Hopwood v. Texas Suggestion of Rehearing En Banc

    No. 94-50569
In the

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

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

v.
STATE OF TEXAS, et al.,

Defendants-Appellees,

THURGOOD MARSHALL LEGAL SOCIETY and 
BLACK PRE-LAW ASSOCIATION,

Movants-Appellants.

On Appeal from the United States District Court 
for the Western District of Texas

SUGGESTION OF REHEARING EN BANC

Elainf. R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
D ennis D. Parker 
NAACP Legal Defense & 
Educahonal Fund . Inc.
99 Hudson Street, Suite 1600 
New York. NY 10013 
(212) 219-1900

Janell M. Byrd 
NAACP Legal D efense & 
Educational Fund , Inc.
1275 K Street. N.W., Suite 301 
Washington, D.C. 20005 
(202) 682-1300

A nthony P. G riffin 
Anthony P. G riffin. Inc.
1115 Moody 
Galveston. TX 77550 
(409) 763-0386 
Texas Bar No. 08455300

David Van Os 
Van Os & Owi n'
900 Congress Avenue. Suite 400 
Austin. TX 78701 
(512) 479-6155 
Texas Bar No. 20450700

Attorneys for Appellants



CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel certifies that the following listed persons have an interest 

in the outcome of this case. These representations are made in order that the Judges of 

this Court may evaluate possible disqualification or recusal.

1. The plaintiffs in this action: Cheryl J. Hopwood, Douglas W. Carvell, Kenneth 

R. Elliott, and David A. Rogers.

2. Counsel for the plaintiffs: Terral R. Smith, Steven W. Smith, R. Kenneth 

Wheeler, Joseph A. Wallace, Paul J. Harris, Michael Rosman, and Michael P. McDonald.

3. The defendants in this action: The State of Texas; The University of Texas 

Board of Regents; Board of Regents members Bernard Rapopart, Ellen C. Temple, Lowell 

H. Lebermann, Jr., Robert J. Cruikshank, Thomas O. Hicks, Zan W. Holmes, Jr., Tom 

Loeffler. Mario E. Ramirez, and Martha E. Smiley; The University of Texas at Austin; 

Robert M. Berdahl, President of the University of Texas at Austin; The University of Texas 

School of Law; Mark G. Yudof, Dean of the University of Texas School of Law; and 

Stanley M. Johanson, Assistant Dean of the University of Texas School of Law.

4. Counsel for the defendants: Harry M. Reasoner, Betty Owens, Allan Van 

Fleet, Barry D. Burgdorf, R. Scott Placek, Samuel Issacharoff, Charles Alan Wright, and 

Javier Aguilar.

5. The proposed intervenors-appellants: The Thurgood Marshall Legal Society 

and the Black Pre-Law Association of the University of Texas at Austin.



6. Counsel for the proposed intervenors-appellants: Theodore M. Shaw,

Norman Chachkin, Dennis D. Parker, Janell M. Byrd, Alan Jenkins, Anthony P. Griffin, 

David Van Os, Nicole M. Walthour, and Howard Young.

Dennis D. Parker 
Attorney of record for Appellants



CERTIFICATE OF COUNSEL

I express a belief, based on a reasoned and studied professional judgment, that 

the panel decision is contrary to the following decision of the United States Court of 

Appeals for the Fifth circuit, and that consideration by the full court is necessary to 

secure and maintain uniformity of decisions in this Court:

I also express a belief, based on a reasoned and studied professional judgment, 

that this appeal involves one or more questions of exceptional importance:

Whether the interests of African-American students, members of 

the class so long excluded from and subject to discrimination by the 

University of Texas Law School, in preserving a race-conscious admissions 

program that counteracts the discriminatory effect of the "Texas Index" 

scores otherwise used as admissions criteria, are adequately represented 

by a State which defends the program without raising the defense that use 

of the Texas Index for African-American applicants is racially 

discriminatory in violation of Title VI of the 1964 Civil Rights Act?

Reid v. Rolling Fork Public Utility Dist., 979 F.2d

1084, 1086 (5th Cir. 1992).

Dennis D. Parker 
Attorney of record for Appellants



Table of Contents
Page.

Table of Authorities ......................................................................................................... i

Statement of Issue Meriting En Banc Consideration ......................................................1

Statement of Proceedings and Disposition ........................................................................1

Statement of Facts ......................  3

ARGUMENT IN SUPPORT OF REHEARING EN B A N C ........................................ 5

Conclusion.........................................................................................................................13

Certificate of Service......................................................................................................... 15

Table of Authorities

Cases:

Adams v. Bell,
Civ. No. 70-3095, Order of March 24, 1983)...................................................... 4n

Adams v. Richardson,
351 F. Supp. 636 (D.D.C. 1972), 356 F. Supp. 92 
(D.D.C.), modified & affd, 480 F.2d 1159 (D.C.
Cir. 1973).............................................................................................................  4n

FDIC v. Dawson,
4 F.3d 1303 (5th Cir. 1993) ................................................................................ 12

Hopwood v. State of Texas,
21 F.3d 603 (5th Cir. 1994) ...........................................................................passim

Hopwood v. State of Texas,
861 F. Supp. 551 (W.D. Tex. 1994) ..............................................................  3n, 4

Jansen v. City of Cincinnati,
904 F.2d 336 (6th Cir. 1990) .......................................................................  9, I0n

Regents of Univ. of Calif, v. Bakke,
438 U.S. 265 (1978)................................................................................................ In

i



Page

Cases (continued):

Reid v. Rolling Fork Public Utility Dist.,
979 F.2d 1084 (5th Cir. 1992) ..........................................................................lln

Schexnider v. McDermott Int’l Inc.
868 F.2d 717 (5th Cir. 1989) ............................................................................  lln

Smuck v. Hobson,
408 F.2d 175 (D.C. Cir. 1969) .......................................................................  9-10

Sweatt v. Painter,
339 U.S. 629 (1950)................................................................................................3

Women’s Equity Action League v. Cavazos,
906 F.2d 742 (D.C. Cir. 1990) ............................................................................ 4n

Statutes:

Title VI of the Civil Rights Act of 1964 ................................................... 1. 3. 4, 6, 7, 12

Table of Authorities (continued):

ii



SUGGESTION OF REHEARING EN BANC

Statement of Issue Meriting En Banc Consideration 

Appellants, the Thurgood Marshall Legal Society and the Black Pre-Law 

Association, respectfully pray that this Court rehear this appeal, en banc, in order to 

decide the following question of exceptional importance in this Circuit:

Whether the interests of African-American students, members of 

the class so long excluded from and subject to discrimination by the 

University of Texas Law School, in preserving a race-conscious admissions 

program that counteracts the discriminatory effect of the "Texas Index" 

scores otherwise used as admissions criteria, are adequately represented 

by a State which defends the program without raising the defense that use 

of the Texas Index for African-American applicants is racially 

discriminatory in violation of Title VI of the 1964 Civil Rights Act?1

Statement of Proceedings and Disposition 

The underlying litigation, in which appellants sought to intervene, was 

commenced on September 29, 1992 and April 23, 1993 by two separate groups of

'Appellants believe that the issues decided in the consolidated appeal, No. 94-50664, 
are also of extraordinary public importance; that the panel's judgment on that appeal 
is in error; that the ruling of the panel majority, in particular, conflicts with the decision 
of the Supreme Court in Regents o f Univ. o f Cal. v. Bakke, 438 U.S. 265, 307 (1978) 
(opinion of Powell, J.), which remains good law unless and until modified by that Court; 
and that rehearing en banc of that appeal would also be merited. Of course, appellants 
here cannot and do not seek such a rehearing because they are not parties to the 
consolidated appeal, having been denied intervention. TTie inability of African 
Americans to be heard on these important issues is an example of the unfortunate 
consequences of the erroneous denial of intervention that appellants seek to correct 
through this Suggestion of Rehearing En Banc.



plaintiffs whose applications for admission to the University of Texas Law School had 

been denied. Plaintiffs challenged their rejections as violative of the Fourteenth 

Amendment because the Law School affirmatively took race into account in making 

admissions decisions so as to achieve a diverse student body and to redress prior 

discriminatory conduct by Texas educational authorities and other governmental bodies.

Defendants' motion for summary judgment dismissing the suit for lack of 

standing and on ripeness grounds was denied on October 28, 1993. Present appellants 

moved to intervene on January 5, 1994 (R. 622-24). On January 19, 1994 the district 

court denied the motion, although it allowed appellants to proceed as amici curiae (R. 

