• by Albert Kauffman • IDRA Newsletter • August 1996 • 

Editor’s Note: The U.S. Supreme Court recently let stand a Fifth Circuit Court of Appeals ruling in a case that challenged the legality of the University of Texas’ admissions procedures related to the use of race as a basis for its law school admissions. Arguing that the law school had already changed the policies being challenged, the Supreme Court chose not to review the legal issues brought forth in Hopwood, et. al., vs. State of Texas, et. Al. This left open the door to future consideration of other challenges involving practices that are currently in place. Albert Kauffman, senior litigator for the Mexican American Legal Defense and Education Fund (MALDEF), presents a summary of the major findings in the Fifth Circuit’s Hopwood decision, summarizing what the ruling holds (says), what it does not hold and some related issues in “the rest of the story.” A statement on the implications of the case and the Supreme Court’s action follows.

In Hopwood, et al. vs. State of Texas, et al., four students claimed that they were denied admittance to the University of Texas (UT) law school in 1992 because of their race, while less­qualified African American and Mexican American students were enrolled. The four students – one woman and three men – sought admission to the law school, changes in the school’s admission policy, and actual and punitive damages.

After federal Judge Sam Sparks ruled in favor of the university saying law school policies conformed with Supreme Court guidelines on affirmative action programs, the plaintiffs filed an appeal. The federal appeals court – the Fifth Circuit Court of Appeals – struck down UT law school’s admissions policy. The US Supreme Court announced recently that it will not hear an appeal of this ruling because the school’s admission policy in question is no longer in use there.

What Hopwood Holds

The Fifth Circuit Court of Appeals ruled that the state’s interest in having a diverse student body is not a sufficient “compelling interest to support the use of race as a factor in admissions.” This is not consistent with the US Supreme Court ruling in the famous 1978 Regents of the University of California vs. Bakke case, that held that diversity constitutes a compelling interest for higher education institutions to consider race and national origin in their admissions procedures. Most cases have held that an affirmative action plan can be supported if the state shows an interest in diversity in the student body or wishes to address the present effects of past discrimination. Hopwood said that the diversity interest is never sufficient to support affirmative action.

Redressing the present effects of historical discrimination is a sufficient compelling interest to support an affirmative action plan. For example, Hopwood did not say you could never rely on history to support a plan that seeks to address the present effects of such past discrimination.

The particular institution involved can look only to its own history to support affirmative action, not to a larger institution to which it belongs or to a whole state system of education. Specifically, UT law school could only look to its own history of discrimination and the present effects of discrimination at the UT law school, not at the history or present effects at UT Austin, the UT system, the A&M system or the Texas educational system as a whole.

There was insufficient evidence presented at the trial of the present effects of discrimination at the UT law school against either African Americans or Mexican Americans. The defendants (eg., the state attorney general) presented very weak evidence of the school’s history of discrimination against Mexican Americans.

The UT law school cannot use race or national origin as a factor in admissions. Officials of the UT law school could be liable for actual and punitive damages?if they use race or national origin as a factor in the future.

What Hopwood Case Does Not Hold

The decision does not say that other parts of the University of Texas system or other public or private institutions of higher education cannot use race or national origin as a factor. The opinion was specifically about the UT law school not UT Austin, A&M or UT system of the Coordinating Board. The Supreme Court’s refusal to review the case makes it applicable only to the states in the fifth circuit’s jurisdiction – Texas, Louisiana and Arkansas.

The Hopwood opinion talks about the admission process, not about giving out scholarships or loans, recruiting or other procedures at a university (thus, only about admissions, and again, only at the UT law school). However, if other institutions cannot use diversity as a “compelling interest,” then they will have a harder time justifying the use of race or national origin. Each institution will have to look at its own history and its own present effects of past discrimination.

The decision did not say that no present effects of discrimination at the UT law school could be proved, only that it was not proved in this case. In other words, the failure to find the present effects of discrimination might be based on the particular judges on the panel or on the failure of the UT system to put on a sufficient record of history of discrimination. (Note: The UT law school’s record of history of discrimination was based mainly on references to court cases and summary testimony by a few witnesses. Contrast that with the two weeks of testimony that MALDEF produced in the LULAC vs. Richards case on the history of discrimination against Mexican Americans in higher education.)

