AUSTIN, Texas—The University of Texas today (April 20) filed a brief appealing the Hopwood decision and asking the 5th Circuit Court of Appeals to hear the case before the entire court.
“The 1996 three-judge panel’s ruling clearly and unfairly places UT at a competitive disadvantage with other public universities,” said Patrick C. Oxford, a member of The University of Texas System Board of Regents.
“We believe that this is an excellent brief, and we look forward to our team’s oral argument to the entire court,” Oxford said.
Currently, the Office for Civil Rights of the U.S. Department of Education insists that Texas higher education institutions implement affirmative race-conscious measures to increase minority representation in their student bodies. At the same time, the Hopwood decision prohibits UT from implementing such measures. “The executive branch and judicial branch of the federal government apparently maintain contradictory positions, and we cannot properly serve Texas in such confused circumstances,” said Oxford.
Hopwood’s sweeping injunction against all consideration of race, even as one factor among many, directly conflicts with two decades of Supreme Court precedent. It directly contradicts the judgment rendered in University of California Regents v. Bakke (1978), which struck down a similar injunction.
The brief filed by UT also contends that limited consideration of race in admissions serves compelling interests in maintaining a diverse student body and overcoming the effects of past discrimination. In 1996, a three-judge panel of the 5th Circuit disagreed.
The brief was written by the Office of the Attorney General, the law firm of Vinson & Elkins, and UT law professors Samuel Issacharoff and Douglas Laycock. Additional co-counsel include former Texas Attorney General John L. Hill Jr.
“Our legal team has worked with the greatest of care and legal scholarship to assemble this brief. I am deeply grateful for their commitment and their effort. Among them, the attorneys of Vinson and Elkins deserve special thanks for giving freely of their expertise and talent for the past five years. I also am grateful to Attorney General John Cornyn for choosing to develop this appeal in full concert with our team. This case addresses one of the most important issues of our time. It fully merits a commitment of talent and work such as this, and it deserves the fullest possible hearing and a most careful decision in the federal courts,” said UT Austin President Larry R. Faulkner.
The previous Hopwood appeal was decided by a three-judge panel from the 5th Circuit. This brief asks the court to hear the case en banc, or before the full court. The plaintiffs have until May 17 to respond. The brief also requests an oral argument before the 5th Circuit.
Copies of the brief can be obtained by calling the office of Patricia Ohlendorf, vice president for administration and legal affairs, at (512) 471-1241.