Hopwood v. State of Tex. ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 94-50569
_______________
CHERYL J. HOPWOOD, et al.,
Plaintiffs-Appellees,
VERSUS
STATE OF TEXAS, et al.,
Defendants-Appellees,
VERSUS
THURGOOD MARSHALL LEGAL SOCIETY
and
BLACK PRE-LAW ASSOCIATION,
Movants-Appellants.
******************************************************************
DOUGLAS CARVELL, ET AL.,
Plaintiffs-Appellees,
VERSUS
STATE OF TEXAS, ET AL.,
Defendants-Appellees,
VERSUS
THURGOOD MARSHALL LEGAL SOCIETY,
AND BLACK PRE-LAW ASSOCIATION,
Movants-Appellants.
_______________
No. 94-50664
_______________
CHERYL J. HOPWOOD, et al.,
Plaintiffs,
CHERYL J. HOPWOOD, et al.,
Plaintiffs-Appellants,
VERSUS
STATE OF TEXAS, et al.,
Defendants-Appellees.
**********************************************
DOUGLAS CARVELL, ET AL.,
Plaintiffs,
DOUGLAS CARVELL,
Plaintiff-Appellant,
VERSUS
STATE OF TEXAS, ET AL.,
Defendants-Appellees.
_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
March 18, 1996
Before SMITH, WIENER, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
With the best of intentions, in order to increase the 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
2
system are blacks and Mexican Americans, to the detriment of
whites and non-preferred minorities. The question we decide to-
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 Co., 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
jurisdiction.
3
I.
A.
The University of Texas School of Law is one of the nation's
leading law schools, consistently ranking in the top twenty.
See, e.g., America's Best Graduate Schools, U.S. NEWS & WORLD REPORT
Mar. 20, 1995, at 84 (national survey ranking of seventeenth).
Accordingly, admission to the law school is fiercely competitive,
with over 4,000 applicants a year competing to be among the 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.
1
The formulae were written by the Law School Data Assembly Service
according to a prediction derived from the success of first-year students in
preceding years. As the LSAT was determined to be a better predictor of
success in law school, the formulae for the class entering in 1992 accorded an
approximate 60% weight to LSAT scores and 40% to GPA.
The formula for students with a three-digit LSAT, see infra note 5, was
calculated as: LSAT + (10)(GPA) = TI. For students with a two-digit LSAT,
the formula was: (1.25)LSAT + (10)GPA = TI.
4
Of course, the law school did not rely upon numbers alone.
The admissions office necessarily exercised judgment in inter-
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 1992SSthe
admissions group at issue in this caseSSthe law school placed the
typical applicant in one of three categories according to his TI
scores: "presumptive admit," "presumptive deny," or a middle
"discretionary zone." An applicant's TI category determined how
extensive a review his application would receive.
Most, but not all, applicants in the presumptive admit
category received offers of admission with little review.
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
Professor Stanley Johanson, the Chairman of the Admissions
Committee, or Dean Laquita Hamilton, the Assistant Dean for
Admissions, reviewed these files and downgraded only five to ten
percent to the discretionary zone because of weaknesses in their
applications, generally a non-competitive major or a weak under-
graduate 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
votesSStypically from nine to eleven3SSamong 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-
3
The number of votes would change over the course of the admissions
season in order to achieve the appropriate number of offers.
6
preferred minorities,4 the TI ranges that were used to place them
into the three admissions categories were lowered to allow the law
school to consider and admit more of them. In March 1992, for
example, the presumptive TI admission score for resident whites and
non-preferred minorities was 199.5 Mexican Americans and blacks
needed a TI of only 189 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
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 "non-
minorities." While the law school application form segregated racial and
ethnic classification into seven categoriesSS"Black/African American," "Native
American," "Asian American," "Mexican American," "Other Hispanic" (meaning
non-Mexican descent), "White," and "Other (describe)"SSonly 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
with the pool of applicants, the results demonstrate that the
difference in the two ranges was dramatic. According to the law
school, 1992 resident white applicants had a mean GPA of 3.53 and
an LSAT of 164. Mexican Americans scored 3.27 and 158; blacks
scored 3.25 and 157. The category of "other minority" achieved a
3.56 and 160.7
These disparate standards greatly affected a candidate's
chance of admission. For example, by March 1992, because the
presumptive denial score for whites was a TI of 192 or lower, and
the presumptive admit TI for minorities was 189 or higher, a
minority candidate with a TI of 189 or above almost certainly would
7
The median scores of the 1992 class are as follows:
Ethnicity Resident Nonresident
GPA/LSAT GPA/LSAT
All students 3.52/162 3.61/164
White 3.56/164 3.72/166
Black 3.30/158 3.30/156
Mexican American 3.24/157 3.38/174*
Other minority 3.58/160 3.77/157
*Only two matriculated applicants.
In 1992, the LSAT's national distribution was approximately as follows:
LSAT Percentile 2-Digit LSAT
166 94% 43
164 91% 41
162 88% 40
160 83% 39
158 78% 38
156 71% 36
On the basis of these percentiles, one-half of the law school's white resident
matriculants were in the top 9% of all test-takers, one-half of the resident
Mexican Americans were in approximately the top 25% of test-takers, and one-
half of the resident blacks were in the top 22% of test-takers.
8
be admitted, even though his score was considerably below8 the
level at which a white candidate almost certainly would be
rejected. Out of the pool of resident applicants who fell within
this range (189-192 inclusive), 100% of blacks and 90% of Mexican
Americans, but only 6% of whites, were offered admission.9
The stated purpose of this lowering of standards was to meet
an "aspiration" of admitting a class consisting of 10% Mexican
Americans and 5% blacks, proportions roughly comparable to the
percentages of those races graduating from Texas colleges. The law
school found meeting these "goals" difficult, however, because of
uncertain acceptance rates and the variable quality of the
applicant pool.10 In 1992, for example, the entering class
contained 41 blacks and 55 Mexican Americans, respectively 8% and
10.7% of the class.
In addition to maintaining separate presumptive TI levels for
minorities and whites, the law school ran a segregated application
8
To illustrate this difference, we consider the four plaintiffs in this
caseSSCheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David Rogers. For
a student similarly situated to Hopwood, with a GPA of 3.8, to avoid presump-
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%). Fi-
nally, 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
evaluation process. Upon receiving an application form, the school
color-coded it according to race. If a candidate failed to
designate his race, he was presumed to be in a nonpreferential
category. Thus, race was always an overt part of the review of any
applicant's file.
The law school reviewed minority candidates within the
applicable discretionary range differently from whites. Instead of
being evaluated and compared by one of the various discretionary
zone subcommittees, black and Mexican American applicants' files
were reviewed by a minority subcommittee of three, which would meet
and discuss every minority candidate. Thus, each of these
candidates' files could get extensive review and discussion. And
while the minority subcommittee reported summaries of files to the
admissions committee as a whole, the minority subcommittee's
decisions were "virtually 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.
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
Cheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David
Rogers (the "plaintiffs") applied for admission to the 1992
entering 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.
Carvell, Elliott, and Rogers had TI's of 197, at the top end of
that discretionary zone. Their applications were reviewed by
admissions subcommittees, and each received one or no vote.
II.
The plaintiffs sued primarily under the Equal Protection
Clause of the Fourteenth Amendment; they also claimed derivative
statutory violations of 42 U.S.C. §§ 1981 and 1983 and of title VI
of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("title VI").13
The plaintiffs' central claim is that they were subjected to
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
unconstitutional racial discrimination by the law school's
evaluation of their admissions applications. They sought injunc-
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. Id. at 583.
The district court began by recognizing the proper constitu-
tional standard under which to evaluate the admissions program:
strict scrutiny. Id. at 568. As it was undisputed that the school
had treated applicants disparately based upon the color of their
skin, the court asked whether the law school process (1) served a
compelling government interest and (2) was narrowly tailored to the
achievement of that goal. Under the first prong of the test, the
court held that two of the law school's five proffered reasons met
constitutional muster: (1) "obtaining the educational benefits
that flow from a racially and ethnically diverse student body" and
(2) "the objective of overcoming past effects of discrimination."
Id. at 571.
Significantly, on the second justification, the court rejected
the plaintiffs' argument that the analysis of past discrimination
should be limited to that of the law school; instead, the court
12
held that the State of Texas's "institutions of higher education
are inextricably linked to the primary and secondary schools in the
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
narrowly tailored to further these goals. Id. at 573. Applying a
four-factor test devised by the Supreme Court, the court held only
part of the 1992 admissions scheme unconstitutional. Those parts
that gave minorities a "plus," that is, the component of the
admissions program that treated candidates' TI scores differently
based upon race, was upheld. Id. at 578.
