification and defendant-

intervenors’ remedial justification); Gratz v. Bollinger,

2001 U.S. Dist. LEXIS 4457, at *29 (E.D. Mich. Feb.

26, 2001) (rejecting defendant-intervenors’ remedial jus-

tification); Gratz, 122 F. Supp. 2d at 816 (addressing

University’s diversity rationale).

In Grutter, the court’s description of the flaw in in-

tervenors’ argument is quite similar to one of the flaws

that the Hopwood II court discerned in this case: the

“lower grades and test scores of underrepresented mi-

norities is attributable, at least in part, to general, socie-

tal racial discrimination against these gro ~ got ’ but as a

matter of constitutional law “the effects of general, so-

cietal discrimination cannot constitutionally be remedied

by race-conscious decision-making.” Jd. at *140-*42;

cf. Pet. App. 115a-118a. The Gratz court rejected simi-

lar arguments. See Gratz, 2001 U.S. Dist. LEXIS 4457,

at *29 (concluding that alleged discrimination was at

most attributable to “racial hostility on campus” and not

to “the University itself’). That a law school cannot use

race in admissions purportedly to remedy effects of “so-

cietal discrimination” is thus not a concept singularly

recognized by the Hopwood II cout.

In any event, the law school’s 1992 admissions pol-

icy contained so many constitutional flaws that review

in this Court of the questions raised by petitioners would

amount only to an advisory opinion. As an initial mat-

ter, petitioners—as in 1996—do not defend the 1992

program. Moreover, even if this Court disagreed with

the majority’s opinion in Hopwood II, and found that the

law school had asserted a compelling interest that could

justify the use of racial classifications, the 1992 policy

was plainly not narrowly tailored to achieving any such

purported objective, and the Hopwood II decision could

be affirmed on that separate and independent ground.

As Judge Wiener noted in his 1996 concurrence, the re-

medial and non-remedial justifications that petitioners

advanced for the admissions policy were inconsistent

with one another. Pet. App. 146a n.24 (Wiener, J., con-

curring). The law school’s asserted interest in remedy-

ing the effects of prior discrimination faces the obvious

and insurmountable obstacle that there is no evidence of

past de jure discrimination against Mexican Americans

in the State of Texas let alone any discrimination by the

law school. Pet. App. 121a-122a n.50. Despite the lack

of any past discrimination, the admissions program em-

ployed by the law school had as its “goal” twice as many

spots for Mexican Americans than for African Ameri-

cans (who undoubtedly were discriminated against on a

de jure basis until 50 years ago), thereby belying the as-

sertion that the objective of the policy was to remedy

past discrimination. Jd.!9 The remedial basis is further

19 The Hopwood II majority similarly noted that, as a result,

the policy would not appear narrowly tailored to, or even

aimed at, achieving “a goal of remedying past discrimina-

tion.” Pet. App. 121a-122a n.50. Thus, both the Fifth Circuit

and the district court indicated that Texas failed the “narrow

tailoring” prong of the strict scrutiny test. See also Croson,

488 U.S. at 506 (noting that the “inclusion of racial groups

that; as a practical matter, may never have suffered from dis-

belied by the admissions policy’s application of the ra-

cially preferential treatment to African Americans and

Mexican Americans who never lived in the State of

Texas or attended the public schools in that State.

Meanwhile, by choosing to favor only two 7

groups, “and doing so with a virtual quota system for af-

firmative action in admissions, the law school estops it-

self from proving that its plan to achieve diversity is in-

genuous, much less narrowly tailored.” Pet. App. 146a

n.24 (Wiener, J., concurring). As noted above, under

Justice Powell’s Bakke opinion, the Texas program was

“discrimination for its own sake.” Bakke, 438 U.S. at

307 (opinion of Powell, J.).

Finally, whatever distinctions might be conjured up

to highlight a particular aspect of the Hopwood deci-

sions, the fact remains that—unlike some other cases

cited by petitioners—there is no contested policy at is-

sue. This case was plainly inappropriate for this Court’s

review in 1996 and that remains true today.