The opinion did not grant any damages to the Anglo plaintiffs but surely would make it easier for them to get damages on remand (further review by the court).

The Rest of the Story

Seven of the 17 judges on the fifth circuit have filed a dissent in the case saying that the panel opinion went too far in “overruling Bakke,” being a very activist court, failing to follow precedent and “threatening” the defendants with an injunction when that would be inappropriate. The state did not ask for a rehearing, i.e., these judges did this on their own motion without a suggestion to do so from the state.

African American law students sought to participate in the case and were not allowed to do so by the district court, even though the state agreed. At the end of the trial, they tried to put on evidence about the weakness of using test scores in admissions processes. The state did not agree to put on that evidence, and the court did not allow it. The African Americans again sought to intervene, and they were again denied intervention by the district court and by the fifth circuit. They are going to appeal this issue to the US Supreme Court.

At the trial, the law school denied that it had used separate standards for minorities and Whites. Defendants said that they did have separate committees but that this was to make sure that they had uniform ways of considering race and national origin. They did not have a quota, and the same people were involved in reviewing all the applications. One person was in charge of the overall process. In other words, they are denying what the Texas Attorney General is now saying – that they used separate dual standards with lower standards for minorities.

The lawyers involved in the Hopwood case have now filed another lawsuit, this time a class action, regarding the 1994 class at the law school, seeking damages for a class of persons against the state. They allege that the same admissions standards were used in 1994 as in 1992 and seek monetary damages.

Regarding the Supreme Court’s decision not to hear the Hopwood case, the Supreme Court hears only those cases that it feels raise extremely important issues and are appropriate for legal review. In 98 percent of the cases, the Supreme Court decides not to hear appeals that are brought to it.

Though the Texas Attorney General and university systems have taken this as some sign that the Supreme Court does not support affirmative action, in fact, the denial means nothing. The Hopwood decision applies only to the Fifth Circuit – Texas, Louisiana and Mississippi – and has not been affirmed by the US Supreme Court. In a rare statement by a Supreme Court justice, two Supreme Court justices noted that they were not hearing the case because the plaintiff White students and the defendant law school agreed that the procedure at issue in Hopwood would no longer be followed by the law school and is not being defended by the law school.


Of most importance to the education community is how institutions will implement the Hopwood decision. Unfortunately, the university systems in Texas and the Texas Attorney General have interpreted Hopwood to be the “death­knell” of affirmative action; more particularly that Hopwood specifically proscribes any use of race or national origin in decision on admissions, scholarships or loans at public – or even private – universities. This interpretation is not at all required by the Hopwood case. It is an extremely broad and conservative interpretation of this case. It is a matter of discretion by these officials and is not required by the law. One danger is that many will hear official interpretations as if it were the law.

Universities are reassessing their admissions policies and the role that race and ethnicity should play in them. Several schools have already announced their intention to change their policies to reflect this broad interpretation. Other schools will tend toward caution until a Supreme Court ruling provides clearer parameters about what practices are acceptable to address present effects of past discrimination.

Because the universities and the attorney general together are interpreting the decision so broadly, we must then find some way to continue to improve diversity in our university graduate and professional school student bodies. We must, as a community – especially as a community of persons dedicated to improvement of access to education for low­income and minority students – participate actively and aggressively in the development of future admissions policies at universities. We must bring our expertise to bear to make sure that admission systems rely on valid factors in admissions and choose factors that will lead to qualified student bodies and also increase the diversity of those student bodies.

Albert H. Kauffman is a senior litigation attorney for the Mexican American Legal Defense and Education Fund (MALDEF) in San Antonio. Comments and questions may be sent via e-mail to feedback@idra.org.

[©1996, IDRA. This article originally appeared in the August 1996 IDRA Newsletter by the Intercultural Development Research Association. Permission to reproduce this article is granted provided the article is reprinted in its entirety and proper credit is given to IDRA and the author.]