94 Ed. Law Rep. 760
Cheryl J. HOPWOOD, Douglas W. Carvell, Kenneth R. Elliott,
and David A. Rogers, Plaintiffs,
v.
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.
No. A 92 CA 563 SS.
United States District Court,
W.D. Texas,
Austin Division.
Aug. 19, 1994.
*553 Terral Ray Smith, Small, Craig & Werkenthin, Steven W. Smith,
Austin, TX, Joseph A. Shea, Jr., Michael P. McDonald, Vincent A. Mulloy, Center
for Individual Rights, Washington, DC, R. Kenneth Wheeler, Wallace, Harris,
Sims & Wheeler, Richmond, VA, Joseph A. Wallace, Wallace, Harris & Sims,
Elkins, WV, Paul J. Harris, Wallace, Harris, Sims & Wheeler, Richmond, VA,
Michael E. Rosman, Center for Individual Rights, Washington, DC, for
plaintiffs.
Harry M. Reasoner, Allan Van Fleet, Betty Owens, Vinson & Elkins, Houston,
TX, Javier Aguilar, Sp. Asst. Atty. Gen., Toni Hunter, Atty. General's Office,
Sarah L. Anderson, Tex. Atty. Gen., Samuel Issacharoff, Charles Alan Wright,
University of Texas School of Law, R. Scott Placek, Barry D. Burgdorf, Vinson &
Elkins, Austin, TX, for defendants.
MEMORANDUM OPINION
SPARKS, District Judge.
The plaintiffs, Cheryl J. Hopwood, a white female, and Douglas W. Carvell,
Kenneth R. Elliott, and David A. Rogers, three white males, have brought suit
against the defendants (footnote 1) alleging violations of the Fourteenth Amendment,
42 U.S.C.A. Sec. 1981 (West Supp.1994), 42 U.S.C.A. Sec. 1983 (West 1981), and
Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. Sec. 2000d (West 1981).
(footnote 2) All of these provisions prohibit discrimination because of race. For
the alleged violations, the plaintiffs seek injunctive and declaratory relief,
as well as compensatory and punitive damages. The plaintiffs contend the
defendants discriminated against them by favoring less qualified black and
Mexican American applicants for admission to the University of Texas School of
Law through the use of a quota system. This cause was tried before the Court,
without a jury, on May 16th through May 20th and May 23rd through May 25th,
1994.
The cause focuses on one of the most divisive issues faced by society,
affirmative action, and highlights the tension that exists when the individual
rights of nonminorities come into conflict with programs designed to aid
minorities. The plaintiffs have contended that any preferential treatment to a
group based on race violates the Fourteenth Amendment and, therefore, is
unconstitutional. However, such a simplistic application of the Fourteenth
Amendment would ignore the long history of pervasive racial discrimination in
our society that the Fourteenth Amendment was adopted to remedy and the
complexities of achieving the societal goal of overcoming the past effects of
that discrimination. Further, the Supreme Court, which is continually faced
with trying to reconcile the meaning of words written over a century ago with
the realities of the latter twentieth century, has declined to succumb to an
original intent or strict constructionist argument. Therefore, the Court will
decline the plaintiffs' *554 invitation to ignore the law established by the
highest court of this land and to declare affirmative action based on racial
preferences as unconstitutional per se. The issue before the Court is whether
the affirmative action program employed in 1992 by the law school in its
admissions procedure met the legal standard required for such programs to pass
constitutional muster. The Court, having carefully considered the evidence
presented at trial, the arguments of counsel, and the briefing provided by the
parties, finds that it did not.
I. HISTORICAL BACKGROUND
The reasoning behind affirmative action is simple--because society has a long
history of discriminating against minorities, it is not realistic to assume
that the removal of barriers can suddenly make minority individuals equal and
able to avail themselves of all opportunities. Therefore, an evaluation of the
purpose and necessity of affirmative action in Texas' system of higher
education requires an understanding of past discrimination against blacks and
Mexican Americans, the minorities receiving preferences in this cause, and the
types of barriers these minorities have encountered in the educational system.
A. Discrimination in Primary and Secondary Education
The history of official discrimination in primary and secondary education in
Texas is well documented in history books, case law, and the record of this
trial. The Court, therefore, will address it only in summary fashion.
Even after the Supreme Court's decision in Brown v. Board of Education, the
State of Texas adopted a policy of official resistance to integration of its
public schools. This policy of resistance resulted in numerous lawsuits and
court-imposed desegregation plans throughout the past twenty years. Wright,
vol. 19 at 38-44; Romo, vol. 17 at 45-51. Many of the school districts found
to be operating dual systems of education were also found to practice official
discrimination against black and Mexican American students. Wright, vol. 19 at
40-43; Romo, vol. 17 at 45-51; Rodriguez, vol. 17 at 8-9.
The problem of segregated schools is not a relic of the past. Despite the
fact that the public school population is approximately half white and half
minority, minority students in Texas attend primarily majority minority schools
while white students attend primarily white schools. Glenn, vol. 23 at 46-49.
Further, as of May 1994, desegregation lawsuits remain pending against over
forty Texas school districts. D-457; see also D-370, 373, 419; Wright, vol.
19 at 38-40; Romo, vol. 17 at 45-46.
The lack of educational opportunity for minorities has been compounded by the
lower socioeconomic status of minorities in Texas. Statistics continue to
indicate significant disparities between minority and nonminority students in
skills and academic knowledge attained in the public schools. Although the
generally lower socioeconomic status of black and Mexican American families is
partially accountable for some of the disparities, the gap is exacerbated by
historically inferior educational preparation of minorities. Glenn, vol. 23 at
30-36. Further, at each educational level, there is a marked decline in the
level of attainment by minorities, as reflected in comparison of drop-out rates
between minorities and nonminorities and the percentages of the respective
groups that graduate from high school and college. (footnote 3)
B. Discrimination in Higher Education
As with primary and secondary education, Texas' system of higher education
has a history of state-sanctioned discrimination. Discrimination against
blacks in the state system of higher education is well documented in history
books, case law, and the State's legislative history. The State of Texas, by
constitution and statute, previously required the maintenance of "separate
schools ... for the white and colored children." See Tex. Const. art. VII,
Sec. 7 (1925, repealed 1969). *555 This policy resulted in the establishment
of segregated schools for blacks that were inferior to the white schools.
Further, opportunities available to blacks to attend college were extremely
limited. (footnote 4)
In 1946, when Heman Sweatt, a black man, sought admission to the law school
and was refused admission, a Texas court, while holding that Article VII,
Section 7 of the Texas Constitution precluded his admission, ordered the state
to provide a law school for blacks. See Sweatt v. Painter, 210 S.W.2d 442
(Tex.Civ.App.--Austin 1948). The State hastily created a makeshift law school
that had no permanent staff, no library staff, no facilities, and was not
accredited. Sweatt v. Painter, 339 U.S. 629, 632, 70 S.Ct. 848, 849-50, 94
L.Ed. 1114 (1950). In 1950, a unanimous United States Supreme Court ruled that
the State of Texas' provisions regarding the legal education of white and
minority students violated the Fourteenth Amendment and ordered that Sweatt be
admitted to the previously all-white University of Texas School of Law.
Sweatt, 339 U.S. at 636, 70 S.Ct. at 851. Sweatt left the law school in 1951
without graduating after being subjected to racial slurs from students and
professors, cross burnings, and tire slashings. Wright, vol. 19 at 24-25.
The Sweatt case is the most flagrant incident of state-sanctioned
discrimination occurring against blacks at the University of Texas. However,
the record reflects that during the 1950s, and into the 1960s, the University
of Texas continued to implement discriminatory policies against both black and
Mexican American students. Mexican American students were segregated in
on-campus housing and assigned to a dormitory known as the "barracks," as well
as excluded from membership in most university-sponsored organizations. Romo,
vol. 17 at 43. Additionally, until the mid 1960s, the Board of Regents policy
prohibited blacks from living in or visiting white dormitories. Wright, vol.
19 at 26-28; D-482.
Beginning in the mid 1970s, discrimination in Texas' system of higher
education came under attack through a court-ordered investigation by the
Department of Health, Education and Welfare (HEW) Office for Civil Rights
(OCR). The investigation of Texas' system resulted from a lawsuit initiated in
1970 to require HEW to take action to enforce the provisions of Title VI. (footnote 5)
The court- *556 ordered investigation of ten states, which did not include
Texas, began in 1973. In 1977, the court extended the order to an additional
six states, which included Texas. Ashworth, vol. 12 at 8; D-296.
Between 1978 and 1980, the OCR conducted an investigation of Texas' public
higher education system. The investigation culminated in a finding that Texas
had "failed to eliminate vestiges of its former de jure racially dual system of
public higher education, a system which segregated blacks and whites." D-297.
Additionally, the OCR found that Hispanics were significantly underrepresented
in state institutions and indicated it would continue its investigation of
discrimination against Hispanics. Id.
During the early 1980s, the OCR and Texas officials engaged in considerable
negotiations regarding efforts to bring Texas into compliance with Title VI.
Texas, in an effort to achieve a state-wide desegregation plan acceptable to
the OCR, attempted to address OCR concerns through submission of the Texas
Equal Education Opportunity Plan for Higher Education (Texas Plan), which
included a commitment to the goal of equal educational opportunity and student
body desegregation for both black and Hispanic students. D-237. In 1982,
Assistant Secretary of Education Clarence Thomas informed Governor Clements
that the Texas Plan was deficient because the numeric goals of black and
Hispanic enrollment in graduate and professional programs were insufficient to
meet Texas' commitment to enroll those minority students in proportion to the
representation among graduates of the state's undergraduate institutions.
Ashworth, vol. 12 at 16-17; D-284. Texas revised its plan and resubmitted it
to the OCR; the OCR found the modified plan to be deficient because it did not
set targets for increasing minority enrollment for each institution, instead of
on a statewide basis, and it did not project achievement dates for the targeted
goals. Ashworth, vol. 12 at 19-20; D-219.
In 1983, the District Court for the District of Columbia entered an order in
the ongoing Title VI-enforcement suit, in which the court found that "Texas has
still not committed itself to the elements of a desegregation plan which in
defendants' judgment complies with Title VI." D-446. The court ordered the
DOE to begin enforcement proceedings against Texas unless Texas submitted a
plan in full conformity with Title VI within forty-five days. Ashworth, vol.
12 at 22-23; D-446. In response to the order, the OCR submitted thirty-seven
suggested measures for increasing black and Hispanic student enrollment in
professional and graduate programs at traditionally white institutions. Among
the suggestions were that each graduate and professional school should
re-evaluate its admissions criteria and that "admissions officers will consider
each candidate's entire record and will admit black and Hispanic students who
demonstrate potential for success but who do not necessarily meet all the
traditional admission requirements." D-220.
In June 1983, the Texas Plan, as amended to account for the deficiencies
identified by the OCR, was accepted by OCR as being in compliance with Title
VI. (footnote 6) However, acceptance was contingent on adequate funding and
completion of key activities within a specified time. D-314. Further, the
Texas Plan was subject to monitoring for compliance until 1988. Ashworth, vol.
12 at 23, 25-26.
In November 1987, OCR contacted the state regarding the expiration of the
plan in 1988 and indicated OCR would perform a final evaluation to determine if
further action would be necessary to bring Texas into compliance with Title VI.
OCR further instructed state officials that, pending the evaluation, Texas
should continue to operate under the plan. Ashworth, vol. 12 at 32-34; D-323.
*557 Because Texas Higher Education Coordinating Board officials
determined Texas had not met the goals and objectives of the plan, the board
voluntarily developed a successor plan (Plan II) to avoid a mandate from the
federal government to negotiate another plan. Ashworth, vol. 12 at 34-35;
vol. 13 at 45-46. Plan II did not contain any specific numeric enrollment
goals but retained Texas' commitment to increasing black and Hispanic student
enrollment. D-326 at 9.
To date, OCR has not completed its evaluation to determine if Texas is in
compliance with Title VI. (footnote 7) However, in January 1994, the DOE notified
Governor Richards that OCR was continuing to oversee Texas' efforts to
eliminate all vestiges of de jure segregation and that it would be reviewing
the Texas system in light of United States v. Fordice, --- U.S. ----, 112 S.Ct.
2727, 120 L.Ed.2d 575 (1992). Ashworth, vol. 12 at 35-38; D-293.
Against this historical backdrop, the law school's commitment to affirmative
action in the admissions process evolved.
II. THE ADMISSIONS PROCESS
A. Evolution of the Admissions Process and Affirmative Action
The law school's admissions procedure was not always a complicated process.
In the early 1960s, all applicants who had taken the LSAT and had at least a
2.0 or 2.2 grade point average on a 4.0 scale were accepted. (footnote 8) In about
1965, the number of applicants began to significantly exceed the law school's
capacity, and, as a result, the law school established additional criteria to
aid in the selection process. Smith depo. at 7-8.