C. There Is Nothing Peculiar About The Hold-

ings Of Hopwood II Or Hopwood III That

Requires Further Review

1. Hopwood II Was Never Improperly “In-

sulated” From Further Review

Evidently concerned that their repetition of theories

for review advanced in their 1996 petition continues to

lack merit, petitioners offer a series of misguided asser-

tions in the final pages of their petition. Pet. 26-29. Pe-

titioners cite City of Erie v. Pap’s A.M., 529 U.S. 277

(2000), and City News & Novelty, Inc. v. City of Wauke-

sha, 121 S. Ct. 743 (2001), seemingly to contend that

this case should be reviewed because the decisions be-

low have previously been “insulated” from review by

crimination . . . suggests that perhaps the . . . purpose was not

in fact to remedy past discrimination”).

oo a 7 26-27. a =~ Erie and City News &

ovelty, Inc., however, stand for the simple ition

that when a party prevails in having a foul edlinnaan

struck down, that party’s subsequent voluntary aban-

donment of its practices to which the ordinance was di-

rected will not serve to moot the case and prevent re-

view of the lower court’s opinion. See City of Erie, 529

U.S. at 287-88 (fact that operator of nude dancing estab-

lishment had closed business would not moot the case);

City News & Novelty, Inc., 121 S. Ct. at 747. These

mootness cases are inapposite here. Respondents have

done nothing to attempt to moot this case, and indeed re-

spondents vigorously contested portions of the district

court’s opinions in both Hopwood II and Hopwood III.20

Moreover, petitioners’ arguments about the review-

ability of this case rely on a misstatement of the facts.

Petitioners are wrong when they assert that respondents

— any attempt to implement” Hopwood II with

“a formal injunction” in order to render “more difficult

any further review of the ‘judicial instruction.’” Pet. 25.

Rather, on remand after Hopwood II, respondents fol-

lowed that court’s guidance that an injunction was un-

necessary in light of the clear statement of the law in

Hopwood II and the belief that the law school would

comply with the law. Respondents had no new evidence

that the law school would not comply with the Hopwood

II decision; accordingly, respondents did not renew their

request for a Rule 65 injunction on remand. Indeed,

both petitioners and respondents proceeded on remand

with the understanding that the only issues remaining in

this case were causation, additional individual relief for

20 Petitioners’ half-hearted mootness argument predicated

on Arizonans for Official English v. Arizona, 520 U.S. 43, 71

(1997) and United States v. Munsingwear, Inc., 340 U.S. 36,

39 (1950), is equally misplaced because it is premised on the

legal fiction that the constitutional issues decided in Hop-

wood II were not reviewable in 1996. Pet. 28-29.

respondents, and the amount of attorneys’ fees. Re-

spondents did not defend the district court’s facially

flawed sua sponte injunction in the court of appeals for

the reasons discussed in note 6, supra. To be clear: re-

spondents have not retreated from their position that the

law school is bound by the Hopwood II decision.?!

Nothing has improperly “insulated” this case from

review. The issues petitioners present today were con-

sidered by this Court in 1996.22

21 Petitioners are also mistaken in their assertion that under

this Court’s per curiam opinion in Texas v. Lesage, 528 U.S.

18 (1999), respondents are not entitled to prospective relief

(presumably meaning the law school’s continued adherence -

to Hopwood II) unless they again seek a Rule 65 injunction

from the district court. Contrary to petitioners’ claim that

Lesage impacts respondents’ standing, Pet. 28, Lesage

merely identified an affirmative defense to one kind of dam-

ages and does not consider standing at all. See Lesage, 528

U.S. at 21-22; Wooden v. Bd. of Regents of the Univ. Sys. of

Georgia, 2001 U.S. App. LEXIS 7159, *41 (11th Cir. Apr.

19, 2001) (Lesage “does not refer to standing at all”). More-

over, unlike Lesage, respondents here achieved “forward-

looking” relief from the court of appeals in 1996 inasmuch as

the Hopwood II opinion has compelled the law school to ad-

here to a race-neutral admissions policy. See Pet. 22, 24.

There is no constructive reason for respondents to pursue ad-

ditional, and overlapping, injunctive relief that the court of

appeals concluded in 1996 was unnecessary, particularly in

light of petitioners’ repeated statements that they are bound

by, and will continue to adhere to, the judgment in Hopwood

IT. See, e.g., Pet. 22, 24.

22 The gravamen of petitioners’ arguments is that they are

generally unhappy with the Hopwood I] decision—they

never assert that the 1992 admissions program was constitu-

tional. Of course, unhappiness with a decision does not by

itself create an issue that is worthy of this Court’s review.

