UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50506
CHERYL J. HOPWOOD; ET AL,
Plaintiffs,
CHERYL J. HOPWOOD,
Plaintiff-Appellant-Cross-Appellee
versus
STATE OF TEXAS; BOARD OF REGENTS OF THE TEXAS
STATE UNIVERSITY SYSTEM; LARRY R. FAULKNER, President
of the University of Texas at Austin in his official
capacity; UNIVERSITY OF TEXAS SCHOOL OF LAW; M. MICHAEL
SHARLOT, Dean of the University of Texas School of Law in
his official capacity; STANLEY M. JOHANSON, Assistant Dean
in his official capacity; THE UNIVERSITY OF TEXAS AT AUSTIN,
Defendants-Appellees-Cross-Appellants-
Cross-Appellees
-----------------------------------------------------------------
DOUGLAS CARVELL; ET AL
Plaintiffs
DOUGLAS CARVELL
Plaintiff-Appellant-Cross-Appellee
and
KENNETH ELLIOTT; DAVID ROGERS
Plaintiffs-Appellees-Cross-Appellants
versus
STATE OF TEXAS; REGENTS OF THE UNIVERSITY OF TEXAS
SYSTEM; RITA CROCKER CLEMENTS; DONALD L. EVANS; PATRICK
C. OXFORD; A. W. RITER, JR.; A. R. SANCHEZ; WOODY L. HUNT;
CHARLES MILLER; RAUL R. ROMERO; TOM LOEFFLER, as members
of the Board
Defendants-Appellees-Cross-Appellants-
Cross-Appellees
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
- - - - - - - - - -
December 21, 2000
Before WIENER and STEWART, Circuit Judges, and LITTLE, District
Judge*
WIENER and STEWART, Circuit Judges:
This higher education, reverse racial discrimination case is
before us on appeal for the third time. The first appeal ("Hopwood
I") was interlocutory and affirmed the district court’s denial of
intervention sought by several minority rights advocacy
organizations.1 The second appeal ("Hopwood II") followed the
district court’s judgment on the merits ("Hopwood A")2 of the
individual claims of Plaintiffs-Appellants-Cross-Appellees, Cheryl
J. Hopwood and Douglas Carvell, and Plaintiffs-Appellees-Cross-
*
District Judge of the Western District of Louisiana, sitting
by designation.
1
Hopwood v. Texas, 21 F.3d 603 (5th Cir. 1994)("Hopwood I"),
aff'g Hopwood v. Texas, No. Civ. A-92-CA-563-SS, 1994 WL 242362 at
*1 (W.D. Tex Jan. 20, 1994).
2
Hopwood v. Texas, 861 F. Supp. 551 (W.D. Tex 1994)("Hopwood
A").
2
Appellants, Kenneth Elliott and David Rogers (collectively, the
“Plaintiffs”), against Defendants-Appellees-Cross-Appellants-Cross-
Appellees, The University of Texas at Austin (the “University”),
the University of Texas School of Law (the “Law School”), and the
State of Texas, the Board of Regents of the University and its
President, and the Dean and the Assistant Dean of the Law School
(collectively, “Texas”), grounded in the denial of the Plaintiffs’
admission to the Law School.3 Now, in "Hopwood III," each of the
parties either appeals or cross-appeals one or more of the district
court rulings made at the conclusion of an extensive bench trial4
conducted pursuant to our remand from Hopwood II. As a broad
generalization, three areas dealt with by the district court in
Hopwood B are implicated in this appeal: That court's (1) ultimate
finding of fact that none of the Plaintiffs had a realistic chance
of being offered admission to the Law School in 1992, even under a
constitutionally valid, race-blind admissions program; (2) rulings
on attorneys' fees; and (3) grant of an injunction prohibiting any
consideration of race whatsoever in the Law School’s admissions
process. In addition, Texas would have us disregard the law of the
case doctrine and reverse the prior panel's decision in Hopwood II.
We set forth below our reasons for affirming (1) the district
3
Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied 518
U.S. 1033 (1996) ("Hopwood II").
4
Hopwood v. Texas, 999 F. Supp. 872 (W.D. Tex 1998)("Hopwood
B").
3
court’s factual findings that the Plaintiffs would not have been
offered admission in 1992 under a race-blind system, and (2) that
court’s awards of attorneys’ fees. We also express our reasons for
declining to reconsider the substance of Hopwood II, and for
reversing the court's injunction against any consideration of race
in the Law School's admission process and remanding that issue for
further consistent proceedings.
I.
FACTS AND PROCEDURE
In Hopwood A, the case underlying the Hopwood II appeal, the
district court held that the Plaintiffs had failed to establish by
a preponderance of the evidence that they would have been offered
admission to the Law School under a constitutional admissions
system.5 On appeal, a panel of this court held that, under the
burden-shifting scheme of Mt. Healthy City School District Board of
Education v. Doyle,6 the Law School must bear the burden of proving
by a preponderance of the evidence that, even under a race-blind
admissions system, the Plaintiffs would not have been offered
admission.7 The Hopwood II panel8 stated that, “[i]n the event that
5
Hopwood A, 861 F. Supp. 551 (W.D. Tex. 1994).
6
429 U.S. 274 (1977).
7
See Hopwood II, 78 F.3d at 956-57.
8
As Judge Wiener specially concurred in Hopwood II, differing
with portions of the panel majority’s reasoning and parts of its
judgment, references in this opinion to the holdings of the “panel”
in Hopwood II do not always reflect those of a unanimous panel.
4
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.”9
In the spring of 1997, following remand from Hopwood II, the
district court conducted a four-day bench trial. The Law School
called one expert witness on the question of causation, i.e., what
caused the Plaintiffs to be denied admission in 1992 and whether
they would have been offered admission under a race-blind system.
That witness was Professor Olin Guy Wellborn, a faculty member of
the Law School. He presented both a primary report and a
supplemental report analyzing whether the Plaintiffs would have
been admitted under a constitutional, race-blind admissions system,
concluding that none of the four plaintiffs would have been. After
considering Professor Wellborn’s reports and testimony, as well as
the testimony of several members of the Law School’s admissions
committee and the Plaintiffs themselves, the district court found
that the Law School had proved by a preponderance of the evidence
that none of the Plaintiffs would have been admitted to the law
school under a constitutional admissions system.10
The district court nevertheless proceeded to make alternative
9
Id. at 957.
10
Id. at 879.
5
factual findings and legal conclusions on the issue of damages.
These would only be used in the event that the Plaintiffs should be
successful in an appeal —— this appeal —— of the trial court’s
causation findings.11 Finally, the district court entered a
permanent injunction prohibiting any consideration of race, for any
purpose, in the Law School's admissions process.
Following the initial trial of this action in Hopwood A, the
Plaintiffs had requested an award of attorneys’ fees pursuant to 42
U.S.C. § 1988.12 The district court denied the request, finding
that the Plaintiffs, “although prevailing parties under the
statute, only attained de minimis relief.”13 When the adverse
rulings in Hopwood A were appealed to us, we reversed and remanded
the attorneys’ fees issue with instructions for the district court
to award reasonable attorneys’ fees.14 Before the commencement of
11
In these conditional damages findings, the court concluded
that (1) each Plaintiff would be entitled to one dollar in nominal
damages, id. at 923; (2) Hopwood would not be entitled to any
economic damages but would be entitled to $6,000 for mental
anguish, id. at 906, 908; (3) Carvell would be entitled to $40,036
in economic damages, being the difference between the tuition at
the Law School and the tuition at Southern Methodist University
where Carvell attended law school, id. at 909; but that Carvell did
not suffer any compensable emotional injuries, id. at 910; and (4)
Rogers and Elliott would not be awarded any economic damages, id.
at 910-11.
12
See Hopwood B, 999 F. Supp. at 911.
13
See id.
14
Hopwood v. Texas, No. 95-50062 (5th Cir. May 17, 1996)(order
vacating judgment denying attorneys’ fees and remanding with
instructions that reasonable attorneys’ fees should be granted).
6
the Hopwood B bench trial on remand, the district court entertained
supplemental applications for attorneys’ fees and made its final
decision on the issue in the memorandum opinion resolving the
matters raised at that trial.15
The Plaintiffs sought $853,847.69 for their counsel in payment
for 4,840.56 hours of work related to the May, 1994 trial of
Hopwood A. They also asked for $614,138.56 for their counsel in
payment for 2400.85 hours of work related to the appellate phase of
this litigation. The district court denied the portions of the fee
request for time spent on (1) public and media relations, (2)
opposing the attempted interventions by the Thurgood Marshall Legal
Society, the Black Pre-Law Association, the NAACP Legal Defense
Fund, and the Mexican-American Legal Defense and Educational Fund,
and (3) any legal work done after our remand in Hopwood II because
the Plaintiffs were not prevailing parties as to any issues
resolved after that remand. The court reduced the number of hours
spent for travel by one-half to reflect its judgment that travel
should be billed at a lower rate than active legal work, and
reduced all hours submitted by the Plaintiffs’ counsel by twenty-
five percent to account for duplicative work product and lack of
billing judgment.16 The court then reviewed current billing rates
15
Hopwood B, 999 F. Supp. at 923-24.