Under the more selective system, a baseline was established each year based
on the Texas Index (TI). (footnote 9) The law school automatically admitted
applicants whose TI exceeded the baseline, and the admissions committee
reviewed applicants whose TI was below the baseline. This procedure was used
until the late 1960s when an inundation of applications meeting the baseline
criterion created a class of more students than could be adequately
accommodated and precluded review of those who did not qualify for automatic
admission. That particular year, the first-year class of law students
consisted of almost 700 students. Johanson, vol. 3 at 14.
As a result, the law school modified the admissions process and changed the
automatic admission baseline to a presumptive admission score. Additionally,
the admissions committee began to use a presumptive denial baseline, and
applicants whose TI fell below that baseline were presumptively denied
admission. Also during the late 1960s, the law school began implementing
affirmative action by attempting to recruit minority individuals who had
performed well in the CLEO program. (footnote 10) The only race or ethnic-based
scholarships available during this time, however, were limited to "whites
only." Smith depo. at 12.
A perception began to develop that the CLEO program had shifted its focus
from students who were just below the level where law schools would seriously
consider them for admission to students who were significantly below that
level. Smith depo. at 14-16. Therefore, those responsible for admissions
*558 at the law school felt that the CLEO program could not successfully
prepare the participants in one summer to be competitive students in a regular
law school class. Id. at 16. Additionally, minorities represented only a
small percentage of the entire pool of applicants to the law school, and law
schools around the country competed for the top minority applicants. Id. at
18. In 1971, after the law school terminated its participation in the CLEO
program, the law school admitted no black students. Wright, vol. 19 at 32.
In the early 1970s, because of the university's concern over the few minority
students enrolled in the law school, a separate admissions committee,
informally called the "Treece committee," (footnote 11) was formed to consider
applications from minority students and disadvantaged nonminority students.
(footnote 12) The purpose of the committee was to ensure that the applicants the
committee reviewed received "fuller consideration" than they would have in the
regular admissions process. Smith depo. at 16. The applicants were evaluated
separately from the applicants before the regular admissions committee, and the
sole criterion for applicants before the Treece Committee was whether the
applicant had a reasonable prospect of passing the first year. (footnote 13) The
Treece committee had no set goals for the number of admissions to be made
through the committee, and the number of applicants it admitted had little
impact on the regular admissions. (footnote 14) In 1977, the Treece committee
considered 500 applicants, including approximately 100 nonminority applicants.
Of these applicants, the Treece committee admitted sixty-eight minority
students and three nonminority students. "Thus, while the special subcommittee
did consider and grant admission to some white applicants, the predominant
objective of the special subcommittee was to increase minority enrollment at
the Law School." P-1 (Smith memo to Rogers, Oct. 18, 1978, at 1).
The applications before the regular admissions committee were subjected to a
different process. Because of the volume of applications, the admissions
committee could not give individual consideration to each application.
Therefore, the law school implemented a three-category system to narrow the
pool of applications requiring committee consideration. The first category of
applicants, those with TIs above a certain number, were granted "administrative
admission"; that is, administrative personnel automatically sent offers of
admission to these applicants based on the applicants' TIs. A "presumptive
denial" category was at the other end of the scale, in which administrative
personnel screened the applications based on specified criteria. If the
administrative person determined the file warranted further consideration, the
file was sent to the regular admissions committee. The admissions committee
reviewed the individual applications in the middle category or "discretionary
zone," which included those referred to the committee from the presumptive
denial category.
The law school used this admissions procedure until 1978 when, as a result of
the Supreme Court's decision in Bakke, the law school reassessed its minority
admissions procedure. The law school determined that, although its procedure
differed from that at issue in Bakke, the use of the separate committees to
evaluate applicants was defective. (footnote 15) Therefore, then Dean Smith directed
*559 the admissions committee to operate as one unit rather than as two
subcommittees and instructed the committee to establish the administrative
admission and presumptive denial lines at levels that would increase the number
of applicants given individual consideration. P-1.
After 1978, Johanson set the lines to allow for a reasonable number of
minority candidates to be included with nonminorities in the discretionary
zone. Johanson, vol. 3 at 21. The discretionary zone was then divided into
five or six "bands." (footnote 16) The law school offered admission to a set
percentage of applicants from each band. The percentage decreased from the
first or top band to the last, a reflection of the diminishing credentials of
the bands. The minority applicants were primarily clustered in the lower bands
with few in the upper bands. Wellborn, vol. 24 at 45.
Within each band, minority and nonminority files were blended into groups of
thirty. Each pile was reviewed by three committee members, each of whom was
allocated a certain fixed number of votes determined by the yield desired from
a particular band. Therefore, each member of the committee ultimately had
total discretion to decide whether and what extent to implement affirmative
action for each pile of files that person reviewed. Wellborn, vol. 24 at 9.
Professor Wellborn testified he and other faculty members perceived two
problems with this system: 1) potential unfairness to nonminority candidates
who could be affected by affirmative action solely as a result of the pile in
which they were included and 2) the application of personal affirmative action
efforts, requiring no justification to the committee as a whole, rather than a
system based on a set policy. As a result, in 1980, the law school abandoned
the banding admissions procedure and formed the minority subcommittee.
The minority subcommittee was a part of the full committee that reviewed and
voted on nonminority files. All minority files below the presumptive admission
line were studied by the minority subcommittee. (footnote 17) The subcommittee would
then bring its recommendations to the full committee. At some point during the
middle of the admissions process, the subcommittee would present a report to
the full committee that summarized the features of the minority files being
recommended for admission. The actual files were also available at the meeting
so the full committee could make its own determinations about the recommended
minority applicants in comparison to the nonminority applications pending at
the time. At this point in the process, the members of the full committee were
involved in reading piles of nonminority files and were cognizant of the
qualifications of the nonminorities. Although this method often resulted in
heated discussion and disagreement among committee members over whether to
admit a particular candidate, the process also provided open discussion rather
than the silent voting, which could have reflected personal agendas, that
occurred with the banding procedure. Wellborn, vol. 24 at 15.
In the early 1980s, during these meetings, the committee members spent
considerable time debating whether individual minority candidates met minimum
admissions standards and, thus, could do passing work in law school. As a
result, the full committee often examined specific minority files. The
ultimate effect was that the entire committee voted on each minority applicant
that the subcommittee brought before the full committee. Goode, vol. 9 at 6.
However, as the *560 pool of minority candidates improved, the focus of the
meetings shifted to choosing among minority candidates that the committee knew,
based on their TIs, could succeed in law school. Wellborn, vol. 24 at 33.
Therefore, less full committee review of each individual file became necessary.
(footnote 18)
Ultimately, the admissions committee determined that the process was
inefficient and not the most effective way of processing minority applicants.
Johanson, vol. 5 at 27. In April 1991, "[a]fter considerable debate, the
[admissions] committee, over some strong opposition, directed the chair
[Johanson] to form a subcommittee (including Deans Aleman and Hamilton and the
two minority students) which was to review the minority files and recommend
sufficient candidates for admission to achieve a class that was 5% Black and
10% MA." (footnote 19) Therefore, by 1992, the full admissions committee no longer
selected individual applicants for admission. Wellborn, vol. 24 at 53.
Instead, the minority subcommittee compiled a list and presented it to the full
committee, which made a judgment of how many offers to give to minority
applicants. The minority subcommittee was then delegated the task of deciding
which individual minority applicants were to receive offers of admission.
Thus, by 1992, the admissions process, although involving some interaction and
exchange of information between the full committee and minority subcommittee,
was markedly similar to the pre-Bakke procedure of two separate committees.
This 1992 procedure is the crux of this lawsuit.
B. 1992 Admissions Process
In 1992, the admissions committee was comprised of nine professors, two
assistant deans, and four students. Johanson, vol. 6 at 26. The minority
subcommittee was comprised of Johanson, Aleman, and Hamilton, all of whom were
also members of the full committee. (footnote 20) Aleman, however, did not
participate in reviewing nonminority applications. Johanson, vol. 6 at 25-26.
In 1992 when an application arrived, administrative personnel placed it in an
individual folder, to which additional materials, such as letters of
recommendation, were added as they arrived at the law school. Each folder was
color-coded based on two criteria: residency and race or ethnicity. The
residency classification indicated whether the applicant was a resident or
nonresident of Texas. The race or ethnicity classification was based on which
of several boxes the applicant checked on the application: Black/African
American, Native American, Asian American, Mexican American, Other Hispanic,
White, or Other. Hamilton, vol. 2 at 19-20.
The application deadline was February 1. However, because the law school
wished to get early offers sent to top applicants in late January if possible,
Johanson drew initial presumptive admission lines as soon as he had an initial
computer printout showing the numbers and qualifications of the applicants.
Johanson, vol. 3 at 26-27. At this point, about half of the applications were
complete; therefore, Johanson drew the initial lines relatively high to avoid
too many early offers of admission before the quality of the entire pool of
applicants was defined. (footnote 21) The goal of *561 the initial presumptive
admission lines Johanson drew was to ensure that the top candidates in each
category received offers of admission from the law school as soon as possible.
(footnote 22)
Once Johanson determined which files were in the presumptive admission
category, he conducted a preliminary review of the files. (footnote 23) By the end of
the admissions process, Johanson reviewed 300 to 350 resident files and 200 to
250 nonresident files in this category. Johanson, vol. 3 at 32-35. In his
review of these files, Johanson checked to see if the applicant's TI was
inflated by high grades in a noncompetitive major or at a weak school or if
there was some other questionable feature of the applicant's file. Johanson
generally held those files for further review in the discretionary zone.
Johanson dropped approximately ten percent of the presumptive admission
applicants into the discretionary category. Those applicants 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. D-362.
At the other end of the spectrum, Johanson set another line, and applicants
whose TIs fell below that line were presumptively denied admission. One or two
members of the admissions committee reviewed each application in this category
to determine if the TI adequately reflected the applicant's likelihood of
success in law school or competitive standing relative to the entire applicant
pool. Johanson, vol. 3 at 31-32; P-41; D-362. Generally, as a result of
this review, twenty to forty files were upgraded from the presumptive denial
zone to the discretionary zone, although Johanson did not recall the specific
number of files moved to the discretionary zone in 1992. Johanson, vol. 5 at
24-25.
The middle category was comprised of 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. In the middle discretionary category, reviewers focused less
attention on the applicant's numbers, as all were relatively close, and instead
carefully evaluated the applicant's qualifications as reflected by the entire
file. Goode, vol. 9 at 4; D-362.
The standards the law school applied to assess applicants in this system
differed based on race and national origin in two ways. First, Johanson's
determination of the presumptive admission and denial TIs varied between
nonminorities and minorities. (footnote 24) By March 1992, Johanson had lowered the
presumptive admission score for resident nonminorities from a threshold setting
of 202/90 to 199/87. (footnote 25) Similarly, Johanson lowered the *562 presumptive
admission score for Mexican American applicants from 196/84 to 189/78 and the
presumptive admission score for black applicants from 192/80 to 189/78. P-49.
The presumptive denial score for nonminorities was 192/80, and the presumptive
denial score for blacks and Mexican Americans was 179/69. Thus, the
presumptive denial score for nonminorities was higher than the presumptive
admission score for minorities.
Additionally, the law school admissions committee had different procedures
for the review of nonminority and minority files in the discretionary zone.
Nonminority files were divided into stacks of thirty, which were reviewed by
three members of the admissions committee. (footnote 26) Each person on the
three-person subcommittee voted, on an individual basis with no verbal or
written explanation, to offer admission to a set number of applicants from
within the stack of thirty files. (footnote 27) After the three members completed
their independent screening of the files, Johanson compiled a master tally
sheet reflecting the number of votes received by each applicant in the group of
thirty-five. See, e.g., P-73. Subject to Johanson's review, those applicants
that received two or three votes were offered admission. (footnote 28) In 1992, the
law school made an average of nine offers of admission per stack. P-58. Those
who received no votes were automatically denied admission at that time. (footnote 29)
The law school sent a letter offering applicants who received one vote a place
on the waiting list.
The minority subcommittee reviewed the minority files. In theory, each
member of the subcommittee was to be part of the three-person subcommittees
that reviewed the nonminority files. The testimony reflected, however, that in
1992 Aleman was not on any of the nonminority screening subcommittees. Compare
D-362 with Johanson, vol. 6 at 26. According to the testimony, instead of each
member of the minority subcommittee performing an individual review of the
minority files, as was the procedure for review of nonminority files, the
minority subcommittee met as a group and reviewed each minority applicant's
file. (footnote 30) The subcommittee did not review a set number of files at each
meeting but, instead, made as many decisions as the members felt comfortable
with until their "decision-making powers started to wane." Johanson, vol. 5
at 30. Resident presumptive denial minority files were screened exclusively by
Johanson and Hamilton. Id. at 25.
