Lesage v. State of Texas , 158 F.3d 213 ( 1998 )

Revised October 30, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50454
FRANCOIS DANIEL LESAGE,
Plaintiff-Appellant,
VERSUS
STATE OF TEXAS; UNIVERSITY OF TEXAS SYSTEM;
BERNARD RAPOPORT; THOMAS O. HICKS; MARTHA SMILEY;
LINNET DEILY; DONALD EVANS; ZAN HOLMES, JR.;
LOWELL LEBERMANN; TOM LOEFFLER; ELLEN CLARKE TEMPLE;
UNIVERSITY OF TEXAS AT AUSTIN; ROBERT BERDAHL;
COLLEGE OF EDUCATION; MANUEL JUSTIZ, Dean of the
College of Education, in his official capacity;
FRANK WICKER, Director of Admissions, in his official
capacity; WILLIAM CUNNINGHAM, Chancellor, Chancellor of
the University of Texas System in his official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
October 13, 1998
Before REAVLEY, DeMOSS, and PARKER, Circuit Judges.
DeMOSS, Circuit Judge:
Francois Daniel Lesage applied to enroll in a doctoral program
in counseling psychology at The University of Texas at Austin.
Midway through the University’s process of accepting applicants to
that program, our Court handed down its opinion in Hopwood v.
Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033, 116 S.
Ct. 2581 (1996).
Lesage, an African immigrant of Caucasian descent, was denied
admission. He consequently sued the State of Texas, the University
and several of its subdivisions, and various University officials
in their official capacities. Lesage alleged that the University
impermissibly relied on race as a selection criterion by giving
preferred status to Black and Hispanic applicants. He claimed that
the University’s admissions policy violated the Fourteenth
Amendment of the United States Constitution and 42 U.S.C. §§ 1981,
1983, and 2000d. He sought monetary, declaratory, and injunctive
relief.
The state asserted sovereign immunity for itself, its
agencies, and its officials acting in their official capacity under
the Eleventh Amendment, and at an early stage in the proceedings
the district court dismissed Lesage’s claims to the extent that he
sought monetary relief under §§ 1981 and 1983. Lesage moved for
partial summary judgment on the issue of the state’s liability, and
the state moved for summary judgment based on its theory that
Lesage would have been denied admission regardless of the use of
-2-
racial preferences in admissions. The district court granted the
state’s motion and dismissed the case.
Lesage appeals from the adverse judgment, and we reverse.
I.
The state asserts that Lesage’s claims under Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d, are barred by the
Eleventh Amendment.1 Pursuant to the United States Constitution,
“[t]he Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” U.S. CONST. amend.
1
The state has not filed a notice of appeal from the district
court’s ruling that the state was not immune from Lesage’s Title VI
claims. At first blush it might appear that to dismiss the case
now on sovereign immunity grounds would violate the rule that an
appellate court simply has no authority to grant the state relief
that would expand its rights under the judgment. See FED. R. APP.
P. 4(a) (“[I]n a civil case in which an appeal is permitted by law
as of right from a district court to a court of appeals the notice
of appeal required by Rule 3 must be filed with the clerk of the
district court within 30 days after the date of entry of the
judgment or order appealed from . . . .”); cf. United States v.
Coscarelli, 149 F.3d 342, 343 (5th Cir. 1998) (en banc).
Nevertheless, “the Eleventh Amendment defense sufficiently partakes
of the nature of a jurisdictional bar so that it need not be raised
in the trial court.” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.
Ct. 1347, 1363 (1974); see Texas ex rel. Bd. of Regents of Univ. of
Tex. Sys. v. Walker, 142 F.3d 813, 819 n.7 (5th Cir. 1998),
petition for cert. filed, 67 U.S.L.W. 3156 (U.S. Aug. 26, 1998)
(Nos. 98-348 & 98-350). It would be anomalous for us to require
the state to file a cross-appeal to preserve the immunity issue for
appeal when the state had no obligation to raise the issue in the
district court in the first place.
