*1 LESAGE, Francois Daniel
Plaintiff-Appellant, TEXAS; University of Texas OF
STATE
System; Rapoport; Bernard Thomas O. Smiley; Deily;
Hicks; Linnet Martha Evans; Holmes, Jr.; Zan Lo-
Donald Lebermann; Loeffler; Ellen Tom
well University Temple; of Texas at
Clarke Berdahl; College
Austin; Robert Justiz,
Education; Manuel Dean of the Education,
College in his official Wicker,
capacity; Frank Director capacity;
Admissions, in his official Cunningham, Chancellor,
William University Texas
Chancellor
System capacity, Defen- in his official
dants-Appellees.
No. 97-50454. Appeals,
United States Court
Fifth Circuit.
Oct. *2 REAVLEY, DeMOSS
Before PARKER, Judges. Circuit DeMOSS, Judge: Circuit Lesage applied to enroll Francois Daniel *3 psychology counseling program doctoral a University at Austin. Mid of Texas at ac process of University’s way through the our program, applicants to that cepting Hopwood opinion in its handed down denied, Cir.), Texas, cert. 135 L.Ed.2d immigrant of Cauca- Lesage, an African descent, He con- denied admission. sian Texas, the Uni- the State sequently sued subdivisions, and versity several of its and in their official University officials various that the Universi- Lesage alleged capacities. as a relied on race selection ty impermissibly to Black preferred status by giving criterion He claimed Hispanic applicants. and policy violated University’s admissions the United Amendment of the Fourteenth §§ and 42 U.S.C. Constitution States monetary, de- sought He and 2000d. injunctive claratory, relief. and immunity for sovereign The state asserted acting in itself, its officials agencies, and its the Eleventh capacity official under their stage Amendment, early at an Les- court dismissed district proceedings sought that he to the extent age’s claims 1981 and 1983. §§ monetary relief partial Lesage moved liability, the state’s issue of on summary judgment based moved for state been de- Lesage theory of racial the use regardless of admission nied The district admissions. preferences Austin, TX, Smith, Wayne Steven and dis- motion the state’s granted Plaintiff-Appellant. missed case. TX, Johnsen, Austin, Christopher Norman judg- adverse from the Lesage appeals Defendants-Appellees. ment, we reverse. Thome, Dunsay Sil- Jessica Frances Linda Section, Justice, Appellate ver, Dept, of U.S. I. DC, Div., for Inter- Washington, Rights Civil venor. asserts The state Rights Act Civil VI of the under Title
claims
2000d,
by the
§
are barred
42 U.S.C.
Amendment.1
Eleventh
Pursuant
abrogated
has
Congress
it.
conclusively
has
Constitution,
United States
“[t]he Judicial
against
resolved this issue
the state’s claims
power of the United States shall not be con-
immunity by
providing that “[a] State shall
any
strued to extend to
suit in
equity,
law or
not be immune under the Eleventh Amend-
prosecuted against
commenced
one of the ment of the Constitution of the United States
State,
United States
Citizens of another
from suit in Federal court for a violation of
Subjects
Citizens or
Foreign
...
title
Rights
VI
Civil
Act of 1964.”
Const,
State.”
jur-
amend. XI. Federal
2000d-7(a)(l).
§
42 U.S.C.
negated
respect
isdiction is thus
with
to cov-
suits,
ered
including
against
federal suits
A.
brought by
state
the citizens of that state.
The state contends that
abroga
Tribe,
See Idaho v. Coeur d’Alene
tion of
*4
Eleventh
its
immunity
Amendment
261,-,
2028,
117
2033,
S.Ct.
138 L.Ed.2d
2000d-7(a)(l)
42
§
under
U.S.C.
is invalid.
(1997);
Louisiana,
438
1,
Hans v.
134 U.S.
“In order to determine
Congress
whether
504,
10 S.Ct.
Lesage may
bring
not
his
in
claims
the distribution of benefits a state
against the state in
government
federal court unless the
cannot
among
discriminate
citi
state has
immunity
waived its
Congress
zens on
basis of
race absent a compelling
342,
appeal
The state has not filed a
Cir.1998) (en banc).
notice of
from
F.3d
theless,
343
Never
ruling
district court's
that the state was not
"the Eleventh Amendment
suffi
defense
jurisdictional
Lesage's
immune from
Title VI
ciently partakes
At first
claims.
of the nature of a
might appear
it
blush
that to dismiss the case
bar so that it need not be raised in the trial
sovereign immunity grounds
Jordan,
now on
651, 678,
would vio-
court." Edelman v.
