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In what the University of Texas School of Law hopes is a way station on a trip to the U.S. Supreme Court, a state lawyer pleaded with a 5th U.S. Circuit Court of Appeals panel Wednesday to overturn an injunction prohibiting racial preferences in law school admissions. But judges hearing those arguments June 7 in New Orleans seemed perplexed as to how they could grant the law school’s requested relief in Hopwood v. Texas, a case that caused minority enrollment to decline at UT Law, making it one of the only law schools in the nation that is forbidden from using race as a criterion in admissions. The circuit court in its 1996 decision in Hopwood essentially decided not to follow the U.S. Supreme Court 1978 decision in California Board of Regents v. Bakke, which permitted race to be considered in admissions to compensate for past discrimination. The 5th Circuit’s opinion in Hopwood, written by Judge Jerry E. Smith, found that the law school could no longer use race as a factor in admissions; the court remanded the case to U.S. District Judge Sam Sparks of Austin, who ordered the injunction forbidding the practice. The state appealed Sparks’ order. “Four years ago this court put the University of Texas School of Law in a crucible,” said Greg Coleman, Texas’ solicitor general, in a courtroom filled with the many lawyers who have represented UT in the case. Coleman urged the court to revisit the merits of Hopwood by yielding to Bakke. But a judge who admitted during arguments that he was not a fan of the 5th Circuit’s original Hopwood decision said the state may be too late in asking the court to revisit that issue. “You missed your shot in the first case,” said Judge Carl E. Stewart, who asked the most probing questions during the arguments. “You did not ask if the court had overstepped its bounds in overruling Bakke.” Also sitting on the panel were Circuit Judge Jacques L. Wiener Jr., who sat on the previous Hopwood panel and concurred in the decision, and Chief U.S. District Judge S.A. Little of the Western District of Louisiana, sitting by assignment. Regardless, Coleman said the Bakke issue should be addressed. “That duty to follow Supreme Court precedent is constitutionally mandated.” Wiener asked Coleman if he wanted the court “to sustain the injunction so you [can] go to the Supreme Court.” To which Coleman replied, “No, I’m asking you to rule on its merits. This type of injunction cannot stand on its merits.” Wednesday’s arguments marked the first time the 5th Circuit has considered whether the 1996 injunction issued in Hopwood by Sparks is appropriate. A ruling on that issue is important to the university because it’s the school’s only chance to have Hopwood resolved in its favor. In July 1996, the U.S. Supreme Court refused to hear the case, saying the court “must await a final judgment on a program genuinely in controversy before addressing the important question” addressed by the state. NO RECIPE The original suit was filed by Cheryl Hopwood and several others who claimed they were improperly excluded from entering the law school in 1992 because of their race. The plaintiffs are white. On Wednesday, the plainitffs’ lawyers largely stayed away from the Bakke debate, maintaining that their clients should be allowed into the law school and urging the judges to send the case back to the district court for further consideration on damages and attorneys’ fees. Sparks gave the plaintiffs only a nominal $1 damage award and he cut in half the attorneys’ fees requested by the plaintiffs’ lawyers — from $1.5 million to $704,000 Key to their argument was their belief that an analysis by Professor Guy Wellborn, a longtime member of the law school’s admissions committee, was flawed when it concluded that the plaintiffs would not have been admitted into the law school under a race-blind system. “Wellborn said to create a race-neutral system you’d start over,” argued Douglas R. Cox, a lawyer from Washington, D.C.’s Gibson, Dunn & Crutcher who represents Hopwood and plaintiff Douglas Carvell. “And they didn’t.” Steven W. Smith, an Austin lawyer who represents plaintiffs Kenneth Elliott and David Rogers, also appeared before the court, reinforcing Cox’s argument that the analysis over whether his clients would have been admitted under a different system was flawed. But Judge Stewart seemed to believe that the credibility of Wellborn’s analysis was evidentiary in nature and was best left for the district court to decide. “The [previous Hopwood] panel most assuredly did not give the district court a recipe” on analyzing law school admissions, Stewart said. Cox said that Wellborn’s analysis, which showed that 54 applicants who received no votes for admission would have been admitted under a revised system that didn’t consider race, was proof of a flawed study. “The law is clear that an expert opinion cannot be considered over facts,” Cox said. HOPING FOR RULINGS After the hearings, Coleman and UT officials said they hoped the court revisits Bakke by ruling on the merits of the injunction. “Clearly we wanted them and invite them to do that,” Coleman said. “But that’s completely in their hands.” Any ruling on the injunction is important to the law school because it’s the only way to get the case back to the Supreme Court, says UT Law Associate Dean Douglas H. Laycock. “If they set it aside on a technicality, it does us no good,” Laycock says. “We want this to go to the Supreme Court so we know what the law is,” says Patricia Ohlendorf, UT’s vice president of institutional relations and legal affairs. But the plaintiffs’ attorneys say it seems unlikely that the panel will revisit Bakke. “I think they’re quite clear that they don’t have the power to address it,” Cox says. “I think Judge Stewart was clear.” Cox says he is hopeful the panel will decide to remand the case to the district court for another round. Says Cox, “This case is about getting a complete remedy.”

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