After discovery and pre-trial motions failed to resolve the dispute, the case was tried, without a jury, in May 1994. Both sides offered evidence concerning the admissions process and how it worked, the reasons for affirmative action, and the effect of affirmative action on the four plaintiffs. Plaintiffs initially took the position that Bakke had been implicitly overruled and that any consideration of race was unconstitutional. When Judge Sam Sparks made clear that he was not inclined to accept that argument, plaintiffs also argued that the two-committee system of 1992 was unconstitutional even under Bakke.
Judge Sparks held that the two-committee system had indeed been unconstitutional. Hopwood v. Texas, 861 F. Supp. 551, 552-53 (W.D. Tex. 1994). On the issue both sides cared about, he held it constitutionally permissible for the Law School to prefer minority applicants. Id. Further, he held that plaintiffs had not shown they would have been admitted to the Law School under a one-committee system with racial preferences. Id. at 581-82. He declared that the two-committee system had been unconstitutional, ordered that plaintiffs be permitted to re-apply under the newly adopted one-committee system without paying a new application fee, and awarded each plaintiff one dollar in nominal damages. Id. at 584-85. Plaintiffs appealed; the Law School did not. On the pertinent issues, the Law School had won a sweeping victory.
On appeal, plaintiffs successfully pursued their argument that any consideration of race would be unconstitutional. The Court of Appeals held that Bakke was no longer the law -- and perhaps had never been the law, because the opinions in the case had been so divided. Hopwood v. Texas, 78 F.3d 932, 944-45 (5th Cir. 1996). It held that the Law School could consider the race of applicants only if that were necessary to remedy discrimination by the Law School. Id. at 952. Diversity of the student body was not a justification; indeed, the court said, pursuit of racial diversity, in and of itself, is irrational, comparing it to blood type. Id. at 945. Additionally, the Law School could not act to alleviate the effect on its applicant pool of past discrimination in elementary, secondary, and undergraduate education. Id. at 951. The effects of such discrimination were too difficult to measure, and the Law School was not responsible for those effects in any event. The Court of Appeals dismissed as irrelevant the state's continued obligation to fully desegregate its institutions of higher education, and it dismissed the desegregation plan negotiated with the Office of Civil Rights as both irrelevant and unconstitutional. Id. at 954. It was unlawful for the Law School to consider race, even as one factor among many. Id. at 946, 962. This time, plaintiffs had won the sweeping victory.
There was more. The holding of the Court of Appeals fundamentally changed the question of whether plaintiffs would have been admitted under a constitutional system. The question in the District Court had been whether plaintiffs would have been admitted if racial preferences had been administered in a one-committee system; now the question would be whether plaintiffs would have been admitted if race had not been considered at all. The Court of Appeals held that the burden of proof on that point would be on the Law School, which must show that plaintiffs would not have been admitted. The Court of Appeals reversed the District Court's judgment permitting the Law School to consider race and remanded the case to the District Court. Id. at 962. The issues remaining for consideration on remand were plaintiffs' claims for admission, for damages, for an injunction ordering future compliance, and for attorneys' fees. Id. at 955-59.
The sweep of the opinion and the importance of the issue made the case seem an obvious candidate for Supreme Court review, and delay threatened serious declines in minority enrollment and even resegregation of the Law School. The Law School promptly filed a petition for certiorari in the Supreme Court, omitting the other possible remedy of asking the entire Court of Appeals to hear the case en banc. Meanwhile, one of the judges of the Court of Appeals requested an en banc vote without waiting to be asked, and over seven dissents, the court decided not to hear the case en banc. Hopwood v. Texas, 84 F.3d 720 (5th Cir. 1996).
The Supreme Court refused to review the case, and two justices took the unusual step of publishing their reasons. Judicial opinions are implemented in a separate document, the judgment. The judgment of the District Court addressed only the administrative details of the long-abandoned 1992 plan; the judgment of the Court of Appeals merely sent the case back to the District Court for further proceedings. Despite the sweeping deterrent effect of the Court of Appeals' opinion, there was no judgment formally ordering the Law School not to consider race in admissions. Reminding the parties that the Supreme Court "reviews judgments, not opinions," the two justices viewed the Law School's petition as a challenge not to any judgment of a lower court, but only to the rationale of the Court of Appeals. Texas v. Hopwood, 518 U.S. 1033, 1034 (1996) (Ginsburg & Souter, JJ.).