Getting It Wrong: Hopwood v. Texas and its Implications for Racial Diversity in Legal Education and Practice

Roscoe C. Howard, Jr.^(*)

Education . . . beyond all other devices of human origin, is the great equalizer of the conditions of men--the balance-wheel of the social machinery. . . . [I]t gives each man the independence and the means . . . by which he can resist the selfishness of other men. It does more better than to disarm the poor of their hostility towards the rich; it prevents being poor. . . . [A]nd, if this education should be universal and complete, it would do more than all things else to obliterate factitious distinctions in society.⁽¹⁾

Horace Mann⁽²⁾

I.  Introduction

Noted as the world's "melting pot" for people of various races, ethnic backgrounds, religions, social classes, and creeds, the United States is a country in which the differences in its citizenry are its most prominent characteristic. The country is a variegated landscape of skin colors, languages, heritages, and economic strata.

This country is also one in which being a member of a minority group has often meant denial of basic rights: education, access to shelter, and participation in the democratic process. The South was built on the backs of black slaves. Enslavement meant lack of status for black Americans, a feature that this country tried to maintain well after the Emancipation Proclamation⁽³⁾ ended slavery.

The struggle for equality is a road well-known to blacks in this country. The struggle most often takes place in the courtrooms, where people seek redress for injustices and transgressions. Of course, in the courtroom, lawyers are needed to navigate the path to justice. The Fifth Circuit's recent decision in Hopwood v. Texas,⁽⁴⁾ is deeply troubling because it stands for the view that this country has no duty to ensure professional educational opportunities for all of its citizens. Equally troubling is the decision's effective dismissal of the view that minority citizens should have access to legal representation by minority attorneys who may best understand their circumstances and best advocate for them in courtrooms and in other legal settings.

In Hopwood, the Fifth Circuit decided that the admissions process at the University of Texas School of Law violated the United States Constitution because it maintained a process by which black and Mexican-American students were evaluated under a different system in order to obtain proportionate representation of those minorities in their student body.⁽⁵⁾ In striking down the law school's admissions procedures, the Fifth Circuit concluded that any use of race in the admissions process was forbidden by the Constitution.⁽⁶⁾ By so doing, the Fifth Circuit has made the struggle for equality harder for blacks.

Part II of this Article discusses the origins of the Hopwood decision, reviewing the litigation that attacked the absence of professional level education in Texas and elsewhere, and which culminated with the United States Supreme Court's decision in Regents of the University of California v. Bakke.⁽⁷⁾ Part III reviews the district court and Fifth Circuit opinions in Hopwood.⁽⁸⁾ Part IV opens with a discussion of diversity as a compelling government interest.⁽⁹⁾ This Article sets forth reasons why the Fifth Circuit's analysis is flawed and discusses the error the Fifth Circuit made in concluding that race is not a shared experience of blacks, and therefore should not be a factor in law school admissions.⁽¹⁰⁾ In addressing that finding, this Article discusses several realities of racism that still exist in this country and its influence in shaping the collective black experience. This Article then discusses the compelling need for more black and minority attorneys in this country and the need for diversity as a pedagogical tool in the classroom.⁽¹¹⁾ Yet, achieving diversity does not mean admitting students who are unable to do the work in law school. This Article also addresses how minorities have been disadvantaged in the standardized tests on which law schools rely for admissions and posits that diversity should be a goal that is achieved by looking at other criteria.⁽¹²⁾

I have written this Article from the perspective that I know best: the perspective of a black American. The Hopwood case involved both blacks and Mexican-Americans as the predominant minorities. Although this Article does not discuss in great detail Hispanic and other racial or ethnic minorities who have found themselves excluded or disadvantaged in the educational system, I believe that my conclusion--that there is a compelling need to ensure diversity in the law school classroom and the bar--is applicable to all minorities in this country.

II.  The Origins of the Hopwood Case

Education is the great equalizer. Although education opens doors, provides opportunities and raises a people from the downtrodden, historically it has been essentially denied to black citizens in Texas and elsewhere. During most of this century, Texas provided an educational system for blacks that was inferior to that for whites in most instances, and non-existent in others. During the middle of this century, blacks began to press in court for equal access to education. The court battles took place over access to graduate and professional school education. These efforts by black students provided the background for the Hopwood decision.

A.  Legal Education in Texas

For many years, the State of Texas did not provide equal access for blacks to its educational institutions, from the elementary level to the professional level. The prevailing scheme for education in the latter part of the nineteenth century and the early part of the twentieth century was the United States Supreme Court sanctioned doctrine of "separate but equal" facilities, which fostered segregation of the races.⁽¹³⁾ In 1946, Texas provided no legal education to blacks.⁽¹⁴⁾ That omission by the State of Texas was about to be challenged.

On February 26, 1946, Herman Marion Sweatt applied for admission to the University of Texas School of Law.⁽¹⁵⁾ Sweatt, a former postman, "possessed every essential qualification for admission" to the law school;⁽¹⁶⁾ however, because he was black, he was denied a place in the incoming class in accordance with the existing Texas law.⁽¹⁷⁾ The color of his skin was the only reason for his denial of admission.

Sweatt, with the assistance of Legal Counsel and Director of the National Association for the Advancement of Colored People (NAACP), Thurgood Marshall, filed suit in Texas alleging a violation of the Equal Protection Clause of the Fourteenth Amendment in his denial of admission.⁽¹⁸⁾ The state trial court recognized the constitutional violation in excluding Sweatt from the law school and continued the proceedings while Texas established a new law school for the education of blacks.⁽¹⁹⁾ Sweatt appealed that decision.⁽²⁰⁾ The Texas State Law School for Negroes was established and opened in February of 1947. Sweatt refused to enroll in the new school, however, and his civil action seeking admittance into the University of Texas was remanded from the Texas Court of Civil Appeals to the state trial court for findings on whether the Texas State Law School for Negroes was equal to the University of Texas Law School.⁽²¹⁾ The state trial court found that the two schools were substantially equivalent, and the appellate court affirmed.⁽²²⁾

The United States Supreme Court reviewed the case and determined that the Texas State Law School for Negroes was simply not equal to the nationally recognized University of Texas Law School.⁽²³⁾ The Court held that the law is "an intensely practical" as well as learned profession, whose studies must include "the interplay of ideas and the exchange of views."⁽²⁴⁾ Moreover, no institution like an all-black law school could be equal because it excluded most of "the lawyers, witnesses, jurors, judges and other officials" with whom petitioner would be dealing in the practice of law.⁽²⁵⁾

B.  Lack of Access to Higher Education and Bakke

The desirability of a diverse student population in graduate schools also was recognized by the United States Supreme Court in McLaurin v. Oklahoma State Regents,⁽²⁶⁾ a case decided during the same term as Sweatt v. Painter. The University of Oklahoma allowed a black student to matriculate in its doctoral program in education, but denied the student the opportunity to interact with classmates by requiring that the student sit in designated areas while studying or using University facilities.⁽²⁷⁾ The Court determined that this arrangement "handicapped" the student⁽²⁸⁾ and provided him with an "inferior" education, which was constitutionally impermissible.⁽²⁹⁾

The line of civil rights litigation that attacked Plessy v. Ferguson, such as Sweatt v. Painter and McLaurin v. Oklahoma State Regents, culminated in 1954 with the United States Supreme Court's decision in Brown v. Board of Education.⁽³⁰⁾ With Brown v. Board of Education, the Court ended the segregationist practice of "separate but equal," declaring that public educational facilities must be available to all citizens, regardless of race.

Institutions of higher learning attempted to implement the holding of Brown v. Board of Education, and scholars began to recognize that diversified classroom benefitted the educational process. At the college and graduate level of education it meant identifying and attracting minority students to their programs. These programs were identified as "affirmative action programs," meaning that schools would search for minorities in order to bring a diversified student body to its schools. Schools developed many different programs to identify and matriculate minorities in their schools. The existence of these programs, however, meant that class slots that had been reserved for white students before Brown v. Board of Education, were now going to blacks and other minorities. When white students were denied admission, they challenged the admissions procedures that used affirmative action. As different programs designed to bring minorities to these institutions were developed and challenged, the courts reviewed the processes that took effect.

Over two decades after Brown v. Board of Education, the Court indicated just how far it was willing to allow institutions to go with their efforts to diversify their student populations. Affirmative action programs designating quotas, that is reserving a certain number of places for students of a specific race or ethnic minority, for each entering class were effective in achieving racial diversity for institutions in the post-Brown era. But questions regarding the legality of quotas came to the fore in the United States Supreme Court's 1978 decision, Regents of the University of California v. Bakke.⁽³¹⁾ At the University of California at Davis Medical School, sixteen places in the entering class of 100 were reserved for minority students.⁽³²⁾ Allan Bakke, a white male applicant to the school in 1973 and 1974, was rejected for admission.⁽³³⁾ Bakke filed suit, alleging, inter alia, a violation of his Fourteenth Amendment right to equal protection under the laws.⁽³⁴⁾

Justice Powell, in announcing the judgment of the Court, held that the school's program calling for the strict reservation of sixteen slots of its incoming class, based solely on the race of the student, violated the Fourteenth Amendment.⁽³⁵⁾ Justice Powell also held that an applicant's "race or ethnic background may be deemed a `plus'" factor in evaluating an application to obtain a qualified and highly diverse entering class; this consideration would not violate the United States Constitution.⁽³⁶⁾ Justices Stevens, Stewart, Rehnquist, and Chief Justice Burger joined in a concurring opinion in Bakke, stating that the medical school's admissions policy violated Title VI of the Civil Rights Act. They believed, however, that the question of whether the use of race as a factor in the process was constitutional did not need to be addressed.⁽³⁷⁾ Justices Brennan, White, Marshall, and Blackmun disagreed, and concurred with Justice Powell's observation that the constitutionality of the system needed to be addressed, and that race could be a factor in the admissions process.⁽³⁸⁾

In their concurring opinion, Justices Brennan, White, Marshall, and Blackmun noted that the Fourteenth Amendment and the Constitution were originally "openly compromised" by the institution of slavery.⁽³⁹⁾ The Justices found that the Equal Protection Clause condemned blacks to a status that was "always separate but seldom equal" and to now present claims that the law must be "color blind" should be an "aspiration" because it is not a "description of [the] reality" of blacks being "treated . . . as inferior by the law and by their fellow citizens."⁽⁴⁰⁾

Schools subsequently designed programs to implement the holding of Bakke and to bring diversity to their classrooms. With the formulation of quotas held to be unconstitutional by the Court, schools looked to other affirmative action programs to create diversity in their student bodies, however, some programs did not survive the scrutiny of reviewing courts for race-based classifications.⁽⁴¹⁾ In the early 1990s the University of Texas designed the admissions procedure at issue in the Hopwood decision.

III.  The Hopwood Decision

Texas had a long and well-documented history of discriminating against its largest minority populations; Mexican-Americans and blacks. With Brown, Sweatt, and Bakke as the backdrop, the University of Texas Law School established a procedure designed to increase representation in their student body from these two minority groups. The admissions procedure meant that applicants from these two ethnic minorities and applicants from all other racial groups, including whites, were reviewed in a different manner. It was in this climate that Cheryl Hopwood and three other candidates submitted their applications for admission in 1992.