The members of the minority subcommittee attended the meeting of the full
committee and provided the full committee with a summary of the files the
subcommittee believed to be good applicants for admission. Wellborn, vol. 24
at 18. Although the evidence *563 reflected that the subcommittee shared
general information about the minority pool of applicants with the full
committee, the minority subcommittee's admission decisions on individual
applicants were virtually final. (footnote 31)
C. Admission Goals and Guidelines
The law school is the State's premier law school and is top-rated nationally.
The cost of a legal education at the law school, a state-supported
institution, is inexpensive in comparison to other schools of its caliber and,
therefore, a bargain for the quality of education the law school's students
receive. As a consequence, over 4000 applicants to law school each year
compete for approximately 500 available seats. (footnote 32)
In selecting the entering class, the law school admissions committee has two
specified requirements it must achieve. First, state law mandates the
percentage of nonresidents that may be included in the entering class. In
1992, the law school was prohibited from having more than fifteen percent
nonresidents in the entering class. (footnote 33) The other fixed figure to which the
admissions committee must adhere has been set by the Board of Regents. This
mandate requires the entering class to be composed of at least 500 students.
In addition to these established figures, the law school attempts to meet the
targets established by the Office of Civil Rights through the Texas Plan of ten
percent Mexican American students and five percent black students in an
entering class. Johanson, vol. 4 at 10. These numbers reflect an effort to
achieve an entering class with levels of minority enrollment generally
consistent with the percentages of black and Mexican American college
graduates. The OCR figures, however, are aspirations only, subject to the
quality of the pool of applicants. Johanson, vol. 4 at 9; Goode, vol. 9 at
12-13.
Personal interviews are not part of the law school's admission process.
(footnote 34) Therefore, the law school must make its decision based on the
information provided in the applicant's file, which, in addition to the
application form and LSDAS material, may include a personal statement or
letters of recommendation. The law school used the TI as an administrative
tool to order candidates for review in the admissions process. However, the
law school did not rely solely on the TI as the basis for admissions decisions
but instead used it to create presumptions that could be overcome upon
individual review of the files. (footnote 35) The importance of individual review
stems from the fact that the applicants selected for admission come from a
relatively narrow band within the full range of scores, and a difference of few
points does not necessarily correlate with more successful work in law school.
Johanson, vol. 3 at 11; Stein, vol. 18 at 15. Further, the TI does not
adequately reflect the qualifications and characteristics a law school should
consider in developing a diverse student body, which provides substantial
educational benefit for all members of a law school class. Brest, vol. 22 at
14.
*564
III. THE PLAINTIFFS
In 1992, Hopwood, Elliott, Carvell, and Rogers applied for admission to the
law school. Hopwood is a white female; Elliott, Carvell, and Rogers are white
males. None of the plaintiffs are Mexican American and all are residents of
Texas. (footnote 36)
A. Cheryl Hopwood
Cheryl Hopwood had a TI of 199, which placed her in the resident presumptive
admit range. Hopwood's TI reflects a 3.8 grade point average and an LSAT score
of 39. (footnote 37) Hopwood's application indicates she received an associate's
degree in accounting from Montgomery County Community College in May 1984 and a
bachelor's degree in accounting from California State University in Sacramento
in 1988. The application further indicates she is a certified public
accountant in California, she worked twenty to thirty hours a week while
obtaining her undergraduate degree, and she was active in Big Brothers and Big
Sisters in California. P-145. Hopwood submitted an additional letter to the
law school dated January 22, 1992, requesting permission to attend law school
on a limited basis the first year, if accepted, because of the needs of her
child, who had been born with cerebral palsy. (footnote 38) Hopwood's application
file contains no letters of recommendation. (footnote 39) Additionally, her responses
to the questions are brief and do not elaborate on her background and skill.
She provided no personal statement with the application. (footnote 40)
After his initial review of Hopwood's file, Johanson dropped her from the
presumptive admission zone to the discretionary zone because, in his
evaluation, she had not attended schools that were academically competitive
with those of the majority of the applicants, had a large number of hours at
junior colleges, and was able to maintain a high GPA although working a
substantial number of hours. (footnote 41) Her file was subsequently reviewed by a
three-member subcommittee of the admissions committee, which was comprised of
Associate Dean Michael Sharlot, Dean Hamilton, and a law student. P-217
(Answer to int. 3). Because Hopwood received only one vote as result of the
subcommittee review, the law school sent her a letter, dated April *565 8,
1992, offering her a place on the waiting list. (footnote 42)
The letter, which stated "[w]e regret that we cannot grant you admission to
the 1992 entering class of the Law School at this time," instructed Hopwood to
return the attached form to the law school within three weeks if she wished to
be placed on the waiting list. P-145. The letter further instructed Hopwood
not to put her name on the list if she would not be able to accept an offer of
admission as late as August. Hopwood testified she subsequently called the law
school admissions office and was told offers could be made from the waiting
list through the first week of school. Hopwood, vol. 8 at 11-12. Hopwood did
not put her name on the list because personnel in the law school's admissions
office could provide no information regarding the likelihood of admittance from
the list and Hopwood did not believe she would be in a position to make last
minute arrangements for her special childcare needs if she were admitted either
just before or in the first week of classes. Hopwood, vol. 8 at 12.
The Court finds that, under Hopwood's circumstances, she was effectively
denied admission when she received the April 8 letter. Her failure to accept a
position on the waiting list or to seek a deferral of admission until the
following year, which information the Court notes is not included in the law
school's April 8 letter to Hopwood, does not negate this fact. (footnote 43)
B. Kenneth Elliott
Kenneth Elliott applied with a TI of 197, representing a GPA of 2.98 and an
LSAT score of 167. Elliott's application indicates he received a B.B.A. in
accounting from the University of Texas in 1984, is a certified public
accountant, and has worked as an auditor or examiner for state agencies since
receiving his undergraduate degree. P-153. In addition to his personal
statement, Elliott's file contains two letters of recommendation from
employment supervisors.
In the discretionary zone of nonminority applicants, Elliott's file was
reviewed by a subcommittee of three that included Johanson. D-332 at A-33.
Elliott received no votes, and the law school sent him a denial letter dated
April 11, 1992. P-153. In July 1992, Elliott's father wrote a letter to Dean
Mark Yudof in which he requested that Elliott's application for admission be
reconsidered. P-165. Elliott's father further stated that Elliott did not
know he was writing the letter and that Elliott's "friends and family all feel
that he was not accepted to U.T. because of limited openings at U.T. due to
mandatory minority and women quotas which use a large percentage of the
openings." (footnote 44) The dean referred the letter to Hamilton, who informed
Elliott's father that although she was not at liberty to discuss Elliott's
application, she would pursue the matter with Elliott if Elliott felt he had
been treated unfairly. Hamilton, vol. 2 at 67. Hamilton testified she
telephoned Elliott, told him she had received a letter on his behalf, and
invited him to come to her office to visit. Id. at 67-68. Hamilton testified
Elliott canceled the first appointment and she scheduled a second appointment,
which she canceled. Hamilton testified she subsequently called him back and
told him she was placing him on the waiting list. (footnote 45) Elliott, however,
testified *566 he had no further conversations with anyone at the law school
after the failed meetings and did not know he had been placed on the waiting
list. Elliott, vol. 7 at 21.
Hamilton testified that on August 24, she decided to grant Elliott an offer
of admission, left a message on his answering machine, and instructed
admissions personnel to continue to try to reach him. Hamilton, vol. 2 at
58-59. Hamilton stated that approximately a week later, after classes had
begun, Elliott returned her call but indicated it was impossible for him to
attend school at that time. Id. at 59-60. However, in Hamilton's affidavit,
submitted to this Court as part of the pretrial motions, Hamilton stated that
Elliott never responded to her phone calls. D-447 (Supp.Decl. of Hamilton at
3). Further, Elliott's file contains no letters either notifying him of his
placement on the waiting list or his admission to school, despite the existence
of such documentation for others offered admission from the waiting list late
in the process.
The Court finds that Elliott had to have realized, at minimum, his
application was under reconsideration when an assistant dean initially
contacted him. However, being offered a position on the waiting list, as the
Court has already found, is not equivalent to admission. To determine whether
Elliott actually received an offer of admission, the Court must evaluate the
conflicting testimony of Elliott and Hamilton. The discrepancies in Hamilton's
affidavit and trial testimony, as well as the law school's lack of
documentation of Elliott's status, weigh in Elliott's favor. (footnote 46)
Accordingly, the Court finds that Elliott was not notified of his admission to
law school.
In 1992, Elliott also applied to Baylor School of Law and Texas Tech School
of Law. He was denied admission to Baylor. Although accepted at Texas Tech, a
state university, Elliott declined the offer of admission by letter dated June
2, 1992. See D-401.
C. Douglas Carvell
Douglas Carvell had a TI of 197, which was based on an undergraduate GPA of
3.28 and an average LSAT score in the 76th percentile. (footnote 47) His application
reflects that in 1991 he received his B.A. in political science from Hendrix
College in Conway, Arizona. P-151. The LSDAS report indicates Carvell ranked
98th in his class of 247 at Hendrix College. P-151; D-336 at A-49. Carvell
provided detailed responses to the application questions on typewritten
attachments to his application. Carvell's file included three letters of
recommendation, one from a professor at Hendrix College that compliments his
intellectual abilities but describes his performance as uneven, disappointing,
and mediocre. P-151.
Because Carvell's TI placed him in the nonminority discretionary zone, his
file was reviewed by a subcommittee of three. He received no votes from the
two faculty members on the subcommittee, Professors Steven Goode and Mark
Gergen, but did get one favorable vote from a student member of the committee.
See D-335, D-336. Therefore, by letter dated April 15, 1992, the law school
offered him a position on the waiting list, which he accepted. While he was on
the waiting list, Carvell's file was reviewed by Associate Dean Michael
Sharlot, a member of the admissions committee. Sharlot did not vote to admit
Carvell from the waiting list. D-334 at A-43-A-44. By letter dated July 16,
1992, the law school denied Carvell admission. P-151.
In addition to the law school, Carvell applied for admission to Southern
Methodist University School of Law and Vanderbilt *567 School of Law. He was
denied admission to Vanderbilt, but was accepted at SMU, where he has completed
his first year of law school. Carvell, vol. 10 at 6-7. Carvell also applied
to the University of Texas School of Business and was denied admission. Id. at
12. At SMU, Carvell is pursuing a master's of business administration in a
joint program with the SMU law school. Id. at 6.
D. David Rogers
David Rogers had a TI of 197 based on his undergraduate GPA of 3.13 and an
LSAT score of 166. In the early to mid-1980s, Rogers attended the University
of Texas as a student in Plan II, an honors program. However, in 1985, he was
dismissed because of his poor scholastic performance. Rogers, vol. 11 at 55.
Rogers subsequently attended the University of Houston-Downtown and received an
undergraduate degree in professional writing in 1990. P-171; Rogers, vol. 11
at 56. In 1992, Rogers received an advanced degree in professional writing
from the University of Southern California. P-171. Rogers noted on his law
school application that "as a white who attended an all-minority school for
several years, and who was raised by a single mother, I have an unusual
understanding of the challenges faced by women and minorities." P-171.
Rogers's application file contains no letters of recommendation. P-171; see
also D-335 at A-46-A-47.
Rogers received no votes from any member of the subcommittee that reviewed
his file in the nonminority discretionary zone. By letter dated April 7, 1992,
he was denied admission to the law school. P-171.
IV. DISCUSSION
A. Ripeness and Standing
As a preliminary matter, the defendants contest the ripeness of two of the
plaintiffs' claims and the standing of all plaintiffs to bring this cause of
action. (footnote 48) With regard to Hopwood and Elliott, the defendants argue their
claims are not ripe because neither was denied admission. (footnote 49) As stated
above, the Court has found both Hopwood and Elliott were, in effect, denied
admission to the law school. Therefore, a ripe controversy exists between
these two plaintiffs and the defendants.
The defendants contend Hopwood lacked standing to challenge the admissions
policy because she failed to accept a position on the waiting list or to ask
for deferred admission. Therefore, according to the defendants, she has failed
to exhaust the administrative procedures available to her. The defendants
further contend all plaintiffs lack standing in that none can show they would
have been granted admission absent the challenged admissions policies. (footnote 50)
To have standing to challenge a governmental action, a plaintiff must
demonstrate a concrete "injury in fact," a causal relationship between the
injury and the challenged conduct, and a likelihood the injury will be
redressed by a favorable decision. Northeastern Fla. Contractors v. City of
Jacksonville, --- U.S. ----, ---- - ----, 113 S.Ct. 2297, 2301-02, 124 L.Ed.2d
586 (1993). However, the "injury in fact" in an equal protection case
involving a barrier that makes it more difficult for members of one group to
obtain a benefit than it is for members of another group is the denial of the
equal treatment and not the ultimate inability to obtain the benefit. Id. at
----, 113 S.Ct. at 2303.