Indeed, respondents are quite unhappy with the manner in

which the lower courts applied the burden shifting mecha-

nism required by Mt. Healthy City Sch. Dist. Bd. of Educ. v.

2. Respondents’ Receipt Of Attorneys’ Fees

Was Entirely Justified And Is Not A Ba-

sis To Support This Court’s Review

In a confused discussion apparently designed to

demonstrate that this Court’s review is more appropriate

today than it was in 1996, petitioners also insert a back-

door challenge to the award of attorneys’ fees. Pet. 25-

26. Review of the lower court’s award of attomeys’

fees, in which it slashed respondents’ requested fees by

half and which the court of appeals affirmed, is wholly

unwarranted. Petitioners’ request for “summar[y] re-

vers[al],” Pet. 30, in their petition is even more far-

fetched. See, e.g., Quern v. Jordan, 440 U.S. 332, 340

n.9 (1979) (noting that summary reversal is an “extraor-

dinary action”).

The fact remains that respondents are clearly enti-

tled to the award of fees. In Farrar v. Hobby, 506 U.S.

103 (1992), this Court explained that in order to qualify

for attorneys’ fees under 42 U.S.C. § 1988 one must be a

prevailing party, that is “a civil rights plaintiff [who] ob-

tain[ed] at least some relief on the merits of his claim.”

Farrar, 506 U.S. at 111. Notably, a plaintiff who recov-

ers even nominal damages is deemed a prevailing party.

Id. at 112. There can be no dispute that respondents are

prevailing parties in this case, as they have continuously

prevailed on their claim that petitioners violated their

constitutional rights, they were granted the right to reap-

ply at no further cost, they have further been awarded

nominal damages for their injuries, and they induced the

Doyle, 429 U.S. 274 (1977), in concluding that petitioners

carried their arden of proving that none of the respondents

would have been admitted to the law school under a constitu-

tional admissions system. The court of appeals plainly erred

in reaching that conclusion despite, among other things, nu-

merous concessions by petitioners that the burden was “im-

possible” for them to carry.

law school to change its admissions policy. Pet. App.

68a-69a; id. at 309a, 309a nn.80 & 81. Respondents at-

tained ail of this relief from the district court in 1994 (or

prior to its ruling), and petitioners did not appeal that

decision. Thus, petitioners were parties even

before the Hopwood II decision, which afforded respon-

dents additional relief by ensuring that any future appli-

cation submitted to the law school (by respondents or

others) would be reviewed under a constitutional race-

neutral process.

Once prevailing party status is established, the only

remaining question is the reasonable amount of attor-

neys’ fees to award. Under § 1988, the district court is

entitled considerable leeway in determining “in its dis-

cretion” where to set the level of attorneys’ fees. See 42

U.S.C. § 1988(b); Farrar, 506 U.S. at 119 (O’Connor,

J., concurring). In this case, the district court recog-

nized, and petitioners have confirmed, that respondents

“accomplished the principal goal of the lawsuit” in pre-

cipitating a change in the law school’s admissions pol-

icy. Pet. App. 252a; Pet. 25.23 Surely, respondents’ vic-

torious constitutional challenge to the law school’s 1992

admissions policy, including the circuit court’s pro-

nouncements that the law school had failed to establish a

compelling interest in justifying its policy, and that

school’s subsequent change in admissions practices con-

stituted “the vindication of important rights” of the type

that § 1988 was intended to support. Farrar, 506 U.S. at

122 (O’Connor, J., concurring) (Section 1988 “is a tool

that ensures the vindication of important rights, even

when large sums of money are not at stake, by making

23 Petitioners invoke this Court’s decision in Hewitt v.

Helms, 482 U.S. 755 (1987) to support their argument, but

that case is inapposite. Pet. 26, 28. In Hewitt, the plaintiff

was not a prevailing party, see Hewitt, 482 U.S. at 759-60,

while in this case respondents indisputably are—as the dis-

trict court expressly found. Pet. App. 241a.

—-—

attorney’s fees available under a private attorney general

theory”). In any event, the amount of the lower court’s

award of attorneys’ fees cannot be said to be an abuse of

discretion, and there is certainly nothing worthy of cer-

tiorari review about the award.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.