742-46). On expedited appeal, a panel of this Court affirmed on May 11, 1994, holding 

that:

Although [appellants] may have ready access to more evidence than the 
State, we see no reason they cannot provide this evidence to the State.
The [appellants] have been authorized to act as amicus and we see no 
indication that the State would not welcome their assistance. [Appellants] 
have not met their burden 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, [citation omitted.]

Hopwood v. Slate o f Texas (Hopwood /), 21 F.3d 603, 605-06 (5th Cir. 1994) (per

curium).

At the trial, which commenced May 16, 1994, defendants declined to defend the 

challenged law school admissions procedure on the specific ground that application of 

the same statistical measure combining undergraduate grade-point average and LSAT

2



score (the "Texas Index") to white and African-American applicants would violate Title 

VI of the 1964 Civil Rights Act, or to present a witness identified by appellants who was 

prepared to give testimony in support of that defense. Following the completion of the 

trial (but before the district court had ruled), appellants again moved to intervene, 

alleging that the State's refusal to present this evidence met the prerequisites described 

by the panel in Hopwood I. That motion was denied by the district court on July 18, 

1994, and this judgment is affirmed in the panel opinion in the instant matter on the 

ground that the intervention issue was decided in Hopwood I  and the "law of the case" 

doctrine bars a decision by this Court on the merits of appellants' post-trial motion to 

intervene.

Statement of Facts

The litigation that gave rise to this appeal involves the University of Texas Law 

School -  the same institution that was the subject of the Supreme Court's ruling in 

Sweatl v. Painter, 339 U.S. 629 (1950), invalidating the schools’s prior unvarying 

exclusion of African-American citizens of Texas (or any other State) from enrollment. 

For a generation after Sweatt, the Law School's enrollment was overwhelmingly white. 

Except for a short-lived experience with the CLEO program in the late 1960's,2 the 

School undertook no affirmative action efforts to increase its minority enrollment until 

after the filing of a lawsuit by a class of African-American students and their parents

2See Hopwood v. Slate o f Texas, 861 F. Supp. 551, 557-58 n.10 & accompanying text 
(W.D. Tex. 1994).

3



that resulted in orders requiring the U.S. Department of Education3 to enforce Title 

VI of the 1964 Civil Rights Act, inter alia, in higher education.4 The Law School's 

race-conscious admissions procedures evolved against the backdrop of this history, see 

Hopwood v. State o f Texas, 861 F. Supp. at 557; nevertheless, the plaintiffs in the 

underlying litigation challenged them as unconstitutional racial discrimination against 

whites.

As a result of the district court's denial of intervention to appellants and the 

ruling in Hopwood I, appellant African-American student organizations played no active 

role in the trial on the merits of the claims presented to this Court in No. 94-50664. 

Appellants were not permitted to introduce evidence or to argue before the trial court. 

Appellants identified and made known to the State defendants an expert witness who 

was qualified to present evidence that race-conscious admissions to the Law School 

were necessary to avoid the unlawful racial discrimination (in violation of Title VI) that 

would result from application of the same Texas Index score requirements to white and 

African-American applicants. The witness' evaluation of statistics about the University 

of Texas Law School entering classes of 1986, 1987 and 1988 that were already in the 

record indicated that the "Texas Index" calculation upon which the Law School largely

’Originally, its predecessor, the U.S. Department of Health, Education and Welfare.

*See Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1972), 356 F. Supp. 92 
(D.D.C.), modified and aff’d unanimously en banc, 480 F.2d 1159 (D.C. Cir. 1973); 
Adams v. Bell, Civ. No. 70-3095, Order of March 24, 1983 (reproduced at R. 698 et seq., 
Exhibit D); dismissed sub nom. Women’s Equity Action League v. Cavazos, 906 F.2d 742 
(D.C. Cir. 1990).

4



based its admissions decisions could reliably predict less than 10% of the variation, in 

first-year grades for African-American students — whatever its validity for white 

students. (R. Item 9/29/94 [unnumbered].) But the State declined to offer the defense. 

Later, appellants were denied the opportunity to submit a post-trial brief presenting 

that evidence.' As noted above, the evidence also was not considered by the panel on 

this appeal, based upon its conclusion that the "law of the case" doctrine prevented it 

from reaching "the merits."

ARGUMENT IN SUPPORT OF REHEARING EN BANC 

Because intervention was denied, appellants were unable to present evidence to 

the district court that the Texas Index, upon which Law School admissions were largely 

based, was not a valid predictor of first-year performance for African Americans to 

support their argument that race-conscious admissions procedures at the Law School

Just prior to the conclusion of the trial, the district court discussed post-trial 
briefing with counsel and made the following statement, which appellants took to 
indicate the court s willingness to consider evidence they might present in written form:

[Tjalk among yourselves tonight . . .  as to what scheduling . . .  for legal research 
or briefs or whatever you wish to put into the record before I get on and write 
a determination in the case. I am already committed to at least ten days to 
[attempted] intervenors who have been very patient sitting there [as amici]. They 
will be able to produce whatever they would like in the record.

Trial Tr. Vol. 25 at 11-12. Appellants thereupon filed a post-trial brief to which was 
attached a Declaration from the expert witness they had tendered to the State of Texas; 
the declaration explained the invalidity of the Texas Index as a measure for predicting 
first-year success for African-American applicants to the law school. Plaintiffs moved 
to strike the declaration and appended exhibits. The district court denied the motion 
but stated that it would not consider this evidence (R. 1450).

5



were necessary to avoid and to redress discrimination. That evidence indicates clearly 

that appellants’ rights under Title VI of the 1964 Civil Rights Act would be violated by 

the uniform application of the Texas Index in the admissions process that plaintiffs in 

the underlying litigation sought to achieve. Thus, appellants have an interest in this 

action that is separate and distinct from that of the State of Texas. As we show below, 

the panel in Hopwood I  affirmed the pre-trial denial of intervention because it expected 

the State would present appellants' claims and evidence. The panel on this appeal 

affirmed the post-trial denial of intervention not on the merits but because of an 

erroneous construction of the "law of the case" doctrine. Rehearing en banc is 

appellants' only mechanism for protecting their rights.

Although the opinion declares that the panel was precluded from considering the 

merits of appellants' appeal by the "law of the case doctrine" (slip op. at 70). the present 

appeal is a weak candidate for application of that doctrine. The panel opinion 

characterizes the legal question purportedly decided on the prior appeal from the denial 

of pre-trial intervention, Hopwood v. State o f Texas, 21 F.3d 603 (5th Cir. 1994), as, at 

best, having been "implicitly addressed" on that appeal. In fact, the issue could not have 

been addressed (especially in the specific and concrete context in which it is framed on 

the present appeal) because the predicate facts did not yet exist.

Present appellants could only represent to this Court, at the time of the argument 

on the earlier appeal, their expectation that the State of Texas (which did not file a 

brief, and which, in its short statement of position, neither confirmed nor denied the

6



expectation) would neither proffer the evidence subsequently developed by the present 

appellants to support, nor otherwise advance, in defense of the Law School's race­

conscious admissions procedure, the argument that the Texas Index was invalid under 

Title VI for African-American applicants. Thus, while the panel opinion states that 

appellants "raised this same title VI argument before the Hopwood I panel in both their 

brief and at oral argument" (slip op. at 70), and that therefore "the last panel implicitly 

addressed this issue . . . [so that t]he law of the case doctrine prevents merits review," 

both the language of the appellants’ brief on the prior appeal and the Court's opinion 

in that decision indicate the contrary.

Appellants' opening brief in Hopwood /, 21 F.3d 603 (No. 94-50083), prepared

on March 17, 1994, included the following statements with respect to the anticipated

Title VI defense that could be raised at trial [discovery was not due to close until April

1, 1994, see Hopwood /, 23 F.3d at 604]:

. . .  it is expected that BPLA and TMLS will develop the record and 
advance essential arguments that the State defendants will not make. For 
example, proposed intervenors would offer evidence . . . casting doubt on 
the predictive validity of the Texas Index (a combination of undergraduate 
grades and LSAT scores) used in the admission process. The State’s 
ability and willingness to advance such positions are at best severely 
constricted. [Brief for Proposed Intervenors-Appellants, No. 94-50083, at 
12]

. . .  If allowed to participate as parties in this case, proposed intervenors 
would make essential arguments and introduce important evidence that 
the defendants cannot or will not advance. . . . Proposed intervenors also 
will seek to demonstrate that a racially hostile evironment continues to 
exist at the University of Texas [citation omitted]. This showing also 
potentially implicates Title VI liability [citation omitted], and the 
defendants cannot be expected to advance such an argument.

