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Volume 8 no. 4 FIFTH CIRCUIT DECISION ON AFFIRMATIVE ACTION APPEALED TO THE SUPREME COURT
On April 30, 1996, the state of Texas petitioned the Supreme Court for review of the March 18, 1998 ruling of the U.S. Court of Appeals for the Fifth Circuit that the University of Texas School of Law's affirmative action program violated the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. In its appeal, the state asserts that it has a compelling interest to ensure that the student bodies of its universities are racially and ethnically diverse:
"Diversity is an especially compelling interest in legal education. No other discipline deals so fundamentally with the ordering of human relationships in our society, including racial and ethnic minorities who have been subjected to discrimination."
The Fifth Circuit applied the standard of strict scrutiny to the case and concluded that while remedying the present effects of past discrimination was a compelling state interest, the university had not established sufficiently the existence of such present effects. Further, the panel held that the goal of a diverse student body did not rise to the level of a compelling state interest.
One member of the three judge panel while concurring in the judgment as to past discrimination stated in a separate opinion that he disagreed with the conclusion that diversity in a public graduate school can never be a compelling state interest.
The Fifth Circuit ruling reversed the decision of the district court that the law school's program was constitutional. The Fifth Circuit had remanded the case to the lower court with instructions that the law school may not use race as a factor in law school admissions.
The law school has revised the two-track admissions program (see background) ruled unconstitutional by the Fifth Circuit and now considers race as one of several personal factors evaluated during the admissions' process.
Background
The University of Texas Law School, which ranks in the top 20 of law schools in the country, receives approximately 4,000 applications each year, and accepts 900 applicants to guarantee an entering class of 500 students. The law school was one of the defendants in a series of cases brought by the late Supreme Court Justice Thurgood Marshall, while Director-Counsel of the NAACP Legal Defense Fund, that challenged the constitutionality of "separate but equal" in higher education leading up to the Brown v. Bd. of Education case in 1954. In 1950 in Sweatt v. Painter the Supreme Court ruled that the state of Texas could not provide black students with equal educational opportunity in a separate law school.
In recent years, the law school has operated under an affirmative action plan mandated by the Department of Education to dismantle the state's segregated higher education system. The goal of the plan is a student population 10 percent Mexican-American and 5 percent African-American. All applicants to the law school are evaluated on their combined grade point average and LSAT score (Texas Index, TI), personal qualities (background, life experiences, outlook), and residency status (only 15 percent of the students may be non-residents). In addition, the admission committee members use their judgment in evaluating the TI in relation to the strength of the undergraduate education, differences in majors, and the applicant's grades over time.
Based on these criteria, students are placed in three categories: (1) presumptive admit (admitted with little review; (2) presumptive deny (denied entry with little consideration); and (3) middle discretionary zone (extensive scrutiny of the file). Applications placed in the third category are reviewed by three admissions committee members. Each member reviews stacks of 30 and could cast votes of nine to eleven among the 30. Candidates who received votes from at least two members are offered admission, those who received one vote are wait listed. The other applicants are denied admission.
The TI level used to place applicants in the three categories was lower for African- and Mexican-Americans than for white applicants. The applications were also color-coded and a minority subcommittee of three met and discussed each minority candidate placed in the discretionary zone. There were also separate waiting lists for majority and minority candidates.
The plaintiffs are four white resident applicants, one female, three males, who applied to the law school in 1992 and were all placed in the discretionary zone. They challenged the constitutionality of the admisssions program asserting that they were subjected to racial discrimination by the law school's evaluation of their applications. They sought injunctive and declaratory relief as well as compensatory and punitive damages.
The district court ruled that the law school had violated the plaintiffs equal protection rights and granted declaratory relief, ordered the law school to allow the plaintiffs to apply again with the regular fee waived, and granted each plaintiff an award of one dollar. The court did not enjoin the law school from using race in admission decisions. In applying the strict scrutiny standard, the court held that the admissions program met constitutional muster under its goals of increasing racial diversity among the student body -- "obtaining the educational benefits that flow from a racially and ethnically diverse student body remain a sufficiently compelling interest to support the use or racial classifications," -- and of remedying 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." The court said further that if it had restricted its examination of past discrimination to the University of Texas, it would still find a "strong evidentiary basis for concluding that remedial action is necessary."
In reviewing whether the admissions program was narrowly tailored, the court upheld the "plus factor" granted minority students in allowing a lower TI, but struck down that part of the program that had separate admissions committees to review majority and minority applications placed in the discretionary zone. At some point, the court reasoned, all applicants in the discretionary zone should have been reviewed together. Finally, the court denied any compensatory or punitive damages finding that the plaintiffs had not demonstrated that they would have been admitted but for the affirmative action plan and thus had suffered no proven harm.
The Opinions
Citing the Supreme Court's decision in Adarand v. Pena, 115 S.Ct. 2097 (1994), the opinion states that the standard by which all state racial classifications are to be judged is strict scrutiny. i.e., does the racial classification serve a compelling government interest and is it narrowly tailored to the achievement of that goal? Applying this standard, the panel ruled "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." The decision considers the Supreme Court's 1978 decision in Regents of the University of California v. Regents, 438 U.S. 265, in which the Court while ruling unconstitutional the Davis School of Medicine's rigid admissions policy that reserved 16 of the 100 places in the entering class for minority students, upheld the use of race as a "plus" factor in the admissions process to insure a diverse student body.
Justice Powell in a separate opinion in the Bakke case recognized diversity as a sufficient justification for using race as a plus factor in admissions. He wrote:
"An otherwise qualified medical student with a particular background -- whether it be ethnic, geographic, culturally advantaged or disadvantaged -- may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity."
After consideration of all this, the panel in Hopwood states:
"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....
"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."
The opinion then addresses whether the goal of remedying the effects of past discrimination is a compelling state interest recognizing that a majority or the Supreme Court has held that a state may use racial classifications where it has a "strong basis in the evidence for its conclusion that remedial action was necessary." The panel holds that to justify a remedial affirmative action program the state must show that present effects of past discrimination exist. The panel dismisses the state's identified present effects as examples of societal discrimination that the Supreme Court has found not to provide a "valid remedial basis" -- lingering reputation in the minority community as a "white" school, underrepresentation of minorities in the student body, and perception that the school environment is hostile to minorities. The opinion concludes:
"the law school has failed to show a compelling state interest in remedying the present effects of past discrimination sufficient to maintain the use of race in its admissions system. Accordingly, it is unnecessary for use to examine the district court's determination that the law school's admissions program was not narrowly tailored to meet the compelling interests that the district court erroneously perceived."
The panel instructed the district court to revisit the issue of burden of proof and said that unless the law school is able to show by a preponderance of the evidence "that a respective plaintiff would not have been admitted to the law school under a constitutional admissions system, the court is to award to that plaintiff any equitable and/or monetary relief it deems appropriate."
In a separate opinion, Judge Wiener concurs in the judgment but disagrees with the panel conclusion that the goal of a diverse student body can never establish a compelling state interest. He writes:
"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...and (2) providing the educational benefits that can be obtained only when the student body is diverse...As to the 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."
The plaintiffs have until the end of May to file a response to the state's petition after which the Court will announce whether it will grant review. If granted, oral argument would be heard in the next term which begins the first Monday in October, 1996.
  
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