The defendants assert this exception to requiring plaintiffs to show a direct
causal relationship is limited in its application to challenges to the validity
of express set-asides or reservations such as those addressed in City of
Jacksonville and Bakke. The Court does not read the requirements for standing
set forth in City of Jacksonville *568 to be limited in the manner defendants
contend. In defining standing as applied in equal protection cases, the
Supreme Court reviewed its precedent on the issue. The overarching proposition
of the cases the Supreme Court cited in reaching its holding was not that the
causal-connection exception applied only to specific set-asides, but that an
"injury in fact" stemmed from any governmental barrier that either created a
discriminatory obstacle or had the effect of producing unequal access to a
governmental benefit. (footnote 51) Accordingly, the Court finds all the plaintiffs
have standing--they have sufficiently alleged that the law school's admission
process is the cause of their injury and that a judicial order could redress
the injury. (footnote 52)
B. Standard of Review
Affirmative action plans based on race trigger strict judicial scrutiny.
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 721, 102
L.Ed.2d 854 (1989); see also Bakke, 438 U.S. at 291, 98 S.Ct. at 2748 (Powell,
J.) ("Racial and ethnic distinctions of any sort are inherently suspect and
thus call for the most exacting judicial examination."). Further, "the level
of scrutiny does not change merely because the challenged classification
operates against a group that historically has not been subject to governmental
discrimination." Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273, 106 S.Ct.
1842, 1846, 90 L.Ed.2d 260 (1986); see also Croson, 488 U.S. at 494, 109 S.Ct.
at 722 (reaffirming equal protection analysis is not dependent on the race of
those burdened or benefited by a classification).
The defendants contend, however, strict scrutiny is inappropriate in this
cause in light of the Supreme Court's holding in Metro Broadcasting v. FCC, 497
U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990). In Metro Broadcasting, the
Supreme Court held that affirmative action plans adopted pursuant to federal
mandates are subject to intermediate scrutiny--a determination whether the
plans serve important governmental objectives and whether they are
substantially related to the achievement of the objectives. Id. at 565, 110
S.Ct. at 3009. The defendants contend that the Texas Plans equate to a
federal mandate because they stem from the OCR's insistence on full compliance
with Title VI, an objective that is within the power of Congress. (footnote 53)
The Court finds the argument unpersuasive. In Metro, the FCC's minority
ownership programs had been specifically mandated and approved by Congress.
Id. at 563, 110 S.Ct. at 3008. While it is true that Congress has the power
to identify and redress the effects of discrimination and has charged the DOE
with assuring compliance with Title VI, there is no similar congressional
mandate in this cause. Further, the FCC is a licensing body that, pursuant to
a congressional mandate, established specific minority ownership policies. The
OCR has provided Texas with a number of suggested tools Texas may implement to
bring the higher educational system into compliance with Title VI; it has not,
however, required *569 the State to adopt any specific procedures. Although
the defendants characterize the law school's efforts as pursuant to an OCR
"consent decree," the evidence reflects that, to date, the State of Texas'
efforts to comply with Title VI have been made voluntarily in an effort to
avoid a specific mandate or the loss of federal funding. Ashworth, vol. 13 at
34, 39.
Further, under equal protection analysis, the same level of scrutiny applies
to race-conscious affirmative action plans adopted pursuant to consent
agreements as to other voluntarily adopted plans. See, e.g., In re Birmingham
Reverse Discrimination Employment Litig., 833 F.2d 1492, 1501 (11th Cir.1987),
aff'd sub nom. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835
(1989) (Title VII consent decree). Indeed, the most recent circuit court
opinion analyzing an affirmative action plan in the education context,
specifically a scholarship plan adopted in response to protracted litigation
and OCR guidelines, upheld the lower court's application of strict scrutiny as
the proper standard for review of the plan. See Podberesky v. Kirwan, 956 F.2d
52, 55 (4th Cir.1992).
The most compelling justification for application of strict scrutiny in this
context is to provide assurance that individual rights are afforded the full
protection they merit under the Constitution. Only by applying strict scrutiny
can a court honestly weigh the validity and necessity of efforts to remedy past
wrongs against the rights of otherwise qualified nonminorities affected by the
efforts. Although the use of racial classifications is disfavored, there are
instances when such classifications serving proper purposes should be upheld.
Only through diligent judicial examination can a court determine if a
classification is consistent with constitutional guarantees and not related to
"illegitimate notions of racial inferiority or simple racial politics."
Croson, 488 U.S. at 493, 109 S.Ct. at 721. Accordingly, the Court concludes
the law school admissions process must be subjected to a strict scrutiny test
under the Equal Protection Clause of the Fourteenth Amendment to protect both
the integrity of the process and the important individual rights at issue.
(footnote 54)
C. Application of Strict Scrutiny
Strict judicial scrutiny involves a determination of whether the law school
process served "a compelling governmental interest" and whether the process is
"narrowly tailored to the achievement of that goal." See Wygant v. Jackson
Bd. of Educ., 476 U.S. 267, 274, 106 S.Ct. 1842, 1847, 90 L.Ed.2d 260 (1986).
The purpose of ascertaining whether a compelling governmental interest exists
is to "smoke out" illegitimate uses of race by ensuring that the goal is
important enough to use the suspect tool of racial preference. Croson, 488
U.S. at 493, 109 S.Ct. at 721. The narrowly tailored analysis "ensures that
the means chosen 'fit' this compelling goal so closely that there is little or
no possibility that the motive for the classification was illegitimate racial
prejudice or stereotype." Id.
1. Compelling Governmental Interest.--Both sides expended considerable
time and effort at trial on the issue of whether a compelling governmental
interest existed sufficient to justify the need for the law school's
affirmative action program. The defendants offered a number of reasons as
justification for the law school's affirmative action program. These reasons
are set forth in the law school's "Statement of Policy on Affirmative Action":
(footnote 55)
*570 To achieve the School of Law's mission of providing a first
class legal education to future leaders of the bench and bar of the state by
offering real opportunities for admission to members of the two largest
minority groups in Texas, Mexican Americans and African Americans;
To achieve the diversity of background and experience in its
student population essential to prepare students for the real world functioning
of the law in our diverse nation;
To assist in redressing the decades of educational
discrimination to which African Americans and Mexican Americans have been
subjected in the public school systems of the State of Texas;
To achieve compliance with the 1983 consent decree entered with
the Office of Civil Rights of the Department of Education imposing specific
requirement for increased efforts to recruit African American and Mexican
American students;
To achieve compliance with the American Bar Association and the
American Association of Law Schools standards of commitment to pluralist
diversity in the law school's student population.
D-362. Although all are important and laudable goals, the law school's
efforts, to be consistent with the Equal Protection Clause, must be limited to
seeking the educational benefits that flow from having a diverse student body
and to addressing the present effects of past discriminatory practices. See
Bakke, 438 U.S. at 313; 98 S.Ct. at 2760 (environment fostering robust
exchange of ideas makes goal of diversity "of paramount importance in the
fulfillment of [a university's] mission"); United States v. Paradise, 480 U.S.
149, 167, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (1987) ("The government
unquestionably has a compelling interest in remedying past and present
discrimination by a state actor."); Podberesky, 956 F.2d at 57 (race-related
remedy may be used in attempt to remedy effects of past discrimination).
Accordingly, the Court will evaluate the program in light of these goals.
(footnote 56)
The plaintiffs do not dispute that under the holding of Bakke, obtaining the
benefits that flow from a racially and ethnically diverse student body is a
compelling interest justifying the use of racial preferences. (footnote 57)
Nevertheless, the plaintiffs suggest that under more recent Supreme Court
decisions, the only compelling interest recognized for race-conscious programs
is remedying the past effects of racial discrimination. (footnote 58) However, none
of the recent opinions is factually based in the education context and,
therefore, none focuses on the unique role of education in our society. (footnote 59)
Absent an explicit statement from the Supreme Court overruling Bakke, this
*571 Court finds, in the context of the law school's admissions process,
obtaining the educational benefits that flow from a racially and ethnically
diverse student body remains a sufficiently compelling interest to support the
use of racial classifications.
The defendants presented evidence, which included the testimony of deans from
law schools across the country and the testimony of former and current law
students, that the benefit to the law school educational experience derived
from a diverse student population is substantial. See, e.g., Brest, vol. 22 at
22-23; Stein, vol. 18 at 20-21; Bollinger, vol. 16 at 23-26; Spector, vol.
15 at 9-10. Additionally, several professors testified regarding the
educational benefit of having a diverse group of students in the classroom
setting. See, e.g., Goode, vol. 9 at 20-21; Yudof, vol. 21 at 59-60.
According to the evidence presented at trial, without affirmative action the
law school would not be able to achieve this goal of diversity. Had the law
school based its 1992 admissions solely on the applicants' TIs without regard
to race or ethnicity, the entering class would have included, at most, nine
blacks and eighteen Mexican Americans. (footnote 60)
Although under current law the goal of diversity is sufficient by itself to
satisfy the compelling governmental interest element of strict scrutiny, the
objective of overcoming past effects of discrimination is an equally important
goal of the law school's affirmative action program. The plaintiffs have
asserted that any past discrimination against blacks occurred so long ago, it
has no present effects and that the law school has never discriminated against
Mexican Americans. (footnote 61) The plaintiffs further assert the Court should limit
its review of past discrimination to official acts and policy of the University
of Texas law school and should not consider discrimination in Texas'
educational system as a whole. As support for this contention the plaintiffs
cite Croson, in which the Supreme Court struck down a city set-aside program
that required thirty percent of city contracts to be subcontracted to minority
businesses. 488 U.S. at 499, 109 S.Ct. at 724 ("Like the claim that
discrimination in primary and secondary school justifies a rigid racial
preference in medical school admissions, an amorphous claim that there has been
past discrimination in a particular industry cannot justify the use of an
unyielding racial quota.").
Recently, however, the Supreme Court held that a system of higher education
is under an affirmative duty to eliminate every vestige of racial segregation
and discrimination in its educational system and to reform those policies and
practices that required or contributed to separation of the races. United
States v. Fordice, --- U.S. ----, ----, 112 S.Ct. 2727, 2743, 120 L.Ed.2d 575
(1992). Thus, it appears the Supreme Court has recognized that the
restrictions it has applied in ascertaining the present effects of past
discrimination in the employment context, specifically the prohibition against
remedying effects of "societal discrimination" and discrimination implemented
by another governmental unit, are not appropriate in the education context.
See also Podberesky v. Kirwan, 838 F.Supp. 1075, 1098 & n. 79 (D.Md.1993).
"Applicants do not arrive at the admissions office of a professional school in
a vacuum," and, in fact, have ordinarily been students in an educational system
for sixteen years. Geier v. Alexander, 801 F.2d 799, 809 (6th Cir.1986). The
Court believes, therefore, the residual effects of past discrimination in a
particular component of a state's educational system must be analyzed in the
context of the state's educational system as a whole. The State's institutions
of higher education are inextricably linked to the primary and secondary
schools in the system. Accordingly, *572 this Court has not limited its
review to the law school or Texas' higher education system in evaluating the
present effects of past discrimination. (footnote 62) However, were the Court to
limit its review to the University of Texas, the Court would still find a
"strong evidentiary basis for concluding that remedial action is necessary."
Podberesky v. Kirwan, 956 F.2d at 55.
As discussed above, Texas' long history of discrimination against blacks and
Mexican Americans in public education is chronicled in court opinions, the
findings of the OCR, and the continuing desegregation suits against the State.
(footnote 63) The State of Texas engaged in overt discrimination against blacks until
the practices were forcibly dismantled in the relatively recent past.
Discrimination in education was at the center of official discrimination
against black Texans. Additionally, the University of Texas has a history of
racial discrimination.
Similarly, the State has subjected Mexican Americans to discriminatory
practices in the education area as reflected in the findings of unlawful de
jure discrimination in the numerous desegregation lawsuits. Less documentation
exists of overt official discrimination against Mexican Americans than against
blacks at the University of Texas. However, the legacy of Texas'
discriminatory practices continues to hinder the University of Texas' efforts
to attract qualified Mexican American students.
In recent history, there is no evidence of overt officially sanctioned
discrimination at the University of Texas. The evidence reflects that the
university has made genuine efforts in the last decade to end discrimination by
recruiting and maintaining minority faculty members and students and condemning
racial incidents occurring on campus or involving student organizations.