7



Additionally, proposed intervenors' defense of the existing admissions 
program may cast doubt on the predictive value of the Texas Index — a 
combination of undergraduate grades and LSAT scores — in the selection 
of applicants. Each of these arguments, and others intervenors expect to 
advance, is important to this case yet contrary to the defendants' 
institutional interests. [Brief for Proposed Intervenors-Appellants, No. 94- 
50083, at 21 f

Far from "implicitly addressing" the question whether inadequate representation of

proposed intervenors' interests would be established by the failure or refusal of the

State of Texas defendants to introduce evidence indicating the potential invalidity of the

Texas Index as a reliable measure of expected success in the first year of law school for

African-American students, the panel in Hopwood I in fact side-stepped the question

by assuming that the State would be receptive to using this evidence:

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 
Stale. The BPLA and 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 of demonstrating that they 
have a separate interest that the State will not adecpiately represent. 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).

Hopwood /, 21 F.3d at 605-06 (emphasis supplied).

Thus, the assumption of the Hopwood 1 panel was that Texas would make the

Title VI argument, and that it would adequately represent the proposed intervenors’

interests. The Court's assumption was, however, not borne out by subsequent events.

As indicated in their brief on the present appeal, appellants

"No different information was provided to the Court at the oral argument of the 
Hopwood I appeal.

8



included as an exhibit to their [district court] amicus brief the declaration 
of Dr. Martin Shapiro, an expert they had offered to the State defendants as 
a witness, but whom the defendants declined to use. . . . While defendants 
had conceded the validity o f the TjexasJ I[ndex] at trial, proposed 
intervenors’ expert demonstrated from the record evidence that the T/exas]
I Index] was not a valid predictor o f Law School performance for African- 
American students" [Brief of Proposed Intervenors-Defendants-Appellants,
No. 94-50569, at 15 (emphasis supplied)].

The state's refusal at trial to assert the Title VI argument, as well as its failure 

to proffer an expert witness who was fully prepared to testify about the discriminatory 

effect on African-Americans of the law school’s use of the Texas Index in the 

admissions process, substantially changed the appellants' legal posture at the time of 

their second appeal. The appearance of adequate representation by the State 

defendants in which the Court indulged in Hopwood I  because "the State is presumed 

to represent the interests of all its citizens," 21 F.3d at 605, and because the panel in 

Hopwood I assumed that the State would be receptive to proposed intervenors' evidence 

and arguments, simply disappeared. See Jansen v. City o f Cincinnati, 904 F.2d 336, 341 

(6th Cir. 1990) (City's representation of proposed intervenors' interests was adequate 

until City responded to motion for summary judgment and failed to raise affirmative 

defense that proposed intervenors wished to proffer);7 c f, e.#., Smuck v. Hobson, 408

The panel on this appeal discounts the significance of Jansen (which was cited in 
the Hopwood I opinion in support of the statement that appellants had not "shown that 
they have a separate defense of the affirmative action plan that the State has failed to 
assert." 21 F.3d at 606) on the ground that the Jansen court found the proposed 
intervenors had an interest different from the City's, unlike in the present situation. See 
slip op. at 67 n.59. The supposed distinction simply cannot be harmonized with the 
approach of the Jansen court.

9



F.2d 175, 181-82 (D.C. Cir. 1969) (Board of Education adequately represented 

intervenors during trial But, despite good faith of its decision, may not adequately have 

represented their interests when it decided not to appeal).

In Hopwood I  the panel concluded, from the perspective of the facts available to 
it at that time, that the State’s interest and the appellants' interest were the same: 
upholding the admissions procedure:

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. . . .

. . . BPLA and TMLS have not met their burden 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).

21 F.3d at 605, 606. The meaning of these passages is not that appellants had no 
separate interest from the State, but that they had no separate interest that the Court 
could say would not be protected by the State. Appellants have an interest in ensuring 
that they are not subjected to an admissions procedure at the Law School that violates 
Title VI; the panel recognizes as much in explicitly holding that appellants "are not 
precluded from instituting a separate and independent title VI challenge to the law 
school s use of the TI" (slip op. at 70 n.62). That is parallel to the "separate interest" 
recognized in Jansen, 904 F.2d at 343:

The proposed intervenors’ interest in the present and future 
employment and promotion in the Division of Fire is distinct from the 
City's interest in defending its 1988 hiring practices.

As in Jansen, appellants' separate interest appeared to be adquately represented by 
Texas' defense of its admissions procedure until the State refused to advance the Title 
VI defense. That refusal is a sufficient change of circumstance to "overcome the 
presumption of adequate representation that arises when the proposed intervenors and 
a party to the suit have the same ultimate objective," Jansen, 904 F.2d at 343.

10



It is because of this change in circumstances, as well as the plain language of the 

Hopwood I ruling, that the panel opinion’s invocation of the "law of the case" doctrine 

on the present appeal is incorrect.

The "law of the case" doctrine requires that an appellate court's decision on a 

legal issue must be followed in all subsequent proceedings in the same case unless "[1] 

the evidence at a subsequent trial was substantially different, [2] the controlling 

authority has since made a contrary decision of law applicable to such issues, or the [3] 

decision was clearly erroneous and would work a manifest injustice."8 Not only is the 

predicate "decision on a legal issue" absent from the ruling in Hopwood /, but both the 

first and third exceptions to the "law of the case" doctrine apply on the present appeal.

As the preceding recitation demonstrates, the information presented to the 

Hopwood I panel and the language of its opinion make clear that the "legal issue" -- 

whether the State's failure to advance the Title VI defense demonstrated its inadequate 

representation of plaintiff-intervenors' interests -  was simply not decided on the earlier 

appeal, "implicitly" or otherwise. The Hopwood I  opinion's elaboration of the panel’s 

expectation about what would happen at trial indicates, rather, that the panel viewed 

appellants' expectations about the State's position as hypothetical at best, thus failing 

to "demonstrate] that they have a separate interest that the State will not adequately 

represent," 21 F.3d at 606. For this reason, the panel here erred in holding that it could 

not consider the merits of that argument because of the "law of the case" doctrine.

'Reid v. Rolling Fork Public Utility Disl., 979 F.2d 1084, 1086 (5th Cir. 1992), quoting 
Schexnider v. McDermott In t’l Inc., 868 F.2d 717, 718-19 (5th Cir. 1989).

11



Moreover, the State’s presentation at trial proved false the prior panel’s 

expectation -  prior to any trial -  that appellants’ interests would be accommodated and 

represented in the trial court as a result of the sharing of evidence with the State's 

counsel. In fact, by declining to defend the law school’s admission policy by presenting 

the argument that the failure to mitigate the adverse effect of the Texas Index on 

African Americans might itself violate Title VI, the State both demonstrated that its 

interests were different from those of the proposed intervenors and denied the 

proposed intervenors the opportunity to assert their interests. Thus, the "evidence at 

a subsequent trial was substantially different" from that before the Court in Hopwood

1. It follows for this reason as well that the panel here was not prevented by the "law 

of the case" doctrine from reaching the merits of appellants’ claim.

Finally, the panel’s refusal to consider the merits of appellants' claims 

notwithstanding changed circumstances assured that the appellants would be denied the 

opportunity to represent arguments and protect interests which were not adequately 

represented at trial and, by so doing, resulted in working a manifest injustice — yet 

another basis upon which, under settled precedent, the panel was not bound by the "law 

of the case" doctrine.

The panel’s disinclination to revisit the result of the first appeal is more readily 

comprehensible as an example of the principle that one panel of the Court will not 

adopt a different rule than previously announced by another panel. See, e.y.. FDIC v. 

Dawson, 4 F.3d 1303 (5th Cir. 1993). While application of that principle, like the "law

12



of the case doctrine" on this appeal, assumes that the Hopwood I  Court actually reached 

the legal issue that appellants seek here to present, at least the Court en banc is not 

restricted from doing so even if it did.

It is particularly ironic that the applicants for intervention in this case, whose 

members are part of the class for whose benefit the State of Texas took the actions 

attacked by the plaintiffs in this case in order to remedy generations of segregation and 

discrimination directed at that class, are the only parties who have not been permitted 

to participate in this litigation on its merits; and that the panel erroneously sought to 

justify that result by the erroneous application of the "law of the case" doctrine. This 

Court should rehear the matter en banc to correct that error, to allow the voices of 

African Americans to be heard in this matter, and thus to make possible the correction 

of the panel's erroneous holding on the critically important substantive questions 

presented in this lawsuit.