-3-
XI. Federal jurisdiction is thus negated with respect to covered
suits, including federal suits against a state brought by the
citizens of that state. See Idaho v. Coeur d’Alene Tribe, 521 U.S.
261, ---, 117 S. Ct. 2028, 2033 (1997); Hans v. Louisiana, 134 U.S.
1, 10 S. Ct. 504 (1890). Eleventh Amendment immunity, if
applicable, is shared by a state’s agencies and officers to the
extent that the state is the “real, substantial party in interest.”
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.
Ct. 900, 908 (1984); see Regents of the Univ. of Cal. v. Doe, 519
U.S. 425, ---, 117 S. Ct. 900, 903 (1997); Earles v. State Bd. of
Cert. Pub. Acc’ts, 139 F.3d 1033, 1036 (5th Cir. 1998), petition
for cert. filed, 67 U.S.L.W. 3177 (U.S. Sept. 1, 1998) (No.
98-385).
The district court addressed the state’s original claims of
sovereign immunity with respect to the entire case and granted the
state’s motion to dismiss to the extent that Lesage sought monetary
relief from the state pursuant to 42 U.S.C. §§ 1981 and 1983. The
motion was otherwise denied. The entire case was later dismissed
with prejudice pursuant to the court’s entry of summary judgment in
favor of the state.
Lesage may not bring his claims against the state in federal
court unless the state has waived its immunity or Congress has
abrogated it. Congress has conclusively resolved this issue
against the state’s claims of immunity by providing that “[a] State
-4-
shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a
violation of . . . title VI of the Civil Rights Act of 1964.” 42
U.S.C. § 2000d-7(a)(1).
A.
The state contends that the abrogation of its Eleventh
Amendment immunity under 42 U.S.C. § 2000d-7(a)(1) is invalid. “In
order to determine whether Congress has abrogated the States’
sovereign immunity, we ask two questions: first, whether Congress
has ‘unequivocally expresse[d] its intent to abrogate the
immunity’; and second, whether Congress has acted ‘pursuant to a
valid exercise of power.’” Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 55, 116 S. Ct. 1114, 1123 (1996) (quoting Green v.
Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426 (1985)) (internal
citation omitted, alterations in original). The first element of
this inquiry -- “a clear legislative statement,” id., of
congressional intent to abrogate the states’ immunity -- has
plainly been satisfied by 42 U.S.C. § 2000d-7(a)(1).
The second element -- federal legislative power to accomplish
the abrogation -- is also present. The Constitution forbids any
state law that may “deny to any person within its jurisdiction the
equal protection of the laws.” U.S. CONST. amend. XIV, § 1. This
provision has been construed to mean that in the distribution of
-5-
benefits a state government cannot discriminate among citizens on
the basis of race absent a compelling governmental interest in
doing so, narrowly tailored to accomplish that need. See, e.g.,
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct.
2097, 2113 (1995); City of Richmond v. J.A. Croson Co., 488 U.S.
469, 493-94, 109 S. Ct. 706, 721-22 (1989); Dallas Fire Fighters
Ass’n v. City of Dallas, Tex., 150 F.3d 438, 440-41 (5th Cir.
1998); Messer v. Meno, 130 F.3d 130, 135-36 (5th Cir. 1997),
petition for cert. filed, 67 U.S.L.W. 3259 (U.S. Sept. 23, 1998)
(No. 98-535); Hopwood, 78 F.3d at 940.
Congress has “power to enforce” the substantive provisions of
the Fourteenth Amendment. U.S. CONST. amend. XIV, § 5. While this
is a broad grant of power, it is not unlimited. See City of Boerne
v. Flores, 117 S. Ct. 2157, 2163 (1997) (quoting Oregon v.