Despite these efforts, however, the legacy of the past has left residual
effects that persist into the present. The evidence presented at trial
indicates those effects include the law school's lingering reputation in the
minority community, particularly with prospective students, as a "white"
school; an underrepresentation of minorities in the student body; and some
perception that the law school is a hostile environment for minorities.
The university's efforts to recruit minorities has led to a modest increase
in the number of minorities attending the law school. However, admissions and
recruitment personnel face difficulties in attracting qualified minorities to
enroll in the law school. These difficulties stem from negative perceptions of
the racial climate at the law school as a result of past discrimination. (footnote 64)
Because of the law school's legacy of discrimination, it must overcome a
perception that it is a "white institution." Wright, vol. 19 at 33-34.
Recent racial incidents, although not officially sanctioned by the school, have
reinforced the perception that the university is hostile to minorities and has
hurt its ability to recruit minority students. Wright, vol. 19 at 29-31. An
affirmative action program is therefore necessary to recruit minority students
because of the past discrimination.
The effects of the State's past de jure segregation in the educational system
are reflected in the low enrollment of minorities in professional schools,
including the law school. The OCR findings and the OCR's continuing review of
Texas' efforts to desegregate demonstrate the pervasive nature of past
discrimination in the higher education *573 system. (footnote 65) As a result of
policies of official discrimination in the Texas higher education system, a
generation of blacks and Mexican Americans who are the parents of those
presently of law school age were denied meaningful opportunities for higher
education. Glenn, vol. 23 at 51-53; Romo, vol. 17 at 63-64; Wright, vol. 19
at 45-47. The denial of these opportunities to the generation of minority
parents bears a causal connection to the diminished educational attainment of
the present generation. Glenn, vol. 23 at 51-52; Romo, vol. 17 at 53-54.
Further, many public schools in Texas continued to have a substantial degree
of racial and ethnic segregation during the 1970s and 1980s, the decades in
which the majority of 1992 law school applicants attended primary and secondary
schools. Glenn, vol. 23 at 48-51; D-379. This segregation has handicapped
the educational achievement of many minorities. The ultimate effect of the
inferior educational opportunity, combined with the lower socioeconomic status
of minorities in Texas, is a disproportionately smaller pool of minority
applicants to law school. D-379 at 6-7; see also supra note 3.
In addition, some minority students enrolled in the law school feel isolated
even with the current commitment to affirmative action and diversity and are
often hesitant to participate in class discussion when they are the sole
minority or one of a few minorities in a class. Longoria, vol. 15 at 32-34;
Rodriguez, vol. 17 at 24-25. Some minority students continue to perceive a
hostile racial environment on the campus, which they assert is reflected in
insensitive comments by fellow students and faculty. Bell, vol. 14 at 16,
29-34; Escobedo, vol. 14 at 41-42; Longoria, vol. 15 at 32-24.
Accordingly, despite the plaintiff's protestations to the contrary, the
record provides strong evidence of some present effects at the law school of
past discrimination in both the University of Texas system and the Texas
educational system as a whole. Therefore, the Court finds the remedial purpose
of the law school's affirmative action program is a compelling governmental
objective.
2. Narrowly Tailored.--The Court must next decide if the admissions process
was narrowly tailored to achieve the goals of diversity and overcoming the
present effects of past discrimination. This determination requires the
application of four factors: the efficacy of alternative remedies; the
flexibility and duration of the relief; the relationship of the numerical
goals to the percentage of minorities in the relevant population; and the
impact of the relief on the rights of third parties. See United States v.
Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 1066, 94 L.Ed.2d 203 (1987).
The defendants have shown it is not possible to achieve a diverse student
body without an affirmative action program that seeks to admit and enroll
minority candidates. Brest, vol. 22, at 15. As stated above, in 1992, the
entering class would have included at most nine blacks and eighteen Mexican
Americans, had the review of minorities been limited to those applicants in the
presumptive admit and discretionary zones for white applicants. D-441; Yudof,
vol. 21 at 44; Johanson, vol. 6 at 38. These numbers reflect the maximum
potential and assume no adverse affect on the number of applicants stemming
from the abandonment of affirmative action.
Further, the record indicates the ultimate effect of abandoning affirmative
action at the law school would be to redirect minorities to the historically
separate state law school at Texas Southern University, thereby resegregating
the law school. (footnote 66) Alternatives, such as minority scholarships and
increased minority *574 recruitment, while effective tools in conjunction
with the affirmative action program, would not be effective means by themselves
to meet the compelling governmental interests of true diversity and remedying
the effect of past de jure segregation. In fact, the record in this case
demonstrates that, without affirmative action, the perception of the law school
as a "white" institution would be exacerbated, which would compound the
difficulties of attracting top minority students. Wright, vol. 19 at 36-37;
Goode, vol. 9 at 19; Rodriguez, vol. 17 at 25.
The evidence shows that despite genuine efforts to end discrimination, the
legacy of the past continues to hinder the law school's efforts to attract
highly qualified minority students. Accordingly, the Court finds affirmative
action in the law school's admissions program is an effective and necessary
means to overcome the legacy of the past and to achieve the diversity necessary
for a first-class university.
The plaintiffs argue the admissions program establishes the functional
equivalent of an impermissible quota system in which the law school attempts to
camouflage quotas through the use of the term "goals." The plaintiffs contend
because the admissions committee knows the approximate number of students in an
incoming class, the five percent black and ten percent Mexican American figures
translate into specific numbers.
The admissions data from the past ten years shows variations in the admission
figures for the two groups receiving admissions preferences at the law
school--blacks and Mexican Americans. The data reflects that between 1983 and
1993, the percentage of black admissions varied from a low of 3.2 percent,
occurring in 1987, to a high of 9.3 percent in 1983. The percentage in 1992
was 8.0 percent. Mexican American admissions varied from a low of 10 percent,
occurring in both 1983 and 1993, and a high of 14.3 percent occurring in 1984.
The percentage in 1992 was 10.7. (footnote 67)
An illegal quota, as defined by the Supreme Court, exists when a fixed number
of seats are set aside or an unyielding number is set to achieve a goal. See
Bakke, 438 U.S. at 288, 98 S.Ct. at 2747 (defining quota as fixed number of
seats set aside); see also Metro Broadcasting, 497 U.S. at 599, 110 S.Ct. at
3027 (equating quota with a "fixed quantity set aside"); Croson, 488 U.S. at
499, 109 S.Ct. at 724-25 (describing thirty percent minority set-aside as rigid
and unyielding quota); Fullilove v. Klutznick, 448 U.S. 448, 498, 100 S.Ct.
2758, 2785, 65 L.Ed.2d 902 (1980) (equating quota with set-aside). Though it
is evident from the admissions figures that the percentages of desired
minorities in a class derived from the OCR investigation served as guidelines,
the law school did not rigidly and inflexibly apply the numbers. Instead, the
percentages fluctuate randomly, albeit within a relatively narrow range, and
show no consistent pattern of increase. In some years, the law school has
failed to meet its goals because of the relatively weak strength of the
minority applicant pool. Goode, vol. 9 at 13-17. No evidence was presented at
trial that the law school granted a set-aside for any particular group or that
competition for any specific seat in the class was closed to some students
because of race or ethnicity. (footnote 68) Accordingly, the Court finds the 1992
admissions process did not use an illegal quota but was, in fact, flexible in
achieving its goals based on the strength of the minority applicant pool.
*575 As for duration, the law school has not stated precisely how
long it envisions maintaining its affirmative action admissions program.
However, in the 1990s, as the minority applicant pool improved, the admissions
committee made the decision not to admit greater numbers of minority students
but to attempt to close the gap in credentials of minority and nonminority
students. Wellborn, vol. 24 at 31-35; Goode, vol. 9 at 7, 17-18. Therefore,
in 1992, despite a significant increase in the number of minority applicants
from the previous years, the law school's minority admissions remained
relatively stable. Johanson, vol. 6 at 13-14; P-47; D-438; D-439.
The current objective of the law school, as articulated at trial, is to
continue to narrow the gap to the point where affirmative action will not be
required to achieve a representative percentage of minorities in the entering
classes. (footnote 69) The evidence reflects that the law school admissions committee
regularly reviews and adjusts the remedy to evaluate its necessity and
efficacy. (footnote 70) Certainly, an indefinite program would violate the Equal
Protection Clause. However, the law school's use of the program until the OCR
has determined Texas is in compliance with Title VI and until the gap in
minority and nonminority credentials has narrowed such that the State will
remain in compliance with Title VI without the need for affirmative action does
not offend the Constitution. See Podberesky, 764 F.Supp. at 376.
The third factor, the relationship of the numerical goals to the relevant
population, is easily satisfied under these facts. The law school has not
attempted to set goals that reflect the percentage of minorities in the general
population or the percentage of minorities attending college. Instead the law
school's goals for minority enrollment are generally in line with the
percentages of black and Mexican American college graduates in the State of
Texas. These goals stem from the OCR investigation and the resulting Texas
Plans. Goode, vol. 9 at 12-13; Johanson, vol. 4 at 9-12. They are reasonable
and logically related to the size of the relevant pool of minority prospects
for higher education.
The final factor, the impact of the procedure on the rights of innocent
third parties, is the most difficult to evaluate. By definition, if one person
is given preferential treatment based on race or ethnicity to overcome a
heritage of past societal wrongs, another person is penalized. However, the
person penalized or that person's ancestors may never have discriminated
against the preferred race or ethnicity. Although the past history of societal
discrimination in certain institutions may justify the remedy, in the end,
individuals pay the price. Therefore, it is imperative that the mechanics of
any program implementing race-based preferences respect and protect the rights
of individuals who, ultimately, may have to sacrifice their interests as a
remedy for societal wrongs.
In 1992, admissions subcommittees of three reviewed all the nonminority
files. With the exception of Johanson and Hamilton, none of the members of the
subcommittees reviewed the individual minority files. Nonminority applicants
receiving no votes were denied admission without any further consideration or
any direct comparison to minority applicants. In fact, as early as February
28, 1992, the law school had sent denial letters to 201 resident applicants,
none of whom were black or Mexican American. P-43. By March 24, 1992, 718
denial letters had been sent to resident applicants, all to nonminority
applicants. P-52. The law school did not reject any minority applicants until
later in the admissions process. P-60.
The lack of individual comparison between minority and nonminority files
resulted primarily *576 from the separate admissions procedures for
minorities and nonminorities in the discretionary zone; this is the aspect of
the procedure that is at issue with respect to the four plaintiffs in this
cause, who were evaluated in the discretionary zone. However, the setting of
different presumptive denial lines for minorities and nonminorities creates a
similar problem: some nonminority applicants who fell below the nonminority
presumptive denial line, though having a higher score than minority applicants
placed in the discretionary zone, were rejected early in the process with no
comparison to the individual minority applicants. (footnote 71) Further, although a
presumptive denial score was established for minorities, in 1992, every
minority applicant not admitted from the presumptive admit category was treated
as if in the minority discretionary zone. P-103.
The defendants defend the system used in 1992 as more effective in
controlling the use of race for limited, legitimate purposes than the previous
procedure of commingling minority and nonminority files in the stacks of
thirty, a procedure that allowed individual reviewers complete discretion on
the extent, if any, to implement affirmative action. Wellborn, vol. 24 at
8-17. The defendants assert the 1992 process was also more efficient in that
minority files were reviewed by the persons most experienced in reviewing and
evaluating minority files. Goode, vol. 9 at 3. The defendants concede that in
1992, with the exception of Johanson and Hamilton, no members of the general
admissions committee reviewed individual minority files. However, they contend
that the full committee was sufficiently apprised of the relative strengths of
the minority and nonminority applicant pools through information provided by
the minority subcommittee. Because the minority subcommittee shared this
information with the full committee, the defendants argue that the full
committee could reach a consensus on the weight to give race in the admissions
process and evaluate the nonminority stacks of files with the relative
strengths of the applicant pools in mind. Wellborn, vol. 24 at 10, 14-16;
Goode, vol. 9 at 8-9. The defendants also defend the law school's process as
consistent with similar processes used at major law schools across the country.
(footnote 72) However, review of admissions *577 procedures for equal protection
violations requires a fact-specific inquiry. The fact that other schools may
use processes with similar components does not resolve the issue of whether the
defendants deprived the four plaintiffs in this cause of equal protection under
the law.
In Bakke, Justice Powell stated that although race or ethnicity could be a
"plus" factor in consideration of a particular applicant, race or ethnicity
should "not insulate the individual from comparison with all other candidates
for the available seats." Bakke, 438 U.S. at 317, 98 S.Ct. at 2762. Justice
Powell further discussed the importance of assuring applicants that they were
treated as individuals in the admissions process:
The applicant who loses out on the last available seat to
another candidate receiving a "plus" on the basis of ethnic background will not
have been foreclosed from all consideration for that seat simply because he was
not the right color or had the wrong surname. It would mean only that his
combined qualifications, which may have included similar nonobjective factors,
did not outweigh those of the other applicant. His qualifications would have
been weighed fairly and competitively, and he would have no basis to complain
of unequal treatment under the Fourteenth Amendment.