The court held, however, that differential treatment was not
allowed where candidates of different races were not compared at
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
some point in the admission process. Thus, the court struck down
the school's use of separate admissions committees for applications
in the discretionary zone, id. at 578-79, and in dictum speculated
that presumptive denial lines would not pass muster, as many white
candidates would get no review, while similarly situated minorities
would, id. at 576 n.71.
Though it declared that the law school's 1992 admissions
program violated the plaintiffs' equal protection rights, the court
granted little relief. First, the court did not order that the
plaintiffs be admitted to the law school. Instead, it used what it
saw as analogous title VII caselaw on burden-shifting to hold that
while the state had committed a constitutional violation, the
plaintiffs had the ultimate burden of proving damages. Id. at 579-
80. The court then found that the defendants had proffered a
legitimate, non-discriminatory reason for denying the plaintiffs
admission and that the plaintiffs had not met their burden of
showing that they would have been admitted but for the unlawful
system. Id. at 582.
Moreover, the court held that the plaintiffs were not entitled
to prospective injunctive relief, because "of the law school's
voluntary change to a procedure, which on paper and from the
testimony, appears to remedy the defects the Court has found in the
1992 procedure." Id.15 To pass muster under the court's reasoning,
15
Shortly before trial, apparently in response to the filing of this
lawsuit, the law school modified its 1992 admissions practices to fit the
district court's view of the proper constitutional system. See id. at 582
n.87.
14
the law school simply had to have one committee that at one time
during the process reviewed all applications and did not establish
separate TI numbers to define the presumptive denial categories.
In other words, if the law school applied the same academic
standards, but had commingled the minority review in the discre-
tionary 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." Id.
Finally, the court determined that the only appropriate relief
was a declaratory judgment and an order allowing the plaintiffs to
reapply to the school without charge. Id. at 582-83. No 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.
III.
The central purpose of the Equal Protection Clause "is to
prevent the States from purposefully discriminating between
individuals on the basis of race." Shaw v. Reno, 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
15
omitted).
Accordingly, discrimination based upon race is highly suspect.
"Distinctions between citizens solely because of their ancestry are
by their very nature odious to a free people whose institutions are
founded upon the doctrine of equality," and "racial discriminations
are in most circumstances irrelevant and therefore prohibited
. . . ." Hirabayashi 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. 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 Educ., 347
U.S. 483, 493-94 (1954). These equal protection maxims apply to
all races. Adarand Constructors v. Peña, 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
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.
16
"benign" or "remedial."17
Strict scrutiny is necessary because the mere labeling of a
classification by the government as "benign" or "remedial" is
meaningless. As Justice O'Connor indicated in Croson:
Absent searching judicial inquiry into the justifications
for such race-based measures, there is simply no way of
determining what classifications are "benign" or
"remedial" and what classifications are in fact motivated
by illegitimate notions of racial inferiority or simple
racial politics. Indeed, the purpose of strict scrutiny
is to "smoke out" illegitimate uses of race by assuring
that the legislative body is pursuing a goal important
enough to warrant use of a highly suspect tool. The test
also ensures that the means chosen "fit" this compelling
goal so closely that there is little or no possibility
that the motive for the classification was illegitimate
racial prejudice or stereotype.
Id. at 493 (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
consistently give racial classifications . . . detailed examination
both as to ends and as to means." Id.18
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
(Scalia, J., concurring in judgment); Wygant v. Jackson Bd. of Educ., 476 U.S.
267, 273 (1986) (plurality opinion) ("[T]he level of scrutiny does not change
merely because the challenged classification operates against a group that
historically has not been subject to government discrimination.").
18
While Adarand))the Supreme Court's most recent opinion on racial pref-
erences))does not directly address the application of the strict scrutiny
(continued...)
17
Finally, when evaluating the proffered governmental interest
for the specific racial classification, to decide whether the
program in question narrowly achieves that interest, we must
recognize that "the rights created by . . . the Fourteenth
Amendment are, by its terms, guaranteed to the individual. The
rights established are personal rights." Shelley v. Kraemer, 334
U.S. 1, 22 (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
Protection Clause. The district court found both a compelling
remedial and a non-remedial justification for the practice.
First, the court approved of the non-remedial goal of having
a diverse student body, reasoning that "obtaining the educational
benefits that flow from a racially and ethnically diverse student
(...continued)
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,' Fullilove [v.
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.
19
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
justify any racial classification subjecting that person to unequal treatment
under the strictest judicial scrutiny.").
20
See, e.g., Croson, 488 U.S. at 498-500 (holding that past societal
discrimination against a group confers no basis for local governments to pro-
vide 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
body remains a sufficiently compelling interest to support the use
of racial classifications." 861 F. Supp. at 571. Second, the
court determined that the use of racial classifications could be
justified as a remedy for the "present effects at the law school of
past discrimination in both the University of Texas system and the
Texas educational system as a whole." Id. at 573.
A.
1.
Justice Powell's separate opinion in Bakke provided the
original impetus for recognizing diversity as a compelling state
interest in higher education. In that case, Allan Bakke, a white
male, was denied admission to the Medical School of the University
of California at Davis, a state-run institution. Claiming that the
State had discriminated against him impermissibly because it
operated two separate admissions programs for the medical school,
he brought suit under the state constitution, title VI, and the
Equal Protection Clause.
Under the medical school's admissions system, the white
applicants, who comprised the majority of the prospective students,
applied through the general admissions program. A special
admissions program was reserved for members of "minority groups" or
groups designated as "economically and/or educationally disadvan-
taged." The university set aside sixteen of the one hundred
positions in the entering class for candidates from the special
program.
19
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
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 opinionsSSone 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
joinedSSreflected 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.*,
20
it was joined by no other Justice, it has played a prominent role
in subsequent debates concerning the impact of Bakke.21 In the
present case, the significance of Justice Powell's opinion is its
discussion of compelling state interests under the Equal Protection
Clause. See id. at 305-15. Specifically, after Justice Powell
recognized that the proper level of review for racial
classifications 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 classifica-
tion," 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 outlined the four state interests proffered by the
Bakke defendants:
The special admissions program purports to serve the
purposes of: (i) "reducing the historic deficit of
traditionally disfavored minorities in medical schools
and in the medical profession,"; (ii) countering the
effects of societal discrimination; (iii) increasing the
number of physicians who will practice in communities
currently underserved; and (iv) obtaining the educational
benefits that flow from an ethnically diverse student
body.
21
See, e.g., Vincent Blasi, Bakke as Precedent: Does Mr. Justice
Powell Have a Theory?, 67 CAL. L. REV. 21, 24 (1979) (arguing that Bakke's
precedential force is governed by the common conclusions of Justices Powell
and Stevens, though it is erroneous to conclude that Powell's opinion has
"controlling significance on all questions"); Robert G. Dixon, Jr., Bakke: A
Constitutional Analysis, 67 CAL. L. REV. 69 (1979) (Justice Powell's
"tiebreaking opinion . . . has acquired wide pragmatic appeal.").
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. Corp., 429 U.S. 252
(1977); Washington v. Davis, 426 U.S. 229 (1976).
21
Id. at 305-06 (emphasis added, citation and footnote omitted).
Justice Powell reasoned that the second and third justifica-
tionsSSremedying societal discrimination and providing role
modelsSSwere never appropriate.23 He determined that any remedial
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
23
The Supreme Court subsequently has agreed with that position. See
Wygant, 476 U.S. at 274-76 (plurality opinion). The district court a quo
erred in suggesting that societal discrimination is constitutionally cogniza-
ble. 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
Justice Powell presented this "special concern" as in tension
with the Fourteenth Amendment. "Thus, in arguing that its
universities must be accorded the right to select those students
who will contribute the most to the 'robust exchange of ideas,'
petitioner invokes a countervailing constitutional interest, that
of the First Amendment." Id. at 313.25 The Justice then concluded
that
[a]n otherwise qualified medical student with a particu-
lar background))whether it be ethnic, geographic,
culturally advantaged or disadvantaged))may bring to a
professional school of medicine experiences, outlooks,
and ideas that enrich the training of its student body
and better equip its graduates to render with understand-
ing their vital service to humanity.
Id. at 314 (footnote omitted). Justice Powell therefore approved
of a consideration of ethnicity as "one element in a range of
factors a university properly may consider in attaining the goal of
a heterogeneous student body." Id.
