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If I were to describe the [University of Texas] environment, I would not suggest that it is racist. But it is extremely ignorant and naïve. This is even more dangerous because both of these are fodder for racism and racists. People have no clue about what I’m going through. . . . When I am asked to recruit or give an interview and people ask about UT, I feel as if I am asked to say that racism or problems don’t live here. But they do in many different forms. And I won’t stop saying that they don’t until UT is a place for all students. —Marlen Whitley, an African American graduate of the University of Texas School of Law, 2001 Epilogue OnSeptember29,1992,twowhiteTexans,CherylJ.Hopwoodof UniversalCityandStephanieC.HaynesofAustin,filedalawsuitinU.S.District Court against the University of Texas School of Law, charging that they were being denied the constitutional guarantee of equal protection under the law after the UT Law School rejected their applications while admitting what Hopwood and Haynes argued were less qualified African Americans. Both women claimed that they met the law school’s admission requirements and “would have been admitted to the UT law school this fall were it not for preferential admission policies that give special treatment to blacks and Hispanics.”1 OnAugust19,1994,JudgeSamSparksissuedhisrulingintheHopwood case: “The court holds that the aspect of the law school’s affirmative action program giving minority applicants a ‘plus’ is lawful. . . . Although under current law the goal of diversity is sufficient by itself to satisfy the compelling governmental interest element of strict scrutiny, the objective of overcoming past effects of discrimination is an equally important goal of the law school’s affirmative action program.” Sparks also found that “a statistical analysis of the 1992 admissions Epilogue 151 data supports the defendants’ assertion of the non–race based weakness in the plaintiffs’ applications.” “Therefore,” Sparks wrote, “the court finds the defendants have not met the burden of producing credible evidence that legitimate, nondiscriminatory grounds exist for the law school’s denial of admission to each of the four plaintiffs and that, in all likelihood, the plaintiffs would not have been offered admission even under a constitutionally permissible process.” Sparks foundthattheplaintiffshadnotproventhattheyhadincurredanyactualdamages other than the cost of applying to law school, so he ordered that the plaintiffs be allowed to reapply to law school without incurring further administrative costs. The court also awarded each plaintiff “nominal damages of one dollar.” The plaintiffs appealed. On March 18, 1996, a clerk of the appellate court in New Orleans read the eighty-one-page opinion of the U.S. Court of Appeals for the Fifth Circuit in Hopwood, et al., v. State of Texas, et al. By a vote of two to one, the court overturned Sparks’s ruling: “We agree with the plaintiffs that any consideration of race or ethnicity by the law school for the purpose of achievingadiversestudentbodyisnotacompellinginterestundertheFourteenth Amendment.” The opinion concluded, “In sum, 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. These latter factors may, in fact, turn out to be substantially correlatedwithrace,butthekeyisthatraceitselfnotbetakenintoaccount.Thus, that portion of the district court’s opinion upholding the diversity rationale is reversiblyflawed.”InAugust1996,TexasAttorneyGeneralDanMoralesadvised Texas colleges and universities to operate on a race-neutral basis. He interpreted the Hopwood ruling as applying to all student programs, efforts at recruitment and retention of minority students, and tutoring specifically directed toward minority students. The following February, Morales finalized this advice in an official opinion. He also advised University of Texas officials to dismantle a three-hundred-thousand-dollar-a-year minority hiring program that had helped to bring a record number of African American and Hispanic professors to UT’s campus between 1988 and 1997.2 Formerly segregated and forced to integrate by a 1950 U.S. Supreme Court decision, the University of Texas was now, fortyseven years later, forbidden from considering race in its admissions decisions. The Hopwood case was not the first national attack on affirmative action. In fact, affirmative action has come under attack since its inception in the late 1960s. The first major challenge to affirmative action occurred in Regents of the University of California v. Bakke (1978), in which the U.S. Supreme Court forbade the use of racial quotas but allowed race to comprise...

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