Id. at 318, 98 S.Ct. at 2762. The defendants contend this express language
is limited in its application to only those affirmative action programs that,
like the one at issue in Bakke, use a quota system to achieve diversity. They
assert that Justice Powell's reasoning calling for a one-on-one comparison may
have application when the primary objective is to obtain a diverse class based
on a number of different qualifications. However, this reasoning does not
apply, according to the defendants, when a primary objective is to remedy past
discrimination. In such circumstances, the defendants maintain individuals
need not be compared one-to-one, as long as the admissions committee had a
generalized knowledge of the strengths of the minority and nonminority
applicant pools. (footnote 73) The Court disagrees.
Overcoming the effects of past discrimination is an important goal for our
society. The preservation and protection of individual rights are equally
important. Society must be careful not to ignore the latter to achieve the
former, for to do so would serve only to perpetuate actions of the type
affirmative action attempts to redress. Two wrongs do *578 not make a right;
nor does blatant discrimination cure the ills of past discrimination. Indeed,
affirmative action that ignores the importance of individual rights may further
widen the gap between the races that the law school so diligently attempts to
close and create racial hostility. The only proper means of assuring that all
important societal interests are met, whether in the context of creating
diversity or redressing the ill effects of past wrongs, is to provide a
procedure or method by which the qualifications of each individual are
evaluated and compared to those of all other individuals in the pool, whether
minority or nonminority.
The law school owes a duty to the citizens of Texas to allow access to a
legal education to the best qualified applicants. This does not imply that
those applicants with the highest numbers or most prestigious pedigrees are
necessarily the best qualified. A multitude of factors, as discussed by
Justice Powell in Bakke, should be considered in developing the best qualified
class from a given group of applicants. (footnote 74) "Indeed, the weight attributed
to a particular quality may vary from year to year depending upon the 'mix'
both of the student body and the applicants for the incoming class." Id. at
317-18, 98 S.Ct. at 2762. To achieve the compelling governmental goal of
remedying past discrimination, race and ethnicity are factors that deserve
"pluses" in the weighing of qualifications. To achieve the compelling
governmental goal of diversity, nonobjective qualifications of nonminorities
and minorities alike may deserve a similar "plus" factor. (footnote 75) Only by
comparing the entire pool of individual applicants can both these goals be
achieved and the best qualified class of entering law students be admitted.
The law school's 1992 admissions procedure, in theory, was designed to select
the best qualified applicants from the thousands of applications it received.
In 1992, the law school's affirmative action program involved a determination
of those applicants who were the best qualified from the entire minority pool
and an attempt to enroll sufficient numbers of those applicants in the entering
class to satisfy the compelling governmental objectives at issue. The law
school evaluated all nonminority applications through a separate process, with
the goal of admitting the best qualified nonminorities. The defendants
maintain this bifurcated process does not violate the Fourteenth Amendment
because affirmative action is lawful and those minorities selected are
evaluated against nonminority applicants by comparison of the general
qualifications of the two pools of applicants. The process, however,
incorporates no meaningful evaluation between the applicants selected from each
pool--a crucial element for protection of individual rights.
The Court holds that the aspect of the law school's affirmative action
program giving minority applicants a "plus" is lawful. But the failure to
provide comparative evaluation among all individual applicants in determining
which were the best qualified to comprise the class, including appropriate
consideration of a "plus" factor, created a procedure in which admission of the
best qualified was not assured in 1992. Under the 1992 procedure, the
possibility existed that the law school could select a minority, who, even with
a "plus" factor, was not as qualified to be a part of the entering class as a
nonminority denied admission. Thus, the admission of the nonminority candidate
would be solely on the basis of race or ethnicity and not based on individual
comparison and evaluation. *579 This is the aspect of the procedure that is
flawed and must be eliminated.
The constitutional infirmity of the 1992 law school admissions procedure,
therefore, is not that it gives preferential treatment on the basis of race but
that it fails to afford each individual applicant a comparison with the entire
pool of applicants, not just those of the applicant's own race. (footnote 76) Because
the law school's 1992 admissions process was not narrowly tailored, the Court
finds the procedure violated the Equal Protection Clause of the Fourteenth
Amendment.
D. Effect of Process on Plaintiffs
The next issue the Court must address is whether, but for the manner in which
the law school improperly considered race in its 1992 admissions procedure, the
plaintiffs would have been offered admission. The defendants argue that the
burden is on the plaintiffs to prove they would have been admitted. The
plaintiffs argue that once they prove a constitutional violation, the burden
shifts to the defendants to establish there was no but-for causation between
the unconstitutional procedure and the denial of admission to each plaintiff.
Generally, in cases where a plaintiff establishes a constitutional
deprivation, the burden shifts to the defendant to establish a legitimate,
nondiscriminatory reason for the action. See, e.g., Carey v. Piphus, 435 U.S.
247, 263, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252 (1978) (plaintiff seeking damages
for due-process violation must show injuries resulted from denial of due
process, not from corresponding justifiable deprivation); Mt. Healthy City Bd.
of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977)
(once employee established conduct constitutionally protected, burden shifted
to employer to show it would have reached same decision). Justice Powell's
opinion in Bakke suggests the same holds true in Title VI discrimination suits
when evidence of alternative reasons exists. (footnote 77) The Supreme Court has
recently taken the analysis one step further in the context of Title VII
discrimination cases and held that the failure of a defendant to produce
credible evidence of legitimate nondiscriminatory reasons is insufficient to
support a finding of discrimination *580 because the "ultimate burden of
persuasion" remains at all times with the plaintiff. See St. Mary's Honor Ctr.
v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993).
In making this clarification, Justice Scalia stated that a court has no
authority to impose liability upon an entity for alleged discriminatory
practices unless a factfinder determines, according to proper procedures, that
the entity has unlawfully discriminated. Id. at ----, 113 S.Ct. at 2751.
Courts have borrowed the burden of proof standards formulated for Title VII in
deciding claims brought under statutes prohibiting discrimination by
educational institutions receiving federal funding. See, e.g., Elston v.
Talladega County Bd. of Educ., 997 F.2d 1394, 1404 (11th Cir.1993) (Title VI
disparate impact claim). But see Cohen v. Brown Univ., 991 F.2d 888, 901-02
(1st Cir.1993) (Title IX plaintiff bears burden of showing disparity and unmet
interest). (footnote 78)
The Court finds that the cue in Justice Powell's opinion and the holdings of
other constitutional cases suggest that a burden allotment similar to that in
Title VII cases is appropriate. Therefore, because the plaintiffs established
a prima facie case--they proved the law school's 1992 admissions procedure was
constitutionally flawed--the burden shifted to the defendants to establish
legitimate grounds for the decision not to admit these plaintiffs,
notwithstanding the procedure followed. Unlike the university in Bakke, the
defendants in this cause did not concede the plaintiffs would have been
admitted had their applications been compared on a individual basis to minority
files. Instead, they offered legitimate, nondiscriminatory reasons for denying
each of the plaintiff's applications. D-332 (Hopwood, Elliott); D-334
(Hopwood, Carvell); D-335 (Carvell, Rogers); D-336 (Carvell). Further, a
statistical analysis of the 1992 admissions data supports the defendants'
assertion of the non-race based weaknesses in the plaintiffs' applications.
D-338 at A-60--A-71.
The plaintiffs placed in evidence a chart created by the law school that
depicts the TIs of all 1992 applicants and whether they were offered or denied
admission. See P-139. The chart distinguishes minority and nonminority
applicants, as well as residents and nonresidents. (footnote 79) The chart emphasizes
the disparity in TIs between resident minority and nonminority applicants: the
highest nonminority TI was 220, the highest black TI was 199 (the same as
Hopwood's TI), and the highest Mexican American TI was 208. In the resident
nonminority category, of fifty-one applicants with TIs of 199, six were denied
admission. Additionally, the law school denied admission to ten nonminorities
with TIs higher than Hopwood's TI. With regard to minority applicants with TIs
of 199, the chart shows one black applicant, who was admitted, and three
Mexican American applicants, all who were admitted. (footnote 80) With regard to a TI
of 197, the TI shared by the other three plaintiffs, of fifty-seven resident
nonminority applicants, the law school denied admission to nineteen. Only one
black resident fell in this category, who was admitted. No Mexican-American
applicants had a TI of 197.
On the other end of the scale, out of four black resident applicants with a
TI of 185, one was denied admission. However, the law school offered admission
to one nonminority resident with the same TI. Applicants with the lowest TI
offered admission were all minorities. (footnote 81) However, the lowest nonminority
*581 TI was only a couple of points higher at 185.
There are many possible methods of evaluating the numbers on the chart and
making comparisons of the applicants' relative TIs. The plaintiffs placed the
chart in evidence to show their numerical standing above that of the majority
of minorities offered admission. The Court agrees with the plaintiffs that the
chart shows a significant disparity in TIs between the minority and nonminority
pools. But the visual depiction of this disparity further reinforces the
Court's finding that the evaluation of applicants must include other
nonobjective factors to achieve the compelling governmental interest of
overcoming the past effects of discrimination.
What the chart does not prove, however, is that race or ethnic origin was the
reason behind the denial of admission to the plaintiffs. Although the
plaintiffs had higher TIs than the majority of minority applicants offered
admission, the evidence shows that 109 nonminority residents with TIs lower
than Hopwood's were offered admission. (footnote 82) Sixty-seven nonminority
residents with TIs lower than the other three plaintiffs were admitted. (footnote 83)
Additionally, the Court has reviewed the files of the four plaintiffs as well
as the files placed in evidence of other applicants reviewed in the
discretionary zone, both minority and nonminority. P-146 to P-150, P-155 to
P-164 (white applicants admitted); P-224 to P-237 (black and Mexican American
applicants admitted). Based on the applications in evidence, it appears the
majority of applicants, both minority and nonminority, made considerable effort
to inform the admissions committee of their special qualifications through
extensive answers to the questions on the application form or through personal
statements. See P-146 to P-150, P-155 to P-163, P-225 to P-237. Most files
contained one, if not several, letters of recommendation. See, e.g., P-155,
157, 158, 161, 225, 231, 233-236. In fact, of all the applications the Court
reviewed, Hopwood's provides the least information about her background and
individual qualifications and is the least impressive in appearance, despite
her relatively high numbers. The files further reveal that both minorities and
nonminorities were offered admission from the waiting lists. See P-146, 148,
156, 158, 162 (nonminority); P-231, 285 (minority).
In reviewing these files, the Court appreciates the difficulty of the
task facing the admissions committee each year. Evaluation of applications
involves both objective and subjective factors, and the Court is aware that
some evaluators could use subjectivity to conceal discriminatory motives. As a
general rule, however, judges are not as well suited to evaluate qualifications
of applicants as those who are familiar with the process and have many years of
experience evaluating applications. See Odom v. Frank, 3 F.3d 839, 847 (5th
Cir.1993). The Court's review revealed a group of applicants with varying
backgrounds and accomplishments, but none so clearly better qualified, in the
Court's view, as to require that individual's selection over that of another in
the group. (footnote 84) The Court sees no disparities in the applications of the
admitted minorities when compared to those of the plaintiffs "so apparent as
virtually to jump off the page and slap [the Court] in the face." Id. Without
such a disparity, the Court cannot and will not substitute its views for those
of admission committee members with years of experience and expertise in
evaluating the law school applications. See id.
Therefore, the Court finds the defendants have met the burden of producing
credible evidence that legitimate, nondiscriminatory grounds exist for the law
school's denial of admission to each of the four plaintiffs and that, in all
likelihood, the plaintiffs would not have been offered admission even under a
constitutionally permissible process. The plaintiffs, who maintain the
ultimate burden *582 of persuasion, have failed to prove otherwise. (footnote 85)
The Court simply cannot find from a preponderance of the evidence that the
plaintiffs would have been offered admission under a constitutional system.
The Court is mindful that the ultimate burden on the plaintiffs is a
difficult and, perhaps, almost impossible obstacle to overcome in a case of
this nature. (footnote 86) However, the Court may not ignore the precedent of other
constitutional cases because, as a practical matter, the burden may be too
difficult for plaintiffs to overcome.
E. Relief and Damages
The plaintiffs seek declaratory and injunctive relief, as well as
compensatory and exemplary damages. Because the Court has found the admission
procedure the law school used in 1992 was not narrowly tailored in that it
impermissibly and unnecessarily harmed the rights of the plaintiffs, the Court
will enter a judgment providing the plaintiffs with their requested declaratory
relief. Specifically, the Court will enter judgment that the law school's use
of the separate evaluative processes for minority and nonminority applicants in
the discretionary zone violated the Fourteenth Amendment.
