Plaintiff
Cheryl J. Hopwood, et al.
Defendant
State of Texas, et al.
Plaintiff's Claim
That the admissions policy at the University of Texas Law School gave unfairadvantage to minority applicants over whites.
Chief Lawyer for Plaintiff
Steven Wayne Smith, Michael Rosman
Chief Defense Lawyer
Members of the firm Vinson & Elkins.
Judges for the Court
Harold R. DeMoss, Jacques L. Wiener, Jr., Jerry E. Smith (writing for the court)
Judges Dissenting
None
Place
New Orleans, Louisiana
Date of Decision
18 March 1996
Decision
That the University of Texas Law School's admissions policy violated the civil rights of four non-minority applicants using race as a criterion in granting admittance.
Significance
The Fifth U.S. Circuit Court of Appeals decision was both heralded and decried as the end of affirmative action. Hopwood and three others had sued the University of Texas because they had been denied admission to its law school in1992. They charged the institution with "reverse discrimination"--passing them over for admission in favor of minorities with lower test scores and grades. Although critics of affirmative action had often campaigned for an end to all "race-based preference systems," the Hopwood decision was, on paper, an assertion that the particular policy used by the University of Texas LawSchool violated a 1978 Supreme Court landmark ruling on affirmative action.
Denied Admission
Cheryl Hopwood was one of several non-minority students rejected when she applied for admission to the University of Texas Law School in 1992. Hopwood wasabout 30 at the time, and had once successfully applied to an Ivy League school for undergraduate study, but was forced to decline because she could notafford it. Instead she attended community colleges in Indiana and California,where she earned a 3.8 grade-point average (GPA) while working 20 to 30 hours a week and doing volunteer work. Hopwood eventually became a certified public accountant, and married. Her first daughter was born with severe health problems, which required her to spend a great deal of time caring for her.
Hopwood's coplaintiffs in the suit against the University of Texas had less distressing circumstances. They were David Rogers, Douglas Wade Carvell, and Kenneth Elliott. All had been rejected by the admissions committee because ofeither poor test scores or poor academic performance in their undergraduate studies. All four had each received letters from an Austin lawyer, who had obtained the names of those passed over by the admissions committee.
Millions in Damages
With the help of the Washington, D.C.-based Center for Individual Rights, a libertarian-focused, public-interest law firm, their suit was filed on 29 September 1992 against the state of Texas, the Board of Regents of the Texas State University System, the University of Texas Law School, and several individual university officials. Hopwood requested injunctive relief--admittance to the University of Texas Law School--plus $1.3 million in damages, which reflected the projected career earnings had she, in fact, graduated from law school, passed the bar exam, and practiced law. Her petition also asked for an additional $1.5 million for emotional distress. The other plaintiffs also requested compensation from the University of Texas.
The Hopwood case first went to trial in the U.S. District Court for the Western District of Texas, Austin Division, in May of 1994. That court found for the University of Texas, and denied injunctive relief and damages, though it did note that the admissions policy was in violation of the FourteenthAmendment giving all U.S. citizens equal protection under the law. The decision was appealed and landed on the docket of the next highest court, the FifthU.S. Circuit Court of Appeals in New Orleans.
The Terms of the Complaint
In their case, the plaintiffs asserted that the University of Texas admissions policy violated their civil rights under Title VI of the Civil Rights Act of 1964. The provision states that:
During the court proceedings, officials at the University of Texas revealed that they admitted students under a policy that dealt with non-minorities and"protected" minorities (Hispanic and African American) separately, which is called "dual admissions" and is, under the terms of a 1978 U.S. Supreme Courtruling, unconstitutional. In University of California v. Bakke (1978)the Court declared that race was an acceptable factor in a school's admissions policy, provided it was used to correct past discrimination, and to achievea more diverse student body. It gave approval to using race as a determiningfactor on an individual basis in considering applicants, but did not allow for a separate system of consideration with lower admissions standards for minorities. The Court also noted that "quotas," or reserving a certain number ofplaces in a school for minorities, was unlawful.
