Janell M. Byrd, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, Theodore M. Shaw, Norman J. Chachkin, NAACP Legal Defense & Educational Fund, Inc., New York City, Anthony P. Griffin, Galveston, TX, for appellants in No. 94-50569.
Dennis D. Parker, New York City, for TMLS--proposed intervenor.
Terral Ray Smith, Steven W. Smith, Small, Craig & Werkenthin, Austin, TX, for Elliott & Rogers.
Michael E. Rosman, Vincent A. Mulloy, Ctr. for Individual Rights, Washington, DC, for Cheryl Hopwood et al.
Harry M. Reasoner, Vinson & Elkins, Houston, TX, Barry D. Burgdorf, Vinson & Elkins, Austin, TX, R. Scott Placek, Houston, TX, Samuel Issacharoff, Charles Alan Wright, Univ. of Texas School of Law, Austin, TX, Betty R. Owens, Houston, TX, Javier Aguilar, Spec. Asst. Atty. Gen., Austin, TX, Allan Van Fleet, Houston, TX, for State of Texas et al.
Steven W. Smith, Austin, TX, Terral R. Smith, Austin, TX, for Appellants, Elliott & Rogers.
Theodore B. Olson, Washington DC, Michael E. Rosman, Ctr. for Ind. Rights, Washington, DC, Joseph A. Wallace, Elkins, West VA, for Hopwood and Douglas W. Carvell.
Javier Aguilar, Austin, TX, Harry M. Reasoner, Betty R. Owens, Houston, TX, Barry D. Burgdorf, Vinson & Elkins, Austin, TX, Dana C. Livingston, Manuel Lopez, Allan Van Fleet, Houston, TX, R. Scott Placek, Austin, TX, Samuel Issacharoff, Charles Alan Wright, Austin, TX, for State of Texas et al.
Janell M. Byrd, Anthony P. Griffin, Washington, DC, Theodore M. Shaw, Norman J. Chachkin, New York City, Myles V. Lynk, Washington, DC, for amicus curiae TMLS.
Albert H. Kauffman, John R. Vasquez, San Antonio, TX, for amicus curiae MALDEF.
Before SMITH, WIENER and DeMOSS, Circuit Judges.
[*934] 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 today 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 [*935] a white." City of Richmond v. J.A. Croson Co., 488 U.S. 469, 528, 109 S.Ct. 706, 740, 102 L.Ed.2d 854 (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.
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 early 1990'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.1 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.2
Because of the large number of applicants and potential admissions 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 [*936] 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 noncompetitive major or a weak undergraduate 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 eleven3--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,4 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 199.5 Mexican Americans and blacks needed a TI of only 189 to be presumptively admitted.6 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 a [*937] 3.56 and 160.7
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 below8 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.9
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.10 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."
[*938] 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.11
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.12 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.
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").13 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 [*939] schools in the system." Id.14 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.'" Id. (citation omitted).
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, the plaintiffs 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.15 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.
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, 509 U.S. 630, ___, 113 S.Ct. 2816, 2824, 125 L.Ed.2d 511 (1993) [*940] (citing Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976)). It seeks ultimately to render the issue of race irrelevant in governmental decisionmaking. See Palmore v. Sidoti, 466 U.S. 429, 432, 104 S.Ct. 1879, 1881-82, 80 L.Ed.2d 421 (1984) ("A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination.") (footnote omitted).
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, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (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, 98 S.Ct. 2733, 2757, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.); see also Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); Brown v. Board of Educ., 347 U.S. 483, 493-94, 74 S.Ct. 686, 691-92, 98 L.Ed. 873 (1954). These equal protection maxims apply to all races. Adarand Constructors v. Peña, ___ U.S. ___, ___, 115 S.Ct. 2097, 2111, 132 L.Ed.2d 158 (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 ___, 115 S.Ct. at 2113; Loving, 388 U.S. at 11, 87 S.Ct. at 1823. Furthermore, there is now absolutely no doubt that courts are to employ strict scrutiny16 when evaluating all racial classifications, including those characterized by their proponents as "benign" or "remedial."17
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:
Absent searching judicial inquiry into the justifications for such race-based measures, there is simply no way of determining what classifications are "benign" or "remedial" and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to "smoke out" illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen "fit" this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.
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, ___ U.S. at ___, ___, 115 S.Ct. at 2111, 2117. As the Adarand Court emphasized, strict scrutiny ensures that "courts will consistently [*941] give racial classifications ... detailed examination both as to ends and as to means." Id.18
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, 68 S.Ct. 836, 846, 92 L.Ed. 1161 (1948).19 Thus, the Court consistently has rejected arguments conferring benefits on a person based solely upon his membership in a specific class of persons.20
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.
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, 98 S.Ct. at 2738-39 (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 [*942] 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 serve remedial 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. *, 98 S.Ct. at 2738, it was joined by no other Justice, it has played a prominent role in subsequent debates concerning the impact of Bakke.21 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, 98 S.Ct. at 2756-61. Specifically, after Justice Powell recognized that the proper level of review for racial classifications is strict scrutiny, id. at 305-06, 98 S.Ct. at 2756-57, 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, 98 S.Ct. at 2757.