A.  The University of Texas School of Law's "Regular" Admissions Process

The University of Texas Law School, recognized as one of the best in the nation,⁽⁴²⁾ receives over 4000 applications per year for the 900 offers extended to fill an incoming class of 500 first-year law students.⁽⁴³⁾ These applications come from some of the best students in the country, many of whom are virtually indistinguishable on their records, therefore the University of Texas devised a system with which to score the academic achievements of these applicants.

In 1992, the admissions office used the "Texas Index" (TI), which represented a formula comprised of the applicant's undergraduate grade point average (GPA) and his or her Law School Aptitude Test score (LSAT), as a quantifiable indicator for sorting candidates based on their likelihood for success in law school.⁽⁴⁴⁾ In addition to this score, the University of Texas also looked at other information in the application file.⁽⁴⁵⁾

The TI placed candidates in one of three categories: presumptive admit, discretionary zone, and presumptive deny.⁽⁴⁶⁾ The discretionary zone candidates had their applications forwarded to an admissions subcommittee who would decide whether to admit the candidate. The candidates who went through this review, however, did not include Mexican-American or black applicants.

B.  The Admissions Process for Mexican-American and Black Applicants

All Mexican-American and black applicants who applied to the law school had their applications color coded according to their race.⁽⁴⁷⁾ These applications were not submitted to one of the discretionary zone subcommittees for review, but were reviewed by a separate subcommittee. These minority⁽⁴⁸⁾ applications were assigned a TI score and placed in one of the three admissions zones, just as the other candidates' applications were; however, the zone cut-off TI score ranges were lower for minority applicants than they were for the Caucasian or non-preferred minority candidates.⁽⁴⁹⁾

The law school had a stated purpose of reaching an entering class of ten percent Mexican-American and five percent black.⁽⁵⁰⁾ Thus, the minority subcommittee was given "virtually final" decisionmaking power over admissions of minority candidates, and the law school maintained a separate waiting list for minorities.⁽⁵¹⁾

C.  The Plaintiffs

In 1992, one white female, Cheryl Hopwood, and three white males, Kenneth Elliot, Douglas Carvell, and David Rogers, were among the candidates who applied for admission to the law school.⁽⁵²⁾ Based on their college GPAs, LSAT scores, and information in their applications, each was assigned a TI score that placed him or her in the discretionary zone category for review by an admissions subcommittee for white and non-preferred minority students. Each applicant either had an incomplete file, or modest academic accomplishments.⁽⁵³⁾ In 1992, the LSAT scoring was changed from a two-digit score ranging in scale from ten to forty-eight to a three digit score with a scale from 120 to 180. Hopwood's TI score was adjusted to the three-digit LSAT for the purpose of comparison with other applicants. Hopwood's score placed her in the 83d percentile, well below the entering class median for non-minority candidates.⁽⁵⁴⁾ Hopwood was offered a place on the waiting list,⁽⁵⁵⁾ while Elliot, Carvell, and Rogers were denied admission.⁽⁵⁶⁾

These four applicants sued the University of Texas alleging that they were discriminated against by the law school based on their race. Specifically, the law school favored less qualified Mexican-Americans and blacks through the use of the separate admissions system, which was designed to implement a quota system.⁽⁵⁷⁾ The district court held that the school had violated the plaintiffs' equal protection rights, but refused to enjoin the use of the separate admissions system for these two minority groups.⁽⁵⁸⁾ On its own initiative, the law school abandoned the separate admissions system for minority candidates in 1995, and dispensed with the use of "presumptive admit" and "presumptive deny" categories. Thus, prospective injunctive relief was found to be unnecessary.⁽⁵⁹⁾ The district court also held that the plaintiffs were entitled to a judgment, but not punitive damages.⁽⁶⁰⁾ The ruling was appealed to the Fifth Circuit.⁽⁶¹⁾

D.  The District Court's Opinion

1.  Separate but "Equal" Education in Texas

The district court determined that Texas had adopted an official policy of resistance to integration following the United States Supreme Court's holding in Brown v. Board of Education.⁽⁶²⁾ The court noted that the state had found itself in litigation seeking desegregation of its schools throughout the twenty years preceding the challenge to the law school's admissions process. Many of the state's school districts had been found to have practiced "official discrimination against black and Mexican-American students."⁽⁶³⁾ Moreover, the district court opined that the problems of de facto segregation continued to the present.⁽⁶⁴⁾

The University of Texas system came under the scrutiny of the United States Government as a result of its systematic, racially segregated, educational system.⁽⁶⁵⁾ At the time the law school developed its admissions process, Texas was still being monitored by the United States Department of Education and its Office of Civil Rights to see that it "eliminate[d] all vestiges of de jure segregation."⁽⁶⁶⁾

2.  The Application of the Strict Scrutiny Review

The district court found that any government action that discriminates based on race, even when it involves citizens who have not been historically subject to race discrimination, will be subject to "diligent judicial examination," and the state action will be reviewed under the Fourteenth Amendment by the courts under the standard of "strict scrutiny."⁽⁶⁷⁾ In strict scrutiny review, only two questions need be asked: (1) whether the government process under review served a "`compelling governmental interest,'" and (2) whether the process was "`narrowly tailored to the achievement of that goal.'"⁽⁶⁸⁾

Under the first prong of this two-prong test, the law school set out five compelling governmental interests in adopting the admissions process in place in 1992.⁽⁶⁹⁾ But the district court recognized only two of them as constitutionally permissible: to obtain a diverse student body for "the educational benefits that flow from a racially and ethnically diverse student body,"⁽⁷⁰⁾ and to remedy the "present effects at the law school of past discrimination in both the University of Texas system and the Texas educational system as a whole."⁽⁷¹⁾

The court found that the educational benefits that flow from a diverse student body were sanctioned by Bakke as a compelling government interest because education remains a unique benefit provided by our society.⁽⁷²⁾ The district court also concluded that Texas' history of racial segregation had provided "substantial barriers" to admission for black and Mexican-American applicants⁽⁷³⁾ and the law school itself was particularly inhospitable to their presence.⁽⁷⁴⁾ As a result, the district court found the remedial purpose of the affirmative action program a compelling government interest.⁽⁷⁵⁾

Under the second prong of the strict scrutiny test, however, the district court found that the admissions process was not narrowly tailored to the achievement of these two goals of the law school.⁽⁷⁶⁾ Specifically, the district court found that the admissions procedure giving minorities significant "plus" factors⁽⁷⁷⁾ in determining their admissions was lawful, but failing to provide a "comparative evaluation among all individual applicants"⁽⁷⁸⁾ ensured that the separate admissions process for minorities was based solely on their race and/or ethnicity and thus violated the Constitution.⁽⁷⁹⁾

The court determined that the plaintiffs themselves were not necessarily more qualified than minority candidates approved for admission, therefore the court did not require their admission into the law school.⁽⁸⁰⁾ Further, because the law school had voluntarily abandoned its separate admissions committee for minority candidates, prospective injunctive relief was deemed moot.⁽⁸¹⁾ It was from this holding that the appeal was taken to the Fifth Circuit.

E. The Fifth Circuit's Holding

The two judges of the Fifth Circuit's panel opinion agreed with the district court's application of the strict scrutiny standard and the two-prong test.⁽⁸²⁾ In addressing the first prong of the strict scrutiny test, the panel's opinion⁽⁸³⁾ addressed the two compelling state interests identified by the district court as justifying the racial classifications of the law school admissions process: racial diversity of the student body and to remedy the past present effects of past discrimination.

As to the first state interest, the panel opinion rejected racial diversity as a compelling state interest and discounted the Bakke decision as binding precedence.⁽⁸⁴⁾ The panel opinion held that "the use of race to achieve a diverse student body, whether as a proxy for permissible characteristics, simply cannot be a state interest compelling enough to meet the steep standard of strict scrutiny."⁽⁸⁵⁾ The district court's ruling to the contrary was reversed.⁽⁸⁶⁾

The court held that the use of race as a "plus" factor to obtain diversity had been "implicitly rejected" by the four concurring United States Supreme Court Justices,⁽⁸⁷⁾ and no other Supreme Court opinion since Bakke has supported the notion "that the state's interest in diversity constitutes a compelling justification for governmental race-based discrimination."⁽⁸⁸⁾ The panel opinion concluded that schools may use a number of non-test factors in their admissions decisions to "favor one applicant over another," however, the Fourteenth Amendment forbids the use of use race as one of those factors.⁽⁸⁹⁾

The court stated that attempts to diversify based on racial classifications further stigmatized racial groups, and assumed that one racial group shares a particular point of view, as a result, using racial diversity as a compelling governmental interest violated the Fourteenth Amendment.⁽⁹⁰⁾ The panel opinion concluded that the law school may never use race as a factor in their admissions process.⁽⁹¹⁾

In addressing the second compelling interest, the panel opinion decided that remedying the present effects of past racial discriminatory policies was also impermissible. The two appellate court judges held that by using the racially discriminatory policies of the state's primary and secondary schools to justify the law school's remedial program, the district court impermissibly expanded the remedy to address a "vague and amorphous" injury that had "`no logical stopping point.'"⁽⁹²⁾ The district court should have limited its review of past discrimination to the law school itself, and should not have considered the University of Texas system as a whole.⁽⁹³⁾ The court found that discrimination at the law school had since ended and was not a justification for the present admissions process.⁽⁹⁴⁾ Lacking a compelling state interest, the panel opinion found no reason to reach the second prong of the strict scrutiny test.⁽⁹⁵⁾

F. The Concurrence

The concurring opinion noted that the law school relied on Justice Powell's opinion in Bakke to support its argument that achieving racial diversity is a compelling government interest.⁽⁹⁶⁾ The concurrence pointed out, however, that the arguments set forth in Justice Powell's opinion in Bakke lacked support from the other appellate court justices.⁽⁹⁷⁾ Although appealing, these arguments were made by "extension of recent Supreme Court precedent," which was "both overly broad and unnecessary to the disposition of this case."⁽⁹⁸⁾

The concurring judge stated that "if Bakke is to be declared dead, the Supreme Court, not a three-judge panel of a circuit court, should make that pronouncement."⁽⁹⁹⁾ Citing Justice O'Connor's opinion in Adarand, the concurrence pointed out that the "death knell of affirmative action" has not been sounded--"especially not in the framework of achieving diversity in public graduate schools."⁽¹⁰⁰⁾ Justice O'Connor attempted specifically in Adarand "to dispel the notion that strict scrutiny is `"`"strict in theory, but fatal in fact"'"'"⁽¹⁰¹⁾ and "[w]hen race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies [the Court's] `narrow tailoring.'"⁽¹⁰²⁾

