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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 awarded 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 would be one million dollars poorer and that the taxpayers may be off the hook, but the rest of Judge Sparks's evaluation was 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, instead 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 unencumbered 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. These volumes contain what is, and may remain, the fullest exploration of those arguments.