IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION


CHERYL J. HOPWOOD, DOUGLAS W.     §
CARVELL, KENNETH R. ELLIOTT,      §
and DAVID A. ROGERS,              §
     Plaintiffs,                  §
                                  §
VS.                               §      NO. A 92 CA 563 SS
                                  §
THE STATE OF TEXAS; UNIVERSITY    §
OF TEXAS BOARD OF REGENTS;        §
BERNARD RAPOPART, ELLEN C.        §
TEMPLE, LOWELL H. LEBERMANN,      §
JR., ROBERT J. CRUIKSHANK,        §
THOMAS O. HICKS, ZAN W.           §
HOLMES, TOM LOEFFLER, MARIO       §
E. RAMIREZ, and MARTHA E.         §
SMILEY, as members of the         §
Board, in their official          §
capacities; UNIVERSITY OF         §
TEXAS AT AUSTIN; ROBERT M.        §
BERDAHL, President of the         §
University of Texas at Austin     §
in his official capacity;         §
UNIVERSITY OF TEXAS SCHOOL OF     §
LAW; MARK G. YUDOF, Dean of       §
the University of Texas           §
School of Law in his official     §
capacity; STANLEY M.              §
JOHANSON, Professor of Law        §
in his official capacity,         §
     Defendants.                  §

MEMORANDUM OPINION


This is the continuing case of four white students who contend they were denied admission to the University of Texas School of Law in 1992 as a result of procedures granting preferences in admission to black and Mexican-American applicants.

I.


On September 29, 1992, the plaintiffs Cheryl J. Hopwood, Douglas W. Carvell, Kenneth R. Elliot, and David A. Rogers filed suit under 42 U.S.C. §§ 1981 and 1983 (West 1994) and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (West 1994) ("Title VI"),[1]

No 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. against the defendants the State of Texas, the University of Texas Board of Regents, the University of Texas, the University of Texas School of Law ("the law school"), and various University of Texas officials in their official capacities.[2] The plaintiffs sought injunctive and declaratory relief, as well as compensatory and punitive damages. The Court held an eight-day bench trial in the case in May 1994.

On August 19, 1994, the Court issued its memorandum opinion in Hopwood v. State of Texas, 861 F. Supp. 551 (W.D. Tex. 1994) ("Hopwood I"). In deference to controlling Supreme Court precedent, the Court declined to declare the law school's use of racial preferences in its admissions system unconstitutional per se, see id. at 553-54, and instead applied strict scrutiny to the law school's admissions system, see id. at 568-69. Relying primarily on Justice Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733 (1978), the Court found that the law school's use of racial preferences for the purpose of achieving a diverse student body served a compelling state interest under the Fourteenth Amendment. See Hopwood I, 861 F. Supp. at 569-571. Additionally, the Court found that the remedial nature of the admissions process, in which racial classifications were used as a means of overcoming the present effects of past race discrimination, served a compelling governmental interest. See id. at 571-73. The Court ultimately concluded, however, that the law school's use of separate admissions procedures for minorities and nonminorities[3] was not narrowly tailored to achieve those compelling interests because the process prevented any meaningful comparative evaluation among applicants of different races. See id. at 573-579. The Court therefore entered declaratory judgment that the law school's 1992 admissions procedures violated the Fourteenth Amendment. See id. at 582.

The Court then considered whether any of the four plaintiffs was denied admission in 1992 as a result of the constitutionally impermissible method in which the law school considered race in its admissions procedures. In determining which party bore the burden of persuasion on that issue, the Court adopted a burden-shifting scheme similar to that used in employment discrimination cases brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (West 1994) ("Title VII"), and placed the ultimate burden of persuasion on the plaintiffs.[4] See id. at 579-80. The Court found that the plaintiffs failed to establish by a preponderance of the evidence that they would have been offered admission to the law school under a constitutional admissions process. See id. at 580-82. The Court therefore declined to award the plaintiffs injunctive relief (that is, an immediate order of admission) or compensatory damages.[5] See id. at 582-83. Furthermore, given the undisputed remedial goals of the admissions program, as well as the fact that the law school adopted the program in a good faith effort to comply with federal guidelines under Title VI, the Court declined to issue an award of punitive damages. See id. at 583. Finally, because the law school had substantially modified its admissions procedures by the end of the trial to provide for individual comparison among minority and nonminority applicants (thereby remedying the infirmity identified by the Court in its opinion), the Court declined to issue any permanent injunctive relief against the law school. See id. at 582.

A three-member panel of the Fifth Circuit Court of Appeals reversed and remanded the Court's decision in part in Hopwood v. State of Texas, 78 F.3d 932 (5th Cir.), cert. denied, -- U.S. --, 116 S. Ct. 2581 (1996) ("Hopwood II").[6] The Fifth Circuit declared that the law school's use of racial preferences served no compelling state interests under the Fourteenth Amendment.[7] See id. at 941-55. The divided Fifth Circuit panel therefore directed the law school not to use race as a factor in admissions, although it declined to order any permanent injunctive relief to that effect. See id. at 958. Furthermore, the Fifth Circuit disagreed with the Court's allocation of the burden of proof on the issue of causation--whether any of the four plaintiffs would have been admitted to the law school under a constitutional system. Using the burden-shifting scheme of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568 (1977), the Fifth Circuit determined the law school bore the burden of proof on that issue because the plaintiffs had successfully established the unconstitutionality of the admissions system. See Hopwood II, 78 F.3d at 955-57.

On remand, the Fifth Circuit directed the Court to reconsider two issues. First, the panel directed the Court to apply the proper burden and to reevaluate whether any of the four plaintiffs would have been admitted to the law school in the absence of admissions procedures which took into account an applicant's race or ethnicity. Second, the Fifth Circuit instructed the Court to "revisit" the issue of damages in the event the law school fails to meet its burden: "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."[8] Id. at 957.

In accordance with the Fifth Circuit's instructions on remand, this case was tried before the Court on March 31 and April 2, 3, and 7, 1997. Having carefully considered the evidence presented at both trials and the arguments and briefing of counsel, the Court finds the law school has proved by a preponderance of the evidence that none of the plaintiffs would have been admitted to the law school under a constitutional admissions system. In the event any of the plaintiffs successfully appeals that decision, the Court makes several alternative factual findings and legal conclusions regarding the issue of damages. Finally, the Court enters its findings of fact and conclusions of law regarding the attorneys' fees to which the plaintiffs are entitled as prevailing parties under 42 U.S.C. § 1988 (West 1994).

II.


The admissions process employed by the law school in 1992 and the plaintiffs' qualifications for admission are summarized here for the convenience of the reader and to provide a context for the opinions of the defendants' expert on causation, Professor Olin Guy Wellborn, III.[9] In 1992, the law school received 4,494 applications for admission to fill approximately 500 available seats.[10] See Hopwood I, 861 F. Supp. at 563; Hopwood II, 78 F.3d at 935 n.2. Given the rather large volume of applications it receives, the law school devised and for several decades has used an administrative procedure by which applicants are categorized according to their Texas Index ("TI") score. An applicant's TI score is calculated by the Law School Data Assembly Service ("LSDAS"). It is a composite number reflecting both the applicant's grade point average ("GPA") and score on the Law School Aptitude Test ("LSAT"), and it is generally considered a rough predictor of one's probability of success in law school. See Hopwood I, 861 F. Supp. at 557 n.9; Hopwood II, 78 F.3d at 935 & n.1. In 1992, the law school placed each applicant, as dictated by his or her TI score, into one of the following three categories: presumptive admit, presumptive deny, and the discretionary zone. See Hopwood I, 861 F. Supp. at 558; Hopwood II, 78 F.3d at 935.

The admissions committee in 1992 comprised nine professors, two assistant deans, and four students. Hopwood I, 861 F. Supp. at 560. Three members of the admissions committee, Professor Stanley Johanson and Assistant Deans Susana Alemán and Laquita Hamilton, formed a subcommittee to review the files of minority applicants.[11] See id. As chair of the admissions committee, Johnson had the responsibility of setting the presumptive admission and presumptive denial lines throughout the admissions process.[12] See id. He set the first of several presumptive admission lines in late January 1992 and began extending offers at that time to ensure that the most desirable applicants received offers as quickly as possible. See id. at 561. Because the law school application deadline was not until February 1, 1992--and thus the quality of the entire applicant pool had not yet been defined--Johanson set this initial presumptive admit line relatively high.[13] See id. at 560-61. Johanson then reviewed the files within the presumptive admission category to determine whether the applicant's TI score was inflated by high grades in a noncompetitive university and/or major, or whether there was some other questionable aspect to the applicant's file. See id. at 561. "Those applications with a high TI reflecting a high LSAT and high grades in a rigorous major at a leading undergraduate institution were admitted by Johanson, who had unilateral authority to admit any applicant in this category without further consultation with the full admissions committee." Hopwood I, 861 F. Supp. at 561. Questionable files (roughly five to ten percent of all presumptive admit files) were placed in the discretionary zone for further review. See Hopwood II, 78 F.3d at 936.

Essentially the same procedure occurred at the other end of the spectrum. Johanson set the initial presumptive denial line, and one or two members of the admissions committee then reviewed all of the applications in this category. See Hopwood I, 861 F. Supp. at 561. Applicants with TI scores that understated their competitive standing relative to the rest of the pool were upgraded to the discretionary zone. See id. Johanson testified at the first trial that he could not recall the number of presumptive deny files that were upgraded in 1992, although generally twenty to forty files were moved to the discretionary zone as a result of this review. See id. The discretionary zone, therefore, comprised "those applicants whose TIs fell between the presumptive denial line and the presumptive admission line, those applicants who Johanson had moved down from the presumptive admission category, and those applicants who reviewers had moved up from the presumptive denial category." Id.

The law school's admissions procedures treated minority applicants differently in two ways. First, the presumptive admissions and denial lines were lower for minorities than they were for nonminorities.[14] By March 1992, the presumptive admission line for resident nonminorities was lowered from 202 to 199, while the presumptive denial line was set at 192. See id. at 561-62. For Mexican-Americans, however, the presumptive admission line was lowered from 196 to 189, and for blacks this line was lowered from 192 to 189. For both minority groups, the presumptive denial line was 179. See id. at 562; Hopwood II, 78 F.3d at 936. Second, minority and nonminority files within their respective discretionary zones were segregated and subjected to different procedures of review. The minority subcommittee was to meet as a group to review and discuss all the minority files. Although the minority subcommittee provided the full admissions committee with summaries of the files they considered to be good candidates, the subcommittee's admissions decisions were virtually final. See Hopwood I, 861 F. Supp. at 562. Nonminority applications, on the other hand, were separated into weighted stacks of thirty files, and each stack was reviewed by a random three-member panel of the admissions committee.[15] See id. Rather than review the piles as a group, each member of the panel conducted an independent and secret screening of the stack of thirty files and voted to offer admission to an average of nine applicants from the stack.[16] See id. Johanson then tallied the number of votes each applicant received within his or her stack of thirty. Applicants receiving two or three votes were offered admission, applicants receiving no votes were immediately denied admission, and applicants receiving one vote were offered a position on the waiting list. See id.

