Friday, October 19, 2001

UT ordered to pay $1 million in Hopwood case
By Celina Moreno
Daily Texan

AUSTIN (U-WIRE) — Almost a decade after Cheryl Hopwood and three other white plaintiffs sued the University of Texas-Austin to fight affirmative action, the Hopwood case seems to be taking its last breath.

Four UT law applicants filed suit against the University in 1992, claiming less-qualified Hispanic and African-American applicants gained admission to the UT School of Law based on their race. While the applicants never were admitted into the school, their case has had statewide implications.

In 1996 the Fifth U.S. Circuit Court of Appeals ruled the School of Law could not consider race in admissions to maintain diverse enrollment or to remedy past discrimination. The decision reversed the 1994 ruling by U.S. District Judge Sam Sparks, who allowed race considerations. In 1998 former Texas Attorney General Dan Morales interpreted the Fifth Circuit Court ruling to mean Texas public colleges and universities could no longer use race as a consideration for admissions and financial aid.

That same year Sparks entered a formal injunction implementing the court’s earlier opinion prohibiting all future considerations of race in admissions and awarded each plaintiff $1 in damages — not the more than $5 million they requested.

But in December 2001 the Fifth Circuit lifted the injunction, saying Sparks violated civil procedure by not holding a hearing or supporting the decision in writing. Seven months late, the plaintiffs’ attorneys asked Sparks to issue a decision in compliance with the Fifth Circuit Court’s procedure.

As a result of the plaintiff’s request, Sparks closed the Hopwood file on July 24. Since then the 9-year-old case has been a battle over legal fees.

Sparks reopened the case one week later to review the plaintiffs’ appeal for $600,000 in additional attorneys’ fees for work completed since 1998.

Again UT lawyers appealed. They filed a motion in opposition to the request to annul the fees the plaintiffs already were awarded — a move criticized by UT law professor Lino Graglia, an outspoken opponent of affirmative action.

“You have to remember that these people were in open violation of the Constitution for 30 years,” Graglia said. “They were deliberately violating the Constitution, so you can hardly expect them to be concerned with the Constitution and legalities now.”

Last Thursday Sparks dealt what might be the final blow and ordered the University to pay new and previously awarded fees and other expenses amounting to almost $1 million.

UT Board of Regents Chairman Charles Miller said the University will pay with “private money” and will not tap into the state Permanent University Fund, which funds the state's two largest public university systems — Texas and Texas A & M University.

The University has until Nov. 11 to appeal Sparks’ order.

“I don’t know for sure, but my sense is that it’s at the end of the line, and I’m saying that because the court is basically telling us that,” Miller said. “We will probably make a final decision after hearing advice from our attorneys.”

The U.S. Supreme Court has twice denied the University’s appeals to hear its case.

“They’ve been floundering and struggling for the [U.S. Supreme Court] to see them again,” Graglia said. “I think they are struggling beyond reason because they just didn't want to accept that they lost. This school, with all of its experts in constitutional law, was acting clearly unconstitutionally.”

Now only a decision by the U.S. Supreme Court can overturn the Hopwood decision and any further interpretations. Affirmative action cases at University of Michigan and one case at University of Georgia are said to have the best chances of being heard by the U.S. Supreme Court.

“Ultimately the Supreme Court will have to approve the validity of affirmative action,” Miller said. “That’s the only way to resolve this issue, and everybody knows that.

We’ve virtually tried everything we can do, and I mean that in the strongest way possible.”