Thurgood Marshall Legal Society and Black Pre-Law Association v Hopwood Appendix to the Petition for Writ of Certiorari

    No. 95-

In  T he

Supreme Court of tfjc Urnteb States?
O ctober  T erm , 1995

T hurgood  Marshall Legal Society  and 
B lack P r e-Law Association ,

Petitioners,
v.

Cheryl J . H opw ood , et a l,
Respondents.

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

APPENDIX TO THE PETITION 
FOR WRIT OF CERTIORARI

Elaine R. J ones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 

*Dennis D. Parker
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street 
Suite 1600 
New York, NY 10013 
(212)219-1900

Anthony P. Griffin 
Anthony P. Griffin, Inc. 

1115 Moody 
Galveston, TX 77550 
(409) 763-0386

David Van Os 
Van Os & Owen

900 Congress Avenue 
Suite 400 
Austin, TX 78701.
(512) 479-6155

*Counsel o f Record

J anell M. Byrd
NAACP Leg al Defense and 

Educational Fund, Inc. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Petitioners

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



TABLE OF CONTENTS

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

Opinion of the United States Court of Appeals 
for the Fifth Circuit on intervention, May 11,
1994 ......................................................................................  94a

M em orandum  Opinion of the United States District 
Court for the Western District of Texas, Austin 
Division, August 19, 1994 .................. ......................  101a

O rder of the United States District Court for the 
W estern District of Texas, Austin Division, denying 
renewed motion to intervene, July 15, 1994 . . . .  188a

O rder of the United States District Court for the 
W estern District of Texas, Austin Division, denying 
m otion to intervene, January 20, 1994 ..................  190a

O rder of the United States Court of Appeals for
the Fifth Circuit denying rehearing and rehearing
in banc, April 4, 1996 ............................... .................  196a



la

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

v.
STATE OF TEXAS, et al., 

Defendants-Appellees, 
v.

THURGOOD MARSHALL LEGAL SOCIETY and 
Black Pre-Law Association, 

Movants-Appellants.

Douglas CARYELL, et al., 
Plaintiffs-Appellees, 

v.
STATE OF TEXAS, et al., 

Defendants-Appellees, 
v.

THURGOOD MARSHALL LEGAL SOCIETY and 
Black Pre-Law Association, 

Movants-Appellants.

Cheryl J. Hopwood, et al., Plaintiffs

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

v.
STATE OF TEXAS, et al., 

Defendants-Appellees.

Douglas Carvell, et al., Plaintiffs,

Douglas CARVELL, 
Plaintiff-Appellant,

v.
STATE OF TEXAS, et al., 

Defendants-Appellees.



2a

Nos. 94-50569, 94-50664.

United States Court of Appeals,
Fifth Circuit

March 18, 1996.

Before SMITH, WIENER and DeMOSS, Circuit 
Judges.

JERRY E. SMITH, Circuit Judge:

With the best of intentions, in order to increase the 
enrollment of certain favored classes of minority students, 
the University of Texas School of Law ("the law school") 
discriminates in favor of those applicants by giving 
substantial racial preferences in its admissions program. 
The beneficiaries of this system are blacks and Mexican 
Americans, to the detriment of whites and non-preferred 
minorities. The question we decide today in No. 94-50664 
is whether the Fourteenth Amendment permits the school 
to discriminate in this way.

We hold that it does not. The law school has 
presented no compelling justification, under the 
Fourteenth Amendment or Supreme Court precedent, 
that allows it to continue to elevate some races over 
others, even for the wholesome purpose of correcting 
perceived racial imbalance in the student body. "Racial 
preferences appear to ’even the score’ . . . only if one 
embraces the proposition that our society is appropriately 
viewed as divided into races, making it right that an 
injustice rendered in the past to a black man should be 
compensated for by discriminating against a white." City 
o f Richmond v. J.A. Croson Co., 488 U.S. 469, 528, 109



3a

S.Ct. 706, 740, 102 L.Ed.2d 854 (1989) (Scalia, J., 
concurring in the judgment).

As a result of its diligent efforts in this case, the 
district court concluded that the law school may continue 
to impose racial preferences. See Hopwood v. Texas, 861 
F. Supp. 551 (W. D. Tex. 1994). In No. 94-50664, we 
reverse and remand, concluding that the law school may 
not use race as a factor in law school admissions. 
Further, we instruct the court to reconsider the issue of 
damages in accordance with the legal standards we now 
explain. In No. 94-50569, regarding the denial of 
intervention by two black student groups, we dismiss the 
appeal for want of jurisdiction.

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.

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



4a

point average ("GPA") and Law School Aptitude Test 
("LSAT") score.1 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 1

1The 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) = Tl. For 
students with a two-digit LSAT, the formula was: (1.25) LSAT 
+ (10) GPA = TT.



5a

outlook. Not surprisingly, these hard-to-quantify factors 
were especially significant for marginal candidates.2

Because of the large number of applicants and 
potential admissions factors, the TFs 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

2Notably, but of less significance to this appeal, residency 
also had a strong, if not often determinant, effect. Under 
Texas law in 1992, the law school was limited to a class of 15% 
non-residents, and the Board of Regents required an entering 
class of at least 500 students. The law school therefore had to 
monitor offers to non-residents carefully, in order not to 
exceed this quota, while at the same time maintaining an 
entering class of a manageable size.



6a

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

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

Each subcommittee member, in reviewing the thirty 
files, could cast a number of votes—typically from nine to 
eleven3-am ong 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,4 the TI

3The number of votes would change over the course of the 
admissions season in order to achieve the appropriate number 
of offers.

4As blacks and Mexican Americans were the only two 
minority categories granted preferential treatment in 
admissions, it is inaccurate to say that the law school conducted 
separate admissions programs for "minorities" and 
"non-minorities." While the law school aplication form 
segregated racial and ethnic classification into seven 
categories-"Black/African American," "Native American," 
"Asian American," "Mexican American," "Other Hispanic"



7a

ranges that were used to place them into the three 
admissions categories were lowered to allow the law 
school to consider and admit more of them. In March 
1992, for example, the presumptive TI admission score for 
resident whites and non-preferred minorities was 199.5 
Mexican Americans and blacks needed a TI of only 189 
to be presumptively admitted.6 The difference in the

(meaning non-Mexican descent), "White," and "Other 
(describe)"~only American blacks and Mexican Americans 
received the benefit of the separate admissions track. Thus, for 
example, the law school decided that a black citizen of Nigeria 
would not get preferential treatment, but a resident alien from 
Mexico, who resided in Texas, would. Likewise, Asians, 
American Indians, Americans from El Salvador and Cuba, and 
many others did not receive a preference. It is important to 
keep the composition of these categories in mind. For the sake 
of simplicity and readability, however, we sometimes will refer 
to two broad categories: "whites" (meaning Texas residents who 
were whites and non-preferred minorities) and "minorities" 
(meaning Mexican Americans and black Americans).

5Because of a recent change in the grading scale of the 
LSAT, the law school in 1992 had applicants who had taken an 
earlier LSAT scored on a 10-to-48 scale and others who had 
taken a later one scored on a 120-to-180 scale. Equivalence 
calculations were used to compare scores received on the two 
scales. For example, TI numbers of 199 (three-digit LSAT) 
and 87 (two-digit LSAT) were equivalent. For the sake of 
simplicity, we use three-digit numbers throughout this opinion.

6In March 1992, the resident Mexican American and black 
presumptive admit lines were in parity, but they had not started 
that way. The initial presumptive admit TT's were 196 for 
Mexican Americans and 192 for blacks. Thus, initially, blacks 
received preferential treatment over Mexican Americans by 
having a lower hurdle to cross to get into the discretionary



8a

presumptive-deny ranges is even more striking. The 
presumptive denial score for "nonminorities" was 192; the 
same score for blacks and Mexican Americans was 179.

While these cold numbers may speak little to those 
unfamiliar with the pool of applicants, the results 
demonstrate that the difference in the two ranges was 
dramatic. According to the law school, 1992 resident 
white applicants had a mean GPA of 3.53 and an LSAT 
of 164. Mexican Americans scored 3.27 and 158; blacks 
scored 3.25 and 157. The category of "other minority" 
achieved a 3.56 and 160.7

zone. In March, Professor Johanson lowered the Mexican 
American TI in order to admit more of this group.

7The median scores of the 1992 class are as follows:

Ethnicity Resident Nonresident

GPA/LSAT GPA/LSAT

All students 3.52/162 3.61/164
White 3.56/164 3.72/166
Black 3.30/158 3.30/156
Mexican American 3.24/157 3.38/174 *
Other minority 3.58/160 3.77/157

* Only two matriculated applicants.

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



9a

These disparate standards greatly affected a 
candidate’s chance of admission. For example, by March 
1992, because the presumptive denial score for whites was 
a TI of 192 or lower, and the presumptive admit TI for 
minorities was 189 or higher, a minority candidate with a 
TI of 189 or above almost certainly would be admitted, 
even though his score was considerably below* 8 the level

LSAT Percentile 2-Digit LSAT

On the basis of these percentiles, one-half of the law school’s 
white resident matriculants were in the top 9% of all 
test-takers, one-half of the resident Mexican Americans were 
in approximately the top 25% of test-takers, and one-half of 
the resident blacks were in the top 22% of test-takers.

8To illustrate this difference, we consider the four plaintiffs 
in this case-Cheryl Hopwood, Douglas Carvell, Kenneth 
Elliott, and David Rogers. For a student similarly situated to 
Hopwood, with a GPA of 3.8, to avoid presumptive denial as 
a white, i.e., to obtain a TI of 193 or above, her LSAT had to 
be at least a 155, a score in approximately the top 32% of 
test-takers. If she were black (thus, needing a 180 TI), she 
would have had to score a 142 on the LSAT, ranking her only 
in the top 80%. Likewise, a student similar to Carvell, who 
had a 3.28 GPA, would have needed a "white" LSAT of 160 
(top 17%) and a "black" 147 (top 63%). A student like 
Rodgers with a 3.13 would have needed either a 162 (top 12%) 
as a white or 149 as a black (top 56%). Finally, a student

166 94%
164 91%
162 88% 
160 83%
158 78%
156 71%

43
41
40
39
38
36



10a

at which a white candidate almost certainly would be 
rejected. Out of the pool of resident applicants who fell 
within this range (189-192 inclusive), 100% of blacks and 
90% of Mexican Americans, but only 6% of whites, were 
offered admission.9

The stated purpose of this lowering of standards 
was to meet an "aspiration" of admitting a class consisting 
of 10% Mexican Americans and 5% blacks, proportions 
roughly comparable to the percentages of those races 
graduating from Texas colleges. The law school found 
meeting these "goals" difficult, however, because of 
uncertain acceptance rates and the variable quality of the 
applicant pool.10 In 1992, for example, the entering class 
contained 41 blacks and 55 Mexican Americans, 
respectively 8% and 10.7% of the class.

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

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

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

10Thus, the law school constantly had to adjust its Tl range 
over the course of the admissions season to reach a desired 
mix. See supra note 6.



11a

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

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

Finally, the law school maintained segregated 
waiting lists, dividing applicants by race and residence. 
Thus, even many of those minority applicants who were 
not admitted could be set aside in "minority-only" waiting 
lists. Such separate lists apparently helped the law school 
maintain a pool of potentially acceptable, but marginal, 
minority candidates.11

B.

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

uThe district court did not find, nor is the record clear on, 
how these different classes of waiting list candidates were 
compared in the event the law school made last-minute 
admissions decisions. The record does show that the school 
carefully monitored the race of applicants in filling the last 
openings in late spring and early summer.



12a

to the 1992 entering law school class. All four were white 
residents of Texas and were rejected. The plaintiffs were 
considered as discretionary zone candidates.12 Hopwood, 
with a GPA of 3.8 and an LSAT of 39 (equivalent to a 
three-digit LSAT of 160), had a TI of 199, a score barely 
within the presumptive-admit category for resident whites, 
which was 199 and up. She was dropped into the 
discretionary zone for resident whites (193 to 198), 
however, because Johanson decided her educational 
background overstated the strength of her GPA. Carvell, 
Elliott, and Rogers had TI’s of 197, at the top end of that 
discretionary zone. Their applications were reviewed by 
admissions subcommittees, and each received one or no 
vote.

II.

The plaintiffs sued primarily under the Equal 
Protection Clause of the Fourteenth Amendment; they 
also claimed derivative statutory violations of 42 U.S.C. §§ 
1981 and 1983 and of title VI of the Civil Rights Act of 
1964, 42 U.S.C. § 2000d ("title VI").13 The plaintiffs’ 
central claim is that they were subjected to 
unconstitutional racial discrimination by the law school’s

12The district court discussed in detail the plaintiffs’ 
qualifications and their rejections. See 861 F. Supp. at 564-67.

13The defendants are the State of Texas; the University of 
Texas Board of Regents; the members of the board, named but 
sued in their official capacities; the University of Texas at 
Austin; the President of the university, sued in his official 
capacity; the University of Texas School of Law; the dean of 
the law school, sued in his official capacity; and the Chairman 
of the Admissions Committee, sued in his official capacity.



13a

evaluation of their admissions applications. They sought 
injunctive and declaratory relief and compensatory and 
punitive damages.

After a bench trial, the district court held that the 
school had violated the plaintiffs’ equal protection rights. 
861 F.Supp. at 579. The plaintiffs’ victory was pyrrhic at 
best, however, as the court refused to enjoin the law 
school from using race in admissions decisions or to grant 
damages beyond a one-dollar nominal award to each 
plaintiff. The district court, however, did grant 
declaratory relief and ordered that the plaintiffs be 
allowed to apply again without paying the requisite fee. 
Id. at 583.

The district court began by recognizing the proper 
constitutional standard under which to evaluate the 
admissions program: strict scrutiny. Id. at 568. As it was 
undisputed that the school had treated applicants 
disparately based upon the color of their skin, the court 
asked whether the law school process (1) served a 
compelling government interest and (2) was narrowly 
tailored to the achievement of that goal. Under the first 
prong of the test, the court held that two of the law 
school’s five proffered reasons met constitutional muster: 
(1) "obtaining the educational benefits that flow from a 
racially and ethnically diverse student body" and (2) "the 
objective of overcoming past effects of discrimination." 
Id. at 571.

Significantly, on the second justification, the court 
rejected the plaintiffs’ argument that the analysis of past 
discrimination should be limited to that of the law school; 
instead, the court held that the State of Texas’s 
"institutions of higher education are inextricably linked to



14a

the primary and secondary schools in the system." Id.u 
Accordingly, the court found that Texas’s long history of 
racially discriminatory practices in its primary and 
secondary schools in its not-too-distant past had the 
following present effects at UT law: "the law school’s
lingering reputation in the minority community, 
particularly with prospective students, as a ’white’ school; 
an underrepresentation of minorities in the student body; 
and some perception that the law school is a hostile 
environment for minorities." Id. at 572. The court also 
noted that "were the Court to limit its review to the 
University of Texas, the Court would still find a ‘strong 
evidentiary basis for concluding that remedial action is 
necessary.’ " Id. (citation omitted).

The court next evaluated whether the Texas 
program was narrowly tailored to further these goals. Id. 
at 573. Applying a four-factor test devised by the 
Supreme Court, the court held only part of the 1992 
admissions scheme unconstitutional. Those parts that 
gave minorities a "plus," that is, the component of the 
admissions program that treated candidates’ TI scores 
differently based upon race, was upheld. Id. at 578.

The court held, however, that differential treatment 
was not allowed where candidates of different races were 
not compared at some point in the admission process. 
Thus, the court struck down the school’s use of separate 
admissions committees for applications in the 
discretionary zone, id. at 578-79, and in dictum speculated 
that presumptive denial lines would not pass muster, as 14

14Because of this conclusion, the district court examined at 
length the history of race relations in Texas and discrimination 
in its schools. 861 F. Supp. at 554-57.



15a

many white candidates would get no review, while 
similarly situated minorities would, id. at 576 n.71.

Though it declared that the law school’s 1992 
admissions program violated the plaintiffs’ equal 
protection rights, the court granted little relief. First, the 
court did not order that the plaintiffs be admitted to the 
law school. Instead, it used what it saw as analogous title 
VII caselaw on burden-shifting to hold that while the 
state had committed a constitutional violation, the 
plaintiffs had the ultimate burden of proving damages. Id. 
at 579-80. The court then found that the defendants had 
proffered a legitimate, non-discriminatory reason for 
denying the plaintiffs admission and that the plaintiffs had 
not met their burden of showing that they would have 
been admitted but for the unlawful system. Id. at 582.

Moreover, the court held that the plaintiffs were 
not entitled to prospective injunctive relief, because "of 
the law school’s voluntary change to a procedure, which 
on paper and from the testimony, appears to remedy the 
defects the Court has found in the 1992 procedure." 
Id .15 To pass muster under the court’s reasoning, the law 
school simply had to have one committee that at one time 
during the process reviewed all applications and did not 
establish separate TI numbers to define the presumptive 
denial categories. In other words, if the law school 
applied the same academic standards, but had 
commingled the minoity review in the discretionary zone 
with the review of whites, its program would not have

15Shortly before trial, apparently in response to the filing of 
this lawsuit, the law school modified its 1992 admissions 
practices to fit the district court’s view of the proper 
constitutional system. See id. at 582 n.87.



16a

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

Finally, the court determined that the only 
appropriate relief was a declaratory judgment and an 
order allowing the plaintiffs to reapply to the school 
without charge. Id. at 582-83. No compensatory or 
punitive damages, the court reasoned, could be awarded 
where the plaintiffs had proven no harm. Moreover, the 
court reasoned that as the law school had promised to 
change its admissions program by abandoning the 
two-committee system, no prospective injunctive relief was 
justified.

III.

The central purpose of the Equal Protection 
Clause "is to prevent the States from purposefully 
discriminating between individuals on the basis of race."
Shaw v. Reno, 509 U.S. 630,___, 113 S. Ct. 2816, 2824,
125 L. Ed. 2d 511 (1993) (citing Washington v. Davis, 426 
U.S. 229, 239, 96 S. Ct. 2040, 2047, 48 L. Ed. 2d 597 
(1976)). It seeks ultimately to render the issue of race 
irrelevant in governmental decisionmaking. See Palmore 
v. Sidoti, 466 U.S. 429, 432, 104 S. Ct. 1879, 1881-82, 80 
L. Ed. 2d 421 (1984) ("A core purpose of the Fourteenth 
Amendment was to do away with all goveramentally 
imposed discrimination.") (footnote omitted).

Accordingly, discrimination based upon race is 
highly suspect. "Distinctions between citizens solely 
because of their ancestry are by their very nature odious 
to a free people whose institutions are founded upon the 
doctrine of equality," and "racial discriminations are in 
most circumstances irrelevant and therefore prohibited.



17a

. . Hirabayashi v. United States, 320 U.S. 81, 100, 63 S. 
Ct. 1375, 1385, 87 L. Ed. 1774 (1943). Hence, 
"[preferring members of any one group for no reason 
other than race or ethnic origin is discrimination for its 
own sake. This the Constitution forbids." Regents of 
Univ. o f Cal. v. Bakke, 438 U.S. 265, 307, 98 S. Ct. 2733, 
2757, 57 L. Ed. 2d 750 (1978) (opinion of Powell, J.); see 
also Loving v. Virginia, 388 U.S. 1, 11, 87 S. Ct. 1817, 
1823, 18 L. Ed. 2d 1010 (1967); Brown v. Board of Educ., 
347 U.S. 483, 493-94, 74 S. Ct. 686, 691-92, 98 L. Ed. 873 
(1954). These equal protection maxims apply to all races.
Adarand Constructors v. Pena, __ U .S .___ , ___, 115 S.
Ct. 2097, 2111, 132 L. Ed. 2d 158 (1995).

In order to preserve these principles, the Supreme 
Court recently has required that any governmental action 
that expressly distinguishes between persons on the basis 
of race be held to the most exacting scrutiny. See, e.g., id.
a t ___, 115 S. Ct. at 2113; Loving, 388 U.S. at 11, 87 S.
Ct. at 1823. Furthermore, there is now absolutely no 
doubt that courts are to employ strict scrutiny16 when 
evaluating all racial classifications, including those 
characterized by their proponents as "benign" or 
"remedial."17

16In their initial brief on appeal, the defendants argued that 
intermediate scrutiny is appropriate here. In a supplemental 
brief filed to address the subsequent opinion in Adarand, they 
now acknowledge that strict scrutiny is the appropriate test.

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



18a

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

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

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

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

U.S. 469, 495, 109 S. Ct. 706, 722-23, 102 L. Ed. 2d 854 (1989) 
(plurality opinion) ("the standard of review under the Equal 
Protection Clause is not dependent on the race of those 
burdened or benefited by a particular classification"); id. at 494, 
109 S.Ct. at 722 (Scalia, J., concurring in judgment); Wygant v. 
Jackson Bd. ofEduc., 476 U.S. 267, 273, 106 S.Ct. 1842, 1846, 
90 L.Ed.2d 260 (1986) (plurality opinion) ("[T]he level of 
scrutiny does not change merely because the challenged 
classification operates against a group that historically has not 
been subject to government discrimination.").



