PHIL103: Moral and Political Philosophy

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 to-day 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.

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 early1990'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. 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.

Because of the large number of applicants and potential ad-missions 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 under-graduate 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 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, 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. Mexican Americans and blacks needed a TI of only 189 to be presumptively admitted. 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 a3.56 and 160.

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 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.

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. 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 nonpreferential category. Thus, race was always an overt part of the review of any applicant's file.

The law school reviewed minority candidates within the applicable discretionary range differently from whites. Instead of being evaluated and compared by one of the various discretionary zone subcommittees, black and Mexican American applicants' files were reviewed by a minority subcommittee of three, which would meet and discuss every minority candidate. Thus, each of these candidates' files could get extensive review and discussion. And while the minority subcommittee reported summaries of files to the admissions committee as a whole, the minority subcommittee's decisions were "virtually final".

Finally, the law school maintained segregated waiting lists, dividing applicants by race and residence. Thus, even many of those minority applicants who were not admitted could be set aside in "minority-only" waiting lists. Such separate lists apparently helped the law school maintain a pool of potentially acceptable, but marginal, minority candidates.

B.

Cheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David Rogers (the "plaintiffs") applied for admission to the 1992 entering law school class. All four were white residents of Texas and were rejected.

The plaintiffs were considered as discretionary zone candidates. Hopwood, with a GPA of 3.8 and an LSAT of 39 (equivalent to a three-digit LSAT of 160), had a TI of 199, a score barely within the presumptive-admit category for resident whites, which was 199 and up. She was dropped into the discretionary zone for resident whites (193 to 198), however, because Johanson decided her educational background overstated the strength of her GPA. Carvell, Elliott, and Rogers had TI's of 197, at the top end of that discretionary zone. Their applications were reviewed by admissions subcommittees, and each received one or no vote.

II.

The plaintiffs sued primarily under the Equal Protection Clause of the Fourteenth Amendment; they also claimed derivative statutory violations of 42 U.S.C. §§ 1981 and 1983 and of title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("title VI"). The plaintiffs' central claim is that they were subjected to unconstitutional racial discrimination by the law school's evaluation of their admissions applications. They sought injunctive and declaratory relief and compensatory and punitive damages.

After a bench trial, the district court held that the school had violated the plaintiffs' equal protection rights. 861 F. Supp. at 579. The plaintiffs' victory was pyrrhic at best, however, as the court refused to enjoin the law school from using race in admissions decisions or to grant damages beyond a one-dollar nominal award to each plaintiff. The district court, however, did grant declaratory relief and ordered that the plaintiffs be allowed to apply again without paying the requisite fee. Id. at 583.

The district court began by recognizing the proper constitutional standard under which to evaluate the admissions program: strict scrutiny. Id. at 568. As it was undisputed that the school had treated applicants disparately based upon the color of their skin, the court asked whether the law school process (1) served a compelling government interest and (2) was narrowly tailored to the achievement of that goal. Under the first prong of the test, the court held that two of the law school's five proffered reasons met constitutional muster: (1) "obtaining the educational benefits that flow from a racially and ethnically diverse student body" and (2) "the objective of overcoming past effects of discrimination". Id. at 571.

Significantly, on the second justification, the court rejected the plaintiffs' argument that the analysis of past discrimination should be limited to that of the law school; instead, the court held that the State of Texas's "institutions of higher education are inextricably linked to the primary and secondary schools in the system". Id. Accordingly, the court found that Texas's long history of racially discriminatory practices in its primary and secondary schools in its not-too-distant past had the following present effects at UT law: "the law school's lingering reputation in the minority community, particularly with prospective students, as a 'white' school; an underrepresentation of minorities in the student body; and some perception that the law school is a hostile environment for minorities". Id. at 572. The court also noted that "were the Court to limit its review to the University of Texas, the Court would still find a 'strong evidentiary basis for concluding that remedial action is necessary'".

The court next evaluated whether the Texas program was narrowly tailored to further these goals. Id. at 573. Applying a four-factor test devised by the Supreme Court, the court held only part of the 1992 admissions scheme unconstitutional. Those parts that gave minorities a "plus," that is, the component of the admissions program that treated candidates' TI scores differently based upon race, was upheld. Id. at 578.

