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CIR: Hopwood v. Texas Fifth Circuit Opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 94-50569
_______________
CHERYL J. HOPWOOD, et al.,
Plaintiffs-Appellees,
VERSUS
STATE OF TEXAS, et al.,
Defendants-Appellees,
VERSUS
THURGOOD MARSHALL LEGAL SOCIETY
and
BLACK PRE-LAW ASSOCIATION,
Movants-Appellants.
_________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________
March 18, 1996
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 a white ." City of Richmond v. J.A. Croson
Co., 488 U.S. 469, 528 (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.
I.
A.
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 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 non-competitive 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 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 certainly would be rejected. Out of the pool of resident applicants who fell within this
range (189-192 inclusive), 100% of blacks and 90% of Mexican Americans, but only 6% of whites, were
offered admission.(9)
The stated purpose of this lowering of standards was to meet an " aspiration" of admitting a class
consisting of 10% Mexican Americans and 5% blacks, proportions roughly comparable to the
percentages of those races graduating from Texas colleges. The law school found meeting these "goals"
difficult, however, because of uncertain acceptance rates and the variable quality of the applicant
pool.(10) In 1992, for example, the entering class contained 41 blacks and 55 Mexican Americans,
respectively 8% and 10. 7% of the class.
In addition to maintaining separate presumptive TI levels for minorities and whites, the law school ran a
segregated application evaluation process . Upon receiving an application form, the school color-coded it
according to race. If a candidate failed to designate his race, he was presumed to be in a nonpre