Conclusion

For the foregoing reasons, appellants respectfully pray that this Court rehear this 

appeal en banc; and upon such rehearing, reverse the district court’s judgment denying 

intervention, recall its mandate in the companion appeal. No. 94-50664, vacate the

13



judgment on that appeal, and remand both matters to the district court to consider the 

Title VI argument and evidence proffered by appellants.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel
cy
Theodore M. Shaw 
Norman J. Chaciikin 
Dennis D. Parker 
NAACP Legal Defense & 
Educational Fund . Inc.
99 Hudson Street, Suite 1600 
New York. NY 10013 
(212) 219-1900

Janell M. Byrd 
NAACP Legal D efense & 
Educational Fund . Inc.
1275 K Street. N.W.. Suite 301 
Washington. D.C. 20005 
(202) 682-1300

Anthony P. Griffin 
Anthony P. Griffin, Inc.
1115 Moody 
Galveston. TX 77550 
(409) 763-0386 
Texas Bar No. 08455300

David Van Os 
Van Os & Owen 
900 Congress Avenue, Suite 400 
Austin, TX 78701 
(512) 479-6155 
Texas Bar No. 20450700

Attorneys for Appellants

14



Certificate of Service

I hereby certify that on this 29th day of March, I served a copy of the foregoing 
Suggestion of Rehearing En Banc upon counsel for the other parties to this appeal, by 
depositing the same in the United States mail, first-class postage prepaid, addressed as 
follows:

Steven W. Smith, Esq.
3608 Grooms Street 
Austin, TX 78705

Michael P. McDonald, Esq.
Center for Individual Rights 
1300 19th Street, N.W., #260 
Washington, D.C. 20036

Samuel Issacharoff, Esq.
Charles Alan Wright, Esq. 
University of Texas School of Law 
727 East 26th Street 
Austin, Texas 78705

Harry M. Reasoner, Esq.
Alan Van Fleet, Esq.
Betty Owens, Esq.
Vinson & Elkins 
3300 First City Tower 
1001 Fannin Street 
Houston. Texas 77002

Terral R. Smith, Esq.
100 Congress Avenue, #1100 
Austin, TX 78768-2023

Hon. Javiar Aguilar 
Special Assistant Attorney General 
209 West 14th Street, 8th floor 
Austin, Texas 78701

Barry D. Burgdorf, Esq.
R. Scott Placek, Esq.
Vinson & Elkins 
600 Congress Avenue 
Austin, Texas 78701-3200

R. Kenneth Wheeler, Esq.
Joseph A. Wallace, Esq.
Paul J. Harris, Esq.
Wallace, Harris, Sims & Wheeler 
1100 Boulders Parkway, Suite 100 
Richmond, Virginia 23225

2> _  ___
Dennis D. Parker

15



THE UNITED" STATES COURT OF APPEALS^ S'C°UjR^ ^ ptALS 
FOR THE FIFTH CIRCUIT

________________ MAR 1 8  1996

CHARLES R. FULBRUGE III 
C L E R K

No. 94-50569

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

VERSUS
STATE OF TEXAS, et al.,

VERSUS
THURGOOD MARSHALL LEGAL SOCIETY 

and
BLACK PRE-LAW ASSOCIATION,

Movants-Appellants.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

DOUGLAS CARVELL, et al
Plaintiffs-Appellees,

VERSUS
STATE OF TEXAS, et al.,

De f endant s-Appe11ee s,

VERSUS
THURGOOD MARSHALL LEGAL SOCIETY, 
AND BLACK PRE-LAW ASSOCIATION,

* * * * * * * * * * * * * * * * * * * * *
Movants-Appellants. 

*****************************

N o . 94-50664

CHERYL J. HOPWOOD, et al.,
Plaintiffs,



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

VERSUS
STATE OF TEXAS, et al. ,

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
DOUGLAS CARVELL,

Defendants-Appellees.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
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

Before SMITH, WIENER, and DeMOSS, Circuit Judges. 
JERRY E. SMITH, Circuit Judge:

With the best of intentions, in order to increase the en­
rollment of certain favored classes of minority students, the 
University of Texas School of Law ("the law school") discrimi­
nates 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 to­

2



day 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 Su­
preme 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 prefer­
ences 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 of Richmond v. J.A. Croson Qc k , 488 U.S. 
469, 528 (1989) (Scalia, J., concurring in the judgment).

As a result of its diligent efforts in this case, the dis­
trict 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 
j urisdiction.

I. 
A.

3



The University of Texas School of Law is one of the nation's 
leading law schools, consistently ranking in the top twenty.

, e . q . . America's Best Graduate Schools, U.S. N ews Sc W orld R eport 
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 ap­
proximately 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 deci­
sions upon an applicant's so-called Texas Index ("TI") number, a 
composite of undergraduate grade point average ("GPA") and Law 
School Aptitude Test ("LSAT") score.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 inter­

1 The formulae were written by the Law School Data Assembly Service ac­
cording 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 suc­
cess in law school, the formulae for the class entering in 1992 accorded an 
approximate 60% weight to LSAT scores and 40% to GPA.

The formula for students with a three-digit LSAT, see infra note 5, was 
calculated as: LSAT + (10)(GPA) = TI. For students with a two-digit LSAT,
the formula was: (1.25)LSAT + (10)GPA = TI.

4



preting the individual scores of applicants, taking into consid­
eration factors such as the strength of a student's undergraduate 
education, the difficulty of his major, and significant trends in 
his own grades and the undergraduate grades at his respective 
college (such as grade inflation). Admissions personnel also 
considered what qualities each applicant might bring to his law 
school class. Thus, the law school could consider an applicant's 
background, life experiences, and outlook. Not surprisingly, 
these hard-to-quantify factors were especially significant for 

marginal candidates.2
Because of the large number of applicants and potential ad­

missions factors, the TI's administrative usefulness was its 
ability to sort candidates. For the class entering in 1992 the 
admissions group at issue in this case— the law school placed the 
typical applicant in one of three categories according to his TI 
scores: "presumptive admit," "presumptive deny," or a middle 
"discretionary zone." An applicant's TI category determined how 
extensive a review his application would receive.

Most, but not all, applicants in the presumptive admit cate­
gory 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

2 Notably, but of less significance to this appeal, residency also had a 
strong, if not often determinant, effect. Under Texas law in 1992, the law school was limited to a class of 15% non-residents, and the Board of 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.

5



files and downgraded only five to ten percent to the discretionary 
zone because of weaknesses in their applications, generally a non­
competitive major or a weak undergraduate education.

Applicants in the presumptive denial category also received 
little consideration. Similarly, these files would be reviewed by 
one or two professors, who could upgrade them if they believed that 
the TI score did not adequately reflect potential to compete at the 
law school. Otherwise, the applicant was rejected.

Applications in the middle range were subjected to the most 
extensive scrutiny. For all applicants other than blacks and 
Mexican Americans, the files were bundled into stacks of thirty, 
which were given to admissions subcommittees consisting of three 
members of the full admissions committee. Each subcommittee
member, in reviewing the thirty files, could cast a number of 
votes— typically from nine to eleven3— among the thirty files. 
Subject to the chairman's veto, if a candidate received two or 
three votes, he received an offer; if he garnered one vote, he was 
put on the waiting list; those with no votes were denied admission.

Blacks and Mexican Americans were treated differently from 
other candidates, however. First, compared to whites and non­
preferred minorities,4 the TI ranges that were used to place them

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

4 As blacks and Mexican Americans were the only two minority categories 
granted preferential treatment in admissions, it is inaccurate to say that the 
law school conducted separate admissions programs for "minorities" and "non­minorities." While the law school application form segregated racial and eth­
nic classification into seven categories— "Black/African American," "Native 
American," "Asian American," "Mexican American," "Other Hispanic" (meaning(continued...)

6



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 18 9 to be presumptively admitted.6 The 
difference in the presumptive-deny ranges is even more striking. 
The presumptive denial score for "nonminorities" was 192; the same 
score for blacks and Mexican Americans was 179.

While these cold numbers may speak little to those unfamiliar 
with the pool of applicants, the results demonstrate that the 
difference in the two ranges was dramatic. According to the law 
school, 1992 resident white applicants had a mean GPA of 3.53 and

( . . .continued)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 Nige­
ria 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).

5 Because of a recent change in the grading scale of the LSAT, the law 
school in 1992 had applicants who had taken an earlier LSAT scored on 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.

6 In 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 TI's were 196 for Mexican Americans and 192 for blacks.
Thus, initially, blacks received preferential treatment over Mexican Americans 
by having a lower hurdle to cross to get into the discretionary zone. In 
March, Professor Johanson lowered the Mexican American TI in order to admit 
more of this group.