The court held, however, that differential treatment was not allowed where candidates of different races were not compared at some point in the admission process. Thus, the court struck down the school's use of separate admissions committees for applications in the discretionary zone, id. at 578-79, and in dictum speculated that presumptive denial lines would not pass muster, as many white candidates would get no review, while similarly situated minorities would, id. at 576 n.71.

Though it declared that the law school's 1992 admissions program violated the plaintiffs' equal protection rights, the court granted little relief. First, the court did not order that the plaintiffs be admitted to the law school. Instead, it used what it saw as analogous title VII caselaw on burden-shifting to hold that while the state had committed a constitutional violation, theplaintiffs had the ultimate burden of proving damages. Id. at 579-80. The court then found that the defendants had proffered a legitimate, non-discriminatory reason for denying the plaintiffs admission and that the plaintiffs had not met their burden of showing that they would have been admitted but for the unlawful system. Id. at 582.

Moreover, the court held that the plaintiffs were not entitled to prospective injunctive relief, because "of the law school's voluntary change to a procedure, which on paper and from the testimony, appears to remedy the defects the Court has found in the 1992 procedure". Id. To pass muster under the court's reasoning, the law school simply had to have one committee that at one time during the process reviewed all applications and did not establish separate TI numbers to define the presumptive denial categories. In other words, if the law school applied the same academic standards, but had commingled the minority review in the discretionary zone with the review of whites, its program would not have been struck down. The same admissions result would occur, but the process would be "fair". Id.

Finally, the court determined that the only appropriate relief was a declaratory judgment and an order allowing the plaintiffs to reapply to the school without charge. Id. at 582-83. No compensatory or punitive damages, the court reasoned, could be awarded where the plaintiffs had proven no harm. Moreover, the court reasoned that as the law school had promised to change its admissions program by abandoning the two-committee system, no prospective injunctive relief was justified.

III.

The central purpose of the Equal Protection Clause "is to prevent the States from purposefully discriminating between individuals on the basis of race". Shaw v. Reno, 113 S. Ct. 2816, 2824 (1993) (citing Washington v. Davis, 426 U.S. 229, 239 (1976)). It seeks ultimately to render the issue of race irrelevant in governmental decisionmaking. See Palmore v. Sidoti, 466 U.S. 429, 432 (1984) ("A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination").

Accordingly, discrimination based upon race is highly suspect". Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality," and "racial discriminations are in most circumstances irrelevant and therefore prohibited. . . ". Hirabayashi v. United States, 320 U.S. 81, 100 (1943). Hence, "[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids". Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J).; see also Loving v. Virginia, 388 U.S. 1, 11 (1967); Brown v. Board of Educ., 347 U.S. 483, 493-94 (1954). These equal protection maxims apply to all races. Adarand Constructors v. Peña, 115 S. Ct. 2097, 2111 (1995).

In order to preserve these principles, the Supreme Court recently has required that any governmental action that expressly distinguishes between persons on the basis of race be held to the most exacting scrutiny. See, e.g., id. at 2113; Loving, 388 U.S. at 11. Furthermore, there is now absolutely no doubt that courts are to employ strict scrutiny when evaluating all racial classifications, including those characterized by their proponents as "benign" or "remedial".

Strict scrutiny is necessary because the mere labeling of a classification by the government as "benign" or "remedial" is meaningless. As Justice O'Connor indicated in Croson:

Id. at 493 (plurality opinion).

Under the strict scrutiny analysis, we ask two questions: (1) Does the racial classification serve a compelling government interest, and (2) is it narrowly tailored to the achievement of that goal? Adarand, 115 S. Ct. at 2111, 2117. As the Adarand Court emphasized, strict scrutiny ensures that "courts will consistently give racial classifications . . . detailed examination both as to ends and as to means". Id.

Finally, when evaluating the proffered governmental interest for the specific racial classification, to decide whether the program in question narrowly achieves that interest, we must recognize that "the rights created by . . . the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights". Shelley v. Kraemer, 334 U.S. 1, 22 (1948). Thus, the Court consistently has rejected arguments conferring benefits on a person based solely upon his membership in a specific class of persons.

