Preface
Hopwood v. Texas is the most intensively litigated case to date in the long battle over affirmative action in higher education. Hopwood produced the first trial on the reasons for affirmative action in higher education since the early 1970s, when the University of Washington tried DeFunis v. Odegaard in state court. DeFunis eventually became moot and resolved nothing. 416 U.S. 312 (1974).
Hopwood was the first trial ever on affirmative action in higher education in a southern state with a history of deliberate segregation. Hopwood produced a sweeping appellate opinion of unprecedented breadth, barring any consideration of race in admissions. It produced many twists and turns and changes of fortune for both sides, with much public confusion about exactly what happened at various stages of the case.
The perceived stakes were very high for all involved, and both sides have litigated with persistence, intensity, and enormous effort. Plaintiffs claimed to have expended about $2.2 million worth of attorney time. Defendants' lawyers were not billing their time, but a high-powered litigation team donated thousands of hours to vigorous defense of the university's position. The defense team included the Attorney General of Texas and his staff, several professors on the faculty of The University of Texas Law School (including the late Charles Alan Wright, in what turned out to be his last case), and the Houston law firm of Vinson & Elkins. Neither side left any stones unturned, and neither side was happy with the outcome. The litigation continued more than nine years before finally coming to rest in a posture from which neither side saw any reasonable prospect of further appeal.
Civil rights organizations and minority students in the Law School repeatedly tried to intervene as additional defendants. The Law School endorsed these motions to intervene; plaintiffs vigorously opposed them. The courts repeatedly denied intervention, but permitted the proposed intervenors to file friend-of-the-court briefs.
This volume is the first in a series that will comprise the record of the Hopwood litigation. Professor Roy Mersky and the staff of the Tarlton Law Library have examined the docket sheets in each court to identify every document filed in the original case and the ancillary cases that developed around it; they have also reviewed the discovery files for documents that were not filed in court. They have selected for publication all the significant documents n the case. These volumes will be the definitive archival record, for advocates and commentators today and for historians in the future, of the case that suspended all forms of affirmative action in Texas universities. It is all here -- pleadings, discovery, motions, two trials, two appeals, judgments, and opinions.
These documents illuminate and extend the great arguments over affirmative action. The arguments are presented in all the complexity of a real-world set of facts, with all the details of a real competitive admissions process, the real difficulties of ending segregation in public education, and the continuing effects of that segregation on admission pools in higher education. The resulting factual and legal arguments are entangled in the adversary process, with procedural battles, side issues, tactical choices, and human errors on both sides.
The Background
The Supreme Court set the legal framework for a generation of university admissions in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). The Court affirmed an injunction that prohibited a fixed quota reserving sixteen percent of seats in the medical school for minorities, but it reversed an injunction forbidding any consideration of race in admissions. Universities were free to consider race as one factor in an admissions process, and they were free to prefer minority applicants, but they were not free to reserve a fixed number of spaces.
The legal framework in Texas was further shaped by desegregation litigation. Texas had long segregated all of its educational institutions by race, and Texas had litigated all the way to the Supreme Court in an unsuccessful defense of that system. Sweatt v. Painter, 339 U.S. 629 (1950). It is one of history's ironies that Sweatt v. Painter and Hopwood v. Texas both involved race and admissions at The University of Texas Law School. In Sweatt the Law School considered the race of applicants to ensure that African-Americans were excluded; in Hopwood the Law School considered the race of applicants to ensure that all races were included. It was sued both times. The Hopwood plaintiffs thought the Law School's behavior was essentially the same in both cases: it considered race. The Law School thought its behavior was essentially different, distinguished by its radically different goals in the two eras.