7



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

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 mi­
nority candidate with a TI of 189 or above almost certainly would 
be admitted, even though his score was considerably below8 6 * the

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

Ethnicity

All students
White
BlackMexican American 
Other minority

Resident Nonresident
GPA/LSAT GPA/LSAT
3.52/162 3.56/164 
3.30/158 3.24/157 
3.58/160

3.61/164 
3.72/166 
3.30/156 3.38/174* 
3.77/157

♦Only two matriculated applicants.

In 1992, the LSAT's national distribution was approximately as follows
LSAT Percentile
166 94%
164 91%
162 88%
160 83%
158 78%
156 71%

2-Digit LSAT 
43 
41 
40 
39 
38 
36

On the basis of these percentiles, one-half of the law school s white reside 
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 
half of the resident blacks were in the top 22% of test-taxers.

6 To 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 presump-(continued... )

8



level at which a whi-te ca.ndid.ate almost certainly would be re— 
j ected. 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 s and 
10.7% of the class.

In addition to maintaining 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

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

9 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.

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

9



designate his race, he was 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 ap­
plicable 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 final."

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 to the 1992 en­

11 The 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.

10



tering law school class. All four were white residents of Texas 
and were rejected.

The plaintiffs were considered as discretionary zone candi­
dates.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. 
Carve 11, 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 
evaluation of their admissions applications. They sought injunc-

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

13 The defendants are the State of Texas; the University of Texas Board 
of Regents; the members of the board, named but sued in their official capaci­
ties; 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 Admis­
sions Committee, sued in his official capacity.

11



tive 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. UL. at 583.

The district court began by recognizing the proper constitu­
tional standard under which to evaluate the admissions program: 
strict scrutiny. IcL 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 the primary and secondary schools in the

12



system." id.14 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 nar­
rowly 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

14 Because 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.

13



in the discretionary zone, id. at 578-79, and in dictum speculated 
that presumptive denial lines would not pass muster, as 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. IcL 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.

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

14



In other words, if the law school applied the same academic stan­
dards, but had commingled the minority review in the discretionary 
zone with the review of whites, its program would not have been 
struck down. The same admissions result would occur, but the 

process would be "fair. " 1
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. IcL at 582-83. No compensa­
tory 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.

Ill.
The central purpose of the Equal Protection Clause is to 

prevent the States from purposefully discriminating between indi­
viduals on the basis of race." Shaw v. Reno, 113 S. Ct. 2816, 2824 
(1993) (citing Washington v. Davis, 426 U.S. 229, 239 (1976)) . It
seeks ultimately to render the issue of race irrelevant in 
governmental decisionmaking. See Palmore v .— Sidoti, 466 U.S. 429, 
432 (1984) ("A core purpose of the Fourteenth Amendment was to do
away with all governmentally imposed discrimination.")(footnote 

omitted).
Accordingly, discrimination based upon race is highly suspect. 

"Distinctions between citizens solely because of their ancestry are

15



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 

» Hirabavashi v. United States, 320 U.S. 81, 100 (1943).
Hence, "[p]referring 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._of Cal.,— v_i— Bakke,
438 U.S. 265, 307 (1978) (opinion of Powell, J.); see also Loving
v. Virginia. 388 U.S. 1, 11 (1967); Brown v. Board of Eauc., 347
U.S. 483, 493-94 (1954). These equal protection maxims apply to
all races. Adarand Constructors v. Pena, 115 S. Ct. 2097, 2111
(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. at 2113; Loving, 388 U.S. 
at 11. Furthermore, there is now absolutely no doubt that courts 
are to employ strict scrutiny16 when evaluating all racial classifi­
cations, including those characterized by their proponents as 
"benign" or "remedial."17

16 In their initial brief on appeal, the defendants argued that interme­
diate 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.

17 Adarand. 115 S. Ct. at 2112-13 (overruling Metro Broadcasting, Inc.
v, f .C.C.. 497 U.S. 547 (1990), insofar as it applied intermediate scrutiny to 
congressionally mandated "benign" racial classifications); City of Richmond v. 
J.A. Croson Co.. 488 U.S. 469, 495 (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 520(continued...)

16



Strict scrutiny is necessary- 
classification by the government

because the mere labeling of a 
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 m  fact motivated 
bv 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 topi. 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 (plurality opinion).
Under the strict scrutiny analysis, we ask two questions: 

(1) Does the racial classification serve a compelling government 
interest, and (2) is it narrowly tailored to the achievement of 
that goal? Adarand. 115 S. Ct. at 2111, 2117. As the Adarand 
Court emphasized, strict scrutiny ensures that "courts will con­
sistently give racial classifications . . . detailed examination
both as to ends and as to means. " id^.18

Finally, when evaluating the proffered governmental interest

(...continued)(Scalia, J., concurring in judgment); Wygant v. Jackson Bd. Eduĉ , 4 6 • •267 273 (1986) (plurality opinion) ("[T]he level of scrutiny does not chang
merely because the challenged classification operates against a group that 
historically has not been subject to government discrimination. ).

18 While Adarand— the 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 classifica­
tions. "By requiring strict scrutiny of racial classifications, we require courts to make sure that a government classification based on race, which so 
seldom provide[s] a relevant basis for disparate treatment,' Fulliloye [y^ 
Klutznick, 448 U.S. 448, 534 (1980)], (Stevens, J., dissenting), is legiti­
mate, before permitting unequal treatment based on race." 115 S. Ct. at 2113.

17



for the specific racial classification, to decide whether the 
program in question narrowly achieves that interest, we must rec­
ognize that "the rights created by . . . the Fourteenth Amendment 
are, by its terms, guaranteed to the individual. The rights es­
tablished are personal rights." Shelley v. Kraemer. 334 U.S. 1, 22 
(1948).19 Thus, the Court consistently has rejected arguments 
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 consider­
ation of race as a factor in admissions violates the Equal Pro­
tection Clause. The district court found both a compelling reme­
dial 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

See also Adarand. id. at 2111 ("[A]ny person, of whatever race, has 
the right to demand that any government actor subject to the Constitution jus­
tify anY racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.").

20 See, e .q ., Croson, 488 U.S. at 498-500 (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. 
478 U.S. at 275-76 (rejecting argument that governmental discrimination in teacher layoffs is allowed to foster role models within a group).

18



Texas educational system as a whole. Id. at 573.

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 op­
erated 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 ap­
plicants, who comprised the majority of the prospective students, 
applied through the general admissions program. A special admis­
sions program was reserved for members of "minority groups" or 
groups designated as "economically and/or educationally disadvan­
taged." The university set aside sixteen of the one hundred po­
sitions 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 (opinion

19



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 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 consider­
ation 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.*, 
it was joined by no other Justice, it has played a prominent role 
in subsequent debates concerning the impact of Bakke.21 In the

21 See, e.g.. Vincent Blasi, Bakke as Precedent: Does Mr. Justice
Powell Have a Theory?. 67 Ca l. L. R ev. 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(continued...)

20



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. Specifically, after Justice Powell 
recognized that the proper level of review for racial classifica­
tions is strict scrutiny, id. at 305-06, 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.

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 out­
lined 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 tra­
ditionally 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.

ld̂ _ at 305-06 (emphasis added, citation and footnote omitted)
Justice Powell reasoned that the second and third justifica­

tions remedying societal discrimination and providing role mod­
els— were never appropriate.23 He determined that any remedial

(...continued)
■^controlling significance on all questions"); Robert G. Dixon, Jr., Bakke: AConstitutional—Analysis. 67 Cal. L. Rev. 69 (1979) (Justice Powell's 
'tiebreaking opinion . . . has acquired wide pragmatic appeal.").

22 As affirmative action programs are by definition purposeful classifi­
cations 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 
City of Arlington Heights v. Metropolitan Housing Dev. Corn 429 U S 252 (1977); Washington v. Davis. 426 U.S. 229 (1976).

The Supreme Court subsequently has agreed with that position. See
(continued...)

21



justification was limited to eliminating "identified discrimina­
tion" with "disabling effects." Id. at 307 (citing the school 
desegregation cases). He specifically emphasized that a particu­
larized 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.

Justice Powell further reasoned that diversity is a sufficient 
justification for limited racial classification. Id. at 311-16. 
" [The attainment of a diverse student body] clearly is a constitu­
tionally permissible goal for an institution of higher education." 
Id. at 311. 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 viewed 
as a special concern of the First Amendment." Id. at 312.24

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,'

(... . continued)
Wyqant, 476 U.S. at 274-76 (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.