The plaintiffs were each reviewed by a three-member panel in the nonminority discretionary zone screening, and all were considered Texas residents by the admissions committee. Hopwood received an associate's degree in accounting from Montgomery County Community College in 1984, and she earned a bachelor's degree in accounting from California State University-Sacramento in 1988. She graduated with a GPA of 3.80 and had an LSAT score in the 83rd percentile.[17] See Hopwood I, 861 F. Supp. at 564; P-145. Although Hopwood had a TI score of 199 which, by March 1992, placed her just within the presumptive admit line, Johanson concluded her GPA overstated her educational background and therefore downgraded her file to the discretionary zone. See id. at 564. Carvell, Elliot and Rogers each had a TI score of 197. Carvell attended Hendrix College in Conway, Arkansas, where he graduated with a bachelor's degree in political science in 1991. He had a GPA of 3.28 and an average LSAT score in the 76th percentile.[18] See id. at 566-67; P-151. Elliot graduated with a bachelor's degree in accounting from the University of Texas in 1984, where he earned a GPA of 2.98, and he scored in the 95th percentile on the LSAT. Following graduation, he became a certified public accountant ("CPA") and worked for various state agencies in Texas as an auditor or examiner. See id. at 565-66, P-153. Rogers earned an undergraduate degree in professional writing from the University of Houston-Downtown in 1990. In the early to mid-1980s, he attended the University of Texas, where he was placed on academic probation once and dismissed twice for poor scholastic performance. He had a cumulative GPA of 3.13 and an LSAT score in the 94th percentile. Rogers earned a master's degree in professional writing from the University of Southern California in 1992. See Hopwood I, 861 F. Supp. at 567; P-171. By contrast, the median GPA for white students in the 1992 entering class was 3.56, and the median LSAT score was in the 91st percentile. See Hopwood II, 78 F.3d at 936-37 & n.7. For all students (minority and nonminority) in the 1992 entering class, the median GPA was 3.52, while the median LSAT score was in the 89th percentile. See id.

Hopwood and Carvell each received one vote in screening, were offered positions on the waiting list, and were eventually denied admission to the law school in Spring 1992. See Hopwood I, 861 F. Supp. at 564-66. Elliot and Rogers received no votes in screening and were immediately notified of their rejection in April 1992.[19] See id. at 565-67. By the end of the admissions process, the law school had extended offers to 936 resident and nonresident applicants. See id. at 563 n.32. Of the 637 offers extended to Texas residents, 96 went to blacks and Mexican-Americans and 541 went to whites and nonpreferred minorities. See D-519. The plaintiffs were therefore among over 3,500 individuals, including approximately 1,500 Texas residents, who were denied admission to the law school in 1992.

III.

The Fifth Circuit characterizes Mt. Healthy as devising "a test of 'causation' that place[s] the burden of proving no harm on the defendant" when the plaintiff establishes the defendant intended to discriminate or otherwise acted unconstitutionally. See Hopwood II, 78 F.3d at 956. The Court respectfully suggests that the Mt. Healthy framework is inapplicable to this case and the plaintiffs should retain the burden of proof. In Mt. Healthy, an untenured teacher claimed a school board's decision not to rehire him was the result of the comments he had made on a radio show. See Mt. Healthy, 429 U.S. at 281-3, 97 S. Ct. at 573-74. Although the board conceded the comments had influenced its decision not to rehire the teacher, the board asserted the teacher would not have been rehired in any event because of legitimate, nondiscriminatory reasons unrelated to the exercise of his First Amendment rights.

The district court found that the teacher's comments were protected by the First Amendment and that they played a "substantial part" in the board's decision not to rehire him. See id. at 283, 97 S. Ct. at 574. The district court ordered the teacher's reinstatement, which ultimately resulted in his receiving tenure, and the circuit court affirmed the trial court's findings and conclusions. See id. at 283-86, 97 S. Ct. at 574-75. Mt. Healthy was unique in that it presented the Supreme Court with a "mixed motives" case in which the governmental entity admitted it considered both legitimate and illegitimate factors in reaching its employment decision, in contrast to the typical "pretext" case in which the only issue is whether any improper or discriminatory motive exists.[20]

Therefore, the question before the Supreme Court was whether the plaintiff had necessarily shown a constitutional violation justifying remedial action simply by establishing that the protected conduct was a "substantial" factor in the board's decision not to rehire him. See id. at 285, 97 S. Ct. at 575. The Supreme Court answered that question in the negative. The Supreme Court reasoned that allowing a plaintiff to recover under those circumstances might "place the employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing," because it would require holding the defendant liable even though the same employment decision would have been made for entirely legitimate reasons. Id. In response to this dilemma, the Supreme Court devised a burden-shifting framework in which the plaintiff initially bears the burden of proving that the constitutionally protected conduct was a "substantial" or "motivating" factor behind the employer's discriminatory action. See id. at 287, 97 S. Ct. at 576; Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270 n.21, 97 S. Ct. 555, 566 n.21 (1977) (characterizing the plaintiff's burden as a "required threshold showing"). Only after the plaintiff makes this showing does the burden then shift to the defendant to prove that the violation was "largely harmless." See Hopwood II, 78 F.3d at 957. Therefore, unlike the McDonnell Douglas framework used in Title VII pretext cases (in which the burden of persuasion remains on the plaintiff at all times), the burden of persuasion shifts to the defendant in mixed-motives cases once it is either conceded by the defendant or determined by the fact finder that the employer considered impermissible factors in reaching its adverse employment decision. Mt. Healthy therefore confirms the rather uncontroversial proposition that plaintiffs are required to prove injury-in-fact in order to collect monetary damages. See Mt. Healthy, 429 U.S. at 285, 97 S. Ct. at 575.

Unlike the adverse employment action at issue in Mt. Healthy, there are two types of injury in a case involving the unlawful use of racial preferences. As the Court recognized in Hopwood I, 861 F. Supp. at 583, there is an intangible injury resulting from the government's discriminatory classification which prevents a plaintiff from "competing on an equal footing" with other applicants.[21]See Hopwood II, 78 F.3d at 957 (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 211, 115 S. Ct. 2097, 2105 (1995)). All nonminorities who applied to the law school in 1992, including nonminority students who were admitted, suffered that kind of injury. A second, tangible type of injury--an injury-in-fact--occurs when a plaintiff is actually denied some right or benefit, such as admission to the law school, as a direct result of the use of unlawful racial preferences. In applying the Mt. Healthy framework to this case, the Fifth Circuit affirmed this Court's conclusion that the law school's 1992 admissions procedures were constitutionally flawed. With virtually no explanation, however, the Fifth Circuit then asserted that, as a result of that determination alone, the defendants bear the burden of proving that the constitutional violation against the four plaintiffs was "largely harmless." See Hopwood II, 78 F.3d at 957 ("In this case, there is no question that a constitutional violation occurred (as the district court found) and that the plaintiffs were harmed thereby."). The Fifth Circuit's analysis in this regard was incomplete at best; at worst, it was a misapplication of the Mt. Healthy framework because it presupposed that race was a substantial or motivating factor in every nonminority applicant's denial of admission to the law school in 1992, regardless of the applicant's qualifications to enter law school. As a matter of common sense and rudimentary mathematics, that cannot be the case.

There is no basis in fact or logic to suggest, as the Fifth Circuit apparently does in Hopwood II, that all resident nonminority applicants who were denied admission to the law school in 1992 were denied admission substantially--or, for that matter, even in small part--because of race. Even assuming all 96 offers of admission made to resident minorities in 1992 were available, there would still remain approximately 1,400 resident applicants in 1992 (the overwhelming majority of whom, presumably, were nonminorities) who would have been denied admission without regard to race. At most, therefore, only 7% of resident nonminority applicants were affected by the law school's use of racial preferences.[22] Suppose this case had been brought by the least qualified nonminority who applied to the law school in 1992. Under Adarand, that applicant clearly would have standing to challenge the affirmative action program. See Adarand, 515 U.S. at 212, 115 S. Ct. at 2105. However, an applicant who has no conceivable chance of admission cannot possibly show that race was a substantial or motivating factor in the law school's decision to deny him or her admission. The Mt. Healthy burden-shifting framework is never implicated. In contrast, Hopwood II always shifts the burden to the defendant--and would shift the burden even in the example of the candidate with no chance of admission--once the plaintiff establishes the unconstitutionality of the affirmative action program. But being subjected to admissions procedures that take into account racial preferences does not, in and of itself, establish or even imply that the applicant's race was a substantial or motivating factor in his or her denial. Importantly, in this case the law school, unlike the University of California in Bakke, never conceded that the plaintiffs would have been admitted in the absence of an affirmative action program, and this Court specifically found the plaintiffs failed to carry their burden of persuasion on that point. See Hopwood I, 861 F. Supp. at 581-82.

The harm in the Fifth Circuit's interpretation of Mt. Healthy is not readily apparent in the Court's example because it would be quite easy for the law school in that instance to establish the applicant's non-admission. The harm occurs, for example, when the suit is brought by a candidate who has some chance of admission under a race-neutral procedure but who would not be able to prove that he or she would have been admitted by a preponderance of the evidence. The Fifth Circuit decision potentially gives those candidates a windfall by placing the ultimate burden of proof on the defendant: close calls must always be decided in favor of the plaintiff. And yet the function and purpose of the Mt. Healthy burden-shifting scheme are just the opposite--to ferret out instances of discrimination and to ensure that the plaintiff is not put in a better position than he or she ordinarily would have occupied. Indeed, the Fifth Circuit recognized in Hopwood II that Mt. Healthy was intended to give the defendant "a second chance of prevailing by showing that the violation was largely harmless." See Hopwood II, 78 F.3d at 957. Instead of giving the defendant a second chance of prevailing, the Fifth Circuit gives the defendant little chance of prevailing when the applicant is an extremely close call. The Fifth Circuit decision essentially allows a plaintiff to recover monetary damages without ever having to establish any injury-in-fact.[23]

Mt. Healthy does not apply to this case. One might be able to make a normative argument that the defendants should bear the ultimate burden of persuasion once the plaintiffs establish the unconstitutionality of the law school's affirmative action program, but the legal argument cannot be justified. This is a classic pretext case in which the trier of fact--in this case, the Court--must determine why each of the four plaintiffs was denied admission to the law school. If the plaintiffs were denied admission because of their race, they should have to prove it, as plaintiffs must in every other pretext case brought in federal and state court. The Court therefore respectfully but strenuously objects to this portion of the Fifth Circuit opinion. The Court is cognizant, however, of the panel's instructions on remand, and it will faithfully and responsibly execute them.

A.


The defendants presented one expert on causation, Olin Guy Wellborn, a tenured professor who has taught at the law school since 1974.[24] Wellborn has served on the law school admissions committee for over 15 years and was a member of the admissions committee in 1992. In accordance with the Fifth Circuit decision, Wellborn analyzed whether the plaintiffs would have been admitted to the law school under a constitutional admissions system. See Hopwood II, 78 F.3d at 957 & n. 55. In preparation for his expert reports, Wellborn testified he carefully examined the LSDAS sheets of approximately 450 applicants, including the LSDAS sheets of the 96 minorities admitted in 1992. Wellborn, vol. 1 at 45. He then narrowed the field to approximately 200 of the "most promising" minority and nonminority candidates, as reflected by their LSDAS sheets, and he reviewed those application files in their entirety. Id. Wellborn prepared two expert reports, employing a different methodology in each one. See D-519 and D-520. In both reports he concluded that none of the plaintiffs would have been admitted in a race-blind admissions procedure. See id.

     (1) Wellborn's First Report

In his first report, Wellborn examined the 1992 admissions process and then considered how that process would have been modified in a manner that would yield the same total number of admissions on a race-blind basis. Wellborn first compared the relation between an applicant's TI score and the statistical rate of admittance in the actual 1992 admissions process. Wellborn detected the emergence of a pattern in which candidates with TI scores of 203 or higher were virtually all admitted and candidates with TI scores of 184 or lower were virtually all denied. A discretionary zone candidate's statistical chance of admittance generally increased by an additional 10 or 20 percentage points with each successive TI score.[25] Hopwood's TI score of 199 corresponded to an acceptance rate of 89%, and a TI score of 197 (the TI score belonging to Carvell, Elliot, and Rogers) corresponded to an acceptance rate of 59%. This pattern of percentages reflected a typical, yearly phenomenon.[26] See Wellborn, vol. 1 at 145.