19a

compelling government interest, and (2) is it narrowly 
tailored to the achievement of that goal? Adarand,
U.S. at ___, ___, 115 S. Ct. at 2111, 2117. As the
Adarand Court emphasized, strict scrutiny ensures that 
"courts will consistently give racial classifications . . . 
detailed examination both as to ends and as to means." 
Id.1& * *

Finally, when evaluating the proffered 
governmental interest for the specific racial classification, 
to decide whether the program in question narrowly 
achieves that interest, we must recognize that "the rights 
created by . . . the Fourteenth Amendment are, by its 
terms, guaranteed to the individual. The rights 
established are personal rights." Shelley v. Kraemer, 334 
U.S. 1, 22, 68 S: Ct. 836, 846, 92 L. Ed. 1161 (1948).19 
Thus, the Court consistently has rejected arguments

lsWhileAdarand-tht Supreme Court’s most recent opinion 
on racial preferences—does not directly address the application 
of the strict scrutiny test, it underscores the presumptive 
unconstitutionality of racial classifications. "By requiring strict 
scrutiny of racial classifications, we require courts to make sure 
that a government classification based on race, which 'so 
seldom providejs] a relevant basis for disparate treatment,’ 
Fullilove [v. KLutznick, 448 U.S. 448, 534, 100 S. Ct. 2758, 2803, 
65 L. Ed. 2d 902 (1980)], (Stevens, J., dissenting), is legitimate,
before permitting unequal treatment based on race." __ U.S.
a t__ , 115 S. Ct. at 2113.

19See also Adarand, id. a t__ , 115 S. Ct. at 2111 (”[A]ny
person, of whatever race, has the right to demand that any 
government actor subject to the Constitution justify any racial 
classification subjecting that person to unequal treatment under 
the strictest judicial scrutiny.").



20a

conferring benefits on a person based solely upon his 
membership in a specific class of persons.20

With these general principles of equal protection 
in mind, we turn to the specific issue of whether the law 
school’s consideration of race as a factor in admissions 
violates the Equal Protection Clause. The district court 
found both a compelling remedial and a non-remedial 
justification for the practice.

First, the court approved of the non-remedial goal 
of having a diverse student body, reasoning that 
"obtaining the educational benefits that flow from a 
racially and ethnically diverse student body remains a 
sufficiently compelling interest to support the use of racial 
classifications." 861 F. Supp. at 571. Second, the court 
determined that the use of racial classifications could be 
justified as a remedy for the "present effects at the law 
school of past discrimination in both the University of 
Texas system and the Texas educational system as a 
whole." Id. at 573.

20See, e.g., Croson, 488 U.S. at 498-500,109 S. Ct. at 724-25 
(holding that past societal discrimination against a group 
confers no basis for local governments to provide a specifically 
tailored remedy to current members of that group); Wygant, 
476 U.S. at 275-76, 106 S. Ct. at 1847-48 (rejecting argument 
that governmental discrimination in teacher layoffs is allowed 
to foster role models within a group).



21a

A.

1 .

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

The California Supreme Court struck down the 
program on equal protection grounds, enjoined any 
consideration of race in the admissions process, and 
ordered that Bakke be admitted. The United States 
Supreme Court affirmed in part and reversed in part in an 
opinion announced by Justice Powell. 438 U.S. at 271-72, 
98 S. Ct. at 2738-39 (opinion of Powell, J.). The Court 
reached no consensus on a justification for its result, 
however. Six Justices filed opinions, none of which 
garnered more than four votes (including the writer’s). 
The two major opinions—one four-Justice opinion by



22a

Justices Brennan, White, Marshall, and Blackmun and 
one by Justice Stevens in which Chief Justice Burger and 
Justices Stewart and Rehnquist joined—reflected 
completely contrary views of the law.

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

Hence, Justice Powell’s opinion has appeared to 
represent the "swing vote," and though, in significant part, 
see id. at 272 n. *, 98 S. Ct. at 2738, it was joined by no 
other Justice, it has played a prominent role in 
subsequent debates concerning the impact of Bakke.21 In

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



23a

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

Notably, because the first step in reviewing an 
affirmative action program is a determination of the 
state’s interests at stake,22 it often is the determinative 
step. Justice Powell outlined the four state interests 
proffered by the Bakke defendants:

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

22A s affirmative action programs are by definition 
purposeful classifications by race, they do not present the 
problem of governmental action that is facially neutral but has 
a disparate impact and is motivated by race. See Village of 
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 
252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977); Washington v. 
Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976).



24a

Id. at 305-06, 98 S. Ct. at 2756-57 (emphasis added, 
citation and footnote omitted).

Justice Powell reasoned that the second and third 
justifications-remedying societal discrimination and 
providing role models—were never appropriate.23 He 
determined that any remedial justification was limited to 
eliminating "identified discrimination" with "disabling 
effects." Id. at 307, 98 S. Ct. at 2757 (citing the school 
desegregation cases). He specifically emphasized that a 
particularized finding of a constitutional or statutory 
violation must be present before a remedy is justified. He 
determined not only that such findings were not present 
in Bakke, but that the medical school was not even in a 
position to make such findings. Id. at 309, 98 S. Ct. at 
2757-58.

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

^The Supreme Court subsequently has agreed with that 
position. See Wygant, 476 U.S. at 274-76, 106 S. Ct. at 1847-48 
(plurality opinion). The district court a quo erred in suggesting 
that societal discrimination is constitutionally cognizable. See 
861 F. Supp. at 570 n. 56, 571 n. 60.



25a

viewed as a special concern of the First Amendment." Id. 
at 312, 98 S. Ct. at 27S9.24

Justice Powell presented this "special concern" as 
in tension with the Fourteenth Amendment "Thus, in 
arguing that its universities must be accorded the right to 
select those students who will contribute the most to the 
‘robust exchange of ideas,’ petitioner invokes a 
countervailing constitutional interest, that of the First 
Amendment." Id. at 313, 98 S. Ct. at 2760.25 The 
Justice then concluded that

[a]n otherwise qualified medical student with a 
particular background-whether it be ethnic, 
geograph ic ,  cul tural ly  ad van taged  or

24See also Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 
S. Ct. 1203, 1218, 1 L. Ed. 2d 1311 (1957) (Frankfurter, J„ 
concurring in result) (recognizing four separate components of 
"academic freedom").

25Saying that a university has a First Amendment interest 
in this context is somewhat troubling. Both the medical school 
in Bakke and, in our case, the law school are state institutions. 
The First Amendment generally protects citizens from the 
actions of government, not government from its citizens.

Significantly, Sweezy involved a person who was called 
before the Attorney General of New Hampshire to answer for 
alleged subversive activities. He declined on First Amendment 
grounds to answer questions about a lecture he had delivered 
at the University of New Hampshire. While Justice Frankfurter 
spoke of a university’s interest in openness and free inquiry, it 
was plainly through the First Amendment rights of individual 
scholars. 354 U.S. at 262, 266-67, 77 S. Ct. at 1217-18,1219-20 
(Frankfurter, J., concurring in result).



26a

disadvantaged-may bring to a professional school 
of medicine experiences, outlooks, and ideas that 
enrich the training of its student body and better 
equip its graduates to render with understanding 
their vital service to humanity.

Id. at 314, 98 S. Ct. at 2760 (footnote omitted). Justice 
Powell therefore approved of a consideration of ethnicity 
as "one element in a range of factors a university properly 
may consider in attaining the goal of a heterogeneous 
student body." Id.

The next step for Justice Powell was to decide 
whether the medical school’s program was necessary to 
further the goal of diversity. He said it was not. As the 
program made race the only determining factor for a 
certain number of the open spots that had been set aside, 
it did not further full diversity but only a conception of 
that term limited to race.

Justice Powell speculated that a program in which 
"race or ethnic background may be deemed a ‘plus’ in a 
particular applicant’s file, yet does not insulate the 
individual from comparison with all the other candidates 
for the available seats," might pass muster. Id. at 317, 98 
S. Ct. at 2762. The Justice did not define what he meant 
by a "plus," but he did write that a "plus" program would 
be one in which an

applicant who loses out to another candidate 
receiving a ‘plus’ on the basis of ethnic background 
will not have been foreclosed from all 
consideration for that seat simply because he was 
not the right color or had the wrong surname. It 
would only mean that his combined qualifications,



27a

which may have included similar nonobjective 
factors, did not outweigh those of another 
applicant. His qualifications would have been 
weighted fairly and competitively, and he would 
have no basis to complaint of unequal treatment 
under the Fourteenth Amendment.

Id. at 318, 98 S. Ct. at 2762.

Under this conception of the Fourteenth 
Amendment, a program that considered a host of factors 
that include race would be constitutional, even if an 
applicant’s race "tipped the scales" among qualified 
applicants. What a school could not do is to refuse to 
compare applicants of different races or establish a strict 
quota on the basis of race. In sum, Justice Powell found 
the school’s program to be an unconstitutional "quota" 
system, but he intimated that the Constitution would 
allow schools to continue to use race in a wide-ranging 
manner.

2.

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



28a

We agree with the plaintiffs that any consideration 
of race or ethnicity by the law school for the purpose of 
achieving a diverse student body is not a compelling 
interest under the Fourteenth Amendment. Justice 
Powell’s argument in Bakke garnered only his own vote 
and has never represented the view of a majority of the 
Court in Bakke or any other case. Moreover, subsequent 
Supreme Court decisions regarding education state that 
non-remedial state interests will never justify racial 
classifications. Finally, the classification of persons on the 
basis of race for the purpose of diversity frustrates, rather 
than facilitates, the goals of equal protection.

Justice Powell’s view in Bakke is not binding 
precedent on this issue. While he announced the 
judgment, no other Justice joined in that part of the 
opinion discussing the diversity rationale. In Bakke, the 
word "diversity" is mentioned nowhere except in Justice 
Powell’s single-Justice opinion. In fact, the four-Justice 
opinion, which would have upheld the special admissions 
program under intermediate scrutiny, implicitly rejected 
Justice Powell’s position. See 438 U.S. at 326 n. 1, 98 S. 
Ct. at 2766 n. 1 (Brennan, White, Marshall, and 
Blackmun JJ., concurring in the judgment in part and 
dissenting) ("We also agree with Mr. Justice POWELL 
that a plan like the "Harvard" plan . . .  is constitutional 
under our approach, at least so long as the use of race to 
achieve an integrated student body is necessitated by the 
lingering effects o f past discrimination.") (emphasis added). 
Justice Stevens declined to discuss the constitutional issue. 
See id. at 412, 98 S. Ct. at 2810 (Stevens, J., concurring in 
the judgment in part and dissenting in part).

Thus, only one Justice concluded that race could 
be used solely for the reason of obtaining a heterogenous



29a

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

Since Bakke, the Court has accepted the diversity 
rationale only once in its cases dealing with race. 
Significantly, however, in that case, Metro Broadcasting, 
Inc. v. Federal Communications Comm’n, 497 U.S. 547, 
564-65, 110 S. Ct. 2997, 3008-09, 111 L. Ed. 2d 445 
(1990), the five-Justice majority relied upon an 
intermediate scrutiny standard of review to uphold the 
federal program seeking diversity in the ownership of
broadcasting facilities. In Adarand, ___U.S. a t ___ -___,
115 S. Ct. at 2112-13, the Court squarely rejected 
intermediate scrutiny as the standard of review for racial 
classifications, and Metro Broadcasting is now specifically 
overruled to the extent that it was in conflict with this
holding. Id. a t ___, 115 S. Ct. at 2113. No case since
Bakke has accepted diversity as a compelling state iterest 
under a strict scrutiny analysis.

Indeed, recent Supreme Court precedent shows 
that the diversity interest will not satisfy strict scrutiny. 
Foremost, the Court appears to have decided that there 
is essentially only one compelling state interest to justify 
racial classifications: remedying past wrongs. In Croson, 
488 U.S. at 493, 109 S. Ct. at 722 (plurality opinion), the 
Court flatly stated that "[ujnless [racial classifications] are 
strictly reserved for remedial settings, they may in fact



30a

promote notions of racial inferiority and lead to a politics 
of racial hostility." (emphasis added).26

Justice O’Connor, in her Adarand-vindicated 
dissent in Metro Broadcasting, joined by Justices 
Rehnquist, Scalia, and Kennedy, explained this position:

Modem equal protection has recognized only one 
[compelling state] interest: remedying the effects of 
racial discrimination. The interest in increasing 
the diversity of broadcast viewpoints is clearly not

26See also Milwaukee County Pavers Ass’n v. Fiedler, 922 F.2d 
419, 422 (7th Cir.) ("The whole point of Croson is that 
disadvantage, diversity, or other grounds favoring minorities will 
not justify governmental racial discrimination . . .; only a 
purpose of remedying discrimination against minorities will do 
so.") (emphasis added), cert, denied, 500 U.S. 954, 111 S. Ct. 
2261, 114 L. Ed. 2d 714 (1991).

Notably, Justice Scalia rejected the use of racial 
classifications "in order (in a broad sense) ‘to ameliorate the 
effects of past discrimination.’ " Croson, 488 U.S. at 520, 109 
S. Ct. at 736 (Scalia, J., concurring in the judgment) (quoting 
Croson, 488 U.S. at 476-77, 109 S. Ct. at 713). He, however, 
suggested one other possible compelling state interest: a social 
emergency. He opined that "where state or local action is at 
issue, only a social emergency rising to the level of imminent 
danger to life and limb" will justify racial classifications. 
Croson, 488 U.S. at 521,109 S. Ct. at 736 (Scalia, J., concurring 
in judgment). While such an interest is probably consistent 
with the widely criticized holdings of Hirabayashi v. United 
States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943), and 
Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. 
Ed. 194 (1944), plainly such an interest is not presented in this 
case.



31a

a compelling interest. It is simply too amorphous, 
too insubstantial, and too unrelated to any 
legitimate basis for employing racial classifications.

497 U.S. at 612, 110 S. Ct. at 3034 (O’Connor, J., 
dissenting). Indeed, the majority in Metro Broadcasting 
had not claimed otherwise and decided only that such an 
interest was "important." Justice Thomas, who joined the 
Court after Metro Broadcasting was decided, roundly 
condemned "benign" discrimination in his recent Adarand 
opinion, in which he suggests that the diversity rationale 
is inadequate to meet strict scrutiny. See Adarand,
U.S. a t ___, 115 S. Ct. at 2119 (Thomas, J., concurring in
part and concurring in judgment).27

27The law school places much reliance upon Justice 
O’Connor’s concurrence in Wygant for the proposition that 
Justice Powell’s Bakke formulation is still viable. In her 1986 
Wygant opinion, in the context of discussing Justice Powell’s 
opinion, Justice O’Connor noted that "although its precise 
contours are uncertain, a state interest in the promotion of 
racial diversity has been found sufficiently ‘compelling,’ at least 
in the context of higher education, to support the use of racial 
considerations in furthering that interest." 476 U.S. at 286,106 
S. Ct. at 1853 (O’Connor, J., concurring in part and concurring 
in the judgment).

The law school’s argument is not persuasive. Justice 
O’Connor’s statement is purely descriptive and did not purport 
to express her approval or disapproval of diversity as a 
compelling interest. Her subsequent statements outlined above 
in Croson and Metro Broadcasting suggest strongly that reliance 
upon this statement in Wygant is unjustified.



32a

In short, there has been no indication from the 
Supreme Court, other than Justice Powell’s lonely opinion 
in Bakke, that the state’s interest in diversity constitutes 
a compelling justification for governmental race-based 
discrimination. Subsequent Supreme Court caselaw 
strongly suggests, in fact, that it is not.

Within the general principles of the Fourteenth 
Amendment, the use of race in admissions for diversity in 
higher education contradicts, rather than furthers, the 
aims of equal protection. Diversity fosters, rather than 
minimizes, the use of race. It treats minorities as a group, 
rather than as individuals. It may further remedial 
purposes but, just as likely, may promote improper racial 
stereotypes, thus fueling racial hostility.

The use of race, in and of itself, to choose students 
simply achieves a student body that looks different. Such 
a criterion is no more rational on its own terms than 
would be choices based upon the physical size or blood 
type of applicants. Thus, the Supreme Court has long 
held that governmental actors cannot justify their 
decisions solely because of race. See, e.g., Croson, 488 
U.S. at 496, 109 S. Ct. at 723 (plurality opinion); Bakke, 
438 U.S. at 307, 98 S. Ct. at 2757 (opinion of Powell, J.).

Accordingly, we see the caselaw as sufficiently 
established that the use of ethnic diversity simply to 
achieve racial heterogeneity, even as part of the 
consideration of a number of factors, is unconstitutional. 
Were we to decide otherwise, we would contravene 
precedent that we are not authorized to challenge.

While the use of race per se is proscribed, 
state-supported schools may reasonably consider a host of



33a

factors—some of which may have some correlation with 
race—in making admissions decisions. The federal courts 
have no warrant to intrude on those executive and 
legislative judgments unless the distinctions intrude on 
specific provisions of federal law or the Constitution.

A university may properly favor one applicant over 
another because of his ability to play the cello, make a 
downfield tackle, or understand chaos theory. An 
admissions process may also consider an applicant’s home 
state or relationship to school alumni. Law schools 
specifically may look at things such as unusual or 
substantial extracurricular activities in college, which may 
be atypical factors affecting undergraduate grades. 
Schools may even consider factors such as whether an 
applicant’s parents attended college or the applicant’s 
economic and social background.28

For this reason, race often is said to be justified in 
the diversity context, not on its own terms, but as a proxy 
for other characteristics that institutions of higher 
education value but that do not raise similar constitutional 
concerns.29 Unfortunately, this approach simply

28The law school’s admissions program makes no distinction 
among black and Mexican American applicants in an effort to 
determine which of them, for example, may have been 
culturally or educationally disadvantaged.

29For example, Justice Powell apparently felt that persons 
with different ethnic backgrounds would bring diverse 
"experiences, outlooks, and ideas" to the medical school. 
Bakke, 438 U.S. at 314, 98 S. Ct. at 2760 (opinion of Powell, 
J.).



34a

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

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

To believe that a person’s race controls his point 
of view is to stereotype him. The Supreme Court, 
however, "has remarked a number of times, in slightly 
different contexts, that it is incorrect and legally 
inappropriate to impute to women and minorities ‘a 
different attitude about such issues as the federal budget, 
school prayer, voting, and foreign relations.’ " Michael S. 
Paulsen, Reverse Discrimination and Law School Faculty 
Hiring: The Undiscovered Opinion, 71 TEX. L. REV. 993, 
1000 (1993) (quoting Roberts v. United States Jaycees, 468 
U.S. 609, 627-28, 104 S. Ct. 3244, 3255, 82 L. Ed. 2d 462 
(1984)). "Social scientists may debate how peoples’ 
thoughts and behavior reflect their background, but the 
Constitution provides that the government may not 
allocate benefits or burdens among individuals based on 
the assumption that race or ethnicity determines how they



35a

act or think." Metro Broadcasting, 497 U.S. at 602, 110 S. 
Ct. at 3029 (O’Connor, J., dissenting).30

Instead, individuals, with their own conceptions of 
life, further diversity of viewpoint. Plaintiff Hopwood is 
a fair example of an applicant with a unique background. 
She is the now-thirty-two-year-old wife of a member of 
the Armed Forces stationed in San Antonio and, more 
significantly, is raising a severely handicapped child. Her 
circumstance would bring a different perspective to the 
law school. The school might consider this an advantage 
to her in the application process, or it could decide that 
her family situation would be too much of a burden on 
her academic performance.

We do not opine on which way the law school 
should weigh Hopwood’s qualifications; we only observe 
that "diversity" can take many forms. To foster such 
diversity, state universities and law schools and other 
governmental entities must scrutinize applicants

30Thus, to put it simply, under the Equal Protection Clause

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

Posner, supra, at 22.



36a

individually, rather than resorting to the dangerous proxy 
of race.31

The Court also has recognized that government’s 
use of racial classifications serves to stigmatize. See, e.g., 
Brown v. Board ofEduc., 347 U.S. 483, 494, 74 S. Ct. 686, 
691, 98 L. Ed. 873 (1954) (observing that classification on 
the basis of race "generates a feeling of inferiority"). 
While one might argue that the stigmatization resulting 
from so-called "benign" racial classifications is not as

31We recognize that the use of some factors such as 
economic or educational background of one’s parents may be 
somewhat correlated with race. This correlation, however, will 
not render the use of the factor unconstitutional if it is not 
adopted for the purpose of discriminating on the basis of race. 
See McCleskey v. Kemp, 481 U.S. 279,107 S. Ct. 1756, 95 L. Ed. 
2d 262 (1987). As Justice O’Connor indicated in Hernandez v. 
New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 
(1991), which was a challenge under Batson v. Kentucky, 476 
U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), based upon 
the prosecution’s strike of potential jurors who spoke Spanish:

No matter how closely tied or significantly correlated to 
race the explanation for a peremptory strike may be, 
the strike does not implicate the Equal Protection 
Clause unless it is based on race. That is the 
distinction between disproportionate effect, which is not 
sufficient to constitute an equal protection violation, 
and intentional discrimination, which is.

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



37a

harmful as that arising from invidious ones,32 the current 
Court has now retreated from the idea that so-called 
benign and invidious classifications may be 
distinguished.33 As the plurality in Croson warned, 
"[classifications based on race carry the danger of 
stigmatic harm. Unless they are reserved for remedial 
settings, they may in fact promote notions of racial

32According to one of the four-Justice opinions in Bakke, 
racial classifications stigmatize when "they are drawn on the 
presumption that one race is inferior to another or because 
they put the weight of government behind racial hatred and 
separation." 438 U.S. at 357-58, 98 S. Ct. at 2782 (Brennan, 
White, Marshall, and Blackmun, JJ., concurring in the 
judgment in part and dissenting in part). In Bakke, however, 
these Justices rejected strict scrutiny because the program at 
issue could not be said to stigmatize as did other racial 
classifications. These Justices nevertheless recognized that 
rational-basis scrutiny would not be enough. Id. at 361, 98 S. 
Ct. at 2784 (Brennan, White, Marshall, and Blackmun, JJ., 
concurring in the judgment in part and dissenting in part).

33As Judge Posner has indicated,

the proper constitutional principle is not, no "invidious" 
racial or ethnic discrimination, but no use of racial or 
ethnic criteria to determine the distribution of 
government benefits and burdens . . . .  To ask whether 
racial exclusion may not have overriding benefits for 
both races in particular circumstances is to place the 
antidiscrimination principle at the mercy of the vagaries 
of empirical conjecture and thereby free the judge to 
enact his personal values into constitutional doctrine.