16
The district court reduced the Center for Individual
Rights’ hours by thirty-five per cent, finding its “padding” to be
worse than that of the others.
7
for each of the Plaintiffs’ counsel17 and reduced all submitted
rates for the stated purpose of bringing those rates more into line
with the prevailing legal market rate in the Austin, Texas trial
venue. After multiplying the adjusted number of hours by the
adjusted hourly rates, the district court arrived at tentative fee
awards for each of the Plaintiffs’ counsel. It then reduced the
tentative awards for the trial attorneys by fifteen percent to
reflect the lack of success in obtaining any injunctive or monetary
relief for the Plaintiffs individually. The court concluded its
task with numerous tables displaying the relevant calculations.18
This appeal followed.
II.
ANALYSIS
A. Admission to the Law School
1. Standard of Review
The district court’s determination that the Plaintiffs would
not have been admitted to the Law School under a constitutional
admissions system is a question of fact, which we review for clear
error.19 We review de novo whether the district court faithfully
17
The district court used current rates to compensate for
delay in payment.
18
See Hopwood B, 999 F. Supp. at 919-23.
19
See, e.g., East Jefferson Coalition for Leadership and
Development v. Parish of Jefferson, 926 F.2d 487, 491 (5th Cir.
1991) (finding that the district court’s determination of whether
preconditions for a claim under the Voting Rights Act had been
satisfied was a question a fact to be reviewed for clear error).
8
and accurately applied our instructions on the burden of proof on
remand from Hopwood II.20 We review for clear error the district
court’s weighing of the evidence in light of the burden of proof.21
2. Burden of Proof
The Hopwood II panel noted that, even though as a general rule
plaintiffs seeking money damages must bear the burden of proving
that they have been injured, there can be a shift of burden on
proof of discrimination.22 That panel concluded that the Mt.
Healthy methodology is appropriate in this case, and that under
that methodology’s burden-shifting minuet, the Law School should
have a chance to prevail by showing, through a preponderance of the
evidence, that it would have reached the same admission decisions
even in the absence of unconstitutional conduct.23 The Hopwood II
panel stated that “ [i]n 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 under a constitutional
admissions system, the court is to award that plaintiff any
equitable and/or monetary relief it deems appropriate.”24
20
See Odom v. Frank, 3 F.3d 839, 843 (5th Cir. 1993)
(concluding that in an appeal from a bench trial, we review issues
of law de novo).
21
Id.
22
Hopwood II, 78 F.3d at 956.
23
Id. at 956-57.
24
Id. at 957.
9
The Plaintiffs argue that on remand the district court failed
to follow the Hopwood II panel’s instructions on burden of proof,
pointing to, among other things, the district court’s criticism of
the panel’s instruction to use the Mt. Healthy burden-shifting
methodology. The Plaintiffs insist that if the district court had
followed the panel’s instructions faithfully by requiring the Law
School to carry the burden of proof, Texas could not have prevailed
because the burden was “impossible” to carry. We disagree.
First, even though the district court did express its
disagreement with our instruction to apply the Mt.Healthy
analysis,25 there is no indication from the record that, despite
having voiced its criticism, the district court failed to follow
the panel’s instructions. The court proclaimed that “[t]he Court
is cognizant, however, of the panel’s instructions on remand, and
it will faithfully and responsibly execute them.”26 Our review of
the record demonstrates that in fact the court did faithfully and
25
The district court included a lengthy discussion of its own
views on the applicability of the Mt. Healthy analysis. See
Hopwood B, 999 F. Supp. at 883-885. It observed that, among other
things, the panel’s analysis was incomplete because it presupposed
that race was a substantial or motivating factor in every denial of
a nonminority candidate’s application for admission, regardless of
the applicant’s qualifications. Id. at 883. The district court
noted that mathematically this could not be true: Even if all 96
offers of admission made to minorities had been made to
nonminorities, approximately 1400 nonminority applicants would
still have been denied admission. Id. Therefore, said the court,
only 7 percent of resident nonminority applicants were affected by
the Law School’s use of racial preferences. Id.
26
Id. at 884-85 (emphasis added).
10
responsibly apply the Mt. Healthy burden as instructed. The Law
School put forth plenteous evidence in the form of Professor
Wellborn's expert reports, as well as affidavits and testimony from
admissions committee members, in support of the proposition that
the Plaintiffs would not have been admitted to the Law School in
1992 under a race-blind admissions procedure. In sum, the district
court expressly disagreed with our remand instructions regarding
application of Mt. Healthy but it clearly followed them.
Next, the Plaintiffs argue that if the district court had
faithfully applied the Mt. Healthy burden-shifting analysis, it
would have had to find that the burden was “impossible” for the Law
School to carry. The Plaintiffs note that in his original 1994
judgment, Hopwood A, the same district judge stated that “it is
virtually impossible to establish the outcome of a comparison of
the plaintiffs’ applications against the other applicants, whether
minority or nonminority.”27 The Plaintiffs also refer us to
statements by several of the Law School's administrators and
admissions committee members voicing the opinion that to determine
whether a candidate would have been admitted under a race-blind
system would require starting the admissions process over and
reexamining every file.
We do not share the Plaintiffs’ interpretation of the Hopwood
II instructions. That opinion merely requires that the Law School
27
Hopwood A, 861 F. Supp. at 582 n.86.
11
carry its burden using “a constitutional admissions system.”28
Nowhere does it state that the Law School must replicate the 1992
admissions process in its entirety or that review of every file is
required if the Law School were to meet its proof burden.
Furthermore, we find no jurisprudential support for the proposition
that a defendant must employ any particular evaluation system or
method to carry its burden of proof in a discrimination case.
Statements by Law School officials recognized that recreating the
1992 process would have been extremely difficult. Moreover,
because doing that was not mandated by Hopwood II or by precedent,
the district court on remand did not err in allowing the Law School
to try to meet its burden of proof through the demonstrated
application of a hypothetical system free of racial preferences.
In other words, the district court committed no error by allowing
the Law School to attempt to meet its Mt. Healthy burden without
replicating the 1992 admissions process.
3. Admission Under a Race-Blind System
a. 1992 Admissions Procedure
To evaluate the quality of Professor Wellborn’s testimony, we
must start with an understanding of the admission procedure that
was employed by the Law School in 1992, when the Plaintiffs
28
Hopwood II, 78 F.3d at 957.
12
applied. In that year, the Law School received 4,494 applications
for approximately 500 available seats. Initially, each application
was assigned to one of the three administrative categories, based
solely on the applicant’s Texas Index (“TI”) score. The TI score
is determined independently by the Law School Data Assembly Service
(“LSDAS”) using the applicant’s undergraduate grade point average
(“GPA”) and Law School Admissions Test (“LSAT”) score. The three
categories were (1) presumptive admit, (2) discretionary zone, and
(3) presumptive deny.
The TI scores needed for placement in the various categories
were lower for minority29 applicants than for nonminority
applicants. Professor Stanley Johanson chaired the admissions
committee in 1992 and had sole responsibility for setting the
cutoff scores for the three categories. In 1992, these cutoff
scores were adjusted several times to increase the number of
presumptive admits. By March 1992, Professor Johanson had set the
presumptive admit threshold for nonminority applicants at a TI
score of 199 and the presumptive denial ceiling for those
applicants at 192.30 All applicants with scores between 192 and 199
went into the discretionary category. For minority applicants,
however, the presumptive admit threshold was 192 and the
29
The term “minority” as used in the Law School’s admissions
procedure refers only to African Americans and Mexican Americans.
30
Hopwood B, 999 F. Supp. at 880 (citation omitted).
13
presumptive denial ceiling was 179.31 Once an application had been
placed in one of the three administrative categories, it was
subject to different procedures for determining whether admission
would be offered.
i. Presumptive Admits
The file of a presumptive admit application would be reviewed
by Professor Johanson to ensure that the TI score was not
artificially inflated by a high GPA from a noncompetitive college
or university or by a noncompetitive major.32 Any presumptive admit
applicants whom he found to have “questionable files” were lowered
to the discretionary zone for further review.33 The rest of the
applicants in the presumptive admit category were offered admission
by Professor Johanson without consultation with other members of
the admissions committee.34
ii. Discretionary Zone
The nonminority applications in the discretionary zone were
separated into groups of thirty, and each group was then reviewed
by three members of the admissions committee.35 Each group's three
31
Id.(citation omitted).
32
Id. (citation omitted).
33
Id. (citation omitted).
34
Id. (citation omitted).
