78 F.3d 932 (5th Cir. 1996), 94-50569, Hopwood v. State of Tex.

Docket Nº:94-50569, 94-50664.
Citation:78 F.3d 932
Party Name:Cheryl J. HOPWOOD, et al., Plaintiffs-Appellees, v. STATE OF TEXAS, et al., Defendants-Appellees, v. THURGOOD MARSHALL LEGAL SOCIETY and Black Pre-Law Association, Movants-Appellants. Douglas CARVELL, et al., Plaintiffs-Appellees, v. STATE OF TEXAS, et al., Defendants-Appellees, v. THURGOOD MARSHALL LEGAL SOCIETY, and Black Pre-Law Association, Mov
Case Date:March 18, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 932

78 F.3d 932 (5th Cir. 1996)

Cheryl J. HOPWOOD, et al., Plaintiffs-Appellees,


STATE OF TEXAS, et al., Defendants-Appellees,



Association, Movants-Appellants.

Douglas CARVELL, et al., Plaintiffs-Appellees,


STATE OF TEXAS, et al., Defendants-Appellees,



Association, Movants-Appellants.

Cheryl J. Hopwood, et al., Plaintiffs,

Cheryl J. HOPWOOD, et al., Plaintiffs-Appellants,


STATE OF TEXAS, et al., Defendants-Appellees.

Douglas Carvell, et al., Plaintiffs,

Douglas CARVELL, Plaintiff-Appellant,


STATE OF TEXAS, et al., Defendants-Appellees.

Nos. 94-50569, 94-50664.

United States Court of Appeals, Fifth Circuit

March 18, 1996

Rehearing and Rehearing En Banc Denied

April 4, 1996, 1996 WL 268347.

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[Copyrighted Material Omitted]

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Janell M. Byrd, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, Theodore M. Shaw, Norman J. Chachkin, NAACP Legal Defense & Educational Fund, Inc., New York City, Anthony P. Griffin, Galveston, TX, for appellants in No. 94-50569.

Dennis D. Parker, New York City, for TMLS--proposed intervenor.

Terral Ray Smith, Steven W. Smith, Small, Craig & Werkenthin, Austin, TX, for Elliott & Rogers.

Michael E. Rosman, Vincent A. Mulloy, Ctr. for Individual Rights, Washington, DC, for Cheryl Hopwood et al.

Harry M. Reasoner, Vinson & Elkins, Houston, TX, Barry D. Burgdorf, Vinson & Elkins, Austin, TX, R. Scott Placek, Houston, TX, Samuel Issacharoff, Charles Alan Wright, Univ. of Texas School of Law, Austin, TX, Betty R. Owens, Houston, TX, Javier Aguilar, Spec. Asst. Atty. Gen., Austin, TX, Allan Van Fleet, Houston, TX, for State of Texas et al.

Steven W. Smith, Austin, TX, Terral R. Smith, Austin, TX, for Appellants, Elliott & Rogers.

Theodore B. Olson, Washington DC, Michael E. Rosman, Ctr. for Ind. Rights, Washington, DC, Joseph A. Wallace, Elkins, West VA, for Hopwood and Douglas W. Carvell.

Javier Aguilar, Austin, TX, Harry M. Reasoner, Betty R. Owens, Houston, TX, Barry D. Burgdorf, Vinson & Elkins, Austin, TX, Dana C. Livingston, Manuel Lopez, Allan Van Fleet, Houston, TX, R. Scott Placek, Austin, TX, Samuel Issacharoff, Charles Alan Wright, Austin, TX, for State of Texas et al.

Janell M. Byrd, Anthony P. Griffin, Washington, DC, Theodore M. Shaw, Norman J. Chachkin, New York City, Myles V. Lynk, Washington, DC, for amicus curiae TMLS.

Albert H. Kauffman, John R. Vasquez, San Antonio, TX, for amicus curiae MALDEF.

Appeals from the United States District Court for the Western District of Texas.

Before SMITH, WIENER and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

With the best of intentions, in order to increase the enrollment of certain favored classes of minority students, the University of Texas School of Law ("the law school") discriminates in favor of those applicants by giving substantial racial preferences in its admissions program. The beneficiaries of this system are blacks and Mexican Americans, to the detriment of whites and non-preferred minorities. The question we decide today in No. 94-50664 is whether the Fourteenth Amendment permits the school to discriminate in this way.

We hold that it does not. The law school has presented no compelling justification, under the Fourteenth Amendment or Supreme Court precedent, that allows it to continue to elevate some races over others, even for the wholesome purpose of correcting perceived racial imbalance in the student body. "Racial preferences appear to 'even the score' ... only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right that an injustice rendered in the past to a black man should be compensated for by discriminating against

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a white." City of Richmond v. J.A. Croson Co., 488 U.S. 469, 528, 109 S.Ct. 706, 740, 102 L.Ed.2d 854 (1989) (Scalia, J., concurring in the judgment).

