Diversity and Justice at the Supreme Court
by Frank H. Wu
Page 2

Letter from the Chair, José E. Gaitán
Page 3

Hopwood v. State of Texas: Retreat from the Supreme Court Ruling in Bakke
by Leo J. Jordan
Page 4

Valuing Diversity - A Given?
by Keith Earley
Page 5

Affirmative Action: Define "Qualifications" from Diverse Viewpoints
by Dale F. Rubin
Page 6

1999 Spirit of Excellence Awards
by Charisse R. Lillie
Page 7

1999 Annual Meeting Schedule
Page 8

An open letter to Minority Counsel Program supporters
Page 9

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C heryl Hopwood, Douglas Carvell, Kenneth Elliott, and David Rogers applied for admission to the 1992 entering class at the University of Texas School of Law. All four were white residents of Texas and were rejected. They brought suit against the law school and other university officials claiming violations of the Fourteenth Amendment, as well as other statutes all prohibiting discrimination based on race. Hopwood and others maintained that the law school discriminated against them by favoring less qualified black and Hispanic applicants through the use of a quota system. Their contention was that any preferential treatment of a group based on race violated the Fourteenth Amendment.

In August 1994, the federal district court ruled that the law school’s use of racial preferences was not unconstitutional per se. Instead the court examined the affirmative action plan used by the law school in its admissions procedures. The court applying the strict scrutiny standard required by the Supreme Court in Regents of the University of California v. Bakke held it did not pass constitutional muster. While recognizing that "the remedial nature of the admission process, in which racial classifications were used as a means of overcoming the present effects of past discrimination served a compelling state interest," the district court ultimately found that the law school’s use of separate admissions procedures for minorities and non-minorities was not narrowly tailored to achieve those compelling state interests "because the process prevented any meaningful comparative evaluation among applicants of different races." Thus, the court entered a declaratory judgement that the law school’s 1992 admission procedures violated the Equal Protection Clause of the Fourteenth Amendment. The court also permitted plaintiffs to reapply for admission to the 1995 entering class. Nominal damages of $1 were awarded to each plaintiff.

Despite its constitutional holding, the court nonetheless found the law school had legitimate, nondiscriminatory grounds for denying admission to the four plaintiffs. The court added that, in all likelihood, the plaintiffs would not have been offered admission even under an admission practice that was constitutionally permissible.

artcl3b.jpg (12873 bytes)The rejected applicants appealed the district court’s decision to the Federal Circuit Court of Appeals for the Fifth Circuit. A divided opinion by a three-judge panel of the court reversed the lower court’s decision. The Fifth Circuit held:

1. The law school’s use of racial preferences served no compelling state interest under the Fourteenth Amendment.

2. The law school may not use race as a factor in admission.

The Fifth Circuit remanded the case back to the district court directing reconsideration of two issues. First, the district court was required to reevaluate whether any of the plaintiffs would have been admitted to the law school without admission procedures that take into account the applicant’s race. Second, the court was directed to "revisit" the issue of damages.

Upon petition for rehearing before the court of appeals, requesting en banc consideration by the entire court, the petition was denied without further comment. A strong dissent from the denial of rehearing en banc by the chief judge and six circuit judges was pub l ished. Because the three-judge panel directed the law school not to use race as a factor in the law school’s admissions process, the dissent criticized the panel as purporting to overrule the Supreme Court’s decision in Regents of the University of California v. Bakke. The dissenting judges forcefully argued that the implications of the panel decision were so racial as to "change the face of public educational institutions throughout Texas." The dissent added, "A case of such monumental impact demands the attention of more than a divided panel."

The case was tried again in late March and early April 1997 and the district court found:

1. The law school proved none of the plaintiffs would have been admitted to the law school under a constitutional admission system.

2. But in the event any of the plaintiffs successfully appealed this finding, the court made several alternative factual findings regarding the issue of damages.

The federal district court entered the following judgment:

1. The plaintiffs have judgments against the University of Texas in the amount of $1 each; and

2. The University of Texas law school was permanently enjoined from taking into consideration racial preferences in the admission process.

The ABA Commission on Minorities, as well as the Commission on Women, the Section of Individual Rights and Responsibilities, the Section on Legal Education and Admissions to the Bar, and the Council on Racial and Ethnic Justice, have joined forces in a working group to have the ABA’s voice heard as the case moves forward. The working group anticipates filing an amicus curiae brief in support of the University of Texas law school.

From the viewpoint of the ABA working group, the important issue presented for appeal arises from the final judgment of the federal district court. Federal Judge Sam Sparks of the Western District of Texas set the stage for this appeal—and ABA involvement—by enjoining the University of Texas School of Law from taking into consideration racial preferences in the selection of those individuals to be admitted to law school.

The Fifth Circuit’s decision in Hopwood departed with Supreme Court precedent by holding that the goal of achieving a diverse student body could not be a compelling government interest under the Fourteenth Amendment. Moreover, issuing an injunction proscribing consideration of race in the admissions process appears to be a direct challenge to the Supreme Court’s decision in Regents of the University of California v. Bakke.

The United States Supreme Court in Bakke reversed the decision of the lower courts enjoining the University of California at Davis from ever considering the race of any applicant. Justice Powell, joined by Justices Brennan, White, Marshall and Blackmun, said the lower courts failed to recognize that the state has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. Bakke, 438 U.S. at 320. The use of race by the trial court in Hopwood is inconsistent with Bakke.

Surely, it is the position of the ABA working group that the Hopwood ruling prohibiting the use of race constitutes a radical departure from the Supreme Court ruling in Bakke and cannot be permitted to stand.

Mr. Jordan is a member of the ABA Commission on Opportunities for Minorities in the Profession.

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