With little direction from the Supreme Court on how to define "compelling interest," the concurring judge saw little reason to "rush in where the Supreme Court fears--or at least declines--to tread."⁽¹⁰³⁾ Instead, the court should "assume" that diversity of enrollment in higher education is a compelling state interest and apply the "more discernible and less intrusive `narrow tailoring' precedent" suggested in Adarand.⁽¹⁰⁴⁾ Since the law school's 1992 admissions process singled out only two ethnic minorities, it resembled a "set aside" or "quota system" more than an academic admissions process, thus it was not narrowly tailored to accomplish the compelling interest.⁽¹⁰⁵⁾

In light of the law school's abandonment of the offending 1992 admissions procedure, the concurring opinion believed that the case should have been remanded to assess the remedy for the plaintiffs under the then-existing admissions process.⁽¹⁰⁶⁾ Judge Wiener's suggestion would have avoided defining the government's "compelling interests" and resolved the issue before the court. The two judges joining in the panel opinion failed to accept Judge Wiener's suggestion that "`[w]e judge best when we judge least, particularly in controversial matters of high public interest.'"⁽¹⁰⁷⁾

IV.  Diversity as a Compelling Government Interest

Race plays an integral part in the makeup of the legal system and the operation of society. It is usually an individual's race that shapes how they are treated, where they are accepted and what doors are opened to them. The history of segregation in this country has provided a life of denial of basic needs for blacks. The effects of racism are prevalent in today's society. The Hopwood decision ignores what is apparent in society today: race shapes who the black person is. The experience of racism and the denial of needs is a shared experience for blacks today. The Supreme Court has recognized this and continues to allow race-based classifications in education to play an important role in remedying the present effects of racial discrimination. By deciding that race can play no part in the admissions decisions at the University of Texas Law School, the Hopwood court not only denies the black community access to lawyers whom might best represent them, but they deny all law students access to the rich educational experience needed to better serve our diverse communities. The premise of Hopwood is flawed. Consideration of race must be viewed as a "compelling government interest."

A.  The Flaws of Hopwood

1.  The Supreme Court's Principles

Far from abandoning Bakke, as the Hopwood decision suggests, the Supreme Court has taken pains to ensure that lower courts understand that the Bakke rationale still applies. The concurring opinion of Justices Brennan, White, Marshall, and Blackmun in Bakke, recognized, however, that the right of the government to establish racial classifications in order to provide benefits in its programs (for benign and remedial purposes) is subject to possible misuse.⁽¹⁰⁸⁾ Consequently, the standard of review must be one of "intermediate scrutiny" rather than "strict scrutiny."⁽¹⁰⁹⁾ This recognition supports Justice Powell's Bakke opinion that race may be used as a "plus factor" in admissions decisions.⁽¹¹⁰⁾

United States Supreme Court pronouncements that have followed Bakke are also in accord. In Wygant v. Jackson Board of Education,⁽¹¹¹⁾ the Court found that a school board's preferential protection against layoffs of some of its employees based on their race or ethnicity may have had a valid purpose, but was not narrowly tailored so as to avoid offending the Equal Protection Clause of the Fourteenth Amendment. In her concurring opinion, Justice O'Connor observed that remedying present affects of past racial discrimination is a compelling state interest, even in the absence of "contemporaneous findings of actual discrimination," especially in the context of promoting racial diversity in higher education.⁽¹¹²⁾

Justice O'Connor noted that making racial diversity a compelling state interest was supported by two other justices on the Court, both of whom participated in the Bakke decision: Justices Marshall and Stevens. Justice Marshall, dissenting, stated "[w]ere I satisfied with the record before us [in Wygant], I would hold that the state purpose of preserving the integrity of a valid hiring policy--which in turn sought to achieve diversity and stability for the benefit of all students--was sufficient, in this case, to satisfy the demands of the Constitution."⁽¹¹³⁾ Justice Stevens, dissenting in Wygant, observed that in the context of public education, diversity provides benefits to the student body by allowing students to understand that differences in color, ethnicity, and background do not mean that there are "essential differences" between minorities and other students.⁽¹¹⁴⁾

Moreover, the Wygant plurality opinion indicated that the Bakke rationale was not about to be abandoned. Justice Powell, writing the plurality opinion of the Court and joined by Chief Justice Burger and Justice Rehnquist, distinguished hiring goals, which spread the burden of attaining racial equality and usually "foreclose[] only one of several opportunities" available to the injured party, from layoffs, in which "the entire burden of achieving racial equality" is shouldered by particular individuals.⁽¹¹⁵⁾ Justice Powell determined that hiring goals were the less intrusive and constitutionally permissible method of achieving racial equality. He cited the "school admission cases" as illustrative of the principles consistent with hiring goals and also constitutionally compatible with The Equal Protection Clause of the Fourteenth Amendment.⁽¹¹⁶⁾

The Adarand Court specifically observed that "[t]he unhappy persistence of both the practice and lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it."⁽¹¹⁷⁾ The Hopwood court simply ignored the "unhappy persistence" of Texas' legacy of racial discrimination in its graduate professional schools.⁽¹¹⁸⁾

Justice Powell's opinion in Bakke outlined the constitutionality of race-based admissions processes in higher education.⁽¹¹⁹⁾ The judicial principles of stare decisis, "to abide by, or adhere to, decided cases,"⁽¹²⁰⁾ and the traditional deference of lower courts to the opinions of the Supreme Court were disregarded by the Fifth Circuit's opinion in Hopwood.

2.  This Is Not a Simple Case of Racial Preferences

The Fourteenth Amendment does not preclude racial classifications, but guarantees equal protection of the laws. When classifications are made by race, courts have an obligation to strictly scrutinize the effects of the classification. Dean Erwin Griswold provided a simple syllogism in his essay⁽¹²¹⁾ discussing DeFunis v. Odegaard⁽¹²²⁾ to illustrate this fallacy:

Major premise. The Constitution is color blind. It forbids discrimination on grounds of race or color.

Minor premise. [Applicant] was denied admission because he is white.

Conclusion. The exclusion of [applicant] violated the Constitution.⁽¹²³⁾

Dean Griswold concluded that to subscribe to this syllogism is delusional and ignores history.⁽¹²⁴⁾ He concluded that the major principle was overstated, while the minor principle was understated.⁽¹²⁵⁾ Such an application of the law leaves no room for remedial measures that address the consequences of past discrimination. Dean Griswold noted that:

[the] major principle is overstated because the Constitution is not wholly color blind. It is an important element in [Herman] Sweatt's claim for admission to the University of Texas Law School . . . that he was black. He would have had to make a very different showing to get relief if he had been white. . . . DeFunis was not denied admission because he was white, simpliciter. The problem was much more complex than that. DeFunis was denied admission because, taking into account a considerable complex numbers of factors, including the fact that he was not a member of a minority group, a judgment was made that the overall structure of the first year class at the University of Washington law school would better apportion the opportunities of legal education and reflect the needs of the community if another were selected rather than he.

[I]t should be recognized that there is a complex number of factors in cases of this sort. . . . But this should not lead to the bald adoption of the syllogistic approach which simply ignores the difficulties, the nuances and the real problems in this area.⁽¹²⁶⁾

The Hopwood decision does not recognize the obligation of the law school to address the nuances and factors in admissions that provide for a class that exposes its students to a variety of life viewpoints. This exposure to different ideas provides the law student with a complete and well-rounded education. Plaintiffs Hopwood, Carvell, Elliott, and Rogers were not denied admission to the law school because they were white. Rather, they were denied admission because they offered no unique characteristics deemed sufficient by the school to further the educational process. This educational process carries over to practice. The exposure to a variety of ideas will better prepare students to represent a diverse clientele. Conversely, a diverse law school graduates a variety of attorneys from which the clientele may chose.

The Hopwood court did not recognize the law school's obligation to the community to produce legal representation of the community's choosing. The legitimacy of the black experience as a compelling government interest in legal education is a factor that must be acknowledged. The profession's obligation to not just educate lawyers, but to produce members of the bar who will meet society's diverse legal needs should be of critical concern to the state. To address this concern, courts must understand the shared experience of racism that blacks endure.

B.  The Shared Experience of Blacks

The Hopwood court dismisses the role of race as a diversifying characteristic in law school admissions, and holds that race does not affect an individual's point of view.⁽¹²⁷⁾ Therefore, the court finds, race is not viewed as a unique characteristic that contributes to the goal of achieving diversity in the academic setting.

This notion simply ignores the historical fact that sets blacks apart from all other racial groups in this country. Blacks have had the humiliation and injustice of slavery heaped upon them--first, as government policy, and now, as social baggage. Although this country was purportedly founded on the concept of equal opportunity for everyone, equal opportunity was not advocated for blacks in the Declaration of Independence or extended to them through the Constitution. As Justice Marshall poignantly reminded us in his concurrence in Bakke:

Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.

. . . .

The implicit protection of slavery embodied in the Declaration of Independence was made explicit in the Constitution, which treated a slave as being equivalent to three-fifths of a person for purposes of apportioning representatives and taxes among the States. . . . In their declaration of the principles that were to provide the cornerstone of the new Nation, therefore, the Framers made it plain that "we the people," for whose protection the Constitution was designed, did not include those whose skins were the wrong color. As Professor John Hope Franklin has observed, Americans "proudly accepted the challenge and responsibility of their new political freedom by establishing the machinery and safeguards that insured the continued enslavement of blacks."⁽¹²⁸⁾

The individual States likewise established the machinery to protect the system of slavery through the promulgation of the Slave Codes, which were designed primarily to defend the property interest of the owner in his slave. The position of the Negro slave as mere property was confirmed by this Court in Dred Scott v. Sandford, holding that the Missouri Compromise--which prohibited slavery in the portion of the Louisiana Purchase Territory north of Missouri--was unconstitutional because it deprived slave owners of their property without due process. The Court declared that under the Constitution a slave was property, and "[t]he right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States . . . ."⁽¹²⁹⁾ The Court further concluded that Negroes were not intended to be included as citizens under the Constitution but were "regarded as beings of an inferior order . . . altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect . . . ."⁽¹³⁰⁾

Black Americans have suffered as a group at the hands of the American government as no group ever has and, hopefully, ever will again. Slavery treated black men and women as chattel and property.⁽¹³¹⁾ The notion that blacks were unequal, although eventually abolished as legal fiat, persisted through racial discrimination and the segregation laws.⁽¹³²⁾ Those laws existed beyond the middle of this century, and their aftershocks are still being felt.

The isolation felt by blacks and other minorities was evidenced by the racial and ethnic neighborhoods that were spawned in this country.⁽¹³³⁾ For many blacks, the segregation of their neighborhood defined who they were. Life was defined in terms of the white community, and blacks had a sense of sitting on the outside looking in.⁽¹³⁴⁾ For blacks, there was a sense of less than full participation, and certainly less than full acceptance. Professor Ansley has described the white community's access to affluence, education and opportunity as "universality" or their view of civilization; while life for many blacks involved the boundaries of segregation, which denied them access to the center, putting them at the "margin."⁽¹³⁵⁾ Author Bell Hook, cited by Professor Ansley, provided both a view of what those at "the center" failed to understand and a description of the sustaining force of the black struggle for equality in this country.⁽¹³⁶⁾

To be in the margin is to be part of the whole but outside the main body. As black Americans living in a small Kentucky town, the railroad tracks were a daily reminder of our marginality. Across those tracks were paved streets, stores we could not enter, restaurants we could not eat in, and people we could not look directly in the face. Across those tracks was a world we could work in as maids, as janitors, as prostitutes, as long as it was in a service capacity. We could enter that world but we could not live there. We had always to return to the margin, to cross the tracks, to shacks and abandoned houses on the edge of town.

