Hopwood v. State of Texas

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