Because the actual 1992 presumptive admission and denial lines were lower for minorities than for nonminorities, Wellborn had to adjust the overall presumptive admission and denial lines in creating a hypothetical admissions system.[27] Wellborn therefore lowered the overall presumptive admit and deny lines to 198 and 190, respectively, and retained the 1992 average of nine votes per pile of thirty files. Wellborn assumed the law school would extend the same number of resident offers that it had extended in 1992.[28] See D-520; Wellborn, vol. 1 at 237. Using this methodology, Wellborn predicted a pattern of percentages in admissions almost identical to the 1992 admissions percentages, except that each percentage of admission would be "notched down" by one TI score throughout. In other words, Wellborn predicted that virtually all candidates with a TI score of 202 and above would have been admitted; 90% of applicants with TI scores ranging from 198 to 201 would have been admitted; 70% of applicants with TI scores of 197 would have been admitted, and so on down the Texas Index.[29] Wellborn then reexamined the application files of the four plaintiffs, the admitted minority resident applicants, and the denied nonminority resident applicants at their respective TI scores to determine who would have received the additional offers as dictated by the predetermined percentages of admission.

Wellborn predicted that one additional offer of admission would be made at Hopwood's TI score. Of the ten admitted minority and denied nonminority resident applicants at the 199 TI level, Wellborn concluded that seven applicants, including the four minority applicants, were "clearly stronger" than Hopwood and that the remaining two applicants were "comparable" to Hopwood. As in the actual admissions process in 1992, Wellborn determined that Hopwood would most likely have been placed in the discretionary zone by Professor Johanson and that she would not have received the two or three votes necessary to be admitted. At the 197 TI score of Carvell, Elliot, and Rogers, Wellborn estimated that the law school would have extended seven additional offers.[30] Wellborn identified the seven applicants he predicted would have been offered admission over Carvell, Elliot, and Rogers, and he also rated those seven applicants superior to Hopwood. Wellborn then identified four additional applicants who, although not as strong as the original seven, were still stronger than Carvell, Elliot, and Rogers. Indeed, Wellborn indicated that Rogers and Elliot were "among the very weakest" at that index and that Carvell, although a stronger applicant than Elliot and Rogers, does not compare favorably because of his relatively low combined LSAT score in the 76th percentile.[31] See D-519.

     (2) Wellborn's Supplemental Report

Using his first report as a hypothesis for how the law school would have extended offers of admission in a race-blind procedure, Wellborn undertook the more difficult task in his supplemental report of specifically identifying (1) the admitted resident minorities in 1992 who probably would have been denied admission in a race-blind procedure, and (2) the denied resident nonminority applicants who most likely would have been admitted in their place. Wellborn made several basic assumptions about a hypothetical race-blind admissions procedure. First, as he had in his first report, Wellborn projected that the presumptive admission line would be set at 198 and that the presumptive denial line would be set at 190. He then assumed that all of the nonminority residents who had been admitted in 1992 would have been admitted in a hypothetical race-blind admissions procedure. Therefore, Wellborn only examined the application files of the 96 admitted minority applicants and the approximately 450 LSDAS reports (which he then narrowed down to about 200 application files) of the denied residents (minority and nonminority) who had TI scores above 190.[32] See D-520; Wellborn, vol. 1 at 45. In examining each application, Wellborn primarily considered the applicant's college record and LSAT score, which he weighed "about equally,"[33] and he applied identical standards to minority and nonminority candidates. See D-520. In evaluating the college record, he considered the caliber of the school, as manifested by the LSAT college mean,[34] and the applicant's major, rank in class, and college transcript. Wellborn also considered an applicant's personal statement, letters of recommendation, and other factors and materials such as the applicant's age and background; the relevance and importance of these factors varied, of course, with each file.

In selecting a particular applicant for his supplemental report, Wellborn attempted to predict those candidates who he believed would emerge as probable admittees. He did not, in other words, only select candidates for whom he necessarily would have voted, nor did he attempt to predict how a particular admissions committee member would have voted. See Wellborn, vol. 1 at 231-33, 249-51. Wellborn explained his approach as follows:



Wellborn, vol. 1 at 250.

The law school made 96 offers of admission to resident minorities in 1992. Wellborn evaluated all 96 minority admittees and concluded that 19 would have been admitted without regard to race. Wellborn named this group of applicants "Group A." Wellborn then selected 2 additional resident minority admittees who, though weaker than the original 19, would still have a better chance of admission than any of the plaintiffs in a color-blind procedure ("Group B"). Subtracting the Group A applicants from the actual number of resident minority admittees in 1992 leaves 77 seats remaining for nonminority resident applicants who were denied in 1992. There were 398 nonminority residents with TI scores of 190 or above who were denied admission in 1992; therefore, fewer than 20% of candidates in Wellborn's hypothetical discretionary zone would have been offered admission. Of those 398 files, Wellborn selected 78 resident nonminority applicants[35] who he believed probably would have been offered admission in a race-blind procedure ("Group C"). As with the minority applicants reflected in Group B, Wellborn also selected an additional 20 resident nonminority applicants who he believed had a reasonable chance of admission as alternatives to the Group C candidates ("Group D").[36] Wellborn testified that none of the plaintiffs merited inclusion in either Group C or D. See Wellborn, vol. 1 at 115.

The plaintiffs have several objections to the methodology Wellborn used in his supplemental report.[37] First, the plaintiffs argue the random admissions procedure employed in 1992 effectively prevents the defendants from carrying their burden of proving that the plaintiffs would not have received offers of admission in a race-neutral procedure. Second, Hopwood and Carvell argue that, in contravention of the Fifth Circuit decision, Wellborn made no attempt to reconstruct the actual admissions process used in 1992 to determine which nonminority residents would have been offered admission under a constitutional system, nor did he devise a methodology revolving around either the piles of thirty or the waiting list actually generated in 1992. Third, the plaintiffs criticize Wellborn for making the assumption that all nonminority residents who were given offers of admission in 1992 would nevertheless have been admitted under a constitutional system. Fourth, Hopwood and Carvell argue that Wellborn's testimony is insufficient to carry the defendants' burden as a matter of law because Wellborn relied on "mere statistical likelihoods" in concluding that the four plaintiffs would have been denied admission under a race-neutral system. The Court considers each objection seriatim.

As this Court recognized in Hopwood I, reconstructing the actual 1992 admissions procedure is a conceptually difficult, if not "virtually impossible," task: "[T]he difficulty does not stem from the unconstitutional aspects of the procedure alone but from the random shuffle of files into stacks of thirty, each stack reviewed by different subcommittees of three."[38]

Hopwood I, 861 F. Supp. at 582 n.86. Although the stacks were weighted as closely as possible with the same number of high to low TI scores, see Wellborn, vol. 1 at 41, an applicant's chances for admission may in some instances have depended upon the personal tastes of the reviewers who evaluated the applicant's file and whether the applicant was placed in a stack with an unusually strong or weak pool of applicants. To the extent that the plaintiffs argue that the admissions procedure used in 1992 was inherently unfair due to the random composition of the piles of thirty and the subjectivity of each reviewer, the point is very well taken. It goes without saying, however, that this unfairness does not implicate a constitutional defect with the law school's admissions procedures. To the extent that the plaintiffs argue that the law school can never meet its burden for that reason, the point is not well taken. A particular applicant's admission to the law school in 1992 was not the result of a random and unpredictable process--after all, applicants were not admitted by a flip of a coin. And it is nonsense to suggest that all nonminorities who were denied admission in 1992 would have an equal chance of admission under a race-blind procedure. With or without the law school's ill-advised piles-of-thirty approach, even a superficial comparison of the four plaintiffs, for instance, reveals the varying quality of students who applied to the law school in 1992 and confirms that concrete distinctions can be made among those applicants--if not to a virtual certainty, then at least by a preponderance of the evidence.

The plaintiffs' argument that Wellborn should have reproduced an admissions procedure by which application files were randomly placed into piles of thirty and then reviewed by randomly formed screening committees is also without merit. Wellborn is a very talented law professor, but he cannot turn back the hands of time, nor does the Fifth Circuit decision require him to do so. Rather, the inquiry posed by the Fifth Circuit is whether any of the four plaintiffs would have been admitted under "a constitutional admissions system." See Hopwood II, 78 F.3d at 957 (emphasis added). The Court, therefore, does not read the Fifth Circuit opinion as instructing the defendants to replicate exactly the 1992 admissions procedure or to use the 1992 piles-of-thirty approach. First, how would one go about reproducing a random process? By the very definition of the word random, it cannot be done. The only logical, reasonable, and fair way to determine who would have received offers of admission under a constitutional system is to compare the application files of all of the admitted minorities and the denied nonminorities, and that is precisely the methodology Wellborn used in his supplemental report.[39] Furthermore, using the 1992 piles of thirty would perpetuate the unconstitutional aspects of the 1992 admissions procedure. The admissions procedure employed in 1992 was fraught with constitutional error precisely because the original piles of thirty did not include any minority applicants. Those piles would never exist under a constitutional admissions system, and as a result, it would make no sense to use them now to determine whether any of the plaintiffs would have gained admission to the law school in 1992. The Court finds it more than a little baffling that the plaintiffs assert Wellborn should have utilized, as the very premise of his methodology, the admissions system found unconstitutional as a result of this lawsuit.

Likewise, using the 1992 waiting list to determine who would have been admitted under a constitutional system is equally problematic. In support of this method, Hopwood and Carvell argue that the one vote they actually received in 1992 placing them on the waiting list is more probative than any subsequent attempt to reconstruct a hypothetical race-blind admissions process. While this method certainly has some intuitive appeal, it is not the best way to determine which nonminority applicants would have gained admission in 1992 in a race-blind procedure. First, there were two waiting lists in 1992, each of which was segregated by race. See Hopwood I, 861 F. Supp. at 574 n.68. Second, this methodology suffers from the same defect identified with respect to the original piles of thirty: the waiting list was generated by an unconstitutional system in which minority and nonminority applicants were reviewed separately. Therefore, the waiting list created in 1992 would not exist under a constitutional admissions system. Third, due to the change in the LSAT scoring system, 1992 was somewhat of an anomaly in that the law school had not extended a sufficient number of offers through its normal procedures. As a result, the admissions committee had to select an unusually high number of candidates--42 out of 123 applicants--from the waiting list.[40] See Wellborn, vol. 1 at 52-53, 144. Wellborn testified that the waiting list had been pretty well "picked over" and, consequently, the remaining eighty-one applicants on the waiting list had, in a sense, a third "no" vote denying them admission.[41] See Wellborn, vol. 1 at 52-54. Fourth, using the waiting list to determine who would have gained admission is, in the Court's opinion, self-defeating for all of the plaintiffs: the methodology would unfairly exclude Elliot and Rogers from consideration because they received no votes in screening, and the one vote Carvell and Hopwood each received is not necessarily probative of any increased likelihood that they would have been admitted in a race-blind procedure. Carvell's vote was from a student member of the admissions committee, not a faculty member, see Hopwood I, 861 F. Supp. at 566, and Hopwood's vote was essentially a "sympathy vote" from Hamilton, then the Assistant Dean of Admissions for the law school.[42]

The plaintiffs also argue that Wellborn arbitrarily and impermissibly "picks and chooses" among actual events in 1992 in that he (1) gave no weight to applicants who were placed on the waiting list by virtue of their one vote and (2) assumed that all nonminority applicants who were admitted in 1992 would have been admitted in a race-blind procedure. The plaintiffs urge the Court to disregard Wellborn's supplemental report entirely because, they argue, he did not reconsider all offers of admission in hypothesizing a constitutional admissions system. Not only is this argument unpersuasive, it mischaracterizes Wellborn's methodology. The plaintiffs acknowledge it was more difficult for nonminorities to achieve offers of admission in 1992; indeed, the plaintiffs brought this lawsuit for that very reason. The fact that those nonminority applicants received offers of admission under the University's admissions program is very strong evidence to support the inference that they would emerge as probable admittees under a race-neutral system. See Wellborn, vol. 1 at 42. Wellborn did not, therefore, arbitrarily pick and choose among real events in 1992; rather, he drew logical inferences based upon the admissions procedure in force in 1992. The fact that an applicant was presumptively admitted, received two or three votes in the screening process, or was an applicant chosen from the waiting list in 1992 correlates with a strong likelihood that the applicant would have been admitted in a race-blind admissions procedure; for the reasons indicated above, however, there is not a sufficiently strong correlation between receiving a position on the waiting list and an increased probability of admittance.[43] Therefore, the distinction between nonminority admittees and waiting list candidates is warranted. Furthermore, it is conceptually difficult to see the harm in the inference--to the extent that these individuals were offered admission over the four plaintiffs, it certainly was not the result of any unlawful or invidious discrimination.