Public colleges and universities in Texas abandoned formal exclusion of African-Americans after Sweatt, but segregated attendance patterns tended to persist. Segregation persisted partly from inertia and the preferences of white and minority students; partly because of institutional hostility from some of the formerly white institutions; and partly because the long history of discrimination in Texas, and especially of segregation in elementary and secondary education, meant that proportionately fewer minorities than whites achieved the highest levels of academic success. As political resistance to desegregation faded, admissions became more competitive. At the time of Sweatt v. Painter, admission to the Law School was open to any college graduate; today, the Law School receives four to five thousand applications, nearly all of them from students with strong academic records, who compete for fewer than five hundred seats.
Minority enrollment in the Law School remained small in the years after Sweatt, and it actually declined as admissions became more competitive. With a color-blind process and increased competition for seats, the Law School admitted no African-Americans in 1971. The faculty responded with a separate committee to give special consideration to minority applications.
In 1977, while Bakke was pending, a federal court ordered the federal Office of Civil Rights to investigate claims that higher education in Texas was still segregated. (This came in an unreported order in the Adams litigation. See Adams v. Richardson, 356 F. Supp. 92 (D.D.C.), modified and aff'd, 480 F.2d 1159 (D.C. Cir. 1973)). OCR found that Texas had failed to eliminate the effects of its historic segregation; it demanded a plan that would eliminate those effects, including goals for minority enrollment at each institution and admission of minority students who did not necessarily meet the usual admission criteria. Litigation and negotiation with OCR has continued intermittently for more than twenty years; to this day, OCR contends that Texas has not done enough to desegregate its institutions of higher education.
For twenty-five years after 1971, the Law School refined and improved its affirmative action program. The administrative details of the program changed from year to year, but the long term trend was independent of those details. The quality and quantity of minority applicants, and the Law School's ability to attract those applicants, gradually increased. The Law School preferentially admitted minority applicants throughout this period, but the magnitude of that preference gradually declined, and the average academic success of students thus admitted gradually increased. A program that had been controversial within the faculty gradually became non-controversial in light of these changes; by the time of the lawsuit, only one professor continued to criticize the program.
The Law School was proud of its affirmative action program, and believed that it was one of the most successful such programs in the country. Minority law students at Texas graduated at higher rates than at most other national law schools, and most of those graduates went on to successful careers. By the mid-nineties, the Law School had trained more African-American and Mexican-American lawyers than any other historically white law school, and it had trained a significant fraction of the national total of minority lawyers.
The essence of any affirmative action program is the magnitude of the preference extended to minority students. In attempting to describe that magnitude mathematically, the Hopwood plaintiffs and the Law School emphasized very different features of the program. Plaintiffs emphasized the numbers of applicants allegedly passed over; there were hundreds of white applicants with grades and test scores higher than some minority applicants who were admitted.
The Law School emphasized that most of these applicants were clustered in a narrow range, so that there was little difference between the white applicants denied admission and the minority applicants admitted. Applicants tend not to apply either to schools where they have little chance of admission or to schools where they will be greatly overqualified. The result is that hundreds of applicants are clustered at or near the threshold of admission. Within this range, there are substantial numbers of minority applicants, but there are many more whites. Because there are so many white applicants, color-blind selection in this range yields very few minorities, but preferential selection of minorities in this range can greatly increase minority enrollment with little impact on the academic credentials of the entering class.
The Lawsuit
Cheryl Hopwood and the other plaintiffs applied for admission to the Law School in 1992. They had high grades and test scores, and they alleged that they would have been admitted but for the Law School's preference for minority applicants. The Law School said they had weak majors at weak undergraduate institutions, and that with or without affirmative action, they would not have been admitted. They sued the State of Texas, and various officials of The University of Texas and of the Law School in their official capacities. (For convenience, I refer to all the defendants collectively as "the Law School.") Plaintiffs sought a declaratory judgment that the Law School's admissions policy was unconstitutional, an injunction against further use of that policy, and money damages for having been denied admission.
The Law School admitted that it had preferred minority applicants, but it insisted that it had done so for compelling reasons -- to achieve and maintain desegregation of legal education in Texas, to remedy past discrimination in public education, and to ensure diversity in its classrooms.