Mitchell, 400 U.S. 112, 128, 91 S. Ct. 260, 266 (1970)). Congress
only has the power to “enforce.” This power is not a power to
decree or change the substance of constitutional rights, because if
it were Congress could no longer be said to be enforcing the
provisions of the Fourteenth Amendment. See id. at 2164. The
Supreme Court thus recently announced a new standard for testing
whether Congress has properly exercised Section Five power: “There
must be a congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end.” Id., 117
S. Ct. at 2164. This Court has paraphrased the command in Flores
-6-
to involve consideration of “two primary facets: the extent of the
threatened constitutional violations, and the scope of the steps
provided in the legislation to remedy or prevent such violations.”
Coolbaugh v. Louisiana ex rel. La. Dep’t of Public Safety & Corr.,
136 F.3d 430, 435 (5th Cir. 1998), cert. denied on other grounds,
67 U.S.L.W. 3230 (U.S. Oct. 5, 1998) (No. 97-1941) (petition filed
by Coolbaugh on ADA issues); see also Scott v. University of Miss.,
148 F.3d 493, 501-02 (5th Cir. 1998).
In the case of Title VI, the constitutional concern is racial
discrimination in federally funded public institutions. Racial
discrimination by state actors invokes the prohibition of the Equal
Protection Clause. See U.S. CONST. amend. XIV, § 1. The
legislation enacted by Congress to enforce that prohibition
provides that “[n]o person in the United States shall, on the
ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance.” 42 U.S.C. § 2000d. This law prohibits
precisely that which the Constitution prohibits in virtually all
possible applications.2 It can therefore hardly be argued that the
2
The text of the statute apparently does not account for a
constitutionally permissible race-based distinction. Strict
scrutiny is not “strict in theory, but fatal in fact.” Adarand,
515 U.S. at 237, 115 S. Ct. at 2117 (citing United States v.
Paradise, 480 U.S. 149, 107 S. Ct. 1053 (1987), as an example of a
case in which a narrowly tailored race-based remedy survived
scrutiny).
-7-
statute does not reflect “congruence and proportionality between
the injury to be prevented or remedied and the means adopted to
that end.” That being the case, the original enactment of Title
VI, as well as the subsequent explicit abrogation of state
sovereign immunity to permit federal enforcement of Title VI, were
within the congressional power to enforce the Fourteenth Amendment.
B.
The state suggests that Congress intended to invoke its powers
under the Spending Clause rather than the Fourteenth Amendment when
it enacted Title VI. Assuming arguendo the validity of that
proposition concerning the subjective intent of certain
legislators, it is entirely irrelevant to our inquiry. In
evaluating the constitutionality of a statute, we simply ask if
Congress sufficiently articulated an abrogation of state sovereign
immunity and if it had the power to do so. See Seminole Tribe, 517
U.S. at 55, 116 S. Ct. at 1123. This is an entirely objective
inquiry, for “‘[t]he constitutionality of action taken by Congress
does not depend on recitals of the power which it undertakes to
exercise.’” EEOC v. Wyoming, 460 U.S. 226, 243 n.18, 103 S. Ct.
1054, 1064 n.18 (1983) (quoting Woods v. Miller, 333 U.S. 138, 144,
68 S. Ct. 421, 424 (1948)) (alteration in original); see also
Ussery v. Louisiana ex rel. La. Dep’t of Health & Hosps., 150 F.3d
431, 436 n.2 (5th Cir. 1998) (“Given the objective nature of our
-8-
judicial review, the State’s cursory argument that the statutory
text and legislative history of the 1974 Amendments to the EPA
support a finding that Congress was acting pursuant to the
interstate commerce clause when it made those amendments is
immaterial.”); Wheeling & Lake Erie Ry. Co. v. Public Util. Comm’n,
141 F.3d 88, 92 (3d Cir. 1998) (“[W]hen determining the sources of
Congress’s authority to legislate, we may look beyond the expressed
constitutional basis in a statute’s preamble or legislative
history.”); Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir. 1997);
Bryant v. New Jersey Dep’t of Transp., 1 F. Supp. 2d 426, 432-35
(D.N.J. 1998).