Notably, because the first step in reviewing an affirmative action program is a determination
of the state's interests at stake,22 it often is the determinative step. Justice Powell outlined the four state interests proffered by the Bakke defendants:
The special admissions program purports to serve the purposes of: (i) "reducing
the historic deficit of traditionally disfavored minorities in medical schools and
in the medical profession,"; (ii) countering the effects of societal discrimination;
(iii) increasing the number of physicians who will practice in communities currently
underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body
Justice Powell reasoned that the second and third justifications--remedying societal discrimination and providing role models--were never appropriate.23 He determined that any remedial justification was limited to eliminating "identified discrimination" with "disabling effects." Id. at 307, 98 S.Ct. at 2757 (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, 98 S.Ct. at 2757-58.
Justice Powell further reasoned that diversity is a sufficient justification for limited [*943] racial classification. Id. at 311-16, 98 S.Ct. at 2759-62. "[The attainment of a diverse student body] clearly is a constitutionally permissible goal for an institution of higher education." Id. at 311, 98 S.Ct. at 2759. 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, 98 S.Ct. at 2759.24
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, 98 S.Ct. at 2760.25 The Justice then concluded that
[a]n 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.
Id. at 314, 98 S.Ct. at 2760 (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, 98 S.Ct. at 2762. 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
applicant who loses out to another candidate receiving a 'plus' on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would only mean that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of another applicant. His qualifications would have been weighted fairly and competitively, and he would have no basis to complaint of unequal treatment under the Fourteenth Amendment.
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 [*944] "quota" system, but he intimated that the Constitution would allow schools to continue to use race in a wide-ranging manner.
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 nowhere except 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, 98 S.Ct. at 2766 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, 98 S.Ct. at 2810 (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. ___ U.S. at ___, 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, 110 S.Ct. 2997, 3008-09, 111 L.Ed.2d 445 (1990), the five-Justice majority relied upon an intermediate scrutiny standard of review to uphold the federal program seeking diversity in the ownership of broadcasting facilities. In Adarand, ___ U.S. at ___ - ___, 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 ___, 115 S.Ct. 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, 109 S.Ct. at 722 (plurality opinion), the Court flatly stated that "[u]nless [racial classifications] are strictly reserved for remedial settings, they may in fact promote notions of [*945] racial inferiority and lead to a politics of racial hostility." (emphasis added).26
Justice O'Connor, in her Adarand-vindicated dissent in Metro Broadcasting, joined by Justices Rehnquist, Scalia, and Kennedy, explained this position:
Modern equal protection has recognized only one [compelling state] interest: remedying the effects of racial discrimination. The interest in increasing the diversity of broadcast viewpoints is clearly not a compelling interest. It is simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications.
497 U.S. at 612, 110 S.Ct. at 3034 (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, ___ U.S. at ___, 115 S.Ct. at 2119 (Thomas, J., concurring in part and concurring in judgment).27
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, 109 S.Ct. at 723 (plurality opinion); Bakke, 438 U.S. at 307, 98 S.Ct. at 2757 (opinion of Powell, J.).
Accordingly, we see the caselaw as sufficiently established that the use of ethnic diversity simply to achieve racial heterogeneity, [*946] 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.28
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.29 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, 104 S.Ct. 3244, 3255, 82 L.Ed.2d 462 (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, 110 S.Ct. at 3029 (O'Connor, J., dissenting).30
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 [*947] 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.31
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, 74 S.Ct. 686, 691, 98 L.Ed. 873 (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,32 the current Court has now retreated from the idea that so-called benign and invidious classifications may be distinguished.33 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, 109 S.Ct. at 722.34
Finally, the use of race to achieve diversity undercuts the ultimate goal of the Fourteenth [*948] 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, 98 S.Ct. at 2806. 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, 109 S.Ct. at 722 (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, 106 S.Ct. at 1871 (Stevens, J., dissenting)).35
In sum, the use of race to achieve a diverse student body, whether as a proxy for permissible characteristics, simply cannot be a state interest compelling enough to meet the steep standard of strict scrutiny.36 These latter factors may, in fact, turn out to be substantially correlated with race, but the key is that race itself not be taken into account. Thus, that portion of the district court's opinion upholding the diversity rationale is reversibly flawed.37
We now turn to the district court's determination that "the remedial purpose of the law school's affirmative action program is a compelling government objective." 861 F.Supp. at 573. The plaintiffs argue that the court erred by finding that the law school could employ racial criteria to remedy the present effects of past discrimination in Texas's primary and secondary schools. The plaintiffs contend that the proper unit for analysis is the law school, and the state has shown no recognizable present effects of the law school's past discrimination. The law school, in response, notes Texas's well-documented history of discrimination in education and argues that its effects continue today at the law school, both in the level of educational attainment of the average minority applicant and in the school's reputation.