However, "the right to equal treatment guaranteed by the Constitution is not
coextensive with any substantive rights to the benefits denied the party
discriminated against." Heckler v. Mathews, 465 U.S. 728, 739, 104 S.Ct. 1387,
1395, 79 L.Ed.2d 646 (1984). As discussed above, the Court cannot find from a
preponderance of the evidence that the plaintiffs would have been admitted
under a constitutional system. The Court, therefore, will not order injunctive
relief. Nor does the Court find prospective injunctive relief necessary in
light of the law school's voluntary change to a procedure, which on paper and
from the testimony, appears to remedy the defects the Court has found in the
1992 procedure. (footnote 87) Further, neither a plaintiff denied admission under the
new system nor evidence of the practical application of the new procedure is
before this Court.
Although the plaintiffs have failed to prove an injury-in-fact, they have
proved they were deprived of their right to equal treatment. The appropriate
relief for a denial of equal treatment in a discriminatory government *583
program is a remedy mandating equal treatment. (footnote 88) Therefore, the Court
finds it appropriate to allow the plaintiffs to reapply to the law school for
admission in the 1995 entering class, if they so desire, without requiring them
to incur further administrative costs, and for them to be fairly evaluated in
comparison to all other applicants for admission in 1995. (footnote 89)
In addition, though the plaintiffs did not prove they suffered any other
actual injury, the Court will not ignore the gravity of the noneconomic injury
to persons denied equal treatment. Therefore, although normally assessed in
the context of procedural due-process violations, the Court believes this to be
an appropriate case for the assessment of nominal damages:
By making the deprivation of such rights actionable for nominal
damages without proof of actual injury, the law recognizes the importance to
organized society that those rights be scrupulously observed; but at the same
time, it remains true to the principle that substantial damages should be
awarded only to compensate actual injury or, in the case of exemplary or
punitive damages, to deter or punish malicious deprivations of rights.
Carey v. Piphus, 435 U.S. at 266, 98 S.Ct. at 1054. The Court, therefore,
will award each plaintiff nominal damages of one dollar.
With regard to general monetary damages, the evidence at trial consisted of
each plaintiff's testimony and speculation about the value of a law degree.
(footnote 90) Because the plaintiffs have failed to establish that they would have
been admitted under a constitutional system, they are not entitled to these
damages. Further, had the plaintiffs been entitled to damages, none of them
established monetary damages as required under the law and rules of this
circuit. See Haley v. Pan American World Airways, 746 F.2d 311, 316 (5th
Cir.1984) ("A damage award cannot stand when the only evidence to support it is
speculative or purely conjectural."). Finally, the Court would not award Title
VI damages even were such damages appropriate because the Court does not
believe the defendants intended to discriminate against the plaintiffs in an
unlawful manner. See Carter v. Orleans Parish Pub. Schs., 725 F.2d 261, 264
(5th Cir.1984) (recovery of damages under Title VI precluded unless action
intentional or manifested discriminatory animus); Marvin H. v. Austin Indep.
Sch. Dist., 714 F.2d 1348, 1356-57 (5th Cir.1983) (same). Indeed, the evidence
reflects the contrary. The defendants acted in good faith and made sincere
efforts to follow federal guidelines and to redress past discrimination. The
record contains no evidence that the defendants intended to discriminate
against or to harm the plaintiffs. Under these facts, an award of damages,
especially the punitive damages the plaintiffs request, would be inappropriate.
V. CONCLUSION
It is regrettable that affirmative action programs are still needed in our
society. However, until society sufficiently overcomes the effects of its
lengthy history of pervasive racism, affirmative action is a necessity.
Further, although no one likes employing racial classifications and
distinctions, "it would be impossible to arrange an affirmative action program
in a racially neutral way and have it successful." Bakke, 438 U.S. at 407, 98
S.Ct. at 2808 (Blackmun, J., concurring in part and dissenting in part).
*584 Commitment to affirmative action programs in educational
institutions as just and necessary, however, does not imply that the individual
rights of nonminorities should fall by the wayside or be ignored. The concern
for individual rights requires that programs implementing racial and ethnic
preferences be subjected to the most searching judicial examination of strict
scrutiny. Only by applying strict scrutiny can the judicial branch assure
society that the important individual rights protected by the Fourteenth
Amendment have not been unnecessarily and unfairly burdened solely as a
function of the color of an individual's skin. The judicial branch must
carefully and honestly assess the harm to those individual rights in light of
the compelling interests served and benefit bestowed upon society by the
affirmative action program. To do otherwise would do little more than, in the
words of Justice Kennedy, move us from "separate but equal" to "unequal but
benign." Metro Broadcasting, 497 U.S. at 638, 110 S.Ct. at 3047 (Kennedy, J.,
dissenting).
Further, if we wish to progress to a society in which affirmative action is
no longer necessary, we must be cognizant of pitfalls and dangers created by
affirmative action in the form of the stigma some associate with racial
preferences and the potential institutionalization of a process that was
designed to overcome institutionalized discrimination. The interests of all
require that the government not diminish the importance of individual rights,
whether belonging to a minority citizen or a nonminority citizen, through
programs, that although well-intentioned, unwittingly "permit the seeds of race
hate to be planted under sanction of law." Plessy v. Ferguson, 163 U.S. 537,
560, 16 S.Ct. 1138, 1147, 41 L.Ed. 256 (1896) (Harlan, J., dissenting).
The Court realizes that some individuals will continue to complain that any
admissions program employing preferences based on race, no matter how carefully
designed and administered to provide individualized consideration, deprives
nonminorities of their rights. However, when the program functions to overcome
the effects of years of discrimination and to serve important societal goals,
affirmative action "is consistent with equal protection principles as long as
it does not impose undue burdens on nonminorities." Metro Broadcasting, 497
U.S. at 597, 110 S.Ct. at 3026. The Court believes the only way of assuring
an undue burden is not placed on innocent parties in an admissions procedure is
to treat all applicants as individuals and to consider all qualifications in
selecting the best qualified candidates to comprise an entering class. Using
the color of an applicant's skin to limit the degree of individual comparison
between the races neither serves societal goals nor sufficiently protects
individual rights under our Constitution. (footnote 91)
Judgment will be issued consistent with the Court's findings in this opinion.
FINAL JUDGMENT
BE IT REMEMBERED on the 19th day of August 1994, the Court entered its
memorandum opinion consisting of its findings of fact and conclusions of law in
the above-captioned matter and, consistent with those findings and conclusions,
enters the following judgment:
IT IS ORDERED, ADJUDGED, and DECREED, by declaratory
judgment, that the 1992 admissions procedure of the law school at the
University of Texas at Austin, as administered, was in violation of the *585. 14th Amendment of the United States Constitution;
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Cheryl J.
Hopwood, Douglas W. Carvell, Kenneth R. Elliott, and David A. Rogers shall be
entitled to reapply for admission to the law school at the University of Texas
at Austin for the 1995-96 school year without further administrative expense or
fees and that their applications shall be reviewed by the admissions committee
of the law school at the University of Texas at Austin along with all other
applications for that school year;
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that Cheryl J.
Hopwood, Douglas W. Carvell, Kenneth R. Elliott, and David A. Rogers do have
and recover judgment of and against the defendants University of Texas at
Austin and the University of Texas School of Law, jointly and severally, in the
total amount of One Dollar ($1.00) each;
IT IS FINALLY, ORDERED, ADJUDGED, and DECREED that all
further affirmative relief requested by any party herein against any other
party herein is DENIED.
footnote 1. Defendants Bernard Rapopart, Ellen C. Temple, Lowell H.
Lebermann, Jr., Robert Cruikshank, Thomas O. Hicks, Zan W. Holmes, Jr., Tom
Loeffler, Mario E. Ramirez, and Martha E. Smiley are sued in their official
capacities as members of the University of Texas Board of Regents. Defendant
University of Texas Board of Regents is the governmental entity created by
Defendant State of Texas to administer the operation of the University of Texas
system, which includes Defendant University of Texas at Austin as a component
institution. Defendant University of Texas School of Law is an American Bar
Association accredited law school operated by the University of Texas at
Austin. Defendant Robert M. Berdahl is sued in his official capacity as
president of the University of Texas at Austin. Defendant Mark G. Yudof is
currently Provost of the University of Texas at Austin. At all times pertinent
to this lawsuit, Yudof was Dean of the University of Texas School of Law and is
sued in that official capacity. Defendant Stanley M. Johanson, a Professor of
Law, is sued in his official capacity as Chair of the University of Texas
School of Law Admissions Committee.
footnote 2. The plaintiffs' Title VI, Sec. 1981, and Sec. 1983 claims serve as
vehicles to enforce underlying rights guaranteed by the Fourteenth Amendment.
Therefore, the law school's admissions program must be evaluated under the
equal-protection clause of the Fourteenth Amendment.
footnote 3. In 1990, the percentage of persons age 25 or older who completed high
school was 81.5% non-Hispanic white, 66.1% black, and 44.6% Hispanic. D-411.
College graduate rates for the same year reflect 25.2% non-Hispanic whites, 12%
black, and 7.3% Hispanic. D-412.
footnote 4. The Texas Legislature created Prairie View State Normal & Industrial
College for Colored Teachers at Prairie View (now Prairie View A & M
University) for the education of "students to be taken from the colored
population of this State." Wright, vol. 19, at 17, 19-21. Until 1947, it
remained the only state-supported institution of higher learning open to black
students in Texas; no type of professional training was available to blacks.
Commentary, Tex. Const. art. VII, Sec. 14 (West 1993). In 1947, to avoid
integration of the University of Texas, the Texas Legislature created the Texas
State University for Negroes (now Texas Southern University). Id. at 21-22;
D-382.
footnote 5. See Adams v. Richardson, 356 F.Supp. 92 (D.D.C.), modified and aff'd, 480
F.2d 1159 (D.C.Cir.1973), dismissed sub nom. Women's Equity Action League v.
Cavazos, 906 F.2d 742 (D.C.Cir.1990).
Title VI proscribes discrimination that violates the equal
protection clause of the Fourteenth Amendment. See Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 286-87, 98 S.Ct. 2733, 2746-2747, 57 L.Ed.2d 750 (1978).
The prohibitions against discriminatory conduct contained in Title VI govern
"program[s] or activit[ies] receiving Federal financial assistance." 42
U.S.C.A. Sec. 2000d. Thus, "Congress was legislating to assure federal funds
would not be used in an improper manner." United Steelworkers v. Weber, 443
U.S. 193, 206 n. 6, 99 S.Ct. 2721, 2729 n. 6, 61 L.Ed.2d 480 (1979). The
University of Texas, as a recipient of Title VI funds, is required to comply
with Title VI.
The Department of Education, as the successor agency to HEW, is
the governmental agency charged with the enforcement of Title VI and the review
of programs funded through the DOE. The DOE has promulgated regulations to
implement the provisions of Title VI, including regulations providing for
affirmative action in certain circumstances. The regulations state that "[i]n
administering a program regarding which the recipient has previously
discriminated against persons on the ground of race, color, or national origin,
the recipient must take affirmative action to overcome the effects of the prior
discrimination." 45 C.F.R. Sec. 80.3(b)(6)(i) (1993). The regulations state
further that even if a recipient has never implemented discriminatory policies,
if its services and benefits have not been equally available to some racial or
nationality groups, the recipient may "establish special recruitment policies
to make its program better known and more readily available to such group, and
take other steps to provide that group with more adequate service." 45 C.F.R.
Sec. 80.5(j).
*585_ footnote 6. D-314. The revised plan raised the goal previously set
for increased minority enrollment in graduate and professional schools. The
individual goal for UT-Austin had been ten additional black students and two
additional Hispanic students. Ashworth, vol. 12 at 26-27; vol. 13 at 56-58.
