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Texas Lawyer, May 25, 1998: "Hopwood Appeal Focuses on Future Without Racial Prefe... Page 1 of 4

TEXAS LAWYER, May 25, 1998

Hopwood Appeal Focuses on Future Without Racial Preferences

By JANET ELLIOTT

With evidence in the record about the effects of Hopwood v. Texas on minority enrollment at the University of Texas School of Law, lawyers representing the state plan to keep the focus on a future without affirmative action during the corning round of appeals.

"The results have been at least as dire as we predicted at the first trial if not more so," says Betty R. Owens, a partner in Houston's Vinson & Elkins who has been representing the law school in the case since the 1994 trial.

The injunction against the use of racial preferences issued in March by U.S. District Judge Sam Sparks of Austin put Hopwood in direct conflict with the U.S. Supreme Court's 1978 decision in California Board of Regents v. Bakke, which also involved an injunction against the use of racial preferences. The court reversed that injunction issued by a California judge, finding that the state did have a substantial interest in devising an admissions program that considers applicants' race and ethnic origins.

"The focus of the injunction is entirely on the future," says University of Texas Associate Dean H. Douglas Laycock, who also is representing the law school. "Everyone always understood the future was at issue, but this fills in the technical prerequisite."

Sparks issued the injunction as part of his ruling on damages suffered by the white plaintiffs who allegedly weren't admitted to the school because of their race.

The lawyers say they no longer will make any pretense at defending the troublesome specifics of the 1992 admissions program, which used color-coded files to segregate applicants by race and separate

committees to screen applications from whites and minorities. The law school changed its admissions procedures to eliminate the use of separate screening committees shortly before Hopwood went to trial in 1994.

"The original program was abandoned. We're not trying to defend that," says Owens. "What we are appealing now is the injunction against considering the race of applicants in perpetuity."

Morales Bows Out

In addition to presenting a clearer issue for the U.S. Supreme Court, the law school has another bonus during this round of appeals - the absence of Texas Attorney General Dan Morales. On April 30, 1996, the day the state filed its petition for a writ of certiorari in the Supreme Court arguing in favor of affirmative action, Morales, who was leading the appeal, held a press conference decrying the use of affirmative action as racial discrimination.

The other lawyers representing the law school were stunned. Opposing counsel used Morales' statements to argue that Hopwood did not present an appropriate case for the high court to resolve the issue of affirmative action in higher education.

The court on July 1, 1996 declined to hear the case. The only explanation carne from Justices Ruth Bader Ginsburg and David Souter, who wrote that the court "must await a final judgment on a program genuinely in controversy before addressing the important question" raised by the state.

After Sparks' injunction opened the door for another run at the Supreme Court, Morales refused to use his office to appeal Sparks' injunction and rulings on the 1997 retrial of damages suffered by Cheryl Hopwood and three other plaintiffs. He is allowing Vinson & Elkins to pursue the appeal.

"This time we will not have a lawyer disavowing the stated positions we take in our legal papers," says Laycock.

Morales also is coming in for criticism for saying that he found no legal grounds upon which to base an appeal seeking to reimpose race-based decision making at Texas institutions of higher education.

Michael A. Olivas, a professor at the University of Houston Law Center who has written about Hopwood, says he wonders why Morales tried to appeal to the Supreme Court in 1996, given his recent comments.

"Why did he spend all that time hiring Larry Tribe to write his brief?" asks Olivas. "Why in the hell did he go through all those exercises?"

Laurence H. Tribe, a leading constitutional law professor from Harvard Law School, was counsel of record on the cert petition. An assistant to Tribe said May 19 Tribe was too busy to comment on the law school's latest appeal.

Olivas says he told the Vinson & Elkins lawyers in 1996 that the Supreme Court would not hear the state's appeal of a ruling by a panel of the 5th U.S. Circuit Court of Appeals. Circuit Judge Jerry E. Smith, writing for a two-judge panel majority, had ruled that the law school could not continue using racial preferences, but did not issue an injunction.

"There is an issue to appeal now," says Olivas. "Morales has gotten it completely backwards."