The next step for Justice Powell was to decide whether the
medical school's program was necessary to further the goal of
diversity. He said it was not. As the program made race the only
determining factor for a certain number of the open spots that had
25
Saying that a university has a First Amendment interest in this con-
text is somewhat troubling. Both the medical school in Bakke and, in our
case, the law school are state institutions. The First Amendment generally
protects citizens from the actions of government, not government from its
citizens.
Significantly, Sweezy involved a person who was called before the Attor-
ney General of New Hampshire to answer for alleged subversive activities. He
declined on First Amendment grounds to answer questions about a lecture he had
delivered at the University of New Hampshire. While Justice Frankfurter spoke
of a university's interest in openness and free inquiry, it was plainly
through the First Amendment rights of individual scholars. 354 U.S. at 262,
266-67 (Frankfurter, J., concurring in result).
23
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 appli-
cant's file, yet does not insulate the individual from comparison
with all the other candidates for the available seats," might pass
muster. Id. at 317. The Justice did not define what he meant by
a "plus," but he did write that a "plus" program would be one in
which an
applicant who loses out to another candidate receiving a
'plus' on the basis of ethnic background will not have
been foreclosed from all consideration for that seat
simply because he was not the right color or had the
wrong surname. It would only mean that his combined
qualifications, 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 Amend-
ment.
Id. at 318.
Under this conception of the Fourteenth Amendment, a program
that considered a host of factors that include race would be
constitutional, even if an applicant's race "tipped the scales"
among qualified applicants. What a school could not do is to
refuse to compare applicants of different races or establish a
strict quota on the basis of race. In sum, Justice Powell found
the school's program to be an unconstitutional "quota" system, but
he intimated that the Constitution would allow schools to continue
to use race in a wide-ranging manner.
24
2.
Here, the plaintiffs argue that diversity is not a compelling
governmental interest under superseding Supreme Court precedent.
Instead, they believe that the Court finally has recognized that
only the remedial use of race is compelling. In the alternative,
the plaintiffs assert that the district court misapplied Justice
Powell's Bakke standard, as the law school program here uses race
as a strong determinant rather than a mere "plus" factor and, in
any case, the preference is not narrowly applied. The law school
maintains, on the other hand, that Justice Powell's formulation in
Bakke is law and must be followedSSat 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 Bakke garnered only his
own vote and has never represented the view of a majority of the
Court in Bakke or any other case. Moreover, subsequent Supreme
Court decisions regarding education state that non-remedial state
interests will never justify racial classifications. Finally, the
classification of persons on the basis of race for the purpose of
diversity frustrates, rather than facilitates, the goals of equal
protection.
Justice Powell's view in Bakke is not binding precedent on
this issue. While he announced the judgment, no other Justice
joined in that part of the opinion discussing the diversity
25
rationale. In Bakke, the word "diversity" is mentioned nowhere
except in Justice Powell's single-Justice opinion. In fact, the
four-Justice opinion, which would have upheld the special admis-
sions program under intermediate scrutiny, implicitly rejected
Justice Powell's position. See 438 U.S. at 326 n.1 (Brennan,
White, Marshall, and Blackmun JJ., concurring in the judgment in
part and dissenting) ("We also agree with Mr. Justice POWELL that
a plan like the "Harvard" plan . . . is constitutional under our
approach, at least so long as the use of race to achieve an
integrated student body is necessitated by the lingering effects 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
majority 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 Bakke, the Court has accepted the diversity rationale
only once in its cases dealing with race. Significantly, however,
in that case, Metro Broadcasting, Inc. v. Federal Communications
Comm'n, 497 U.S. 547, 564-65 (1990), 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, 115 S. Ct. at 2112-13, the Court
26
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 2113. No case since Bakke has accepted diversity
as a compelling state interest under a strict scrutiny analysis.
Indeed, recent Supreme Court precedent shows that the
diversity interest will not satisfy strict scrutiny. Foremost, the
Court appears to have decided that there is essentially only one
compelling state interest to justify racial classifications:
remedying past wrongs. In Croson, 488 U.S. at 493 (plurality
opinion), the Court flatly stated that "[u]nless [racial classifi-
cations] are strictly reserved for remedial settings, they may in
fact promote notions of racial inferiority and lead to a politics
of racial hostility." (emphasis added).26
Justice O'Connor, in her Adarand-vindicated dissent in Metro
Broadcasting, joined by Justices Rehnquist, Scalia, and Kennedy,
explained this position:
Modern equal protection has recognized only one [compel-
26
See also Milwaukee County Pavers Ass'n v. Fielder, 922 F.2d 419, 422
(7th Cir.) ("The whole point of Croson is that disadvantage, diversity, or
other grounds favoring minorities will not justify governmental racial dis-
crimination . . .; only a purpose of remedying discrimination against minori-
ties will do so.") (emphasis added), cert. denied, 500 U.S. 954 (1991).
Notably, Justice Scalia rejected the use of racial classifications "in
order (in a broad sense) 'to ameliorate the effects of past discrimination.'"
Croson, 488 U.S. at 520 (Scalia, J., concurring in the judgment) (quoting
Croson, 488 U.S. at 476-77). He, however, suggested one other possible com-
pelling state interest: a social emergency. He opined that "where state or
local action is at issue, only a social emergency rising to the level of immi-
nent danger to life and limb" will justify racial classifications. Croson,
488 U.S. at 521 (Scalia, J., concurring in judgment). While such an interest
is probably consistent with the widely criticized holdings of Hirabayashi v.
United States, 320 U.S. 81 (1943), and Korematsu v. United States, 323 U.S.
214 (1944), plainly such an interest is not presented in this case.
27
ling state] interest: remedying the effects of racial
discrimination. The interest in increasing the diversity
of broadcast viewpoints is clearly not a compelling
interest. It is simply too amorphous, too insubstantial,
and too unrelated to any legitimate basis for employing
racial classifications.
497 U.S. at 612 (O'Connor, J., dissenting). Indeed, the majority
in Metro Broadcasting had not claimed otherwise and decided only
that such an interest was "important." Justice Thomas, who joined
the Court after Metro Broadcasting was decided, roundly condemned
"benign" discrimination in his recent Adarand opinion, in which he
suggests that the diversity rationale is inadequate to meet strict
scrutiny. See Adarand, 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
27
The law school places much reliance upon Justice O'Connor's concur-
rence in Wygant for the proposition that Justice Powell's Bakke formulation is
still viable. In her 1986 Wygant opinion, in the context of discussing Jus-
tice Powell's opinion, Justice O'Connor noted that "although its precise con-
tours are uncertain, a state interest in the promotion of racial diversity has
been found sufficiently 'compelling,' at least in the context of higher educa-
tion, to support the use of racial considerations in furthering that inter-
est." 476 U.S. at 286 (O'Connor, J., concurring in part and concurring in the
judgment).
The law school's argument is not persuasive. Justice O'Connor's state-
ment is purely descriptive and did not purport to express her approval or
disapproval of diversity as a compelling interest. Her subsequent statements
outlined above in Croson and Metro Broadcasting suggest strongly that reliance
upon this statement in Wygant is unjustified.
28
contradicts, rather than furthers, the aims of equal protection.
Diversity fosters, rather than minimizes, the use of race. It
treats minorities as a group, rather than as individuals. It may
further remedial purposes but, just as likely, may promote improper
racial stereotypes, thus fueling racial hostility.
The use of race, in and of itself, to choose students simply
achieves a student body that looks different. Such a criterion is
no more rational on its own terms than would be choices based upon
the physical size or blood type of applicants. Thus, the Supreme
Court has long held that governmental actors cannot justify their
decisions solely because of race. See, e.g., Croson, 488 U.S. at
496 (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
because of his ability to play the cello, make a downfield tackle,
29
or understand chaos theory. An admissions process may also
consider an applicant's home state or relationship to school
alumni. Law schools specifically may look at things such as
unusual or substantial extracurricular activities in college, which
may be atypical factors affecting undergraduate grades. Schools
may even consider factors such as whether an applicant's parents
attended college or the applicant's economic and social
background.28
For this reason, race often is said to be justified in the
diversity context, not on its own terms, but as a proxy for other
characteristics that institutions of higher education value but
that do not raise similar constitutional concerns.29 Unfortunately,
this approach simply replicates the very harm that the Fourteenth
Amendment was designed to eliminate.