Posner, supra, at 25-26.



38a

inferiority and lead to the politics of racial hostility." 488 
U.S. at 493, 109 S. Ct. at 722.34

**See also Adarand, ___ U.S. at ___, 115 S. Ct. at 2119
(Thomas, J., concurring in part and concurring in judgment) 
("But there can be no doubt that racial paternalism and its 
unintended consequences may be as poisonous and pernicious 
as any other form of discrimination."). One prominent 
constitutional commentator specifically has noted that where 
programs involve lower and separate standards of selection, "a 
new badge of implied inferiority, assigned as an incident of 
governmental noblesse oblige," results.

Explicit in state, local, or federal plans using separate 
and lower standards by race is a statement by 
government that certain persons identified by race are 
in fact being placed in positions they may be presumed 
not likely to hold but for their race (because they are 
presumed to be unable to meet standards the 
government itself requires to be met). The message 
from government is written very large when these plans 
proliferate: a double (and softer) standard for 
admission, a double (and softer) standard for hiring, a 
double (and softer) standard for promotion, a double 
(and softer) standard for competitive bidding, and so 
on. Without question, this is a systematic racial tagging 
by government--a communication to others that the 
race of the individual they deal with bespeaks a 
race-related probability, created solely by the 
government itself, of lesser qualification than others 
holding equivalent positions.

William Van Alstyne, Rites o f Passage: Race, the Supreme 
Court, and the Constitution, 46 U. CHI. L. REV. 775, 787 n.38 
(1979).



39a

Finally, the use of race to achieve diversity 
undercuts the ultimate goal of the Fourteenth 
Amendment: the end of racially-motivated state action. 
Justice Powell’s conception of race as a "plus" factor 
would allow race always to be a potential factor in 
admissions decisionmaking. While Justice Blackmun 
recognized the tension inherent in using race-conscious 
remedies to achieve a race-neutral society, he nevertheless 
accepted it as necessary. Bakke, 438 U.S. at 405, 98 S. Ct. 
at 2806. Several Justices who, unlike Justices Powell and 
Blackmun, are still on the Court, have now renounced 
toleration of this tension, however. See Croson, 488 U.S. 
at 495, 109 S. Ct. at 722 (plurality opinion of O’Connor, 
J.) ("The dissent’s watered down version of equal 
protection review effectively assures that race will always 
be relevant in American life, and that the ‘ultimate goal’ 
of ‘eliminating] entirely from government decisionmaking 
such irrelevant factors as a human being’s race . . . will 
never be achieved.") (quoting Wygant, 476 U.S. at 320, 
106 S. Ct. at 1871 (Stevens, J., dissenting)).35

35As professor Van Alstyne has argued:

Rather, one gets beyond racism by getting beyond it 
now: by a complete, resolute, and credible commitment 
never to tolerate in one’s own life--or in the life or 
practices of one’s government-the differential 
treatment of other human beings by race. Indeed, that 
is the great lesson for government itself to teach: in all 
we do in life, whatever we do in life, to treat any 
person less well than another or to favor any more than 
another for being black or white or brown or red, is 
wrong. Let that be our fundamental law and we shall 
have a Constitution universally w’orth expounding.



40a

In sum, the use of race to achieve a diverse student 
body, whether as a proxy for permissible characteristics, 
simply cannot be a state interest compelling enough to 
meet the steep standard of strict scrutiny.36 These latter 
factors may, in fact, turn out to be substantially correlated 
with race, but the key is that race itself not be taken into 
account. Thus, that portion of the district court’s opinion 
upholding the diversity rationale is reversibly flawed.37

Van Alstyne, supra note 34, at 809-10.

36Because we have determined that any consideration of 
race by the law school is constitutionally impermissible if 
justified by diversity, it is not necessary to determine whether, 
as plaintiffs argue, the admissions system under which the 
plaintiffs applied operated as a de facto "quota" system similar 
to the one struck down in Bakke. We do note that even if a 
"plus" system were permissible, it likely would be impossible to 
maintain such a system without degeneration into nothing more 
than a "quota" program. See Bakke, 438 U.S. at 378, 98 S. Ct. 
at 2793 ("For purposes of constitutional adjudication, there is 
no difference between [setting aside a certain number of places 
for minorities and using minority status as a positive factor].") 
(Brennan, White, Marshall, and Blackmun, JJ., concurring in 
the judgment in part and dissenting in part). Indeed, in this 
case, the law school appeared to be especially adept at meeting 
its yearly "goals." See Hopwood, 861 F. Supp. at 574 n. 67.

37Plaintiffs additionally have argued that the law school’s 
program was not narrowly tailored in the diversity context 
because (1) it failed to award preferences to non-Mexican 
Hispanic Americans, Asian Americans, American Indians, or 
other minorities, and (2) it failed to accord as much weight to 
non-racial diversity factors, such as religion and socioeconomic 
background, as it did to race.



41a

B.

We now turn to the district court’s determination 
that "the remedial purpose of the law school’s affirmative 
action program is a compelling government objective." 
861 F. Supp. at 573. The plaintiffs argue that the court 
erred by finding that the law school could employ racial 
criteria to remedy the present effects of past 
discrimination in Texas’s primary and secondary schools. 
The plaintiffs contend that the proper unit for analysis is 
the law school, and the state has shown no recognizable 
present effects of the law school’s past discrimination. 
The law school, in response, notes Texas’s well- 
documented history of discrimination in education and 
argues that its effects continue today at the law school, 
both in the level of educational attainment of the average 
minority applicant and in the school’s reputation.

In contrast to its approach to the diversity 
rationale, a majority of the Supreme Court has held that 
a state actor may racially classify where it has a "strong 
basis in the evidence for its conclusion that remedial 
action was necessary." Croson, 488 U.S. at 500, 109 S. Ct. 
at 730 (quoting Wygant, Mb U.S. at 277, 106 S. Ct. at 
1849 (plurality opinion)). Generally, "[i]n order to justify 
an affirmative action program, the State must show there 
are 'present effects of past discrimination.’ " Hopwood v. 
Texas ("Hopwood 7"),38 21 F.3d 603, 605 (5th Cir. 1994) 
(per curiam) (quoting Podberesky v. Kirwan, 956 F.2d 52,
57 (4th Cir. 1992), cert, denied, ___U .S .___ , 115 S. Ct.
2001, 131 L. Ed. 2d 1002 (1995)); see also Wygant, 476

38Hopwood I  is the first appeal of the intervention issue that 
we address infra.



42a

U.S. at 280, 106 S. Ct. at 1850 (opining that "in order to 
remedy the effects of prior discrimination, it may be 
necessary to take race into account") (opinion of Powell,
J.).39

39Unfortunately, the precise scope of allowable state action 
is of somewhat undefined contours. Indeed, it is not evident 
whether permitted remedial action extends to the "present 
effects of past discrimination." This language, derived from 
Justice Brennan’s opinion in Bakke, 438 U.S. at 362-66, 98 S. 
Ct. at 2784-87, appears intended to present little resistance to 
wide-ranging affirmative action plans.

While Justice Brennan began by stating that schools 
have a duty affirmatively to erase the vestiges of their past 
discriminatory practices, he compared this duty to the power of 
Congress to enforce § 1 of the Fourteenth Amendment through 
§ 5. He reasoned that under that wide-ranging power, the 
beneficiaries of such a program need not present proof that 
they were discriminated against; a showing that they were in 
the general class was sufficient. Id. at 363-64, 98 S. Ct. at
2785- 86. Nor would a school need judicial findings of past 
discrimination. Id. at 364, 98 S. Ct. at 2785-86. Finally, he 
argued that such beneficiaries would not even have to show 
that that school had a history of past discrimination, but need 
only suggest that they were the victims of general societal 
discrimination that prevented them from being otherwise 
qualified to enter the school. Id. at 365-66, 98 S. Ct. at
2786- 87. Hence, under this standard, almost any school could 
adopt an affirmative action plan.

There is no question, however, that subsequent 
Supreme Court opinions, notably Wygant and Croson, have 
rejected broad state programs that purport to be remedial and 
that, presumably, would have satisfied Justice Brennan’s 
standard for meeting the "present effects of past 
discrimination." And some members of the Court would limit



43a

Because a state does not have a compelling state 
interest in remedying the present effects of past societal 
discrimination, however, we must examine the district 
court’s legal determination that the relevant governmental 
entity is the system of education within the state as a 
whole. Moreover, we also must review the court’s 
identification of what types of present effects of past 
discrimination, if proven, would be sufficient under strict 
scrutiny review. Finally, where the state actor puts forth 
a remedial justification for its racial classifications, the 
district court must make a "factual determination" as to 
whether remedial action is necessary. Wygant, 476 U.S. at 
277-78, 106 S. Ct. at 1848-49. We review such factual 
rulings for clear error.

1 .

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

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



44a

opinion of Powell, J.) (citing Hazelwood School Dist. v. 
United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 
768 (1977)).40 In Wygant, the Court analyzed a collective 
bargaining agreement between a school board and a 
teacher’s union that allowed the board to give minorities 
preferential treatment in the event of layoffs. A plurality 
rejected the theory that such a program was justified 
because it provided minority role models. Id. at 274-77, 
106 S. Ct. at 1847-49 (plurality opinion). Such a claim 
was based upon remedying "societal discrimination," a 
rationale the Court consistently has rejected as a basis for 
affirmative action. Accordingly, the state’s use of 
remedial racial classifications is limited to the harm 
caused by a specific state actor.41

Moreover, the plurality in Wygant held that before 
a state actor properly could implement such a plan, it 
"must ensure that . . .  it has convincing evidence that 
remedial action is warranted." Id. at 277, 106 S. Ct. at 
1848. Accord id. at 289, 106 S. Ct. at 1854-55 (O’Connor,

wSee Wygant, 476 U.S. at 286, 106 S. Ct. at 1853 (opinion 
of O’Connor, J., concurring in part and concurring in 
judgment) ("The Court is in agreement that whatever the 
formulation employed, remedying past or present racial 
discrimination by a state actor is a sufficiently weighty state 
interest to warrant remedial use of a carefully constructed 
affirmative action program.").

41See also id. at 288, 106 S. Ct. at 1854 (O’Connor, J., 
concurring in part and concurring in judgment) ("I agree with 
the plurality that a government agency’s interest in remedying 
‘societal’ discrimination, that is discrimination not traceable to 
its own actions, cannot be deemed sufficiently compelling to 
pass constitutional muster under strict scrutiny.").



45a

J-; concurring in part and concurring in judgment). The 
plurality felt that "[i]n the absence of particularized 
findings, a court could uphold remedies that are ageless 
in their reach into the past, and timeless in their ability to 
affect the future." Id. at 276, 106 S. Ct. at 1848.

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

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

488 U.S. at 498, 109 S. Ct. at 724.42 The Court refused 
to accept indicia of past discrimination in anything but

42Justice O’Connor was joined by Chief Justice Rehnquist 
and Justices White, Stevens, and Kennedy in this portion of the 
opinion.



46a

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

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

Applying the teachings of Croson and Wygant, we 
conclude that the district court erred in expanding the 
remedial justification to reach all public education within 
the State of Texas. The Supreme Court repeatedly has 
warned that the use of racial remedies must be carefully 
limited, and a remedy reaching all education within a 
state addresses a putative injury that is vague and 
amorphous. It has "no logical stopping point." Wygant, 
476 U.S. at 275, 106 S. Ct. at 1847 (plurality opinion).

The district court’s holding employs no viable 
limiting principle. If a state can "remedy" the present 
effects of past discrimination in its primary and secondary 
schools, it also would be allowed to award broad-based 
preferences in hiring, government contracts, licensing, and 
any other state activity that in some way is affected by the 
educational attainment of the applicants. This very 
argument was made in Croson and rejected:



47a

The "evidence" relied upon by the dissent, history 
of school desegregation in Richmond and 
numerous congressional reports, does little to 
define the scope of any injury to minority 
contractors in Richmond or the necessary remedy. 
The factors relied upon by the dissent could justify 
a preference of any size or duration.

488 U.S. at 505, 109 S. Ct. at 728. The defendants’ 
argument here is equally expansive.43

Strict scrutiny is meant to ensure that the purpose 
of a racial preference is remedial. Yet when one state 
actor begins to justify racial preferences based upon the 
actions of other state agencies, the remedial actor’s 
competence to determine the existence and scope of the 
harm -and the appropriate reach of the remedy—is called 
into question. The school desegregation cases, for 
example, concentrate on school districts—singular 
government units—and the use of interdistrict remedies is
strictly limited. See Missouri v. Jenkins,___U .S.___ , ___,
115 S. Ct. 2038, 2048, 132 L. Ed. 2d 63 (1995); Milliken 
v. Bradley, 418 U.S. 717, 745, 94 S. Ct. 3112, 3127, 41 L. 
Ed. 2d 1069 (1974) ("[Wjithout an interdistrict violation 
and interdistrict effect, there is no constitutional wrong

43The fact that the plaintiffs named the State of Texas as 
one defendant does not mean that it is proper to scrutinize the 
state as the relevant past discriminator. This argument 
confuses a theory of liability with a justification for a limited 
racial remedy. The State of Texas simply may be responsible 
for the wrongs of the law school, which is a governmental 
entity the state has created. The Supreme Court, however, has 
limited the remedial interest to the harm wrought by a specific 
governmental unit.



48a

calling for an interdistrict remedy."). Thus, one 
justification for limiting the remedial powers of a state 
actor is that the specific agency involved is best able to 
measure the harm of its past discrimination.

Here, however, the law school has no comparative 
advantage in measuring the present effects of 
discrimination in primary and secondary schools in Texas. 
Such a task becomes even more improbable where, as 
here, benefits are conferred on students who attended 
out-of-state or private schools for such education. Such 
boundless "remedies" raise a constitutional concern 
beyond mere competence. In this situation, an inference 
is raised that the program was the result of racial social 
engineering rather a desire to implement a remedy.

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

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



49a

harms cannot survive constitutional scrutiny. Obviously, 
none of those predicates has been satisfied here.

We further reject the proposition that the 
University of Texas System, rather than the law school, is 
the appropriate governmental unit for measuring a 
constitutional remedy. The law school operates as a 
functionally separate unit within the system. As with all 
law schools, it maintains its own separate admissions 
program. The law school hires faculty members that meet 
the unique requirements of a law school and has its own 
deans for administrative purposes. Thus, for much the 
same reason that we rejected the educational system as 
the proper measure-generally ensuring that the 
legally-imposed racially discriminatory program is 
remedial—we conclude that the University of Texas 
System is itself too expansive an entity to scrutinize for 
past discrimination.44

44And again, any such remedy here would be grossly 
speculative. As the defendants concede and the district court 
found, there is no recent history of overt sanctioned 
discrimination at the University of Texas. Hopwood, 861 F. 
Supp. at 572. Nor does the record even suggest such 
discrimination at any of the other component schools of the 
University of Texas System. Thus, any harm caused to the 
students of those institutions would be the result of the present 
effects of past discrimination.

We do note that the law school is not autonomous. In 
Texas, the management of higher education has been divided 
by the legislature into different "systems." See 12 TEX. JUR. 
3D, Colleges and Universities § 2 (1993). The University of 
Texas at Austin, with which the law school is associated, is part 
of the University of Texas System. TEX. EDUC. CODE ANN. 
§§ 67.01 to 67.62 (West 1991). Accordingly, the legislature,



50a

In sum, for purposes of determining whether the 
law school’s admissions system properly can act as a 
remedy for the present effects of past discrimination, we 
must identify the law school as the relevant alleged past 
discriminator. The fact that the law school ultimately may 
be subject to the directives of others, such as the board of 
regents, the university president, or the legislature, does 
not change the fact that the relevant putative 
discriminator in this case is still the law school. In order 
for any of these entities to direct a racial preference 
program at the law school, it must be because of past 
wrongs at that school.

2.

Next, the relevant governmental discriminator must 
prove that there are present effects of past discrimination 
of the type that justify the racial classifications at issue:

To have a present effect of past discrimination 
sufficient to justify the program, the party seeking 
to implement the program must, at a minimum, 
prove that the effect it proffers is caused by the

which has ultimate control over the school, has delegated its 
"management and control" to the regents of the University of 
Texas System. Id. § 67.02. Thus, the law school is governed by 
both the legislature and the university’s board of regents. Yet, 
while the state’s higher authorities may have the power to 
require the law school to remedy its past wrongs, they may do 
so consistently with the Constitution only if the remedial 
actions are directed at the law school. This requirement is 
what the Supreme Court dictated by limiting the remedial 
purpose to the "governmental unit involved." 1Wygant, 476 U.S. 
at 274, 106 S. Ct. at 1847 (plurality opinion).



51a

past discrimination and that the effect is of
sufficient magnitude to justify the program.

Podberesky v. Kirwan, 38 F.3d 147, 153 (4th Cir. 1994),
cert, denied,___U .S .___ , 115 S. Ct. 2001, 131 L. Ed. 2d
1002 (1995). Moreover, as part of showing that the 
alleged present effects of past discrimination in fact justify 
the racial preference program at issue, the law school 
must show that it adopted the program specifically to 
remedy the identified present effects of the past 
discrimination.

Here, according to the district court: "The
evidence presented at trial indicates those effects include 
the law school’s lingering reputation in the minority 
community, particularly with prospective students, as a 
"white" school; an underrepresentation of minorities in the 
student body; and some perception that the law school is 
a hostile environment for minorities." 861 F. Supp. at 
572. Plaintiffs now argue that these three alleged effects 
are at most examples of societal discrimination, which the 
Supreme Court has found not to be a valid remedial basis. 
"The effects must themselves be examined to see whether 
they were caused by the past discrimination and whether 
they are of a type that justifies the program." Podberesky, 
38 F.3d at 154.

As a legal matter, the district court erred in 
concluding that the first and third effects it identified-bad 
reputation and hostile environment—were sufficient to 
sustain the use of race in the admissions process. The 
Fourth Circuit examined similar arguments in Podberesky, 
a recent case that struck down the use of race-based 
scholarships. The university in that case sought, in part, 
to justify a separate scholarship program based solely



52a

upon race because of the university’s "poor reputation 
within the African-American community" and because 
"the atmosphere on campus [was] perceived as being 
hostile to African-American students." Id. at 152.

The Podberesky court rejected the notion that 
either of these rationales could support the single-race 
scholarship program. The court reasoned that any poor 
reputation by the school "is tied solely to knowledge of 
the University’s discrimination before it admitted 
African-American students." Id. at 154. The court found 
that "mere knowledge of historical fact is not the kind of 
present effect that can justify a race-exclusive remedy. If 
it were otherwise, as long as there are people who have 
access to history books, there will be programs such as 
this." Id.

We concur in the Fourth Circuit’s observation that 
knowledge of historical fact simply cannot justify current 
racial classifications. Even if, as the defendants argue, the 
law school may have a bad reputation in the minority 
community, "[t]he case against race-based preferences 
does not rest on the sterile assumption that American 
society is untouched or unaffected by the tragic 
oppression of its past." Maryland Troopers Ass’n v. Evans, 
993 F.2d 1072, 1079 (4th Cir. 1993). "Rather, it is the 
very enormity of that tragedy that lends resolve to the 
desire to never repeat it, and find a legal order in which 
distinctions based on race shall have no place." Id. 
Moreover, we note that the law school’s argument is even 
weaker than that of the university in Podberesky, as there 
is no dispute that the law school has never had an 
admissions policy that excluded Mexican Americans on 
the basis of race.



53a

The Podberesky court rejected the hostile- 
environment claims by observing that the "effects"-that is, 
racial tensions-were the result of present societal 
discrimination. 38 F.3d at 155. There was simply no 
showing of action by the university that contributed to any 
racial tension. Similarly, one cannot conclude that the 
law school’s past discrimination has created any current 
hostile environment for minorities. While the school once 
did practice dejure discrimination in denying admission to 
blacks, the Court in Sweatt v. Painter, 339 U.S. 629, 70 S. 
Ct. 848, 94 L. Ed. 1114 (1950), struck down the law 
school’s program. Any other discrimination by the law 
school ended in the 1960’s. Hopwood, 861 F. Supp. at 
555.

By the late 1960’s, the school had implemented its 
first program designed to recruit minorities, id. at 557, 
and it now engages in an extensive minority recruiting 
program that includes a significant amount of scholarship 
money. The vast majority of the faculty, staff, and 
students at the law school had absolutely nothing to do 
with any discrimination that the law school practiced in 
the past.

In such a case, one cannot conclude that a hostile 
environment is the present effect of past discrimination. 
Any racial tension at the law school is most certainly the 
result of present societal discrimination and, if anything, 
is contributed to, rather than alleviated by, the overt and 
prevalent consideration of race in admissions.

Even if the law school’s alleged current lingering 
reputation in the minority community—and the perception 
that the school is a hostile environment for minorities— 
were considered to be the present effects of past



54a

discrimination, rather than the result of societal 
discrimination, they could not constitute compelling state 
interests justifying the use of racial classifications in 
admissions. A bad reputation within the minority 
community is alleviated not by the consideration of race 
in admissions, but by school action designed directly to 
enhance its reputation in that community.

Minority students who are aided by the law 
school’s racial preferences have already made the decision 
to apply, despite the reputation. And, while prior 
knowledge that they will get a "plus" might make potential 
minorities more likely to apply, such an inducement does 
nothing, per se, to change any hostile environment. As 
we have noted, racial preferences, if anything, can 
compound the problem of a hostile environment.45

The law school wisely concentrates only on the 
second effect the district court identified: 
underrepresentation of minorities because of past 
discrimination. The law school argues that we should 
consider the prior discrimination by the State of Texas 
and its educational system rather than of the law school. 
The school contends that this prior discrimination by the 
state had a direct effect on the educational attainment of 
the pool of minority applicants and that the discriminatory 
admissions program was implemented partially to 
discharge the school’s duty of eliminating the vestiges of 
past segregation.