Plaintiffs emphasized that if some minority applicants were preferentially admitted on the basis of race, an equal number of white applicants were denied admission on the basis of race. That is a mathematical fact, which the Law School did not dispute. The Law School acknowledged that affirmative action has costs, but it insisted that those costs were justified by the compelling reasons for the program. And it argued that the costs were thinly spread over a substantial part of the applicant pool; a properly run affirmative action plan has only a minuscule effect on any particular white applicant's chances for admission.
As it happened, in 1992 the Law School had created a separate committee to review minority applications. This two-committee system became the subject of much criticism later, but neither side thought the dispute was about the administrative details of the program, and neither did the Court of Appeals. The Law School's Admissions Committee in 1992 thought that two committees would lead to a fairer and more accurate process. Consolidating consideration of minority files made it easier to identify the strongest minority applicants, and easier to enforce uniform limits on the magnitude of racial preferences.
For their part, the plaintiffs objected to any degree of racial preference, however it might be administered. The Court of Appeals in the first appeal adopted plaintiffs' position. The two-committee system was thus irrelevant to the sweeping decision in the Court of Appeals, and it was irrelevant to plaintiffs' decision to sue. But the two-committee system did have procedural consequences along the way.
The First Trial and Appeal
After discovery and pre-trial motions failed to resolve the dispute, the case was tried, without a jury, in May 1994. Both sides offered evidence concerning the admissions process and how it worked, the reasons for affirmative action, and the effect of affirmative action on the four plaintiffs. Plaintiffs initially took the position that Bakke had been implicitly overruled and that any consideration of race was unconstitutional. When Judge Sam Sparks made clear that he was not inclined to accept that argument, plaintiffs also argued that the two-committee system of 1992 was unconstitutional even under Bakke.
Judge Sparks held that the two-committee system had indeed been unconstitutional. Hopwood v. Texas, 861 F. Supp. 551, 552-53 (W.D. Tex. 1994). But on the issue both sides cared about, he held it constitutionally permissible for the Law School to prefer minority applicants. Id. And he held that plaintiffs had not shown they would have been admitted to the Law School under a one-committee system with racial preferences. Id. at 581-82. He declared that the two-committee system had been unconstitutional, ordered that plaintiffs be permitted to re-apply under the newly adopted one-committee system without paying a new application fee, and awarded each plaintiff one dollar in nominal damages. Id. at 584-85. Plaintiffs appealed; the Law School did not. On the issues both sides cared about, the Law School had won a sweeping victory.
On appeal, plaintiffs successfully pursued their argument that any consideration of race would be unconstitutional. The Court of Appeals held that Bakke was no longer the law -- and perhaps had never been the law, because the opinions in the case had been so divided. Hopwood v. Texas, 78 F.3d 932, 944-45 (5th Cir. 1996). It held that the Law School could consider the race of applicants only if that were necessary to remedy discrimination by the Law School. Id. at 952. Diversity of the student body was not a justification; indeed, the court said, pursuit of racial diversity is irrational, like pursuit of diverse blood types. Id. at 945. And the Law School could not act to alleviate the effect on its applicant pool of past discrimination in elementary, secondary, and undergraduate education. Id. at 951. The effects of such discrimination were too difficult to measure, and the Law School was not responsible for those effects in any event. The Court of Appeals dismissed as irrelevant the state's continued obligation to fully desegregate its institutions of higher education, and it dismissed the desegregation plan negotiated with the Office of Civil Rights as both irrelevant and unconstitutional. Id. at 954. It was unlawful for the Law School to consider race, even as one factor among many. Id. at 946, 962. This time plaintiffs had won the sweeping victory.