As a result of its diligent efforts in this case, the district court concluded that the law school may continue to impose racial preferences. See Hopwood v. Texas, 861 F.Supp. 551 (W.D.Tex.1994). In No. 94-50664, we reverse and remand, concluding that the law school may not use race as a factor in law school admissions. Further, we instruct the court to reconsider the issue of damages in accordance with the legal standards we now explain. In No. 94-50569, regarding the denial of intervention by two black student groups, we dismiss the appeal for want of jurisdiction.



The University of Texas School of Law is one of the nation's leading law schools, consistently ranking in the top twenty. See, e.g., America's Best Graduate Schools, U.S. NEWS & WORLD REPORT Mar. 20, 1995, at 84 (national survey ranking of seventeenth). Accordingly, admission to the law school is fiercely competitive, with over 4,000 applicants a year competing to be among the approximately 900 offered admission to achieve an entering class of about 500 students. Many of these applicants have some of the highest grades and test scores in the country.

Numbers are therefore paramount for admission. In the early 1990's, the law school largely based its initial admissions decisions upon an applicant's so-called Texas Index ("TI") number, a composite of undergraduate grade point average ("GPA") and Law School Aptitude Test ("LSAT") score. 1 The law school used this number as a matter of administrative convenience in order to rank candidates and to predict, roughly, one's probability of success in law school. Moreover, the law school relied heavily upon such numbers to estimate the number of offers of admission it needed to make in order to fill its first-year class.

Of course, the law school did not rely upon numbers alone. The admissions office necessarily exercised judgment in interpreting the individual scores of applicants, taking into consideration factors such as the strength of a student's undergraduate education, the difficulty of his major, and significant trends in his own grades and the undergraduate grades at his respective college (such as grade inflation). Admissions personnel also considered what qualities each applicant might bring to his law school class. Thus, the law school could consider an applicant's background, life experiences, and outlook. Not surprisingly, these hard-to-quantify factors were especially significant for marginal candidates. 2

Because of the large number of applicants and potential admissions factors, the TI's administrative usefulness was its ability to sort candidates. For the class entering in 1992--the admissions group at issue in this case--the law school placed the typical applicant in one of three categories according to his TI scores: "presumptive admit," "presumptive deny," or a middle "discretionary zone." An applicant's TI category determined how extensive a review his application would receive.

Most, but not all, applicants in the presumptive admit category received offers of

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admission with little review. Professor Stanley Johanson, the Chairman of the Admissions Committee, or Dean Laquita Hamilton, the Assistant Dean for Admissions, reviewed these files and downgraded only five to ten percent to the discretionary zone because of weaknesses in their applications, generally a noncompetitive major or a weak undergraduate education.

Applicants in the presumptive denial category also received little consideration. Similarly, these files would be reviewed by one or two professors, who could upgrade them if they believed that the TI score did not adequately reflect potential to compete at the law school. Otherwise, the applicant was rejected.

Applications in the middle range were subjected to the most extensive scrutiny. For all applicants other than blacks and Mexican Americans, the files were bundled into stacks of thirty, which were given to admissions subcommittees consisting of three members of the full admissions committee. Each subcommittee member, in reviewing the thirty files, could cast a number of votes--typically from nine to eleven 3--among the thirty files. Subject to the chairman's veto, if a candidate received two or three votes, he received an offer; if he garnered one vote, he was put on the waiting list; those with no votes were denied admission.

Blacks and Mexican Americans were treated differently from other candidates, however. First, compared to whites and non-preferred minorities, 4 the TI ranges that were used to place them into the three admissions categories were lowered to allow the law school to consider and admit more of them. In March 1992, for example, the presumptive TI admission score for resident whites and non-preferred minorities was 199. 5 Mexican Americans and blacks needed a TI of only 189 to be presumptively admitted. 6 The difference in the presumptive-deny ranges is even more striking. The presumptive denial score for "nonminorities" was 192; the same score for blacks and Mexican Americans was 179.

While these cold numbers may speak little to those unfamiliar with the pool of applicants, the results demonstrate that the difference in the two ranges was dramatic. According to the law school, 1992 resident white applicants had a mean GPA of 3.53 and an LSAT of 164. Mexican Americans scored 3.27 and 158; blacks scored 3.25 and 157. The category of "other minority" achieved a

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3.56 and 160. 7

These disparate standards greatly affected a candidate's chance of admission. For example, by March 1992, because the presumptive denial score for whites was a TI of 192 or lower, and the presumptive admit TI for minorities was 189 or higher, a minority candidate with a TI of 189 or above almost certainly would be admitted, even though his score was considerably below 8 the level at which a white candidate almost...

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