4SThe testimony of several minority students underscores 
this point. They stated generally that they felt that other 
students did not respect them because the other students 
assumed that minorities attained admission because of the 
racial preference program.



55a

As we have noted, the district court accepted the 
law school’s argument that past discrimination on the part 
of the Texas school system (including primary and 
secondary schools), reaching back perhaps as far as the 
education of the parents of today’s students, justifies the 
current use of racial classifications.46 No one disputes 
that Texas has a history of racial discrimination in 
education. We have already discussed, however, that the 
Croson Court unequivocally restricted the proper scope of 
the remedial interest to the state actor that had previously 
discriminated. 488 U.S. at 499, 109 S. Ct. at 724-25. The

46The argument is that because the state discriminated in its 
primary and secondary school systems, the students’ 
educational attainment was adversely affected, and this harm 
extended to their higher education, thus justifying giving 
current applicants a "plus" based on race. This reasoning is 
especially important in justifying benefits for Mexican 
Americans, as there is no evidence that the law school 
implemented de jure (or even de facto) discrimination against 
this group in its admissions process. Because this logic ignores 
the relevant actions in this case, i.e., discrimination by the law 
school, it is not necessary for us to examine the potential 
causational flaws in the argument.

Moreover, if we did find that the past wrongs of Texas 
school districts were the sort of discrimination that the law 
school could address, the school still would have to prove the 
present effects of that past wrong. Without some strong 
evidence in the record showing that today’s law school 
applicants still bear the mark of those past systems, such effects 
seem grossly speculative. The district court simply assumed 
that "[tjhis segregation has handicapped the educational 
achievement of many minorities . . . ." 861 F. Supp. at 573. 
And we would still have to ask whether the program was 
narrowly tailored to this goal.



56a

district court squarely found that "[i]n recent history, 
there is no evidence of overt officially sanctioned 
discrimination at the University of Texas." 861 F. Supp. 
at 572. As a result, past discrimination in education, 
other than at the law school, cannot justify the present 
consideration of race in law school admissions.

The law school now attempts to circumvent this 
result by claiming that its racial preference program is 
really a "State of Texas" plan rather than a law school 
program. Under the law school’s reading of the facts, its 
program was the direct result of the state’s negotiations 
with what was then the United States Department of 
Health, Education and Welfare’s Office for Civil Rights 
("OCR"). To bring the Texas public higher education 
system into compliance with title VI, the state adopted 
the so-called "Texas Plan."

In light of our preceding discussion on the relevant 
governmental unit, this argument is inapposite. Even if 
the law school were specifically ordered to adopt a racial 
preference program, its implementation at the law school 
would have to meet the requirements of strict scrutiny.47

47To the extent that the OCR has required actions that 
conflict with the Constitution, the directives cannot stand. The 
Supreme Court has addressed required state compliance with 
federal law in the voting rights context. Miller v. Johnson, _
U .S .___, ___, 115 S. Ct. 2475, 2491, 132 L. Ed. 2d 762 (1995)
("As we suggested in Shaw [v. Reno, 509 U.S. 630,___-___, 113
S. Ct. 2816, 2830-31, 125 L. Ed. 2d 511 (1993) ], compliance 
with federal antidiscrimination laws cannot justify race-based 
districting where the challenged district was not reasonably 
necessary under a constitutional reading and application o f those 
laws.") (emphasis added).



57a

Moreover, these alleged actions in the 1980’s are 
largely irrelevant for purposes of this appeal. There is no 
indication that the Texas Plan imposed a direct obligation 
upon the law school. To the contrary, the law school’s 
admissions program was self-initiated. Moreover, the 
current admissions program was formulated primarily in 
the 1990’s, and the district court did not hold otherwise. 
See 861 F. Supp. at 557 ("Against this historical backdrop 
[including Texas’s dealing with the OCR], the law school’s 
commitment to affirmative action in the admissions 
process evolved."). Thus it is no more correct to say that 
the State of Texas implemented the program at issue than 
it is to assert that the Commonwealth of Virginia, not the 
City of Richmond, was responsible for the minority 
set-aside program in Croson.

The district court also sought to find a remedial 
justification for the use of race and, at the same time, 
attempted to distinguish Croson using United States v. 
Fordice, 505 U.S. 717, 112 S. Ct. 2727, 120 L. Ed. 2d 575 
(1992). The court held that the law school had a 
compelling interest to "desegregate" the school through 
affirmative action.

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

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



58a

2737-38.48 49 In other words, a state has an affirmative 
duty to remove policies, tied to the past, by which it 
continues to discriminate. The Fordice Court did not 
address, in any way, a state actor’s duty to counter the 
present effects of past discrimination that it did not

49cause.

In sum, the law school has failed to show a 
compelling state interest in remedying the present effects 
of past discrimination sufficient to maintain the use of 
race in its admissions system. Accordingly, it is

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

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

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

49In Croson, Justice O’Connor did argue that a state may 
act to prevent its powers from being used to support private 
discrimination. 488 U.S. at 491-92, 109 S. Ct. at 720-21 
(plurality opinion) ("[A] state or local subdivision, (if delegated 
the authority from the State) has the authority to eradicate the 
effects of private discrimination within its own legislative 
jurisdiction.") (emphasis added). Hence, a specific state actor 
can act to prevent the state from being used as a "passive 
participant" in private discrimination. This power does not 
create wide-ranging authority to remedy societal discrimination, 
however.



59a

unnecessary for us to examine the district court’s 
determination that the law school’s admissions program 
was not narrowly tailored to meet the compelling interests 
that the district court erroneously perceived.50

50The plaintiffs argue that indeed there is no narrow 
tailoring, for at least the following reasons: (1) In 1992, more 
than two-thirds of all admission offers to blacks, and a majority 
of all blacks who matriculated, involved out-of-state residents, 
thus undercutting the law school’s stated purpose of remedying 
past discrimination in Texas. (2) The system of preferences has 
no termination date, thus indicating that there is no connection 
between the plan and a bona fide remedial purpose. (3) 
Preference is given even to blacks and Mexican Americans who 
graduated from private secondary schools and thus did not 
suffer from state-ordered racial discrimination.

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

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

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



60a

IV.

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

A.

We must decide who bears the burden of proof on 
the damages issue. The district court refused to order the 
plaintiffs’ admission (or award any compensatory 
damages), as it found that they had not met their burden 
of persuasion in attempting to show that they would have 
been admitted absent the unconstitutional system. 861 F. 
Supp. at 579-82.51 The law school now argues that the 
plaintiffs had the burden of persuasion on the issue of 
damages and that the district court’s findings are not 
clearly erroneous.52 The plaintiffs maintain, as they did

college graduation rate and therefore would be entitled to the 
most benefit from the designed remedy. The goals established 
by the law school are precisely the reverse of that intuitive 
expectation and are more reflective of a goal of diversity 
(which we hold is not compelling) than of a goal of remedying 
past discrimination.

51This finding also affected the court’s analysis in denying 
prospective relief and compensatory damages.

52The district court applied a burden-shifting scheme similar 
to the methodology used in the title VII context. 861 F. Supp.



61a

in the district court, that once they had shown a 
constitutional violation, the burden of persuasion shifted 
to the school to show that the denial of admission was not 
caused by that violation.

The well-established rule is that in order to collect 
money damages, plaintiffs must prove that they have been 
injured. Carey v. Piphus, 435 U.S. 247, 254-57, 98 S. Ct. 
1042, 1047-49^ 55 L. Ed. 2d 252 (1978). Several Supreme 
Court cases, however, allow for a transfer of burden upon 
proof of discrimination. See Mt. Healthy City Sch., Dist. 
Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S. Ct. 568, 
574-75, 50 L. Ed. 2d 471 (1977); Village of Arlington 
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 
265-66, 97 S. Ct. 555, 563-64, 50 L. Ed. 2d 450 (1977).53

In Mt. Healthy, a discharged school teacher sued 
for reinstatement, claiming his termination was a result of 
comments he had made on a radio show, a violation of his 
First and Fourteenth Amendment rights. The Court 
devised a test of "causation" that placed the burden of 
proving no harm on the defendant:

Initially, . . . the burden was properly placed upon

at 579-80 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 
113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)). The law school 
concedes that the burden-shifting exercise was unnecessary, but 
it maintains nonetheless that the "ultimate burden of proof," 
including proof of damages, rests upon the plaintiffs. See id.

53Some of Justice Powell’s dicta in Bakke also squarely 
supports the plaintiffs’ claim that once discrimination is proved, 
the defendant bears the burden of proving no damage. Bakke, 
438 U.S. at 320, 98 S. Ct. at 2763-64 (opinion of Powell, J.).



62a

the respondent to show that his conduct was 
constitutionally protected, and that this conduct 
was a "substantial factor"—or to put it in other 
words, that it was a "motivating factor" in the 
Board’s decision not to rehire him. Respondent 
having carried that burden, however, the District 
Court should have gone on to determine whether 
the Board had shown by a preponderance of the 
evidence that it would have reached the same 
decision as to the respondent’s reemployment even 
in the absence of the protected conduct.

429 U.S. at 287, 97 S. Ct. at 576. In Arlington Heights, the 
Court applied a similar rule where the decision of a 
zoning board was challenged as racially discriminatory. 
See 429 U.S. at 270 n.21, 97 S. Ct. at 566 n.21. In sum, 
these cases allow a defendant, who intended to 
discriminate or otherwise act unconstitutionally, to show 
that its action would have occurred regardless of that 
intent.

Courts are split on whether the Mt. Healthy rubric 
applies in racial preference cases.54 We conclude that

54Compare Henson v. University o f Ark., 519 F.2d 576,577-78 
(8th Cir.1975) (per curiam) (placing burden of persuasion on 
white applicant to show affirmative action program prevented 
her admission) and Martin v. Charlotte-Mecklenburg Bd. o f 
Educ., 475 F. Supp. 1318, 1345 (W.D.N.C. 1979) (holding that 
plaintiff in non-class action bears burden of proving damages) 
with Donnelly v. Boston College, 558 F.2d 634, 635 (1st Cir. 
1977) (dictum ) (citing Bakke and Mt. Healthy, but finding no 
causation, as evidence showed that plaintiff would not have 
been admitted regardless of affirmative action) and Heit v. 
Bugbee, 494 F. Supp. 66, 66-67 (E.D. Mich. 1980) (adopting



63a

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

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

As the district court held, to the contrary, that 
plaintiffs had the burden, it should revisit this issue in 
light of what we have said in both the liability and 
remedial portions of this opinion.55 In the event that the

Bakke andMf. Healthy reasoning in toto for firefighter's reverse 
discrimination claims) and United States v. McDonald, 553 F. 
Supp. 1003, 1006 (S.D. Tex. 1983) (dictum) (same for 
discriminatory criminal prosecution).

ssThe district court concluded that the plaintiffs proved only 
that they had been denied equal treatment but had failed to 
"prove an injury-in-fact." 861 F. Supp. at 582. To the extent 
that the court felt that plaintiffs failed to show injury-in-fact 
because they failed to prove that they would have been 
admitted under a constitutional admissions system, this 
conclusion should be revisited on remand, where the district



64a

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

Obviously, if the school proves that a plaintiff 
would not have gained admittance to the law school under 
a race-blind system, that plaintiff would not be entitled to 
an injunction admitting him to the school. On the other 
hand, the law school’s inability to establish a plaintiffs 
non-admission-if that occurs on remand-opens a panoply 
of potential relief, depending in part upon what course 
that plaintiffs career has taken since trial in mid-1994. It 
then would be up to the district court, in its able 
discretion, to decide whether money damages* 56 can 
substitute for an order of immediate admission—relief that 
would ring hollow for a plaintiff for whom an education 
at the law school now is of little or no benefit.57

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

56We do not opine on any Eleventh Amendment immunity 
in this case. See, e.g., United Carolina Bank v. Board o f Regents, 
665 F.2d 553, 561 (5th Cir. Unit A 1982) (holding that the 
Eleventh Amendment barred a civil rights suit brought by a 
professor against university officials in their official capacities). 
This issue is simply not before us.

57For example, if the school is unable to show that plaintiff 
Carvell would not have gained admission even under a 
constitutional admissions system, he may be entitled to be 
compensated for the difference, to which he testified, between 
tuition at the law school and tuition at Southern Methodist



65a

Additionally, the district court erred in holding that 
plaintiffs did not prove that defendants had committed 
intentional discrimination under title VI. "Intentional 
discrimination," as used in this context, means that a 
plaintiff must prove "that the governmental actor, in 
adopting or employing the challenged practices or 
undertaking the challenged action, intended to treat 
similarly situated persons differently on the basis of race." 
Castaneda v. Pickard, 648 F.2d 989, 1000 (5th Cir. Unit A 
June 1981); see also Franklin v. Gwinnett County Pub. Sch., 
503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992); 
Guardians A ss’n v. Civil Serv. Comm’n, 463 U.S. 582, 103 
S. Ct. 3221, 77 L. Ed. 2d 866 (1983). While we agree 
with the district court’s conclusion that the various 
defendants acted in good faith, there is no question that 
they intended to treat the plaintiffs differently on account 
of their race.

B.

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

University School of Law, which he attended instead. The 
district court should also consider the following paradox: The 
law school argued strenuously that plaintiff Elliott did not have 
standing to sue, as he had been offered admission to the 
school-albeit at the last moment-and had failed to accept that 
offer. The district court found that this offer of admission had 
not been communicated to Elliott. 861 F. Supp. at 566. In 
considering damages, however, the court held that "in all 
likelihood, the plaintiffs would not have been offered admission 
even under a constitutionally permissible process." Id. at 581. 
The district court should re-examine these contradictory results.



66a

prospective injunctive relief. We review denials of this 
sort of relief for an abuse of discretion. See, e.g., Peaches 
Entertainment Corp. v. Entertainment Repertoire Associates, 
62 F.3d 690, 693 (5th Cir. 1995). The law school avers 
that the district court was well within its equitable 
discretion in denying relief, especially as the school had 
abandoned the practices that the district court had found 
were unconstitutional-to-wit, the use of separate 
admissions committees for whites and minorities.

We review denials of prospective injunctive relief 
as we would any other denial of permanent injunctive 
relief under FED. R. CIV. P. 65, keeping in mind, 
however, the questions of mootness, ripeness, and 
standing. See generally 11A CHARLES A. WRIGHT, 
ARTHUR R. MILLER & MARY KAY KANE, 
FEDERAL PRACTICE AND PROCEDURE § 2942 (2d 
ed. 1995). That treatise notes that

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



67a

Id. at 41-42. Accordingly, the usual practice upon reversal 
of a denial of injunctive relief is to remand for a 
reweighing of the equities. Id. § 2962, at 448; See, e.g., 
James v. Stockham Valves & Fittings Co., 559 F.2d 310, 
354-55 (5th Cir. 1977). In other situations, the appellate 
court may order the district court to enter an injunction. 
See, e.g., Southeastern Promotions, Ltd. v. City of Mobile, 
457 F.2d 340 (5th Cir. 1972).

According to the district court, the school had 
abandoned the admissions procedure-consisting of the 
separate minority subcommittee—that was used in 1992, 
1993, and 1994. The court reasoned that, as a new 
procedure was developed for 1995, a prospective 
injunction against the school was inappropriate. We 
conclude, however, that, while the district court may have 
been correct in deciding that the new procedure 
eliminates the constitutional flaws that the district court 
identified in the 1992 system, there is no indication that 
the new system will cure the additional constitutional 
defects we now have explained.

The new system utilizes a small "administrative 
admissions group" and does not use presumptive 
admission and denial scores. See Hopwood, 861 F. Supp. 
at 582 n.87. Most significantly, there is no indication that 
in employing the new plan, the law school will cease to 
consider race per se in making its admissions decisions. 
To the contrary, as the district court recognized, the law 
school continues to assert that overt racial preferences are 
necessary to the attainment of its goals. See Hopwood, 
861 F. Supp. at 573-75.

The district court has already granted some 
equitable relief: It directed that the plaintiffs be



68a

permitted to re-apply to the law school without incurring 
further administrative costs. In accordance with this 
opinion, the plaintiffs are entitled to apply under a system 
of admissions that will not discriminate against anyone on 
the basis of race. Moreover, the plaintiffs have shown 
that it is likely that the law school will continue to take 
race into account in admissions unless it receives further 
judicial instruction to the effect that it may not do so for 
the purpose of (1) obtaining a diverse student body; (2) 
altering the school’s reputation in the community; (3) 
combating the school’s perceived hostile environment 
toward minorities; or (4) remedying the present effects of 
past discrimination by actors other than the law school.

It is not necessary, however, for us to order at this 
time that the law school be enjoined, as we are confident 
that the conscientious administration at the school, as well 
as its attorneys, will heed the directives contained in this 
opinion. If an injunction should be needed in the future, 
the district court, in its discretion, can consider its 
parameters without our assistance. Accordingly, we leave 
intact that court’s refusal to enter an injunction.

C.

The plaintiffs contend that the district court’s application 
of the wrong standard causes it to deny punitive damages. 
The plaintiffs aver that the court applied an animus 
standard, when it should have asked whether the school 
acted with "reckless indifference" to their constitutional 
rights. They ask for a remand on this issue.

It is not apparent, from the record, what standard 
the district court applied in considering the punitive 
damages issue. The court did determine, however, that



69a

the law school had always acted in good faith. This is a 
difficult area of the law, in which the law school erred 
with the best of intentions. As a result, the plaintiffs have 
not met the federal standard for punitive damages as 
stated in Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 
1640, 75 L. Ed. 2d 632 (1983). Thus, we agree with the 
district court that punitive damages are not warranted. 
We note, however, that if the law school continues to 
operate a disguised or overt racial classification system in 
the future, its actors could be subject to actual and 
punitive damages.

V.

Consolidated with the appeal of the merits issues 
of this appeal is No. 94-50569, challenging the district 
court’s denial of a motion to intervene. The proposed 
intervenors-the Thurgood Marshall Legal Society and the 
Black Pre-Law Association (the "associations")—ask this 
court, for the second time, for the right to intervene. On 
their first attempt, the associations moved to intervene 
prior to trial either as of right or by permission. The 
district court denied intervention, and we affirmed. See 
Hopwood v. Texas, 21 F.3d 603 (5th Cir. 1994) (per 
curiam) ("Hopwood F).

Now, following the trial, the associations believe 
they can show that the law school has failed to assert one 
of their proposed defenses, a circumstance they contend 
establishes their right to intervene. We apply the law of 
the case doctrine and dismiss No. 94-50569 for want of 
jurisdiction.



70a

A.

The proposed intervenors are black student 
organizations at the University of Texas at Austin and its 
law school that, just prior to the trial of the merits appeal, 
sought to intervene, arguing that the law school would not 
effectively protect their interests in continuing racial 
preferences at the law school. The district court denied 
the proposed intervention on the ground that the law 
school and the two associations had the same objective: 
preservation of the status quo.

On expedited appeal, this court affirmed on the 
ground that the associations had failed to show that the 
law school had an interest different from theirs. We also 
commented that the two groups had failed to show "a 
separate defense of the affirmative action plan that the 
State has failed to assert." Id. at 606. The panel 
implicitly considered and rejected, as one potential 
divergence of interests, the possibility that the law school 
would not raise a defense based upon the legality of the 
use of TI scores under title VI, as the associations argued 
that possibility as one basis for intervention.

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



71a

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

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

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

B.

There is no caselaw in this circuit that directly 
addresses how to review successive motions to 
intervene.58 The parties direct us to Hodgson v. United

58There is circuit law regarding successive motions, but the 
pertinent opinions do not examine the standard of review 
explicitly. See, e.g., Kneeland v. National Collegiate Athletic 
Ass’n, 806 F.2d 1285 (5th Cir.) (implicit application of de novo 
review without discussion of standard), cert, denied, 484 U.S. 
817, 108 S. Ct. 72, 98 L. Ed. 2d 35 (1987); United States v. 
Louisiana, 669 F.2d 314, 315 (5th Cir. 1982) (application of 
abuse of discretion review for timeliness determination on 
second motion where proposed intervenor failed to argue for



72a

Mine Workers, 473 F.2d 118, 125-26 (D.C. Cir. 1972); 
United States Envt’l Protection Agency v. City o f Green 
Forest, 921 F.2d 1394, 1401 (8th Cir. 1990), cert, denied, 
502 U.S. 956, 112 S. Ct. 414, 116 L. Ed. 2d 435 (1991); 
and Meek v. Metropolitan Dade County, 985 F.2d 1471, 
1477 (11th Cir. 1993). These courts, which were 
examining whether the appeal from a successive motion 
was timely as per the appellate requirements, devised the 
general rule that a second motion would be treated as 
independent of the first if it was reached under materially 
changed circumstances.

Here, the associations assume that their second 
intervention motion is separate and distinct from their 
earlier failed attempt, because the law school’s failure to 
raise their proposed defense constitutes a changed 
circumstance.59 Thus, they ask that we engage in de

first motion after remand); Calvert Fire Ins. Co. v. Environs 
Dev. Corp., 601 F.2d 851, 857 (5th Cir. 1979) (implicit 
application of de novo review where district court treated 
second motion as both a reconsideration of prior motion and 
a new motion).

59The associations ground this argument in language taken 
from the prior appeal. One necessary element for intervention 
is a showing that the present parties will inadequately represent 
the proposed intervenors’ interests. While the associations lost 
on this ground on the last appeal, they now claim that the 
opinion supports the argument that the law school’s defense is 
inadequate. In the last appeal, we cited Jansen v. City o f 
Cincinnati, 904 F.2d 336 (6th Cir. 1990), as support for the 
following statement: "Nor have the proposed intervenors
shown that they have a separate defense of the affirmative 
action plan that the State has failed to assert." Hopwood I, 21 
F.3d at 606. Because the law school, now after trial, still has



73a

novo review of their motion.