There were laws to ensure our return. To not return was to risk being punished. Living as we did--on the edge--we developed a particular way of seeing reality. We looked both from the outside in and . . . from the inside out. We focused our attention on the center as well as on the margin. We understood both. This mode of seeing reminded us of the existence of a whole universe, a main body made up of both margin and center. Our survival depended on an ongoing . . . private acknowledgment that we were a necessary, vital part of the whole.

This sense of wholeness, impressed upon our consciousness by the structure of our daily lives, provided us an oppositional world view--a mode of seeing unknown to most of our oppressors, that sustained us, aided us in our struggle to transcend poverty and despair, strengthened our sense of self and our solidarity.⁽¹³⁷⁾

The hopelessness that segregation generated cannot be overestimated. Life at the margin made blacks believe that some things were simply impossible for them to attain. General Colin Powell once recounted an old joke that was used in his black neighborhood and accompanied blacks' view of the opportunities created in a segregated society:

When I was growing up, in the late fifties and early sixties, black people would say "[w]hen a Negro is President," with all the awe and reverence of a born-again Christian saying "[w]hen Gabriel blows his trumpet and Jesus appears." A certain millenarian intonation, combined with the speaker's shining eyes, would force you to pause and marvel at the very idea. We knew we'd never live to see the day. "It'll be called the Black House then," the old joke would end.⁽¹³⁸⁾

The government's sanctioning of racial discrimination had such a profound impact that its residual effects are still being suffered in Texas. Racial and ethnic segregation remained in substantial degrees in Texas throughout the 1980s.⁽¹³⁹⁾ While Hopwood was being decided by the federal courts in Texas, the federal government continued to monitor the state's desegregation efforts in its institutions of higher learning.⁽¹⁴⁰⁾ Segregation has meant that black school children do not have the books, laboratories, and materials that are readily found in white schools. Segregation has also led to segregated faculties that deny black children the benefit of being taught by those who have been educated in the leading graduate schools and universities of the state. Segregation has meant more than just education in separate facilities; it was designed to ensure that the black education was inferior to that provided to white students. Segregation translated into an underfunded, understaffed, school experience that placed black students at a disadvantage when competing with their white counterparts later in life.

The concurring opinion in Bakke by Justices Brennan, White, Marshall, and Blackmun recognized the difficulty that black students face when trying to compete against the system of segregation that was designed and intended to make their struggle one that went uphill:

Since separation of school children by race "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone," the conclusion is inescapable that applicants to medical school must be few indeed who endured the effects of de jure segregation, the resistance to [Brown v. Board of Education], or the equally debilitating pervasive private discrimination fostered by our long history of official discrimination, and yet come to the starting line with an education equal to whites.⁽¹⁴¹⁾

The impact of segregation is a "shared experience," because blacks, unlike others who have come to the melting pot, were denied assimilation. A black person may learn the language, adapt to the culture and forget the heritages and customs of native lands, but skin tone always identifies the black individual as one who was subject to discrimination.⁽¹⁴²⁾ Although blacks may have different life experiences, different educational opportunities, and different familial surroundings from each other, blacks are consistently identified not as individuals, but as part of a race that was considered inferior.

Blacks have had a shared experience, are judged by each others' actions, and are measured by the same yardstick.⁽¹⁴³⁾ Blacks suffer, in one form or another, at one time or another, racism--prejudging, not the individual as an individual, but the individual as a member of his or her race.⁽¹⁴⁴⁾ Most blacks have a feeling of "catching-up" while simultaneously fighting the notion of many in the white community that they have come to the starting line with an unequal education.⁽¹⁴⁵⁾

Hopwood in finding that race does not impact an individual's viewpoint, not only ignores the obvious, but also minimizes the savage history of slavery and the degrading saga of segregation in this country. To argue that the circumstances that brought blacks to this country do not affect the isolation, hostility and skepticism that minorities face in law school today is to argue from a viewpoint that does not reflect reality.⁽¹⁴⁶⁾ To argue that choosing students based on race makes no more sense than making the choice based on an applicant's "physical size or blood type"⁽¹⁴⁷⁾ demeans the struggle and effort that blacks put forth every day in combating racism and discrimination. The Hopwood decision is a view from the center, without regard to life on the margin. The experience of the black race has been one of a denial of equal protection. Meanwhile, the experience continues.

C.  The Continuing Reality of Racism

The racism and discrimination generated by the Jim Crow laws of the South and the segregation practiced in this country are facts of everyday life.⁽¹⁴⁸⁾ The perception by whites that blacks are inferior, lack industriousness, and are simply dangerous is undeniably tied to historically denying blacks a status of equality.⁽¹⁴⁹⁾

Yet, there is a tendency to downplay the effects of racism, and sometimes its existence. Retired General Colin Powell recounted a newsletter that he received from a Republican friend that said that affirmative action should be discontinued because it is a response to "vague and ancient wrongs."⁽¹⁵⁰⁾ Powell responded by saying:

I almost went crazy, . . . Vague? Vague? Denny's wouldn't serve four black Secret Service agents guarding the President of the United States. The Chicago Federal Reserve Bank just told us something that any black could have told you--that it's harder to get a loan if you're black then if you're white. And we got [the Governor of California] Pete Wilson out there saying that affirmative action is bad because there are eight-tenths of one per cent more black students in the University of California school system as a result of fifteen years of affirmative action. This is the worst problem the country has? . . . If there is a program that is a "get over" program, then get rid of it. . . . But don't throw out the baby with the bath water.⁽¹⁵¹⁾

Racism is a sad fact of everyday life in America today. Blacks suffer discrimination in basic accommodations such as housing,⁽¹⁵²⁾ employment opportunities⁽¹⁵³⁾ and public services.⁽¹⁵⁴⁾ At the present, little in the American system has changed the circumstances of everyday life for blacks. Blacks are presented in political campaigns as objects of fear and ridicule,⁽¹⁵⁵⁾ as former President George Bush demonstrated in his 1988 presidential campaign against Michael Dukakis,⁽¹⁵⁶⁾ and as scapegoats in criminal investigations.⁽¹⁵⁷⁾ The trial of O.J. Simpson, a black former football star charged with killing his white, estranged wife, and the police investigation of the crime using an overtly racist detective, polarized this country along racial lines as no other judicial event in recent history.⁽¹⁵⁸⁾

This hostility is coupled with the fact that many black households suffer from the crushing burden of poverty, denying them independent access to basic resources that allow for stability and equality.⁽¹⁵⁹⁾ The poverty faced by blacks demonstrates "`the absence of amenities, books, newspapers, magazines, encyclopedias, health care, college funds, the kind of things that build the environment that move people toward upward mobility.'"⁽¹⁶⁰⁾ The economic discrepancies only exacerbate the differences between the races,⁽¹⁶¹⁾ thus blacks are further differentiated by social and economic class.

The sad fact is that many in this society believe that certain segments of our population do not belong in certain housing situations, employment,⁽¹⁶²⁾ public accommodations,⁽¹⁶³⁾ and even educational institutions.⁽¹⁶⁴⁾ Discrimination may take many forms, and may have many targets. For blacks, skin tone and social status serve as a double target for discriminatory acts.

The difference in treatment of blacks and whites is no more apparent anywhere than it is in the criminal justice system. In this country, a black defendant who kills a white victim is more likely to be charged with a capital crime and executed than any other racial combination of defendant and victim.⁽¹⁶⁵⁾ Indeed, the United States Supreme Court in McClesky v. Kemp,⁽¹⁶⁶⁾ noted that there was a risk of the improper use of race in the imposition of the death penalty, but that risk was part of the exercise of discretion by the prosecutor that is unique to our criminal justice system.⁽¹⁶⁷⁾ This exercise of prosecutorial discretion goes beyond the heinous crimes charged in death penalty litigation. Of the 5.1 million people either incarcerated, on parole, or on probation in the United States in 1994, almost 40% of them were black,⁽¹⁶⁸⁾ despite blacks making up only 12% of the population.⁽¹⁶⁹⁾ Poor minorities are the ones who receive the harshest sentences in this country because they do not have access to the best lawyers who know the system, and they lack the contacts that would provide them leniency in their treatment.⁽¹⁷⁰⁾

The largest disparity in the system's treatment of blacks is in the charging, prosecution and sentencing of users of "crack" cocaine versus powdered cocaine. An individual caught with crack cocaine receives the same punishment as a person caught with over 100 times as much powdered cocaine.⁽¹⁷¹⁾ It is black offenders who dominate the illegal trade in crack, while white offenders are more likely to use and traffic in powdered cocaine. As a result, black crack offenders face much harsher narcotics sentences.⁽¹⁷²⁾

Two friends and former colleagues of mine, a federal law-enforcement agent in the mid-Atlantic region and a federal prosecutor in the South, recently moved out of drug enforcement sections. In speaking with them, I was told that they not only had problems with the racial disparity in sentencing cases involving crack cocaine, but also had concerns with what appeared to be the federal government's reluctance to pursue white traffickers of powdered cocaine in their districts. The federal agent told me of the government's concern that while it seeks the longer prison sentences that crack cocaine brings, it is reluctant to go after powdered cocaine users who are usually well-connected, are professionals in the community, and have access to prominent defense attorneys who vigorously contest the prosecution. Thus, the black defendants are targeted for arrest and prosecution for the use of crack, while the white cocaine users are ignored.

It is doubtful that the federal sentencing guidelines were adopted with the express view of discriminating against black drug traffickers. But the perception of discrimination undermines efforts to include the black community in the mainstream of this country. The problems caused by racism also undermine confidence in the criminal justice system⁽¹⁷³⁾ and the legal system as a whole.⁽¹⁷⁴⁾

The stereotypes of blacks as law breakers or dangerous individuals fuel the problems in their treatment within the criminal justice system. As society remains segregated, however, it is difficult to combat the misperceptions of whites. Black stereotypes also persist about such characteristics as intellectual capabilities and work habits. These stereotypes creep into the educational system. More so than any other attribute that is ascribed to blacks, lack of intelligence is the most pernicious.

For young boys in the inner city, the presumption of stupidity comes into play early and never lets up. The consequences can be disastrous. Jack Kemp, former Housing Secretary and N.F.L. quarterback, said as much when he observed that, until only recently, black football players were universally regarded as too dumb to play quarterback. This example reduces racism to its most pernicious axiom: that brain work is "white" and brawn work is irrevocably "black."