Finally, the Court rejects the plaintiffs' argument that Wellborn relied on "mere statistical likelihoods" in concluding that the four plaintiffs would have been denied admission. In support of this argument, the plaintiffs cite Smith v. Rapid Transit, Inc., 317 Mass. 469, 470, 58 N.E.2d 754, 755 (1945), a case in which the Massachusetts Supreme Court held it is insufficient as a matter of law to prove a proposition merely by showing the mathematical chances favor the veracity of the proposition. This argument might have been valid had Wellborn conclusorily asserted, for instance, that Carvell would not have been admitted to the law school based solely on the fact that his "true" TI score of 191 or 192 correlated to a 5% to 15% probability of admission in 1992. But Wellborn did not use mathematical probabilities to prove Carvell would not have been admitted to the law school under a constitutional system. Instead, Wellborn evaluated Carvell's application according to certain enumerated and, to a large extent, quantifiable criteria, compared his application to the applications of 450 other denied nonminorities, and concluded that Carvell was less qualified than the 119 applicants chosen for inclusion in his supplemental report. See D-520. Based on the applications in evidence, as well as his knowledge of the law school's admissions procedures, it was Wellborn's considered opinion that it was more likely than not that Carvell would not have been admitted to the law school under a race-neutral admissions system. Indeed, Wellborn reached the same conclusion with respect to the other three plaintiffs despite the fact that their relatively high TI scores correlated with a probability of admittance of greater than 50%. This objection is nugatory.

The Court therefore concludes that the methodology Wellborn employed in his supplemental report is sound. Wellborn did not attempt to handicap the chances of admission of each and every applicant who was denied admission to the law school in 1992. Rather, Wellborn presented evidence of 119 applicants who were better candidates for the study of law than the plaintiffs and who were therefore more likely to receive offers of admission under a constitutional system. In hypothesizing a constitutional admissions system, Wellborn made reasonable projections regarding the lowering of the presumptive admission and denial lines and the probable number of offers to be extended. His assumption that all nonminority resident admittees in 1992 would be admitted under a race-neutral system is not only reasonable but supported by the record. Finally, Wellborn identified reasonable criteria to evaluate the application files, and as discussed below, he applied the criteria in a fair, consistent, and nondiscriminatory way.

C.


Before Wellborn's conclusions are explored and explained, the Court offers the following disclaimer. This opinion provides more information than anyone ever needed or wanted to know about the qualifications required for admission to the law school. The Court once again undertook a painstaking review of the application files of hundreds of students, and, unfortunately, this opinion reflects the tedious and arduous process that it was. One principle the Court emphasized in its first opinion bears repeating here:

See Hopwood I, 861 F. Supp. at 581 (citing Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993)).

The plaintiffs openly accused Wellborn of manipulating certain criteria and of disingenuously using the subjectivity of the admissions process to rig the desired outcome of this case. The Court emphatically finds that allegation to be false. The fact that subjective criteria necessarily informed Wellborn's analysis does not render Wellborn's opinions arbitrary or untenable. Part of Wellborn's everyday responsibilities as a law professor is to make subjective assessments of students, whether on a law school exam or as a member of the admissions committee, and the Court will not cavalierly disregard the conclusions Wellborn reached in his supplemental report simply because they involve subjective judgments. Furthermore, Wellborn credibly supported the applicants he selected, and the faculty members who originally reviewed the plaintiffs' files in 1992 universally support Wellborn's judgment that the four plaintiffs were weak candidates for admission to the law school in 1992. See Johanson Declaration D-332; Declaration of Laquita Hamilton D-333; Sharlot Declaration D-334; Declaration of Mark Gergen D-335; Goode Declaration D-336.

Before delving into the specific weaknesses of each plaintiff's application, the Court makes the following observations and generalizations. First, TI scores are, to a certain degree, inherently unreliable because they do not weigh the student's GPA by major or quality of school. For example, Hopwood's GPA of 3.80, with her high number of hours from community colleges and subsequent transfer to a relatively weak undergraduate institution, does not compare favorably with a student having a lower GPA from, say, Rice, Trinity, the University of Texas, or Texas A&M. Wellborn's evaluation of Carvell's chances for admission also illustrates the artificial nature of the Texas Index. Although Carvell's "true" TI score was 191 or 192, Wellborn rated Carvell "roughly comparable" to Hopwood, "slightly better" than Elliot, and "significantly better" than Rogers. See Wellborn, vol. 1 at 117. Large institutions such as the University of Texas use TI scores to make general distinctions among the many students who apply. But a TI score is only as good as its two components--the student's GPA and LSAT score. They are not hard-and-fast numbers determining who is admitted, nor should they be treated as such, because to do so would unfairly reward students who attended weak undergraduate institutions or who took less-than-challenging curricula. In light of the fact that TI scores are not weighted by quality of school or difficulty of major, it is not surprising that the plaintiffs' relatively high TI scores significantly overstate their chances for admission to the law school and that Wellborn's selections ran the gamut from high to low TIs.

Second, the law school admissions process is incredibly competitive. See Hopwood II, 78 F.3d at 935. In fact, the Court was astonished to discover the number of applicants with drastically better credentials than the four plaintiffs who were denied admission in 1992. For instance, of the 78 nonminority Group C applicants Wellborn selected, 31 were in the top quarter of their classes at competitive universities such as the University of Texas and Texas A&M and had LSAT scores in the 80th percentile and above. See D-543, 550-51, 555, 557, 560-63, 565, 568, 570, 572-73, 576-77, 580, 582, 584-85, 587-89, 591-93, 599, 609, 611, 613, and 619. Over one third of Wellborn's Group C selections had a college class rank in the 80th percentile or higher; unlike Hopwood, however, these applicants attended competitive schools and, except for one applicant, had few, if any, hours from a community or junior college. See D-543, 551, 556, 558-60, 562, 564-68, 572, 574-76, 578-84, 609, and 611. Applicants similar to Carvell who had a class rank below the 70th percentile virtually all came from colleges with an LSAT mean of 34 or better such as Duke, Cornell, Rice, Tufts, and the University of Texas, and their LSAT scores in all cases were better--and in most cases were considerably better--than Carvell's combined LSAT score in the 76th percentile. See D-542, 544-45, 547-49, 552, 554, 569, 594-98, 602-03, 614-15, and 618. Moreover, of the 97 Group A and C applicants Wellborn predicted would have been probable admittees under a constitutional system, only 2 graduated in the bottom half of their classes, as did Elliot. One applicant earned an LSAT score in the 99th percentile and graduated in the 31st percentile of the class at the University of California at Berkeley, a 36 LSAT mean college. See D-524. The other applicant attended the University of Texas, majored in a rigorous liberal arts honors program called Plan II, was in the 48th percentile of the class, and earned an LSAT score in the 96th percentile.[44] See D-529. Wellborn did not select a single applicant who, like Rogers, had been dismissed from a four-year university or who had graduated from a university with an LSAT college mean as low as that of the University of Houston-Downtown.

Third, the applicants Wellborn selected for inclusion in Groups A, B, C, and D have superior credentials to the four plaintiffs even when one looks exclusively at a combination of objective factors. After making his 119 selections, Wellborn discovered that his selections tended to satisfy the following four criteria: each applicant (1) had an LSAT score in the 80th percentile or higher; (2) had a rank in class in his or her university of at least the 60th percentile; (3) graduated from a college with an LSAT mean of at least thirty; and (4) had no more than one year in a community or junior college. None of the plaintiffs satisfies all four criteria, while the vast majority of Wellborn's selections do. Moreover, applicants who did not comply with all four criteria counterbalanced that weakness with a specific strength. For instance, five applicants in Group C have LSAT scores in the 78th percentile, and three applicants in Group A and one applicant in Group D have LSAT scores in the 74th percentile. Across the board, however, these applicants had exceptionally strong college records at high quality institutions.[45] Likewise, applicants with low class ranks offset that weakness with strong LSAT scores coupled with very competitive universities and/or particularly rigorous majors such as engineering.[46]

Fourth, the inherently subjective nature of the admissions process does not, as the plaintiffs contend, provide a reason to believe that distinctions cannot be made among different applicants. Of course, reasonable minds can and do differ on the quality of particular institutions or courses of study. For instance, whether accounting is a more rigorous major than political science, economics, or English is, to the Court's chagrin, an issue of raging debate among the parties in this case. In the Court's opinion, all four courses of study provide a good background for the study of law, and the Court, like Wellborn, tended to focus more on the overall quality of the applicant's undergraduate institution and curriculum in evaluating the application files. And, the plaintiff's protestations to the contrary, Wellborn's opinion regarding the quality of certain universities is not entirely subjective. He supported his assessment of each institution with an objective criterion, the LSAT college mean.[47] Cf. P-414 (discretionary zone screening instructions stating that "[t]he LSAT college mean should be used as a general indicator of the strength of the undergraduate institutions' student body" and indicating that reviewers should "'watch out' for inflated GPA's due to community or junior college grades"). Even without such quantifiable data supporting his assessments, the Court is confident Wellborn can fairly evaluate the quality of colleges and universities around the nation given his twenty-three years as a law professor and fifteen years on the admissions committee. In addition, Hopwood, Carvell, and Rogers do not appear to object to Wellborn's use of the LSAT college mean as a legitimate means of distinguishing among universities or, significantly, to the resulting inference Wellborn draws that the applicant's GPA is inflated. Instead, they argue that Wellborn exaggerates the importance of this criterion. The Court finds that argument unpersuasive. One of Wellborn's constant themes throughout his testimony was the notion that the applicant be exposed to a "rigorous testing ground" to prepare him or her for the study of law at an elite law school. See, e.g., Wellborn, vol. 1 at 84. The evidence establishes an applicant's undergraduate institution can be of paramount importance in determining admission, particularly when the student attended a very weak school.

On the other hand, Hopwood and Carvell also criticize Wellborn for failing to give greater weight to or for unevenly evaluating subjective and nonacademic factors such as post-graduate work experience, good personal statements, and improvement in grades over time.[48] First, some of these factors, such as improvement in grades and working through school, are "very common," see Wellborn, vol. 1 at 68, and/or are generally not given much weight, see Goode Declaration, D-336.[49] Second, although these kinds of subjective factors tended to support Wellborn's assessment of a particular applicant, see Wellborn, vol. 1 at 249, they did not appear to impact Wellborn's selections significantly except in one unusual case.[50] See D-538. Indeed, Wellborn testified that, with respect to marginal candidates in particular, members of the admissions committee tend to focus primarily on an applicant's balanced and consistent college performance and LSAT:

Wellborn, vol. 1 at 87-88.