The Former Policy
Some legal analysts found Hopwood a poor test case for affirmative action, since the University of Texas Law School so clearly violated the Bakke ruling with its policy. Yet that policy had been in place at the University of Texas since 1983, and had been designed to help Hispanic and AfricanAmerican students overcome biases in standardized tests. Arguments questioning the fairness of standardized tests had been supported by data from severalstudies over the years which had detected such biases. Education specialistsalso noted that such tests were not always a good predictor of overall academic performance.
The University of Texas Law School had revised its admissions policy by the time Hopwood was decided in 1996. However the particulars of the formerpolicy were explained in court. First, applicants were classed according toa "Texas Index" number (TI). This was the score yielded by combining an applicant's GPA with the standardized Law School Admissions Test (LSAT). This landed the applicants into three slots: either presumptive admit, presumptive deny, or discretionary zone. Hopwood first achieved a TI number of 199, which placed her in the presumptive admit category. These same applications were thenreviewed to determine whether their high GPA was simply the result of attending a noncompetitive college. Hopwood's was placed in the discretionary zonepile for this reason.
The University of Texas admissions committee then reviewed those applicants in the presumptive deny category to determine whether any mitigating factors were in place. This caused some of the applicants who had been initially rejected to be placed in the discretionary zone category. The committee then set two presumptive admit and denial lines, with lower requirements for minorities. Finally, the discretionary zone candidates were divided into minority and non-minority piles, and reviewed independently. A subcommittee then evaluatedthe minority applications and made recommendations for admittance. A random three-member panel of the admissions committee reviewed the non-minority applications in the discretionary zone in batches of 30 and made recommendations for admittance. If an applicant received two or three votes from a committee member, their application would be upgraded and they would be offered a spot on the waiting list.
When Hopwood's file was screened as part of the discretionary zone procedure,she received one vote for admission. The same determination was made for Carvell. Both were placed on the waiting list, but were denied admittance when no slots became available as other candidates accepted their offers of enrollment.
The Arguments For and Against Hopwood
Hopwood's particular circumstances and rejection of her application were cited as proof that in some instances, affirmative action policies might work in"reverse." She had survived a difficult background, and excelled in school despite economic and personal hardships. Indeed, Hopwood did have slightly better grades and higher LSAT scores than some of the minority students who wereadmitted to University of Texas, but admissions committee members explained that several other factors were taken into consideration. Her degree from a noncompetitive school was one determinant. A second determinant was the fact that it had taken her six years to earn an associate's (two-year) degree.
Furthermore, most of Hopwood's high marks had been earned in technical courses, not the kind of analytical ones that law-school professors consider necessary training ground for a legal career. Lawyers for the University of Texas also pointed out that Hopwood's application, as well as those of her coplaintiffs, was lacking. She did not write a personal statement, and included no letters of recommendation, both of which are taken into consideration by committee members.
One of Hopwood's coplaintiffs had included a letter of recommendation from aformer professor that was anything but positive. Another plaintiff had been denied admission to several other graduate schools, and upon his University ofTexas rejection, his father penned a letter to the dean that complained about "mandatory minority and women quotas." This particular candidate's application was then reconsidered, and one University of Texas official said he was then offered admittance. Both the plaintiff and school officials denied this.
To present their argument, the University of Texas defense team was supportedby an expert on causation, Olin Guy Wellborn. This University of Texas law professor and member of the admissions committee, investigated whether the four would have been admitted under a more "constitutional" system that did nothave dual standards. Wellborn concluded that there would have been little change in the final selection. The plaintiffs whose application had landed in the "discretionary zone" category--where they were then reviewed individually--would not have received the "yes" votes that would have placed them on the acceptance list or even the waiting list.
The Decision
A three-judge panel of the Fifth U. S. Circuit Court of Appeals declared theUniversity of Texas Law School admission policy unconstitutional. Later, it awarded Hopwood $6,000 in emotional damages. The appeals court theorized thatthe severe hardships she underwent since the rejection of her University of Texas application--she gave birth to a second daughter in 1993, who died a daylater, was separated from her husband in 1995, and her first daughter died later that year--would have made it quite difficult for her to complete the demanding requirements for a law degree.