With these general principles of equal protection in mind, we turn to the specific issue of whether the law school's consideration of race as a factor in admissions violates the Equal Protection Clause. The district court found both a compelling remedial and a non-remedial justification for the practice.

First, the court approved of the non-remedial goal of having a diverse student body, reasoning that "obtaining the educational benefits that flow from a racially and ethnically diverse student body remains a sufficiently compelling interest to support the use of racial classifications". 861 F. Supp. at 571. Second, the court determined that the use of racial classifications could be justified as a remedy for the "present effects at the law school of past discrimination in both the University of Texas system and the Texas educational system as a whole". Id. at 573.

A.

1.

Justice Powell's separate opinion in Bakke provided the original impetus for recognizing diversity as a compelling state interest in higher education. In that case, Allan Bakke, a white male, was denied admission to the Medical School of the University of California at Davis, a state-run institution. Claiming that the State had discriminated against him impermissibly because it operated two separate admissions programs for the medical school,he brought suit under the state constitution, title VI, and the Equal Protection Clause.

Under the medical school's admissions system, the white applicants, who comprised the majority of the prospective students, applied through the general admissions program. A special admissions program was reserved for members of "minority groups" or groups designated as "economically and/or educationally disadvantaged". The university set aside sixteen of the one hundred positions in the entering class for candidates from the special program.

The California Supreme Court struck down the program on equal protection grounds, enjoined any consideration of race in the admissions process, and ordered that Bakke be admitted. The United States Supreme Court affirmed in part and reversed in part in an opinion announced by Justice Powell. 438 U.S. at 271-72 (opinion of Powell, J).. The Court reached no consensus on a justification for its result, however. Six Justices filed opinions, none of which garnered more than four votes (including the writer's). The two major opinions one four-Justice opinion by Justices Brennan, White, Marshall, and Blackmun and one by Justice Stevens in which Chief Justice Burger and Justices Stewart and Rehnquist joined reflected completely contrary views of the law.

While Justice Powell found the program unconstitutional under the Equal Protection Clause and affirmed Bakke's admission, Justice Stevens declined to reach the constitutional issue and upheld Bakke's admission under title VI. Justice Powell also concluded that the California Supreme Court's proscription of the consideration of race in admissions could not be sustained. This became the judgment of the Court, as the four-Justice opinion by Justice Brennan opined that racial classifications designed to servere medial purposes should receive only intermediate scrutiny. These Justices would have upheld the admissions program under this intermediate scrutiny, as it served the substantial and benign purpose of remedying past societal discrimination.Hence, Justice Powell's opinion has appeared to represent the"swing vote," and though, in significant part, see id. at 272 n.*, it was joined by no other Justice, it has played a prominent role in subsequent debates concerning the impact of Bakke. In the present case, the significance of Justice Powell's opinion is its discussion of compelling state interests under the Equal Protection Clause. See id. at 305-15. Specifically, after Justice Powell recognized that the proper level of review for racial classifications is strict scrutiny, id. at 305-06, he rejected and accepted respective justifications for the school's program as "substantial enough to support the use of a suspect classification," id. at 306. Notably, because the first step in reviewing an affirmative action program is a determination of the state's interests at stake, it often is the determinative step .Justice Powell outlined the four state interests proffered by the Bakke defendants:

Id. at 305-06. Justice Powell reasoned that the second and third justifications remedying societal discrimination and providing role model were never appropriate. He determined that any remedial justification was limited to eliminating "identified discrimination" with "disabling effects". Id. at 307 (citing the school desegregation cases). He specifically emphasized that a particularized finding of a constitutional or statutory violation must be present before a remedy is justified. He determined not only that such findings were not present in Bakke, but that the medical school was not even in a position to make such findings. Id. at 309.

Justice Powell further reasoned that diversity is a sufficient justification for limited racial classification. Id. at 311-16".[The attainment of a diverse student body] clearly is a constitutionally permissible goal for an institution of higher education". Id. at 311. He argued that diversity of minorities' viewpoints furthered "academic freedom," an interest under the Constitution. While acknowledging that "academic freedom" does not appear as a constitutional right, he argued that it had "long . . . been viewed as a special concern of the First Amendment". Id. at 312.