Part of the plaintiffs' strategy throughout the remand trial has been to find the files of a small handful of 1992 admittees who the law school faculty members opined were as qualified, or in a few instances, perhaps less qualified for admission than the plaintiffs.[51] This evidence does not persuade the Court to disregard the conclusions Wellborn reached in his expert report or the assessments made by faculty members who originally reviewed the plaintiffs' files in 1992. The fact that a small number of admittees[52] had credentials similar to or worse than the plaintiffs does not lead one to the conclusion that the plaintiffs would have been admitted in a race-neutral process. At most, this evidence proves that the plaintiffs had some chance of admission, however slim, a proposition the law school has conceded all along.[53] See Wellborn, vol. 1 at 115. But having "some" chance of admission does not correlate to having a reasonable chance, which is the inquiry required by the burden of proof in this case. Moreover, the plaintiffs' argument rests on a fallacious premise. The plaintiffs have identified the lowest common denominator and, after determining that the plaintiffs meet or exceed that standard, have concluded that the plaintiffs would therefore have a reasonable chance of admission (or, conversely, that the defendants cannot prove that the plaintiffs do not have a reasonable chance of admission). The comparison to be drawn, however, is not among individual applicants but among the entire applicant pool. It simply does not follow that anyone on a par with the least qualified admittee would have a reasonable chance of admission, and it certainly does not reflect the way in which the law school selects its entering classes. Frankly, the Court draws quite the opposite inference--the fact that so few applicants comparable to the plaintiffs were actually admitted in 1992 is evidence that the plaintiffs probably would not have been offered admission in a constitutional process.

Finally, each of the plaintiffs has one or more significant weaknesses in his or her application that are not counterbalanced by a specific strength. Hopwood earned 70 of her undergraduate hours at community colleges. See Johanson Declaration D-332 (indicating that community colleges tend to be "non-competitive institutions with academically weak student bodies and faculties"); Declaration of Elizabeth Chambliss, D-338 (indicating that less than 1% of resident nonminorities admitted in 1992 had more than 70 hours of undergraduate education at a community college or junior college). Hopwood required 6 years to complete her associate's degree, resulting in an average of 10 credit hours per year. See P-145 (LSDAS record); 1994 trial transcript, Johanson, vol. 5 at 15 (stating that Hopwood earned her GPA on "a fairly slow track"). She subsequently obtained a bachelor's degree from a university that is uncompetitive with the universities attended by the vast majority of students who are admitted to the law school. See Chambliss Declaration, D-338 (indicating that less than 2% of resident nonminorities admitted in 1992 graduated from schools with college LSAT mean scores of 28 or below).

Wellborn testified that Hopwood's LSAT score was acceptable for a marginal candidate. See Wellborn, vol. 1 at 67. Likewise, Hopwood's non-academic strengths (her age, the fact that she was the mother of a handicapped child, had worked her way through college, and later became a CPA) merit some "preferential consideration." See Sharlot Declaration D-334. However, according to Wellborn and the admissions committee members who reviewed Hopwood's application in 1992, these positive attributes ultimately do not outweigh the negative aspects of her application, the most important factor of which is the weakness of her undergraduate education. See Wellborn, vol. 1 at 67-68; Johanson Declaration D-332 ("Her transcript shows not only that she attended weak schools, but that the bulk of her education was in technical 'how-to' courses rather than academic courses requiring analytic skills. . . . Hopwood is simply not well-prepared academically for Law School."); Hamilton Declaration D-333 (stating that Hopwood's undergraduate record "reflects little analytic preparation for law school"); Sharlot Declaration (concluding that Hopwood's file "is very weak in comparison with the overwhelming credentials of so many of our applicants").[54]

As the Court noted in Hopwood I, there is little else to Hopwood's file. She provided no letters of recommendation, no personal statement, and the handwritten application is among the least impressive in appearance of all of the files examined by the Court.[55] See Hopwood I, 861 F. Supp. at 581; Johanson Declaration D-332 ("It is also striking to see no letters of recommendation, particularly for an older applicant who has been out of school a while."). Wellborn summed up her application as follows: Wellborn, vol. 1 at 68.

Carvell's "true" TI score of 191 or 192 placed him with the group of applicants who were presumptively denied admission in 1992. Only approximately 5% of candidates with TI scores of 191 and 15% of candidates with TI scores of 192 were admitted to the law school in 1992; therefore, it is not surprising that Carvell was denied admission, as he was among an overwhelming majority of applicants with the same TI score who were not admitted. Although Carvell's personal statement was "well-written," see Wellborn, vol. 1 at 127, Wellborn testified that it did not compensate for the overall weakness of his application. Both Carvell's GPA of 3.28 and LSAT score in the 76th percentile were significantly below the 1992 overall GPA median of 3.52 and overall LSAT median in the 89th percentile. See Hopwood I, 861 F. Supp. at 563 n.32; Hopwood II, 78 F.3d at 937 n.7; see also Sharlot Declaration D-334 ("The most striking feature [of his file] is his undergraduate GPA at a school with an extremely low mean LSAT score . . . . I am also struck by the fact that this relatively unimpressive performance was by a graduate of what is reputedly one of the best public high schools in the state [Highland Park High School in Dallas, Texas]."); Gergen Declaration D-335 (characterizing Carvell as "an easy no vote" and indicating that his GPA was weak "even at a school that I don't suspect is very demanding"); Goode Declaration D-336 ("Mr. Carvell's transcript reveals a mediocre academic record from a mediocre school . . . . If Mr. Carvell could not finish in the top two-fifths of his college class, what chance is there that he would perform well in a much more competitive environment?").

Carvell provided two faculty and two professional letters of recommendation, which one of his 1992 faculty reviewers described as "strikingly weak." See Goode Declaration D-336. At the remand trial, Wellborn described one of the faculty letters as "not very strong" and "vague." See Wellborn, vol. 1 at 74. The other faculty letter by all accounts is downright negative, characterizing Carvell's classroom performance as disappointing, mediocre, and uneven. See P-151; Gergen Declaration D-335 ("I also cannot help but be impressed by a rare honest letter of recommendation intimating that Mr. Carvell is either lazy or unfocused."); Goode Declaration D-336 ("It is a letter that first damns with faint praise and then damns without faint praise. In this day of inflated grades and recommendations, I would definitely take notice of such a tepid assessment of Mr. Carvell's performance as an undergraduate."). In addition, Carvell was denied admission to Vanderbilt Law School, a school which was generally considered inferior to the University of Texas in terms of national reputation. Carvell was also denied admission to the University of Texas Graduate School of Business, which is less competitive than the law school in terms of admissions, as well as Vanderbilt Business School. See Johanson Declaration D-332; Carvell, vol. 4 at 112.

Elliot's weakness, according to Wellborn, was his lack of "belts and suspenders," that is, his "consistently weak undergraduate record." See Wellborn, vol. 1 at 82; Johanson Declaration D-332 ("[I]t is preposterous to suggest that the . . . challenged affirmative action program was the cause of his [denial] . . . . Elliot is simply a weak candidate."). Wellborn testified that this type of "disparity" candidate--an applicant with a high LSAT score and low GPA, or vice versa--is occasionally admitted, but only when the scores are high enough to place the individual in the presumptive admit zone. See Wellborn, vol. 1 at 88. Under those circumstances, Wellborn testified, "there is a reason to take risks on [such] candidates." Wellborn, vol. 1 at 88. Elliot did not provide any faculty letters of recommendation,[56] leaving the committee members with no information about his college record except his "rather unimpressive 40th percentile class rank." See Wellborn, vol. 1 at 81-82. Even Elliot himself acknowledged his weak college record in his personal statement: "I was an average student, studying when I needed to, partying more than I should, and not managing my time efficiently. . . . [My GPA] is not of a caliber expected by the University of Texas School of Law." P-153. Furthermore, Elliot was denied admission to Baylor Law School, a school which is less competitive in terms of admission standards and, importantly, one that did not operate a significant affirmative action program in 1992. See Johanson Declaration D-332.

One of the issues the Court decided in the first trial was whether Elliot had standing to sue the law school. Following Elliot's rejection by the law school in April 1992, Elliot's father sent a letter to Dean Yudof complaining that the law school had rejected his son's application because of the law school's "mandatory minority and women quotas."[57] See P-165 (copy of the letter sent by Elliot's father). It is undisputed that Elliot's application was thereafter placed under reconsideration. Hamilton testified that the law school offered Elliot admission in August 1992, shortly before classes were to begin. The law school asserted at the first trial that Elliot lacked the standing to sue because he declined his offer of admission. See Hopwood I, 861 F. Supp. at 565-66. On remand, the Fifth Circuit instructed the Court to reconsider its "contradictory" findings in Hopwood I that (1) Elliot was not notified of his admission to the law school, and (2) Elliot would not have received an offer of admission even under a constitutional system. See Hopwood II, 78 F.3d at 957 n.57.

As the Court indicated in Hopwood I, Hamilton was the only law school official to testify that Elliot was extended an offer of admission. Unlike other applicants who were admitted late in the process, there was no documentation in Elliot's file to substantiate Hamilton's claims, and Elliot testified at the first trial that he was unaware he had been offered either a place on the waiting list or admission to the law school. See Hopwood I, 861 F. Supp. at 565-66. Indeed, Johanson testified at the first trial that "it was 'quite unusual' for someone to be reconsidered and placed on the waiting list without [his] awareness of the decision." See id. at 566 & n.44; 1994 trial transcript, Johanson, vol. 5 at 19. Furthermore, the Court found several discrepancies in Hamilton's trial testimony and affidavit, which, in addition to the troubling lack of documentation, "weigh[ed] in Elliot's favor" in terms of determining whether Elliot had standing to sue the law school. See id. at 566. The Court therefore found in Hopwood I that no offer of admission had been communicated to Elliot, that is, that no offer of admission had been made.[58] Moreover, Elliot's application was only placed under reconsideration because of the letter sent by Elliot's father. In a race-neutral world, the letter would not have received the special treatment that it did in 1992, and Elliot's application would not have been reconsidered. See Wellborn, vol. 1 at 80-81.

Wellborn testified that Rogers's extremely weak college record prevented his admission to the law school despite his relatively high LSAT score. Rogers earned a bachelor's degree in professional writing, a non-standard major, from the University of Houston-Downtown, a college with one of the lowest LSAT means Wellborn testified he has ever seen.[59] See Wellborn, vol. 1 at 83. Rogers's cumulative GPA of 3.13 was significantly below the overall 1992 GPA median of 3.52. Although Rogers also received a master's degree in professional writing from the University of Southern California in 1992, one of the law school admissions committee members who reviewed his file in 1992 described Rogers's performance there as "decidedly unimpressive." See Gergen Declaration D-335. Prior to graduating from the University of Houston-Downtown, Rogers attended the University of Texas, where he was placed on scholastic probation once and flunked out twice over a period of three and a half years.[60] Wellborn concluded that Rogers was "clearly" the weakest of all of the applicants with a TI score of 197. Wellborn, vol. 1 at 82. And, Rogers's assertions that he was a "turnaround" candidate to the contrary, Wellborn testified:

Wellborn, vol. 1 at 84. In addition, Rogers provided no letters of recommendation and his answers to the questions on the application form were brief and relatively uninformative. See P-171. Given Rogers's disastrous three and a half years as an undergraduate at the University of Texas and his subsequent failure to distinguish himself academically, the Court is convinced beyond any doubt that Rogers would never be admitted to the law school under any circumstances.

The Court regrets having to discuss publicly and in such great detail the specific weaknesses in each of the plaintiffs' applications. It goes without saying that their applications do not reflect the sum of their existence as students or individuals. And even though the Court finds the plaintiffs were not denied admission to the law school as a result of the unlawful use of racial preferences, the Court once again acknowledges "the gravity of the noneconomic injury to persons denied equal treatment." See Hopwood I, 861 F. Supp. at 583. On a final note, being denied admission to the University of Texas School of Law should not be the defining moment in any of these plaintiffs' lives. At the risk of sounding trite, there are much greater tragedies in life. Each year the law school denies admission to many bright, qualified, and deserving individuals simply because there are not enough spaces available in each entering class. The plaintiffs should not let their denial letters from 1992--or this lawsuit--continue to determine the course of their lives or prevent them from becoming successful lawyers if that is a goal they still wish to pursue.

IV.