24 See also Sweezy v. New Hampshire. 354 U.S. 234, 263 (1957) (Frank­
furter, J., concurring in result) (recognizing four separate components of "academic freedom").

22



petitioner invokes a countervailing constitutional interest, that
of the First Amendment." Id, at 313.“ The Justice then concluded 
that

[a]n otherwise qualified medical student with a particu­
lar background— whether it be ethnic, geographic, cul­
turally _ advantaged or disadvantaged— may bring to a 

sch°o1 of medicine experiences, outlooks 
h i et-aS that enrich the training of its student body

^  l t S  ?raduates to render with understand­ing their vital service to humanity.

—  at 314 (f°otnote 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 ap­
plicant's file, yet does not insulate the individual from compar­

« «  J  somewhatt'troillingVerBoth in this ton-
case, the law school are state L h n .h I  ln ^ ke and' in °urprotects citizens from the actions nf  S ' The Flrst ^endment generallyizens. tbe actlons of government, not government from its cit-

ney GeneSl^f^e^HaijshiL^^inswer fo^alleSed^ilb^11^  before the Attor- declined on First Amendment around* t-o = alleged subversive activities. He
delivered at the University of iSw Hanroshir^ ^ f ^ T 3 about a lecture he had of a university's interest in nnpnnec ^ ^ J u s t i c e  Frankfurter spoke

23



ison with all the other candidates for the available seats," might
pass muster. IcL at 317. 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 

lcations, which may have included similar nonobjec­
tive factors, did not outweigh those of another appli­
cant. His qualifications would have been weighted fairly 
and competitively, and he would have no basis to com­
plaint of unequal treatment under the Fourteenth Amend­ment .

Id. at 318.

Under this conception of the Fourteenth Amendment, a program 
that considered a host of factors that include race would be con­
stitutional, 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,

24



the plaintiffs assert that the district court misapplied Justice 
Powell's Bakkg 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
fiakke is law and must be followed-at least in the context of 
higher education.

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 lakke 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 ra­
tionale. In Bakke, the word "diversity" is mentioned nowhere 
except in Justice Powell's single-Justice opinion. m  fact, the 
four-Justice opinion, which would have upheld the special admis­
sions program under intermediate scrutiny, implicitly rejected 
Justice Powell's position. 438 U.S. at 326 n.l (Brennan,

25



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 o f  race to achieve

— student— body__is— necessrt£ted_by_phe_3Jrigerinq__effects__of 
past discrimination ") (emphasis added). Justice Stevens declined 
to discuss the constitutional issue. See id, at 412 (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 student body. As 
the Adarand Court states, the Bakke Court did not express a ma­
jority view and is questionable as binding precedent. 115 s. Ct. 
at 2109 ("The Court's failure in Bakke . . . left unresolved the 
proper analysis for remedial race-based government action.").

Since gakke, the Court has accepted the diversity rationale 
only once in its cases dealing with race. Significantly, however, 
in that case, Metro Broadcasting, m e  v. Federal ro, „ i f i H „n. 
C o m m l n , 4 9 7  u . s .  5 4 7 ,  5 6 4 - 6 5  ( 1 9 9 0 ) ,  the five-justice majority
relied upon an intermediate scrutiny standard of review to uphold 
the federal program seeking diversity in the ownership of broad­
casting facilities. In Adarand. 1 1 5  s. ct. at 2 1 1 2 - 1 3 ,  the Court 
squarely rejected intermediate scrutiny as the standard of review 
for racial classifications, and Metro Broadcasting is now specifi_ 
cally overruled to the extent that it was in conflict with this 
holding. Id, at 2 1 1 3 .  No case since Bakke has accepted diversity 
as a compelling state interest under a strict scrutiny analysis.

26



Indeed, recent Supreme Court precedent shows that the diver­
sity 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: rem­
edying past wrongs. In Croson, 48e D .8 . at 493 ( p W l t y  opin.

ion,, the court flatly stated that U n l e s s  Tracial classifica­
tions] are strictly reserved for remedial settings, they may in
fact promote notions of racial inferiority and lead to a politics 
o f  racial hostility." (emphasis added).26

Justice O'Connor, in her Adarand-vindicated dissent in Metro 
joined by Justices Rehnqu.st_ scai.a _ ^  ^  

explained this position:

lin ^ s t^ T e 3]1 in te r e s t ° n remedv009” ^  ° nlY one Ic°">Pel-
discrimination a e inteles?yin9in he e“ eCts of
of broadcast viewpoints is clearTv^ot9 the diversity interest. It is simnlv iearly not a compellinq
and too unrelated t o  any legi?Sa?eS b a ° °  i.nsubstantial, racial classifications/ gitlmate basis for employing

4S7 U.S. at 6 1 2 (O'Connor, J., dissenting). Indeed, the maj

“  otherwise and decided only

(thh Cir~) ("The who/3 poTntC°o/ C r o s / ”  *■' Fjp1dpr> 922 F.2d 419, 422other grounds favorinq minnrit-ia7 rTT S disadvantage, diverts

27



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, 115 S. Ct. at 2119 (Thomas, J. , concurring 
in part and concurring in judgment) .27

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 justifica­
tion 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

£ 5  i6

judgmentK U 'S ' ^  286 (0'Connor' J -- concurring in part^d^SoncSSi^in* the

ment ifpurtly^ScriptiJnSfdjd persuasive‘ J^ i c e  O'Connor's state- approval of diversity as a comoel]-in<-r •p“rporp to exPress her approval or dis­
ciplined above i^ Croson o f f " ’ Her subse^ ent statements“P°h this strongly that reliance

28



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.q.. Croson, 488 U.S. at 
496 (plurality opinion); Bakke. 438 U.S. at 307 (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 factors— some of which 
may have some correlation with race— in making admissions deci­
sions. 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 be­
cause 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 

^tantial 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

29



28college or the applicant's economic and social background.
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.” Unfortunately, 
this approach simply replicates the very harm that the Fourteenth

Amendment was designed to eliminate.
The assumption is that a certain individual possesses char­

acteristics 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, character­
istics, exemplifies, encourages, and legitimizes the mode of 
thought and behavior that underlies most prejudice and bigotry in 
modern America." Richard A. Posner, The DeFunis rase and the 
m . v i t „ r i m » l i t v  of preferential Treatment of Racial Minorities,

1974 Su p. Ct . Re v. 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 minor­
ities 'a different attitude about such issues as the federal bud-

28 The law school's admissions program makes no d±st±™ ^ ° n h1^
and Mexican American applicants in an effort ^ v a n t a g e dexample, may have been culturally or educationally disadvantaged.

"  For example. Justice Powell apparently felt that P“ *“ £!E2.r» Jsresx-os-SS: z i *
30



Michael S.get, school prayer, voting, and foreign relations.'"
Paulsen, Reverse Discrimination and Law School Faculty Hiring:-- The
Undiscovered Opinion. 71 Te x. L. Re v . 993, 1000 (1993) (quoting 
Roberts v. United States Javcees, 468 U.S. 609, 627-28 (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 
act or think." Metro Broadcasting, 497 U.S. at 602 (O'Connor, J., 
dissenting) .30

Instead, individuals, with their own conceptions of life, 
further diversity of viewpoint. Plaintiff Hopwood is a fair ex­
ample 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 per­
spective 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 Hop-

30 Thus, 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 classifica­
tions, efficiency is rejected as a basis for governmental action 
in this context.

Posner, supra, at 22.
31



wood'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 
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 of 
Educ., 347 U.S. 483, 494 (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 harmful as that arising 
from invidious ones,32 the current Court has now retreated from the

31 We recognize that the use of some factors such as economic or educa­
tional 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 McCleskev v. Kemp. 481 U.S. 279 (1987). As Justice O'Connor indicated in
Hernandez v. New York. 500 U.S. 352 (1991), which was a challenge under Batson 
v. Kentucky. 476 U.S. 79 (1986), based upon the prosecution's strike of poten­
tial 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 (O'Connor, J., joined by Scalia, J., concurring in the judg­
ment) .

32 According to one of the four-Justice opinions in Bakke. racial clas­
sifications 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 (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 (Brennan, White, Marshall, and Blackmun, JJ., concur­
ring in the judgment in part and dissenting in part).

32



idea that so-called benign and invidious classifications may be 
distinguished.33 As the plurality in Croson warned, 
" [c]lassifications based on race carry the danger of stigmatic 
harm. Unless they are reserved for remedial settings, they may in 
fact promote notions of racial inferiority and lead to the politics 
of racial hostility." 488 U.S. at 493.34

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

As 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 va­
garies of empirical conjecture and thereby free the judge to enact his personal values into constitutional doctrine.