Justice Powell presented this "special concern" as in tension with the Fourteenth Amendment. "Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the 'robust exchange of ideas, 'petitioner invokes a countervailing constitutional interest, that of the First Amendment". Id. at 313. The Justice then concluded that

Id. at 314 (footnote omitted). Justice Powell therefore approved of a consideration of ethnicity as "one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body". Id.

The next step for Justice Powell was to decide whether the medical school's program was necessary to further the goal of diversity. He said it was not. As the program made race the only determining factor for a certain number of the open spots that had been set aside, it did not further full diversity but only a conception of that term limited to race.

Justice Powell speculated that a program in which "race or ethnic background may be deemed a 'plus' in a particular applicant's file, yet does not insulate the individual from comparison with all the other candidates for the available seats," might pass muster. Id. at 317. The Justice did not define what he meant by a "plus," but he did write that a "plus" program would be one in which an

Id. at 318.

Under this conception of the Fourteenth Amendment, a program that considered a host of factors that include race would be constitutional, even if an applicant's race "tipped the scales" among qualified applicants. What a school could not do is to refuse to compare applicants of different races or establish a strict quota on the basis of race. In sum, Justice Powell found the school's program to be an unconstitutional "quota" system, but he intimated that the Constitution would allow schools to continue to use race in a wide-ranging manner.

2.

Here, the plaintiffs argue that diversity is not a compelling governmental interest under superseding Supreme Court precedent. Instead, they believe that the Court finally has recognized that only the remedial use of race is compelling. In the alternative, the plaintiffs assert that the district court misapplied Justice Powell's Bakke standard, as the law school program here uses race as a strong determinant rather than a mere "plus" factor and, in any case, the preference is not narrowly applied. The law school maintains, on the other hand, that Justice Powell's formulation in Bakke is law and must be followed at least in the context of higher education.

We agree with the plaintiffs that any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment. Justice Powell's argument in Bakke garnered only his own vote and has never represented the view of a majority of the Court in Bakke or any other case. Moreover, subsequent Supreme Court decisions regarding education state that non-remedial state interests will never justify racial classifications. Finally, the classification of persons on the basis of race for the purpose of diversity frustrates, rather than facilitates, the goals of equal protection.

Justice Powell's view in Bakke is not binding precedent on this issue. While he announced the judgment, no other Justice joined in that part of the opinion discussing the diversity rationale. In Bakke, the word "diversity" is mentioned now hereexcept in Justice Powell's single-Justice opinion. In fact, the four-Justice opinion, which would have upheld the special admissions program under intermediate scrutiny, implicitly rejected Justice Powell's position. See 438 U.S. at 326 n.1 (Brennan,White, Marshall, and Blackmun JJ., concurring in the judgment in part and dissenting) ("We also agree with Mr. Justice POWELL that a plan like the "Harvard" plan . . . is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination"). (emphasis added). Justice Stevens declined to discuss the constitutional issue. See id. at 412 (Stevens, J., concurring in the judgment in part and dissenting in part).

Thus, only one Justice concluded that race could be used solely for the reason of obtaining a heterogenous student body. As the Adarand Court states, the Bakke Court did not express a majority view and is questionable as binding precedent. 115 S. Ct. at 2109 ("The Court's failure in Bakke . . . left unresolved the proper analysis for remedial race-based government action")..

Since Bakke, the Court has accepted the diversity rationale only once in its cases dealing with race. Significantly, however, in that case, Metro Broadcasting, Inc. v. Federal Communications Comm'n, 497 U.S. 547, 564-65 (1990), the five-Justice majority relied upon an intermediate scrutiny standard of review to uphold the federal program seeking diversity in the ownership of broad-casting facilities. In Adarand, 115 S. Ct. at 2112-13, the Court squarely rejected intermediate scrutiny as the standard of review for racial classifications, and Metro Broadcasting is now specifically overruled to the extent that it was in conflict with this holding. Id. at 2113. No case since Bakke has accepted diversity as a compelling state interest under a strict scrutiny analysis.