The Court makes the following alternative findings of fact and conclusions of law regarding each of the plaintiffs' damages to ensure there is no third trial and for the benefit of the circuit court. It should be emphasized, however, that the Court made the following finding in the first trial: "[H]ad the plaintiffs been entitled to damages, none of them established monetary damages as required under the law and rules of this circuit" because the evidence presented merely "consisted of each plaintiff's testimony and speculation about the value of a law degree." Hopwood I, 861 F. Supp. at 583. It is beyond the intellectual skills of this Court to comprehend why the plaintiffs have been given a second trial to present evidence regarding damages when they utterly failed to present competent evidence on damages at the first trial.[61] Nevertheless, the Fifth Circuit has instructed the Court to consider new evidence on damages, including damages allegedly accrued since May 1994. See Hopwood II, 78 F.3d at 957 ("[T]he law school's inability to establish the plaintiff's non-admission . . . opens a panoply of potential relief, depending in part upon what course that plaintiff's career has taken since trial in mid-1994.")[62]

Each of the plaintiffs, with varying degrees of enthusiasm, has requested on order from this Court directing his or her admission to the law school.[63] See Hopwood, vol. 2 at 177; Rogers, vol. 2 at 86; Elliot, vol. 3 at 268. To the extent the Fifth Circuit concludes the plaintiffs were denied admission as a result of the law school's unconstitutional admissions procedures, an injunction ordering the law school to admit Hopwood, Elliot, and Rogers would be the most appropriate and equitable remedy the Court could fashion. The remaining issues, therefore, are (1) whether Hopwood, Elliot, and Rogers have proved any economic damages for lost earnings in their second trial; (2) whether Carvell has established any economic damages; and (3) whether Hopwood and Carvell have established any damages for mental anguish.[64] The plaintiffs must prove their damages by a preponderance of the evidence, and damages which are too speculative, remote, or conjectural cannot be awarded. Collectively, the plaintiffs request over five million dollars in compensatory damages, three million dollars of which is sought for emotional injuries. This figure is exponentially higher than the requests for damages made at the May 1994 trial. See 1994 trial transcript, T. Smith, vol. 26 at 40 (counsel for plaintiffs explaining to the Court in closing arguments that the plaintiffs' damages "are not great").[65]

Hopwood, Elliot, and Rogers request damages for loss of future income resulting from the delay in their legal education. The defendants contend these so-called "front pay" damages are not available in nonemployment cases, in part because they are not foreseeable by educational institutions.[66] They argue that the law school, in rejecting thousands of applicants each year, does not foresee that denied applicants will forego their law school plans entirely but merely that they will have to attend law school elsewhere. While the foreseeability of a plaintiff's injury is irrelevant in the context of intentional torts,[67] the argument raises two related points. The first point relates to the remote and speculative nature of the plaintiffs' injuries. The Court emphatically rejects the notion that the defendants' actions prevented Hopwood, Elliot, and Rogers from becoming lawyers. At most, the law school prevented the plaintiffs from obtaining a law degree from the University of Texas. Many rejected applicants--Carvell, for instance--successfully attend other law schools. The second point pertains to a plaintiff's ability to prove front pay damages in a Title VI case. As a practical matter, front pay damages may simply be too speculative or attenuated given the injury in this case--the denial of a seat in law school. Hopwood, Elliot, and Rogers have the burden of establishing they would have successfully graduated from the University of Texas and attained full-time employment as lawyers. To the extent this case is remanded for damages, the Fifth Circuit implicitly rejected the argument that front pay damages are always improper under Title VI or too speculative as a matter of law. But in determining whether a front pay award is appropriate in this case, the Court must grapple with the inherently speculative nature of the plaintiffs' damages-- particularly when, as in the case of Hopwood and Carvell, the requests for damages extend forty years into the future. With these two thoughts in mind, the Court now turns to each plaintiff's request for damages.

A.


Hopwood contends she suffered economic damages in the amount of $1,360,000, which she claims is the projected career earnings differential between an accountant, her current profession, and an attorney. See P-477. Hopwood additionally seeks $1,500,000 in emotional distress damages she claims resulted from her denial of admission to the law school. See P-459.

     (1) Damages for Loss of Future Income

Hopwood is not entitled to any monetary damages for the alleged loss of future income as an attorney. The Court fails to find from a preponderance of the evidence that Hopwood would have completed her law degree by January 1996: she would not have graduated from law school due to a series of personal tragedies occurring from 1992 to 1996, the time period during which she would have been attending law school. Hopwood contemplated limited enrollment at the law school before she applied for admission in 1992. In a letter attached to her application to the law school, Hopwood sought information regarding reduced participation so that she could continue to care for her severely handicapped daughter Tara while attending law school. See Hopwood, vol. 1 at 132-33. Hopwood testified at trial that Tara "required a substantial amount of energy and time, and had a large number of doctors appointments and hospital visits [and] surgeries." See Hopwood, vol. 2 at 239. Furthermore, Hopwood's husband was in the military and traveled extensively, see Hopwood, vol. 2 at 239, during which time Hopwood was Tara's primary caretaker. In addition, Hopwood was living in San Antonio, Texas at the time and would have been commuting to the law school seventy miles each way for three years.

Hopwood became pregnant with her second daughter Erica in August 1992, immediately before the start of the law school Fall semester. See Hopwood, vol. 2 at 221. During what would have been the end of Hopwood's first year in law school, Erica was born. Erica passed away on May 18, 1993, the day following her birth. See Hopwood, vol. 2 at 221. Hopwood continued as Tara's primary caretaker and began experiencing marital difficulties due to the stress and depression related to the impending death of Tara and to the demands Hopwood placed on her husband to move away from Texas. See Hopwood, vol. 2 at 170-71, 222-23. In June 1995, Hopwood and her husband separated, presumably leaving Hopwood as Tara's sole caretaker. On November 23, 1995, Tara passed away. Hopwood, vol. 2 at 176. In February 1996, Hopwood relocated from San Antonio, Texas to Columbia, Maryland, and her husband moved to Korea. See Hopwood, vol. 2 at 222-23.

Hopwood's limited employment during this time reflects the toll these events took on her professional life. Hopwood was unemployed from June 1991 to January 1993. See Hopwood, vol. 2 at 229. From January 1993 to May 1995, Hopwood worked on a part-time basis as a CPA for a sole proprietorship in San Antonio; although she worked full-time during tax season, she was able to do so only because she frequently worked out of her home. See Hopwood, vol. 2 at 230-31, 240. In anticipation of her move to Maryland, Hopwood was not employed from May 1995 to February 1996. See Hopwood, vol. 2 at 232. From February 1996 to May 1996, Hopwood worked as an accountant for a temporary agency, and for most of the remainder of the year she was unemployed. In January 1997, Hopwood received her first full-time employment as a CPA since mid-1991. See Hopwood, vol. 2 at 228, 233-34. Hopwood testified that she could have worked full time as a CPA during these years, but she choose not to do so in part because she knew she had a limited amount of time with her daughter Tara. See Hopwood, vol. 2 at 240.

The Court is not suggesting that women with families or severely handicapped children are incapable of successfully pursuing a law degree or that individuals who suffer tremendous personal tragedies lack the will or ability to accomplish their goals. However, in this case the facts are clear: Hopwood was facing many serious obstacles, as well as enormous time constraints, that would have undermined her ability to earn a law degree during the 1992 to 1996 time frame. It would have been virtually impossible for anyone--female or male--to complete a law degree traveling 150 miles per school day to a highly competitive environment such as the University of Texas while undergoing similar strains in his or her personal life.[68] Supporting the Court's finding that Hopwood would not have graduated from law school is her own testimony. See Hopwood, vol. 2 at 172 (testifying that "Tara died unexpectedly . . . I didn't feel I was mentally or emotionally ready to handle what I know is a very difficult coarse [sic] load in the law program"); Hopwood, vol. 2 at 175-76 (testifying that she has had a "sporadic work history" since Tara's death). Hopwood's previous academic performance supports the Court's conclusion as well. It took Hopwood eight years (instead of four) to earn her undergraduate degree because difficult financial circumstances forced her to spend much of her time working. In addition, although Hopwood repeatedly refers to earning a law degree as a lifelong dream, she has not demonstrated her commitment to that goal by seeking admission to any law school following her rejection from the University of Texas in 1992. See Hopwood, vol. 2 at 172.

Even assuming Hopwood would have completed her law degree, the evidence she proffered to prove economic damages did not reasonably predict any loss in earnings she may have suffered as a result of her denial of admission to the law school. Hopwood's first expert witness regarding her economic damages was economist Wayne E. Ruhter, Ph.D. Ruhter performed two analyses, "Analysis I" and "Analysis III," to determine the career earnings differential between attorneys and accountants. See P-477. In Analysis I, Ruhter compared attorney salaries in the private sector in Texas and the mid-Atlantic region with accountant salaries in Philadelphia.[69] See P-477, Exhibit I, Tab 3, Analysis 1-Table 3. Ruhter assumes Hopwood would progress from associate to partnership level in both career paths. In Analysis III, he utilized 1990 Census data, which did not reflect any particular career path or geographic location, to determine the difference in career earnings between female attorneys and female accountants. See P-477, Exhibit III, Tab 3, Analysis 3-Table 3. In both Analysis I and III, Ruhter assumed Hopwood would have graduated from law school, passed the bar exam, attained full-time employment by January 1996, and continued working until she reached age 75 in the year 2037. Subtracting the costs of attending law school, Ruhter concluded the present value of Hopwood's economic damages to be $424,604 in Analysis I and between $400,364 and $416,876 in Analysis III. See Ruhter, vol. 2 at 258, 265-66. Finally, Ruhter concluded in Analysis II that Hopwood could not have mitigated her damages by enrolling in law school in 1997.[70] See Ruhter, vol. 2 at 272.

In the Court's opinion, Ruhter's expert report was riddled with so many untenable premises, logical inconsistencies, and unreliable and inappropriate sources that it cannot support an award of economic damages. By Ruhter's own admission, his expert report is merely "an evaluation of two career paths" that examines the potential career earnings that are "available" to Hopwood as an attorney and an accountant. Ruhter, vol. 2 at 253, vol. 3 at 48, 53. Ruhter unequivocally stated that he did not specifically attempt to "forecast" Hopwood's losses. Ruhter, vol. 3 at 71. Furthermore, prior to preparing his expert report, Ruhter did not interview Hopwood or her current employer or obtain enough information about Hopwood to predict her future earnings capacity to any reasonable degree of certainty. See Ruhter, vol. 3 at 45, 48-49. It is from this initial, misguided premise that all other errors in his report flow. Some, but by no means all, of the more glaring problems are described below.

First consider Analysis I. The accountant career path does not reasonably predict Hopwood's future earnings. Ruhter uses salary information from Philadelphia to predict future earnings (even for 1997) instead of reasonably predicting earnings from her current employment in Columbia, Maryland. See Ruhter, vol. 3 at 53. Similarly, the attorney career path is implausibly optimistic, resulting in wildly inflated future earnings. Ruhter assumes Hopwood would (1) become a partner (2) in eight years (3) in a private law firm (4) in a large city in Texas or the mid-Atlantic region. That particular career path is one of the most lucrative a lawyer can take and is extremely difficult and rare. See D-513, Report of Stephen Mims; Ruhter, vol. 3 at 48-49 (recognizing that salaries for private law firm practice are generally higher than for government, corporate, or public interest practice); Mims, vol. 3 at 236 (stating that approximately less than 9% of University of Texas law graduates from the class of 1987 are partners at large law firms by the year 1996). Furthermore, because empirical information related to partnership buy-ins was unavailable, those costs are not reflected in Analysis I.[71] See Ruhter, vol. 2 at 268-69. The Court also questions the use of the David J. White Survey as an appropriate source to project the growth rate of attorney salaries. See D-684, Tab 17 (indicating the survey does not ensure that the same law firms respond to the survey each year it is given).