In contrast to its approach to the diversity rationale, a majority of the Supreme Court has held that a state actor may racially classify where it has a "strong basis in the evidence for its conclusion that remedial action was necessary." Croson, 488 U.S. at 500, 109 S.Ct. at 730 [*949] (quoting Wygant, 476 U.S. at 277, 106 S.Ct. at 1849 (plurality opinion)). Generally, "[i]n order to justify an affirmative action program, the State must show there are 'present effects of past discrimination.'" Hopwood v. Texas("Hopwood I"),3821 F.3d 603, 605 (5th Cir.1994) (per curiam) (quoting Podberesky v. Kirwan, 956 F.2d 52, 57 (4th Cir.1992), cert. denied, ___ U.S. ___, 115 S.Ct. 2001, 131 L.Ed.2d 1002 (1995)); see also Wygant, 476 U.S. at 280, 106 S.Ct. at 1850 (opining that "in order to remedy the effects of prior discrimination, it may be necessary to take race into account") (opinion of Powell, J.).39
Because a state does not have a compelling state interest in remedying the present effects of past societal discrimination, however, we must examine the district court's legal determination that the relevant governmental entity is the system of education within the state as a whole. Moreover, we also must review the court's identification of what types of present effects of past discrimination, if proven, would be sufficient under strict scrutiny review. Finally, where the state actor puts forth a remedial justification for its racial classifications, the district court must make a "factual determination" as to whether remedial action is necessary. Wygant, 476 U.S. at 277-78, 106 S.Ct. at 1848-49. We review such factual rulings for clear error.
The Supreme Court has "insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination." Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (plurality opinion of Powell, J.) (citing Hazelwood School Dist. v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977)).40 In Wygant, the Court analyzed a collective bargaining agreement between a school board and a teacher's union that allowed the board to give minorities preferential treatment in the event of layoffs. A plurality rejected the theory that such a program was justified because it [*950] provided minority role models. Id. at 274-77, 106 S.Ct. at 1847-49 (plurality opinion). Such a claim was based upon remedying "societal discrimination," a rationale the Court consistently has rejected as a basis for affirmative action. Accordingly, the state's use of remedial racial classifications is limited to the harm caused by a specific state actor.41
Moreover, the plurality in Wygant held that before a state actor properly could implement such a plan, it "must ensure that ... it has convincing evidence that remedial action is warranted." Id. at 277, 106 S.Ct. at 1848. Accord id. at 289, 106 S.Ct. at 1854-55 (O'Connor, J., concurring in part and concurring in judgment). The plurality felt that "[i]n the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future." Id. at 276, 106 S.Ct. at 1848.
The Croson Court further discussed how to identify the relevant past discriminator. Writing for the Court, Justice O'Connor struck down a minority business set-aside program implemented by the City of Richmond and justified on remedial grounds. While the district court opined that sufficient evidence had been found by the city to believe that such a program was necessary to remedy the present, effects of past discrimination in the construction industry, the Court held:
Like the "role model" theory employed in Wygant, a generalized assertion that there had been past discrimination in an entire industry provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. It 'has no logical stopping point.' Wygant, 476 U.S. at 275 [106 S.Ct. at 1848] (plurality opinion). 'Relief' for such an ill-defined wrong could extend until the percentage of public contracts awarded to [minority businesses] in Richmond mirrored the percentage of minorities in the population as a whole.
In addition, in a passage of particular significance to the instant case, the Court analogized the employment contractor situation to that of higher education and noted that "[l]ike claims that discrimination in primary and secondary schooling justifies a rigid racial preference in medical school admissions, an amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota." Id. at 499, 109 S.Ct. at 724. Such claims were based upon "sheer speculation" about how many minorities would be in the contracting business absent past discrimination. Id.
Applying the teachings of Croson and Wygant, we conclude that the district court erred in expanding the remedial justification to reach all public education within the State of Texas. The Supreme Court repeatedly has warned that the use of racial remedies must be carefully limited, and a remedy reaching all education within a state addresses a putative injury that is vague and amorphous. It has "no logical stopping point." Wygant, 476 U.S. at 275, 106 S.Ct. at 1847 (plurality opinion).
The district court's holding employs no viable limiting principle. If a state can "remedy" the present effects of past discrimination in its primary and secondary schools, it also would be allowed to award broad-based preferences in hiring, government contracts, licensing, and any other state activity that in some way is affected by the educational attainment of the applicants. This very argument was made in Croson and rejected:
The "evidence" relied upon by the dissent, history of school desegregation in Richmond and numerous congressional reports, does little to define the scope of any injury [*951] to minority contractors in Richmond or the necessary remedy. The factors relied upon by the dissent could justify a preference of any size or duration.