Moreover, it is the statute abrogating immunity, not the
particular substantive provision of the statute, which specifically
concerns us. See Ussery, 150 F.3d at 436 n.2; Timmer v. Michigan
Dep’t of Commerce, 104 F.3d 833, 838 n.7 (6th Cir. 1997). Congress
unquestionably enacted 42 U.S.C. § 2000d-7 with the “intent” to
invoke the Fourteenth Amendment’s congressional enforcement power.
The purpose of the provision, enacted in 1986, was to legislatively
overrule the result in Atascadero State Hospital v. Scanlon, 473
U.S. 234, 105 S. Ct. 3142 (1985). In Atascadero, the Court held
that Section 504 of the Rehabilitation Act of 1973,3 which
prohibited states from discriminating against the disabled in the
3
Pub. L. No. 93-112, § 504, 87 Stat. 355, 394 (codified as
amended at 29 U.S.C. § 794).
-9-
administration of federally funded programs, did not contain a
sufficiently specific statement of abrogation of Eleventh Amendment
immunity to permit suits against states in federal court. See
Atascadero, 473 U.S. at 245-46, 105 S. Ct. at 3149. Congress
instantly recognized the far-reaching implications of this ruling
and enacted, as part of the Rehabilitation Act Amendments of 1986,4
legislation to reverse the result in Atascadero and to prevent the
application of the reasoning in Atascadero to preclude the filing
of suits in federal court against states under similar statutes.5
The Congressional Record contains specific references to exercising
congressional power under Section Five of the Fourteenth Amendment
to accomplish this abrogation of Eleventh Amendment immunity.6 The
4
Pub. L. No. 99-506, § 1003, 100 Stat. 1807, 1845 (codified at
42 U.S.C. § 2000d-7).
5
The coverage of the abrogation of Eleventh Amendment immunity
includes:
title IX of the Education Amendments of 1972 [20
U.S.C. § 1681 et seq.], the Age Discrimination Act
of 1975 [42 U.S.C. § 6101 et seq.], title VI of the
Civil Rights Act of 1964 [42 U.S.C. § 2000d et
seq.], or the provisions of any other Federal
statute prohibiting discrimination by recipients of
Federal financial assistance.
42 U.S.C. § 2000d-7.
6
Senator Cranston, self-proclaimed author of § 504 of the
Rehabilitation Act and the post-Atascadero legislation to abrogate
the states’ Eleventh Amendment immunity from suit under that
provision, spoke on the floor of the Senate concerning the
provision that would ultimately be enacted and codified as 42
U.S.C. § 2000d-7. By unanimous consent, an official report on the
legislation, written by the Justice Department and relied upon by
-10-
state’s argument thus rests on presumptions regarding subjective
intent which are simply incorrect with respect to the relevant
statute.
We thus conclude that the district court correctly ruled when
it declined to dismiss Lesage’s claims under 42 U.S.C. § 2000d on
Eleventh Amendment grounds.
Senator Cranston, was entered into the report at Senator Cranston’s
request. With respect to congressional authority for the proposed
abrogation of Eleventh Amendment immunity, the letter opined that
such an action could be taken pursuant to powers under both the
Spending Clause and the enforcement clause (§ 5) of the Fourteenth
Amendment. With reference to use of the enforcement power, the
letter noted:
The [Atascadero] Court stated that Congress may
provide for suits against the States to enforce the
fourteenth amendment . . . .
* * *
. . . Atascadero provides the blueprint for
Congressional action to waive the eleventh
amendment’s ban to suit in Federal court under the
fourteenth amendment . . . . Thus, to the extent
that the proposed amendment is grounded on
congressional powers under section five of the
fourteenth amendment, S. 1579 makes Congress’
intention ‘unmistakeably clear in the language of
the statute’ to subject States to the jurisdiction
of Federal courts.