That myth is deeply etched into the law and cultural iconography. It is the cornerstone of slavery and, later, of segregation, whose central premise was that blacks did not deserve education because they were too dense to absorb it. The simple minded darkie once so favored in the movies supported this view.⁽¹⁷⁵⁾

Blacks are often not given a chance at school to derive the benefits of education, because of a perception that they are not as qualified as their white counterparts. Hopwood indicated that because of lower LSAT scores, which in part made up the TI score, black applicants were "less qualified." Yet, the scores are often the product of a racially segregated system.⁽¹⁷⁶⁾ Blacks are sometimes not provided the tools to succeed, so they often do not have the measured criteria to show what they are capable of accomplishing. As society continues to deny them access to the education needed to succeed, some blacks are continually denied the opportunities of whites. Thus, we are constantly reminded that the vision of Brown v. Board of Education is an unfinished work.

D.  Diversity in Practice Is a Compelling Need

1.  Exposure to Diverse Groups Makes a More Effective Lawyer

Part of the lesson I teach in all of my classes is the need to listen and understand the arguments of those who pose views to which you are opposed. Initially, I let students know that the profession demands it--allow an adversary or any party to finish an argument before you respond to it. Second, listening to those you oppose makes you better prepared. You understand their positions and, with study and analysis, you determine how they are vulnerable to a thoughtful and considered response. Often a probing analysis and reflection may demonstrate the merit of their position. But homogeneity in school does not provide this approach to education.

By ensuring the diversity of a student body, the experience of racial prejudice can be shared with students who have not faced racial discrimination. Students are sensitized to customs and practices that are viewed as racist, and begin to see them from the point of view of the minority. Students start to understand the isolating effect of language that minorities not fluent in English may feel, and the importance and meaning of certain customs practiced by students of foreign, non-western countries. Students also start to understand the devastation of racial slurs on blacks.⁽¹⁷⁷⁾ This not only educates whites about minorities, but also educates different minorities about each other.⁽¹⁷⁸⁾

Students learn to communicate across boundaries that separate their experiences when they are exposed to individuals that have had a different life experience.⁽¹⁷⁹⁾ As the communication takes place and the students get to know each other as individuals, racial stereotypes are replaced with an understanding of the capabilities and weaknesses of students as individuals.⁽¹⁸⁰⁾ Students of diverse backgrounds begin to understand the arguments and the viewpoints of each other, making all students better equipped to enter the practice of law and to service a range of clients with differing viewpoints.⁽¹⁸¹⁾

2.  Diversity Provides a Foundation of Trust for the Judicial System

Public perception of the law and the judicial system are the linchpins of our system of government. Disparate treatment of traditionally underrepresented groups in the judicial system will undermine the legitimacy of the judicial process, and thereby compromise the proceedings.⁽¹⁸²⁾ The public observes who is represented in the judicial system and whether their views are fully appreciated by those who participate in the system.⁽¹⁸³⁾ An appearance of a range of views makes the system at least seem fair; if the perception is met, then justice is served.⁽¹⁸⁴⁾

In my first week as a prosecutor for the Office of Independent Counsel (OIC),⁽¹⁸⁵⁾ in spring 1991, I received a call from a target of an investigation who was black. He was "responding" to a grand jury subpoena that had been sent to him. At the time of the call, we had not met, and I informed him that he needed to have his defense counsel call me on his behalf. The purpose of the target's call was to convince me of the error of our investigation. As I refused to engage in the conversation, and continued to insist that contact be made through his counsel, the target yelled over the telephone, "Roscoe, you're a racist!"

I began to wonder if this defendant thought I was white. That suspicion grew when the office started to receive protests over the investigation of this target from congressional representatives and groups such as the NAACP, accusing me of being a racist for pursuing the investigation of this black man. The fact that I was the head of a federal investigation was enough for them to assume that I had to be white. After the defendant met me, and the case started down the road to trial, the lobbying to dismiss the criminal charges continued, but with a different tone. When it became clear that I was convinced of the merit of the investigation and the propriety of trial, I was confronted in the courtroom during a recess in the trial by the defendant who said to me: "You want to know what your problem is, Roscoe? You didn't go to any `black schools' so you don't understand black men like me."

The comment reminded me of how important it is for the public to see who is involved in the system, and to see a variety of individuals involved in the system who have been historically excluded. As this defendant made his public pleas of innocence, blacks were used to having the criminal justice system treat them unfairly. However, as the public realized that a black prosecutor was responsible for guiding the prosecution through the criminal justice system, it was less likely that the defendant was perceived as being mistreated because he was black.

Trust is the foundation of the judicial system, and people must believe that the system is fair. But trust is difficult to obtain when there appears to be a systematic exclusion of certain races and ethnicities--the same groups who have historically borne the brunt of the system's punishment.

Soon after I started at the OIC, I went to lunch with an OIC colleague and two Assistant United States Attorneys (AUSAs) from the District of Columbia. As my colleague and I mentioned that some of the OIC targets were black and the District of Columbia was the venue for some of our trials, the response we received from the AUSAs was one of derision and incredulity. The AUSAs informed us that the District of Columbia juries were overwhelmingly black in their make-up, and see mostly black defendants brought before the court. The AUSAs informed us that we would never get convictions in the District of Columbia, because the District of Columbia juries refuse to convict black white-collar criminals.⁽¹⁸⁶⁾ The jury reactions, of late, had been to acquit these defendants, even when presented with overwhelming evidence of guilt in response to what was viewed as nonimpartial treatment by the criminal justice system.⁽¹⁸⁷⁾

The view of the AUSAs was that, arguably, the District of Columbia criminal justice system lacked the public's trust, and that the integrity of the proceedings was therefore undermined.⁽¹⁸⁸⁾ By bringing diversity to the bar, not only will the perception of justice change, but the reality of justice will change. To a minority prosecutor, it may be more apparent when most, if not all, defendants brought in by law enforcement are minorities. If law enforcement officers are acting in a biased or discriminatory way, a minority prosecutor may be more likely to address the concern. If concerns about the treatment of minorities are the concerns of the public, the system benefits. The system, in order to sustain itself, needs the participation of diverse groups of attorneys in a variety of capacities. It is in the best interest of the government that its court system runs well, and with integrity. This should be a paramount, indeed "compelling," interest to the state.

3.  The Public Should Have a Choice in Attorneys

Those brought before the bar in criminal actions or who appear before the bar in civil concerns are usually involved in one of the most, if not the most, important matters of their lives. Unlike other disciplines in which the professional is sought to address matters that deal with the client herself, the nature of an attorney-client relationship seeks to affect how the client is viewed and treated by others. And, unlike other disciplines, the attorney is engaged to influence those who may decide a client's matter.

The analogies [of the attorney's role] to such roles as doctor and priest are fundamentally misleading. For unlike the relations defined by these roles, the lawyer-client relation is fundamentally impersonal and other-regarding. People seek legal assistance to affect the conduct of others. In the case of doctors and priests, the principal impact of the professional's activity occurs within the professional relation in the form of the change which the patient or penitent undergoes. But in the case of lawyers, the principal impact occurs outside the professional relation. The client benefits only to the extent that outsiders are affected.⁽¹⁸⁹⁾

Therefore, clients have more of an interest to hire an attorney who understands their background, arguments, hopes, causes, and aspirations than they would when visiting a doctor or other professional. It is incumbent on an attorney to forcefully, convincingly, and believably advocate a client's position, because often what is at stake is the client's reputation, home, livelihood, freedom or sometimes life. The attorney is called upon to have the client known and understood to a jury, judge or someone else who needs to be swayed toward the client's position. Advocacy is hampered if the attorney does not understand the client's predicament and struggles.

In the criminal justice system in this country, a black defendant may want to have his case in the hands of an attorney who is black and who may not only believe certain aspects of a defense or complaint, but may have either known someone with similar experiences or had the experience the client wants to relate. The black attorney may be more compelling in claims that involve discrimination, bias, police harassment, or any other type of case with racial or ethnic overtones, if the attorney recognizes the struggle that has been common to the race. The black attorney may be a stronger advocate because of the shared experience with the black client.

Other minorities may have similar concerns. Whether it is understanding a particular culture, the nature of personal relationships in a certain country,⁽¹⁹⁰⁾ understanding language barriers,⁽¹⁹¹⁾ or other facts that may pertain to how a jury, judge or opposing party reacts to a client who is a member of a minority group, the client should have the opportunity to engage an attorney who has experienced the bias and discrimination, if she or he wishes.⁽¹⁹²⁾

In addition to the attorney's effective representation of a client, the attorney must be trusted by the client to obtain useful information for his or her case. Often the client feels that an attorney of his or her background has a more sympathetic and understanding ear. This point was made by Dean Griswold:

The other important reason for assuring the presence of qualified minority students in law schools is that law schools are the sole points of entry to the bar in all but two states. Minority law consumers frequently are able to relate better to a member of their own race and are sometimes unwilling to confide in a member of another race and, therefore, do not utilize our legal system. However irrational some may perceive this minority to be in its attitudes, the attitudes are a fact of life which the legal structure of our country must face. Effective access to legal representation not only must exist in fact, it must also be perceived by the minority law consumer as existent so that recourse to law for the redress of grievance and the settlement of disputes becomes a realistic alternative to him. Communication with counsel is not only cognitive in nature; it also contains much which is affective. A woman talks to another woman differently and often communicates more than when she talks to a man, however trusted. The same is true of a black talking to a black, a Mexican-American talking to a Mexican-American and so on. Increasing the number of minority attorneys for these reasons is . . . [a] major factor in a law school decision to give consideration to the factor of race.⁽¹⁹³⁾

I do not propose that only black attorneys understand black clients, only women attorneys understand the legal problems of women, or that minorities need to hire attorneys of their own racial or ethnic background. Indeed, I believe that white attorneys can and do represent minorities effectively and sensitively. Nevertheless, if a person is being put on trial for his life, for example, the state and the bar have a moral and ethical obligation to provide adequate, effective representation.⁽¹⁹⁴⁾ This may include providing an attorney with whom the client is comfortable and who will understand the client's circumstances, and thus may be better able to advocate for him or her. With any matter that brings a person before the bar, the person should have access to an attorney of his or her choosing, and access to an attorney who can make the most effective argument possible. The state should have a "compelling interest" to provide that access.

This need for choice by no means is limited to minorities. Whites may also need to hire a minority attorney because a minority attorney may best serve a white person's interests. For instance, in criminal cases in which a white person is tried in a jurisdiction where members of juries are mostly minorities, a client may want an attorney who understands those who compose the jury. A business client who needs advice, counseling, and representation in doing business in ethnically or racially segregated areas, also may want an attorney who has lived and worked in the area.⁽¹⁹⁵⁾ In the criminal context, defense attorneys often must act as their own investigators. If a white client has a matter that involved witnesses or an investigation in a racially or ethnically segregated area, hiring an attorney who is a member of that ethnic or racial group may prove more advantageous to the client. I talked to an attorney who spoke of the difficulty of understanding the business culture of a Vietnamese client. In such a situation, the ability to associate with an attorney of Vietnamese background would make him a more effective and efficient counsel. Offering a choice of attorneys necessitates providing diversity within the ranks of lawyers. To ensure that its constituency has the legal representation that it wants, the state should ensure that its schools are producing a diverse class of attorneys.

