Law school affirmative action in doubt: 5th Circuit ruling strikes down University of Texas admissions preferences

By Henry J. Reske

The ABA Journal, May 1, 1996

A federal appeals court has struck down a law school admissions policy that gave preferences to racial minorities, in a ruling that could jeopardize affirmative action programs at universities across the country.

The 5th U.S. Circuit Court of Appeals based in New Orleans held in Hopwood v. Texas, No. 94-50569, that neither the 14th Amendment nor Supreme Court precedent allows the University of Texas School of Law to grant admissions preferences to blacks and Hispanics.

Writing for a three-judge panel, Judge Jerry E. Smith of Houston said in the March 18 ruling that the law school may not use race-based admissions for reasons such as achieving a diverse student body or remedying past discrimination by bodies other than the law school.

Impact Nationwide

While the 5th Circuit consists of Louisiana, Mississippi and Texas, the impact of the opinion could be more far-reaching, says Michael McDonald, president of the Center for Individual Rights in Washington, D.C., which aided the plaintiffs. “At a minimum it will force every college, every medical school, every law school … to review their procedures,” he says.

The decision follows a series of assaults on affirmative action.

The University of California plans to end racial preferences in admissions, and other states are considering similar moves. In a ruling cited by the Hopwood court, the 4th U.S. Circuit Court of Appeals, based in Richmond, Va., struck down the use of race-based scholarships in Podberesky v. Kirwin, 38 F.3d 147 (1994), cert denied. Even President Clinton has supported the review of federal affirmative action programs.

The attorneys for the lead plaintiff in the case, Cheryl Hopwood, say she is happy with the decision. She worked her way through undergraduate school and had a handicapped child who, according to published reports, has since died. Hopwood and three other plaintiffs contend they would have been admitted to the school in 1992 if they had been minorities.

UT suspended admissions for all its programs while it assessed the ruling. Texas Attorney General Dan Morales says he will appeal the decision with the pro bono help of Harvard law professor Laurence Tribe.

The ruling reverses an August 1994 district court decision that endorsed the use of race in admissions, yet struck down the specific procedure used by the Texas law school. (See “$ 1 Damages for Reverse Bias Plaintiffs,” November 1994 ABA Journal, page 24.)

“We believe that it’s a strong opinion that certainly clarifies the law on when a state can employ racial preferences,” says McDonald. “Beyond that, it vindicates the position we have been taking in litigation in the last four years in every respect. We’re extremely satisfied.”

John C. Jeffries Jr., the associate dean for academic affairs at the University of Virginia Law School, says it is too early to tell how significant the ruling will be. He says some schools may shift their policies because of it while others may take a wait-and-see attitude.

Jeffries was a clerk for former Justice Lewis Powell, who cast the pivotal vote in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), holding that universities may consider race as one factor in admissions decisions but may not set quotas. Powell’s opinion recognized diversity in higher education as a sufficient state interest.

Jeffries believes the matter will come before the Supreme Court again. “It’s not a very big deal right now to anyone outside the 5th Circuit,” he says of Hopwood. “If applied nationwide it would be a … big deal indeed.”

While noting the significance of Bakke, Smith’s opinion stated that subsequent Supreme Court case law indicates diversity is not adequate justification for affirmative action. Only “Justice Powell’s lonely opinion in Bakke” would suggest otherwise, he said. Judge Jacques Wiener, in concurrence, said the court need not resolve the diversity question for plaintiffs to prevail.

In particular, Smith quoted Justice Clarence Thomas’ concurrence in Adarand Constructors Inc. v. Pena, 115 S. Ct. at 2119, that “the diversity rationale is inadequate to meet strict scrutiny.” Adarand applied that high standard to federal set-aside programs for minorities.

The appeals court said that for Texas’ admissions scheme to pass muster, the state Legislature would have to determine the nature of any continuing effects of segregation and carefully limit the “plus” given to applicants to remedy the harm.

“A broad program that sweeps in all minorities with a remedy that is in no way related to past harms cannot survive constitutional scrutiny,” the court said.