The assumption is that a certain individual possesses
characteristics by virtue of being a member of a certain racial
group. This assumption, however, does not withstand scrutiny.
"[T]he use of a racial characteristic to establish a presumption
that the individual also possesses other, and socially relevant,
characteristics, exemplifies, encourages, and legitimizes the mode
of thought and behavior that underlies most prejudice and bigotry
in modern America." Richard A. Posner, The DeFunis Case and the
28
The law school's admissions program makes no distinction among black
and Mexican American applicants in an effort to determine which of them, for
example, may have been culturally or educationally disadvantaged.
29
For example, Justice Powell apparently felt that persons with differ-
ent ethnic backgrounds would bring diverse "experiences, outlooks, and ideas"
to the medical school. Bakke, 438 U.S. at 314 (opinion of Powell, J.).
30
Constitutionality of Preferential Treatment of Racial Minorities,
1974 SUP. CT. REV. 12 (1974).
To believe that a person's race controls his point of view is
to stereotype him. The Supreme Court, however, "has remarked a
number of times, in slightly different contexts, that it is
incorrect and legally inappropriate to impute to women and
minorities 'a different attitude about such issues as the federal
budget, school prayer, voting, and foreign relations.'" Michael S.
Paulsen, Reverse Discrimination and Law School Faculty Hiring: The
Undiscovered Opinion, 71 TEX. L. REV. 993, 1000 (1993) (quoting
Roberts v. United States Jaycees, 468 U.S. 609, 627-28 (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
example of an applicant with a unique background. She is the now-
thirty-two-year-old wife of a member of the Armed Forces stationed
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
in San Antonio and, more significantly, is raising a severely
handicapped child. Her circumstance would bring a different
perspective to the law school. The school might consider this an
advantage to her in the application process, or it could decide
that her family situation would be too much of a burden on her
academic performance.
We do not opine on which way the law school should weigh
Hopwood's qualifications; we only observe that "diversity" can take
many forms. To foster such diversity, state universities and law
schools and other governmental entities must scrutinize applicants
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
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 McCleskey 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
"benign" racial classifications is not as harmful as that arising
from invidious ones,32 the current Court has now retreated from the
idea that so-called benign and invidious classifications may be
distinguished.33 As the plurality in Croson warned,
"[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
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).
33
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
vagaries 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
(continued...)
33
Finally, the use of race to achieve diversity undercuts the
ultimate goal of the Fourteenth Amendment: the end of racially-
motivated state action. Justice Powell's conception of race as a
"plus" factor would allow race always to be a potential factor in
admissions decisionmaking. While Justice Blackmun recognized the
tension inherent in using race-conscious remedies to achieve a
race-neutral society, he nevertheless accepted it as necessary.
Bakke, 438 U.S. at 405. 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 'eliminat[ing] entirely from government decisionmaking
such irrelevant factors as a human being's race . . . will never be
achieved.") (quoting Wygant, 476 U.S. at 320 (Stevens, J.,
dissenting)).35
(...continued)
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 governmentSSa 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. CHI. L. REV. 775, 787 n.38 (1979).
35
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
government))the differential treatment of other human beings by
(continued...)
34
In sum, the use of race to achieve a diverse student body,
whether as a proxy for permissible characteristics, simply cannot
be a state interest compelling enough to meet the steep standard of
strict scrutiny.36 These latter factors may, in fact, turn out to
be substantially correlated with race, but the key is that race
itself not be taken into account. Thus, that portion of the
district court's opinion upholding the diversity rationale is
reversibly flawed.37
B.
We now turn to the district court's determination that "the
remedial purpose of the law school's affirmative action program is
(...continued)
race. Indeed, that is the great lesson for government itself to
teach: in all we do in life, whatever we do in life, to treat any
person less well than another or to favor any more than another
for being black or white or brown or red, is wrong. Let that be
our fundamental law and we shall have a Constitution universally
worth expounding.
Van Alstyne, supra note 34, at 809-10.
36
Because we have determined that any consideration of race by the law
school is constitutionally impermissible if justified by diversity, it is not
necessary to determine whether, as plaintiffs argue, the admissions system
under which the plaintiffs applied operated as a de facto "quota" system
similar to the one struck down in Bakke. We do note that even if a "plus"
system were permissible, it likely would be impossible to maintain such a
system without degeneration into nothing more than a "quota" program. See
Bakke, 438 U.S. at 378 ("For purposes of constitutional adjudication, there is
no difference between [setting aside a certain number of places for minorities
and using minority status as a positive factor].") (Brennan, White, Marshall,
and Blackmun, JJ., concurring in the judgment in part and dissenting in part).
Indeed, in this case, the law school appeared to be especially adept at
meeting its yearly "goals." See Hopwood, 861 F. Supp. at 574 n.67.
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
a compelling government objective." 861 F. Supp. at 573. The
plaintiffs argue that the court erred by finding that the law
school could employ racial criteria to remedy the present effects
of past discrimination in Texas's primary and secondary schools.
The plaintiffs contend that the proper unit for analysis is the law
school, and the state has shown no recognizable present effects of
the law school's past discrimination. The law school, in response,
notes Texas's well-documented history of discrimination in
education and argues that its effects continue today at the law
school, both in the level of educational attainment of the average
minority applicant and in the school's reputation.
In contrast to its approach to the diversity rationale, a
majority of the Supreme Court has held that a state actor may
racially classify where it has a "strong basis in the evidence for
its conclusion that remedial action was necessary." Croson, 488
U.S. at 500 (quoting Wygant, 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 Podberesky v. Kirwan, 956
F.2d 52, 57 (4th Cir. 1992), cert. denied, 115 S. Ct. 2001 (1995));
see also Wygant, 476 U.S. at 280 (opining that "in order to remedy
the effects of prior discrimination, it may be necessary to take
38
Hopwood I is the first appeal of the intervention issue that we
address infra.
36
race into account") (opinion of Powell, J.).39
Because a state does not have a compelling state interest in
remedying the present effects of past societal discrimination,
however, we must examine the district court's legal determination
that the relevant governmental entity is the system of education
within the state as a whole. Moreover, we also must review the
court's identification of what types of present effects of past
discrimination, if proven, would be sufficient under strict
scrutiny review. Finally, where the state actor puts forth a
39
Unfortunately, the precise scope of allowable state action is of
somewhat undefined contours. Indeed, it is not evident whether permitted
remedial action extends to the "present effects of past discrimination." This
language, derived from Justice Brennan's opinion in Bakke, 438 U.S. at 362-66,
appears intended to present little resistance to wide-ranging affirmative
action plans.
While Justice Brennan began by stating that schools have a duty
affirmatively to erase the vestiges of their past discriminatory practices, he
compared this duty to the power of Congress to enforce § 1 of the Fourteenth
Amendment through § 5. He reasoned that under that wide-ranging power, the
beneficiaries of such a program need not present proof that they were
discriminated against; a showing that they were in the general class was
sufficient.
Id. at 363-64. Nor would a school need judicial findings of past
discrimination. 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.
at 365-66. Hence, under this standard, almost any school could adopt an
affirmative action plan.
There is no question, however, that subsequent Supreme Court opinions,
notably Wygant and Croson, have rejected broad state programs that purport to
be remedial and that, presumably, would have satisfied Justice Brennan's
standard for meeting the "present effects of past discrimination." And some
members of the Court would limit any remedial purpose to the actual victims of
discrimination. See Adarand, 115 S. Ct. at 2118 (Scalia, J., concurring in
part and concurring in judgment) ("[G]overnment can never have a 'compelling
interest' in discriminating on the basis of race in order to 'make up' for
past racial discrimination in the opposite direction."). Nevertheless, we will
not eschew use of the phrase "present effects of past discrimination," as we
used this language in Hopwood I, 21 F.3d at 605, and another circuit did so in
Podberesky v. Kirwan, 38 F.3d 147, 153 (4th Cir. 1994), cert. denied, 115
S. Ct. 2001 (1995). We will, however, limit its application in accordance
with Wygant and Croson.
37
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
discrimination." Wygant, 476 U.S. at 274 (plurality opinion of
Powell, J.) (citing Hazelwood School Dist. v. United States, 433
U.S. 299 (1977)).40 In Wygant, the Court analyzed a collective
bargaining agreement between a school board and a teacher's union
that allowed the board to give minorities preferential treatment in
the event of layoffs. A plurality rejected the theory that such a
program was justified because it provided minority role models.
Id. at 274-77 (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
40
See 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.").
41
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
(continued...)
38
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.