The Fifth Circuit's decision, technically, barred Texas universities from using race as a basis for admission or financial aid. The University of Texas appealed the decision to the Supreme Court. However, the Supreme Court denied the writ of certiorari, or request to review the case.
An End to Affirmative Action?
There remained a great deal of confusion over the terms of the Hopwoodruling. Was it specific to just the University of Texas and its admission policy, which had since been revised, or did it apply to all state universitiesinside the jurisdiction of the Fifth Circuit--which included Mississippi andLouisiana as well? Conservatives, who favored the dismantling of affirmativeaction programs, asserted that the Hopwood decision applied across the board.
Just over three months after the Hopwood ruling, Texas State AttorneyGeneral Dan Morales said that the court's decision should be applied to all Texas schools, not just the University of Texas Law School. In response, NormaCantu, Assistant Secretary for Civil Rights in the U.S. Department of Education, issued a letter to lawmakers that disagreed with Morales. Cantu declaredthat the case only applied to the University of Texas Law School's admissions policy, and that the University of Texas system could lose up to $500 million in federal funding if it revoked its affirmative action practices in undergraduate admissions and financial aid.
Senator Phil Gramm drafted a letter to U.S. Secretary of Education Richard Riley stating that the Department of Education needed to revise its position, and that Cantu should retract her statement. The problem was eventually resolved when Cantu's warning was attributed to her "misinterpretation" of two separate government policy statements on the matter. The "compromise" seemed to reflect the Clinton Administration's stance on the matter: "Mend it, but don'tend it," which the president proposed in a 1995 speech on affirmative action.
The Hopwood decision initiated a great deal of discussion in higher education circles, and there were numerous conferences and debates on the caseover the next year. Supporters of affirmative action say that forced diversity in higher education benefits everybody--it brings more opinions and more viewpoints to classroom discussion. A year after the Hopwood ruling, statistics showed a decrease in minority applications at Texas state schools. The University of Texas Law School alone saw a 40 percent decline in minority applications. Qualified minority candidates simply applied elsewhere. Opponents of affirmative action noted that a new requirement for a written essay mayhave had some effect on the decrease in applications.
Affirmative action remains a divisive political issue inside for public officials. However, a U.S. News & World Report article suggests that the American public is not preoccupied with the issue. It cited a poll that showed a greater number of respondents would rather see the Internal Revenue Service abolished than affirmative action programs. In May of 1997, the Texas Senate passed a bill designed to replace affirmative action, which allowed the35 state universities to grant automatic admission to high school graduates who finished in the top ten percent of their class. The universities would then be allowed to take into account other admission factors such as language proficiency, family educational history, and community service.
Other institutions' schemes to eliminate race as a factor in admissions haveresulted in a marked change in diversity. The University of California at Berkeley reformed its admissions guidelines beginning in 1989, and witnessed a drop by 1994 in the number of Hispanics enrolled (from 21 to 17 percent) and blacks (11 to 7 percent), while the number Asian students climbed from 24 to 36 percent.
In other related developments, California voters approved Proposition 209 inlate 1996. It called for an end to all of the state's affirmative action programs which had faced a series of court challenges before implementation. Thelaw firm in the Hopwood case also challenged admission policies at theUniversity of Michigan, taking on the case of several non-minority studentswho had been denied admission.
Related Cases
University Race Quotas
Using race quotas assures that students receive not only a good education, but are exposed to different races and ethnic backgrounds that will prove invaluable in years to come as they enter the work force. Additionally, race quotas help ensure that individuals who have faced discrimination in the past willnow be given opportunities previously denied to them. Finally, they can helpto correct a racial imbalance in the student body.
However racial quotas are a violation of the Fourteenth Amendment's Equal Protection Clause and thus they should not be used. Discrimination regardless ofthe motivation is wrong in any form. "Racial preferences appear to `even thescore' . . . only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right than an injustice rendered in the past to a black man should be compensated for by discrimination against a white," wrote Justice Antonin Scalia in Richmond v. J. A. Croson Co.
Sources
Constitutional Law, 13th ed. NY: The Foundation Press Inc., 1997.
Cheryl J. Hopwood, et al.
Defendant
State of Texas, et al.
Plaintiff's Claim
That the admissions policy at the University of Texas Law School gave unfairadvantage to minority applicants over whites.