The plaintiffs, however, note that this motion was 
entitled a "renewed motion for intervention." The 
plaintiffs argue that the district court was reconsidering its 
previous denial order under its FED. R. CIV. P. 60(b) 
powers, and we should review merely for abuse of 
discretion.

C.

While the "changed circumstances" test may have 
merit—an issue we do not decide today—we do not find it 
applicable to this case. Instead, the "law of the case" 
doctrine militates against reconsideration of this motion. 
Normally, when a prior panel discusses an issue on the 
merits, a later panel cannot reach a contrary conclusion 
under the preclusive principle of law of the case. See 
Williams v. City of New Orleans, 763 F.2d 667, 669 (5th 
Cir. 1985). There is no question that the Hopwood I  
panel addressed the intervention as a matter of right de 
novo, on the merits, including the potential that the law

not asserted the associations’ title VI defense, the associations 
maintain that they now can meet their burden.

In Jansen, however, the court found that the proposed 
intervenors had an interest different from that of the defendant 
city. 904 F.2d at 343. This was the basis for that court’s 
holding that the city’s representation was inadequate. See id. 
("Proffering this alleged violation of the consent decree as an 
affirmative defense is directly counter to the City’s interest.") 
(emphasis added). Here, we have already found that the law 
school’s and the associations’ interests are the same. Jansen 
therefore does not support intervention.



74a

school would not raise every defense proposed by the 
associations.

The question of whether we can rely upon the law 
of the case doctrine, however, is clouded because of the 
"anomalous" rule that exists in this circuit concerning the 
procedural posture of these intervention cases. Under 
that rule, we have only provisional jurisdiction to review 
a district court’s denial of a motion to intervene.

If we agree with the district court, our jurisdiction 
"evaporates." Hence, the denial of leave to intervene 
when the party had a right to intervene is immediately 
appealable. On appeal, however, our rule "requires a 
merit review of any claim of intervention in order for [us] 
to determine whether or not the district court’s order is 
appealable." Weiser v. White, 505 F.2d 912, 916 (5th Cir. 
1975). If the claim is without merit, then the order "is not 
appealable, the appellate court has no jurisdiction, and 
the appeal should be dismissed." Id. Thus, despite the 
merits review, this is a dismissal for want of jurisdiction.60

60At least one set of commentators has eschewed this 
traditional rule. Their position is that "[a]ny denial of 
intervention should be regarded as an appealable final order." 
7C CHARLES A. WRIGHT, ARTHUR MILLER & MARY 
KAY KANE, supra, § 1923, at 508. Under this proposed rule, 
the federal court would "affirm denial of intervention when 
previously, having determined on the merits that the trial court 
was right, it would dismiss the appeal." Id. at 509. We have 
acknowledged that this would be the better rule. See Korioth 
v. Briscoe, 523 F.2d 1271, 1279 n.26 (5th Cir. 1975) (citing 
Charles A. Wright, Arthur Miller & Mary Kay Kane, supra). 
In fact, the Hopwood I  panel affirmed rather than dismissing 
for want of jurisdiction. Under the suggested rule, because we



75a

Our anomalous rule complicates the analysis of the 
preclusive effects of the prior panel decision, because 
dismissals for lack of jurisdiction normally do not have 
preclusive effect. See, e.g., FED. R. CIV. P. 41(b). 
Accordingly, while appellate courts review denials of 
intervention motions on the merits, it is uncertain to what 
extent such a review has preclusive effect. Nonetheless, 
we recognize the possibility of issue preclusion on the 
question of jurisdiction itself.

While a dismissal for lack of jurisdiction does not 
operate as an adjudication on the merits, "[tjhis provision 
means only that the dismissal permits a second action on 
the same claim that corrects the deficiency found in the 
first action. The judgment remains effective to preclude 
relitigation of the precise issue of jurisdiction or venue 
that led to the initial dismissal." 7C CHARLES A. 
WRIGHT, ARTHUR R. MILLER & EDWARD H. 
COOPER supra, § 4436, at 338.61 Thus, a party is 
precluded from successively appealing the same 
intervention motion.

61A dismissal for want of jurisdiction, however, leaves open 
the possibility that the deficiency can be cured. If that occurs, 
no issue preclusion exists. See 1C CHARLES A. WRIGHT, 
ARTHUR R. MILLER & EDWARD H. COOPER, supra, § 
4436, at 338. It is at this point in the analysis that "changed 
circumstances" may become relevant. Arguably, the "changed 
circumstances" analysis, in effect, "cures" the earlier 
jurisdictional deficiency. Thus, if the circumstances of the case 
change to such an extent that jurisdiction would lie, the 
subsequent motion to intervene should not be dismissed for 
lack of jurisdiction. In effect, the posture of the case has 
changed, as it would any time a given jurisdictional problem is 
cured.



76a

Here, the record shows that the associations raised 
this same title VI argument before the Hopwood I  panel 
in both their brief and at oral argument That panel, 
reviewing de novo the merits of the associations’ claims, 
denied intervention. Accordingly, the last panel implicitly 
addressed this issue, and we must respect its decision to 
deny intervention. The law of the case doctrine prevents 
merits review, and we dismiss No. 94-50569 for want of 
jurisdiction.62

VI.

In summary, we hold that the University of Texas 
School of Law may not use race as a factor in deciding 
which applicants to admit in order to achieve a diverse 
student body, to combat the perceived effects of a hostile 
environment at the law school, to alleviate the law

62In Hopwood I, we decided that (1) the interests of the 
associations were adequately represented by the law school and 
the state, and (2) as a practical matter, disposition in the 
principal suit would not impair or impede either of those 
groups’ interests. 21 F.3d at 605. The law of the case doctrine 
militates against revisiting that decision here. For purposes of 
any future litigation, however, we note a necessary effect of our 
previous holding when coupled with the law school’s failure to 
raise a title VI argument: Neither the district court’s decision 
nor ours in this appeal is binding on the associations as res 
judicata, law of the case, collateral estoppel, or any other 
theoretical bar.

In short, as the title VI issue has not been litigated, the 
associations are not precluded from instituting a separate and 
independent title VI challenge to the law school’s use of the 
TL We neither express nor imply an opinion on the viability 
of such a challenge.



77a

school’s poor reputation in the minority community, or to 
eliminate any present effects of past discrimination by 
actors other than the law school. Because the law school 
has proffered these justifications for its use of race in 
admissions, the plaintiffs have satisfied their burden of 
showing that they were scrutinized under an 
unconstitutional admissions system. The plaintiffs are 
entitled to reapply under an admissions system that 
invokes none of these serious constitutional infirmities. 
We also direct the district court to reconsider the 
question of damages, and we conclude that the proposed 
intervenors properly were denied intervention.

In No. 94-50569, the appeal is DISMISSED for 
want of jurisdiction. In No. 94-50664, the judgment is 
REVERSED and REMANDED for further proceedings 
in accordance with this opinion.

WIENER, Circuit Judge, specially concurring.

"We judge best when we judge least, particularly in 
controversial matters of high public interest."1 In this 
and every other appeal, we should decide only the case 
before us, and should do so on the narrowest possible 
basis. Mindful of this credo, I concur in part and, with 
respect, specially concur in part.

The sole substantive issue in this appeal is whether 
the admissions process employed by the law school for 
1992 meets muster under the Equal Protection Clause of l

lLeague o f United Latin American Citizens, Council No. 4434 
v. Clements, 999 F.2d 831, 931 (5th Cir. 1993) (Wiener, J., 
dissenting).



78a

the Fourteenth Amendment. The law school offers 
alternative justifications for its race-based admissions 
process, each of which, it insists, is a compelling interest: 
(1) remedying the present effects of past discrimination 
(present effects) and (2) providing the educational 
benefits that can be obtained only when the student body 
is diverse (diversity).2

As to present effects, I concur in the panel 
opinion’s analysis: Irrespective of whether the law school 
or the University of Texas system as a whole is deemed 
the relevant governmental unit to be tested,3 neither has 
established the existence of present effects of past 
discrimination sufficient to justify the use of a racial 
classification.4 As to diversity, however, I respectfully 
disagree with the panel opinion’s conclusion that diversity 
can never be a compelling governmental interest in a 
public graduate school. Rather than attempt to decide 
that issue, I would take a considerably narrower 
path—and, I believe, a more appropriate one—to reach an 
equally narrow result: I would assume arguendo that
diversity can be a compelling interest but conclude that 
the admissions process here under scrutiny was not 
narrowly tailored to achieve diversity.

zSee Hopwood v. State o f Tex., 861 F. Supp. 551, 570 (W.D. 
Tex. 1994).

3I agree with the panel opinion that the defendants are 
overreaching when they urge that the State of Texas or its 
primary and secondary school system should be the relevant 
governmental unit.

4Panel Opn. at 43 & n. 44.



79a

I .

THE LAW

A. EQUAL PROTECTION

The Equal Protection Clause provides that ”[n]o 
State shall . . . deny to any person within its jurisdiction 
the equal protection of the laws."5 Accordingly, "all racial 
classifications, imposed by whatever federal, state, or local 
governmental actor, must be analyzed by a reviewing 
court under strict scrutiny."6 [FN6] Racial classifications 
will survive strict scrutiny "only if they are narrowly 
tailored measures that further compelling governmental 
interests."7 Thus, strict scrutiny comprises two inquiries of 
equal valence: the "compelling interest" inquiry and the 
"narrow tailoring" inquiry.8 Moreover, these inquiries are 
conjunctive: To avoid constitutional nullity, a racial
classification must satisfy both inquiries. Failure to satisfy 
either is fatal.

5U.S. Const., amend. 14, § 1.

6Adarand Constructors, Inc. v. Pena,___U .S .___ , ___, 115
S. Ct. 2097, 2115, 132 L. Ed. 2d 158 (1995) (emphasis added).

''Id.

sSee id. a t ___, 115 S. Ct. at 2117. ("Racial classifications
. . .  must serve a compelling governmental interest and must be 
narrowly tailored to further that interest.") (emphasis added);
see also Miller v. Johnson,___U .S .___ , ___, 115 S. Ct. 2475,
2490, 132 L. Ed. 2d 762 (1995) ("To satisfy strict scrutiny, the 
State must demonstrate that its districting legislation is 
narrowly tailored to achieve a compelling governmental 
interest.").



80a

B. RACIAL CLASSIFICATION

None dispute that the law school’s admission 
process for 1992 employed a racial classification. 
Depending on an applicant’s race, his request for 
admission was considered under one of three different 
(and, as explained in the panel opinion, often 
dispositive9) TI admission ranges: one for blacks only, a 
second for Mexican Americans only, and a third for all 
other races and nationalities, including non-Mexican 
Hispanic Americans. In short, each applicant for 
admission to the law school was classified by race, and his 
application was treated differently according into which of 
those three racial classifications it fell. Thus, the law 
school’s 1992 admissions process, like all racial 
classifications by the government, is subject to strict 
scrutiny.10

C. STRICT SCRUTINY

The law school contends that it employs a racially 
stratified admissions process to obtain, inter alia, the 
educational benefits of a diverse student body. Translated 
into the constitutional idiom, the law school insists that 
achieving student body diversity in a public graduate 
school is a compelling governmental interest. The law 
school invokes the opinion of Justice Powell in Regents of

9See Panel Opn. at 6-7 (explaining that a Mexican American 
or a black applicant with a TI of 189 is presumptively admitted, 
while an "other race" applicant with an identical TI is 
presumptively denied).

10Adarand,___U.S. at ___, 115 S. Ct. at 2115.



81a

the University o f California v. Bakke11 to support that 
postulate. The panel opinion rejects that support, 
concluding that from its inception Bakke had little 
precedential value and now, post-Adarand, has none. My 
fellow panelists thus declare categorically that "any 
consideration of race or ethnicity by the law school for 
the purposes of achieving a diverse student body is not a 
compelling interest under the Fourteenth Amendment."* 12

This conclusion may well be a defensible extension 
of recent Supreme Court precedent, an extension which 
in time may prove to be the Court’s position. It 
admittedly has a simplifying appeal as an easily applied, 
bright-line rule proscribing any use of race as a 
determinant. Be that as it may, this position remains an 
extension of the law—one that, in my opinion, is both 
overly broad and unnecessary to the disposition of this 
case. I am therefore unable to concur in the majority’s 
analysis.

My decision not to embrace the ratio decidendi of 
the majority opinion results from three premises: First, if 
Bakke is to be declared dead, the Supreme Court, not a 
three-judge panel of a circuit court, should make that

u438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978). 
Justice Powell opens his discussion of equal protection and 
diversity in Bakke by stating that the "attainment of a diverse 
student body . . . clearly [is] a constitutionally permissible goal 
for an institution of higher education," id. at 311-12, 98 S. Ct. 
at 2759-60, and, in the unique context of institutions of higher 
learning, he concludes that diversity is a compelling interest. 
Id. at 312, 98 S. Ct. at 2759-60.

12Panel Opn. at 25 (emphasis added).



82a

pronouncement. Second, Justice O’Connor expressly 
states that Adarand is not the death knell of affirmative 
action—to which I would add, especially not in the 
framework of achieving diversity in public graduate 
schools.13 Third, we have no need to decide the thornier 
issue of compelling interest, as the narrowly tailored 
inquiry of strict scrutiny presents a more surgical and—it 
seems to me—more principled way to decide the case 
before us.14 I am nevertheless reluctant to proceed with 
a narrowly tailored inquiry without pausing to respond 
briefly to the panel opinion’s treatment of diversity in the 
context of the compelling interest inquiiy.

D. IS DIVERSITY A COMPELLING INTEREST?

Along its path to a per se ban on any consideration 
of race in attempting to achieve student body diversity, 
the panel opinion holds (or strongly implies) that 
remedying vestigial effects of past discrimination is the 
only compelling interest that can ever justify racial

13Adarand, ___ U.S. at ___, 115 S.Ct. at 2117 ("When
race-based action is necessary to further a compelling interest, 
such action is within the constitutional constraints if it satisfies 
the ‘narrow tailoring’ test this Court has set out in previous 
cases.").

uSee, e.g., Rust v. Sullivan, 500 U.S. 173, 224, 111 S. Ct. 
1759,1788,114 L. Ed. 2d 233 (1991) (O’Connor, J. dissenting) 
("It is a fundamental rule of judicial restraint . . . that this 
Court will not reach constitutional questions in advance of the 
necessity of deciding them.") (citing Three Affiliated Tribes o f 
Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 
138, 157, 104 S. Ct. 2267, 2279, 81 L. Ed. 2d 113 (1984)).



83a

classification.15 The main reason that I cannot go along 
with the panel opinion to that extent is that I do not read 
the applicable Supreme Court precedent as having held 
squarely and unequivocally either that remedying effects 
of past discrimination is the only compelling state interest 
that can ever justify racial classification, or conversely that 
achieving diversity in the student body of a public 
graduate or professional school can never be a compelling 
governmental interest. Indeed, the panel opinion itself 
hedges a bit on whether the Supreme Court’s square 
holdings have gone that far,16 particularly in the realm of 
higher education.17

15Panel Opn. at 26-29.

16The Court appears to have decided that "there is essentially 
only one compelling state interest to justify racial classification: 
remedying past wrongs." Panel opn. at 27 (citing City o f 
Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S. Ct. 706, 
721-22, 102 L. Ed. 2d 854 (1989) (plurality opinion) (emphasis 
added)).

17Panel Opn. at 28 n. 27, (quoting Wygant v. Jackson Bd. o f 
Educ., 476 U.S. 267, 286, 106 S. Ct. 1842,1853, 90 L. Ed. 
2d 260 (1986) (O’Connor, J. concurring in part and concurring 
in the judgment)). ("[Ajlthough its precise contours are 
uncertain, a state interest in the promotion of racial diversity 
has been found to be sufficiently ’compelling’ at least in the 
context of higher education to support the use of racial 
considerations in furthering that interest.").



84a

Between the difficulty inherent in applying 
Bakke18 and the minimal guidance in Adarand,19 the

18I readily concede that problems are encountered when 
efforts are made to apply the Supreme Court’s Bakke decision. 
Panel Opn. at 20, 25, & 26 (respectively pointing out that (1) 
Bakke comprises multiple opinions and divergent analyses, (2) 
no Justice, other than Justice Powell, discusses diversity, and 
(3) Bakke is questioned in Adarand). The panel opinion fails 
to describe this last problem with precise accuracy. That 
opinion’s expurgated version of the quotation at 26, lines 
736-42 makes it appear as though the Adarand majority 
questioned Bakke. In full, the sentence reads "[the Court’s] 
failure to produce a majority opinion in Bakke, Fullilove, and 
Wygant left unresolved the proper analysis for remedial 
race-based governmental action." Thus, although the Court 
acknowledges that Bakke et al. left things unresolved, I do not 
read this quotation, (as the panel opinion suggests) as an order 
to throw out Bakke-bath water, baby, and all.

Nevertheless, the fractured nature of Bakke’s holding 
has left more questions than answers in its wake. As observed 
in the instant panel opinion, there has been "no [other] 
indication from the Supreme Court, . . . [whether] the state’s 
interest in diversity [in higher education] constitutes a 
compelling justification for governmental race-based 
classifications." Panel Opn. at 28. I agree that Bakke is the 
only indication that diversity is a compelling interest. But, 
unlike the panel opinion, which jettisons Justice Powell’s Bakke 
opinion because of its singularity, I find that singularity to be 
precisely the factor that makes Justice Powell’s opinion the 
most pertinent Supreme Court statement on this issue. 
Therefore, when and if the Supreme Court addresses this case 
or its analog, the Court will have no choice but to go with, 
over, around, or through Justice Powell’s Bakke opinion. By 
assuming, as I do, that diversity is a compelling interest, 
however, these problems are avoided altogether.



85a

definition and application of the compelling interest 
inquiry seems to be suspended somewhere in the 
interstices of constitutional interpretation. Until further 
clarification issues from the Supreme Court defining 
"compelling interest" (or telling us how to know one when 
we see one), I perceive no "compelling" reason to rush in 
where the Supreme Court fears—or at least declines—to 
tread. Instead, I would pretermit any attempt at a 
compelling interest inquiry and accept Justice O’Connor’s 
invitation to apply the Court’s more discernible and less 19

19Recently, in Adarand the Supreme Court stated that it 
had "altered the [equal protection] playing field in some
important respects." ___U.S. a t___ , 115 S. Ct. at 2118. In her
opinion for the majority, however, Justice O’Connor repeatedly 
emphasizes that Adarand did not drive a stake through the 
heart of affirmative action. To the contrary, she emphatically 
states, "we wish to dispel the notion that strict scrutiny is ‘strict
in theory, but fatal in fact.’ " Id. a t ___, 115 S. Ct. at 2117
(quoting Fullilove, 448 U.S. 448, 519, 100 S. Ct. 2758, 2795, 65 
L. Ed. 2d 902 (Marshall, J., concurring in judgment)). 
Moreover, "[w]hen race-based action is necessary to further a 
compelling interest, such action is within the constitutional 
constraints if it satisfies the ‘narrow tailoring’ test this Court 
has set out in previous cases." Id.

It seems to me that as a practical matter, Adarand 
resolves very little. In fact, the much heralded change is quite 
limited: Race-based classifications, imposed by the federal
government, are now subject to strict scrutiny. Curiously (or 
perhaps not so curiously given the enigmatic difficulty of the 
task), the Supreme Court declined to define compelling interest 
or to tell us how to apply that term. Indeed, the Court did not 
even decide the case before it, opting instead to remand the 
case for further adjudication.



86a

intrusive "narrow tailoring" precedent.20 Thus, for the 
purpose of this appeal I assume, without deciding, that 
diversity is a compelling interest,21 and proceed to the

20Id. ("[W]hen race-based action is necessary to further a 
compelling interest, such action is within the constitutional 
constraints if it satisfies the ‘narrow tailoring’ test this Court 
has set out in previous cases.").

21Although I assume without deciding that diversity is a 
compelling interest, if I had no choice but to address 
compelling interest I would do so in the context in which the 
issue is presented, i.e., the constitutionally permissible means 
of constructing an entering a class at a public graduate or 
professional school. This unique context, first identified by 
Justice Powell, differs from the employment context, differs 
from the minority business set aside context, and differs from 
the redistricting context; it comprises only the public higher 
education context and implicates the uneasy marriage of the 
First and Fourteenth Amendments. See Bakke, 438 U.S. at 
311-12, 98 S. Ct. at 2759-60. Consequently, we play with fire 
when we assume an easy crossover of Fourteenth Amendment 
maxims pronounced in cases decided in such other contexts.

The panel opinion concludes that this contextual 
distinction is unimportant, holding that, whatever the context, 
remedying the past effects of discrimination is the only 
compelling interest that can justify a racial classification. Panel 
Opn. at 26-29. That opinion acknowledges, however, that 
Supreme Court precedent does not go this far: namely, the 
higher education context is different. Indeed the panel opinion 
quotes Justice O’Connor’s words expressly stating that higher 
education is different. Panel Opn. at 28 n. 27 (quoting Wygant 
v. Jackson Bd. o f Educ., 476 U.S. 267, 286, 106 S. Ct. 1842, 
1853, 90 L. Ed. 2d 260 (1986) ("[Although its precise contours 
are uncertain, a state interest in the promotion of racial 
diversity has been found to be sufficiently ‘compelling’ at least



87a

narrowly tailored inquiry.