As this country progresses and outgrows the myopia of racism and discrimination, it will become evident to all what is known to many of us now: black attorneys and other minority attorneys can effectively represent any and all types of clients in any field of law. But as long as this country is saddled with the narrow-mindedness that defines racism, in order to move beyond it, we must take race into consideration⁽¹⁹⁶⁾ when we seek redress of our problems in the current state of the legal system.⁽¹⁹⁷⁾

E.  Diversity in Legal Education Is Still a Need

The search for minority attorneys must start in law school classrooms. However, the inclusion of minorities in the law school does more than just add a face of color.

1.  The Quality of Legal Education for All Students Is Enhanced by Learning in a Diverse Classroom

Judge Dorothy Wright Nelson of the Ninth Circuit Court of Appeals commented on her experiences with diversity in law school at the University of California, Los Angeles, and later as dean of the law school at the University of Southern California (USC):

I found out, as we were expanding our own student body at USC, the richness of the discussion was elevated by having perspectives of people who had lived completely different kinds of lives, not because of their socioeconomic differences but because of their color or sex. Of course, this would spill over into family law, employment discrimination, sexual harassment, all of these areas where basically an all-white male student body didn't have the experience to enrich the discussion.⁽¹⁹⁸⁾

Having different perspectives in the class makes us better--as people, students and lawyers. I was teaching an Evidence class during my first year in academia when I posed a hypothetical involving a woman who had been battered by her spouse and sought shelter in a battered woman's shelter. The issue was whether that information was relevant to a case involving her murder allegedly committed by her husband a few months later. One white male student argued that it was irrelevant as evidence because we had no idea why the woman went to the shelter, and he glibly added "for all we know [the woman] may have gone there for a vacation or sauna or something."

I dismissed the comment with a terse remark regarding other evidence that would undermine such an argument, hoping that by giving such a comment a less than full response its vacuous implications would be left to sink of their own weight. Later, a woman who was in the class approached me, upset about the nature of the comment and the lack of a direct response by me as to the role of battered women's shelters, and the seriousness of the problem of battered spouses in this country. Her explanation concerning the scope of the problem and the role of these shelters made me realize just how callous the comment in class was and the inadequacy of my response--not from an evidentiary standpoint, but from an educational standpoint. At that point, I understood how classroom diversity moves students and teachers forward as lawyers and contributing members of society.

A class-long lecture on professionalism followed my discussion with this student. I explained to the students how our comments need to be measured by the potential scope of harm or offense they may take. The classroom, I stated, much like the courtroom, was not the place for sarcastic or facetious discourse to make a point. We cannot know the scope of the harm until we respectfully listen to those who have experienced and understood the suffering that we address. Not knowing the concerns or sympathies of an audience may, in turn, harm him or her as a practitioner and his or her client by offending someone who has sway over his or her case. Moreover, sensitivity to the plight of others is simply courteous behavior, even if you do not agree, or worse, do not understand. We must recognize the issue first, then we can understand it. Of course we cannot gain this understanding if a variety of groups are not represented in the classrooms.

This is now part of a lecture that I give to all of my classes. I believe that the presence of members of the group--women--who are the targets of such abuse and other forms of social misconduct that is so disproportionately aimed at their group, bring a viewpoint to the classroom that would be otherwise missed. We are better educated because of it. I soon learned the same lesson in my Criminal Procedure class.

As I took my Criminal Procedure class through the Fourth Amendment lessons of probable cause and police stops, I asked the class whether race could ever be a factor in making a stop. The class was reluctant to speak and was noticeably upset with my suggestion that race had indeed played a part in the probable cause analysis of some of the cases we were studying.⁽¹⁹⁹⁾ One Hispanic student described how she and her sister were stopped by a Chicago policeman while driving from the Chicago airport. This student and her sister were stopped and questioned about their destination and purpose in a non-Hispanic part of the city. This student's brush with the criminal justice system was due only to the color of her skin. This encounter with the law also began our discussion on whether race should ever be a factor in police stops knowing now that, in reality, it is a factor.

A black male student in the class let us know that he had a number of encounters with the police. The class was told how the stops usually entailed driving in the evening in an urban area. Although this student frequented the same areas as his white classmates, they had not experienced being stopped by the police.

What these minority students brought to the dynamics of our discussion was the proposition that their encounters with members of law enforcement were caused not by their conduct, as we had been learning, but by their skin color. It was something that was offered to their classmates in terms of an individual viewpoint; however, it was their "conception[] of life" as the Hopwood court described it,⁽²⁰⁰⁾ shaped by the color of their skin. It reminded the class that the system is run by humans who have their lives and viewpoints shaped by society and its history. For many in the class, it was the closest that they have been to a racially motivated act.⁽²⁰¹⁾ By hearing the experiences of classmates, whom they know and trust, and who are black and Hispanic, the misunderstandings that are the basis of racism and discrimination (hopefully) begin to dissipate.⁽²⁰²⁾

These discussions also brought out comments from non-minority classmates. One white female student told how her husband was from an Illinois town that set up a gate on a road that connected it to a predominately black city. The student told us how the police stopped all blacks who attempted to enter the town. A white male student offered a comment that once he and some other white friends pulled into a black area of St. Louis, Missouri, and were immediately approached by officers who suspected that they were there to buy drugs. The class became more animated as the Fourth Amendment was viewed through the eyes of those with a different perspective. Students who had never before had an encounter with police started to understand how the Constitution serves its citizens.

The class also had a black female who was a former police officer in a small midwestern town. Her views on law enforcement reflected a "law enforcement" predisposition and helped the class understand that not all blacks have the same point of view. The recognition of individuality by whites as they are exposed to black students, helps break down the stereotypes of blacks that have been perpetuated in our society. I do not believe most of the class was racially insensitive or unaware, and I do believe that the school is very comfortable with the diversity that it offers. Nevertheless, it was the viewpoint of the minority students that contributed to enrich the classroom discussion.

Representation of minority members who have suffered injustices at the hands of our legal system made for a more open, heartier discussion. Their point of view, although individually experienced, was shaped by their race. Ensuring that sort of conversation in law school classrooms requires taking race into account in admissions decisions.

Just as `two heads are better than one,' . . . two genders and many races and ethnicities in one profession [or one classroom] . . . increase the number and quality of ideas in circulation for solving legal problems and revising conventional taken-for-granted categories. . . . Any disruption of conventional and dominant group thinking must improve the quality of legal decision-making [and legal education].⁽²⁰³⁾

By providing diversity in the faculty ranks too, the school addresses the feeling of isolation and loneliness that accompanies minority students.⁽²⁰⁴⁾ Students search for role models with shared life experiences. Black faculty may be better able to steer black students toward opportunities in the legal profession that will address needs in their communities, or toward disciplines that may prove more fulfilling to a black attorney.⁽²⁰⁵⁾ By virtue of having a shared life experience, black faculty members may be able to provide insight on the legal profession to which a black law student is better able to relate. Moreover, just as the diversity of students enriches the classroom, a diversity of faculty enriches the curriculum.⁽²⁰⁶⁾ It also demonstrates to those who have not had exposure to competent professional minorities that the minority stereotypes that have possibly been part of their experience do not exist.

Diversity on the faculty also helps educate those on the faculty and those in the student body on the nature of their offending conduct and comments. It is the faculty who are there to educate and to teach from their experiences. When a minority student may be reluctant to bring sensitive matters to the attention of those in the ivory tower, a minority faculty member may be willing to pick up the gauntlet.⁽²⁰⁷⁾

The inclusion of minority students is more than just providing a classroom seat to someone who is unable to perform quality work. Minority students are capable and exceptional students. Often, however, in attempting to distinguish applicants, law schools place a disproportionate emphasis on the LSAT in making admissions decisions. That test is a poor prognosticator for minority achievement in law school.

2.  The LSAT Is an Inadequate Predictor of Success in Law School and Practice

In discussing this Article with a black law student at the University of Kansas, I learned that while she was applying to law school, she went to the admissions office to find out about the status of her application and learn about the admissions of other black candidates. In college, this student had maintained a 3.7 GPA in Engineering and Political Science, but had not fared well on the LSAT. The student recounted that when she entered the room for the standardized test she was overwhelmed by the fact that she was the only black person there. Although she went to a fully integrated college, when she confronted the reality of the profession that blacks were not represented in significant numbers, she performed poorly on the exam. However, she was reassured by the law school that other factors in her application would support her admission, and was told that she should not worry about her score. The student was then sent to a law school faculty member to discuss the small numbers of black students in the entering class. The faculty member told her that she should not complain, because her LSAT score indicated that she would at best be a "C" student and, in essence, the school was doing her a favor by admitting her.

There is little doubt that the professor's comment undermined the student's perception of hospitality at the school, and gave her the impression that the professors did not expect much from students who received LSAT scores in her range. Black law students often find that they enter an environment where they are "suspected, rather than respected, . . . [and] are not treated as legitimate members of the law school community."⁽²⁰⁸⁾

The student was eventually accepted at the University of Kansas, earned grades substantially higher than "C's," and is an active student leader. However, her perception that the law school was not expecting her to achieve was indelible. Moreover, the perception was wrong.

Brent Staples, a member of the Editorial Board of the New York Times, made a compelling point. He stated that:

In high school, I was an average student, with no plans for college. Providence appeared in the form of a professor from Widener University who talked me into going to college one afternoon on a street corner. I was accepted without taking the S.A.T.'s, but took them for ceremonial purposes. My scores were unimpressive, and the college was right not to care. Often the scores tell more about privilege than about "merit" or potential to succeed. I graduated 26th in a class of 370 at Widener, well ahead of many white prep-school kids who had done well on the S.A.T.'s. This black boy who was "not college material" went on to earn a Ph.D. at the University of Chicago. . . . When I was 17, the society spotted me a few points on the S.A.T.'s and changed my life. I became a writer--and middle class taxpayer--as many other black men went on to prisons, cemeteries and homeless shelters. Sounds like a smart investment to me. The country would be wise to keep making it.⁽²⁰⁹⁾

There is a danger in relying too heavily on the LSAT as a factor for admission to law school.⁽²¹⁰⁾ There is a tendency to equate a high score with a presumed qualification for admissions. The Hopwood majority made the presupposition that the University of Texas School of Law was admitting less qualified black and Mexican-American applicants based significantly on their LSAT scores. The disparity in education and financial opportunities offered to whites and blacks will be pronounced in a standardized test.⁽²¹¹⁾ The LSAT is not an accurate predictor of law school and professional success. As black students enter law school with lower scores than those of their white classmates, the expectations for them are lowered, again undermining their chances to feel comfortable in an environment that will allow them to excel.

Affirmative action programs that allowed schools to recruit and matriculate minority students offset some of this inequality. But these programs have come under increased attack,⁽²¹²⁾ with California recently passing Proposition 209, which ends all use of race, sex, or national origin as a basis for hiring in government jobs, awarding public contracts, or admission to the state's public schools.⁽²¹³⁾ White candidates often have other avenues for admissions available to them because of the connections and/or status of their friends or family members. Society has denied black candidates connections and influence through its use of segregation and racism. The difficulties for blacks and the advantages to whites are exacerbated when whites receive special treatment for school admissions because of their standing in the community.