Chief Lawyer for Plaintiff
Steven Wayne Smith, Michael Rosman
Chief Defense Lawyer
Members of the firm Vinson & Elkins.
Judges for the Court
Harold R. DeMoss, Jacques L. Wiener, Jr., Jerry E. Smith (writing for the court)
Judges Dissenting
None
Place
New Orleans, Louisiana
Date of Decision
18 March 1996
Decision
That the University of Texas Law School's admissions policy violated the civil rights of four non-minority applicants using race as a criterion in granting admittance.
Significance
The Fifth U.S. Circuit Court of Appeals decision was both heralded and decried as the end of affirmative action. Hopwood and three others had sued the University of Texas because they had been denied admission to its law school in1992. They charged the institution with "reverse discrimination"--passing them over for admission in favor of minorities with lower test scores and grades. Although critics of affirmative action had often campaigned for an end to all "race-based preference systems," the Hopwood decision was, on paper, an assertion that the particular policy used by the University of Texas LawSchool violated a 1978 Supreme Court landmark ruling on affirmative action.
Denied Admission
Cheryl Hopwood was one of several non-minority students rejected when she applied for admission to the University of Texas Law School in 1992. Hopwood wasabout 30 at the time, and had once successfully applied to an Ivy League school for undergraduate study, but was forced to decline because she could notafford it. Instead she attended community colleges in Indiana and California,where she earned a 3.8 grade-point average (GPA) while working 20 to 30 hours a week and doing volunteer work. Hopwood eventually became a certified public accountant, and married. Her first daughter was born with severe health problems, which required her to spend a great deal of time caring for her.
Hopwood's coplaintiffs in the suit against the University of Texas had less distressing circumstances. They were David Rogers, Douglas Wade Carvell, and Kenneth Elliott. All had been rejected by the admissions committee because ofeither poor test scores or poor academic performance in their undergraduate studies. All four had each received letters from an Austin lawyer, who had obtained the names of those passed over by the admissions committee.
Millions in Damages
With the help of the Washington, D.C.-based Center for Individual Rights, a libertarian-focused, public-interest law firm, their suit was filed on 29 September 1992 against the state of Texas, the Board of Regents of the Texas State University System, the University of Texas Law School, and several individual university officials. Hopwood requested injunctive relief--admittance to the University of Texas Law School--plus $1.3 million in damages, which reflected the projected career earnings had she, in fact, graduated from law school, passed the bar exam, and practiced law. Her petition also asked for an additional $1.5 million for emotional distress. The other plaintiffs also requested compensation from the University of Texas.
The Hopwood case first went to trial in the U.S. District Court for the Western District of Texas, Austin Division, in May of 1994. That court found for the University of Texas, and denied injunctive relief and damages, though it did note that the admissions policy was in violation of the FourteenthAmendment giving all U.S. citizens equal protection under the law. The decision was appealed and landed on the docket of the next highest court, the FifthU.S. Circuit Court of Appeals in New Orleans.
The Terms of the Complaint
In their case, the plaintiffs asserted that the University of Texas admissions policy violated their civil rights under Title VI of the Civil Rights Act of 1964. The provision states that:
No person in the United Statesshall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discriminationunder any program or activity reserving Federal financial assistance.
During the court proceedings, officials at the University of Texas revealed that they admitted students under a policy that dealt with non-minorities and"protected" minorities (Hispanic and African American) separately, which is called "dual admissions" and is, under the terms of a 1978 U.S. Supreme Courtruling, unconstitutional. In University of California v. Bakke (1978)the Court declared that race was an acceptable factor in a school's admissions policy, provided it was used to correct past discrimination, and to achievea more diverse student body. It gave approval to using race as a determiningfactor on an individual basis in considering applicants, but did not allow for a separate system of consideration with lower admissions standards for minorities. The Court also noted that "quotas," or reserving a certain number ofplaces in a school for minorities, was unlawful.