The revised plan included a commitment to "seek to achieve proportions of black
and Hispanic Texas graduates from undergraduate institutions in the State who
enter graduate study or professional schools in the State at least equal to the
proportion of white Texas graduates from undergraduate institutions in the
State who enter such programs." D-238a at 5.
footnote 7. Ashworth, vol. 12 at 32-24. The government, as usual, proceeds with "all
deliberate speed."
footnote 8. Johanson, vol. 3 at 12. Ernest Smith, who was a member of the admissions
committee from 1965 through 1970 and dean of the law school from 1974 to 1979,
testified by deposition that his recall of the required grade point average at
that time was 3.0. Smith depo. at 7. Although neither Smith nor Johanson had
exact recall of the number, their testimony is consistent in that the
qualifications for admission at the time were minimal.
footnote 9. The Texas Index is a composite number calculated by the Law School Data
Assembly Service (LSDAS) that reflects an applicant's grade point average and
LSAT score. The weight attributed to each component of the TI is determined by
a prediction formula derived from the success of first year students in
preceding years. Johanson, vol. 3 at 7-10.
footnote 10. The CLEO (Council on Legal Education Opportunity) program provided summer
training at participating law schools for minority graduates of various
universities. At the end of the training period, the CLEO participants were
given exams. Based on their performance on those exams, some of the
participants were admitted to the law school. Smith depo. at 9-10.
footnote 11. The committee was named after the chair of the committee, Professor James
Treece.
footnote 12. In the summer of 1974, just before Ernest Smith became dean of the law
school, the then president of the university, Steve Spurr, expressed concern
about the low minority population in the law school. Spurr indicated that a
public university had an obligation to train a reasonably representative
cross-section of the population in the law and that the TI, as the focus of the
admissions procedure, did not adequately account for an applicant's ability to
overcome past economic, cultural, and discriminatory practices. Smith depo. at
17.
footnote 13. Johanson, vol. 3 at 15. Professor Johanson did not recall if any of the
members of the Treece committee were also members of the regular admissions
committee.
footnote 14. During this time, the law school entering class was comprised of 500
students, and no more than 10% of the students could be nonresidents.
Johanson, vol. 3 at 17.
footnote 15. The law school's procedure differed from the Bakke procedure in that no
fixed number of seats were set aside for minorities and some nonminorities were
evaluated by the Treece committee. P-1 (Smith memo at 3).
footnote 16. Professor Johanson testified the system used five bands, while Professor
Wellborn testified there were six bands.
footnote 17. Evidently, sometime between 1978 and 1991, the automatic or
administrative admission line was changed to a presumptive admission line. The
testimony is unclear as to when this occurred and, apparently, even after the
change was made, those involved with the admissions procedure continued to make
reference to automatic admission. Johanson, vol. 3 at 26, 66; see also id. at
29 ("I think we used the term 'automatic admit' for a long period of time, when
it became part of the colloquium but did not describe the process."). Dean
Sutton, who succeeded Dean Smith and was dean from 1979 to 1984, established
the rule that approximately 55% of the resident class should fall within the
presumptive admission category. Johanson, vol. 3 at 24-25. Approximately 75%
of nonresident applicants are admitted from the presumptive admission category
for nonresidents. Id.
footnote 18. Because the law school was receiving better qualified minority
applicants, the focus of the process changed from whether to accept a
particular minority applicant to a more selective process between the
individual minority applicants. Wellborn, vol. 24 at 33. Had the admissions
committee continued to apply its previous standards, the number of minorities
in the entering class would have continued to grow. However, the committee
elected instead to "take advantage of this opportunity to have more excellent
minority students than we had before, who would be more competitive with the
non-minority students, but perhaps in more limited numbers that would still
constitute reasonable representation." Id. at 35.
*585_ footnote 19. P-25. The percentage goals are based on the percentages
of minority college graduates. See supra note 6.
footnote 20. Professor Johanson, who is white, has been on the admissions committee
since 1964 and chair of the committee since 1973. Dean Aleman is an assistant
dean and is Mexican American. Dean Hamilton was an assistant dean from 1990
through 1993 and is black.
footnote 21. At some point in the process, the presumptive admission line for
nonminority resident admissions was adjusted downward to ensure that
approximately 55% of the resident admissions would be presumptively admitted.
The 55/45 split did not apply to nonresident applicants, approximately 75% of
whom were admitted presumptively on the basis of their TI. See supra note 17.
footnote 22. Johanson, vol. 3 at 26. In 1992, the law school received approximately
2100 resident applications and 2300 nonresident applications. Johanson, vol. 3
at 35. The pool of nonresident applicants was very strong, many with
credentials well above those of the presumptively admitted residents. Id. at
36. Accordingly, the presumptive admission and denial scores were set at a
higher level for nonresident applicants. However, as with resident applicants,
lower scores were set for Mexican American and black nonresident applicants
than for nonminority nonresident applicants.
Johanson testified the enrollment yield for nonresidents is
approximately 26%, meaning that the law school has to offer approximately four
nonresidents admission to enroll one. Id. at 37. The enrollment yield for
residents is 66 to 68%, that is, for every 100 offers of admission, 66 to 68
resident applicants accept.
footnote 23. Johanson reviewed minority and nonminority files together
as a group during the preliminary review process. Johanson, vol. 6 at 55.
footnote 24. Johanson's setting of these scores was a process that evolved over the
course of the admissions process based on the pool of applicants, the number of
offers, and the number of acceptances. Initially, the numbers were set high
and lowered as the yield from offers and composition of the entering class
began to develop. Johanson, vol. 5, at 10-11; P-38--P-44.
footnote 25. P-38. In 1992, the law school was faced with two different types of TIs,
one based on a two digit LSAT score and one based on a three digit LSAT score.
This was a result of the change in the scaling of the LSAT from a 10-to-48
scale to a 120-to-180 scale. Johanson therefore had to set presumptive lines
coordinated to two separate TI formulas to accommodate the two types of TIs
received for applicants. Johanson, vol. 3 at 26-27.
footnote 26. In 1992, the admissions committee reviewed 18 stacks in the nonminority
discretionary zone--17 stacks of 30 files and one stack of 16 files. P-58,
P-59. This process began in early March and was virtually complete by mid to
late April. Johanson (by depo.), vol. 25 at 7.
footnote 27. In 1992, Johanson allotted each person on the subcommittees nine votes
per stack. D-332 at A-29. Committee members were required to screen five
stacks. P-55. Therefore, although each member of the admissions committee
reviewed more than one stack of files, no individual reviewed all the files in
the discretionary zone.
footnote 28. Johanson testified that he had "rarely, if ever" vetoed a committee
recommendation based on two or three votes, except in instances where an
administrative problem might make an individual ineligible for law school.
footnote 29. Johanson, in rebuttal testimony provided by deposition, testified,
"[T]hose candidates who receive zero votes to admit, they're done. I don't
even look at their files. Three people have said in comparison to our
applicant pool they are not worthy of being admitted. They will--the next day
they will get their denial...." Johanson (by depo.), vol. 25 at 10 (emphasis
added). This testimony contradicts the statement in the law school's
"Statement of Policy on Affirmative Action," which states that all final
decisions on each applicant file are made by Johanson. See D-362 at 4.
footnote 30. Both Johanson and Hamilton attended all the meetings; Aleman's
attendance was not regular. Frequently, student members of the subcommittee
attended the meetings, although they were not voting members of the
subcommittee. Johanson, vol. 5 at 28-29.
footnote 31. Johanson testified that, although a "particularly naughty problem" might
be brought before the entire committee, almost all final decisions were made by
the subcommittee. Johanson, vol. 5 at 29; see also Johanson, vol. 6 at 47.
*585_ footnote 32. The law school received 4,494 applications for the fall
1992 incoming class. It offered admission to 936 applicants to fill a class of
slightly over 500 students. D-447 (Aff. of Rita Bohr at A-4). The overall
median GPA for entering students was 3.52, and the overall median LSAT was 162
(89th percentile). D-433. The median figures for nonminorities were a GPA of
3.56 and an LSAT of 164 (93rd percentile); for blacks, a GPA of 3.30 and an
LSAT of 158 (78th percentile); and for Mexican Americans, a GPA of 3.24 and an
LSAT of 157 (75%). Id.
footnote 33. Johanson, vol. 4 at 9, 31. The percentage of nonresidents that may
comprise an entering class has recently been increased to 20%. Johanson, vol.
4 at 46.
footnote 34. Nevertheless, Hamilton, as assistant dean of admissions responsible for
recruiting the law school class, actively recruited minority students through
"one-on-one" discussions and scholarship enticements. Hamilton, vol. 2 at 4-5,
9, 12-13.
footnote 35. The practice of using the GPA/LSAT index as a sorting mechanism is used
by many nationally prominent law schools. Brest, vol. 22 at 13-14; Stein,
Vol. 18 at 15; Bollinger, vol. 16 at 11-14; Wegner depo. at 9-10. However,
none rely on the index as the sole basis for admission decisions. Id.; see
also D-448.
footnote 36. The defendants contend that Hopwood should have been evaluated as a
nonresident and, accordingly, would not have been in the presumptive admit
range for nonresidents. However, Johanson testified that Hopwood did not
misrepresent her status to the law school. She stated in her application she
was married to a person in the military who was stationed in Texas at the time
of her application. The law school treated her application as that of a
resident throughout the process. Johanson, vol. 5 at 14. Further, Hopwood's
residency classification was consistent with the law school's policies in
effect at the time. Id.; Johanson, vol. 4 at 44-45; Hopwood, vol. 8 at
12-13.
footnote 37. Hopwood's LSAT score placed her in the 83rd percentile, well below the
median LSAT for nonminorities in the 1992 entering class. P-145; D-433. Her
two-digit TI was an 87, which correlates to 199 in the three-digit scoring
system.
footnote 38. Hopwood testified that although her child was initially diagnosed with
cerebral palsy, she has been found to have an extremely rare muscle disease and
is severely handicapped. Hopwood, vol. 8 at 8-9. This information is not
included in her admission file.
footnote 39. Hopwood testified that although she had been prepared to submit letters
of recommendation, a person in the admissions office informed her that, because
of the large number of applications, the school did not have time to look at
recommendations. Hopwood, vol. 8 at 6.
footnote 40. Hopwood testified that while in high school, she applied for college at
Temple, Princeton, and Penn State and was offered admission at each school.
However, because she had to pay for her own education and had to work her way
through school, she could not afford to go to these schools. Hopwood, vol. 8
at 4. However, this information is not included in Hopwood's application
despite the following statement on the application: "Please make any other
comments about your college transcripts or your preparation for college (such
as disadvantaged educational or economic background) that you believe will help
the Admissions Committee in evaluating your application."
footnote 41. Johanson, vol. 5 at 14-17. Johanson believed that Hopwood's ability to
work a significant number of hours while maintaining a high GPA was indicative
of earning her GPA while on "a fairly slow track" at a non-competitive
institution. Id. at 15-16. In contrast, Associate Dean Sharlot found that
Hopwood's achievement of a high GPA while working was a "definite plus."
D-334. This "plus," however, was insufficient to overcome Hopwood's
below-median performance on the LSAT and attendance at a series of "very weak
schools." Id.
footnote 42. Hopwood received one vote from Hamilton, who was also a member of the
minority subcommittee. P-217 (Answer to int. 4); D-333 at A-37.
footnote 43. The Court notes that during 1992, individuals were offered admission from
the waiting list. Of the 332 applicants offered a position on the waiting list
in 1992, 75 were admitted. D-447 (Aff. of Rita Bohr at A-5). Hamilton
testified that as late as the first week of classes, seven persons were
admitted from the waiting list. Hamilton, vol. 2 at 65-67. However, the Court
also notes from the affidavits of Johanson and Hamilton that Hopwood had little
likelihood of acceptance from a waiting list. In fact, Hamilton specifically
stated, "It is my belief that Ms. Hopwood [would] not have been admitted off
the waiting list at a later time." D-333 at A-39.
*585_ footnote 44. P-165. The only copy of the letter in the record is an
unsigned draft provided by the plaintiffs. Hamilton testified that the letter
actually received by the law school had been administratively misplaced since
the summer of 1992. Hamilton, vol. 2 at 68-69.
footnote 45. Id. Johanson testified it was "quite unusual" for someone to be
reconsidered and placed on the waiting list without Johanson's awareness of the
decision. Johanson, vol. 5 at 19-21. He testified he knew nothing about
Elliott being placed on the waiting list. Id.
footnote 46. The Court is not implying that Hamilton testified in an untruthful
manner. However, because of the number of applicant files Hamilton was
required to address and the time pressures under which she was working as the
beginning of the school year approached, the Court believes it very possible
her recall of the chronology of specific events may be inaccurate.
footnote 47. Carvell's application reflects that he took the LSAT twice, receiving a
score of 34 (61st percentile) the first time and a score of 164 (91st
percentile) the second time. The LSAT factored in his TI is an average of
these two scores.
footnote 48. This matter was addressed at length in pretrial motions and hearings, and
the transcripts and evidence related to those motions are evidence in this
cause.
footnote 49. As discussed above, the defendants claim Hopwood voluntarily removed
herself from the admissions process and Elliott was offered admission.
footnote 50. With regard to Elliott, the defendants contend he lacks standing to
challenge the initial decision to deny him admission.
footnote 51. See id. --- U.S. at ---- - ----, 113 S.Ct. at 2302-03 (discussing
Clements v. Fashing, 457 U.S. 957, 102 S.Ct.