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The University of Texas may soon have to pay about $1 million in attorneys’ fees to lawyers who represent the four plaintiffs in the long-running Hopwood suit, which led to an end of the law school’s practice of using racial preferences in admissions. In a strongly worded order, U.S. District Judge Sam Sparks of Austin ordered UT to pay just over $1 million in fees and expenses to lawyers, including a new award of $231,504 in fees and $8,237 in expenses for work they’ve done on the suit since Sept. 1, 1996. He declined to vacate a previous $762,128 fee award. Mincing no words, Sparks wrote that he hopes this is the end of the litigation that began in 1992 when plaintiff Cheryl Hopwood sued the state and UT, alleging she wasn’t accepted to the University of Texas School of Law due to unconstitutional preferences given to African-American and Hispanic applicants. “Like many postmodern books, this case has no real ending and certainly no closure,” Sparks wrote. “In the end, the taxpayers of Texas are one million dollars poorer, the undersigned is almost 10 years older, and nothing has changed for the plaintiffs who filed this lawsuit way back in 1992.” “Who the winners are this court will never know,” he wrote in the Oct. 11 order. Lawyers representing both sides say they are deciding whether to appeal Sparks’ latest order to the 5th U.S. Circuit Court of Appeals. The order deals with two motions. One was a request, filed by two firms representing the plaintiffs, for supplemental attorneys’ fees and expenses. The other was a defense motion to vacate a prior fee judgment. Sparks found no reason to vacate his earlier award. The judge, meanwhile, aggressively reduced the additional fee requests submitted by Gibson, Dunn & Crutcher and the Washington, D.C.-based Center of Individual Rights. Gibson Dunn sought an additional $595,125 in attorneys’ fees, and CIR requested $67,739 in fees and $11,985 in expenses. Neither side is entirely pleased with the order. Cullen M. “Mike” Godfrey, general counsel for UT, says he does not know if the university will appeal Sparks’ order, but he says he will bring the matter to the university’s board of regents at its meeting on Nov. 7 and 8. But, Godfrey says, “The tone of the judgment clearly indicates the judge thinks this case ought to be over, and that the parties should recognize it.” Michael E. Rosman, general counsel for CIR, says the lawyers are pleased overall with Sparks’ decision, but they haven’t decided whether to appeal it. He says some math errors in the judgment cut about $15,000 off the fee award, and they may ask to have those corrected. Douglas Cox, a partner in Gibson Dunn in Washington, D.C., did not return two telephone messages before press time Oct. 18. LEGALLY UNFOUNDED The issues before Sparks did not have to do with the merits of the litigation. Even before the suit went to trial in 1994, the law school changed its procedures for screening applicants and eliminated the use of separate committees. The litigation has traveled a long and bumpy route in the courts. In 1994, Sparks ruled that UT’s admission process was unconstitutional, but he did not say that considering an applicant’s race was wrong. In 1996, a three-judge panel of the 5th Circuit held that race shouldn’t be considered in determining admissions. The ruling led to the dismantling of affirmative action programs aimed at increasing diversity in Texas’ higher education institutions. Then, in December 2000, a different 5th Circuit panel 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. But because that panel found no clear error, the previous decision stands. In June, the U.S. Supreme Court denied certiorari. In his ruling, Sparks suggests the firms are seeking fees for work they did during a period when much of the time was spent on maintaining the status quo “as both sides struggled to drag the case out as long as possible and beat it into an unrecognizable pulp.” “In fact, the defendants are so hesitant to allow the case to be laid to rest that they are even attempting to vacate the previous fee award, which has been turning in its grave since it was affirmed by the 5th Circuit in December 2000,” Sparks wrote. Sparks found no merit to the defense motion to vacate his earlier fee award on the grounds the U.S. Supreme Court’s May 2001 decision in Buckhannon Bd. and Care Home Inc. v. West Virginia Dep’t of Health and Human Serv., 121 S.Ct. 1835 (2001), precludes the plaintiffs from collecting the fees. He says his 1998 fee judgment has been final for months and Buckhannon, which rejected the catalyst theory of attorneys’ fee awards, doesn’t affect it. He wrote that the request to vacate the previous award is “not only inappropriate and unprofessional, but legally unfounded as well.” But Laycock, a professor at the law school, contends case law in other federal circuits suggests the fee award is not final. “With all due respect, I don’t think he thought this through,” Laycock says. “Standing all by itself, it may sound kind of silly to say they didn’t win and we shouldn’t have to pay any fees, but the fact is the Supreme Court has made a body of attorneys’ fees law that is very harsh,” he says. Laycock says he cannot say specifically where the money would come from to pay the $1 million in fees. Patricia Ohlendorf, vice president for institutional relations and legal affairs at UT, says it would not come from state appropriations or the regular operating budget. But Laycock notes that the judgment runs against all the defendants, including the state of Texas, and university and various individuals named in their official capacity. “Which account it comes out of is a political question, not a legal question,” he says. The more than $1 million in fees far exceeds the $1 in damages awarded to each of the four plaintiffs in the suit. Sparks’ 1998 fee award allocates money to Gibson Dunn, CIR and plaintiffs lawyers who represented the individual plaintiffs in the suit. The lawyer who originally filed the suit, Austin’s Steven Smith, did not return a telephone message by press time. In the additional fee request, Gibson Dunn and the CIR sought fees for eight categories of work. Sparks did award additional fees for their work on litigating and defending the prior fee claim along with the current fee claim. He also awarded fees for work spent battling a defense attempt to get the suit dismissed on 11th Amendment immunity grounds, time spent on a cross-appeal to the 5th Circuit, time spent opposing a defense motion to stay the 5th Circuit’s mandate in the appeals heard in 2000 and time spent on a response to defense efforts to get the U.S. Supreme Court to grant cert. Sparks, however, turned down requests for fees for work responding to amicus curiae briefs filed with the 5th Circuit or for settlement negotiations since they were unsuccessful. “The Court notes that it takes two to tango, and finds no reason to require one party to pay the other for time spent stepping on each others’ toes and tripping over each others’ demands,” he wrote.

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