The Former Policy
Some legal analysts found Hopwood a poor test case for affirmative action, since the University of Texas Law School so clearly violated the Bakke ruling with its policy. Yet that policy had been in place at the University of Texas since 1983, and had been designed to help Hispanic and AfricanAmerican students overcome biases in standardized tests. Arguments questioning the fairness of standardized tests had been supported by data from severalstudies over the years which had detected such biases. Education specialistsalso noted that such tests were not always a good predictor of overall academic performance.
The University of Texas Law School had revised its admissions policy by the time Hopwood was decided in 1996. However the particulars of the formerpolicy were explained in court. First, applicants were classed according toa "Texas Index" number (TI). This was the score yielded by combining an applicant's GPA with the standardized Law School Admissions Test (LSAT). This landed the applicants into three slots: either presumptive admit, presumptive deny, or discretionary zone. Hopwood first achieved a TI number of 199, which placed her in the presumptive admit category. These same applications were thenreviewed to determine whether their high GPA was simply the result of attending a noncompetitive college. Hopwood's was placed in the discretionary zonepile for this reason.
The University of Texas admissions committee then reviewed those applicants in the presumptive deny category to determine whether any mitigating factors were in place. This caused some of the applicants who had been initially rejected to be placed in the discretionary zone category. The committee then set two presumptive admit and denial lines, with lower requirements for minorities. Finally, the discretionary zone candidates were divided into minority and non-minority piles, and reviewed independently. A subcommittee then evaluatedthe minority applications and made recommendations for admittance. A random three-member panel of the admissions committee reviewed the non-minority applications in the discretionary zone in batches of 30 and made recommendations for admittance. If an applicant received two or three votes from a committee member, their application would be upgraded and they would be offered a spot on the waiting list.
When Hopwood's file was screened as part of the discretionary zone procedure,she received one vote for admission. The same determination was made for Carvell. Both were placed on the waiting list, but were denied admittance when no slots became available as other candidates accepted their offers of enrollment.
The Arguments For and Against Hopwood
Hopwood's particular circumstances and rejection of her application were cited as proof that in some instances, affirmative action policies might work in"reverse." She had survived a difficult background, and excelled in school despite economic and personal hardships. Indeed, Hopwood did have slightly better grades and higher LSAT scores than some of the minority students who wereadmitted to University of Texas, but admissions committee members explained that several other factors were taken into consideration. Her degree from a noncompetitive school was one determinant. A second determinant was the fact that it had taken her six years to earn an associate's (two-year) degree.
Furthermore, most of Hopwood's high marks had been earned in technical courses, not the kind of analytical ones that law-school professors consider necessary training ground for a legal career. Lawyers for the University of Texas also pointed out that Hopwood's application, as well as those of her coplaintiffs, was lacking. She did not write a personal statement, and included no letters of recommendation, both of which are taken into consideration by committee members.
One of Hopwood's coplaintiffs had included a letter of recommendation from aformer professor that was anything but positive. Another plaintiff had been denied admission to several other graduate schools, and upon his University ofTexas rejection, his father penned a letter to the dean that complained about "mandatory minority and women quotas." This particular candidate's application was then reconsidered, and one University of Texas official said he was then offered admittance. Both the plaintiff and school officials denied this.
To present their argument, the University of Texas defense team was supportedby an expert on causation, Olin Guy Wellborn. This University of Texas law professor and member of the admissions committee, investigated whether the four would have been admitted under a more "constitutional" system that did nothave dual standards. Wellborn concluded that there would have been little change in the final selection. The plaintiffs whose application had landed in the "discretionary zone" category--where they were then reviewed individually--would not have received the "yes" votes that would have placed them on the acceptance list or even the waiting list.
The Decision
A three-judge panel of the Fifth U. S. Circuit Court of Appeals declared theUniversity of Texas Law School admission policy unconstitutional. Later, it awarded Hopwood $6,000 in emotional damages. The appeals court theorized thatthe severe hardships she underwent since the rejection of her University of Texas application--she gave birth to a second daughter in 1993, who died a daylater, was separated from her husband in 1995, and her first daughter died later that year--would have made it quite difficult for her to complete the demanding requirements for a law degree.
The Fifth Circuit's decision, technically, barred Texas universities from using race as a basis for admission or financial aid. The University of Texas appealed the decision to the Supreme Court. However, the Supreme Court denied the writ of certiorari, or request to review the case.