The Croson Court further discussed how to identify the
relevant past discriminator. Writing for the Court, Justice
O'Connor struck down a minority business set-aside program
implemented by the City of Richmond and justified on remedial
grounds. While the district court opined that sufficient evidence
had been found by the city to believe that such a program was
necessary to remedy the present effects of past discrimination in
the construction industry, the Court held:
Like the "role model" theory employed in Wygant, a
generalized assertion that there had been past
discrimination in an entire industry provides no guidance
for a legislative body to determine the precise scope of
the injury it seeks to remedy. It 'has no logical
stopping point.' Wygant, 476 U.S. at 275 (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.
(...continued)
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.").
39
488 U.S. at 498.42 The Court refused to accept indicia of past
discrimination in anything but "the Richmond construction
industry." Id. at 505.
In addition, in a passage of particular significance to the
instant case, the Court analogized the employment contractor
situation to that of higher education and noted that "[l]ike claims
that discrimination in primary and secondary schooling justifies a
rigid racial preference in medical school admissions, an amorphous
claim that there has been past discrimination in a particular
industry cannot justify the use of an unyielding quota." Id. at
499. Such claims were based upon "sheer speculation" about how
many minorities would be in the contracting business absent past
discrimination. Id.
Applying the teachings of Croson and Wygant, we conclude that
the district court erred in expanding the remedial justification to
reach all public education within the State of Texas. The Supreme
Court repeatedly has warned that the use of racial remedies must be
carefully limited, and a remedy reaching all education within a
state addresses a putative injury that is vague and amorphous. It
has "no logical stopping point." Wygant, 476 U.S. at 275
(plurality opinion).
The district court's holding employs no viable limiting
principle. If a state can "remedy" the present effects of past
discrimination in its primary and secondary schools, it also would
42
Justice O'Connor was joined by Chief Justice Rehnquist and Justices
White, Stevens, and Kennedy in this portion of the opinion.
40
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
congressional reports, does little to define the scope of
any injury to minority contractors in Richmond or the
necessary remedy. The factors relied upon by the dissent
could justify a preference of any size or duration.
488 U.S. at 505. The defendants' argument here is equally
expansive.43
Strict scrutiny is meant to ensure that the purpose of a
racial preference is remedial. Yet when one state actor begins to
justify racial preferences based upon the actions of other state
agencies, the remedial actor's competence to determine the
existence and scope of the harmSSand the appropriate reach of the
remedySSis called into question. The school desegregation cases,
for example, concentrate on school districtsSSsingular government
unitsSSand 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
43
The fact that the plaintiffs named the State of Texas as one
defendant does not mean that it is proper to scrutinize the state as the
relevant past discriminator. This argument confuses a theory of liability
with a justification for a limited racial remedy. The State of Texas simply
may be responsible for the wrongs of the law school, which is a governmental
entity the state has created. The Supreme Court, however, has limited the
remedial interest to the harm wrought by a specific governmental unit.
41
justification for limiting the remedial powers of a state actor is
that the specific agency involved is best able to measure the harm
of its past discrimination.
Here, however, the law school has no comparative advantage in
measuring the present effects of discrimination in primary and
secondary schools in Texas. Such a task becomes even more
improbable where, as here, benefits are conferred on students who
attended out-of-state or private schools for such education. Such
boundless "remedies" raise a constitutional concern beyond mere
competence. In this situation, an inference is raised that the
program was the result of racial social engineering rather a desire
to implement a remedy.
No one disputes that in the past, Texas state actors have
discriminated against some minorities in public schools. In this
sense, some lingering effects of such discrimination is not
"societal," if that term is meant to exclude all state action. But
the very program at issue here shows how remedying such past wrongs
may be expanded beyond any reasonable limits.
Even if, arguendo, the state is the proper government unit to
scrutinize, the law school's admissions program would not withstand
our review. For the admissions scheme to pass constitutional
muster, the State of Texas, through its legislature, would have to
find that past segregation has present effects; it would have to
determine the magnitude of those present effects; and it would need
to limit carefully the "plus" given to applicants to remedy that
harm. A broad program that sweeps in all minorities with a remedy
42
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 measureSSgenerally
ensuring that the legally-imposed racially discriminatory program
is remedialSSwe conclude that the University of Texas System is
itself too expansive an entity to scrutinize for past
discrimination.44
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
management of higher education has been divided by the legislature into
different "systems." See 12 TEX. JUR. 3D, Colleges and Universities § 2 (1993).
The
University of Texas at Austin, with which the law school is associated, is
part of the University of Texas System. TEX. EDUC. CODE ANN. §§ 67.01 to 67.62
(West 1991). Accordingly, the legislature, 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
(continued...)
43
In sum, for purposes of determining whether the law school's
admissions system properly can act as a remedy for the present
effects of past discrimination, we must identify the law school as
the relevant alleged past discriminator. The fact that the law
school ultimately may be subject to the directives of others, such
as the board of regents, the university president, or the
legislature, does not change the fact that the relevant putative
discriminator in this case is still the law school. In order for
any of these entities to direct a racial preference program at the
law school, it must be because of past wrongs at that school.
2.
Next, the relevant governmental discriminator must prove that
there are present effects of past discrimination of the type that
justify the racial classifications at issue:
To have a present effect of past discrimination
sufficient to justify the program, the party seeking to
implement the program must, at a minimum, prove that the
effect it proffers is caused by the past discrimination
and that the effect is of sufficient magnitude to justify
the program.
Podberesky v. Kirwan, 38 F.3d 147, 153 (4th Cir. 1994), cert.
denied, 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
(...continued)
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).
44
that it adopted the program specifically to remedy the identified
present effects of the past discrimination.
Here, according to the district court: "The evidence
presented at trial indicates those effects include the law school's
lingering reputation in the minority community, particularly with
prospective students, as a "white" school; an underrepresentation
of minorities in the student body; and some perception that the law
school is a hostile environment for minorities." 861 F. Supp. at
572. Plaintiffs now argue that these three alleged effects are at
most examples of societal discrimination, which the Supreme Court
has found not to be a valid remedial basis. "The effects must
themselves be examined to see whether they were caused by the past
discrimination and whether they are of a type that justifies the
program." Podberesky, 38 F.3d at 154.
As a legal matter, the district court erred in concluding that
the first and third effects it identifiedSSbad reputation and
hostile environmentSSwere sufficient to sustain the use of race in
the admissions process. The Fourth Circuit examined similar
arguments in Podberesky, a recent case that struck down the use of
race-based scholarships. The university in that case sought, in
part, to justify a separate scholarship program based solely upon
race because of the university's "poor reputation within the
African-American community" and because "the atmosphere on campus
[was] perceived as being hostile to African-American students."
Id. at 152.
The Podberesky court rejected the notion that either of these
45
rationales could support the single-race scholarship program. The
court reasoned that any poor reputation by the school "is tied
solely to knowledge of the University's discrimination before it
admitted African-American students." Id. at 154. The court found
that "mere knowledge of historical fact is not the kind of present
effect that can justify a race-exclusive remedy. If it were
otherwise, as long as there are people who have access to history
books, there will be programs such as this." Id.
We concur in the Fourth Circuit's observation that knowledge
of historical fact simply cannot justify current racial
classifications. Even if, as the defendants argue, the law school
may have a bad reputation in the minority community, "[t]he case
against race-based preferences does not rest on the sterile
assumption that American society is untouched or unaffected by the
tragic oppression of its past." Maryland Troopers Ass'n v. Evans,
993 F.2d 1072, 1079 (4th Cir. 1993). "Rather, it is the very
enormity of that tragedy that lends resolve to the desire to never
repeat it, and find a legal order in which distinctions based on
race shall have no place." Id. Moreover, we note that the law
school's argument is even weaker than that of the university in
Podberesky, as there is no dispute that the law school has never
had an admissions policy that excluded Mexican Americans on the
basis of race.
The Podberesky court rejected the hostile-environment claims
by observing that the "effects"SSthat is, racial tensionsSSwere the
result of present societal discrimination. 38 F.3d at 155. There
46
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.
In such a case, one cannot conclude that a hostile environment
is the present effect of past discrimination. Any racial tension
at the law school is most certainly the result of present societal
discrimination and, if anything, is contributed to, rather than
alleviated by, the overt and prevalent consideration of race in
admissions.