Strict scrutiny is meant to ensure that the purpose of a racial preference is remedial. Yet when one state actor begins to justify racial preferences based upon the actions of other state agencies, the remedial actor's competence to determine the existence and scope of the harm--and the appropriate reach of the remedy--is called into question. The school desegregation cases, for example, concentrate on school districts--singular government units--and the use of interdistrict remedies is strictly limited. See Missouri v. Jenkins, ___ U.S. ___, ___, 115 S.Ct. 2038, 2048, 132 L.Ed.2d 63 (1995); Milliken v. Bradley, 418 U.S. 717, 745, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974) ("[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy."). Thus, one justification for limiting the remedial powers of a state actor is that the specific agency involved is best able to measure the harm of its past discrimination.
Here, however, the law school has no comparative advantage in measuring the present effects of discrimination in primary and secondary schools in Texas. Such a task becomes even more improbable where, as here, benefits are conferred on students who attended out-of-state or private schools for such education. Such boundless "remedies" raise a constitutional concern beyond mere competence. In this situation, an inference is raised that the program was the result of racial social engineering rather a desire to implement a remedy.
No one disputes that in the past, Texas state actors have discriminated against some minorities in public schools. In this sense, some lingering effects of such discrimination is not "societal," if that term is meant to exclude all state action. But the very program at issue here shows how remedying such past wrongs may be expanded beyond any reasonable limits.
Even if, arguendo, the state is the proper government unit to scrutinize, the law school's admissions program would not withstand our review. For the admissions scheme to pass constitutional muster, the State of Texas, through its legislature, would have to find that past segregation has present effects; it would have to determine the magnitude of those present effects; and it would need to limit carefully the "plus" given to applicants to remedy that 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. Obviously, none of those predicates has been satisfied here.
We further reject the proposition that the University of Texas System, rather than the law school, is the appropriate governmental unit for measuring a constitutional remedy. The law school operates as a functionally separate unit within the system. As with all law schools, it maintains its own separate admissions program. The law school hires faculty members that meet the unique requirements of a law school and has its own deans for administrative purposes. Thus, for much the same reason that we rejected the educational system as the proper measure--generally ensuring that the legally-imposed racially discriminatory program is remedial--we conclude that the University of Texas System is itself too expansive an entity to scrutinize for past discrimination.44
[*952] In sum, for purposes of determining whether the law school's admissions system properly can act as a remedy for the present effects of past discrimination, we must identify the law school as the relevant alleged past discriminator. The fact that the law school ultimately may be subject to the directives of others, such as the board of regents, the university president, or the legislature, does not change the fact that the relevant putative discriminator in this case is still the law school. In order for any of these entities to direct a racial preference program at the law school, it must be because of past wrongs at that school.
Next, the relevant governmental discriminator must prove that there are present effects
of past discrimination of the type that justify the racial classifications at issue:
To have a present effect of past discrimination sufficient to justify the program,
the party seeking to implement the program must, at a minimum, prove that the effect
it proffers is caused by the past discrimination and that the effect is of sufficient
magnitude to justify the program.
Podberesky v. Kirwan, 38 F.3d 147, 153 (4th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 2001, 131 L.Ed.2d 1002 (1995). Moreover, as part of showing that the alleged present effects of past discrimination in fact justify the racial preference program at issue, the law school must show that it adopted the program specifically to remedy the identified present effects of the past discrimination.
Here, according to the district court: "The evidence presented at trial indicates those effects include 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." 861 F.Supp. at 572. Plaintiffs now argue that these three alleged effects are at most examples of societal discrimination, which the Supreme Court has found not to be a valid remedial basis. "The effects must themselves be examined to see whether they were caused by the past discrimination and whether they are of a type that justifies the program." Podberesky, 38 F.3d at 154.
As a legal matter, the district court erred in concluding that the first and third effects it identified--bad reputation and hostile environment--were sufficient to sustain the use of race in the admissions process. The Fourth Circuit examined similar arguments in Podberesky, a recent case that struck down the use of race-based scholarships. The university in that case sought, in part, to justify a separate scholarship program based solely upon race because of the university's "poor reputation within the African-American community" and because "the atmosphere on campus [was] perceived as being hostile to African-American students." Id. at 152.
The Podberesky court rejected the notion that either of these rationales could support the single-race scholarship program. The court reasoned that any poor reputation by the school "is tied solely to knowledge of the University's discrimination before it admitted African-American students." Id. at 154. The court found that "mere knowledge of historical fact is not the kind of present effect that can justify a race-exclusive remedy. If it were otherwise, as long as there are people
[*953] who have access to history books, there will be programs such as this." Id.
We concur in the Fourth Circuit's observation that knowledge of historical fact simply cannot justify current racial classifications. Even if, as the defendants argue, the law school may have a bad reputation in the minority community, "[t]he case against race-based preferences does not rest on the sterile assumption that American society is untouched or unaffected by the tragic oppression of its past." Maryland Troopers Ass'n v. Evans, 993 F.2d 1072, 1079 (4th Cir.1993). "Rather, it is the very enormity of that tragedy that lends resolve to the desire to never repeat it, and find a legal order in which distinctions based on race shall have no place." Id. Moreover, we note that the law school's argument is even weaker than that of the university in Podberesky, as there is no dispute that the law school has never had an admissions policy that excluded Mexican Americans on the basis of race.