132 CONG. REC. S15100 (daily ed. Oct. 3, 1986) (Letter from John R.
Bolton, Assistant Attorney General, U.S. Department of Justice,
Office of Legislative and Intergovernmental Affairs, to Hon. Orrin
Hatch, Chairman, Committee on Labor and Human Resources, U.S.
Senate (July 13, 1986) (citing Atascadero, 473 U.S. at 242, 105 S.
Ct. at 3147, and Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct.
2666 (1976))).
-11-
II.
In his motion for partial summary judgment, Lesage relied
entirely upon the state’s admission that its pre-Hopwood admissions
process “involved explicit assessments of many candidate
attributes, including race.” The state responded in its own motion
for summary judgment and in its reply to Lesage’s motion that race
had nothing to do with the decision to exclude Lesage from the
counseling psychology program. The state’s main two contentions
were that Lesage was eliminated from consideration before race was
taken into account, and that Lesage would not have been offered
admission even if racial preferences had not been employed.
We review a summary judgment de novo. See, e.g., FDIC v.
Shaid, 142 F.3d 260, 261 (5th Cir. 1998) (per curiam). Summary
judgment is appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c). The movant is
obligated to explain the basis for its motion, identifying evidence
in the record which demonstrates the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S. Ct. 2548, 2553 (1986). In order to defeat summary judgment,
the nonmovant must produce affidavits or other evidence
establishing specific facts that show that there is a genuine issue
-12-
for trial. See FED. R. CIV. P. 56(e); Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356
(1986). Drawing all reasonable inferences in favor of the
nonmovant, we conduct the same inquiry as would the district court.
See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106
S. Ct. 2505, 2513 (1986).
A.
The state presented evidence to clarify the admissions
procedure for the counseling psychology program in order to support
its contention that, although race had been considered during the
admissions process, Lesage had been eliminated as a candidate prior
to the use of racial preferences. An affidavit by Dr. Frank
Richardson, an associate professor of counseling psychology and the
chairman of the University’s counseling psychology admissions
committee, was attached to the state’s response. In it, Dr.
Richardson explained the admissions procedure, as it was conducted
for the class entering in the fall of 1996. Approximately 223
applications were received in January and February 1996. The first
cut, when Lesage’s application was eliminated, narrowed the field
to forty qualified applicants, from which approximately fifteen to
eighteen applicants would be offered admission. Applicants who did
not meet the minimum standards for grade point average or Graduate
Record Exam (GRE) score were eliminated at this stage. Marginal
-13-
candidates whose relatively poor academic record or test scores
were not counterbalanced by other factors such as the personal
statement, difficulty of undergraduate curriculum, strength of
recommendations, or extenuating circumstances, were also
eliminated. The affidavit conceded that in choosing students from
the resulting pool of forty candidates, the committee did consider
“the Program’s pedagogical need for a diverse entering class,”
which, to the committee, meant that it would “consider factors such
as gender, age, race, and ethnicity in making [a] final decision as
to the most desirable composition of the class.” Based on this
evidence, the state asserted, in its response to Lesage’s motion
for partial summary judgment, that:
Whatever consideration is given race and ethnicity
in deciding on the ultimate makeup of a counseling
psychology class, it played no role in the review
of Lesage’s application. His application was
rejected early on, when the committee was reviewing
the large pool and narrowing it down to
approximately 40 applicants. Contrary to the two-
track system analyzed in Hopwood, Lesage’s
application was “in the mix” with the rest, and was
not even remotely competitive. Only later on did
the committee add student “diversity” as a
decision-making criterion.
In reply, Lesage provided the district court with evidence that
race also had been taken into account before the “first cut” to
forty students was determined. The evidence was taken from Dr.