An End to Affirmative Action?
There remained a great deal of confusion over the terms of the Hopwoodruling. Was it specific to just the University of Texas and its admission policy, which had since been revised, or did it apply to all state universitiesinside the jurisdiction of the Fifth Circuit--which included Mississippi andLouisiana as well? Conservatives, who favored the dismantling of affirmativeaction programs, asserted that the Hopwood decision applied across the board.
Just over three months after the Hopwood ruling, Texas State AttorneyGeneral Dan Morales said that the court's decision should be applied to all Texas schools, not just the University of Texas Law School. In response, NormaCantu, Assistant Secretary for Civil Rights in the U.S. Department of Education, issued a letter to lawmakers that disagreed with Morales. Cantu declaredthat the case only applied to the University of Texas Law School's admissions policy, and that the University of Texas system could lose up to $500 million in federal funding if it revoked its affirmative action practices in undergraduate admissions and financial aid.
Senator Phil Gramm drafted a letter to U.S. Secretary of Education Richard Riley stating that the Department of Education needed to revise its position, and that Cantu should retract her statement. The problem was eventually resolved when Cantu's warning was attributed to her "misinterpretation" of two separate government policy statements on the matter. The "compromise" seemed to reflect the Clinton Administration's stance on the matter: "Mend it, but don'tend it," which the president proposed in a 1995 speech on affirmative action.
The Hopwood decision initiated a great deal of discussion in higher education circles, and there were numerous conferences and debates on the caseover the next year. Supporters of affirmative action say that forced diversity in higher education benefits everybody--it brings more opinions and more viewpoints to classroom discussion. A year after the Hopwood ruling, statistics showed a decrease in minority applications at Texas state schools. The University of Texas Law School alone saw a 40 percent decline in minority applications. Qualified minority candidates simply applied elsewhere. Opponents of affirmative action noted that a new requirement for a written essay mayhave had some effect on the decrease in applications.
Affirmative action remains a divisive political issue inside for public officials. However, a U.S. News & World Report article suggests that the American public is not preoccupied with the issue. It cited a poll that showed a greater number of respondents would rather see the Internal Revenue Service abolished than affirmative action programs. In May of 1997, the Texas Senate passed a bill designed to replace affirmative action, which allowed the35 state universities to grant automatic admission to high school graduates who finished in the top ten percent of their class. The universities would then be allowed to take into account other admission factors such as language proficiency, family educational history, and community service.
Other institutions' schemes to eliminate race as a factor in admissions haveresulted in a marked change in diversity. The University of California at Berkeley reformed its admissions guidelines beginning in 1989, and witnessed a drop by 1994 in the number of Hispanics enrolled (from 21 to 17 percent) and blacks (11 to 7 percent), while the number Asian students climbed from 24 to 36 percent.
In other related developments, California voters approved Proposition 209 inlate 1996. It called for an end to all of the state's affirmative action programs which had faced a series of court challenges before implementation. Thelaw firm in the Hopwood case also challenged admission policies at theUniversity of Michigan, taking on the case of several non-minority studentswho had been denied admission.
Related Cases
- University of California v. Bakke, 438 U.S. 265 (1978).
- Hunter by Brandt v. Regent of the University of California, 971 F.Supp. 1316 (1997).
- Wessmann by Wessmann v. Boston School Committee, 996 F.Supp. 120 (1998).
University Race Quotas
Using race quotas assures that students receive not only a good education, but are exposed to different races and ethnic backgrounds that will prove invaluable in years to come as they enter the work force. Additionally, race quotas help ensure that individuals who have faced discrimination in the past willnow be given opportunities previously denied to them. Finally, they can helpto correct a racial imbalance in the student body.
However racial quotas are a violation of the Fourteenth Amendment's Equal Protection Clause and thus they should not be used. Discrimination regardless ofthe motivation is wrong in any form. "Racial preferences appear to `even thescore' . . . only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right than an injustice rendered in the past to a black man should be compensated for by discrimination against a white," wrote Justice Antonin Scalia in Richmond v. J. A. Croson Co.
Sources
Constitutional Law, 13th ed. NY: The Foundation Press Inc., 1997.
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