HOPWOOD v. TEXAS 78 F.3d 932 (5th Cir. 1996)

Lawyers and policymakers have long looked to Justice lewis f. powell, jr. 's, solo opinion in regents of the university of california v. bakke (1978) as a guide to creating and administering affirmative action programs. The continuing import of Powell's opinion was questioned by the U.S. Court of Appeals for the Fifth Circuit in Hopwood v. Texas, where the court invalidated the University of Texas School of Law's affirmative action program and declared that Powell's "lonely opinion" was not binding precedent.

The law school adopted separate, segregated evaluation processes for white applicants on the one hand, and African American and Mexican American applicants on the other. Under this system, the law school admitted African American and Mexican American applicants with lower Law School Aptitude Test scores and college grade point averages than white applicants. Four rejected European American students brought suit against the law school, claiming the evaluation practices amounted to racial discrimination in violation of the fourteenth amendment that could not be justified under strict scrutiny.

The law school defended its program in part as necessary to insure a diverse student body—a goal Powell had characterized in Bakke as a compelling state interest. The Fifth Circuit rejected the diversity argument, noting that Powell's opinion was not joined by other Justices and that subsequent Supreme Court opinions held that race-based affirmative action could only be justified to remedy prior discrimination by the relevant state entity. (The one exception, metro broadcasting, inc. v. fcc (1990), was judged under a lower standard of review subsequently held to be inappropriate by the Court.) Although the law school offered a remedial justification for its program, the Fifth Circuit ruled that there was no record evidence of discrimination against the preferred minority groups by the law school to warrant a remedy.

The Supreme Court declined to hear the case, with two Justices noting that the case had become moot. Nevertheless, Hopwood became a symbol both of the mounting hostility to race-based affirmative action in the 1990s and of the judicial activism of conservative judges appointed to the federal bench by Republican Presidents ronald reagan and george h. w. bush.

Adam Winkler
(2000)