Even if the law school's alleged current lingering reputation
in the minority communitySSand the perception that the school is a
hostile environment for minoritiesSSwere considered to be the
present effects of past discrimination, rather than the result of
societal discrimination, they could not constitute compelling state
47
interests justifying the use of racial classifications in
admissions. A bad reputation within the minority community is
alleviated not by the consideration of race in admissions, but by
school action designed directly to enhance its reputation in that
community.
Minority students who are aided by the law school's racial
preferences have already made the decision to apply, despite the
reputation. And, while prior knowledge that they will get a "plus"
might make potential minorities more likely to apply, such an
inducement does nothing, per se, to change any hostile environment.
As we have noted, racial preferences, if anything, can compound the
problem of a hostile environment.45
The law school wisely concentrates only on the second effect
the district court identified: underrepresentation of minorities
because of past discrimination. The law school argues that we
should consider the prior discrimination by the State of Texas and
its educational system rather than of the law school. The school
contends that this prior discrimination by the state had a direct
effect on the educational attainment of the pool of minority
applicants and that the discriminatory admissions program was
implemented partially to discharge the school's duty of eliminating
the vestiges of past segregation.
As we have noted, the district court accepted the law school's
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.
48
argument that past discrimination on the part of the Texas school
system (including primary and secondary schools), reaching back
perhaps as far as the education of the parents of today's students,
justifies the current use of racial classifications.46 No one
disputes that Texas has a history of racial discrimination in
education. We have already discussed, however, that the Croson
Court unequivocally restricted the proper scope of the remedial
interest to the state actor that had previously discriminated. 488
U.S. at 499. 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
46
The argument is that because the state discriminated in its primary
and secondary school systems, the students' educational attainment was
adversely affected, and this harm extended to their higher education, thus
justifying giving current applicants a "plus" based on race. This reasoning
is especially important in justifying benefits for Mexican Americans, as there
is no evidence that the law school implemented de jure (or even de facto)
discrimination against this group in its admissions process. Because this
logic ignores the relevant actions in this case, i.e., discrimination by the
law school, it is not necessary for us to examine the potential causational
flaws in the argument.
Moreover, if we did find that the past wrongs of Texas school districts
were the sort of discrimination that the law school could address, the school
still would have to prove the present effects of that past wrong. Without
some strong evidence in the record showing that today's law school applicants
still bear the mark of those past systems, such effects seem grossly
speculative. The district court simply assumed that "[t]his segregation has
handicapped the educational achievement of many minorities. . . ." 861 F.
Supp. at 573. And we would still have to ask whether the program was narrowly
tailored to this goal.
49
Texas" plan rather than a law school program. Under the law
school's reading of the facts, its program was the direct result of
the state's negotiations with what was then the United States
Department of Health, Education and Welfare's Office for Civil
Rights ("OCR"). To bring the Texas public higher education system
into compliance with title VI, the state adopted the so-called
"Texas Plan."
In light of our preceding discussion on the relevant
governmental unit, this argument is inapposite. Even if the law
school were specifically ordered to adopt a racial preference
program, its implementation at the law school would have to meet
the requirements of strict scrutiny.47
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
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
context. Miller v. Johnson, 115 S. Ct. 2475, 2491 (1995) ("As we suggested in
Shaw[v. Reno, 113 S. Ct. 2816, 2830-31 (1993)], compliance with federal
antidiscrimination laws cannot justify race-based districting where the
challenged district was not reasonably necessary under a constitutional
reading and application of those laws.") (emphasis added).
50
Texas implemented the program at issue than it is to assert that
the Commonwealth of Virginia, not the City of Richmond, was
responsible for the minority set-aside program in Croson.
The district court also sought to find a remedial
justification for the use of race and, at the same time, attempted
to distinguish Croson using United States v. Fordice, 505 U.S. 717
(1992). The court held that the law school had a compelling
interest to "desegregate" the school through affirmative action.
The reliance upon Fordice is misplaced, however. The district
court held that Fordice's mandate to schools "to eliminate every
vestige of racial segregation and discrimination" made Croson
inapplicable, 861 F. Supp. at 571, and reasoned that this mandate
includes the effects of such prior practices or policies.
Fordice does not overrule Croson. The central holding of
Fordice is that a state or one of its subdivisions must act to
repudiate the continuing "policies or practices" of discrimination.
505 U.S. at 731-32.48 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
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
other facets of the university system))and such policies are
without sound educational justification and can be practicably
eliminated, the State has not satisfied its burden of proving that
it has dismantled its prior system.
505 U.S. at 731.
51
discrimination 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
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
added). Hence, a specific state actor can act to prevent the state from being
used as a "passive participant" in private discrimination. This power does
not create wide-ranging authority to remedy societal discrimination, however.
50
The plaintiffs argue that indeed there is no narrow tailoring, for at
least the following reasons: (1) In 1992, more than two-thirds of all
admission offers to blacks, and a majority of all blacks who matriculated,
involved out-of-state residents, thus undercutting the law school's stated
purpose of remedying past discrimination in Texas. (2) The system of
preferences has no termination date, thus indicating that there is no
connection between the plan and a bona fide remedial purpose. (3) Preference
is given even to blacks and Mexican Americans who graduated from private
secondary schools and thus did not suffer from state-ordered racial
discrimination.
The law school apparently chose admission goals of 5% blacks and 10%
Mexican Americans because those are the respective percentages of college
graduates in Texas who are black and Mexican American. Nothing in the record,
however, establishes any probative correlation between the degree of past
discrimination and the percentage of students from a minority group who
graduate from college.
There is no history either of de jure discrimination against Mexican
Americans in education at any level in Texas or of de facto discrimination
against Mexican Americans by the law school. Therefore, it is puzzling that
the law school would set an admissions goal for Mexican Americans that is
twice that of blacks, as to whom the history of de jure discrimination in
Texas Education in general, and by the law school in particular, is
irrefutable.
If fashioning a remedy for past discrimination is the goal, one would
intuit that the minority group that has experienced the most discrimination
would have the lowest college graduation rate and therefore would be entitled
to the most benefit from the designed remedy. The goals established by the
(continued...)
52
IV.
While the district court declared the admissions program
unconstitutional, it granted the plaintiffs only limited relief.
They had requested injunctive relief ordering that they be admitted
to law school, compensatory and punitive damages, and prospective
injunctive relief preventing the school from using race as a factor
in admissions.
A.
We must decide who bears the burden of proof on the damages
issue. The district court refused to order the plaintiffs'
admission (or award any compensatory damages), as it found that
they had not met their burden of persuasion in attempting to show
that they would have been admitted absent the unconstitutional
system. 861 F. Supp. at 579-82.51 The law school now argues that
the plaintiffs had the burden of persuasion on the issue of damages
and that the district court's findings are not clearly erroneous.52
The plaintiffs maintain, as they did in the district court, that
once they had shown a constitutional violation, the burden of
(...continued)
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.
51
This finding also affected the court's analysis in denying
prospective 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
nonetheless that the "ultimate burden of proof," including proof of damages,
rests upon the plaintiffs. See id.
53
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 Mt. Healthy City Sch., Dist. Bd. 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 Mt. Healthy, a discharged school teacher sued for
reinstatement, claiming his termination was a result of comments he
had made on a radio show, a violation of his First and Fourteenth
Amendment rights. The Court devised a test of "causation" that
placed the burden of proving no harm on the defendant:
Initially, . . . the burden was properly placed upon 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
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.).
54
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
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
54
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
Mt. Healthy reasoning in toto for firefighter's reverse discrimination claims)
and United States v. McDonald, 553 F. Supp. 1003, 1006 (S.D. Tex. 1983)
(dictum) (same for discriminatory criminal prosecution).
55
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
admissions system, the court is to award to that plaintiff any
equitable and/or monetary relief it deems appropriate.
Obviously, if the school proves that a plaintiff would not
have gained admittance to the law school under a race-blind system,
that plaintiff would not be entitled to an injunction admitting him
to the school. On the other hand, the law school's inability to
establish a plaintiff's non-admissionSSif that occurs on
remandSSopens 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 SSrelief that would ring hollow for a
plaintiff for whom an education at the law school now is of little
or no benefit.57
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
plaintiffs failed to show injury-in-fact because they failed to prove that
they would have been admitted under a constitutional admissions system, this
conclusion should be revisited on remand, where the district court must apply
the proper burden and redetermine whether plaintiffs would have been admitted.
56
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
testified, between tuition at the law school and tuition at Southern Methodist
(continued...)