Indeed, recent Supreme Court precedent shows that the diversity interest will not satisfy strict scrutiny. Foremost, the Court appears to have decided that there is essentially only one compelling state interest to justify racial classifications: remedying past wrongs. In Croson, 488 U.S. at 493 (plurality opinion), the Court flatly stated that "[u]nless [racial classifications] are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility".

Justice O'Connor, in her Adarand-vindicated dissent in Metro Broadcasting, joined by Justices Rehnquist, Scalia, and Kennedy, explained this position:

497 U.S. at 612 (O'Connor, J., dissenting). Indeed, the majority in Metro Broadcasting had not claimed otherwise and decided only that such an interest was "important". Justice Thomas, who joined the Court after Metro Broadcasting was decided, roundly condemned "benign" discrimination in his recent Adarand opinion, in which he suggests that the diversity rationale is inadequate to meet strict scrutiny. See Adarand, 115 S. Ct. at 2119 (Thomas, J., concurring in part and concurring in judgment).

In short, there has been no indication from the Supreme Court, other than Justice Powell's lonely opinion in Bakke, that the state's interest in diversity constitutes a compelling justification for governmental race-based discrimination. Subsequent Supreme Court caselaw strongly suggests, in fact, that it is not.

Within the general principles of the Fourteenth Amendment, the use of race in admissions for diversity in higher education contradicts, rather than furthers, the aims of equal protection. Diversity fosters, rather than minimizes, the use of race. It treats minorities as a group, rather than as individuals. It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hostility.

The use of race, in and of itself, to choose students simply achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants. Thus, the Supreme Court has long held that governmental actors cannot justify their decisions solely because of race. See, e.g., Croson, 488 U.S. at 496 (plurality opinion); Bakke, 438 U.S. at 307 (opinion of Powell, J)..

Accordingly, we see the caselaw as sufficiently established that the use of ethnic diversity simply to achieve racial heterogeneity, even as part of the consideration of a number of factors, is unconstitutional. Were we to decide otherwise, we would contravene precedent that we are not authorized to challenge.

While the use of race per se is proscribed, state-supported schools may reasonably consider a host of factors)) some of which may have some correlation with race))in making admissions decisions. The federal courts have no warrant to intrude on those executive and legislative judgments unless the distinctions intrude on specific provisions of federal law or the Constitution.

A university may properly favor one applicant over another because of his ability to play the cello, make a downfield tackle, or understand chaos theory. An admissions process may also consider an applicant's home state or relationship to school alumni. Law schools specifically may look at things such as unusual or substantial extracurricular activities in college, which may be atypical factors affecting undergraduate grades. Schools may even consider factors such as whether an applicant's parents attended college or the applicant's economic and social background.

For this reason, race often is said to be justified in the diversity context, not on its own terms, but as a proxy for other characteristics that institutions of higher education value but that do not raise similar constitutional concerns. Unfortunately,this approach simply replicates the very harm that the Fourteenth Amendment was designed to eliminate.

The assumption is that a certain individual possesses characteristics by virtue of being a member of a certain racial group. This assumption, however, does not withstand scrutiny. "[T]he use of a racial characteristic to establish a presumption that the individual also possesses other, and socially relevant, characteristics, exemplifies, encourages, and legitimizes the mode of thought and behavior that underlies most prejudice and bigotry in modern America". Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities,1974 SUP.CT.REV. 12 (1974).

To believe that a person's race controls his point of view is to stereotype him. The Supreme Court, however, "has remarked a number of times, in slightly different contexts, that it is incorrect and legally inappropriate to impute to women and minorities 'a different attitude about such issues as the federal budget, school prayer, voting, and foreign relations.'" Michael S. Paulsen, Reverse Discrimination and Law School Faculty Hiring: The Undiscovered Opinion, 71 TEX.L.REV. 993, 1000 (1993) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 627-28 (1984)). "Social scientists may debate how peoples' thoughts and behavior reflect their background, but the Constitution provides that the government may not allocate benefits or burdens among individuals based on the assumption that race or ethnicity determines how they act or think". Metro Broadcasting, 497 U.S. at 602 (O'Connor, J.,dissenting).