35
The admissions committee in 1992 included nine professors,
two assistant deans, and four students. Hopwood B, 999 F. Supp. at
14
committee members would independently review every file in that
group of thirty. Each committee member could vote to offer
admission to approximately nine of the thirty applicants whose
files that he or she reviewed. Applicants in the discretionary
zone who received either two or three favorable votes were offered
admission; those who received one favorable vote were placed on the
waiting list; and those who received no favorable votes were turned
down.
iii. Minority Applicants
Three members of the admissions committee served on a special
minority subcommittee that reviewed the files of all minority
applicants in the discretionary zone.36 This subcommittee would
identify minority applicants whom they deemed to be strong
candidates for admission and would prepare summaries of each for
review by the full admissions committee.
iv. The Plaintiffs
Plaintiff Hopwood had a TI score of 199. She had been
graduated from California State University-Sacramento with a GPA of
3.8 and an LSAT score in the 83rd percentile and had received an
associate’s degree in accounting from Montgomery County Community
College. Hopwood’s TI score of 199 placed her in the presumptive
admit category; however, after reviewing her file, Professor
879.
36
Id. at 880.
15
Johanson downgraded her application to the discretionary zone,
concluding that her GPA was inflated by the noncompetitive nature
of her community college and undergraduate university.37 On review
by three members of the admissions committee, Hopwood received one
vote. This one vote, cast by Assistant Dean Laquita Hamilton, put
Hopwood on the waiting list,38 from which she was ultimately denied
admission.
Plaintiff Carvell had a TI score of 197, which placed him in
the discretionary zone. Carvell had been graduated from Hendrix
College in Arkansas with a degree in political science and a GPA of
3.28. He took the LSAT twice, scoring in the 61st percentile the
first time, and in the 91st percentile the second time. His 197 TI
score reflects only the second, higher LSAT score39; when averaged,
his LSAT score would have placed him in the 76th percentile.
Carvell received one vote for admission from a student member of
the admissions committee, presumably placing him on the waiting
list, from which he never received an offer of admission.
Plaintiff Elliott also had a TI score of 197, placing him in
the discretionary zone. He had been graduated from the University
with a bachelor’s degree in accounting. He had a GPA of 2.98 and
scored in the 95th percentile on his LSAT, but received no votes for
37
Id. at 881.
38
In 1992, there were separate waiting lists for minority and
nonminority applicants.
39
Id. at 881 n.18.
16
admission. This resulted in his automatic denial of admission.
Plaintiff Rogers also had a TI score of 197 which placed him
in the discretionary category. He had been graduated from the
University of Houston-Downtown (UH-D) with a degree in professional
writing. Before attending UH-D, he had attended the University,
where he was placed on academic probation once and dismissed twice
for failing grades. Rogers's GPA at UH-D was 3.13 and his LSAT was
in the 94th percentile, but he received no votes for admission.
The median GPA for all students entering the Law School from
the 1992 admissions process was 3.52 and the median LSAT score was
in the 89th percentile. The Law School offered admission to 637
Texas residents, of which 541 were nonminority applicants and 96
were minority applicants.40
b. Expert Report and Testimony
The Law School proffered Professor Wellborn as an expert
witness on the question whether the Plaintiffs would have been
admitted to the Law School under a race-blind admissions procedure.
Professor Wellborn is a tenured faculty member of the Law School
and has served on the admissions committee since 1979, having
chaired it in 1992. As the foundation for his trial testimony,
Professor Wellborn presented a long and comprehensive expert report
which was followed by a supplemental expert report.
i. Primary Report
40
Id.
17
In his primary report, Professor Wellborn analyzed the way
that the 1992 admissions procedure operated with respect to
nonminority candidates. He then demonstrated how that procedure,
if extended to all candidates, would yield the same total number of
admission offers under a race-blind system. Professor Wellborn
also explained the relationship between the TI scores and offers of
admission to resident nonminority applicants, concluding that 89
percent of such applicants with Hopwood’s TI score of 199 were
admitted. He also showed that, of all candidates with a TI score
of 197 (as achieved by Carvell, Elliott, and Rogers), only 59
percent were admitted. Professor Wellborn then determined that if
this exact procedure were used for all 1992 applicants, regardless
of race or ethnicity, too few offers would have been forthcoming.
Consequently, he lowered the presumptive admit threshold from 199
to 198 and determined that 90 percent of the applicants with TI
scores between 196 and 199 would be admitted, and that 70 percent
of the applicants with a TI score of 197 would be admitted.
Professor Wellborn found that 61 of the 68 applicants with
Hopwood’s TI score of 199 were admitted, including four minority
applicants. He postulated that, under a race-blind system, there
would have been one more offer of admission. He then compared the
four admitted minority applicants, Hopwood, and the other denied
nonminority applicants, as potential candidates for this one
additional spot. Professor Wellborn demonstrated that (1) all four
minority applicants were “clearly stronger” candidates for
18
admission than Hopwood, (2) three of the denied nonminority
applicants were clearly stronger than Hopwood, and (3) two more
denied nonminority applicants were comparable to her. Professor
Wellborn concluded that, just as it was in the actual 1992 process,
Hopwood’s file would have been placed in the discretionary voting
zone, and in the end she would not have received an offer of
admission.
Professor Wellborn found that 45 of 72 applicants at
Plaintiffs Carvell, Elliott, and Rogers’s TI score level of 197,
including one minority applicant, had been offered admission. He
projected that under a race-blind system, six additional offers
would have been made at the 197 TI level. Professor Wellborn then
compared the files of the one admitted minority candidate, the
three Plaintiffs who had 197 TI scores, and the remaining
nonminority applicants with that score who had been denied
admission. As a result of this exercise, Professor Wellborn
concluded that the minority applicant would not have been admitted,
and that there would have been a total of seven additional offers
at the 197 TI level. He observed that seven of these nonminority
applicants stood out as the strongest, all of whom were stronger
than Hopwood and the other three Plaintiffs. Additionally,
Professor Wellborn identified four more applicants at the 197 TI
level who were stronger than Carvell, Rogers, and Elliott, adding
that Elliott and Rogers were among the weakest applicants at the
197 level. He offered his opinion that, although Carvell was a
19
stronger applicant than Elliott and Rogers, Carvell still would
have been in the bottom half of all applicants with TI scores of
197. Professor Wellborn also explained that because Carvell took
the LSAT twice, his scores should have been averaged by the LSDAS,
which would have placed him in a lower TI index group from the
start.
ii. Supplemental Report
Professor Wellborn was asked to identify (1) all 1992 resident
minority (African-American and Mexican-American) admittees who
would likely have been denied admission in a race-blind process and
(2) all resident nonminority applicants who were denied admission
but would have been offered admission in a race-blind process,
ahead of the minority applicants identified in the answer to
question (1). He did this in his supplemental report.
Professor Wellborn testified that, in completing this
analysis, he examined the LSDAS reports of all admitted minority
applicants and all denied nonminority applicants with a TI score
above 190, and that he then examined the files41 of those who
appeared to be viable candidates based on the LSDAS report. In
examining the reports and files, Professor Wellborn applied
identical standards to the minority and nonminority candidates and
considered the criteria that the Law School had previously
identified as standards used for admission. He explained that the
41
Files include the applicant’s personal statement, letters
of recommendation, and application.
20
most important factors for admission are the LSAT score and
undergraduate academic record, which are weighted about equally.
He stated further that the personal statement, letters of
recommendation, and other materials in the file can be important in
some instances. In addition, Professor Wellborn acknowledged that
even though the LSDAS treats all GPAs alike for purposes of
calculating the TI index score, file reviewers customarily take
cognizance of the applicant’s class rank and major, the mean LSAT
score for the applicant’s college, and the applicant’s college
transcript.42 He added that comparing the colleges’ mean LSAT
scores is the best way of evaluating the various colleges and
universities in terms of the caliber of their respective student
bodies.43
When Professor Wellborn completed his examination of these
files, he identified 18 minority applicants who, in his opinion,
would likely have been admitted without regard to race, and two
more minority applicants who, although weaker than the 18, might
have been admitted. He labeled the first 18 minority applicants
Group A and the two additional minority applicants as Group B.
Professor Wellborn next noted that the Law School made 96
offers of admission to resident minority applicants in 1992. After
42
The applicant’s class rank, major, and the LSAT mean for the
college are all shown on the LSDAS report.
43
The college LSAT mean is the average LSAT score of students
from that college. See Hopwood B, 999 F. Supp. at 888 n.34.
21
subtracting the 18 from Group A (those whom Professor Wellborn
determined probably would be admitted under a race-blind system),
78 offered places remained available for denied nonminority
applicants. In 1992, 398 nonminority Texas residents with TI
indexes above 190 (including the four Plaintiffs) were denied
admission. Therefore, concluded Professor Wellborn, fewer than
twenty percent of these 398 candidates would have received one of
the 78 additional offers of admission under a race-blind system.