Richardson’s deposition testimony regarding the initial reduction
of the applicant pool to forty candidates. Dr. Richardson
testified that:
-14-
[T]here are a couple of other things that are
involved. . . . We’re interested in diverse
cultures and ethnic backgrounds. . . . Obviously,
we’re interested in qualified people of Hispanic
and African American background. Everyone in
psychology and counseling psychology is very
sensitive to those issues and very concerned to get
qualified minority students.7
7
The quoted passage in the text, taken from Lesage’s response
to the state’s reply to his motion for partial summary judgment, is
a heavily edited condensation of Dr. Richardson’s testimony. The
actual, unedited exchange, reads as follows:
Q. [counsel for Lesage] Well, let’s talk about -- And
this is just real basic -- basic criteria you use, and
let’s just kind of start with this paring down process from
220 to 40. What criteria in the folder do you rely on
most?
A. [Dr. Richardson] From the 40 to the 20 or the 200 to
the 40.
Q. From the 220 to the 40 when you’re making the
initial cut. I mean, obviously G.R.E.
A. Well, let me see if I can summarize it
intelligently. From the 220 or so to the 40, there are a
great many folders that even though we try to look at them
thoughtfully for a bit, they’re clearly just completely out
of the consideration, I mean, with very low G.R.E.s or very
low grade point average or very sloppily done or something
but typically G.R.E. and grades. So there is a great many
of them. It’s easy to weed out.
But you know, beyond that there is 100 or so, I guess,
that require some thoughtful consideration. And I really
don’t know exactly how many. You know, there is a set of
conventional criteria, G.R.E.s, grades, letters of
recommendation, educational background that might include
the quality of the school or major. And personal statement
is an important, very important piece of the puzzle. So
there is a set of conventional criteria like that we use,
and people have to be fairly high on most of them, you
know, strong on all but one or two and decent on those.
Q. To move up?
-15-
A. To move up. There is another consideration, and we
try to evaluate by looking at letters on statements and
background. This is written in our literature. And we
want people who give evidence of interest in and aptitude
for and personal qualities for counseling and psychotherapy
work for professional psychology work. Now, that is a
necessary condition but not a sufficient one.
We’re also interested in people who come across pretty
strongly in that regard who have shown some spark of --
some potential for creative, professional or intellectual
work of a special kind. And that includes being interested
in people who want to do things other than just be
counselors and psychotherapists, who are interested in
public service, public policy, what is sometimes called
community psychology work, or who have research or theory
interests of a special kind, professional or academic
creativity and what is the word, originality, those two
things. So we look for that as well as the basic criteria.
Q. Now, have you jumped ahead from cutting from the 220
to the 40 to talking more about how --
A. No.
Q. That is how --
A. I keep expecting you to ask me some more things.
But, you know, there are a couple of other things that are
involved. We’re very interested in people with diverse
interests, backgrounds. We’re interested in diverse
cultures and ethnic backgrounds. We’re interested in
diverse life experiences. We’re interested in getting both
males and females in the program.
I could lump all of those under the category, I guess,
of diversity. We’re keenly interested in getting a diverse
student body. Occasionally, a capable handicapped person
will apply. There was one in recent years.
We have a handful of applications of people from other
countries. That is often very interesting, even Russia or
China. They usually look like very interesting people, but
there are reasons why they probably wouldn’t make it in a
graduate school of this type, but that is not always the
case. We’ve accepted a couple of students in the last
couple of years or two from Iceland, which has an
-16-
Despite this evidence, the district court granted the state’s
summary judgment motion, stating: “[T]he Court finds no evidence
that race was a factor in the decision to deny Plaintiff’s
admission to the counseling psychology program. That is, the Court
finds that Plaintiff cannot present a prima facie case of disparate
treatment or disparate impact discrimination.” In light of the
state of the record and this Court’s ruling in Hopwood, the
district court erred by disposing of Lesage’s claims in this
fashion.