56
Additionally, the district court erred in holding that
plaintiffs did not prove that defendants had committed intentional
discrimination under title VI. "Intentional discrimination," as
used in this context, means that a plaintiff must prove "that the
governmental actor, in adopting or employing the challenged
practices or undertaking the challenged action, intended to treat
similarly situated persons differently on the basis of race."
Castaneda v. Pickard, 648 F.2d 989, 1000 (5th Cir. Unit A June
1981); see also Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60
(1992); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582
(1983). While we agree with the district court's conclusion that
the various defendants acted in good faith, there is no question
that they intended to treat the plaintiffs differently on account
of their race.
B.
The plaintiffs argue that, because they proved a
constitutional violation, and further violations were likely to
result, the district court erred in denying them prospective
injunctive relief. We review denials of this sort of relief for an
abuse of discretion. See, e.g., Peaches Entertainment Corp. v.
(...continued)
University School of Law, which he attended instead. The district court
should also consider the following paradox: The law school argued strenuously
that plaintiff Elliott did not have standing to sue, as he had been offered
admission to the schoolSSalbeit at the last momentSSand 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.
57
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
unconstitutionalSSto-wit, the use of separate admissions committees
for whites and minorities.
We review denials of prospective injunctive relief as we would
any other denial of permanent injunctive relief under FED. R. CIV.
P. 65, keeping in mind, however, the questions of mootness,
ripeness, and standing. See generally 11A CHARLES A. WRIGHT ET AL.,
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
determination whether to issue an injunction involves a
balancing of interests of the parties who might be
affected by the court's decision))the hardship on the
plaintiff if relief is denied as compared to the
defendant if relief is granted and the extent to which
the latter hardship can be mitigated by requiring a
security bond. Not surprisingly, therefore, the court's
decision depends on the circumstances of each case.
Id. at 41-42. Accordingly, the usual practice upon reversal of a
denial of injunctive relief is to remand for a reweighing of the
equities. Id. § 2962, at 448; See, e.g., James v. Stockham Valves
& Fittings Co., 559 F.2d 310, 354-55 (5th Cir. 1977). In other
situations, the appellate court may order the district court to
enter an injunction. See, e.g., Southeastern Promotions, Ltd. v.
City of Mobile, 457 F.2d 340 (5th Cir. 1972).
58
According to the district court, the school had abandoned the
admissions procedureSSconsisting of the separate minority
subcommitteeSSthat was used in 1992, 1993, and 1994. The court
reasoned that, as a new procedure was developed for 1995, a
prospective injunction against the school was inappropriate. We
conclude, however, that, while the district court may have been
correct in deciding that the new procedure eliminates the
constitutional flaws that the district court identified in the 1992
system, there is no indication that the new system will cure the
additional constitutional defects we now have explained.
The new system utilizes a small "administrative admissions
group" and does not use presumptive admission and denial scores.
See Hopwood, 861 F. Supp. at 582 n.87. Most significantly, there
is no indication that in employing the new plan, the law school
will cease to consider race per se in making its admissions
decisions. To the contrary, as the district court recognized, the
law school continues to assert that overt racial preferences are
necessary to the attainment of its goals. See Hopwood, 861 F. Supp.
at 573-75.
The district court has already granted some equitable relief:
It directed that the plaintiffs be 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
59
into account in admissions unless it receives further judicial
instruction to the effect that it may not do so for the purpose of
(1) obtaining a diverse student body; (2) altering the school's
reputation in the community; (3) combating the school's perceived
hostile environment toward minorities; or (4) remedying the present
effects of past discrimination by actors other than the law school.
It is not necessary, however, for us to order at this time
that the law school be enjoined, as we are confident that the
conscientious administration at the school, as well as its
attorneys, will heed the directives contained in this opinion. If
an injunction should be needed in the future, the district court,
in its discretion, can consider its parameters without our
assistance. Accordingly, we leave intact that court's refusal to
enter an injunction.
C.
The plaintiffs contend that the district court's application
of the wrong standard causes it to deny punitive damages. The
plaintiffs aver that the court applied an animus standard, when it
should have asked whether the school acted with "reckless
indifference" to their constitutional rights. They ask for a
remand on this issue.
It is not apparent, from the record, what standard the
district court applied in considering the punitive damages issue.
The court did determine, however, that the law school had always
acted in good faith. This is a difficult area of the law, in which
60
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 intervenorsSSthe Thurgood
Marshall Legal Society and the Black Pre-Law Association (the
"associations")SSask this court, for the second time, for the right
to intervene. On their first attempt, the associations moved to
intervene prior to trial either as of right or by permission. The
district court denied intervention, and we affirmed. See Hopwood
v. Texas, 21 F.3d 603 (5th Cir. 1994) (per curiam) ("Hopwood 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
61
the University of Texas at Austin and its law school that, just
prior to the trial of the merits appeal, sought to intervene,
arguing that the law school would not effectively protect their
interests in continuing racial preferences at the law school. The
district court denied the proposed intervention on the ground that
the law school and the two associations had the same objective:
preservation of the status quo.
On expedited appeal, this court affirmed on the ground that
the associations had failed to show that the law school had an
interest different from theirs. We also commented that the two
groups had failed to show "a separate defense of the affirmative
action plan that the State has failed to assert." Id. at 606. The
panel implicitly considered and rejected, as one potential
divergence of interests, the possibility that the law school would
not raise a defense based upon the legality of the use of TI scores
under title VI, as the associations argued that possibility as one
basis for intervention.
After their first motion to intervene was denied, the
associations remained involved in the case. Throughout the course
of the trial, they acted as amici curiae. And, at the close of
trial but before judgment, the district court intimated that it
would allow them to submit information for the record.
Accordingly, the associations sought to introduce testimonial and
documentary evidence supporting their arguments that (1) the TI by
itself was an unlawful basis for admissions decisions under title
VI and (2) that affirmative action at the university was
62
constitutionally required. The plaintiffs opposed the introduction
of evidence on these "new defenses," and the district court agreed.
The associations were allowed to submit amicus briefs and highlight
evidence that was already in the record but were not allowed to
raise new issues or supplement the record.
Shortly thereafter, the associations again sought to intervene
under FED. R. CIV. P. 24(a)(2) (intervention as of right), claiming
that the law school had failed to raise their two "new defenses"
and, accordingly, that events now showed that that representation
inadequately protected their interests. They sought to reopen the
record to introduce evidence supporting these arguments.
The district court summarily refused this request. That order
is the focus of this separate appeal, in which the associations
present only the title VI defense and ask to be allowed to present
such evidence only if we do not affirm the judgment.
B.
There is no caselaw in this circuit that directly addresses
how to review successive motions to intervene.58 The parties direct
us to Hodgson v. United Mine Workers, 473 F.2d 118, 125-26 (D.C.
58
There is circuit law regarding successive motions, but the pertinent
opinions do not examine the standard of review explicitly. See, e.g.,
Kneeland v. National Collegiate Athletic Ass'n, 806 F.2d 1285 (5th Cir.)
(implicit application of de novo review without discussion of standard), cert.
denied, 484 U.S. 817 (1987); United States v. Louisiana, 669 F.2d 314, 315
(5th Cir. 1982) (application of abuse of discretion review for timeliness
determination on second motion where proposed intervenor failed to argue for
first motion after remand); Calvert Fire Ins. Co. v. Environs Dev. Corp., 601
F.2d 851, 857 (5th Cir. 1979) (implicit application of de novo review where
district court treated second motion as both a reconsideration of prior motion
and a new motion).
63
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
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
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'
interests. While the associations lost on this ground on the last appeal,
they now claim that the opinion supports the argument that the law school's
defense is inadequate. In the last appeal, we cited Jansen v. City of
Cincinnati, 904
F.2d 336 (6th Cir. 1990), as support for the following statement: "Nor have
the proposed intervenors shown that they have a separate defense of the
affirmative action plan that the State has failed to assert." Hopwood I, 21
F.3d at 606. Because the law school, now after trial, still has not asserted
the associations' title VI defense, the associations maintain that they now
can meet their burden.
In Jansen, however, the court found that the proposed intervenors had an
interest different from that of the defendant city. 904 F.2d at 343. This
was the basis for that court's holding that the city's representation was
inadequate. See id. ("Proffering this alleged violation of the consent decree
as an affirmative defense is directly counter to the City's interest.")
(emphasis added). Here, we have already found that the law school's and the
associations' interests are the same. Jansen therefore does not support
intervention.
64
its FED. R. CIV. P. 60(b) powers, and we should review merely for
abuse of discretion.
C.