The Podberesky court rejected the hostile-environment claims by observing that the "effects--that is, racial tensions--were the result of present societal discrimination. 38 F.3d at 155. There was simply no showing of action by the university that contributed to any racial tension. Similarly, one cannot conclude that the law school's past discrimination has created any current hostile environment for minorities. While the school once did practice de jure discrimination in denying admission to blacks, the Court in Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950), struck down the law school's program. Any other discrimination by the law school ended in the 1960's. Hopwood, 861 F.Supp. at 555.
By the late 1960's, the school had implemented its first program designed to recruit minorities, id. at 557, and it now engages in an extensive minority recruiting program that includes a significant amount of scholarship money. The vast majority of the faculty, staff, and students at the law school had absolutely nothing to do with any discrimination that the law school practiced in the past.
In such a case, one cannot conclude that a hostile environment is the present effect of past discrimination. Any racial tension at the law school is most certainly the result of present societal discrimination and, if anything, is contributed to, rather than alleviated by, the overt and prevalent consideration of race in admissions.
Even if the law school's alleged current lingering reputation in the minority community--and the perception that the school is a hostile environment for minorities--were considered to be the present effects of past discrimination, rather than the result of societal discrimination, they could not constitute compelling state interests justifying the use of racial classifications in admissions. A bad reputation within the minority community is alleviated not by the consideration of race in admissions, but by school action designed directly to enhance its reputation in that community.
Minority students who are aided by the law school's racial preferences have already made the decision to apply, despite the reputation. And, while prior knowledge that they will get a "plus" might make potential minorities more likely to apply, such an inducement does nothing, per se, to change any hostile environment. As we have noted, racial preferences, if anything, can compound the problem of a hostile environment.45
The law school wisely concentrates only on the second effect the district court identified: underrepresentation of minorities because of past discrimination. The law school argues that we should consider the prior discrimination by the State of Texas and its educational system rather than of the law school. The school contends that this prior discrimination by the state had a direct effect on the educational attainment of the pool of minority applicants and that the discriminatory admissions program was implemented partially to discharge the school's duty of eliminating the vestiges of past segregation.
As we have noted, the district court accepted the law school's argument that past [*954] discrimination on the part of the Texas school system (including primary and secondary schools), reaching back perhaps as far as the education of the parents of today's students, justifies the current use of racial classifications.46 No one disputes that Texas has a history of racial discrimination in education. We have already discussed, however, that the Croson Court unequivocally restricted the proper scope of the remedial interest to the state actor that had previously discriminated. 488 U.S. at 499, 109 S.Ct. at 724-25. The district court squarely found that "[i]n recent history, there is no evidence of overt officially sanctioned discrimination at the University of Texas." 861 F.Supp. at 572. As a result, past discrimination in education, other than at the law school, cannot justify the present consideration of race in law school admissions.
The law school now attempts to circumvent this result by claiming that its racial preference program is really a "State of Texas" plan rather than a law school program. Under the law school's reading of the facts, its program was the direct result of the state's negotiations with what was then the United States Department of Health, Education and Welfare's Office for Civil Rights ("OCR"). To bring the Texas public higher education system into compliance with title VI, the state adopted the so-called "Texas Plan."
In light of our preceding discussion on the relevant governmental unit, this argument is inapposite. Even if the law school were specifically ordered to adopt a racial preference program, its implementation at the law school would have to meet the requirements of strict scrutiny.47
Moreover, these alleged actions in the 1980's are largely irrelevant for purposes of this appeal. There is no indication that the Texas Plan imposed a direct obligation upon the law school. To the contrary, the law school's admissions program was self-initiated. Moreover, the current admissions program was formulated primarily in the 1990's, and the district court did not hold otherwise. See 861 F.Supp. at 557 ("Against this historical backdrop [including Texas's dealing with the OCR], the law school's commitment to affirmative action in the admissions process evolved."). Thus it is no more correct to say that the State of Texas implemented the program at issue than it is to assert that the Commonwealth of Virginia, not the City of Richmond, was responsible for the minority set-aside program in Croson.
The district court also sought to find a remedial justification for the use of race and, at the same time, attempted to distinguish Croson using United States v. Fordice, 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992). The court held that the law school had a compelling interest to "desegregate" the school through affirmative action.
[*955] The reliance upon Fordice is misplaced, however. The district court held that Fordice's mandate to schools "to eliminate every vestige of racial segregation and discrimination" made Croson inapplicable, 861 F.Supp. at 571, and reasoned that this mandate includes the effects of such prior practices or policies.