E. TEST FOR NARROW TAILORING

When strictly scrutinizing a racial classification for 
narrow tailoring, the first question is "What is the purpose 
of this racial classification?"* 22 The present effects 
rationale having proven feckless in this case, today’s 
answer to that first question is a given: The law school’s 
purpose is diversity. Accordingly, I perceive the next 
question to be, "Was the law school’s 1992 admissions 
process, with one TI range for blacks, another for 
Mexican Americans, and a third for other races, narrowly 
tailored to achieve diversity?" I conclude that it was not. 
Focusing as it does on blacks and Mexican Americans 
only, the law school’s 1992 admissions process 
misconceived the concept of diversity, as did California’s 
in the view of Justice Powell: Diversity which furthers a 
compelling state interest "encompasses a far broader array 
of qualifications and characteristics of which racial or 
ethnic origin is but a single though important element."23

in the context of higher education to support the use of racial 
considerations in furthering that interest.")).

22United States v. Paradise, 480 U.S. 149, 171, 107 S. Ct. 
1053, 1066-67, 94 L. Ed. 2d 203 (1987).

23Bakke, 438 U.S. at 316, 98 S. Ct. at 2761-62. In the 
portion of his opinion that addresses narrow tailoring, Justice 
Powell concluded that California’s admission process 
misconceived the concept of "diversity." Id. California’s 
preferential program, focused as it was solely on aiding 
minority applicants, was not necessary to attain diversity. Id.



88a

When the selective race-based preferences of the 
law school’s 1992 admissions process are evaluated under 
Justice Powell’s broad, multi-faceted concept of diversity, 
that process fails to satisfy the requirements of the 
Constitution.24 The law school purported to accomplish 
diversity by ensuring an increase in the numbers of only 
blacks and Mexican Americans in each incoming class to 
produce percentages—virtually indistinguishable from 
quotas-of approximately five and ten percent, 
respectively. Yet blacks and Mexican Americans are but 
two among any number of racial or ethnic groups that 
could and presumably should contribute to genuine 
diversity. By singling out only those two ethnic groups, 
the initial stage of the law school’s 1992 admissions 
process ignored altogether non-Mexican Hispanic 
Americans, Asian Americans, and Native Americans, to 
name but a few.

In this light, the limited racial effects of the law 
school’s preferential admissions process, targeting 
exclusively blacks and Mexican Americans, more closely

24In the instant litigation, the law school created its own 
Catch-22 by advancing two putative compelling interests that 
ultimately proved to produce so much internal tension as to 
damage if not fatally wound each other. Under the banner of 
prior discrimination, Texas had no choice but to single out 
blacks and Mexican- Americans, for those two racial groups 
were the only ones of which there is any evidence whatsoever 
of de facto or de jure racial discrimination by the State of 
Texas in the history of its educational system. But, by favoring 
just those two groups and doing so with a virtual quota system 
for affirmative action in admissions, the law school estops itself 
from proving that its plan to achieve diversity is ingenuous, 
much less narrowly tailored.



89a

resembles a set aside or quota system for those two 
disadvantaged minorities than it does an academic 
admissions program narrowly tailored to achieve true 
diversity. I concede that the law school’s 1992 admissions 
process would increase the percentages of black faces and 
brown faces in that year’s entering class. But facial 
diversity is not true diversity, and a system thus conceived 
and implemented simply is not narrowly tailored to 
achieve diversity.

Accordingly, I would find that the law school’s 
race-based 1992 admissions process was not narrowly 
tailored to achieve diversity and hold it constitutionally 
invalid on that basis. By so doing I would avoid the 
largely uncharted waters of a compelling interest analysis. 
Although I join my colleagues of the panel in their 
holding that the law school’s 1992 admissions process fails 
to pass strict scrutiny,25 on the question of diversity I 
follow the solitary path of narrow tailoring rather than the 
primrose path of compelling interest to reach our 
common holding.

II

REMEDY

Before concluding, I am compelled to add a few 
words about the panel opinion’s "commentary" regarding 
the remedy to be imposed by the district court on remand. 
Without employing the express language of injunction or 
affixing that label to its holding, the panel opinion’s

^I also concur in my colleagues’ conclusion that 
intervention by the two black student organizations is not 
mandated, and do so for the same reasons.



90a

discussion of the remedy on remand is "strongly 
suggestive" and has all of the substantive earmarks of an 
injunction:

[The] plaintiffs have shown that it is likely that the 
law school will continue to take race into account 
in admissions unless it receives further judicial 
instruction to the effect that it may not do so for 
the purpose of (1) obtaining a diverse student 
body; (2) altering the school’s reputation in the 
community; (3) combating the school’s perceived 
hostile environment toward minorities; or (4) 
remedying the present effects of past 
discrimination by actors other than the law school.

It is not necessary, however, for us to order at this 
time that the law school be enjoined, as we are 
confident that the conscientious administration at 
the school, as well as its attorneys, will heed the 
directives contained in this opinion. If an 
injunction should be needed in the future, the 
district court, in its discretion, can consider its 
parameters without our assistance. Accordingly, 
we leave intact that court’s refusal to enter an 
injunction.26

Essentially, the substance of the quoted portion of the 
panel opinion constitutes a de facto injunction-telling the 
district court precisely what to tell the law school that it 
can and can’t do—albeit without the use of the word 
injunction. To me, if "it" has feathers, swims, waddles, 
and quacks like a duck, it is a duck; and I find such an

26Panel Opn. at 59-60.



91a

"un-injunction" inappropriate. If instead we were simply 
to reverse and remand on the violation issue, we would 
stop short of finding de novo that the law school had 
violated these four plaintiffs’ equal protection rights. It 
seems unavoidable to me that until the district court 
determines that there has been a violation, a remedy 
cannot be fashioned and should not be the subject of 
appellate speculation.27 28

The district court denied the plaintiffs injunctive 
relief, but only after assigning the burden of proof to the

9 0wrong party.

No member of this panel questions that, in the 
initial stanza of the burden-shifting minuet of Aft. Healthy 
Sch. Dist. Bd. of Educ. v. Doyle,29 the plaintiffs met then- 
burden. Once the plaintiffs did that, the burden should 
have shifted to the law school. Instead, the district court 
left it with the plaintiffs and concluded that they had 
failed to carry the ultimate burden. The district court’s

11 Hay v. Waldron, 834 F.2d 481, 484 (5th Cir. 1987) (The 
law is well-settled that the grant or denial of injunctive relief 
rests in the sound discretion of the district court)-, Lubbock Civ. 
Lib. Union v. Lubbock Ind. Sch. Dist., 669 F.2d 1038, 1048 (5th 
Cir.1982), cert, denied, 459 U.S. 1155, 103 S. Ct. 800, 74 L. Ed. 
2d 1003 (1983).

28Panel Opn. at 55 ("We conclude that the ML Healthy 
methodology is appropriate in the instant case."). On this 
point, I agree with the panel majority that the Mt. Healthy 
burden-shifting minuet should apply.

29429 U.S. 274, 284, 97 S. Ct. 568, 574-75, 50 L. Ed. 2d 471 
(1977).



92a

failure to shift the burden to the law school, and the 
conclusion of that court which followed, were errors. 
Accordingly, like my colleagues of the panel, I would 
remand the case to the district court with instructions to 
relieve the plaintiffs of the misplaced burden while 
affording the law school the opportunity to prove that the 
prima facie violation established by the plaintiffs was 
essentially harmless. But it seems clear to me that this is 
where our analysis should end. As a result, I depart from 
the "commentary" in the panel opinion regarding the 
precise elements of the remedy to be fashioned by the 
district court if it should conclude on remand that the law 
school shall have failed to bear its burden.

Ill

CONCLUSION

I end where I began: We should only decide the 
issues necessarily before this court, and then only on the 
narrowest bases upon which our decision can rest. This 
is not a class action; nothing is before us here save the 
claims of four individual plaintiffs. These four individual 
plaintiffs properly challenge only the admissions process 
employed by the law school in 1992-not the admissions 
process that was in place and employed in 1995, not the 
admissions process that is being employed in 1996, and 
not the admissions process to be applied in any future 
years. In sum, I would remand, and in the process I 
would take care not to eviscerate the discretion of the 
district court with excessive "commentary" or implicit 
directions on the precise nature of the remedy that must 
ensue. Rather, my remand would simply instruct the 
district court to apply the correct burden-shifting procss 
articulated in Mt, Healthy, then see how the law school



93a

deals with it. That way, if the Mt. Healthy application 
should demonstrate the need for a remedy, the district 
court would be free to fashion the appropriate 
relief-including injunctive if necessary-for those among 
the individual plaintiffs whose individual cases warrant it. 
For this court to do anything beyond that impresses me as 
overreaching. Thus I concur in the judgment of the panel 
opinion but, as to its conclusion on the issue of strict 
scrutiny and its gloss on the order of remand, I disagree 
for the reasons I have stated and therefore concur 
specially.



94a

Cheiyl J. HOPWOOD, et al., 
Plaintiffs-Appellees, 

v.
STATE OF TEXAS, et al., 

Defendants-Appellees, 
v.

THURGOOD MARSHALL LEGAL SOCIETY and 
Black Pre-Law Association, 

Movants-Appellants.

Douglas CARYELL, et al., 
Plaintiffs-Appellees, 

v.
STATE OF TEXAS, et al., 

Defendants-Appellees,
v.

THURGOOD MARSHALL LEGAL SOCIETY, and 
Black Pre-Law Association, 

Movants-Appellants.

No. 94-50083.

United States Court of Appeals,
Fifth Circuit.

May 11, 1994.

Before POLITZ, Chief Judge, DAVIS and 
WIENER, Circuit Judges.

PER CURIAM:

Appellants, Thurgood Marshall Legal Society 
(TMLS) and Black Pre-Law Association (BPLA) appeal



95a

the order of the district court denying their m otion to 
intervene in this action. We affirm.

I .

Since 1983, Texas has implemented an affirmative 
action policy in its higher education system, a com ponent 
of which is a race conscious admissions policy for the 
University of Texas School of Law (Law School). On 
September 29, 1992, two unsuccessful white applicants to 
the Law School filed a lawsuit challenging the admissions 
policy as racially discriminatory.1 Named as defendants 
were the State of Texas, the Board of Regents of the 
Texas State University System, the Law School, and a 
number of individuals in their official capacities. 
Although the parties commenced limited discovery, the 
parties’ focus was a dispute over standing and ripeness. 
This dispute was finally resolved on October 28, 1993, 
when the district court denied defendants’ m otion for 
summary judgment on standing and ripeness grounds. On 
November 18, 1993, the district court set the following 
deadlines: March 11, 1994 for a final pretrial conference; 
April 1, 1994, for completion of discovery; April 15, 1994 
for filing of a joint pretrial order.

On January 5, 1994, the TMLS and BPLA moved 
for intervention of right and permissive intervention. The 
proposed intervenors argued that they had an interest in 
the existing admissions policy and in the elimination of 
the vestiges of past discrimination in the Law School’s 
admissions policy. The state defendants did not oppose * VI

'The lawsuit was brought under 42 U.S.C. § 1983 and Title
VI of the Civil Rights Act of 1964. 42 U.S.C. § 2000d.



96a

intervention, but the plaintiffs did. Without conducting a 
hearing, the district court denied intervention of right, 
ruling that the state defendants adequately represented 
TMLS and BPLA’s interests.

The district court also denied permissive 
intervention, reasoning that it would "needlessly increase 
cost and delay disposition of the litigation." TMLS and 
BPLA promptly appealed.

II.

In order to intervene as of right under FED. R. 
Civ. P. 24(a),2 the proposed intervenor must demonstrate 
1) that it has an interest in the subject matter of the 
action, 2) that disposition of the action may practically 
impair or impede the movant’s ability to protect that 
interest, and 3) that the interest is not adequately 
represented by the existing parties. Diaz v. Southern 
Drilling Corp., 427 F.2d 1118, 1124 (5th Cir.), cert, denied, 
400 U.S. 878, 91 S. Ct. 118, 27 L. Ed. 2d 115 (1970). The 
application must also be timely under the circumstances. 
Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 
1977).

2Rule 24(a) states that

[U]pon timely application anyone shall be permitted 
to intervene in an action . .  . when the applicant claims 
an interest relating to the property or transaction which 
is the subject of the action and the applicant is so 
situated that the disposition of the action may as a 
practical matter impair or impede the applicant’s ability 
to protect that interest, unless the applicant’s interest is 
adequately represented by existing parties.



97a

A. Adequacy of Representation

The district court held that BPLA and TMLS 
failed to demonstrate that the state did not adequately 
represent their interests. The district court reached this 
conclusion principally because the petitioners’ ultimate 
objective was the same as the State’s: to defend the 
affirmative action program.

The BPLA and TMLS contend that the State 
cannot adequately represent their interest because 1) the 
long history of discrimination against African-Americans 
by the State weighs against the State’s willingness to 
vigorously represent the interests of the African-American 
students; 2) the State’s interests are broader in that they 
must balance the interests of the African-American 
students against other students as well as balancing 
educational goals, fiscal responsibility, administrative 
concerns and public opinion; while the petitioners’ only 
interest is in preserving an admissions policy that 
remedies the past effects of discrimination and fosters an 
atmosphere that is receptive to African-American 
students, and 3) the petitioners are in a better position to 
present evidence of recent discrimination.

The proposed intervenors have the burden of 
demonstrating inadequate representation. The Supreme 
Court held in 1972 that the burden is "minimal" and that 
the requirement "is satisfied if the applicant shows that 
representation of his interest ‘may be’ inadequate . . ." 
Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10, 
92 S. Ct. 630, 636, 30 L. Ed. 2d 686 (1972). But where 
the party whose representation is said to be inadequate is 
a governmental agency, a much stronger showing of 
inadequacy is required. See 7C CHARLES A. WRIGHT and



98a

A r t h u r  R. M il l e r , Fe d e r a l  Practice  & P r o c e d u r e  
§ 1909 (1986). In a suit involving a matter of sovereign 
interest, the State is presumed to represent the interests 
of all of its citizens. New Orleans Public Service v. United 
Gas Pipe Line Co., 690 F.2d 1203, 1213 n.7 (5th Cir. 
1982), cert, denied, 469 U.S. 1019, 105 S. Ct. 434, 83 L. 
Ed. 2d 360 (1984); Environmental Defense Fund, Inc. v. 
Higginson, 631 F.2d 738, 740 (D.C. Cir. 1979). Because 
Texas is already a party, "the applicant for intervention 
must demonstrate that its interest is in fact different from 
that of the state and that the interest will not be 
represented by the state." EDF at 740. See also, Mille 
Lacs Band o f Chippewa Indians v. Minnesota, 989 F.2d 994 
(8th Cir. 1993).

The BPLA and TMLS argue that they have met 
their burden of showing that their interests are different 
from the State’s. They contend that the State must 
balance competing goals while they are sharply focused on 
preserving the admissions policy. Moreover, they argue 
that because of its competing goals, the State is not in as 
good a position to bring in evidence of present effects of 
past discrimination and current discrimination.

In order to justify an affirmative action program, 
the State must show that there are "present effects of past 
discrimination." Wygant v. Jackson Bd. o f Educ., 476 U.S. 
267, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986); Podberesky 
v. Kirwan, 956 F.2d 52, 57 (4th Cir. 1992). Although the 
BPLA and TMLS may have ready access to more 
evidence than the State, we see no reason they cannot 
provide this evidence to the State. The BPLA and the 
TMLS have been authorized to act as amicus and we see 
no indication that the State would not welcome their 
assistance. BPLA and TMLS have not met their burden



99a

of demonstrating that they have a separate interest that 
the State will not adequately represent. The proposed 
intervenors have not demonstrated that the State will not 
strongly defend its affirmative action program. Nor have 
the proposed intervenors shown that they have a separate 
defense of the affirmative action plan that the State has 
failed to assert. See, Jansen v. Cincinnati, 904 F.2d 336 
(6th Cir. 1990).

B. Permissive Intervention

In its January 1994 order, the district court also 
denied the prospective intervenors’ motion to intervene 
pursuant to Rule 24(b), Fed . R. Civ. P.3 Specifically, 
Judge Sparks held that the proposed intervenors’ interests 
were adequately being represented by the defendants in 
the case and that adding them to the lawsuit would 
needlessly increase costs and delay disposition of the 
litigation.

Intervention under Rule 24(b) is left to the sound 
discretion of the district court, and this court has 
jurisdiction only if the district court has abused its 
discretion. E.g., Woolen v. Surtran Taxicabs, Inc., 684 F.2d 
324, 330 (5th Cir. 1982) ("the denial of a motion for

3Rule 24(b) states that

[UJpon timely application anyone may be permitted 
to intervene in an action . . .  when an applicant’s claim 
or defense and the main action have a question of law 
or fact in common . . . .  In exercising its discretion the 
court shall consider whether the intervention will 
unduly delay or prejudice the adjudication of the rights 
of the original parties.



100a

permissive intervention under Rule 24(b) is not 
appealable unless there is an abuse of discretion").

As we have noted, we have never reversed a lower 
court’s decision on Rule 24(b) intervention. E.g., 
Kneeland v. Nat’l Collegiate Athletic A ss’n, 806 F.2d 1285, 
1289-90 (5th Cir. 1987); Doe v. Duncanville Independent 
School District, 994 F.2d 160, 168 n.10 (5th Cir. 1993). 
The district court plainly did not abuse its discretion in 
denying petitioners’ Rule 24(b) application to intervene.



101a

Cheryl J. HOPWOOD, Douglas W. Carvell, Kenneth 
R. Elliott, and David A. Rogers,

Plaintiffs,
v.

The STATE OF TEXAS; University of Texas Board of 
Regents; Bernard Rapopart, 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.

United States District Court,
W.D. Texas, Austin Division.

Aug. 19, 1994.

MEMORANDUM OPINION 

SPARKS, District Judge.

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



102a

the defendants1 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).* 2 
[FN2] 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.

2The 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.



103a

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.



104a

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 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.



105a

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 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 school and 
college.3

B. Discrimination in Higher Education

3In 1990, the percentage of persons age 25 or older who 
completed high school was 81.5% non-Ftispanic 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.



106a

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.4

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, no library' staff, no facilities, and was

4The 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 
available to blacks. Commentary, Tex. Const, art. VII, § 14 
(West 1993). In 1947, to avoid integration of the University of 
Texas, the Texas Legislature created the Texas State University 
for Negroes (now Texas Southern University). Id. at 21-22; 
D-382.



107a

not accredited. Sweatt v. Painter, 339 U.S. 629, 632, 70 S. 
Ct. 848, 849-50, 94 L. Ed. 1114 (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 investigation by the Department 
of Health, Education and Welfare (HEW) Office for Civil 
Rights (OCR). The investigation of Texas’ system 
resulted from a lawsuit initiated in 1970 to require HEW



108a

to take action to enforce the provisions of Title VI.5 The 
court-ordered investigation of ten states, which did not 
include Texas, began in 1973. In 1977, the court extended 
the order to an additional six states, which included 
Texas. Ashworth, vol. 12 at 8; D-296.

Title VI proscribes discrimination that violates the 
equal protection clause of the Fourteenth Amendment. 
See Regents of Univ. o f Cal. v. Bakke, 438 U.S. 265, 
286-87, 98 S. Ct. 2733, 2746-2747, 57 L. Ed. 2d 750 
(1978). The prohibitions against discriminatory conduct 
contained in Title VI govern "program [s] or activities] 
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, 61 L. Ed. 2d 480 (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

5See 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).



109a

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).

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 of its 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. Id.

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



110a

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 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



111a

accepted by OCR as being in compliance with Title VI.6 
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 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-323.

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

6D-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.



112a

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.7 
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,___U .S .__ , 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.

II. THE ADMISSIONS PROCESS

A. Evolution o f 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 a 4.0 scale were accepted.8

7Ashworth, vol. 12 at 32-24. The government, as usual, 
proceeds with "all deliberate speed.”

8Johanson, 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



113a

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 based on the Texas Index (TI).9 
The law school automatically admitted applicants whose 
TI exceeded the baseline, and the admissions committee 
reviewed applicants whose TI was belw 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 a result, 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 during the 
late 1960s, the law school began implementing affirmative

consistent in that the qualifications for admission at the time 
were minimal.

9The 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.



114a

action by attempting to recruit minority individuals who 
had performed well in the CLEO program.10 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. Id. 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. Id. 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

10The 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.



115a

the "Treece committee,"11 was formed to consider 
applications from minority students and disadvantaged 
nonminority students.* 12 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.13 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.14 
In 1977, the Treece committee considered 500 applicants,

“ The committee was named after the chair of the 
committee, Professor James Treece.

12In the summer of 1974, just before Ernest Smith became 
dean of the law school, 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 H , 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.



116a

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. 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



117a

Bakke, the use of the separate committees to evaluate 
applicants was defective.15 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.

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."16 The law school 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

15The 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).

16Professor Johanson testified the system used five bands, 
while Professor Wellborn testified there were six bands.



118a

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 subcommittee.17 The 
subcommittee would then bring its recommendations to

17Evidently, 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 occurred 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. Id.



119a

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 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.



120a

Therefore, less full committee review of each 
individual file became necessary.18

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, "[ajfter 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."19 
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 a judgment of how many offers to 
give to minority applicants. The minority subcommittee

18Because 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." Id. at 35.

19P-25. The percentage goals are based on the percentages 
of minority college graduates. See supra note 6.



121a

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.

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.20 
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,

“ 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.



122a

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 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.21 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.22

21At 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 U . 
See supra note 17.

22Johanson, 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. Id. 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



123a

Once Johanson determined which files were in the 
presumptive admission category, he conducted a 
preliminary review of the files.23 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

enrollment yield for nonresidents is approximately 26%, 
meaning that the law school has to offer approximately four 
nonresidents admission to enroll one. Id. 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.

23Johanson reviewed minority and nonminority files 
together as a group during the preliminary review process. 
Johanson, vol. 6 at 55.