He also examined the LSDAS reports for each of the 398 resident
nonminority applicants with a TI score above 190 who had been
denied admission, then examined the files of those applicants among
the 398 who, based on his review of the LSDAS report, appeared to
be viable candidates. From among those, Professor Wellborn
narrowed the remaining nonminority applicants to the 78 whom he
found to be the best candidates. He identified these 78 applicants
as Group C, then selected the next-best 20 applicants and
identified them as Group D. None of the Plaintiffs qualified for
inclusion in Group C or Group D. He testified that his comparison
of the files of all applicants in the four identified groups
further confirmed the weakness of the Plaintiffs’ applications.
After completing the selection of the 118 applicants
comprising his four groups, Professor Wellborn identified four
common characteristics: (1) an LSAT in the 80th percentile or
higher; (2) a college class rank in the 60th percentile or higher;
(3) graduation from a college with an LSAT mean of 30 or higher;
22
and (4) no more than one year in a community or junior college. He
went on to explain his reasons for selecting any applicants who did
not meet one of these criteria.
Finally, Professor Wellborn identified the specific weaknesses
in each of the Plaintiffs’ files that, in his opinion, would have
adversely affected their chances of being offered admission. He
noted that Plaintiff Elliott was in the bottom half of his class at
the University and had no letters of recommendation from faculty.
Professor Wellborn also pointed out that only one presumptive admit
in Group A had a class rank as low as Elliott’s.
Professor Wellborn observed that Plaintiff Rogers’s college
record was a “worse liability” than Elliott’s. He explained that
over the course of three separate stints at the University, Elliott
had been placed on scholastic probation once and dismissed for
academic failure twice. Professor Wellborn remarked that, although
Elliott subsequently did achieve a high GPA at UH-D, this school
had a “strikingly low” LSAT college mean of 26, adding that an LSAT
college mean of 26 was among the lowest he had seen during his many
years of service on the Law School admissions committee. He also
noted that Rogers’s file contained no letters of recommendation.
Professor Wellborn reported that Hopwood’s degree school, Cal
State at Sacramento, had an LSAT college mean of 28, and that 60 of
her credits were from a community college. He acknowledged that
Hopwood’s LSAT score in the 83rd percentile would be adequate if
combined with a reliable college record, but that alone her LSAT
23
was not high enough to overcome the doubts raised by her
undergraduate background. Professor Wellborn also mentioned that
Hopwood’s file contained no letters of recommendation.
In analyzing Plaintiff Carvell’s application, Professor
Wellborn observed that when this candidate’s two LSAT scores are
averaged, he has a score in the 76th percentile. Professor Wellborn
acknowledged that some of the applicants in his four groupings had
low LSAT scores, but explained that in each instance the weak LSAT
was counterbalanced by a “very strong” college performance.
Professor Wellborn contrasted Carvell’s college record, noting that
Carvell was in the 59th percentile at a college with an LSAT mean
score of 32. He also characterized Carvell’s two faculty letters
of recommendation as ranging between “unimpressive to downright
negative.”
c. Plaintiffs’ View of Texas's Evidence
The Plaintiffs proffered no expert witness of their own,
electing instead to attack the work of Professor Wellborn. They
ultimately argue that Professor Wellborn’s analysis was not
“remotely adequate” to carry the Defendants’ burden. As we have
noted, the district court’s eventual determination whether the Law
School carried its burden of establishing that the Plaintiffs would
have had no reasonable chance of being offered admission under a
race-blind admissions system is a question of fact that we review
24
for clear error.44
Plaintiffs Carvell and Hopwood argue that Professor Wellborn’s
supplemental report is unreliable because he began its analysis by
using these Plaintiffs' applications as a “floor,” then seeking to
identify applications that were stronger. Hopwood and Carvell also
contend that Professor Wellborn cherry-picked aspects of the 1992
system, embracing those that favored his position while ignoring or
rejecting aspects that were unfavorable. They point to his
assumption that all of the nonminority applicants who were admitted
in 1992 would have been admitted under a race-blind system and his
rejection of the possibility that Hopwood and Carvell, who received
one vote each, would have been selected ahead of candidates who
received no votes.
To repeat, the Hopwood II panel’s remand instructions did not
require the Law School to replicate precisely the admissions system
that it had employed in 1992; rather, the Law School was simply
required to use any reasonable race-blind system. Professor
Wellborn clearly stated in his supplemental report that in his
evaluation he used the same criteria for minority and nonminority
applicants alike. The assumption in his supplemental report that
only 96 seats would have been open for admission because all
nonminority applicants admitted in 1992 would have been admitted
under a race-blind system is logical. Not even the Plaintiffs
44
Odom, 3 F.3d at 843.
25
dispute that it was more difficult for nonminority applicants to
gain admission in 1992 than it would have been under a race-blind
system; indeed, that is at the core of their argument of reverse
discrimination. It is therefore logical to conclude that those
nonminority applicants who were admitted in 1992 would have been
admitted under a race-blind system.
Hopwood and Carvell nevertheless contend that Professor
Wellborn’s assumption that the nonminority candidates who were
admitted in 1992 would have been admitted under a race-blind system
is inconsistent with his refusal to consider the fact that Hopwood
and Carvell received one vote each in 1992, placing them on a
waiting list.45 The flaw in their argument lies in their failure to
recognize that in 1992 there were two waiting lists, one for
nonminority applicants and one for minority applicants, a situation
that, by definition, could not exist in a race-blind system.
Coupled with Professor Wellborn’s testimony regarding the aberrant
nature of the one vote that each of them received —— Hopwood’s cast
45
Hopwood and Carvell also argue that failure to consider that
each of them received one vote for admission is in direct
contradiction to a statement made by Professor Johanson in another
discrimination lawsuit, Malooly v. Texas, Civ. No. A96CA229SS (W.D.
Tex. 1994). The record contains an affidavit by Professor Johanson
from that case in which he avers that Mr. Malooly received no votes
for admission and that candidates with one, two, or three votes
would have been considered superior to Malooly. We do not agree
that this statement necessarily makes the method employed by
Professor Wellborn inherently unfair or illogical. Furthermore,
the statement would have more weight if it were Professor Johanson
rather than Professor Wellborn who developed and presented the
expert testimony in the instant case.
26
for diversity on the basis of age, marital status, and childcare
responsibilities, and Carvell’s cast by a student member of the
Committee —— makes problematical the giving of any significance to
their positions on the 1992 waiting list in the context of a race-
blind system that would have a single, race-blind waiting list and
no certainty that, under such a system, a single vote would get an
applicant on the waiting list at all.
Professor Wellborn elected to employ a fair alternative. He
reconsidered all applicants, both the admitted minority candidates
and all of the nonminority candidates, who had TI scores in the
same range as the Plaintiffs (above 190). Thus, even though
Hopwood and Carvell got no special consideration from Professor
Wellborn for their respective votes, neither did the admitted
minority applicants —— even those who received one or two votes.
Under Professor Wellborn’s reconstruction, Hopwood and Carvell
received treatment equal to all denied minority candidates in their
TI range. Professor Wellborn examined the LSDAS report of each one
of these applicants and carefully re-examined the entire file of
each of those whom he considered to be a viable candidate. All
this was done using race-blind criteria.
The Law School supplied additional evidence that cast light on
the one vote received by both Hopwood and Carvell. Assistant Dean
Laquita Hamilton, who had cast Hopwood’s one vote, testified, and
provided an affidavit stating, that she had voted for Hopwood in
the belief that Hopwood would bring diversity to the incoming class
27
because she was an older student, had worked while in school, and
was raising a handicapped child. Dean Hamilton’s vote for Hopwood
clearly was not cast in the belief that Hopwood was academically
more qualified than other applicants based on the system’s criteria
of LSAT score, college academic record, personal statement, and
letters of recommendation.
Carvell’s one vote was cast by a student member of the
admissions committee. Professor Johanson testified that sometimes
the votes of student members of the committee are aberrant
departures from the admissions decisions norm, noting that Carvell
received no votes from non-student members of the admissions
committee.
Finally, the Plaintiffs would make much of Professor
Wellborn’s acknowledgment that he made a number of small errors in
his analysis. These include such things as misstating that each
committee member could vote for nine of the 30 applicants in the
group of discretionary zone candidates when in fact each could vote
for 10. The Plaintiffs also stress that Professor Wellborn failed
to consider the difference between applicants with two-digit scores
under an older LSDAS system and those with a three-digit TI index
in the newer LSDAS system. We have considered each of the flaws
singled out by the Plaintiffs and are satisfied that, neither alone
nor in combination, are they sufficient to affect the validity of
the studies or to impugn Professor Wellborn’s ultimate conclusions.
d. Plenary Evaluation of Defendants’ Evidence
28
The nature and history of this case have influenced us to
review the record de novo, including the Plaintiffs’ LSDAS reports
and files, all of the LSDAS reports included in Professor
Wellborn’s report, and the additional application files contained
therein. As a result we are further convinced that the district
court did not clearly err in finding that the Plaintiffs would not
have been offered admission to the Law School under a race-blind
admissions system.