Fordice does not overrule Croson. The central holding of Fordice is that a state or one of its subdivisions must act to repudiate the continuing "policies or practices" of discrimination. 505 U.S. at 731-32, 112 S.Ct. at 2737-38.48 In other words, a state has an affirmative duty to remove policies, tied to the past, by which it continues to discriminate. The Fordice Court did not address, in any way, a state actor's duty to counter the present effects of past discrimination that it did not cause.49
In sum, 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 us 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.50
While the district court declared the admissions program unconstitutional, it granted the plaintiffs only limited relief. They had requested injunctive relief ordering that they be admitted to law school, compensatory and punitive damages, and prospective injunctive relief preventing the school from using race as a factor in admissions.
We must decide who bears the burden of proof on the damages issue. The district court refused to order the plaintiffs' admission (or award any compensatory damages), [*956] as it found that they had not met their burden of persuasion in attempting to show that they would have been admitted absent the unconstitutional system. 861 F.Supp. at 579-82.51 The law school now argues that the plaintiffs had the burden of persuasion on the issue of damages and that the district court's findings are not clearly erroneous.52 The plaintiffs maintain, as they did in the district court, that once they had shown a constitutional violation, the burden of persuasion shifted to the school to show that the denial of admission was not caused by that violation.
The well-established rule is that in order to collect money damages, plaintiffs must prove that they have been injured. Carey v. Piphus, 435 U.S. 247, 254-57, 98 S.Ct. 1042, 1047-49, 55 L.Ed.2d 252 (1978). Several Supreme Court cases, however, allow for a transfer of burden upon proof of discrimination. See Mt. Healthy City Sch., Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1977).53
In Mt. Healthy, a discharged school teacher sued for reinstatement, claiming his termination was a result of comments he had made on a radio show, a violation of his First and Fourteenth Amendment rights. The Court devised a test of "causation" that placed the burden of proving no harm on the defendant:
Initially, ... the burden was properly placed upon the respondent to show that his conduct was constitutionally protected, and that this conduct was a "substantial factor"--or to put it in other words, that it was a "motivating factor" in the Board's decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to the respondent's reemployment even in the absence of the protected conduct.
429 U.S. at 287, 97 S.Ct. at 576. In Arlington Heights, the Court applied a similar rule where the decision of a zoning board was challenged as racially discriminatory. See 429 U.S. at 270 n. 21, 97 S.Ct. at 566 n. 21. In sum, these cases allow a defendant, who intended to discriminate or otherwise act unconstitutionally, to show that its action would have occurred regardless of that intent.
Courts are split on whether the Mt. Healthy rubric applies in racial preference cases.54 We conclude that the Mt. Healthy methodology is appropriate in the instant case. The Mt. Healthy plaintiff, like the present plaintiffs, brought a constitutional challenge, and his injuries were analogous to the injuries alleged here. As we have said, the title VII burden-shifting scheme is designed to determine whether a violation of law has occurred.
[*957] In this case, there is no question that a constitutional violation has occurred (as the district court found) and that the plaintiffs were harmed thereby. SeeAdarand, ___ U.S. at ___, 115 S.Ct. at 2105 ("The injury in cases of this kind is that a 'discriminatory classification prevent[s] the plaintiff from competing on an equal footing.'") (citation omitted). The Mt. Healthy burden-shifting exercise simply gives the defendant law school a second chance of prevailing by showing that the violation was largely harmless.
As the district court held, to the contrary, that plaintiffs had the burden, it should revisit this issue in light of what we have said in both the liability and remedial portions of this opinion.55 In the event that the law school is unable 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.
Obviously, if the school proves that a plaintiff would not have gained admittance to the law school under a race-blind system, that plaintiff would not be entitled to an injunction admitting him to the school. On the other hand, the law school's inability to establish a plaintiff's non-admission--if that occurs on remand--opens a panoply of potential relief, depending in part upon what course that plaintiff's career has taken since trial in mid-1994. It then would be up to the district court, in its able discretion, to decide whether money damages56 can substitute for an order of immediate admission--relief that would ring hollow for a plaintiff for whom an education at the law school now is of little or no benefit.57
Additionally, the district court erred in holding that plaintiffs did not prove that defendants had committed intentional discrimination under title VI. "Intentional discrimination," as used in this context, means that a plaintiff must prove "that the governmental actor, in adopting or employing the challenged practices or undertaking the challenged action, intended to treat similarly situated persons differently on the basis of race." Castaneda v. Pickard, 648 F.2d 989, 1000 (5th Cir. Unit A June 1981); see also Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). While we agree with the district court's conclusion that the various defendants acted in good faith, there is no question that they intended to treat the plaintiffs differently on account of their race.
The plaintiffs argue that, because they proved a constitutional violation, and further violations were likely to result, the district court erred in denying them prospective injunctive relief. We review denials of [*958] this sort of relief for an abuse of discretion. See, e.g., Peaches Entertainment Corp. v. Entertainment Repertoire Associates, 62 F.3d 690, 693 (5th Cir.1995). The law school avers that the district court was well within its equitable discretion in denying relief, especially as the school had abandoned the practices that the district court had found were unconstitutional--to-wit, the use of separate admissions committees for whites and minorities.
