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A Dec. 21 ruling by a three-judge panel of the 5th U.S. Circuit Court of Appeals is an important procedural step in the long-running legal battle over whether the University of Texas School of Law can consider race in determining whom to admit. But don’t look for the school to change its admissions policy anytime soon. “We’re still in limbo,” says UT law Professor Douglas Laycock, one of the lawyers representing UT in Hopwood v. Texas. The case began in 1992, when four white students sued UT, claiming they were improperly denied admission to the law school while less qualified minorities were admitted. U.S. District Judge Sam Sparks of Austin ruled in 1994 that UT’s admission process was unconstitutional, but he did not say that considering an applicant’s race was wrong. In 1996, a different three-judge panel of the 5th Circuit held that race shouldn’t be considered in determining admissions. The ruling has led to the dismantling of affirmative action programs aimed at increasing diversity in Texas’ higher education institutions. In the recent opinion, co-authored by Circuit Judges Jacques L. Wiener Jr. and Carl E. Stewart, the court said the previous panel may have acted imprudently when it found that race cannot be a factor in deciding which applicants will be admitted to a law school. The new panel, which included U.S. District Judge F.A. Little of Alexandria, La., held that the U.S. Supreme Court’s decision in Bakke v. University of California “clearly stands for the proposition that the government can use racial preferences under some circumstances.” But the panel said the court provided “no controlling rationale” in the Bakke ruling that delineates what might be justifying circumstances. The 1996 panel was free to determine which among the competing rationales offered by the justices in Bakke is constitutionally valid, the opinion said. “This or other subsequent panels of our court may well disagree with the aggressive legal reasoning employed by the Hopwood II panel [in 1996], but it cannot be said that, as a matter of law, the panel’s decision is ‘dead wrong,’ ” the judges wrote. And because there is no clear error in the 1996 ruling, the 5th Circuit said it is bound by that decision. Austin solo Steven W. Smith, who represents plaintiffs Kenneth Elliott and David Rogers, says he’s pleased that the appeals court rebuffed the state’s efforts to overturn the previous panel’s decision. “That was good news for the plaintiffs,” Smith says. The court sent the case back to Sparks, who in 1998 imposed the injunction barring race-based admissions. In overturning the injunction, the court said Sparks failed to hold a hearing or enter findings of fact and conclusions of law supporting the injunction. However, the court upheld Sparks’ ruling that the four plaintiffs would not have been admitted to the law school under a race-blind system. The court also agreed with Sparks that each plaintiff is owed $1 each in damages and no additional attorneys’ fees. Sparks had cut in half the amount requested by the plaintiffs’ lawyers, from $1.5 million to $704,000. Laycock, who teaches constitutional law and remedies, says the panel’s ruling is “plainly a win” for UT. “I think they were trying to help us, but it’s going to take longer,” he says. Betty Owens, a Vinson & Elkins partner who also represents UT, says the law school is considering asking the 5th Circuit to hear the case en banc. The court, on its own motion, rejected an en banc hearing in 1996. Other options are to go directly to the district court or to the U.S. Supreme Court. “We still contend that the law as stated in the 1996 opinion is incorrect,” Owens says. “And that this panel’s opinion upholding that ruling is incorrect.” SPLIT DECISION Smith and Douglas R. Cox, who represents plaintiffs Cheryl Hopwood and Douglas Carvell, say they’re disappointed that the panel found their clients would not have been admitted into the law school even if the admissions policy had been race-neutral. In regards to attorneys’ fees, the court was split in its decision, Smith says. “The state tried to zero us out, and we tried to increase the fees,” he says. “The court basically did nothing.” Cox says he didn’t get what he wanted out of the ruling but the defendants didn’t either. UT officials had hoped for a ruling that would allow them to take their appeal to the nation’s highest court. “It doesn’t give them a good vehicle to do that,” says Cox, with the firm of Gibson, Dunn & Crutcher in Washington, D.C. “There would have to be further proceedings in the district court. The most likely outcome if there are further proceedings is the court is not going to issue an injunction.” The U.S. Supreme Court refused to hear the case in July 1996, saying it “must await a final judgment on a program genuinely in controversy before addressing the important question” raised by the state. “This case has been in a procedural box that no one can find their way out of ever since the 5th Circuit laid down rules but did not issue an injunction,” Laycock says. The injunction that Sparks issued cannot be appealed because the 5th Circuit held that he didn’t “jump through all the procedural hoops” before issuing it, the law professor says. ONE OF SEVERAL CASES PENDING Hopwood is one of several cases pending in federal courts that challenge the use of racial preference in the admissions policies of higher education institutions. On Dec. 4, the 9th U.S. Circuit Court of Appeals upheld the law school admissions policy at the University of Washington. In Smith v. University of Washington, the appeals court ruled that it is constitutionally permissible for a school to consider race as one factor in deciding admissions if the goal is to achieve diversity in the student body. In 1996, the 5th Circuit held that UT cannot use race as a factor in deciding admissions to achieve a diverse student body or eliminate present effects of past discrimination. On Dec. 13, U.S. District Judge Patrick Duggan of Detroit upheld the University of Michigan’s admissions policy for its College of Literature, Science and the Arts. The policy grants minorities 20 points out of a 150-point scale used for admissions. Ruling in Gratz v. Bollinger, Duggan held that Supreme Court precedent does not bar courts from considering diversity as a compelling state interest. “Sooner or later, one of these cases will get to the Supreme Court,” Laycock says. Whatever the Supreme Court decides will affect the whole country, regardless of which case it decides to consider, Laycock says. But unless the court acts in Hopwood, all the issues raised in that case may not be settled, he adds. For example, the Michigan case does not address the issue of past discrimination raised in Hopwood. Texas Solicitor General Greg Coleman, who represented UT before the 5th Circuit, declines to discuss the case.

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