The application file of each Plaintiff includes at least one
significant weakness. Even though Hopwood’s LSAT score was in the
83rd percentile, she had received her undergraduate degree from a
relatively weak institution, had garnered at least 60 hours at a
community college, and had earned her bachelor’s degree from a
school with a college LSAT mean of 28. Less than 2 percent of
nonminority applicants admitted in 1992 had been graduated from
schools with college LSAT means of 28 or below.46 Furthermore,
Hopwood’s file contained no letters of recommendation or personal
statements. Testifying members of the admissions committee in
addition to Professor Wellborn agreed unanimously that Hopwood’s
undergraduate record and degree institution made her “not well
prepared academically” and “very weak in comparison with the
46
The 1992 LSAT means at other colleges demonstrate the
relative weakness of this LSAT mean. Harvard University (40); Duke
University (39); Rice University (38); Trinity University (36);
The University of Texas at Austin (between 34 and 35); Texas A&M
University (33).
29
overwhelming credentials of so many” of the other applicants.
Plaintiff Carvell took the LSAT twice, and even when averaged,
his LSAT score was only in the 76th percentile, well below the
median of 89th percentile of those admitted in 1992. Carvell’s 3.28
GPA was also well below the 3.53 median for applicants admitted in
1992, and his file contained one distinctly negative letter: One
of his college professors had written that he was “disappointed” in
Carvell’s grades and that Carvell had a “mediocre” and “uneven”
academic performance. Other members of the admissions committee
uniformly agreed that Carvell’s undergraduate academic performance
was “unimpressive.”
Plaintiff Rogers also had a relatively weak undergraduate
record. Initially he had attended the University, where he was not
only placed on academic probation but was twice dismissed for
failing grades in a period of three and one-half years. Even
though Rogers did eventually graduate with a GPA of 3.13, his
degree institution, UH-D, had a very low mean LSAT score of 26, and
no letters of recommendation were provided.
Plaintiff Elliott’s LSAT score in the 95th percentile was quite
good, but his GPA at the University was only 2.98. In his own
personal statement, Elliott acknowledged that in undergraduate
school he was “an average student, studying when I needed to,
partying more than I should, and not managing my time efficiently.”
Elliott candidly admitted that his undergraduate academic
performance “is not of the caliber expected by the University of
30
Texas School of Law.”47
The Plaintiffs’ arguments criticizing the Law School’s
evidence were presented fully and forcefully to the district court
by able counsel and were considered in depth by that court.48 Its
analysis of the Plaintiffs’ criticisms of Professor Wellborn’s
analysis was painstakingly thorough. The district court
independently evaluated Professor Wellborn’s methodology by
reviewing hundreds of application files itself.49 Our equally
painstaking review of the entire record convinces us that the
district court was both indefatigable and disciplined in carefully
considering all the evidence and was equally diligent in its
consideration and application of the law and arguments presented by
all the attorneys. We conclude that the district court’s ultimate
finding that the Plaintiffs would have had no reasonable chance of
being admitted to the Law School under a race-blind admission
system was not merely free of reversible error but was eminently
correct.50
47
After Elliott failed to gain admission, his father wrote to
the Law School indicating that Elliott’s friends and family
believed that he was not offered admission because of “the
mandatory minority and women quotas.”
48
See Hopwood B, 999 F. Supp. at 889-92.
49
Id. at 893.
50
As we affirm the district court’s finding that the
Plaintiffs would not have been offered admission to the Law School
in 1992 under a constitutionally valid system, we need not address
the district court’s alternative findings on damages.
31
B. Hopwood II Revisited
1. Law of the Case
We could not reconsider the merits of Hopwood II and reverse
or revise it, as Texas urges, without first clearing a very
substantial hurdle: The law of the case doctrine. Under the
strictures of that maxim, “we will not reexamine issues of law
addressed by a prior panel opinion in a subsequent appeal of the
same case unless: (i) the evidence on a subsequent trial was
substantially different, (ii) controlling authority has since made
a contrary decision on the law applicable to such issues, or (iii)
the decision was clearly erroneous and would work a manifest
injustice.”51 Texas acknowledges that the first two exceptions to
this doctrine, which bars a subsequent panel from reversing or
disregarding the holding of a prior panel, do not apply to the
instant case. Texas contends, however, that the third exceptional
justification for departing from law of the case does apply here;
that the Hopwood II panel decision is “clearly erroneous” and will
“work a manifest injustice” if it is not overturned.
In the context of the law of the case doctrine, “clearly
erroneous” is a very exacting standard. “Mere doubts or
disagreement about the wisdom of a prior decision of this or a
lower court will not suffice for this exception. To be clearly
erroneous, a decision must strike us as more than just maybe or
51
Alberti v. Klevenhagen, 46 F.3d 1347, 1351 n.1 (5th Cir.
1995)(internal quotation marks and citation omitted).
32
probably wrong; it must be dead wrong.”52 Texas asserts that
Hopwood II is in fact “dead wrong,” arguing that its rulings
directly conflict with several Supreme Court precedents.
The Hopwood II panel held that:
the University of Texas School of Law may not
use race as a factor in deciding which
applicants to admit [1] in order to achieve a
diverse student body, [2] to combat the
perceived effects of a hostile environment at
the law school, [3] to alleviate the law
school’s poor reputation in the minority
community, or [4] to eliminate any present
effects of past discrimination by actors other
than the law school.53
Texas attacks Hopwood II’s rejection of two of the enumerated
justifications as being clearly erroneous. Texas first contends
that the University has a compelling interest in remedying the
present effects of past discrimination, both by the University
itself and by the Texas public education system as a whole. Texas
then argues that the University has a compelling interest in
obtaining a diverse student body. We shall analyze these two
contentions in turn.
a. Remedying the Effects of Past Discrimination
The Supreme Court has conclusively established that the
government can, consistent with the Constitution, use racial
preferences under particular circumstances to remedy the present
52
City Public Service Bd. v. General Elec. Co., 935 F.2d 78,
82 (5th Cir. 1991)(internal quotation marks and citation omitted).
53
78 F.3d at 962.
33
effects of past discrimination.54 But it has also placed several
limitations on the use of racial preferences for remedial purposes.
In Wygant, the Court ruled that the government cannot use racial
preferences to remedy general, societal discrimination.55 In
Croson, the Court ruled that a municipality cannot use racial
preferences in the awarding of construction contracts to remedy
discrimination in the construction industry as a whole.56
Despite having addressed the subject of remedial racial
preferences in several opinions, though, the Supreme Court has yet
to establish specific rules for determining precisely how
“localized” past discrimination must be before a particular
governmental entity (in this case, the Law School or even the
University) can, consistent with the Constitution, use racial
preferences to remedy the effects of prior discrimination. The
Hopwood II panel nevertheless stepped into this “rules vacuum” and
developed fairly specific guidelines for determining when remedial
racial preferences are justified. The panel ruled that (1) the
University cannot use racial preferences to remedy discrimination
54
See, e.g., United States v. Paradise, 480 U.S. 149, 167
(1987) (“[t]he Government unquestionably has a compelling interest
in remedying past and present discrimination by a state actor”);
Regents of the University of California v. Bakke, 438 U.S. 265, 363
(1978).
55
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986).
56
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
34
in other components of Texas’s public education system,57 and (2)
the record evidence did not support the University’s use of racial
preferences to remedy the effects of its own past discrimination.58
In arguing that the rulings of Hopwood II are clearly
erroneous within the meaning of the law of the case doctrine, Texas
contends, as it did then, that the University should be allowed to
take race into account as a means of remedying the effects of past
discrimination in other components of Texas’s public education
system. Texas advances two arguments in support of this
contention. First, it insists that Hopwood II conflicts with the
Supreme Court’s rejection in Croson of the “stark” notion that a
governmental entity “must limit any race-based remedial efforts to
eradicating the effects of its own prior discrimination.”59 Texas
takes this statement out of context, however: The Croson court
went on to explain that “if [a governmental entity] could show that
it had essentially become a ‘passive participant’ in a [private]
system of racial exclusion practiced by [local] elements...we think
it clear that the [governmental entity] could take affirmative
steps to dismantle such a system.”60 This holding is wholly
inapplicable here because Texas has never claimed that the
57
Hopwood II, 738 F.3d at 950.
58
Id. at 952-55.
59
Croson, 488 U.S. at 486.
60
Id. at 492.
35
University was ever a passive participant in a private system of
racial exclusion.61 Thus, Hopwood II does not conflict with the
Supreme Court’s decision in Croson.