We review denials of prospective injunctive relief as we would any other denial of permanent injunctive relief under FED.R.CIV.P. 65, keeping in mind, however, the questions of mootness, ripeness, and standing. See generally 11A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2942 (2d ed. 1995). That treatise notes that
[p]erhaps the most significant single component in the judicial decision whether to exercise equity jurisdiction and grant permanent injunctive relief is the court's discretion. Of course, in some situations the facts and relevant law may indicate that an injunction clearly should be granted or denied. However, in most cases the
determination whether to issue an injunction involves a balancing of interests of the parties who might be affected by the court's decision--the hardship on the plaintiff if relief is denied as compared to the defendant if relief is granted and the extent to which the latter hardship can be mitigated by requiring a security bond. Not surprisingly, therefore, the court's decision depends on the circumstances of each case.
Id. at 41-42. Accordingly, the usual practice upon reversal of a denial of injunctive relief is to remand for a reweighing of the equities. Id. § 2962, at 448; See, e.g., James v. Stockham Valves & Fittings Co., 559 F.2d 310, 354-55 (5th Cir.1977). In other situations, the appellate court may order the district court to enter an injunction. See, e.g., Southeastern Promotions, Ltd. v. City of Mobile, 457 F.2d 340 (5th Cir.1972).
According to the district court, the school had abandoned the admissions procedure--consisting of the separate minority subcommittee--that was used in 1992, 1993, and 1994. The court reasoned that, as a new procedure was developed for 1995, a prospective injunction against the school was inappropriate. We conclude, however, that, while the district court may have been correct in deciding that the new procedure eliminates the constitutional flaws that the district court identified in the 1992 system, there is no indication that the new system will cure the additional constitutional defects we now have explained.
The new system utilizes a small "administrative admissions group" and does not use presumptive admission and denial scores. See Hopwood, 861 F.Supp. at 582 n. 87. Most significantly, there is no indication that in employing the new plan, the law school will cease to consider race per se in making its admissions decisions. To the contrary, as the district court recognized, the law school continues to assert that overt racial preferences are necessary to the attainment of its goals. See Hopwood, 861 F.Supp. at 573-75.
The district court has already granted some equitable relief: It directed that the plaintiffs be permitted to re-apply to the law school without incurring further administrative costs. In accordance with this opinion, the plaintiffs are entitled to apply under a system of admissions that will not discriminate against anyone on the basis of race. Moreover, the plaintiffs have shown that it is likely that the law school will continue to take race into account in admissions unless it receives further judicial instruction to the effect that it may not do so for the purpose of (1) obtaining a diverse student body; (2) altering the school's reputation in the community; (3) combating the school's perceived hostile environment toward minorities; or (4) remedying the present effects of past discrimination by actors other than the law school.
It is not necessary, however, for us to order at this time that the law school be enjoined, as we are confident that the conscientious administration at the school, as well as its attorneys, will heed the directives contained in this opinion. If an injunction should be needed in the future, the district [*959] court, in its discretion, can consider its parameters without our assistance. Accordingly, we leave intact that court's refusal to enter an injunction.
The plaintiffs contend that the district court's application of the wrong standard causes it to deny punitive damages. The plaintiffs aver that the court applied an animus standard, when it should have asked whether the school acted with "reckless indifference" to their constitutional rights. They ask for a remand on this issue.
It is not apparent, from the record, what standard the district court applied in considering the punitive damages issue. The court did determine, however, that the law school had always acted in good faith. This is a difficult area of the law, in which the law school erred with the best of intentions. As a result, the plaintiffs have not met the federal standard for punitive damages as stated in Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). Thus, we agree with the district court that punitive damages are not warranted. We note, however, that if the law school continues to operate a disguised or overt racial classification system in the future, its actors could be subject to actual and punitive damages.
Consolidated with the appeal of the merits issues of this appeal is No. 94-50569, challenging the district court's denial of a motion to intervene. The proposed intervenors--the Thurgood Marshall Legal Society and the Black Pre-Law Association (the "associations")--ask this court, for the second time, for the right to intervene. On their first attempt, the associations moved to intervene prior to trial either as of right or by permission. The district court denied intervention, and we affirmed. See Hopwood v. Texas, 21 F.3d 603 (5th Cir.1994) (per curiam) ("Hopwood I").
Now, following the trial, the associations believe they can show that the law school has failed to assert one of their proposed defenses, a circumstance they contend establishes their right to intervene. We apply the law of the case doctrine and dismiss No. 94-50569 for want of jurisdiction.
The proposed intervenors are black student organizations at the University of Texas at Austin and its law school that, just prior to the trial of the merits appeal, sought to intervene, arguing that the law school would not effectively protect their interests in continuing racial preferences at the law school. The district court denied the proposed intervention on the ground that the law school and the two associations had the same objective: preservation of the status quo.
On expedited appeal, this court affirmed on the ground that the associations had failed to show that the law school had an interest different from theirs. We also commented that the two groups had failed to show "a separate defense of the affirmative action plan that the State has failed to assert." Id. at 606. The panel implicitly considered and rejected, as one potential divergence of interests, the possibility that the law school would not raise a defense based upon the legality of the use of TI scores under title VI, as the associations argued that possibility as one basis for intervention.