While the "changed circumstances" test may have meritSSan
issue we do not decide todaySSwe do not find it applicable to this
case. Instead, the "law of the case" doctrine militates against
reconsideration of this motion. Normally, when a prior panel
discusses an issue on the merits, a later panel cannot reach a
contrary conclusion under the preclusive principle of law of the
case. See Williams v. City of New Orleans, 763 F.2d 667, 669 (5th
Cir. 1985). There is no question that the Hopwood I panel
addressed the intervention as a matter of right de novo, on the
merits, including the potential that the law school would not raise
every defense proposed by the associations.
The question of whether we can rely upon the law of the case
doctrine, however, is clouded because of the "anomalous" rule that
exists in this circuit concerning the procedural posture of these
intervention cases. Under that rule, we have only provisional
jurisdiction to review a district court's denial of a motion to
intervene.
If we agree with the district court, our jurisdiction
"evaporates." Hence, the denial of leave to intervene when the
party had a right to intervene is immediately appealable. On
appeal, however, our rule "requires a merit review of any claim of
intervention in order for [us] to determine whether or not the
65
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.g.,
FED. R. CIV. P. 41(b). Accordingly, while appellate courts review
denials of intervention motions on the merits, it is uncertain to
what extent such a review has preclusive effect. Nonetheless, we
recognize the possibility of issue preclusion on the question of
jurisdiction itself.
While a dismissal for lack of jurisdiction does not operate as
an adjudication on the merits, "[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
60
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 WRIGHT ET AL., 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 WRIGHT 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.
66
ET AL., 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
jurisdiction.62
VI.
In summary, we hold that the University of Texas School of Law
61
A dismissal for want of jurisdiction, however, leaves open the
possibility that the deficiency can be cured. If that occurs, no issue
preclusion
exists. See 7C WRIGHT 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
jurisdictional deficiency. Thus, if the circumstances of the case change to
such an extent that jurisdiction would lie, the subsequent motion to intervene
should not be dismissed for lack of jurisdiction. In effect, the posture of
the case has changed, as it would any time a given jurisdictional problem is
cured.
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
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.
In No. 94-50569, the appeal is DISMISSED for want of
jurisdiction. In No. 94-50664, the judgment is REVERSED and
REMANDED for further proceedings in accordance with this opinion.
WIENER, Circuit Judge, specially concurring.
"We judge best when we judge least, particularly in
controversial matters of high public interest."63 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
63
League of United Latin American Citizens, Council No. 4434 v. Clements, 999
F.2d 831, 931 (5th Cir. 1993)(Wiener, J., dissenting).
68
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).64
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,65 neither has established the existence of present
effects of past discrimination sufficient to justify the use of a
racial classification.66 As to diversity, however, I respectfully
disagree with the panel opinion’s conclusion that diversity can
never be a compelling governmental interest in a public graduate
school. Rather than attempt to decide that issue, I would take a
considerably narrower path — and, I believe, a more appropriate
one — to reach an equally narrow result: I would assume arguendo
that diversity can be a compelling interest but conclude that the
admissions process here under scrutiny was not narrowly tailored to
64
See Hopwood v. State of Tex., 861 F. Supp. 551, 570 (W.D. Tex. 1994).
65
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.
66
Panel Opn. at 43 & n.44.
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."67 Accordingly, "all racial classifications, imposed
by whatever federal, state, or local governmental actor, must be
analyzed by a reviewing court under strict scrutiny."68 Racial
classifications will survive strict scrutiny "only if they are
narrowly tailored measures that further compelling governmental
interests."69 Thus, strict scrutiny comprises two inquiries of
equal valence: the "compelling interest" inquiry and the "narrow
tailoring" inquiry.70 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
67
U.S. Const., amend. 14, § 1.
68
Adarand Constructors Inc. v. Pena, 115 S. Ct. 2097, 2115 (1995) (emphasis
added).
69
Id.
70
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.").
70
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
dispositive71) 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.72
C. STRICT SCRUTINY
The law school contends that it employs a racially stratified
admissions process to obtain, inter alia, the educational benefits
of a diverse student body. Translated into the constitutional
idiom, the law school insists that achieving student body diversity
in a public graduate school is a compelling governmental interest.
The law school invokes the opinion of Justice Powell in Regents of
71
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).
72
Adarand, 115 S. Ct. at 2115.
71
the University of California v. Bakke73 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."74
This conclusion may well be a defensible extension of recent
Supreme Court precedent, an extension which in time may prove to be
the Court's position. It admittedly has a simplifying appeal as an
easily applied, bright-line rule proscribing any use of race as a
determinant. Be that as it may, this position remains an extension
of the law--one that, in my opinion, is both overly broad and
unnecessary to the disposition of this case. I am therefore unable
to concur in the majority's analysis.
My decision not to embrace the ratio decidendi of the majority
opinion results from three premises: First, if Bakke is to be
declared dead, the Supreme Court, not a three-judge panel of a
circuit court, should make that 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
73
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.
74
Panel Opn. at 25 (emphasis added).
72
framework of achieving diversity in public graduate schools.75
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 andSQit seems to meSQmore principled way
to decide the case before us.76 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
past discrimination is the only compelling interest that can ever
justify racial classification.77 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
75
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.").
76
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)).
77
Panel Opn. at 26-29.
73
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,78 particularly in the realm of higher
education.79
Between the difficulty inherent in applying Bakke80 and the
78
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)).
79
Panel Opn. at 28 n.27, (quoting Wygant 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.”).
80
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.
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.
74
minimal guidance in Adarand,81 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
and less intrusive "narrow tailoring" precedent.82 Thus, for the
purpose of this appeal I assume, without deciding, that diversity
is a compelling interest,83 and proceed to the narrowly tailored
81
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.
82
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.").
83
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
(continued...)
75
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?"84 The present effects rationale having
proven feckless in this case, today’s answer to that first question
is a given: The law school's purpose is diversity. Accordingly, I
perceive the next question to be, "Was the law school's 1992
admissions process, with one TI range for blacks, another for
Mexican Americans, and a third for other races, narrowly tailored
to achieve diversity?" I conclude that it was not. Focusing as it
does on blacks and Mexican Americans only, the law school's 1992
admissions process misconceived the concept of diversity, as did
California's in the view of Justice Powell: Diversity which
furthers a compelling state interest "encompasses a far broader
(...continued)
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 Wygant 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 furthering
that interest.")).
84
United States v. Paradise, 480 U.S. 149, 171 (1987).
76
array of qualifications and characteristics of which racial or
ethnic origin is but a single though important element."85
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.86 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
percentagesSQvirtually indistinguishable from quotas--of
approximately five and ten percent, respectively. Yet blacks and
Mexican Americans are but two among any number of racial or ethnic
groups that could and presumably should contribute to genuine
diversity. By singling out only those two ethnic groups, the
initial stage of the law school's 1992 admissions process ignored
altogether non-Mexican Hispanic Americans, Asian Americans, and
Native Americans, to name but a few.
In this light, the limited racial effects of the law school's
preferential admissions process, targeting exclusively blacks and
85
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.
86
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.
77
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,87 on the question of
diversity I follow the solitary path of narrow tailoring rather
than the primrose path of compelling interest to reach our common
holding.
II
REMEDY
Before concluding, I am compelled to add a few words about the
panel opinion’s “commentary” regarding the remedy to be imposed by
the district court on remand. Without employing the express
87
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.
78
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.88
Essentially, the substance of the quoted portion of the panel
opinion constitutes a de facto injunction — telling the district
court precisely what to tell the law school that it can and can't
do — albeit without the use of the word injunction. To me, if
“it” has feathers, swims, waddles, and quacks like a duck, it is a
duck; and I find such an “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
88
Panel Opn. at 59-60.
79
should not be the subject of appellate speculation.89
The district court denied the plaintiffs injunctive relief,
but only after assigning the burden of proof to the wrong party.90
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. Doyle,91 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
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
89
Hay v. Waldron, 834 F.2d 481, 484 (5th Cir. 1987)(The law is well-settled
that the grant or denial of injunctive relief rests in the sound discretion of
the district court); Lubbock Civ. Lib. Union v. Lubbock Ind. Sch. Dist., 669 F.2d
1038, 1048 (5th Cir. 1982), cert. denied, 459 U.S. 1155 (1983).
90
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.
91
429 U.S. 274, 284 (1977).
80
have failed to bear its burden.
III
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
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 reliefSQincluding injunctive if necessarySQfor 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
81
gloss on the order of remand, I disagree for the reasons I have
stated and therefore concur specially.
82