Second, Texas argues that neither Wygant nor Croson commands
the broad approach taken by the Hopwood II panel. This is
certainly true: Hopwood II went beyond established Supreme Court
precedent in several important respects. Within the law of the
case framework, however, it is not clear error for a court of
appeals to tackle legal questions that the Supreme Court has
declined to answer: Lower courts are bound only by Supreme Court
holdings and not by the Court’s election, either express or
implied, to leave open particular legal questions. This or other
subsequent panels of our court may well disagree with the
aggressive legal reasoning employed by the Hopwood II panel,62 but
it cannot be said that, as a matter of law, the panel’s decision is
“dead wrong.” As Hopwood II’s ruling with respect to the
appropriate scope of remedial racial preferences is not clearly
erroneous within the intendment of the law of the case doctrine, we
cannot today reconsider that decision with an eye toward
disregarding or reversing it.
61
Neither does the University contend that it was a “passive
participant” in a public system of racial exclusion; its sole mea
culpa is to having been an active participant in a public system of
racial exclusion.
62
See, e.g., Hopwood II, 78 F.3d at 962 (Wiener, J., specially
concurring).
36
b. Diversity as a Compelling Governmental Interest
Texas also contends that “[i]n holding that diversity may
never be a compelling interest justifying the consideration of race
or ethnicity in admissions, the Hopwood II panel attempted to
create a new rule of constitutional law despite the Supreme Court’s
continued hesitation to do so.” Although we agree with Texas’s
characterization of the Hopwood II panel opinion, we have just
demonstrated that a federal appeals court's creation of a new rule
of constitutional law when a lacuna exists in the Supreme Court’s
rulings on the point does not constitute clear error.
The diversity rationale was first advanced by Justice Powell
in his swing opinion in Bakke, in which he wrote only for himself.63
Although four Justices joined Justice Powell in holding that “the
State has a substantial interest that legitimately may be served by
a properly devised admissions program involving the competitive
consideration of race and ethnic origin,”64 the same four disagreed
with him as to the rationale that is necessary to justify
constitutionally the government’s use of racial preferences.
Justice Brennan wrote separately on behalf of the four concurring
Justices to express the view that the Constitution permits the
government to use racial preferences only “to remedy disadvantages
63
Bakke, 438 U.S. at 316-19 (Opinion of Powell, J.).
64
Id. at 320.
37
cast on minorities by past racial prejudice.”65 None of the four
other justices would go the extra step proposed by Justice Powell
and approve student body diversity as a justification for a race-
based admission criterion.
Although Bakke clearly stands for the proposition that the
government can use racial preferences under some circumstances, no
controlling rationale emerged from that opinion to delineate
precisely what those justifying circumstances are. Thus, in
deciding whether the system of racial preferences employed by the
Law School was constitutional, the Hopwood II panel was free to
determine which among the competing rationales offered by the
justices in Bakke is constitutionally valid.66 Once the Hopwood II
65
Id. at 325.
66
We respectfully disagree, then, with the Ninth Circuit’s
recent holding that Justice Powell’s diversity rationale is binding
Supreme Court precedent. See Smith v. University of Washington,
Nos. 99-35209, 99-35347, 99-35348, 2000 WL 1770045, at *10 (9th
Cir. Dec. 4, 2000). Despite the facts that (1) no Justice other
than Justice Powell even discussed diversity in Bakke and (2) no
other Justice joined that part of Justice Powell’s opinion that
advanced the diversity rationale, the Ninth Circuit nevertheless
hypothesized that Justice Brennan (joined by Justices White,
Marshall, and Blackmun) “would have embraced [the diversity
rationale] if need be.” See id. (emphasis added). It follows, at
least according to the reasoning of the Ninth Circuit, that
Justice Powell’s diversity rationale is “the narrowest footing upon
which a race-conscious decision making process could stand” and
accordingly is the “holding” of Bakke under Marks v. United States
430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case
. . . the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the narrowest
grounds.”). See id. at *10. With respect, however, we do not read
Marks as an invitation from the Supreme Court to read its
fragmented opinions like tea leaves, attempting to divine what the
Justices “would have” held. Rather, in the absence of subsequent
38
panel determined to decide the case on the question of compelling
state interest and not, as urged in the special concurrence, on the
question of narrow tailoring,67 the panel was constrained in its
judgment only by other Supreme Court decisions and by the text of
the Constitution itself.
The Hopwood II panel ruled that the Constitution does permit
the government to use racial preferences for the purpose of
remedying the present effects of past discrimination,68 but that the
government cannot constitutionally use racial preferences for the
purpose of fostering student body diversity. Although Justice
Powell would surely have disagreed with that holding, we cannot say
that Hopwood II conflicts with any portion of Bakke that is binding
on this court.69 Some may think it was imprudent for the Hopwood
Supreme Court precedent squarely and unequivocally holding that
diversity can never be a compelling state interest, we read Bakke
as not foreclosing (but certainly not requiring) the acceptance by
lower courts of diversity as a compelling state interest.
67
Hopwood II, 78 F.3d at 966 (Wiener, J., specially
concurring).
68
Id. at 948-49 (citing Croson, 488 U.S. at 500).
69
We recognize that in a recent challenge to the University
of Michigan’s use of race in admissions decisions, the district
court held that Supreme Court precedent does not bar courts from
considering diversity as a compelling state interest. See Gratz v.
Bollinger, No. 97-CV-75231, 2000 WL 1827468, at *9 (E.D. Mich. Dec.
13, 2000). Although decided contrary to Hopwood II with respect to
the constitutional validity of the diversity rationale, Gratz is
nevertheless consistent with our position that the Hopwood II panel
was neither constrained to accept, nor required to reject,
diversity as a compelling state interest under binding Supreme
Court precedent.
39
II panel to venture into uncharted waters by declaring the
diversity rationale invalid, but the panel’s holding clearly does
not conflict directly with controlling Supreme Court precedent.
Inasmuch as the Hopwood II panel’s ruling on diversity did not rise
to the level of clear error, the law of the case doctrine bars our
revisiting or disregarding that decision today.
2. Hopwood B’s Injunction
a. Standard of Review
We review the district court’s grant of a permanent injunction
for abuse of discretion.70
b. Injunction Against Consideration of Race
On remand from Hopwood II, the district court entered an
injunction forbidding the Law School and its administrators “from
taking into consideration racial preferences in the selection of
those individuals to be admitted as students.”71 Texas asks us to
reverse that injunction, arguing that it conflicts with the Supreme
Court’s holding in Bakke.72 In Hopwood A, the district court
refused to enter an injunction against the University that would
forbid the Law School’s use of racial preferences in its admissions
process. On appeal of that ruling, the Hopwood II panel stated:
70
Regions Bank of Louisiana v. Rivet, 224 F.3d 483, 488 (5th
Cir. 2000)(citing Peaches Entertainment Corp. v. Entertainment
Repertoire Assocs., Inc., 62 F.3d 690, 693 (5th Cir. 1995).
71
Hopwood B, 999 F. Supp. at 923.
72
438 U.S. 265 (1978).
40
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 court, in
its discretion, can consider its parameters
without our assistance. Accordingly, we leave
intact that court’s refusal to enter an
injunction.73
Despite (1) the district court’s original refusal to enjoin the Law
School and (2) the Hopwood II panel’s admonition that it did not
believe that an injunction was necessary, on remand the district
court in Hopwood B entered an injunction barring the Law School
“from taking into consideration racial preferences in the selection
of those individuals to be admitted as students.” Given the
Hopwood II panel’s instructions on remand, the district court was
certainly within its discretion to investigate the necessity of
entering an injunction and to enter an appropriate injunction if it
concluded that one was needed —— and apparently it did so. The
particular injunction entered by the district court, however, must
be reversed for two reasons.
First, in its otherwise extensive and able management of this
case on remand, one thing that the district court did not do was
conduct a hearing to determine whether an injunction “was needed in
the future.”74 Neither did it purport to comply with Federal Rule
73
Hopwood II, 78 F.3d at 958-59.
74
Id.
41
of Civil Procedure 52(a), which requires federal trial courts to
support their judgments with written findings of fact and
conclusions of law. Nowhere to be found in the district court’s
lengthy and otherwise thorough opinion are any express findings of
fact or conclusions of law addressing or supporting the need for an
injunction; and we cannot glean any, even implicitly, from other
parts of that opinion. We are left no choice, therefore, but to
reverse the court’s injunction for failure to comply with Rule
52(a). We deliberately elect to reverse rather than vacate the
district court's injunction, however, so that we may remand and
thereby give the court an opportunity to explicate its findings and
conclusions if it should still perceive a need to issue an
injunction.
In reversing and remanding, however, we would be remiss if we
did not emphasize a second reason for so doing: On its face, the
district court’s injunction impermissibly conflicts with the square
holding in Bakke. The Hopwood B injunction forbids the University
from using racial preferences for any reason, despite Bakke’s
holding that racial preferences are constitutionally permissible in
some circumstances.75 Consistent with that position, Hopwood II
does not bar the University from using race for any and all
remedial purposes; rather Hopwood II bars the University from using
race to remedy the effects of previous discrimination in other
75
Bakke, 438 U.S. at 320.