Those who are wealthy, well-connected, and/or alumni of a school often will take the initiative to contact admissions offices to seek the admission of applicants with whom they have a relationship but who are not otherwise qualified.⁽²¹⁴⁾ The need to raise money encourages schools to give preferential treatment to the relatives and acquaintances of the wealthy, educated, and socially prominent.⁽²¹⁵⁾ These sort of avenues to education are effectively closed to most minorities because segregation and discriminatory practices have historically denied blacks and other minorities access to the education⁽²¹⁶⁾ that would help them to establish the sort of power⁽²¹⁷⁾ and connections⁽²¹⁸⁾ offered to those in the mainstream.⁽²¹⁹⁾ This preferential treatment of white candidates only continues the past vestiges of racial discrimination. As blacks were denied educational opportunities and employment opportunities, they were denied the contacts and avenues that would serve their children later. Whites, being afforded those opportunities, have taken advantage of the contacts that education has provided, and thus perpetuate the present effects of past discrimination, while blacks simply lack the access to do the same.

In the wake of attacks on affirmative action, the LSAT is left as the avenue into law school; however, the denial of wealth and meaningful employment has affected blacks in this area too.⁽²²⁰⁾ The LSAT places those at a lower socioeconomic strata at a disadvantage.⁽²²¹⁾ Thus, blacks are once again at a disadvantage when they are measured by this standardized score.

Although the standardized test has been recognized as a predictor of law school success,⁽²²²⁾ a look at the disciplinary actions in any state's published bar journal will demonstrate that standardized test scores and law school success do not necessarily translate into professional success.⁽²²³⁾ The test cannot measure an applicant's success in the legal practice as determined by "motivation, perseverance, interpersonal sensitivity, character integrity and social responsibility."⁽²²⁴⁾ Minorities are placed at a particular disadvantage in gaining access to the legal profession, not only because of the socioeconomic biases that are evident in the standardized test, but also their historic inability to obtain access to quality education before law school. The LSAT is simply an inaccurate measure of the abilities of minorities.⁽²²⁵⁾

Yet, it is their struggles and history that are needed in the classroom. It is their viewpoint as people who have traveled a different road that contributes to an in-depth education.⁽²²⁶⁾ The Hopwood decision makes this point when it states that "individuals, with their own conceptions of life, further diversity of viewpoint."⁽²²⁷⁾ But to ignore racism and segregation in determining diversity of viewpoint, makes a decision about diversity superficial at best, and pernicious at worst.

V.  Conclusion

The social justification for the Negro lawyer as such in the United States today is the service he can render the race as an interpreter and proponent of [the Negro race's] rights and aspirations.⁽²²⁸⁾

Charles H. Houston concluded in 1935 that there was a sufficient number of white attorneys available in the country to handle the ordinary legal business that arose, but the white lawyer "cannot be relied upon to wage to an uncompromising fight for equal rights for Negroes."⁽²²⁹⁾ As the battle over segregation raged in 1935, the black lawyer comprised only .007% of the total population of the country⁽²³⁰⁾ and the numbers of black lawyers were simply inadequate to address the legal concerns of the black population.

Although the problems of 1996 and 1997 are not as blatant and urgent as the problems of 1935, the battles being fought by the black individuals in this country are the same. While white attorneys are better equipped and are willing and able to carry on the battles in the courtrooms, it is the black attorney who has the stake in the battle. It is the black population who should be able to turn to a black attorney to advocate for their rights and aspirations.

In a country with 861,000 lawyers and judges, only 3.3% are black, while just 3% are Hispanic,⁽²³¹⁾ despite the fact that these minorities make up 12% and 8.8%, respectively, of the total population.⁽²³²⁾ In a nation of almost 249 million people,⁽²³³⁾ in which lawyers and judges⁽²³⁴⁾ make up approximately .346% of the country's population, black attorneys only make up approximately .0114% of the total population, and .095% of the black population.⁽²³⁵⁾ Hispanics, who comprise 3% of all of the attorneys in the United States, represent just .122% of the Hispanic population, and only .0107% of the total population of the country.⁽²³⁶⁾

Many of the battles of 1935 are still being waged in the minority communities, while new concerns arise. It is evident that the availability of minority attorneys to carry the message and represent the community is insufficient. The only means to ensure that the concerns and issues of the minority population are adequately addressed is to provide minority attorneys to these communities.

The low numbers of minority attorneys also indicate that the lessons of the law may not be fully incorporated into legal training. Law schools can only benefit from the incorporation of those who have had their viewpoint shaped by their race and ethnicity. The issues of race, ethnicity, and social background so permeate the law that a homogenous classroom will not provide the diverse education for which law schools should strive. The minority law students who provide this diversity have the intellect and capability for law school and practice.

A state's paramount concern should be the education of its future lawyers and the representation of its citizens. It affects the state's judicial system in such a profound way that the interest should be deemed "compelling." Indeed, the United States Supreme Court agreed. However, in Hopwood, a constitutionally inferior court has seen fit to find differently.

The Hopwood reasoning is flawed. The court's assumptions on the role of race, from the viewpoint of black individuals, are ill-conceived and its disregard of Supreme Court precedent is indefensible. Horace Mann understood over 150 years ago that to realize equality in this country, education must be made available to all people.⁽²³⁷⁾ Education is the great equalizer, and the fight for equality is the struggle that blacks in this country have long endured. The Fifth Circuit in Hopwood wrongly decided that the fight for equality is now over and is no longer worthy of the court's embrace.

* Associate Professor of Law at the University of Kansas; A.B., 1974, Brown University; J.D., 1977, University of Virginia. I would like to thank Christine M. Arguello, Barbara Allen Babcock, Donald T. Bogan, Henry N. Butler, Scott L. Fredericksen, Kathryn Kelly, David A. Logan, Philip C. "Flip" Kissam, and Joyce A. McCray Pearson for their comments and suggestions on this Article. I also would like to thank Amelia Kovar-Donohue, for her tireless efforts in assisting me with the research for this Article, and Michelle Rolfe for providing some of the background information used in the Article. The research for this Article was supported by the University of Kansas General Research Allocation #3306-XX-0038, and the Office of Research, Graduate Studies and Public Service at the University of Kansas.

1. Horace Mann, Twelfth Annual Report of the [Massachusetts] Board of Education 59-60 (1848).

2. Horace Mann (1796-1859) is renowned as the father of modern education. He graduated from Brown University in 1819, then became Secretary of the Board of Education for the State of Massachusetts.

3. 12 Stat. 1268 (1863).

4. 78 F.3d 932 (5th Cir.), cert. denied, 116 S. Ct. 2581 (1996).

5. See id. at 944-48.

6. See id. at 948.

7. 438 U.S. 265 (1978); see also infra notes 13-41 and accompanying text.

8. See infra notes 42-107 and accompanying text.

9. See infra Part IV.

10. See infra notes 108-45 and accompanying text.

11. See infra notes 146-95 and accompanying text.

12. See infra notes 196-235 and accompanying text.

13. See Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Board of Educ., 437 U.S. 483 (1954).

14. See Sweatt v. Painter, 339 U.S. 629, 631 (1950).

15. See id.

16. Sweatt v. Painter, 210 S.W.2d 442, 443 (Tex. App. 1948), rev'd, 339 U.S. 629 (1950).

17. See id. "Separate schools shall be provided for the white and colored children, and impartial provision shall be made for both." Tex. Const. art. VII, §§ 7, 14 (repealed 1969).

18. See Sweatt, 210 S.W.2d at 443. The suit was part of a systematic series of court challenges spearheaded by Marshall and the NAACP challenging the legality of the United States Supreme Court's holding in Plessy v. Ferguson, 163 U.S. 537 of "separate but equal" facilities for black citizens. See Sweatt, 339 U.S. at 635-36. The NAACP recognized that under the doctrine of "separate but equal," southern states such as Texas could demonstrate that their primary and secondary schools for blacks and whites were essentially the same type of educational facilities. Roger K. Newman, Black and Brown, 29 U.S.F. L. Rev. 635, 636-37 (1995).

Moreover, the southern states had established separate colleges for black students that arguably provided essentially the same education as the segregated white schools, and some colleges in these states had been integrated through court order. See Mary Ann Connell, The Road to United States v. Fordice: What is the Duty of Public Colleges and Universities in Former De Jure States to Desegregate?, 62 Miss. L.J. 285, 301-02 (1993). However, because the states did not provide graduate and professional school education for blacks, the states would either have to end their segregationist policies and admit blacks to their professional schools, or bear the crushing financial burdens of establishing graduate and professional schools for blacks that were "equal" to those established for whites. See id. at 302.

19. See Sweatt, 339 U.S. at 632.

20. See id.

21. See id.

22. See id.

23. See id. at 633. The Texas State Law School for Negroes had a faculty of five full-time professors, a student body of 23, a library of 16,500 volumes, and one alumnus who was a member of the Texas bar by the time of oral arguments on the case in 1950. See id. In comparison, the University of Texas Law School had a student body of 850, a faculty of 19, some of whom were nationally recognized scholars, a library of 65,000 volumes, facilities for a student law review and moot court, scholarship funds to make the school financially feasible for students, and Order of the Coif affiliation to add prestige to those graduating. See id. at 632. Moreover, the Law School also was the alma mater of some of the most distinguished members of the Texas bar. See id.

24. Id. at 634.

25. See Sweatt, 339 U.S. at 634.

26. 339 U.S. 637 (1950).

27. See id. at 640.

28. See id. at 641.

29. See id.

30. 347 U.S. 483 (1954).

31. 438 U.S. 265 (1978).

32. See id. at 274. Minorities included blacks, Chicanos, Asians and American Indians. See id. In 1973, the school reserved the class slots for those students who were "economically and/or educationally disadvantaged." Id.

33. See id. at 276.

34. See id. at 277-78.

35. See id. at 321-22. Chief Justice Burger, along with Justices Stevens, Stewart, and Rehnquist joined Justice Powell in creating a five-to-four majority for this holding. See id. at 271, 320, 408-09 (Stevens, J., concurring in the judgment in part and dissenting in part).

36. Id. at 317 (Powell, J., for a plurality). Justices Brennan, White, Marshall, and Blackmun joined Justice Powell to create a five-to-four majority for this holding. See id. at 324 (Brennan, J., concurring in the judgment in part and dissenting in part).

37. See Bakke, 438 U.S. at 412 (Stevens, J., concurring in the judgment in part and dissenting in part).

38. See id. at 325-26 (Brennan, J., concurring in the judgment in part and dissenting in part).

39. See id. at 326 (Brennan, J., concurring in the judgment in part and dissenting in part).

40. Id. at 326-27 (footnote omitted) (Brennan, J., concurring in the judgment in part and dissenting in part).

41. For example, one such program used by schools (race-based scholarships) was designed to make institutions more financially accessible and attractive to minority applicants. But this form of affirmative action was held by the Fourth Circuit to violate the Fourteenth Amendment. See Podberesky v. Kirwan, 956 F.2d 52 (4th Cir. 1992).

