In an otherwise sound article on the upcoming Supreme Court term, Los Angeles Times court-watcher David Savage writes:
Over the last decade, lawyers for the Center for Individual Rights have won rulings striking down affirmative action at the University of Texas law school and at the University of Georgia. The Supreme Court refused to hear appeals in those cases because school officials refused to defend their contested admission policies. (Link via Howard Bashman)
On the contrary, the University of Texas vigorously pursued appeals, enlisting Laurence Tribe and other worthies to petition the Supremes requesting a writ of certiorari. (Link requires subscription. For some reason, this petition does not appear on http://www.law.utexas.edu/hopwood/, which has many other Hopwood documents)
The Supremes refused to grant cert, but not because Texas officials didn’t pursue the matter. Indeed, as the Chronicle of Higher Education wrote at the time,
Texas forcefully urged the Supreme Court last week to hear its appeal of a controversial court ruling that virtually forbids the use of race as a factor in admitting students. At stake, the state argued, is the fate of affirmative-action programs at colleges across the country.
In a written petition to the Court, Texas officials broadly criticized the decision in March by the U.S. Court of Appeals for the Fifth Circuit, which barred the law school at the University of Texas at Austin from considering race in admissions. They argued that the court had erred by shunning diversity as a legal rationale for race-based policies, and by ignoring the effects that the state’s past discrimination continues to have on today’s minority students.
Indeed, even after cert was denied the University of Texas continued for five more years to defend its policies and contest the results in every possible venue. It did not finally throw in the towel until November 27, 2001, when Larry Faulkner, the president of the University of Texas at Austin, announced
“We vigorously pursued appeals, arguing the complex issues surrounding affirmative action, to resolve these important issues for the nation at large. The Hopwood case will clearly not be the one that leads to this resolution. It is now impossible to take another appeal on the merits of affirmative action in the context of the Hopwood case, and given that impossibility, we have decided not to further appeal the award of court costs and attorneys’ fees.
UPDATE – Howard Bashman replies, via email, that
[t]his may be one of those rare instances where you and the person whom you are criticizing are both correct. See this opinion respecting the denial of certiorari joined in by two U.S. Supreme Court justices for the details:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U20033
The link is to an opinion by Justices Ginsburg and Souter explaining their reasons for opposing cert, which I had in fact linked (the link on “refused” is to their opinion, although at a different location). Their point was that Texas had already abandoned the admissions policy in effect when the class of 1992 was admitted.
I replied to Howard:
I see your point, but it still seems to me that it is misleading for Savage to say the Supremes refused to grant cert in Hopwood because Texas officials refused to defend the contested policies.
I both re-read (one of my old professors said scholars never read anything; they always re-read) and, in my post, linked the Ginsburg/Souter gloss on the denial of cert. The reason I think Savage still misleading is that the Fifth Circuit invalidated far more than the abandoned 1992 admissions procedures; it barred any consideration of race at all. Texas of course did not attempt to defend its abandoned (by 1994) policy, but it vigorously defended a whole range of policies that the Fifth Circuit had rejected and strenuously urged the Court to grant cert (italicized text not in my email). Even a reasonably well informed reader would thus be misled by Savage’s assertion.
Finally, and here I defer without reservation to your expertise, it is my understanding that the Court does not usually explain its denial of cert. The Ginsburg/Souter opinion was signed, after all, by only Ginsburg and Souter. Thus, with all due respect to those two worthies, the silence of the seven other justices means we can’t say why the Court refused to grant cert. But in any event I believe it should not be said that the reason was Texas’s refusal to defend its policies, which implies that it went along meekly with the Fifth Circuit’s barring the use of race altogether.