Not a Normal Case

The fact that a Democratic attorney general declined to fight for affirmative action and a board of regents dominated by appointees of Republican Gov. George W. Bush voted to appeal shows how strange the Hopwood case has become. Nobody knows that more than Stephen W. Smith, the Austin lawyer who filed the Hopwood case.

"There are no new arguments to be made that weren't made before," says Smith, a solo practitioner who works part time for a bankruptcy trustee. "You'd expect a ruling from the same court to be the same. But this is an unusual case. The court can change its mind and we basically don't have any recourse.

Smith, who represents plaintiffs Kenneth Elliott and David Rogers, did not object to the state's 1996 appeal to the Supreme Court. He was hoping the court would use Hopwood to strike down affirmative action in higher education nationwide.

But Smith says he may take a different position this time. He particularly is worried about the case being heard by the 5th Circuit en banco In 1996, seven 5th Circuit judges were barely outvoted on calling an en banc hearing of the panel's ruling. The dissenters criticized the panel for "overruling Bakke."

"An en banc hearing is only a downside for us. The only thing we can do is lose. We can't win any more than we've already won [at the 5th Circuit]," says Smith.

Smith says he should have objected at last year's retrial to the law school putting in evidence about the dramatic drop in minority applications in the

irst year without affirmative action. There were only four African-Americans who started law school last fall compared to 31 in 1996. Entering Mexican-American law students dropped to 26 from 42 a year earlier.

Last month, Smith argued another reverse discrimination case at the 5th Circuit. He is appealing a summary judgment in favor of the state granted by U.S. District Judge James Nowlin of Austin. Smith is representing a white man who was denied admission to an education doctoral program at UT.

Hopwood and Douglas Wade Carvell, the other two Hopwood plaintiffs, are represented by the Center for Individual Rights. Michael Rosman, general counsel for the Washington, D.C.-based CIR, says it is likely that Theodore Olson will rejoin the case for the appeal. Olson, a partner in the Washington, D.C., office of Gibson, Dunn & Crutcher, argued the case at the 5th Circuit in 1995 and fought the cert petition at the Supreme Court. Olson is a noted conservative who is a former law partner of Whitewater independent counsel Kenneth Starr.

The plaintiffs are appealing Sparks' March ruling that said they would not have been admitted even in a race-blind admissions process. The judge awarded only $1 in damages to each of the plaintiffs. Hopwood and Carvell had sought more than $2 million in damages. Hopwood is working as an accountant in Maryland. Carvell attended Southern Methodist University School of Law and now works as an associate at Dallas' Bickel & Brewer. Elliott and Rogers sought much less in damages.

Sparks slashed in half the $1.5 million in fees requested by the plaintiffs lawyers, finding that the case had been overstaffed and some of the fee requests were padded.

Thomas D. Russell, a professor of law and history at UT, says he is amazed that Morales passed on the chance to appeal the attorneys' fees. Owens, the Vinson & Elkins lawyer, says the state will argue that the plaintiffs attorneys should get nothing because of the limited relief they obtained for their clients.

"It's very possible -likely even - that the plaintiffs attorneys may end up with nothing in fees after the appeal," says Russell. "I'm hard-pressed to see why Attorney General Morales is willing to just give up on more than three-quarters of a million dollars when we can say to Hopwood's lawyers, 'How 'bout nothin'? "

Hopwood already has been a big financial boon to the CIR. An article in the February issue of the ABA Journal reported that donations have been pouring into CIR, which also has sued over affirmative-action programs at the Washington School of Law and the University of Michigan. According to the article, corporate donors include Archer Daniels Midland Corp., Chevron USA, Adolph Coors Foundation, Philip Morris Coso and USX Corp. Law firms contributing to CIR include Gibson, Dunn and Dallas' Akin, Gump, Strauss, Hauer & Feld.

But Texas law firms also are lining up in support of affirmative action. Morales has been asked to approve Dallas' Carrington, Coleman, Sloman & Blumenthal to work with Vinson & Elkins. Owens says other law firms also have offered to help on the appeal.

A spokeswoman for Vinson & Elkins says the firm has donated $1.9 million of legal work to the state in defending Hopwood since 1994.