Just as in Hopwood, Lesage’s central claim is that he was
subjected to unconstitutional racial discrimination by the
University’s evaluation of his admissions application. See
Hopwood, 78 F.3d at 938. Dr. Richardson’s deposition testimony
created a fact issue as to whether race was considered by the
admissions committee during the first screening phase, while
Lesage’s application was still being considered. If race was
considered before Lesage’s application was rejected, Lesage has
standing to challenge the admissions policy because his application
may have been affected by the use of racial preferences. In that
interesting program of preparing people very well for
graduate studies overseas.
Obviously, we’re interested in qualified people of
Hispanic and African American background. Everyone in
psychology and counseling psychology is very sensitive to
those issues and very concerned to get qualified minority
students.
-17-
scenario, the University’s consideration of race as an admissions
criterion must be subjected to strict scrutiny analysis. See,
e.g., Adarand, 515 U.S. at 227, 115 S. Ct. at 2113 (“[A]ll racial
classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court under
strict scrutiny.”); Croson, 488 U.S. at 493-94, 109 S. Ct. at
721-22; Dallas Fire Fighters, 150 F.3d at 440-41; Messer, 130 F.3d
at 135-36; Hopwood, 78 F.3d at 938, 940. “Diversity,” the
justification given for the University’s use of racial preferences,
is not a compelling state interest that satisfies the strict
scrutiny standard for the purpose of admissions at a public
university. See Hopwood, 78 F.3d at 944 (“[A]ny consideration of
race or ethnicity . . . for the purpose of achieving a diverse
student body is not a compelling interest under the Fourteenth
Amendment.”); cf. Lutheran Church--Missouri Synod v. FCC, 141 F.3d
344, 354 (D.C. Cir. 1998) (“We do not think diversity can be
elevated to the ‘compelling’ level [in the context of the FCC’s
equal employment opportunity regulations], particularly when the
Court has given every indication of wanting to cut back Metro
Broadcasting [Inc. v. FCC, 497 U.S. 547, 110 S. Ct. 2997(1990)].”), petition for reh’g denied, 1998 WL 611116 (D.C. Cir.
Sept. 15, 1998), petition for reh’g en banc denied, 1998 WL 611112(D.C. Cir. Sept. 15, 1998); Taxman v. Board of Educ., 91 F.3d 1547(3d Cir. 1996) (en banc) (declining to endorse diversity as an
-18-
appropriate justification for affirmative action programs in the
employment context pursuant to Title VII), cert. dismissed, 118 S.
Ct. 595 (1997).
Of course, when reviewing a summary judgment, a court must
draw all reasonable inferences in favor of the nonmovant. See,
e.g., Anderson, 477 U.S. at 255, 106 S. Ct. at 2513. Dr.
Richardson admitted in his deposition that race was used as a
factor during the winnowing down of the pool of applications “from
the 220 to the 40” -- a stage at which Lesage was indisputably
still “in the mix.” At oral argument, we asked counsel for the
state to identify evidence in the record that might prove, despite
Dr. Richardson’s recollection at his deposition, that Lesage’s
application was eliminated from consideration before any other
applicant benefitted from the admissions committee’s racial
preferences. Counsel provided no such example; neither has our
review of the record discovered any such evidence. It logically
follows that the district court erred by resolving a factual
dispute at the summary-judgment stage and declaring that there was
“no evidence that race was a factor in the decision to deny
Plaintiff’s admission to the counseling psychology program.”8
8
While we need not consider any evidence other than Dr.
Richardson’s deposition testimony in order to conclude that the
district court erred by granting summary judgment, we note for the
sake of completeness that the record contains further evidence to
support Lesage’s allegation of race-based discrimination.
Significantly, some Black and Hispanic candidates were extended
offers of admission and admitted to the program, even before the
-19-
Under these circumstances, given the genuine, material factual
dispute as to when the University first used race as a criterion to
choose or exclude candidates to the counseling psychology program
in relation to the point in time at which Lesage was denied
admission, it was error to grant summary judgment in favor of the
state.
B.
The State of Texas contends that despite its use of racial
preferences in the admissions process for the University’s
counseling psychology program, it is nevertheless entitled to
summary judgment because Lesage would not have been admitted to the
program even if race had not been taken into consideration. This
reasoning was supported by affidavits by Dr. Richardson and Dr.
