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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 the embodiment of 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 was 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 was 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.