42
components of Texas’s public education system only.76 By enjoining
any and all use of racial preferences, the district court went
beyond the holding of Hopwood II and, in the process, entered a
judgment that conflicts with Bakke. If, on remand, the district
court should determine, after conducting an evidentiary hearing or
hearings, that an injunction is necessary, and supports that
determination with findings of fact and conclusions of law, any
injunction that it enters must not exceed the scope of the ruling
in Hopwood II or the holding in Bakke.
C. Attorneys’ Fees
Both sides have expressed displeasure with the district
court’s rulings on attorneys’ fees. Presumably their displeasure
will continue, for we affirm the court’s attorneys’ fees rulings in
all respects.
Congress has provided an incentive for attorneys to take on
difficult civil rights cases by allowing district courts in their
discretion to shift, from the plaintiffs to the defendants, the
cost of prosecuting such an action.77 Title 42, Section 1988(b) of
the United States Code provides:
In any action or proceeding to enforce a provision of .
. . [section 1983] . . . the court, in its discretion,
may allow the prevailing party, other than the United
76
Hopwood II, 78 F.3d at 952.
77
See 42 U.S.C. § 1988(b); Riddell v. National Democratic
Party, 624 F.2d 539, 543 (5th Cir. 1980) (“Congress enacted this
statute in 1976 to encourage private attorneys general to enforce
fundamental constitutional rights under section 1983.”).
43
States, a reasonable attorney’s fee as part of the
costs[.]78
1. Standard of Review
The district courts' discretion in awarding attorneys’ fees
under § 1988 is appropriately broad. We have repeatedly noted in
the past, “‘[w]hen a district court awards [attorneys' fee pursuant
to 42 U.S.C. § 1988], we review the award only for an abuse of
discretion. . . .“A request for attorney's fees should not result
in a second major litigation.”. . .We cannot overemphasize the
concept that a district court has broad discretion in determining
the amount of a fee award.’”79 Appellate courts have only a limited
opportunity to appreciate the complexity of trying any given case
and the level of professional skill needed to prosecute it. In
contrast, the district court here has, among other things, observed
firsthand the presentation of testimony and argument at trial,
sifted through countless depositions and interrogatories, and
assessed the value of numerous dispositive filings.
2. Texas’s Contentions
78
42 U.S.C. § 1988(b).
79
Bell v. Schexnayder, 36 F.3d 447, 449 (5th Cir. 1994)
(quoting Associated Builders & Contractors of Louisiana, Inc. v.
Orleans Parish School Bd., 919 F.2d 374, 379 (5th Cir.
1990)(quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983))).
See also 1 Steven Alan Childress & Martha S. Davis, Federal
Standards of Review § 4.15 (3d ed. 1999) (“The fee award [under §
1988] will not be reversed unless it constitutes an abuse of
discretion, there is strong evidence that it is excessive or
inadequate, or the amount chosen is clearly erroneous.”).
44
Texas raises two objections to the district court’s award of
attorneys’ fees: (1) The Plaintiffs are not prevailing parties
within the meaning of 42 U.S.C. § 1988(b); and (2) Even if the
Plaintiffs are deemed to be prevailing parties, they would not be
entitled to any fees because they were unable to achieve any direct
relief. The prevailing parties issue was resolved by the district
court before the appeal in Hopwood II.80 On completion of that
appeal, we remanded with instructions for the district court to
determine the reasonableness of the fees, not for the parties to
relitigate the prevailing party issue.81 In any event, the
Plaintiffs are quite clearly prevailing parties as “[t]he
plaintiffs accomplished the principal goal of the lawsuit —— to
dismantle all forms of racial preferences in public higher
education in Texas.”82 The insistence of Texas that the Plaintiffs
achieved only limited monetary relief is unavailing. Even nominal
damages can support an award of attorneys’ fees.83 Attorneys’ fees
80
See Hopwood v. Texas, No. A 92-CA-563 (W.D. Tex. Nov. 14,
1994)(order denying motion for attorneys’ fees)("There is no
dispute the plaintiffs have met the minimum condition for
prevailing party status by obtaining an enforceable judgment for
one dollar in nominal damages.”).
81
See Hopwood v. Texas, No. 95-50062 (5th Cir. May 17,
1996)(order vacating judgment denying attorneys’ fees and remanding
with instructions that reasonable attorneys’ fees should be
granted).
82
Hopwood B, 999 F. Supp. at 916.
83
See Farrar v. Hobby, 506 U.S. 103, 112 (1992)(holding that
a plaintiff in a civil rights action who wins an award of nominal
damages is a prevailing party under § 1988 and therefore eligible
45
are particularly appropriate here, given the Law School's change of
its admissions process as a direct result of the instant
litigation.84
Texas contends, in the alternative, that the Plaintiffs are
not entitled to any fee award because they achieved no specific
injunctive or monetary relief. A prevailing plaintiff “should
ordinarily recover an attorney’s fee unless special circumstances
would render such an award unjust.”85 As we discuss below, the
district court properly accounted for the Plaintiffs’ lack of
success in obtaining monetary and other direct relief by reducing
their attorneys' submitted hourly totals. We cannot credit Texas’s
argument that the Plaintiffs have not achieved a compensable goal.
As noted, the Plaintiffs have achieved “the principal goal of their
lawsuit” —— a benefit that inures to all future applicants to the
Law School, at least those who advocate a race-blind system. It is
important to add in this respect that Section 1988 “is a tool that
ensures the vindication of important rights, even when large sums
of money are not at stake, by making attorney's fees available
for attorneys’ fees).
84
See Robinson v. Kimbrough, 652 F.2d 458, 466 (5th Cir.
1981) (noting that fee awards are reasonable when plaintiff’s
lawsuit is “a substantial factor or a significant catalyst in
motivating the defendants to end their unconstitutional behavior”).
85
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal
quotation marks and citations omitted).
46
under a private attorney general theory.”86
3. The Plaintiffs' Contentions
The Plaintiffs assert numerous objections to the district
court’s awards of attorneys’ fees. They first object to the
court’s refusal to consider fee requests for work done after the
Supreme Court’s refusal to grant their petition for a writ of
certiorari. The Plaintiffs filed their final supplemental fee
applications before the trial on remand in Hopwood B. Even if we
were to conclude that the district court abused its discretion by
entertaining the post-remand supplemental application before the
trial rather than after it, such error would be harmless because
the Plaintiffs are not prevailing parties on any issues resolved in
the post-remand trial. They were not able to prove entitlement to
any monetary relief. It is true that the court granted injunctive
relief barring any use of racial preferences by the Law School, but
to the extent the Plaintiffs prevailed on that issue, their victory
was assured by professional services rendered prior to remand.87
The Plaintiffs also object to the district court’s 25 percent
summary reduction based on the inadequacy of the time entries,
duplicative work product, and lack of billing judgment of their
counsels’ submitted hourly totals. The district court did not
86
Farrar, 506 U.S. at 121 (O’Connor, J., concurring).
87
See Hopwood II, 78 F.3d at 962.
47
abuse its discretion in adjusting the number of hours downward.88
In its opinion, the court lists and describes eleven different
instances of lack of billing judgment by the Plaintiffs’ counsel.89
The Plaintiffs counter on appeal with an affidavit by one of the
lead attorneys, insisting that he indeed did exercise billing
judgment. Without more, however, the Plaintiffs cannot demonstrate
that the district court abused its discretion.
The Plaintiffs further object to the district court’s
reduction of the submitted hourly totals to account for their lack
of success. The Plaintiffs argue that they achieved the “principal
goal of their lawsuit” by striking down racial preferences in
higher education admissions in Texas. As Texas points out,
however, the Plaintiffs did not receive any specific injunctive or
monetary relief for their own asserted injuries, and they did not
gain admission to the Law School. A fifteen per cent reduction for
this lack of success is not an abuse of discretion.90
88
See Walker v. U. S. Dep’t of Housing & Urban Dev., 99 F.3d
761, 770 (5th Cir. 1996) (“The proper remedy when there is no
evidence of billing judgment is to reduce the hours awarded by a
percentage intended to substitute for the exercise of billing
judgment.”).
89
See Hopwood B, 999 F. Supp. at 915-16 (describing, for
example, how “thousands of dollars were spent repeatedly reading
and reviewing the same Supreme Court cases on affirmative action”
and that “compensation [was] sought for non-legal work such as
reading a national best seller on affirmative action, attending a
panel discussion regarding the impact of the case, and reviewing
co-counsel agreements”).