Posner, supra, at 25-26.
34 See also Adarand. 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 of Passage: Race, the Supreme Court, and the Con­stitution. 46 U. C hi. L. R ev. 775, 787 n.38 (1979).

33



"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. 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 
(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 Wyqant. 476 U.S. at 320 (Stevens, J.,
dissenting) ) .35

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

As 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 govern- 
ment— 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 funda­
mental law and we shall have a Constitution universally worth ex­pounding .

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

Because we have determined that any consideration of race by the law
(continued...)

34



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

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 educa­

(...continued)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 simi­
lar 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 ("For purposes of constitutional adjudication, there is no differ­
ence between [setting aside a certain number of places for minorities and us­
ing 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 meet­
ing its yearly "goals." See Hopwood, 861 F. Supp. at 574 n.67.

37 Plaintiffs 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.

35



tion 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 (quoting Wvaant. 476 U.S. at 277 (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 I"), 38 21 F.3d 603, 
605 (5th Cir. 1994) (per curiam) (quoting Podbereskv v. Kirwan, 956 
F .2d 52, 57 (4th Cir. 1992), cert, denied, 115 S. Ct. 2001 (1995)); 
see also Wvaant, 476 U.S. at 280 (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

36 Hopwood I is the first appeal of the intervention issue that we ad­
dress infra.

39 Unfortunately, the precise scope of allowable state action is of 
somewhat undefined contours. Indeed, it is not evident whether permitted re­
medial 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, 
appears intended to present little resistance to wide-ranging affirmative ac­
tion plans.

While Justice Brennan began by stating that schools have a duty affirma­
tively to erase the vestiges of their past discriminatory practices, he com­
pared 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 discrim­
inated against; a showing that they were in the general class was sufficient. 
Id. at 363-64. Nor would a school need judicial findings of past discrimina­
tion. Id. at 364. 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.(continued...)

36



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 scru­
tiny 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. 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

( . . . continued)
at 365-66. Hence, under this standard, almost any school could adopt an af­
firmative action plan.

There is no question, however, that subsequent Supreme Court opinions, 
notably Wvcrant 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 mem­
bers of the Court would limit any remedial purpose to the actual victims of
discrimination. See Adarand, 115 S. Ct. at 2116 (Scalia, J., concurring in
part and concurring in judgment) (" [G] ovemment 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
Podbereskv v. Kirwan. 38 F.3d 147, 153 (4th Cir. 1994), cert, denied. 115
S. Ct. 2001 (1995). We will, however, limit its application in accordance 
with Wygant and Croson.

37



discrimination." Wycrant. 476 U.S. at 274 (plurality opinion of 
Powell, J.) (citing Hazelwood School Dist. v. United States. 433 
U.S. 299 (1977)).40 In Wvaant. 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 (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 strong evidence that remedial action is warranted." 
Id• at 277. Accord id. at 289 (O'Connor, 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.

^ee Wygant. 476 U.S. at 286 (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.").

4 1 See also id. at 288 (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.").

38



The Croson Court further discussed how to identify the rele­
vant 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 necessary to remedy the 
present effects of past discrimination in the construction 
industry, the Court held:

Like the "role model" theory employed in Wyqant. a gen­
eralized assertion that there had been past discrimina­
tion 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.' Wyqant. 476 U.S. at 275 (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 4 98.42 The Court refused to accept indicia of past 
discrimination in anything but "the Richmond construction indus­
try. " Id. at 505.

In addition, in a passage of particular significance to the 
instant case, the Court analogized the employment contractor sit­
uation to that of higher education and noted that " [1]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 quota." id. at 
499. Such claims were based upon "sheer speculation" about how

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

39



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
(plurality opinion).

The district court's holding employs no viable limiting prin­
ciple. 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:

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

488 U.S. at 505. The defendants' argument here is equally expan­
sive .43

43 The fact that the plaintiffs named the State of Texas as one defen­
dant 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 jus­
tification 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

(continued...)
40



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. 115 S. Ct. 2038, 2048 (1995) ; Milliken v. 
Bradley. 418 U.S. 717, 745 (1974) (" [W] ithout an interdistrict
violation and interdistrict effect, there is no constitutional 
wrong calling for an interdistrict remedy."). Thus, one justifica­
tion 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 im­
probable 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.

(...continued)
the state has created. The Supreme Court, however, has limited the remedial 
interest to the harm wrought by a specific governmental unit.

41



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 "so­
cietal," 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 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

42



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

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.

44 And 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 manage­
ment of higher education has been divided by the legislature into different 
"systems." See 12 T ex. J ur. 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. T ex. E duc. C ode A n n. §§ 67.01 to 67.62 
(West 1991) . Accordingly, the legislature, 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." Wygant, 476 U.S. at 274 (plural­ity opinion).

43



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 suffi­
cient to justify the program, the party seeking to im­
plement the program must, at a minimum, prove that the 
effect it proffers is caused by the past discrimination 
and that the effect is of sufficient magnitude to justify 
the program.

Podbereskv v. Kirwan. 38 F.3d 147, 153 (4th Cir. 1994), cert. 
denied, 115 S. Ct. 2001 (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 present­
ed at trial indicates those effects include the law school's lin­
gering 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." Podbereskv. 38 F.3d at 154.

As a legal matter, the district court erred in concluding that

2 .

44



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 Podbereskv, 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 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 Podbp.rp.sky 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 classifica­
tions. 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 oppres­
sion of its past." Maryland Troopers Ass'n v. Evans. 993 F.2d

45



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 Podbereskv. 
as there is no dispute that the law school has never had an 
admissions policy that excluded Mexican Americans on the basis of 
race.

The Podbereskv 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 de 
jure discrimination in denying admission to blacks, the Court in 
Sweatt v. Painter. 339 U.S. 629 (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.

46



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 m

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 discrimination, rather than the result of 
societal discrimination, they could not constitute compelling state 
interests justifying the use of racial classifications in admis­
sions. A bad reputation within the minority community is alleviat­
ed 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

45— The 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.

47



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.

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

46 The argument is that because the state discriminated in its primary 
and secondary school systems, the students' educational attainment was ad­
versely affected, and this harm extended to their higher education, thus jus­
tifying 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 specula­
tive. The district court simply assumed that "[t]his segregation has handi­
capped 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.

48



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. The 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 govern­
mental 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 re­
quirements of strict scrutiny.47

47 To 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 con­
text. Miller v. Johnson. 115 S. Ct. 2475, 2491 (1995) ("As we suggested in

(continued...)
49



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 justifi­
cation for the use of race and, at the same time, attempted to 
distinguish Croson using United States v. Fordice. 505 U.S. 717 
(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.

( . . .continued)
Shaw [y_.— Renp, 113 S. Ct. 2816, 2830-31 (1993)], compliance with federal 
antidiscrimination laws cannot justify race-based districting where the chal­
lenged district was not reasonably necessary under a constitutional reading and application of those laws.") (emphasis added).

50



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 731-32.48 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 discrimi­
nation that it did not cause.49

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 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

48 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 oth­
er 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 dis­
mantled its prior system.

505 U.S. at 731.
49 In 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 (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 add­
ed) . 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.

50 The plaintiffs argue that indeed there is no narrow tailoring, for at
(continued...)

51



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' ad­
mission (or award any compensatory damages) , as it found that they

(...continued)
least the following reasons: (1) In 1992, more than two-thirds of all admis­
sion 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 gradu­
ate 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 irrefut­
able .

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 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.

52



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 5 79-82.51 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 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 (1978) . Several Supreme Court 
cases, however, allow for a transfer of burden upon proof of 
discrimination. See M t . Healthy City Sch., Dist. B d . of Educ. v. 
Doyle, 429 U.S. 274, 284 (1977) ; City of Arlington Heights v. 
Metropolitan Housing Dev. Corp. . 429 U.S . 252, 265-66 (1977) .53

In M t . Healthy, a discharged school teacher sued for rein­
statement, claiming his termination was a result of comments he had 
made on a radio show, a violation of his First and Fourteenth

51 This finding also affected the court's analysis in denying prospec­
tive relief and compensatory damages.

52 The district court applied a burden-shifting scheme similar to the
methodology used in the title VII context. 861 F. Supp. at 579-80 (citing St. 
Mary's Honor Ctr. v. Hicks. 509 U.S. 502 (1993)). The law school concedes
that the burden-shifting exercise was unnecessary, but it maintains nonethe­
less that the "ultimate burden of proof," including proof of damages, rests upon the plaintiffs. See id.