The most compelling reason to discount Analysis I, however, is its logical inconsistency. Hopwood graduated with an accounting degree in 1988 and earned her CPA license in 1991. See Hopwood, vol. 2 at 140-41. Ruhter does not begin to measure Hopwood's earnings capacity as an accountant, however, until 1997. Prior to 1997, Ruhter uses Hopwood's actual earnings, which, due to her personal circumstances, were low. See P-483. Had Ruhter properly measured Hopwood's earnings capacity as a CPA starting in 1992, his own methodology reflects that she would have earned more money over her lifetime by continuing to work as an accountant as opposed to enrolling in law school in 1992. See D-508, Report of James R. Vinson, Ph.D., Table I (indicating that Hopwood's career earnings as a CPA would have exceeded her attorney career earnings by $31,412); see also Ruhter, vol. 2 at 271 (acknowledging that there is an opportunity cost associated with a delay in education). If, as Ruhter testified, Analysis I was intended to be a hypothetical comparison of the lifetime earnings available to Hopwood as an accountant and as a lawyer, the analysis should have accounted for Hopwood's ability to earn as an accountant since the time she earned her degree in 1988 or, at the very latest, since she obtained her CPA license in 1991.

The chief problem with Analysis III is the unreliability and inappropriateness of the Census data which serves as the source for Ruhter's conclusions. The salary information reflected in the data is self-reported by employees. Self-reporting does not, in and of itself, necessarily render the data inaccurate, but in this case there are other indicia of unreliability. First, some of the data is implausible on its face. For instance, the Census includes salary information on individuals with less than a high school education who claim to be lawyers. See P-477, Exhibit III, Tab 11. Second, the Census significantly undervalues Hopwood's future earnings potential as an accountant because the data pertaining to accountant salaries includes information for bookkeepers and accountants who, unlike Hopwood, have not obtained a CPA license. See Ruhter, vol 3 at 44-45, 94-95. Unrelated to the problem of self-reporting is the fact that salary information is categorized by age and, consequently, years of experience. While the average age of a female law graduate is twenty-six, Hopwood would have been thirty-four had she graduated from the law school in 1995. See Ruhter, vol. 2 at 266. Ruhter overstates Hopwood's earnings potential as a lawyer because the Census data he uses in Analysis III compares Hopwood to females who, as a result of their additional eight years of experience, would undoubtedly have higher earnings than Hopwood. See P-477, Exhibit III, Tab 11. Ruhter belatedly recognized this problem and performed Alternative Analysis III, in which he replaces the Census data related to lawyer salaries for the years 1995 to 2000 with data from the David J. White Survey. This approach is perhaps even more flawed because it improperly compares two sources of data for attorney salaries (five years of data from the David J. White Survey and thirty-five years of data from the Census) and only one source of data for accountant salaries (forty years of data from the Census). As Ruhter himself acknowledged, as a general rule it is inappropriate to use different sources of information in a comparative study because doing so can create a bias in the results. See Ruhter, vol. 3 at 56.

The remaining $900,000 Hopwood claims in economic damages is based on the testimony of Bradford W. Hildebrandt. Hildebrandt is chairman of Hildebrandt, Inc., a management consultant and placement firm related to the legal profession. See D-501 (Hildebrandt's Report). Hildebrandt is not an economist and did not perform an independent study of Hopwood's economic losses. See Hildebrandt, vol. 3 at 106. Instead, he reviewed the accuracy of the attorney compensation figures in the private sector as reflected in Ruhter's Analysis I. Hildebrandt testified that Ruhter's figures, which project an average annual partner salary of $219,699, undervalue partnership compensation for University of Texas graduates by approximately $100,000 per year. See Hildebrandt, vol. 3 at 107. The Court rejects Hildebrandt's testimony for two reasons. First, Hildebrandt's testimony was wholly dependent upon the accuracy of Ruhter's Analysis I, which the Court has already found unpersuasive. Second, his testimony was inapposite to Hopwood's case. It is sheer speculation whether Hopwood would have completed law school, much less whether she would have had an academic record sufficient to result in her recruitment by a private law firm, whether she would have remained at that law firm for eight years, and whether she would have been selected as a partner in that law firm. In short, Hopwood has failed to establish by a preponderance of the evidence that she has suffered the economic damages alleged as a result of being denied admission to the law school.

     (2) Mental Anguish Damages

Neither the Supreme Court nor the Fifth Circuit has specifically held that mental anguish damages are recoverable in a suit brought pursuant to Title VI. Although a majority of the Supreme Court in Guardians Association v. Civil Service Commission of City of New York, 463 U.S. 582, 103 S. Ct. 3221 (1983), would allow a plaintiff to recover compensatory damages for intentional violations of Title VI, the Supreme Court did not definitively describe the scope of such remedies under the statute. See Shinault v. American Airlines, Inc., 936 F.2d 796, 803 (5th Cir. 1991) (quoting Guardians for the proposition that damage remedies under Spending Clause statutes such as Title VI may be limited). The lower federal courts have been grappling with the issue since Guardians, and the law in this area is therefore somewhat muddled. See, e.g, Eastman v. Virginia Polytechnic Inst., 939 F.2d 204, 208 (4th Cir. 1991) (concluding that compensatory damages for pain and suffering are not available under Title VI and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (West 1994), which forbids discrimination on the basis of disability).

In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 71, 112 S. Ct. 1028, 1035 (1992), the Supreme Court held that "federal courts have the power to award any appropriate relief" under Title IX, a statute that was patterned after Title VI.[72] Since Franklin, the strong trend among federal courts is to allow plaintiffs to recover for mental injuries under Title VI and similar federal anti-discrimination statutes. See Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642, 644 (8th Cir. 1994) (holding that "the full spectrum" of legal and equitable remedies are available under Title VI and Section 504 of the Rehabilitation Act of 1973); Waldorp v. Southern Co. Serv., Inc., 24 F.3d 152, 156-157 (11th Cir. 1994) (citing Franklin for the holding that the full panoply of legal remedies are available under Section 504 of the Rehabilitation Act); Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 830 (4th Cir. 1994) (overruling Eastman in light of Franklin). In any event, this issue is a question of law that is better left to the Fifth Circuit should the panel deem it proper to reach the issue of damages. The Court merely assumes for purposes of this order that mental anguish damages are recoverable under Title VI.

To the extent the Court fails to find by a preponderance of the evidence that Hopwood would have completed her law degree, the defendants are not liable for any mental anguish damages because there is no causal connection between the harm and the violation. See, e.g., Patterson v. P.H.P Healthcare Corp., 90 F.3d 927, 938 (5th Cir. 1996) (asserting the general principle that there must a causal connection between the injury and any award for damages). Even assuming Hopwood would have earned a degree from the law school, several of Hopwood's claims for emotional injury are not compensable because they are not the result of the defendants' conduct. For example, claims for damages related to Hopwood's allegation that the defendants falsely maligned her qualifications in the media pertain to the litigation she initiated and the justifiable defense of this case and therefore are not recoverable.[73] See Hopwood, vol. 2 at 187-90 (describing her voluntary media appearances and interviews). Other claims for damages, such as her contention that the law school's discrimination was a factor that caused her to begin smoking, are frivolous and do not merit discussion.

Hopwood testified she experienced frustration, depression, disappointment, diminished self-confidence, and anger as a result of being denied admission to the law school. See Hopwood, vol. 2 at 170. In her interrogatory responses, Hopwood also claims feelings of hopelessness, confusion, anxiety, embarrassment, inability to concentrate, indecisiveness, inadequacy, and stigmatization. See P-459; P-464. Finally, she contends her rejection by the law school indirectly strained her marriage. See Hopwood, vol. 2 at 170-71; P-470 (deposition testimony of friend confirming these feelings). Hopwood testified she did not experience any physical symptoms or pain, nor did she seek any psychiatric or medical care, as a result of being denied admission, although she did occasionally discuss the situation with a therapist from whom she had sought grief counseling following Erica's death. See Hopwood, vol. 2 at 217-18.

In addition to Hopwood's testimony, the Court heard corroborating evidence regarding the nature and extent of her emotional injuries from Paul Lees-Haley, Ph.D. Lees-Haley is a forensic psychologist, not a mental health provider, and has never treated Hopwood for any mental injury. Rather, Lees-Haley evaluated Hopwood based upon her self-reported complaints to determine whether Hopwood suffered any emotional injury as a result of the defendants' actions. See P-526 (Expert Report); Lees-Haley, vol. 3 at 153. Lees-Haley testified that Hopwood suffered some emotional distress from three independent sources: (1) the law school's discrimination against her, (2) the law school's rejection of her application for admission, and (3) public comments made by the law school and her interactions with lawyers in the case. See Lees-Haley, vol. 3 at 152.

Lees-Haley diagnosed Hopwood with chronic "adjustment disorder with mixed anxiety and depressed mood," which he believes occurred partly in response to the "stressor"[74] of being denied admission and of being a victim of discrimination. See Lees-Haley, vol. 3 at 155-56. He states in his report that adjustment disorder "typically resolves within six months unless the symptoms are in response to . . . a stressor that has enduring consequences," such as Hopwood's rejection from the law school. P-526. Lees-Haley also testified that the law school's actions aggravated other mental injuries, such as those resulting from the deaths of her children, the break-up of her marriage, and the loss of a job. See Lees-Haley, vol. 3 at 152; P-526 ("[Hopwood] plausibly suggests that had she been accepted to law school, some of the other problems and their effects might have been mitigated to some degree . . . because at least she would not have had the feeling she had lost all of her dreams at once."). On the other hand, Lees-Haley testified that the law school's actions "might have caused some mild disability in the sense of making it harder for her to concentrate," but that they have not caused Hopwood any "permanent" problems that will cause her "pain and suffering and disability . . . for the rest of her life." Lees-Haley, vol. 3 at 154; vol. 3 at 209-11 (indicating that Hopwood is not suffering from any disability and is fully functional). Moreover, he opined that Hopwood would not have had a diagnosable mental condition were it not for other negative "stressors" in her life. See Lees-Haley, vol. 3 at 220-21.

Hopwood has had more than her share of tragedies, both before and after she was denied admission to the law school, all of which have caused her severe emotional distress. Without doubt, the evidence establishes the least traumatic "stressor" in her life was the law school's denial of her application. However, because of the unusual circumstances occurring in Hopwood's personal life from 1992 through 1996 and her mental condition, the Court would find from a preponderance of the evidence that Hopwood has suffered mental anguish damages as a result of the law school's rejection of her application. The denial of admission aggravated Hopwood's preexisting emotional injuries beyond the mere hurt feelings, frustration, and anger that are a part of everyday life. See Patterson, 90 F.3d at 940. Accordingly, the Court would find from a preponderance of the evidence that Hopwood has sustained mental anguish damages in the amount of $6,000 as a result of the law school's rejection of her application for admission.

B.


Carvell is the only plaintiff who pursued a law degree in 1992 after his rejection from the law school. Carvell graduated with a joint degree in law and a master's in business administration from Southern Methodist University ("SMU") in 1996. See Carvell, vol. 4 at 101. Since August 1996, he has been employed as an attorney with the private law firm of Bickel & Brewer in Dallas, Texas,[75] where he was earning a starting salary of $50,000 plus benefits at the time of trial (Carvell has since earned a pay increase). See Carvell, vol. 4 at 105-06, 114-15. Carvell seeks total economic damages in the amount of $705,886, consisting of $40,036 in increased tuition for attending SMU and $665,850 in damages resulting from the diminished value of an SMU law degree.[76] See P-478. Additionally, Carvell seeks $1,500,000 in mental anguish damages resulting from the law school's discrimination against him and the denial of his application for admission. See P-460.