There was more. The holding of the Court of Appeals fundamentally changed the question of whether plaintiffs would have been admitted under a constitutional system. The question in the District Court had been whether plaintiffs would have been admitted if racial preferences had been administered in a one-committee system; now the question would be whether plaintiffs would have been admitted if race had not been considered at all. And the Court of Appeals held that the burden of proof on that point would be on the Law School, which must show that plaintiffs would not have been admitted. The Court of Appeals reversed the District Court's judgment permitting the Law School to consider race, and remanded the case to the District Court. Id. at 962. The issues remaining for consideration on remand were plaintiffs' claims for admission, for damages, for an injunction ordering future compliance, and for attorneys' fees. Id. at 955-59.
The sweep of the opinion and the importance of the issue made the case seem an obvious candidate for Supreme Court review, and delay threatened serious declines in minority enrollment and even resegregation of the Law School. The Law School promptly filed a petition for certiorari in the Supreme Court, omitting the other possible remedy of asking the entire Court of Appeals to hear the case en banc. Meanwhile, one of the judges of the Court of Appeals requested an en banc vote without waiting to be asked, and over seven dissents, the court decided not to hear the case en banc. Hopwood v. Texas, 84 F.3d 720 (5th Cir. 1996).
The Supreme Court refused to review the case, and two justices took the unusual step of publishing their reasons. Judicial opinions are implemented in a separate document, the judgment. The judgment of the District Court addressed only the administrative details of the long-abandoned 1992 plan; the judgment of the Court of Appeals merely sent the case back to the District Court for further proceedings. Despite the sweeping deterrent effect of the Court of Appeals' opinion, there was no judgment formally ordering the Law School not to consider race in admissions. Reminding the parties that the Supreme Court "reviews judgments, not opinions," the two justices viewed the Law School's petition as a challenge not to any judgment of a lower court, but only to the rationale of the Court of Appeals. Texas v. Hopwood, 518 U.S. 1033, 1034 (1996) (Ginsburg & Souter, JJ.)
The Second Trial and Appeal
The case was tried again in 1997. The first issue was whether plaintiffs would have been admitted under a color-blind admissions system. A long-time member of the Law School's Admissions Committee reconstructed the entire 1992 admissions process and identified numerous applicants who were denied admission despite having better qualifications than the four plaintiffs. The District Court concluded that plaintiffs probably would not have been admitted even under a color-blind admissions process. Hopwood v. Texas, 999 F. Supp. 872, 879-901 (W.D. Tex. 1998).
The two trials together reveal much about the actual workings of an admissions system. They show that grades and test scores are important but far from dispositive predictors, and that this is true with or without consideration of race. The plaintiffs were passed over in favor of minority applicants with lower grades and test scores, but they were passed over in favor of a larger number of white applicants with lower grades and test scores. These decisions could not have been based on race; they were based on other predictors of academic success that have always affected admissions decisions -- the quality of the applicant's undergraduate school, the rigor of courses taken, letters of recommendation, and the like.
The second issue was plaintiffs' claims for more than $5 million in compensatory damages, consisting principally of two elements: emotional distress from being subjected to racial discrimination, and a lifetime of lost earnings from not being a graduate of The University of Texas Law School. The court held that because plaintiffs would not have been admitted under a color-blind system, none of their damages were caused by the Law School's consideration of race. He awarded each plaintiff one dollar for having been subjected to a discriminatory admissions system. Assuming in the alternative that plaintiffs would have been admitted, he found only $46,000 in damages: $40,000 to Douglas Carvell for the additional tuition he paid to attend the law school of Southern Methodist University, and $6,000 to Cheryl Hopwood for emotional distress. Id. at 901-11.
The third issue was plaintiffs' request for more than $1.5 million in attorneys' fees and costs; the court actually awarded about $775,000. Id. at 911-23.
The fourth issue was to embody the opinion of the Court of Appeals in a formal judgment ordering the defendants to comply and specifying the terms with which they must comply. The District Court entered an injunction, prohibiting defendants "from taking into consideration racial preferences in the selection of those individuals to be admitted as students at the University of Texas School of Law." Id. at 923.