Ricardo Ainslie, both of whom served on the admissions committee
for the counseling psychology program. Because no records relating
to the admissions committee’s evaluations at this stage were
retained, the opinions expressed in these affidavits were based on
a fresh, post-admissions review of the application pool, undertaken
for the purposes of this litigation. These affidavits evaluated
first cut was even made. Lesage did not bring this specific
evidence to the attention of the district court until he filed his
motion for reconsideration of the court’s grant of summary
judgment. Because Dr. Richardson’s deposition testimony, standing
alone, is sufficient to create a factual issue that precluded
summary judgment, we decline to address whether the district court
abused its discretion by refusing to reconsider the entry of
summary judgment in light of this additional evidence.
-20-
and criticized Lesage’s application. Dr. Ainslie also compared
Lesage’s application to twenty-two “much stronger” applications,
all of which, according to Dr. Ainslie, would have earned offers of
admission before Lesage. The district court adopted this reasoning
as an alternative holding supporting its decision to grant summary
judgment in favor of the state. This argument, however, is simply
irrelevant to the pertinent issue on summary judgment, namely,
whether the state violated Lesage’s constitutional rights by
rejecting his application in the course of operating a racially
discriminatory admissions program.
In Hopwood, even though the district court determined the
state had proved that “legitimate, nondiscriminatory grounds
exist[ed] for the law school’s denial of admission to each of the
four plaintiffs and that, in all likelihood, the plaintiffs would
not have been offered admission even under a constitutionally
permissible process,” this did not result in an outright grant of
summary judgment for the state. Hopwood v. Texas, 861 F. Supp.
551, 581 (W.D. Tex. 1994), rev’d on other grounds, 78 F.3d 932 (5th
Cir.), cert. denied, 518 U.S. 1033, 116 S. Ct. 2581 (1996). The
district court first determined liability and then turned to the
competitiveness of the plaintiffs’ applications on the question of
damages. This was the proper ordering of matters before the court.
The possibility that the Hopwood plaintiffs, or Lesage, would not
have been offered admission is relevant only to the quantum of
-21-
21
damages available -- not to the pure question of the state’s
liability, which is the issue on summary judgment.
Assuming, as we must, that the state did indeed employ a
racially discriminatory counseling psychology admissions program as
alleged, those applicants who had not yet been eliminated from
consideration at the time racially preferential criteria were
applied have suffered an implied injury -- even if their
applications ultimately would not have resulted in admission under
a nondiscriminatory admissions regime. See Hopwood, 78 F.3d at
957. “The injury in cases of this kind is that a ‘discriminatory
classification prevent[s] the plaintiff from competing on an equal
footing.’” Adarand, 515 U.S. at 211, 115 S. Ct. at 2105 (internal
citation omitted). Thus, even though the district court may have
correctly predicted that Lesage suffered no direct injury and
therefore incurred no compensatory damages, this scenario does not
foreclose the availability of some other relief to which he may be
entitled. The futility of Lesage’s application was, therefore, an
improper grounds for summary judgment.
III.
For the foregoing reasons, we REVERSE the judgment of the
district court. Because Lesage does not appeal from the denial of
his motion for partial summary judgment, we REMAND for further
proceedings.
g:\tempmail\97-50454.op4 22
g:\tempmail\97-50454.op4 23
REAVLEY, Circuit Judge, specially concurring:
This court’s writing in Hopwood, upon which the instant
judgment is reversed, was inconsistent with the judgment of the
Supreme Court in Regents of the University of California v. Bakke,
438 U.S. 265; 98 S.Ct. 2733 (1978) and was unnecessary to the
holding or judgment of the Hopwood court. This circuit court,
however, considers that Hopwood writing to be binding law. I
concur here in the judgment only.
g:\tempmail\97-50454.op4 24