     (1) Tuition Differential

Carvell would have attended the University of Texas over SMU Law School had he been admitted to the law school in 1992. See Carvell, vol. 4 at 98; 1994 trial transcript, Carvell, vol. 10 at 9. Accordingly, the Court finds from a preponderance of the evidence the difference in the cost of tuition between the two schools was $40,036. See P-478, Exhibit 2, Table 2; Ruhter, vol. 3 at 4.

     (2) Damages for Loss of Future Income

Ruhter calculated the diminished value of Carvell's degree by comparing the difference in earnings hypothetically available to University of Texas and SMU law graduates based upon the average starting associate salaries of all private law firms that recruited at those two schools in 1995, regardless of whether those firms actually hired graduates of those two law schools that year. See Ruhter, vol. 3 at 3; P-478, Exhibit 3, Table 3. Ruhter did not identify any salary differential at the partnership level because he was unaware of any empirical information available to calculate it; therefore, Ruhter analyzed Carvell's alleged lost earnings only as an associate until the year 2003. See Ruhter, vol. 3 at 80-81; P-478, Exhibit 3, Table 3. Ruhter testified that the present value of the earnings differential was $11,850. Ruhter, vol. 3 at 4. Hildebrandt reviewed the accuracy of the figures contained in Ruhter's report. He testified that Ruhter underestimated Carvell's losses by not carefully analyzing "the weight of the law schools" and by not including any damages for the differential in partnership compensation between graduates of SMU and the law school. Hildebrandt testified these damages were approximately $50,000 per year, for a total of $654,000. Hildebrandt, vol. 3 at 110-11.

The Court fails to find from a preponderance of the evidence that Carvell is entitled to any damages for loss of future income; indeed, his requests for economic damages are counterfactual. First, Carvell did not use the Career Services Office at SMU to obtain any employment. See Carvell, vol. 4 at 122. Consequently, a comparative analysis of the average starting salaries of law firms that recruit at the University of Texas and SMU provides an inappropriate basis for measuring damages in Carvell's case. Second, Ruhter calculates Carvell's lost earnings beginning in mid-1995 even though Carvell did not graduate from law school until May 1996. See Carvell, vol. 2 at 122. Third, the "opportunity" differential between SMU and the University of Texas is due in large part to the high starting salaries of national firms and regional boutiques which tend to recruit more heavily at the University of Texas. In general, these firms only hire top-tier students with very strong academic records. See Jones, vol. 4 at 82-84. Carvell, however, graduated in the third quarter of his class at SMU; therefore, these higher earnings probably would not have been available to Carvell because he would not have had an academic record at the University of Texas sufficient to result in recruitment by those firms. See Carvell, vol. 4 at 114. Fourth, in requesting $654,000 for the differential in partnership compensation, Carvell apparently overlooked the salient fact that he is not on partnership track at Bickel & Brewer.[77] See Carvell, vol. 4 at 106.

Carvell proffered speculative evidence that he has suffered lost earnings as a result of not obtaining his degree from the law school. In fact, the evidence suggests Carvell has suffered no loss in earnings: Carvell's starting salary is higher than the average starting salary for graduates of the University of Texas in 1995. See D-685, Tab 4 (indicating that the average starting salary for 1995 University of Texas graduates was $49,761); D-685, Tab 8 (indicating that the average starting salary for 1995 SMU graduates was $51,464). Even assuming an earnings differential exists and that it can be quantified to a reasonable degree of certainty--a notion the Court seriously doubts--the statistics regarding average starting salaries in private, government, corporate, and public interest practice suggest the differential actually favors SMU graduates. See D-685, Tab 4 & 8. Moreover, Carvell proffered no evidence that private law firms distinguish among lawyers, in terms of salary and/or benefits, on the basis of where they obtained their law degree. True, graduates of highly regarded universities tend to have enhanced career opportunities over graduates of universities that are not as highly regarded. But, in the Court's opinion, the ability of an individual to succeed in his or her profession depends much more upon the value of that individual rather than the value of his or her degree.[78]

     (3) Mental Anguish Damages

Carvell testified he experienced disappointment, anxiety, stress, shock, frustration, and anger and that he became withdrawn from others as a result of his denial of admission to the law school. See Carvell, vol. 4 at 98-101; P-472 (deposition testimony of friend confirming these feelings). In his interrogatory responses, Carvell also indicated he suffered feelings of confusion, depression, embarrassment, inability to concentrate, lack of motivation, indecisiveness, diminished confidence, inadequacy, stigmatization, and diminished self-esteem. See P-460; P-465. On the other hand, he testified he was not "shattered or crippled" by the experience and that he is functioning well at his current employment. See Carvell, vol. 4 at 101. Moreover, Carvell never sought psychiatric or medical treatment for any emotional injuries caused by the defendants' conduct, even though he has suffered from "very serious and substantial mental health problems in the past." Carvell, vol. 4 at 101, 119-20; Carvell Stipulation 1.

As with Hopwood, Lees-Haley evaluated Carvell's self-reported complaints to determine the nature and extent of his emotional injuries resulting from the defendants' actions. Lees-Haley stated in his expert report that "Carvell appears to have a chronic, mild depression that pre-existed this injury and continues to the present, which was temporarily mildly aggravated by not being admitted to the University of Texas School of Law and by discovering that he was the subject of race discrimination." See P-527 (emphasis added). The Court does not find from a preponderance of the evidence that the denial of admission caused Carvell any compensable emotional injuries, either by themselves or resulting from the alleged temporary aggravation of his preexisting depression. The denial, at most, resulted in the mere hurt feelings, frustration, and anger that are simply a part of everyday life.

C.


Elliot seeks $56,021 in lost earnings he contends resulted from his delayed entry into the workforce as a lawyer during the pendency of this lawsuit. He arrived at this figure by calculating the five-year differential, adjusted for inflation and discounted to present value, between his current salary as a CPA and the average starting salary of 1995 graduates of the law school. The Court does not find from a preponderance of the evidence that Elliot has suffered any loss in earnings as an attorney that can be reasonably attributed to his rejection by the law school. Elliot declined an offer of admission to attend Texas Tech Law School in 1992. See Elliot, vol. 3 at 273. Therefore, the delay in his legal education resulted not from the law school's admissions procedures but from Elliot's deliberate choice not to attend Texas Tech. Furthermore, separate from the issue of the remoteness of the injury is the issue of whether Elliot has mitigated his damages. Elliot could have attended Texas Tech in 1992 or he could have applied to other law schools within the last five years. The damages Elliot seeks are also speculative and remote.

D.


Rogers seeks compensatory damages of $332,867.94 plus one third of any amount awarded in attorneys' fees.[79] See D-660, Exhibit A. Rogers claims approximately $200,000 in lost wages as a lawyer during the pendency of the lawsuit; roughly half the lost earnings he claims are losses he sustained in unpaid loans he made to his business.[80] In addition, Rogers seeks $200 for the cost of reapplying to the law school, $795 to attend a Princeton Review LSAT course, $950 in costs to move back to Austin in the event the Court orders an injunction, a minority scholarship in the amount of $20,000 plus tuition for three years, and $909.24 in expenses for voluntarily attending a conference on affirmative action in California. The Court does not find from a preponderance of the evidence that Rogers has sustained any economic damages as a result of his rejection by the law school. The reasons are essentially the same for which the Court denied Elliot's request for damages--the damages alleged are not attributable to the defendants' conduct and are speculative and remote. Rogers declined an offer to attend the University of Houston School of Law in 1992. See Rogers, vol. 2 at 100. The remaining requests for damages (those that do not relate to Rogers's request for lost earnings) are frivolous and do not merit discussion.

V.


Title 42 of the United States Code, Section 1988, provides that a court "in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The Court denied the plaintiffs' original requests for fees and expenses following the May 1994 trial, concluding that the plaintiffs, although prevailing parties under statute, only attained de minimis relief. The plaintiffs separately appealed that judgment on January 9, 1995. On July 26, 1996, the Fifth Circuit granted the plaintiffs' motion to vacate the Court's judgment on attorneys' fees and remanded the case with an instruction to reconsider whether the fees and expenses requested at the trial and appellate levels were reasonable and necessary for the prosecution of this case. The plaintiffs' attorneys purportedly spent 7,241.41 hours litigating this case, and the fees and expenses sought exceed $1.5 million.

At the May 1994 trial, the plaintiffs were represented by (1) Steven Smith; (2) Terral Smith; (3) Joseph Wallace, Paul Harris, R. Kenneth Wheeler, and Scott Wilson of the private law firm of Wallace, Harris & Sims ("WHS"), located in West Virginia; and (4) Michael McDonald, Michael Rosman, Vincent Mulloy, Michael Troy, and Joseph Shea of the Center for Individual Rights ("CIR"), a not-for-profit, public interest law firm located in Washington, D.C. Steven Smith is an Austin sole practitioner who initiated the suit. He was the only attorney representing the plaintiffs during the first eight months of the case. Terral Smith, also a sole practitioner in Austin, conducted the majority of the trial presentation. Along with Terral Smith (although to a lesser degree), Wallace participated in the trial presentation, while the other attorneys of WHS assisted in trial preparation. The CIR's main involvement in the case was to conduct most of the legal research, write all legal briefs, and bankroll the case. Following the 1994 trial, the plaintiffs sought fees and expenses of $853,847.69 for 4,840.56 hours of work ("trial hours").[81] After the successful appeal of this case, the plaintiffs increased their requests to $941,391.24 to reflect current hourly billing rates.[82]

Beginning in November 1994, the plaintiffs (for reasons unknown to the Court) obtained separate representation on appeal to the Fifth Circuit and the Supreme Court. Hopwood and Carvell were represented by (1) Theodore Olson, Douglas Cox, Thomas Hungar, Walter J. Scott, and Daniel Nelson of the Washington, D.C. office of Gibson, Dunn & Crutcher ("GDC"); and (2) McDonald, Rosman, Troy, and Hans Bader of CIR.[83] Terral Smith and Steven Smith remained counsel of record for Elliot and Rogers. GDC primarily handled the appeal relating to the constitutionality of the law school's use of racial preferences, including briefing the issues to both appellate courts and arguing the case to the Fifth Circuit. CIR worked on the appeals relating to the proposed interventions by several minority groups and this Court's denial of attorneys' fees. In addition, CIR had primary responsibility for coordinating activity among the lawyers representing Hopwood and Carvell. It appears Terral Smith and Steven Smith assisted GDC with the trial record only--their billing records demonstrate they did little independent appellate work and instead relied on GDC to argue the merits of the case to the Fifth Circuit and the Supreme Court. The plaintiffs seek fees and expenses of $614,138.56 for 2,400.85 hours of work during the appellate phase of this case ("appellate hours").[84]

A.


To determine the appropriate award, the Court must calculate the "lodestar" by multiplying the number the number of hours reasonably spent on the litigation by a reasonable hourly billing rate. See Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S. Ct. 1933, 1939 (1983). The fee applicant bears the burden of establishing that the hours expended and the billing rate are reasonable. Id. at 437, 103 S. Ct. at 1941. The Court should consider the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), to evaluate the reasonableness of the fee requests. See Walker v. United States Dep't of Housing & Urban Dev., 99 F.3d 761, 771 (5th Cir. 1996) (indicating that most of the Johnson factors are reflected in the lodestar amount and cannot be used to compute any upward or downward adjustment of the lodestar); Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The Johnson factors are (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Watkins, 7 F.3d at 457 n. 4. As discussed below, the defendants challenge the fees sought for certain categories of work performed by counsel, as well as fees sought for duplicative, unnecessary, and excessive hours. Moreover, the Court made certain discretionary reductions in accordance with the Johnson factors.

     (1) Public and Media Relations

The defendants argue the plaintiffs are not entitled to reimbursement for time spent dealing with the media. As the defendants correctly contend, the Fifth Circuit routinely denies such requests because they are not related to the litigation of the case. See id. at 458; Associated Builders & Contractors of La., Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir. 1990) (affirming the district court's decision to discount award for time spent preparing press releases);