Both sides appealed. A second panel of the Court of Appeals affirmed the findings that plaintiffs would not have been admitted under a color-blind system, affirmed the judgment refusing to award more than nominal damages, and affirmed the award of attorneys' fees as against plaintiffs' demand for more and the Law School's argument that no fees should have been awarded at all.
Most importantly, the Law School appealed the injunction, thus raising the whole underlying controversy over the legality of affirmative action in some form. The injunction implemented the opinion of the Court of Appeals on the first appeal, but unlike that opinion, it is a formal judgment subject to appellate review. The injunction had nothing to do with the administrative details of the 1992 affirmative action plan; it was a prospective ban on any consideration of race by whatever means. The injunction was thus in substance identical to the injunction that the Supreme Court reversed in Bakke. The Law School wanted the injunction reversed on the merits -- on the ground that consideration of race in admissions is not unlawful.
The panel in the second appeal vacated the injunction on the procedural ground that the trial court had not entered formal findings of fact and conclusions of law supporting the injunction. The full court twice declined to hear the case en banc, once before argument to the panel and once after the panel's judgment. These judgments left the case in a difficult procedural posture, in which the 1996 opinion of the Court of Appeals is operating like an injunction, controlling the behavior of the Law School and of higher education throughout the state and supporting a large award of attorneys' fees, but not set out in the usual form of an appealable final judgment. Once again, the Supreme Court declined to review the case.
The End
On remand, plaintiffs said they no longer wanted an injunction, and Judge Sparks declined to enter one. Plaintiffs asked for another $675,000 in attorneys fees; he award about $240,000. He rejected the Law School's argument that plaintiffs were entitled to no fees because they had not personally benefited from the case and had never obtained a final judgment. Without a final judgment, there was no remaining possibility of appealing the merits, and both sides decided not to appeal their dispute over attorneys' fees.
The case thus ground to a halt in a sort of limbo. Judge Sparks' final order concluded:
Like many postmodern books, this case has no real ending and certainly no closure. In the end, the taxpayers of Texas are one million dollars poorer, the undersigned is almost ten years older, and nothing has changed for the plaintiffs who filed this lawsuit way back in 1992. Who the winners are this Court will never know.
Actually, it appears that generous private donors will be one million dollars poorer, and that the taxpayers may be off the hook. But the rest of Judge Sparks's evaluation is on target. As litigation of a concrete dispute, the case had no winners. The four plaintiffs got nothing from the case, because they had not actually been affected by affirmative action. Nor did they get (their lawyers actually avoided getting) a final judgment that would support a straightforward petition for Supreme Court review. Both petitions to the Supreme Court labored unsuccessfully to explain why the Court should review an opinion that vacated the judgment below and remanded the case for further proceedings in the district court, and there will be no opportunity for a third petition not hampered by that difficulty.
As an abstract resolution of a broad public policy dispute, the case had dramatic and possibly permanent consequences. What plaintiffs and other ideological opponents of affirmative action did get was a sweeping opinion, complete with threats of actual and punitive damages against any law school official who ever again considers race in admissions. The Law School lost its best tool for achieving both academic excellence and racial and ethnic diversity.
Litigation over affirmative action continues elsewhere. As this is written, the University of Michigan case is the leading possibility to reach the Supreme Court. The diversity arguments in the Michigan case are quite similar to the diversity arguments in Hopwood. But Michigan does not present the desegregation and past discrimination arguments that were central to Hopwood. Those critical arguments are too important to be finally resolved by a single three-judge panel, yet they cannot be presented to the Supreme Court until and unless a new case arises in the formerly segregated south. Thess volumes contain what is, and may remain, the fullest exploration of those arguments.
Douglas Laycock
Austin
November 2001
For more information visit http://tarlton.law.utexas.edu/hopwood