42. See Hopwood v. Texas, 78 F.3d 932, 935 (5th Cir.), cert. denied, 116 S. Ct. 2581 (1996).

43. See id.

44. See id. The LSAT score was considered a "better predictor of success in law school," thus it was given a weight of 60% of the TI, while the GPA was afforded a factor of 40% for the students entering in 1992. See id.

45. See id. The admission committee looked at this other information to evaluate such non-quantifiable factors as the overall strength of the applicant's college education, his or her background and life experiences, and any other factors that would otherwise predict the candidate's likelihood of success and attractiveness to the school. See id.

46. See id. Those in the presumptive admit category were reviewed by law school admissions administrators, and while most were admitted, some were downgraded to the discretionary zone because of perceived weaknesses in their undergraduate education. See id. at 935-36. Those in the presumptive deny category went through a similar review for indications of ability to compete based on the rigors of an undergraduate education that were not reflected in the TI, but most were then rejected. See id. at 936. Those in the middle discretionary zone received the most scrutiny. The scrutiny involved review of the non-quantifiable factors not taken into consideration by the TI.

47. See id. at 936 n.4.

48. The discussion of the Hopwood opinion will, for ease of reading [and writing] refer to the Mexican-American and black candidates as "minorities," although the University of Texas recognized five other ethnic minority classifications on their applications. Hopwood, 78 F.3d at 936 n.4 Only the Mexican-American and black applicants were provided with preferential treatment, however, in terms of the law school's admissions process; all other ethnic minorities were reviewed together with Caucasian applicants. See id.

49. See id. For example, in 1992, the "presumptive admit" category had a cutoff TI score of 199 for non-minority candidates, and a cutoff of 189 for those applications that went through the minority subcommittee. See id. at 937. The "presumptive denial" TI score for non-minority candidates was 192, while the cutoff for minority candidates was 179. See id. Out of the pool of resident applicants who fell within the TI range 189-192, inclusive, 100% of blacks and 90% of Mexican-Americans, but only 6% of whites, were offered admissions. See id.

50. See id. at 936.

51. See id. at 937-38.

52. See Hopwood v. Texas, 861 F. Supp. 551, 561-62 n.25, 37 (W.D. Tex. 1994), aff'd, 78 F.3d 932 (5th Cir.), cert. denied, 116 S. Ct. 2581 (1996).

53. See id. at 564. Hopwood applied to the law school with a 3.8 GPA, from Montgomery County Community College and California State University in Sacramento, and an LSAT score of 39, which gave her a TI of 199, placing her in the "presumptive admit" category. See id. Hopwood was a certified public accountant, active in the Big Brothers/Big Sisters organization, and cared for her handicapped child. Her file, however, lacked letters of recommendation and a personal statement. See id. The admissions committee chair moved her application to the discretionary zone after a subsequent review because the poor quality of her undergraduate curriculum overstated the strength of her GPA. See id. Elliot received a 2.98 GPA in accounting from the University of Texas, and scored 167 on the LSAT. See id. at 565. He worked as a certified public accountant, and had two letters of recommendation and a personal statement in his application file. See id. Elliott was assigned a TI score of 197. See id. Carvell was assigned a TI of 197, based on his GPA of 3.98 from Hendrix College and his LSAT scores of 34 and 164. See id. at 566. Carvell's two LSAT scores placed him in the 61st and 91st percentile respectively. His TI was adjusted to reflect the average of the two scores. See id. at 566 n.47. Carvell's file included three letters of recommendation, including one from a college professor who described his performance as mediocre, but complimented Carvell for his intellectual abilities. See id. at 566. Rogers attended the University of Texas as an honors student in college, but was dismissed from the honors program for poor academic performance. See id. at 567. He later received an undergraduate degree from the University of Houston-Downtown and an advanced degree from the University of Southern California. See id. He had a 3.13 GPA for his college work and scored 166 on the LSAT, however, his file contained no letters of recommendation. See id.

54. See id. at 561-62 nn.25 & 37.

55. See id. at 564-65.

56. See id. There was some evidence that Elliot was re-evaluated and placed on the waiting list after he was originally denied admission. See id. at 565-66. Carvell was originally placed on the waiting list, however, later he was denied admission. See id. at 566.

57. See id. at 553. The plaintiffs were seeking declaratory relief and damages under the Equal Protection Clause of the Fourteenth Amendment. See Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (1994); Civil Rights Act, 42 U.S.C. §§ 1981, 1983 (1994).

58. See Hopwood, 861 F. Supp. at 583.

59. See id. at 582 n.87.

60. See id. at 579-82. The plaintiffs failed to prove that their denial of admission was based on anything other than their general lack of competitiveness, and therefore could not recover punitive damages. The court ordered that the plaintiffs be allowed to reapply to the law school without payment of the admissions fee and awarded them one dollar each in damages. See id. at 585.

61. See Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 116 S. Ct. 2581 (1996).

62. See Hopwood, 861 F. Supp. at 554.

63. Id.

64. See id. The district court found that blacks and Mexican-Americans in Texas were at a lower socioeconomic status living in Texas, and were therefore provided inferior education under the state segregation laws. This accounted for the lack of academic attainment, and made the minorities less attractive, statistically, to law schools and other graduate schools. See id. Even after court and government intervention, Texas provided a hostile and segregated environment for its minority students at its institutions of higher learning. The district court noted that after the Supreme Court's 1950 ruling ordering Herman Sweatt's admission to the University of Texas Law School, he "left the law school in 1951 without graduating after being subjected to slurs from students and professors, cross burnings, and tire slashings." Id. at 555. In the 1950s and 1960s, Mexican-American students at the University of Texas were housed in segregated dormitories and denied membership in most university-sponsored organizations. Until the mid-1960s, blacks were precluded by the policy of the State Board of Regents from residence or visitation privileges in white dormitories at the University. See id.

65. In the 1970s, the federal government, initially through the Department of Health, Education and Welfare, and later the Department of Education and its Office for Civil Rights (OCR), investigated and addressed the lack of bona fide desegregation efforts in Texas' system of higher education. See id. at 555. The Texas system of higher education in 1978 and 1980 was found to have a significant underrepresentation of Hispanics. See id. at 556. Following this finding, Texas negotiated with the OCR to develop the "Texas Plan" to remedy the deficiency; however in 1982, the federal government found the numbers of blacks and Hispanics that were targeted to be enrolled insufficient, and a revised plan was developed. See id. The revised plan was found deficient, therefore, in 1983, the United States District Court for the District of Columbia ordered that the United States Department of Education begin enforcement proceedings against Texas. See id. A new plan, in response to the court's order, included a suggestion that each graduate and professional school consider each candidate's entire record and admit "`black and Hispanic students who demonstrate potential for success but who do not necessarily meet all the traditional admissions requirements.'" Id. This plan was adopted by Texas and accepted in June 1983 by the OCR, then subsequently redeveloped into a successor plan with the stated goal of a commitment to increased black and Hispanic enrollment. See id. at 556-57.

66. Id. at 557.

67. Id. at 569; see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (O'Connor, J., for a plurality).

68. Hopwood, 861 F. Supp. at 569 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274 (1986)).

69. See id. at 569-70. The compelling government interests were set out in the law school's "Statement of Policy on Affirmative Action." The five interests were: (1) providing access to a first class legal education to Mexican-Americans and African-Americans, the largest minority populations in Texas; (2) achieving diversity of background and experience in its classrooms; (3) redressing educational and racial discrimination in the public school systems in Texas; (4) complying with the 1983 consent decree entered with the Department of Education to increase the representation of African-American and Mexican-American students; and (5) complying with the American Bar Association and the American Association of Law Schools standards for diversity in law schools. See id.

70. Id. at 571.

71. Id. at 573.

72. See id. at 570-73.

73. See id. at 571-73.

74. See Hopwood 861 F. Supp. at 573.

75. See id.

76. See id. at 578.

77. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978) (Brennan, J., for a plurality). Race can be a "plus" factor in admissions decisions, however, the applicants' race and/or ethnicity should "not insulate the individual from comparison with all other candidates for the available seats." Id. (Powell, J., for a plurality). Thus, by lowering the TI cutoff score for minority applicants, the law school, in essence, provided those applicants with a permissible "plus factor" in assessing their applications.

78. Hopwood, 861 F. Supp. at 578.

79. See id. at 578-79.

80. See id. at 581-82. This factor, among others, contributed to the nominal damage award made by the district court. See id. at 582-83.

81. See id. at 582.

82. The panel opinion cited Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2111, 2117 (1995), which involved an action brought by a subcontractor challenging a federal program designed to provide highway contracts to disadvantaged businesses. The Adarand Court held that the racial classifications must be strictly scrutinized by courts through the use of a two-prong inquiry: first, a compelling government interest must be identified for the racial classification, and, second, the racial classification must be narrowly tailored to further that interest. See id. at 2117. Recognizing that racial discrimination persists, the Court remanded the case to the lower court to determine whether the racial classifications were "compelling" and if the subcontractor clauses calling for racial preferences were "narrowly tailored."

83. Judge Smith wrote the majority opinion, joined by Judge Wiener. See Hopwood v. Texas, 78 F.3d 932, 934 (5th Cir.), cert. denied, 116 S. Ct. 2581 (1996). Judge Wiener filed a concurring opinion. See id. at 962 (Wiener, J., concurring).

84. See id. at 948.

85. Id. (footnote omitted).

86. See id.

87. See id. at 944. The Justices included Brennan, White, Marshall, and Blackmun. See id.; see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 326 n.1 (1978) (Brennan, concurring in the judgment in part and dissenting in part).

88. Hopwood, 78 F.3d at 944-45.

89. Id. at 946.

90. See id. at 946-48.

91. See id. at 962.

92. Id. at 950 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275 (1986)).

93. See id. at 951-52. The court, quoting Podberesky v. Kirwan, stated that "`mere knowledge of historical facts'" that gives the school its "bad reputation" as a white school that is hostile to minority students does not justify a racial remedy, and the hostile environment is the result of present societal discrimination, not past. Id. at 952-53 (quoting Podberesky v. Kirwan, 38 F.3d 147, 154 (4th Cir. 1994)).

94. See Hopwood, 78 F.3d at 953.

95. The case was remanded to the United States District Court for assessment of damages suffered by the plaintiffs. See Janet Elliott, Landmark Texas Race Suit Heats Up in Round Two, The Recorder (San Francisco, CA), Nov. 25, 1996, at 1, 9.

96. See Hopwood, 78 F.3d at 963 (Wiener, J., concurring).

97. See id. (Wiener, J., concurring).

98. Id. (Wiener, J., concurring).

99. Id. (Wiener, J., concurring).

100. Id. at 963-64 (Wiener, J., concurring) (footnote omitted).

101. Id. at 965 n.19 (Wiener, J., concurring) (quoting Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2117 (1995) (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in judgment) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 362 (1978) (Brennan, J., concurring in the judgment in part and dissenting in part) (quoting Gerald Gunther, The Supreme Court 1971 Term--Forward: In Search of a Evolving Doctrine on a Changing Court: A Mod