124a

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 on the applicant’s numbers, as all were relatively 
close, 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 
TIs varied between nonminorities and minorities.24 By 
March 1992, Johanson had lowered the presumptive 
admission score for resident nonminorities from a

24Johanson’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, and 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.



125a

threshold setting of 202/90 to 199/87.25 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 189/78. 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 admissions 
committee.26 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

25P-38. In 1992, the law school was faced with two different 
types of U s, 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 TTs received for applicants. Johanson, vol. 3 
at 26-27.

26In 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 7.



126a

of applicants from within the stack of thirty files.27 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.28 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.29 The law 
school sent a letter offering applicants who received one 
vote a place on the waiting list.

27In 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.

28Johanson 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.

29Johanson, in rebuttal testimony provided by deposition, 
testified, "[Tjhose candidates who receive zero votes to admit, 
they’re done. I 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 all final decisions on each applicant file are made by 
Johanson. See D-362 at 4.



127a

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 minority 
applicant’s file.30 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. Id. 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

30Both 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.



128a

full committee, the minority subcommittee’s admission 
decisions on individual applicants were virtually final.31

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.32

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

31Johanson 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.

32The 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%). Id.



129a

than fifteen percent nonresidents in the entering class.33 
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 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.34 Therefore, the law school 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

33Johanson, 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.

^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.



130a

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.35 [FN35] 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 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.

III. 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.36

35The 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. Id.; see also 
D-448.

36The 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



131a

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 
39.37 Hopwood’s application indicates she received an 
associate’s degree in accounting from Montgomery 
County Community College in May 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.38 Hopwood’s application file contains no letters of

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. Id.; Johanson, vol. 4 at 44-45; 
Hopwood, vol. 8 at 12-13.

37Hopwood’s LSAT score placed her in the 83rd percentile, 
well below the median LSAT for nonminorities in the 1992 
entering class. P-145; D-43. Her two-digit TI was an 87, 
which correlates to 199 in the three-digit scoring system.

38Hopwood 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.



132a

recommendation.39 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.40

After his initial review of Hopwood’s file, Johanson 
dropped her 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

Hopwood, vol. 8 at 8-9. This information is not included in her 
admission file.

39Hopwood 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."



133a

number of hours.41 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.42

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 list

41Johanson, 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. 
Id. 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." Id.

42Hopwood 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.



134a

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.43

B. Kenneth Elliott

Kenneth Elliott applied with a H  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

43The 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.



135a

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 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."44 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. 
Id. 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

^P-lbS. 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.



136a

waiting list.45 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 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. Id. 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

45Id, 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. Id.



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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.46 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.

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.47 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.

46The 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.

47Carvell’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.



138a

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 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. Id. at 6.



139a

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 II, an honors program. 
However, in 1985, he was dismissed because of his poor 
scholastic performance. Rogers, vol. 11 at 55. Rogers 
su b s e q u e n t l y  a t t e n d e d  t he  Un ive r s i t y  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



140a

of all plaintiffs to bring this cause of action.4 * * 48 With 
regard to Hopwood and Elliott, the defendants argue 
their claims are not ripe because neither was denied 
admission.49 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.50

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.

4SThis matter was addressed at length in pretrial motions
and hearings, and the transcripts and evidence related to those
motions are evidence in this cause.

49As discussed above, the defendants claim Hopwood 
voluntarily removed herself from the admissions process and
Elliott was offered admission.

50With regard to Elliott, the defendants contend he lacks 
standing to challenge the initial decision to deny him 
admission.



141a

Contractors v. City o f Jacksonville,___U .S .___ , ___-___,
113 S. Ct. 2297, 2301-02, 124 L. Ed. 2d 586 (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. Id. a t ___, 113 S. Ct. at 2303.

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 o f Jacksonville 
to be limited in the manner defendants contend. In 
defining standing as applied in equal 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.51 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

51See id. ___ U.S. at ___-___, 113 S. Ct. at 2302-03
(discussing Clements v. Fashing, 457 U.S. 957, 102 S. Ct. 2836, 
73 L. Ed. 2d 508 (1982); Bakke, 438 U.S. 265, 98 S. Ct. 2733 
(1978); and Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 
L. Ed. 2d 567 (1970)).



142a

redress the injury.52

B. Standard o f Review

Affirmative action plans based on race trigger strict 
judicial scrutiny. City o f  Richmond v. J.A. Croson Co., 488 
U.S. 469, 493, 109 S. Ct. 706, 721, 102 L. Ed. 2d 854 
(1989); see also Bakke, 438 U.S. at 291, 98 S. Ct. at 2748 
(Powell, J.) ("Racial and ethnio'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 group that historically has 
not been subject to governmental discrimination." Wygant 
v. Jackson Bd. o f Educ., 476 U.S. 267, 273, 106 S. Ct. 
1842, 1846, 90 L. Ed. 2d 260 (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, 497 U.S. 547, 110 
S. Ct. 2997, 111 L. Ed. 2d 445 (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

52Further, 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.



143a

of the objectives. Id. at 565, 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.53

The Court finds the argument unpersuasive. In 
Metro, the FCC’s minority ownership programs had been 
specifically mandated and approved by Congress. Id. at 
563, 110 S. 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

53The 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, 114 L. Ed. 2d 714 (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).



144a

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 Or. 1987), a ffd  sub nom. Martin v. 
Wilks, 490 U.S. 755, 109 S. Ct. 2180, 104 L. Ed. 2d 835 
(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 
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



145a

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.54

C. 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, 90 L.Ed.2d 260 (1986).

54As 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, 497 U.S. at 596-97, 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. 575-579, 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.



146a

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 
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." Id.

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 A ffirm ative  
Action":55

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

S5This 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.



147a

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 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; 98 
S.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, 94 L. 
Ed. 2d 203 (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



148a

Court will evaluate the program in light of these goals.S6

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 justifying the use of racial preferences.57 
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.58 However, none of

^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.

57The 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.

58In 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 v. Transportation Agency, Santa Clara, 
California. See Metro Broadcasting, 497 U.S. at 613-15, 110 S. 
Ct. at 3035 (O’Connor, J., dissenting); Johnson, 480 U.S. 616,



149a

the recent opinions is factually based in the education 
context and, therefore, none focuses on the unique role of 
education in our society.59 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 
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

673-75,107 S. Ct. 1442, 1473-1474, 94 L. Ed. 2d 615 (Scalia, J., 
dissenting).

S9The Supreme Court recognized the vital role education 
plays in our society in Brown v. Board o f 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 
succeed in life if he is denied the opportunity of an 
education.

Brown v. Board ofEduc., 347 U.S. 483, 493, 74 S. Ct. 686, 691, 
98 L. Ed. 873 (1954).



150a

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.60

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 law 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.61 The

60D-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.

61The plaintiffs’ expert, James Armor, a senior fellow at the 
Institute of Public Policy, George Mason University, in Fairfax, 
Virginia, testified 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



151a

plaintiffs further assert the 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, 120 L. Ed. 2d 575
(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,"

not find Armor to be a credible witness.



152a

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 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.62 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.63 The State of Texas engaged in

62See also Ayers v. Allain, 893 F.2d 732, 751 (5th 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 vnish in 
state-sponsored forums simply because attendance is voluntary 
and admittance race-neutral.

63See, e.g., League o f United Latin Am. Citizens v. Clements,
999 F.2d 831, 866 (5th Cir. 1993), cert, denied, ___U .S .___ ,
114 S. Ct. 878,127 L. Ed. 2d 74 (1994) ("Texas’ long history of



153a

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 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 University 
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

discrimination against its black and Hispanic citizens in all 
areas of public life is not the subject of dispute . . . ."),



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environment for minorities.

The univerity’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.64 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. 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

^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.



155a

the higher education system.65 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. Glenn, 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 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

6SThe 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.



156a

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 plaintiffs 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, 94 L. 
Ed. 2d 203 (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, vol. 21 at 44; Johanson, vol.



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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 rediret minorities to the historically separate state law 
school at Texas Southern University, thereby 
resegregating the law school.66 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

“ 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.



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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 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 10.7.67

67The 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)



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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, 65 L. 
Ed. 2d 902 (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 law school did not rigidly and inflexibly apply the 
numbers.

Instead, the percentages fluctuate 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

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)
1991 6.9 (35) 10.6 (54)
1992 8.0 (41) 10.7 (55)
1993 5.9 (31) 10.0 (53)

D-71.



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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.68 
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 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

68The 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, for which an applicant’s race is the deciding 
factor. See, e.g,, Johanson, vol. 4 at 43.



161a

entering classes.69 The evidence reflects that the law 
school admissions committee regularly reviews and adjusts 
the remedy to evaluate its necessity and efficacy.70 
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 
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.

69See 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.

70The 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.



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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



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and nonminorities in the discretionary 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 
discretioary 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.71 Further, although a presumptive denial

71The 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



164a

score 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 a 
consensus on the weight to give race in the admissions

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 minority and nonminority applicants.



165a

process and evaluate the nomninority 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.72 However, review of

72The 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 
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. Id. 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



166a

admissions procedures 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 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.

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. Id. at 39.



167a

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.73 The Court disagrees.

73Additionally, 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, 92 L. Ed. 2d 344 (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 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 constitutionally valid goal of the law 
school’s affirmative action program. Bakke gives no indication



168a

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

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.



169a

given group of applicants.74 "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." Id. 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.75 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.

74In 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.

7SA 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.



170a

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 from the 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 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



171a

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.76 Because the law school’s 1992 admissions 
process was not narrowly tailored, the Court finds the 
procedure violated the Equal Protection Clause of the 
Fourteenth Amendment.

76The 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 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.



172a

D. Effect o f 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 admssion 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, 55 L. Ed. 2d 252 (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. o f Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 
568, 576, 50 L. Ed. 2d 471 (1977) (once employee 
established conduct constitutionally protected, burden 
shifted to 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.77 The Supreme Court has

77The 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



173a

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. H icks,___U .S .___ , ___, 113 S. Ct.
2742, 2749, 125 L. Ed. 2d 407 (1993). In making this 
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

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 o f Univ. o f 
Cal., 18 Cal. 3d 34, 132 Cal. Rptr. 680, 553 P.2d 1152, 1172 
(1976). Because the university conceded its inability to carry 
the burden, the California court ordered Bakke’s admission. 
Id. 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. Id. at 320, 98 S. Ct. at 2764. In distinguishing Bakke 
from Mt. Healthy City Board o f 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. Id. at 320 n.54; 98 S. Ct. at 2764 n.54.



174a

unlawfully discriminated. Id. a t ___, 113 S. Ct. at 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. ofEduc., 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).78

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

78The 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.



175a

admissions data supports the defendants’ assertion of the 
non-race based weaknesses in the plaintiffs’ applications. 
D-338 at A-60-A-71.

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.79 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 
TIs of 199, the chart shows one black applicant, who was 
] admitted, and three Mexican American applicants, all 
who were admitted.80 With regard to a TI of 197, the TI

79The 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 cancelled. For purposes of evaluation of the 
numbers, applicants in the "C" category are counted as 
admissions because they were admitted but cancelled the 
acceptance. See Johanson, vol. 6 at 16.

50Two of the Mexican American applicants cancelled. On 
the other end of the scale, out of four black resident applicants 
with a H  of 185, one was denied admission.



176a

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 Tl of 197.

However, the law school offered admission to one 
nonminority resident with the same TI. Applicants with 
the lowest TI offered admission were all minorities.81 
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 discrimination.

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

81Of 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).



177a

were offered admission.82 Sixty-seven nonminority 
residents with TIs lower than the other three plaintiffs 
were admitted.83

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 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).

In reviewing these files, the Court appreciates the 
difficulty of the task facing the admissions committee each 
year. Evaluation of applications involves both objective 
and subjective factors, and the Court is aware that some

82Twenty-nine of these applicants canceled.

83Thirteen of these applicants canceled.



178a

evaluators could use subjectivity to conceal discriminatory 
motives. As a general rule, however, judges are not as 
well suited to evaluate qualifications of applicants as those 
who are familiar with the process and have many years of 
experience evaluating applications. See Odom v. Frank, 3 
F.3d 839, 847 (5th Cir. 1993). The Court’s review 
revealed a group of applicants with varying backgrounds 
and accomplishments, but none so clearly better qualified, 
in the Court’s view, as to require that individual’s 
selection over that of another in the group.84 The Court 
sees no disparities in the applications of the admitted 
minorities when compared to those of the plaintiffs "so 
apparent as virtually to jump off the page and slap [the 
Court] in the face." Id. Without such a disparity, the 
Court cannot and will not substitute its views for those of 
admission committee members with years of 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

84The Court notes that several of the applicants, some of 
which, in the Court’s opinion, were weaker candidates, 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.



179a

of persuasion, have failed to prove otherwise.85 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.86

85In 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.

86In 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. T. 
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, which, as a 
practical matter, could never be met by a plaintiff without
direct evidence of discrimination. St. Mary’s , ___U.S. a t ___ ,
113 S. Ct. at 2761 (Souter, J., dissenting). The Court agrees 
that the plaintiffs have an impossible burden absent direct



180a

However, the Court may not ignore the precedent of 
other constitutional cases because, as a practical matter, 
the burden may be too difficult for plaintiffs to overcome.

E. 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 v. Mathews, 465 U.S. 728, 739, 104 S. Ct. 
1387, 1395, 79 L. Ed. 2d 646 (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

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.



181a

prospective injunctive relief necessary in light of the law 
school’s voluntary change to a procedure, which on paper 
and from the testimony, appears to remedy the defects 
the Court has found in the 1992 procedure.87 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 treatent in a discriminatory government 
program is a remedy mandating equal treatment.88 
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

87The 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." Id. at 57.

Heckler, 465 U.S. at 740, 104 S. Ct. at 1395. This 
remedy may be accommodated by an end to preferential 
treatment of others. Id. at n.8. In the context of affirmative 
action, the Court interprets this to mean an end to unlawful 
preferential treatment of others.



182a

to be fairly evaluated in comparison to all other applicants 
for admission in 1995.89

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 plaintiffs testimony and

89Because 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 
degrees.



183a

speculation about the value of a law degree.90 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 plantiffs been 
entitled to damages, none of them established monetary 
damages as required under the law and rules of this 
circuit. See Haley v. Pan American World Airways, 746 
F.2d 311, 316 (5th 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 (5th 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 (5th 
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.

"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.



184a

V. 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 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 individuars 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, 497 U.S. at 
638, 110 S. 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



185a

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 under sanction of law." Plessy v. 
Ferguson, 163 U.S. 537, 560, 16 S. Ct. 1138, 1147, 41 L. 
Ed. 256 (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, 497 U.S. at 597, 110 S. Ct. at 3026. The 
Court believes the only way of assuring an undue burden 
is not placed on innocent parties in an admissions 
procedure is to treat all applicants as individuals and to 
consider all 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



186a

nor sufficiently protects individual rights under our 
Constitution.91

Judgment will be issued consistent with the Court’s 
findings in this opinion.

FINAL JUDGMENT

BE IT REMEMBERED on the 19th day of 
August 1994, the Court entered its memorandum opinion 
consisting of its findings of fact and conclusions of law in 
the above-captioned matter and, consistent with those 
findings and conclusions, enters the following judgment:

91

"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 o f San Mateo v. 
Southern Pacific R R ,  116 U.S. 138, 6 S. Ct. 317, 29 L. Ed. 589 
(1885), in Oral Argument on Behalf o f Defendant by Roscoe 
Conkling 34 (1883).



187a

IT IS ORDERED, ADJUDGED, and DECREED, 
by declaratory judgment, that the 1992 admissions 
procedure of the law school at the University of Texas at 
Austin, as administered, was in violation of the 14th 
Amendment of the United States Constitution;

IT IS FURTHER ORDERED, ADJUDGED, and 
DECREED that Cheryl J. Hopwood, Douglas W. Carvell, 
Kenneth R. Elliott, and David A. Rogers shall be entitled 
to reapply for admission to the law school at the 
University of Texas at Austin for the 1995-96 school year 
without further administrative expense or fees and that 
their applications shall be reviewed by the admissions 
committee of the law school at the University of Texas at 
Austin along with all other applications for that school 
year;

IT IS FURTHER ORDERED, ADJUDGED, and 
DECREED that Cheryl J. Hopwood, Douglas W. Carvell, 
Kenneth R. Elliott, and David A. Rogers do have and 
recover judgment of and against the defendants University 
of Texas at Austin and the University of Texas School of 
Law, jointly and severally, in the total amount of One 
Dollar ($1.00) each;

IT IS FINALLY, ORDERED, ADJUDGED, and 
DECREED that all further affirmative relief requested by 
any party herein against any other party herein is 
DENIED.



188a

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 

AUSTING DIVISION

CHERYL J. HOPWOOD, §
DOUGLAS CARVELL, §
KENNETH ELLIOTT, and §
DAVID RODGERS, §

§
Plaintiffs, §

§
v. §

§
STATE OF TEXAS and §
REGENTS OF THE §
UNIVERSITY OF TEXAS §
SYSTEM, §

§
Defendants, §

O R D E R

Before the Court is the Thurgood Marshall Legal 
Society and Black Pre-Law Association’s Renewed Motion 
for Intervention for the Limited Purpose of Allowing 
Evidence on the Issue of the Predictive Validity of the 
Texas Index. The Court, having reviewed the motion, 
enters the following order:

IT IS ORDERED that the Thurgood Marshall 
Legal Society and Black Pre-Law Association’s Renewed 
Motion for Intervention for the Limited Purpose of 
Allowing Evidence on the Issue of the Predictive Validity 
of the Texas Index is DENIED.

CIVIL NO. 
A-92-CA-563-SS



SIGNED this the 15th day of July 1994.

Is/ Sam Sparks__________
SAM SPARKS
UNITED STATES DISTRICT JUDGE



190a

Cheryl J. HOPWOOD, Douglas Carvell, Kenneth 
Elliott, and David Rogers,

Plaintiffs,
v.

STATE OF TEXAS and Regents of the University of 
Texas System, Defendants.

Civ. No. A-92-CA-563-SS.

United States District Court, W.D. Texas,
Austin Division.

Jan. 20, 1994.

ORDER

SPARKS, District Judge.

Before the Court is the Motion of Thurgood 
Marshall Legal Society and Black Pre-Law Association to 
Intervene as Defendants.1 The Court, having reviewed

1The Thurgood Marshall Legal Society, a chapter of the 
National Black Law Students Association, is a recognized 
student organization at the University of Texas School of Law. 
Its membership is comprised of law students, predominantly 
African-American, currently in attendance at the law school. 
One of the goals of the organization, according to the affidavit 
of the organization’s current president, is to encourage the 
admission of greater numbers of African-American students to 
the law school.

The Black Pre-Law Association, an organization of 
African-American undergraduate students currently attending 
the University of Texas, is comprised of students who have



191a

the motion, accompanying brief and documents, and the 
parties’ responses, concludes the motion should be 
denied.* 2

This is a lawsuit in which four individuals contend 
they were denied admission to the University of Texas 
School of Law because of a racially discriminatory 
admission policy. The initial lawsuit was filed in 
September 1992. A somewhat lengthy and strongly 
argued debate on the issues of standing and ripeness soon 
ensued, which culminated in this Court’s denial of the 
Defendants’ motions for summary judgment by order 
dated October 28, 1993. In November 1993, because of 
some confusion by the parties regarding the posture of 
the cause and because of the Court’s concern with 
efficiently moving the cause to trial, the Court set 
deadlines for pleading and motion filings, as well as for 
discovery. Of consequence to the motion now before the 
Court are the deadlines of March 11, 1994, for a final 
pretrial status conference to address pretrial issues and set 
a trial date; of April 1, 1994, for the completion of 
discovery; and of April 15, 1994, for a joint pretrial order 
to be filed. Now, with only a little over two months to go 
before the completion of discovery, which has already 
been a contentious process and evidently involves a 
multitude of documents, two new entities wish to become 
parties to the litigation.

applied or who may apply to law school. A central goal of the 
organization, according to the affidavit of the current president, 
is to promote African-American students’ interest in the law 
and to assist them in the application and admission process.

2Not surprisingly, the Plaintiffs are opposed to the 
intervention; the Defendants are not.



192a

The prospective intervenors seek intervention both 
under Federal Rule of Civil Procedure 24(a), which 
provides for intervention as a matter of right, and under 
Federal Rule of Civil Procedure 24(b), which provides for 
permissive intervention. In seeking intervention, the 
prospective intervenors basically claim they have a 
substantial interest in protecting the law school’s 
affirmative-action admissions program that will not be 
adequately protected the Defendants.

For intervention under Rule 24(a), the movant 
must meet the following requirements: (1) the motion 
must be timely; (2) the movant must have an interest 
relating to the transaction that is the subject of the 
ongoing action; (3) the movant must be so situated that 
the disposition of the action may impair or impede the 
movant’s ability to protect its interest in the litigation; 
and (4) the movant’s interest is not adequately 
represented by the existing parties to the litigation. See 
f e d . R. Civ . P. 24(a); Bush v. Vitema, 740 F.2d 350, 354 
(5th Cir. 1984). If a prospective intervenor fails to meet 
any one of the requirements, it cannot intervene as a 
matter of right. Bush, 740 F.2d at 354.

The prospective intervenors contend their specific 
interest in promoting the legal education for African 
Americans is not adequately represented by the 
Defendants, who have historically acted in a manner 
adverse to the interests of the proposed intervenors. 
However, as a practical matter, the prospective 
intervenors and the Defendants have the same ultimate 
objective in this lawsuit—the preservation of the 
admissions policy and procedure currently used by the law 
school.