After their first motion to intervene was denied, the associations remained involved in the case. Throughout the course of the trial, they acted as amici curiae. And, at the close of trial but before judgment, the district court intimated that it would allow them to submit information for the record. Accordingly, the associations sought to introduce testimonial and documentary evidence supporting their arguments that (1) the TI by itself was an unlawful basis for admissions decisions under title VI and (2) that affirmative action at the university was constitutionally required. The plaintiffs opposed the introduction of evidence on these "new defenses," and the district court agreed. The associations were allowed to submit amicus briefs and highlight evidence that was already in the record but were not allowed to raise new issues or supplement the record.
[*960] Shortly thereafter, the associations again sought to intervene under FED.R.CIV.P. 24(a)(2) (intervention as of right), claiming that the law school had failed to raise their two "new defenses" and, accordingly, that events now showed that that representation inadequately protected their interests. They sought to reopen the record to introduce evidence supporting these arguments.
The district court summarily refused this request. That order is the focus of this separate appeal, in which the associations present only the title VI defense and ask to be allowed to present such evidence only if we do not affirm the judgment.
There is no caselaw in this circuit that directly addresses how to review successive motions to intervene.58 The parties direct us to Hodgson v. United Mine Workers, 473 F.2d 118, 125-26 (D.C.Cir.1972); United States Envt'l Protection Agency v. City of Green Forest, 921 F.2d 1394, 1401 (8th Cir.1990), cert. denied, 502 U.S. 956, 112 S.Ct. 414, 116 L.Ed.2d 435 (1991); and Meek v. Metropolitan Dade County, 985 F.2d 1471, 1477 (11th Cir.1993). These courts, which were examining whether the appeal from a successive motion was timely as per the appellate requirements, devised the general rule that a second motion would be treated as independent of the first if it was reached under materially changed circumstances.
Here, the associations assume that their second intervention motion is separate and distinct from their earlier failed attempt, because the law school's failure to raise their proposed defense constitutes a changed circumstance.59 Thus, they ask that we engage in de novo review of their motion.
The plaintiffs, however, note that this motion was entitled a "renewed motion for intervention." The plaintiffs argue that the district court was reconsidering its previous denial order under its FED.R.CIV.P. 60(b) powers, and we should review merely for abuse of discretion.
While the "changed circumstances" test may have merit--an issue we do not decide today--we do not find it applicable to this case. Instead, the "law of the case" doctrine militates against reconsideration of this motion. Normally, when a prior panel discusses an issue on the merits, a later panel cannot reach a contrary conclusion under the preclusive principle of law of the case. See Williams v. City of New Orleans, 763 F.2d 667, 669 (5th Cir.1985). There is no question that the Hopwood I panel addressed the intervention as a matter of right de novo, [*961] on the merits, including the potential that the law school would not raise every defense proposed by the associations.
The question of whether we can rely upon the law of the case doctrine, however, is clouded because of the "anomalous" rule that exists in this circuit concerning the procedural posture of these intervention cases. Under that rule, we have only provisional jurisdiction to review a district court's denial of a motion to intervene.
If we agree with the district court, our jurisdiction "evaporates." Hence, the denial of leave to intervene when the party had a right to intervene is immediately appealable. On appeal, however, our rule "requires a merit review of any claim of intervention in order for [us] to determine whether or not the district court's order is appealable." Weiser v. White, 505 F.2d 912, 916 (5th Cir.1975). If the claim is without merit, then the order "is not appealable, the appellate court has no jurisdiction, and the appeal should be dismissed." Id. Thus, despite the merits review, this is a dismissal for want of jurisdiction.60
Our anomalous rule complicates the analysis of the preclusive effects of the prior panel decision, because dismissals for lack of jurisdiction normally do not have preclusive effect. See, e.g., FED.R.CIV.P. 41(b). Accordingly, while appellate courts review denials of intervention motions on the merits, it is uncertain to what extent such a review has preclusive effect. Nonetheless, we recognize the possibility of issue preclusion on the question of jurisdiction itself.
While a dismissal for lack of jurisdiction does not operate as an adjudication on the merits, "[t]his provision means only that the dismissal permits a second action on the same claim that corrects the deficiency found in the first action. The judgment remains effective to preclude relitigation of the precise issue of jurisdiction or venue that led to the initial dismissal." 7C CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER supra, § 4436, at 338.61 Thus, a party is precluded from successively appealing the same intervention motion.
Here, the record shows that the associations raised this same title VI argument before the Hopwood I panel in both their brief and at oral argument. That panel, reviewing de novo the merits of the associations' claims, denied intervention. Accordingly, the last panel implicitly addressed this issue, and we must respect its decision to deny intervention. The law of the case doctrine prevents merits review, and we dismiss No. 94-50569 for want of jurisdiction.62
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.