90
See Albright v. Good Shepherd Hosp., 901 F.2d 438, 440 (5th
Cir. 1990)(indicating that “those achieving limited or partial
48
The Plaintiffs next contend that in its analysis of the fee
issue the district court ignored some of the factors listed in
Johnson v. Georgia Highway Express, Inc.91 to guide the district
courts in their attorney’s fee inquiries.92 Specifically, the
Plaintiffs argue that the district court either overlooked or
failed to consider adequately the following Johnson factors: (1)
the novelty and difficulty of the questions; (2) the skill required
to perform the legal service properly; (3) the experience,
reputation, and ability of the attorneys; (4) the amount involved
and the results obtained; and (5) the “undesirability” of the
case.93 The district court did not abuse its discretion in
according these factors little or no weight. The issues presented
by this case may well provide grist for the political and legal
mills, but they are “neither novel nor extraordinarily
difficult[.]”94 The underlying arguments about the place of
affirmative action in the equal protection paradigm have been
percolating since the Supreme Court’s decision in Bakke if not
longer95; only the evidence and analysis supporting each side have
success may recover only that which is reasonable in light of the
relief obtained”).
91
488 F.2d 714 (5th Cir. 1974).
92
Id. at 717-19.
93
Id.
94
Hopwood B, 999 F. Supp. at 921.
95
Bakke, 438 U.S. 265 (1978).
49
grown more sophisticated over the past two decades. Stated
differently, this is not an issue that demanded a large amount of
legal excavation in this instance. Additionally, as earlier noted,
the Plaintiffs were indeed successful, but no amount of
professional chest-pounding or puffery can obscure the fact that
none of the Plaintiffs has been offered admission to the Law School
or awarded monetary damages for the Law School’s refusal or failure
to offer them admission.
The district court’s denial of fees for work of Plaintiffs'
counsel in successfully opposing the attempted intervention by the
Thurgood Marshall Legal Society, the Black Pre-Law Association, the
NAACP Legal Defense Fund, and the Mexican-American Legal Defense
and Educational Fund, is another bone of contention advanced by the
Plaintiffs. In particular, they object to the extension of
Independent Fed’n of Flight Attendants v. Zipes96 to the facts of
this case. The plaintiff in Zipes sought an award of attorney’s
fees from the intervenor. The Supreme Court held that recovery of
fees from the intervenor cannot be had unless the intervention is
“frivolous, unreasonable, or without foundation.”97 Our fellow
circuits have extended this holding, in varying degrees, to the
award of fees to prevailing plaintiffs from the pockets of losing
defendants when the fees are based on interventions by third-
96
491 U.S. 754 (1989).
97
Id. at 761.
50
parties.98 We need not decide today whether a prevailing plaintiff
is absolutely barred from shifting to the defendant the costs
associated with defending against an intervention, for here the
Plaintiffs did not “prevail” on this issue vis-à-vis Texas.99 Texas
remained neutral on the intervention issue. In addition, the
potential intervenors made clear both to the trial court and to us
in Hopwood I that the purpose of their intervention was to raise
arguments and defenses that Texas itself had no interest in
raising.100 Both we and the trial court denied intervention,
holding that Texas would adequately protect the interests of those
affected by affirmative action.101 It would be inequitable now for
us to force Texas to pay for costs associated with a failed
intervention which, in our determination, would have brought
nothing more to the table than did Texas.102 The Plaintiffs elected
98
See, e.g., Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d
169, 176-78 (4th Cir. 1994); Bigby v. City of Chicago, 927 F.2d
1426, 1428-29 (7th Cir. 1991).
99
Cf. Reeves v. Harrell, 791 F.2d 1481, 1483-84 (11th Cir.
1986).
100
See Hopwood v. Texas, 1994 WL 242362, at *1; Hopwood I, 21
F.3d at 605.
101
See id. at 606.
102
See id. (“[The proposed intervenors] have not met their
burden of demonstrating that they have a separate interest that the
State will not adequately represent. The proposed intervenors have
not demonstrated that the State will not strongly defend its
affirmative action program. Nor have the proposed intervenors shown
that they have a separate defense of the affirmative action plan
that the State has failed to assert.”); see also Hopwood II, 78
F.3d at 960 n.59.
51
to oppose intervention, and they were successful —— but not against
Texas: They succeeded against the putative intervenors in a case
instituted by Plaintiffs, not by Texas. Neither logic nor equity
supports taxing Texas under these circumstances. The district
court did not abuse its discretion in denying attorneys’ fees to
the Plaintiffs for their legal expenses incurred in opposing
intervention.
The Plaintiffs’ attorneys' fees objections also include the
district court's denial of fees for monitoring the comments of
Texas in the media and for responding to those comments. The
Plaintiffs argue that they are entitled to a fee award for this
work because, for example, they were able to use one of the public
comments by the Attorney General of Texas in their successful
opposition to the granting of a writ of certiorari by the Supreme
Court. We are chary about granting requests for media fees.103 The
controversy underlying this case is a politically and socially
divisive one. The district court's disallowance of fees for combat
on the affirmative action issue in the non-legal media is not an
abuse of discretion.
The Plaintiffs object additionally to the district court’s
reduction of their counsels’ hourly rates. For instance, Theodore
Olson, a noted appellate litigator in our nation’s capital and one
103
See, e.g., Watkins v. Fordice, 7 F.3d 453, 458 (5th Cir.
1993); Associated Builders & Contractors of Louisiana, Inc. v.
Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir. 1990).
52
of the lawyers for Plaintiffs Hopwood and Carvell, had his hourly
rate reduced from $450.00 to $225.00. Although Mr. Olson advises
that his rate was adjudged reasonable by the D.C. Circuit in an
unrelated case, the attorneys’ fees calculus is a fact-intensive
one and its character varies from case to case. In this case, the
district court found that in the relevant legal market, which is
not the District of Columbia but Austin, Texas, high quality
appellate representation could be obtained for a lower rate than
that normally charged by Mr. Olson. Hourly rates are to be
computed according to the prevailing market rates in the relevant
legal market, not the rates that “lions at the bar may command.”104
In essence, the Plaintiffs’ argument is that the out-of-town
rates should have been used because the out-of-towners had special
competence and there was a lack of available counsel of that
quality locally. The district court observed, however, that local
counsel had “provided competent and skilled representation”105
before the Plaintiffs obtained additional non-local counsel, and
ventured the belief that local counsel would have been “capable of
the same degree of competence regarding the appeal had it been
determined he should have remained the plaintiffs’ primary
lawyer.”106 Contrary to the Plaintiffs’ counsel’s appreciation of
104
Leroy v. City of Houston, 906 F.2d 1068, 1079 (5th Cir.
1990)(internal quotation marks and citation omitted).
105
Hopwood B, 999 F. Supp. at 917.
106
Id.
53
this case, we do not perceive it to have been extraordinarily
difficult. Again, the place of affirmative action in higher
education has been the subject of legal discourse for many years.
The district court’s decision to reduce the hourly rates does not
constitute an abuse of discretion.107
In sum, we find no abuse of discretion by the district court
in its rulings on attorneys’ fees. We therefore affirm those
rulings.
III.
CONCLUSION
The district court was correct, and thus free of clear error,
in holding on remand that Texas had borne its burden of proving by
a preponderance of the evidence that the Plaintiffs would have had
no reasonable chance of being offered admission to the Law School
107
Steven Smith, counsel to plaintiffs Elliott and Rogers,
objects that his submitted rate was not adjusted for delay in
payment. This contention is unavailing. The district court
specifically indicated that it had reviewed the hourly rates for
all the attorneys and adjusted them accordingly. In many cases,
when the attorneys submitted current hourly rates in addition to
historical rates, the court used the current rates to compensate
for delay in payment. In Smith’s case, the submitted rate of
$125.00 was “higher than Smith’s normal billing rate and is the
highest rate Smith has ever received in any federal civil rights
litigation he has undertaken.” See Hopwood B, 999 F. Supp. at 918.
In light of the district court’s finding that Smith had limited
trial and appellate experience and a limited role in the case, and
that the court found many of the requested rates to be excessive,
we conclude that the lower court did not abuse its discretion in
not increasing Smith’s award for delay in payment. We find that
the higher rate that he received from the court —— higher than any
other case he has tried —— takes into account delay in payment. It
is important to keep in mind that “attorneys’ fee litigation should
not require specific reasoning by the trial court to justify every
facet of its decision[.]” Blanchard v. Bergeron, 893 F.2d 87, 91
(5th Cir. 1990).
54
in 1992 under a constitutionally valid, race-blind admissions
system. In affirming that ruling we avoid the need to address the
district court’s alternative findings of fact and conclusions of
law regarding compensable damages incurred by the Plaintiffs.
The district court failed to comply with the strictures of
Federal Rule of Civil Procedure 52(a), however, when it failed to
provide findings of fact and conclusions of law to justify its
injunction prohibiting absolutely the use of race as a factor in
the admissions process. The district court also exceeded the
limits of the remand under which it was operating and at the same
time conflicted with the aspect of Bakke that authorizes
consideration of race in higher education admissions to eradicate
vestiges of previous discrimination. We therefore reverse the
court’s grant of that injunction and remand for further proceedings
on the injunction issue consistent with this opinion.
As the district court acted within its discretion in all
rulings on attorneys’ fees, we affirm those rulings in all
respects.
AFFIRMED in part; REVERSED and REMANDED in part.
55