53 Some 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 (opinion of Powell, J.).

53



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 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. 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. 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 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

Compare Henson v. University of 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. of 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 Bakke and 
M L — Healthy reasoning in toto for firefighter's reverse discrimination claims) 
SSd United States v. McDonald. 553 F. Supp. 1003, 1006 (S.D. Tex. 1983) (dic­tum) (same for discriminatory criminal prosecution).

54



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, 115 S. Ct. at 2105 
("The injury in cases of this kind is that a 'discriminatory 
classification prevent [s] 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 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 ad­
missions 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 plaintiff's non-admission— if that occurs on re­

55 The 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 plain­
tiffs failed to show injury-in-fact because they failed to prove that they would have been admitted under a constitutional admissions system, this con­
clusion should be revisited on remand, where the district court must apply the proper burden and redetermine whether plaintiffs would have been admitted.

55



mand— opens a panoply of potential relief, depending in part upon 
what course that plaintiff's 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 damages56 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

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 Countv Pub. Sch.. 503 U.S. 60 
(1992); Guardians Ass'n v. Civil Serv. Comm'n. 463 U.S. 582

We do not opine on any Eleventh Amendment immunity in this case.
See, e .g ,, United Carolina Bank v. Board of 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.

57 For 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 testi­
fied, between tuition at the law school and tuition at Southern Methodist 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 admis­
sion 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.

56



(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 constitu­

tional violation, and further violations were likely to result, the 
district court erred in denying them prospective injunctive relief. 
We review denials of this sort of relief for an abuse of discre­
tion. See . e . g . , Peaches Entertainment Corp. v.__Entertainment
Repertoire, 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 Fe d. R. Civ. 
P. 65, keeping in mind, however, the questions of mootness, 
ripeness, and standing. See generally 11A Charles A. Wright et a l . , 
Federal Practice and Procedure § 2942 (2d ed. 1995) . That treatise 
notes that

[p]erhaps 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

57



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 defen­
dant 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.

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.q.. 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.q.. 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 subcom­
mittee— 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 constitu­
tional 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 deci­

58



sions. 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 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.

59



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 indiffer­
ence" to their constitutional rights. They ask for a remand on 
this issue.

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

60



intervene prior to trial either as of right or by permission. The 
district court denied•intervention, and we affirmed. See Ho.p_wp.od 
v, Texas. 21 F.3d 603 (5th Cir. 1994) (per curiam) ("Hopwpp d .I.") .

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.

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

61



under title VI, as the associations argued that possibility as one 

basis for intervention.
After their first motion to intervene was denied, the asso­

ciations 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 introduction of evidence on 
these "new defenses," and the district court agreed. The associa­
tions 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.

62



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 Mine Workers. 473 F.2d 118, 125-26 (D.C. 
Cir. 1972); United States Envt'l Protection Agency v . City of Green 
Forest. 921 F.2d 1394, 1401 (8th Cir. 1990), cert, denied, 502 U.S. 
956 (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

58 There is circuit law regarding successive motions, but the pertinent 
opinions do not examine the standard of review explicitly. See, e .q .,
Kneeland v. National Collegiate Athletic Ass'n. 806 F.2d 1285 (5th Cir.) (im­
plicit application of de novo review without discussion of standard), cert. 
denied. 484 U.S. 817 (1987); United States v. Louisiana. 669 F.2d 314, 315
(5th Cir. 1982) (application of abuse of discretion review for timeliness de­
termination on second motion where proposed intervenor failed to argue for first motion after remand) ; Calvert Fire Ins. Co. v. Environs Dev. Corp. , 6 01 
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).

59 The 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' inter­
ests. 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 of Cincinnati, 904(continued...)

63



in de 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 Fe d. 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 Hoowood I panel 
addressed the intervention as a matter of right de novo, on the 
merits, including the potential that the law school would not raise

( . ..continued)
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 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 in­
adequate. See id. ("Proffering this alleged violation of the consent decree 
as an affirmative defense is directly counter to the City's interest.") (em­
phasis added). Here, we have already found that the law school's.and the as­
sociations' interests are the same. Jansen therefore does not support inter­vention .

64



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 "evap­
orates." 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 inter­
vention 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

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 . a . .

At 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 W right e t a l., 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 W right et al . , supra) . In fact, the Hopwood I panel affirmed 
rather than dismissing for want of jurisdiction. Under the suggested rule, 
because we would have a final order on the merits from a previous panel on 
this issue, this case would probably be at an end. Nonetheless, as the 
anomalous rule constitutes our circuit caselaw, we are bound to follow it.

65



Fe d. 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, "[t]his 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 Wright 
et a l ., supra. § 4436, at 338.61 Thus, a party is precluded from 
successively appealing the same intervention motion.

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

61 A dismissal for want of jurisdiction, however, leaves open the possi­
bility that the deficiency can be cured. If that occurs, no issue preclusion 
exists. See 7C W right et al., 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 jurisdiction­
al deficiency. Thus, if the circumstances of the case change to such an ex­
tent 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.

66



jurisdiction.£2

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 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.

• VI.

62 in 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 TI. We neither express nor imply an 
opinion on the viability of such a challenge.

67



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

68



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 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

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

2 See Hopwood v. State of Tex.. 861 F.Supp. 551, 570 (W.D. Tex. 1994).

3 I 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.

4 Panel Opn. at 43 & n.44.



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.

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 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

5 U.S. Const., amend. 14, § 1.

6 Adarand Constructors Inc, v. Pena. 115 S .Ct. 2097, 2115 (1995) (emphasis
added).

7 Id.

2



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.

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

8 See id. 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, 115 S.Ct. 2474, 2490 
(1995)("To satisfy strict scrutiny, the State must demonstrate that its districting legislation is narrowly tailored to achieve a compelling governmental 
interest. " ) .

9 See 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).

10 Adarand. 115 S.Ct. at 2115.

3



c. S t r i c t S c r u t i n y

The law school contends that it employs a racially stratified 
admissions process to obtain, infer 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 
the University of 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

11 438 U.S. 265 (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, and, in the unique context of institutions of higher learning, he concludes that diversity is a compelling 
interest. Id. at 312.

12 Panel Opn. at 25 (emphasis added).

4



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 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 inquiry

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

Adarand. 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 . ") .

14 See, e.g. Rust v. Sullivan. 500 U.S. 173, 224 (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 of Fort Berthold Reservation v. Wold 
Engineering, P.C.. 467 U.S. 138, 157 (1984)).

5



past discrimination is the only compelling interest that can ever 
justify racial 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

Between the difficulty inherent in applying Bakke18 and the

Panel Opn. at 26-29.

The 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 of Richmond v. J.A. Croson Co.. 488 U.S. 469, 493 (1989) (plurality opinion) (emphasis added)) .

17 Panel Opn. at 28 n.27, (quoting Wyqant v. Jackson Bd. of Educ.. 476 U.S. 267, 286 (1986) (O'Connor, J. concurring in part and concurring in the judgment) .
("[A]lthough 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.").

18 I 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.

6



minimal guidance in Adarand.19 the 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

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.

19 Recently, in Adarand the Supreme Court stated that it had "altered the 
[equal protection] playing field in some important respects." 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. at 2117 (quoting 
Fullilove, 448 U.S. 448, 519 (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.

7



and less 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 narrowly tailored 
inquiry.

F. 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

Id. ("[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.").

21 Although 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 re-districting 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. 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 Wyqant v. Jackson Bd. of Educ.. 476 U.S. 267, 286 (1986) ("[A]lthough 
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 furtherinq that interest.")).

United States v. Paradise. 480 U.S. 149, 171 (1987).

8



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

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

23 Bakke. 438 U.S. at 316. 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 black applicants, was not necessary to attain 
diversity. Id.

24 In 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.

9



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 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

25 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.

10



holding.

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 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

II

Panel Opn. at 59-60.

11



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 "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

The district court denied the plaintiffs injunctive relief, 
but only after assigning the burden of proof to the wrong party.28

No member of this panel questions that, in the initial stanza of 
the burden-shifting minuet of Mt. Healthy Sch. Dist. Bd. of Educ. 
v. Dovle,29 the plaintiffs met their 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 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

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. Luhbnck Ind. Sch. Dist.. 669 F.2d 
1038, 1048 (5th Cir. 1982), cert, denied. 459 U.S. 1155 (1983).

28 Panel Opn. at 55 ("We conclude that the Mt. 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.

29 429 U.S. 274, 284 (1977).

12



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 process

13



articulated in Mt. Healthy, then see how the law school 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.

14