Instead, individuals, with their own conceptions of life, further diversity of viewpoint. Plaintiff Hopwood is a fair example of an applicant with a unique background. She is the now thirty-two-year-old wife of a member of the Armed Forces stationed in San Antonio and, more significantly, is raising a severely handicapped child. Her circumstance would bring a different perspective to the law school. The school might consider this an advantage to her in the application process, or it could decide that her family situation would be too much of a burden on her academic performance.

We do not opine on which way the law school should weigh Hopwood's qualifications; we only observe that "diversity" can take many forms. To foster such diversity, state universities and law schools and other governmental entities must scrutinize applicants individually, rather than resorting to the dangerous proxy of race.

The Court also has recognized that government's use of racial classifications serves to stigmatize. See, e.g., Brown v. Board of Educ., 347 U.S. 483, 494 (1954) (observing that classification on the basis of race "generates a feeling of inferiority"). While one might argue that the stigmatization resulting from so-called "benign" racial classifications is not as harmful as that arising from invidious ones, the current Court has now retreated from the idea that so-called benign and invidious classifications may be distinguished. As the plurality in Croson warned,"[c]lassifications based on race carry the danger of stigmatic harm. Unless they are reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to the politics of racial hostility". 488 U.S. at 493.

Finally, the use of race to achieve diversity undercuts the ultimate goal of the Fourteenth Amendment: the end of racially-motivated state action. Justice Powell's conception of race as a "plus" factor would allow race always to be a potential factor in admissions decisionmaking. While Justice Blackmun recognized the tension inherent in using race-conscious remedies to achieve a race-neutral society, he nevertheless accepted it as necessary. Bakke, 438 U.S. at 405. Several Justices who, unlike Justices Powell and Blackmun, are still on the Court, have now renounced toleration of this tension, however. See Croson, 488 U.S. at 495 (plurality opinion of O'Connor, J). ("The dissent's watered down version of equal protection review effectively assures that race will always be relevant in American life, and that the 'ultimate goal' of 'eliminat[ing] entirely from government decisionmaking such irrelevant factors as a human being's race . . . will never be achieved"). (quoting Wygant, 476 U.S. at 320 (Stevens, J.,dissenting)).

VI.

In summary, we hold that the University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school's poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school. Because the law school has proffered these justifications for its use of race in admissions, the plaintiffs have satisfied their burden of showing that they were scrutinized under an unconstitutional admissions system. The plaintiffs are entitled to reapply under an admissions system that invokes none of these serious constitutional infirmities. We also direct the district court to reconsider the question of damages, and we conclude that the proposed intervenors properly were denied intervention.

In No. 94-50569, the appeal is DISMISSED for want of jurisdiction. In No. 94-50664, the judgment is REVERSED and REMANDED for further proceedings in accordance with this opinion.

WIENER, Circuit Judge, specially concurring.

"We judge best when we judge least, particularly in controversial matters of high public interest". In this and every other appeal, we should decide only the case before us, and should do so on the narrowest possible basis. Mindful of this credo, I concur in part and, with respect, specially concur in part.

The sole substantive issue in this appeal is whether the admissions process employed by the law school for 1992 meets muster under the Equal Protection Clause of the Fourteenth Amendment. The law school offers alternative justifications for its race-based admissions process, each of which, it insists, is a compelling interest: (1) remedying the present effects of past discrimination (present effects) and (2) providing the educational benefits that can be obtained only when the student body is diverse (diversity). As to present effects, I concur in the panel opinion’s analysis: Irrespective of whether the law school or the University of Texas system as a whole is deemed the relevant governmental unit to be tested, neither has established the existence of present effects of past discrimination sufficient to justify the use of a racial classification. As to diversity, however, I respectfully disagree with the panel opinion’s conclusion that diversity can never be a compelling governmental interest in a public graduate school. Rather than attempt to decide that issue, I would take a considerably narrower path - and, I believe, a more appropriate one - to reach an equally narrow result: I would assume arguendo that diversity can be a compelling interest but conclude that the admissions process here under scrutiny was not narrowly tailored to achieve diversity.

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Source: https://www.clearinghouse.net/chDocs/public/ED-TX-0002-0006.pdf

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