193a

When a prospective intervenor "has the same 
ultimate objective as a party to the suit, a presumption 
arises that its interests are adequately represented, against 
which the petitioner must demonstrate adversity of 
interest, collusion, or nonfeasance." Id. at 355 (citation 
omitted). While the presumption of adequate 
representation may be rebutted on a relatively minimal 
showing, the prospective intervenors must "produce 
something more than speculation as to the purported 
inadequacy." Moosehead Sanitary Dist. v. S.G. Phillips 
Corp., 610 F.2d 49, 54 (1st Cir. 1979). Further, the 
potential obstruction and delay that may be caused by 
allowing intervention fully justifies a requirement that a 
clear showing rather than a mere allegation that 
prospective intervenors’ interests will not be adequately 
represented by an existing party be made. United States 
v. Int’l Tel & Tel Corp., 349 F. Supp. 22, 27 n.4 (D.C. 
Conn. 1972), aff’d sub nom. Nader v. United States, 410 
U.S. 919 (1973).

The Court finds the prospective intervenors have 
not overcome the presumption of adequate 
representation. Further, the Defendants have 
demonstrated they have sufficient motivation and ability 
to defend vigorously the current admissions policy. 
Because this Court finds the prospective intervenors have 
failed to overcome the fourth test for intervention, 
inadequate representation by the Defendants, the 
prospective intervenors are not entitled to intervene as a 
matter of right.

In making a determination of whether to allow 
permissive intervention under Rule 24(b), a court must 
determine if three conditions are met: (1) the movant



194a

must show an independent ground for jurisdiction; (2) the 
motion must be timely; and (3) the movant’s claim or 
defense and the main action must have a question of law 
or fact in common. Venegas v. Skaggs, 867 F.2d 527, 529 
(9th Cir. 1989), affd sub nom. Venegas v. Mitchell, 495 
U.S. 82 (1990).

Additionally, a court must consider whether the 
intervention will "unduly delay or prejudice the 
adjudication of the rights of the original parties." See 
Fed . R. Civ . P. 24(b).

The prospective intervenors contend that, because 
they seek to raise defenses sharing common factual and 
legal questions with the main action, they are entitled to 
permissive intervention. However, the exitence of a 
common question of law or fact will not automatically 
entitle a movant to intervene; the district court has the 
discretion to determine the fairest and most efficient 
method of handling the lawsuit. Venegas, 867 F.2d at 530; 
see also Bush, 740 F.2d at 354 (permissive intervention 
wholly discretionary even if common question of law or 
fact or requirements of Rule 24(b) otherwise satisfied). 
Further, as discussed above, the Court has found the 
interests of the prospective intervenors are adequately 
represented by the Defendants; adding the prospective 
intervenors as defendants at this juncture in the lawsuit 
would needlessly increase cost and delay disposition of the 
litigation.3 Accordingly, the Court enters the following 
order:

3The Court believes the appropriate role for the prospective 
intervenors, if any, in this lawsuit is as amicus curiae. 
However, the prospective intervenors have not requested 
amicus curiae status.



195a

IT IS ORDERED that the Motion of Thurgood 
Marshall Legal Society and Black Pre-Law Association to 
Intervene as Defendants is DENIED without prejudice to 
seeking leave to participate as amicus curiae.



196a

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-Appellants.

DOUGLAS CARVELL, et al.,

Plain tiffs-Appellees,

VERSUS

STATE OF TEXAS, et al.,

Defendants-Appellees,

VERSUS

THURGOOD MARSHALL LEGAL SOCIETY
and

BLACK PRE-LAW ASSOCIATION,

Movants-Appellants.



197a

NO. 94-50664

CHERYL J. HOPWOOD, et al.,

Plaintiffs,

CHERYL J. HOPWOOD, et al.,

Plaintiffs-Appellants,

VERSUS

STATE OF TEXAS, et al.,

Defendants-Appellees.

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

ON SUGGESTION FOR REHEARING EN BANC

(Opinion March 18, 1996, 
1996 WL 120235 (5th Cir.))



198a

Before SMITH, W IENER, and DeMOSS, Circuit 
Judges.1

PER  CURIAM :

In No. 94-50569, treating the suggestion for 
rehearing en banc as a petition for panel rehearing, the 
petition for panel rehearing is DENIED. The court 
having been polled at the request of one of the members 
of the court, and a majority of the judges in regular active 
service not having voted in favor (see FED. R. APP. P. 35 
and 5TH Cir . R. 35), the suggestion for rehearing en banc 
is DEN IED .

In No. 94-50664, the court having been polled, at 
the request of one of the members of the court, on the 
reconsideration of this cause en banc, and a majority of 
the judges in regular active service not having voted in 
favor, rehearing en banc is DENIED.

A dissent from the denial of rehearing en banc is 
forthcoming and is to be published.

EN T ER ED  FO R  TH E COURT:

/s/ Jerry E. Smith [April 4, 1996]
United States Circuit Judge

PO LITZ, Chief Judge, and KING, W IENER, 
BENAVIDES, STEW ART, PARKER, and DENNIS,

'Judge Emilio M. Garza did not participate in this decision.



199a

Circuit Judges, dissenting from failure to grant rehearing 
en banc

Soon after the founding of the Republic, the 
Supreme Court indicated that the power of judicial 
review should be exercised reluctantly, only 
because it is essential to the decision of the case 
before a federal court and because the 
Constitution and the laws of the United States, as 
the "Supreme law of the Land," require it.1

This case was brought by four individual plaintiffs 
(not a class of plaintiffs) who were denied admission to 
the University of Texas Law School (Law School) in 1992, 
claiming that the Law School’s admission process in 1992 
violated the Fourteenth Amendment by giving race-based 
preferences exclusively to blacks and Mexican 
Americans.1 2 In resolving the case presented by these 
four plaintiffs, the panel opinion directed the Law School 
not to use race as a factor in the admissions process at 
all.3 In so doing, the opinion goes out of its way to break 
ground that the Supreme Court itself has been careful to 
avoid and purports to overrule a Supreme Court decision,

1Baker v. Wade, 769 F.2d 289, 298 (5th Cir. 1985) 
(Goldberg, J., dissenting) (citing Marbury v. Madison, 5 U.S. (1 
Cranch) 137, 2 L. Ed. 60 (1803); Martin v. Hunter’s Lessee, 14 
U.S. (1 Wheat.) 304, 4 L. Ed. 97 (1816)).

2The Law School no longer employs the system that was in 
place for 1992.

3Judge Smith wrote the opinion for the panel, and Judge 
DeMoss joined that opinion in full. Judge Wiener, who wrote 
separately, did not join the panel opinion in this conclusion.



200a

namely, Regents o f the University o f California v. Bakkef 
The radical implications of this opinion, with its sweeping 
dicta, will literally change the face of public educational 
institutions throughout Texas, the other states of this 
circuit, and this nation. A case of such monumental 
import demands the attention of more than a divided 
panel. It should have the attention of every active judge 
on this court. We respectfully but emphatically dissent 
from the denial of rehearing en banc.

For reasons that have not been communicated to 
this court, and upon which we can only speculate, neither 
the plaintiffs nor the defendants have sought rehearing en 
banc. It would appear that in this case, some of our 
colleagues may have embraced the rationale that, when 
sophisticated litigants represented by capable lawyers elect 
not to seek rehearing en banc, it is not our place to take 
any action. Our customary practice, however, does not 
support this position. Indeed, not infrequently we 
proposed rehearing en banc on our own motion, before 
the parties have requested that we do so. We reject out 
of hand the notion that we are merely obsequious ciphers, 
subject to the tactical decisions and strategic maneuvers 
of the litigants before us. When the occasional case of 
such far-reaching importance to this court, to public 
higher education, and to this nation comes down the pike, 
we have a duty to address it and to do the best possible 
job that our whole court is capable of, regardless of the 
tactical decisions of the litigants. To decline to rehear a 
case of this magnitude because the parties have not 
suggested that we do so bespeaks an abdication of duty- 4

4438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978).



201a

the ducking of a tough question by judges who we know 
first-hand are made of sterner stuff.

The label "judicial activism" is usually found in the 
lexicon of those voicing concern about judges whom they 
perceive to be "liberal," fashioning remedies beyond the 
scope of what is deemed to be appropriate under the law. 
Such judicial legislating is generally excoriated as a "bad 
thing." Hopwood v. State of Texas5 is a text book example 
of judicial activism. Here, two members of the three- 
judge panel determined to bar any consideration of race 
in the Law School’s admission process. This "injunction" 
is wholly unnecessary to the disposition of the matter 
appealed and thus is clearly dictum; yet dictum that is a 
frontal assault on contrary Supreme Court precedent and 
thus not the kind of dictum we can ignore. By tenuously 
stringing together pieces and shards of recent Supreme 
Court opinions that have dealt with race in such diverse 
settings as minority set asides for government contractors, 
broadcast licenses, redistricting, and the like, the panel 
creates a gossamer chain which it proffers as a 
justification for overruling Bakke. We are persuaded that 
this alone makes the instant case not just en banc-worthy 
but en banc mandatory.

The Supreme Court has left no doubt that as a 
constitutionally inferior court, we are compelled to follow 
faithfully a directly controlling Supreme Court precedent 
unless and until the Supreme Court itself determines to 
overrule it.6 We may not reject, dismiss, disregard, or

5 __ F.3d ___(1996 WL 120235) (5th Cir. 1996).

6 See Rodriguez v. Ouijas v. Shearson/American Express, Inc., 
490 U.S. 477, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989).



202a

deny Supreme Court precedent, even if, in a particular 
case, it seems pellucidly clear to litigants, lawyers, and 
lower court judges alike that, given the opportunity, the 
Supreme Court would overrule its precedent.

Members of this court have frequently "preached" 
against such judicial activism. In Williams v. Whitley,7 
Judge Higginbotham explained the limits placed on 
appellate courts regarding Supreme Court precedent:

[Ajbsent clear indications from the Supreme Court 
itself, lower courts should not lightly assume that 
a prior decision has been overruled sub silentio 
merely because its reasoning and result appear 
inconsistent with later cases. As [the district court] 
pointed out . . . the Court issued a reminder to 
this effect only a few years ago in Rodriguez de 
Ouijas v. Shearson/American Express, Inc., 490 U.S. 
477, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989): "If 
a precedent of [the Supreme] Court has direct 
application in a case, yet appears to rest on 
reasons rejected in some other line of decisions, 
the Court of Appeals should follow the case which 
directly controls, leaving to [the Supreme] Court 
the prerogative of overruling its own decisions." 
Id. at 484-85, 109 S. Ct. at 1921-22; see also id. at 
486, 109 S. Ct. at 1923 (Brennan, J., dissenting) 
(describing anticipatory overruling as "an 
indefensible brand of judicial activism") . . .  In 
these circumstances, our role as an inferior court 
counsels restraint, even if the result otherwise appears 
inescapable.

7994 F.2d 226, 235 (5th Cir. 1993).



203a

In like manner, our colleagues have routinely counseled 
that judicial restraint is the order of the day, especially in 
the constitutional context. For example, in Walton v. 
Alexander,8Judgz Garwood insisted that courts have a 
duty not to address constitutional issues not necessary to 
the disposition of an individual case.

[I]t is settled that courts have a "strong duty to 
avoid constitutional issues that need not be 
resolved in order to determine the rights of the 
parties to the case under consideration." County 
Court o f Ulster County v. Allen, 442 U.S. 140, 154, 
99 S. Ct. 2213, 2223, 60 L. Ed. 2d 777 (1979). This 
"responsibility to avoid unnecessary constitutional 
adjudication" is "a fundamental rule of judicial 
restraint." Three Affiliated Tribes v. World 
Engineering, 467 U.S. 138, 157, 104 S. Ct. 2267, 
2279, 81 L. Ed. [2d] 113 (1984). All this, of 
course, applies not only to the Supreme Court but 
to lower courts as well. See Bowen v. United States, 
422 U.S. 916, 920, 95 S. Ct. 2569, 2573, 45 L. Ed. 
[2d] 641 (1975).

Variations of this theme can be found in the opinions of 
many of the judges of this court.9

820 F.3d 1350, 1356 (5th Cir. 1994). We cannot but note 
that a majority of our active judges voted Walton en banc to 
correct the majority’s erroneous interpretation of Supreme 
Court precedent regarding an issue that was not necessary for 
the resolution of the case.

9See also United States v. Mendiola, 42 F.2d 259, 260 n.l 
(5th Cir. 1994) (Barksdale, J.) ("It goes without saying that we 
have a strong duty to avoid constitutional issues that need not



204a

Thus, it seems that this court has trouble practicing 
what it preaches, at least in this instance. For here, 
Justice Powell’s opinion in Bakke made the Supreme 
Court’s disposition precedential.10 We unequivocally 
reject the proposition that it does not mandate our

be resolved in order to determine the rights of the parties to 
the case under consideration."); Manning v. Upjohn Co., 862 
F.2d 545, 547 (5th Cir. 1989) (Smith, J.) ("Principles of judicial 
restraint dictate that if resolution of an issue effectively 
disposejs] of a case, we should resolve the case on that basis 
without reaching any other issues that might be presented."); 
Apache Bend Apartments, Ltd. v. United States, 987 F.2d 1174, 
1175 (5th Cir. 1993) (Jolly, J.) ("The judicial power to 
adjudicate constitutional questions is reserved for those 
instances in which it is necessary for the vindication of 
individual rights.") (emphasis added); Doe v. Taylor Indep. Sch. 
Dist., 15 F.3d F.3d 443 (5th Cir. 1994) (Jones, J., dissenting, 
joined by Garwood, Smith, Barksdale and DeMoss, JJ.) ("‘The 
doctrine of judicial self-restraint requires us to exercise the 
utmost care whenever we are asked to break new ground in 
[the constitutional] field.”') (quoting Collins v. City o f Harker 
Heights, 503 U.S. 115,125,112 S. Ct. 1061, 1068,117 L. Ed. 2d 
261 (1992)).

10In a part V.C. of his opinion, Justice Powell writes,

In enjoining [the University of California at Davis] 
from ever considering the race of any applicant, 
however, the courts below failed to recognize that the 
State has a substantial interest that legitimately may be 
served by a properly devised admissions program 
involving the competitive consideration of race and 
ethnic origin.

Bakke, 438 U.S. at 318. Justices Brennan, White, Marshall, and 
Blackmun joined Justice Powell in this holding. Id. at 271 n.*.



205a

disposition. The syllogisms tacked together and proffered 
by the majority opinion as proof that Justice Powell’s 
diversity conclusion is no longer good law do not, under 
any standards of which we are aware, qualify as an 
overruling of Bakke,u To the contraiy, direct reference 
to Justice Powell’s diversity analysis documents, supports, 
and reinforces its continuing validity.* 12 Consequently, 
even if the members of the panel majority were convinced 
that the Supreme Court is certain to overrule Bakke, in 
the absence of an express overruling, they had no option 
but to grin, follow Bakke, bear it, and patiently await the 
Supreme Court’s reconsideration. Rather than following 
this universally recognized canon, adhering to our 
established rules, and applying Supreme Court precedent, 
the panel charted a path into terra incognita. Judicial 
self-restraint was the first casualty; it proved to be too 
burdensome. The teachings proscribing the consideration 
of constitutional issues unnecessary to the decision soon 
followed. With these two limitations adroitly set aside, 
the panel majority apparently considered itself positioned 
to overrule Bakke.

Giving the panel majority the benefit of the doubt, 
as we are wont to do and should do, and assuming 
arguendo that Bakke’s diversity issue had to be addressed 
in this particular case, would it not have been the more

1JLest there be any doubt, we are firmly convinced that, 
until the Supreme Court expressly overrules Bakke, student 
body diversity is a compelling governmental interest for the 
purposes of strict scrutiny.

12See Wygant v. Jackson Bd. O f Educ., 476 U.S. 267, 286 
(1986) (O’Connor, J., concurring) (recognizing racial diversity 
as sufficiently compelling in the context of higher education).



206a

judicious course to have brought our full en banc powers 
to bear on this difficult, vitally important question? It can 
hardly be gainsaid that reasonable jurists can and likely 
will differ on an issue of such magnitude, depth, and 
importance. Indeed, this very truism compels giving to 
the entire court the opportunity to devote to this crucial 
case its focused consideration. Conceivably, after an en 
banc rehearing the panel result, its reasoning, and even its 
dicta, might be embraced by a majority of the en banc 
court. But that is not the point; even if that 
unprecedented and, we suggest, impertinent step—a 
federal circuit court, sitting en banc, purporting to 
overrule a Supreme Court precedent—were to be taken, it 
would not be taken until sixteen of the seventeen active 
judges of this court13 had an opportunity to consider and 
participate in the deliberations on this matter fully.

There are many things which a "yea" vote on an en 
banc poll is not: It is not necessarily a vote against the 
analysis; it is not necessarily a vote against the result; it is 
not necessarily a vote against a panel opinion or in favor 
of a special concurrence or a dissent. It is rather an 
affirmative statement that, for one or more reasons, a 
case or an issue is worthy of the time, attention, and 
efforts of the entire court. Hopwood is such a case. 
Unfortunately, a bare majority of our colleagues have 
joined hands to deny this storied court the opportunity to 
consider this case en banc.

The majority of the panel overruled Bakke, wrote 
far too broadly, and spoke a plethora of unfortunate

13Judge Emilio M. Garza, our seventeenth active judge, 
recused himself from the outset.



207a

dicta. That was not their prerogative, yet this court 
declined to reconsider Hopwood en banc. From that 
decision we must, perforce, dissent.

Stewart, Circuit Judge, dissenting from failure to grant 
rehearing en banc.

I wholeheartedly concur in the dissent to the denial 
of en banc rehearing. I write separately to underscore the 
lack of historical perspective and sensitivity in both the 
panel majority’s opinion and the vote not to consider this 
case en banc.

That it is the University of Texas School of Law’s 
admissions policy at issue is a fact whose significance has 
not been lost on any of us. In 1946, this very school 
denied admission to Heman Marion Sweatt because he 
was black, prompting him to sue the University. Sweatt’s 
real difficulties began fifty years before when the United 
States Supreme Court scripted one of this nation’s most 
evil conceits in Plessy v. Ferguson, 163 U.S. 537 (1896), 
declaring "separate but equal" treatment of black 
Americans constitutional. Plessy was no more than a 
license for continued racial discrimination. However, in 
1950 the Supreme Court held that excluding Sweatt on 
account of his race violated the Equal Protection Clause 
of the Fourteenth Amendment. Sweatt v. Painter, 339 
U.S. 629 (1950).1

1When a court ordered the State to provide a law school 
for blacks, Texas created a "makeshift law school that had no 
permanent staff, no library staff, no facilities, and was not 
accredited." Hopwood v. State o f Texas, 861 F. Supp. 551, 555



208a

History, in its characteristic irony, takes this court 
to that hallowed ground of civil rights jurisprudence to 
assess the University’s effort to encourage minority 
enrollment and counter its legacy of segregation. It is an 
unfortunate, further irony that the panel majority opinion 
should so overreach in its decision. In Sweatt’s case, the 
Supreme Court explicitly adhered to the "principle of 
deciding constitutional questions only in the context of 
the particular case before the Court," drawing its decision 
"as narrowly as possible." Id. at 631 (citing Rescue Army 
v. Municipal Court, 1947, 331 U.S. 549 (1947)). If there 
were ever a time to end legalized segregation, that was 
the time. The Court was in a position to paint with a 
broad brush and eliminate the very regime which denied 
civil rights to Sweatt and other blacks. Chief Justice 
Vinson’s opinion for the Court, however, resisted calls to 
wax on "[bjroader issues . .  . urged for our consideration." 
Id.

The panel majority in our case displayed no such 
discipline, instead taking the unauthorized liberty of 
deciding the appropriateness of diversity as an admissions 
criterion, not just the merits of the instant admissions 
policy. Constitutional interpretation is a sensitive project. 
Limiting ourselves to the facts before the court keeps the 
process measured—it is a traditional check which respects 
the need to calibrate rights and interests carefully. Given 
the sensitivity of constitutional interpretation, the panel 
majority’s decision disrespects the importance of the facts. 
Refusing to correct this travesty en banc is a grave error.

(1994). This "law school" consisted of 3 rooms in a basement 
and had two professors. Paul Butler, Affirmative Action 
Admissions, Dallas Morning News, April 7, 1996, at 1J.



209a

As to the request to intervene, what class of 
persons is more qualified to adduce the evidence of the 
present effects of past discrimination than current and 
prospective black law students? Reading Sweatt as a 
benchmark decision marking the end of de jure 
segregation is akin to shelving Trotsky’s The History of 
the Russian Revolution upon reading only the preface. 
Just as those initial pages fail to give a true rendition of 
the entire work, so too does Sweatt give only a superficial 
understanding of the racism it hardly addressed. A year 
after the Supreme Court ordered that Sweatt be admitted, 
he left the law school "without graduating after being 
subjected to racial slurs from students and professors, 
cross burnings, and tire slashings." Hopwood v. State of 
Texas, 861 F. Supp. 551, 555 (1994). Furthermore, "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." Id. It was not until 1983 that Texas 
even agreed, after years of threats of federal action, to an 
acceptable plan to desegregate its higher education 
system. In 1987 and again in 1994, the Department of 
Education instructed Texas to maintain its plan. To this 
day, Texas’s higher education system still has not been 
declared in compliance with Title VI and the Fourteenth 
Amendment. Id. at 556-57.

"The life of the law," Justice Oliver Wendell 
Holmes observed, "is not logic, but experience." To 
divorce the time in which it was legally possible for Sweatt 
to attend the Law School from the reality he experienced 
there is to ignore the very insidiousness of racial 
discrimination. It was the vestiges of that discrimination 
which, far from being destroyed, thrived and drove Sweatt 
out of the Law School. We act no less callously now in



210a

pretermitting the consideration of that legacy by denying 
rehearing.

For all these reasons and those expressed in the 
collective dissent, I vehemently disagree with our court’s 
decision not to rehear this case en banc.