appellate
1347, 1363,
late the
simply
rule that an
(1974);
has
94 S.Ct.
217 VI, the constitutional so, ease of Title narrowly- doing interest governmental See, federally e.g., is racial discrimination concern accomplish that need. tailored Pena, public institutions. Racial discrimi- Constructors, Inc. v. funded Adarand 2113, prohibition invokes the 2097, 132 L.Ed.2d state actors 227, nation 200, 115 S.Ct. Clause. See U.S. (1995); Equal v. J.A. Croson Protection City Richmond Const, 706, XIV, legislation § 469, 493-94, 721- 1. The en- Co., amend. U.S. (1989); prohibition Dallas Fire to enforce that 22, by Congress L.Ed.2d 854 acted Dallas, Tex., 150 City person in the United v. Fighters provides “[n]o Ass’n (5th Cir.1998); race, color, shall, Messer ground of 440-41 on the F.3d States (5th Cir.1997), Meno, partic- 135-36 from origin, 130 F.3d be excluded national of, filed, in, cert. U.S.L.W. or be the benefits petition ipation be denied (No. 98-535); (U.S. 23, 1998) Hopwood, Sept. any pro- subjected to discrimination at 940. financial activity receiving Federal gram or § This law 2000d. assistance.” U.S.C. enforce” the “power to Congress has that which the Constitu- precisely prohibits Fourteenth provisions of the substantive applica- virtually possible all prohibits Const, XIV, § 5. amend. Amendment. U.S. hardly argued It can therefore be tions.2 it is not power, grant is a broad While “congruence reflect the statute does not Flores, 521 City Boerne v. See unlimited. injury to be proportionality between -, *5 means or and the remedied prevented (1997) Oregon v. Mitch (quoting 624 L.Ed.2d case, being That the adopted to that end.” 260, 266, 27 112, 128, ell, 91 S.Ct. 400 U.S. VI, Title as well as original enactment of the (1970)). Congress only has the 272 L.Ed.2d state explicit abrogation of subsequent a power is not This power to “enforce.” en- immunity permit to sovereign federal change the substance or power to decree VI, con- were within the of Title forcement it were Con rights, if because constitutional the Fourteenth power to enforce gressional enforcing longer said be could no be to gress Amendment. Amend provisions of the Fourteenth -, at 2164. 117 S.Ct. at ment. See id. recently announced thus Supreme Court B. Congress testing whether a new standard Congress suggests that The state power: Five exercised Section properly has powers propor- intended invoke and congruence be a
“There must
Fourteenth
than the
Spending Clause rather
prevented
injury
be
tionality
between
VI. As
it enacted Title
when
Amendment
adopted to that
the means
remedied and
or
validity
proposi
of that
suming arguendo the
at-,
This
at 2164.
117 S.Ct.
Id.
end.”
of cer
subjective
concerning the
intent
in
command
paraphrased
has
our
entirely irrelevant to
legislators, it is
pri-
tain
of “two
consideration
Flores
involve
constitutionality
evaluating the
inquiry.
In
threatened
mary
the extent
facets:
suffi
statute,
simply
Congress
if
ask
of a
we
violations,
scope of the
and the
constitutional
sov
abrogation of state
ciently
an
remedy
articulated
legislation
steps provided
power to do
if it had the
immunity
ereign
Coolbaugh v. Loui-
prevent such violations.”
55,
Tribe,
at
116
517 U.S.
Safety
so. See Seminole
&
Dep’t
Public
ex rel. La.
siana
objective
entirely
(5th
is an
Cir.1998),
at 1123. This
430,
cert. S.Ct.
Corr.,
435
136 F.3d
“
—
—
of action
constitutionality
58,
-,
inquiry,
‘[t]he
denied,
119 S.Ct.
U.S.
depend on recit
97-1941)
not
L.Ed.2d-(1998)
(No.
by Congress does
taken
(petition
to exer
it
issues);
power
undertakes
als of the
which
also
ADA
see
by Coolbaugh on
filed
226,
Wyoming, 460 U.S.
Miss.,
493,
v.
cise.’” EEOC
F.3d
University
148
v.
Scott
18,
1054,
75
18,
1064 n.
Cir.1998).
n.
103
(5th
243
501-02
1053,
149,
Paradise,
94
107 S.Ct.
apparently does not
text
the statute
2. The
(1987),
example
constitutionally
a case
permissible race-
an
203
as
for a
L.Ed.2d
account
scrutiny
remedy
"strict in
is not
Strict
narrowly
based distinction.
a
tailored race-based
Adarand,
U.S. at
theory,
237,
in fact.”
but fatal
scrutiny).
survived
(citing
v.
United States
S.Ct. at 2117
(1983) (quoting
Miller,
L.Ed.2d 18
§
Woods v.
2000d-7 with the “intent” to invoke the
138, 144,
421,
424,
68 S.Ct.
92 L.Ed.
Fourteenth Amendment’s congressional en
(1948)) (alteration
original);
see also
power.
forcement
purpose
provi
Ussery v. Louisiana
rel.
Dep’t
ex
La.
sion,
1986,
enacted in
was
legislatively
(5th
Hosps.,
431,
Health &
150 F.3d
436 n. 2
overrule the
result Atascadero State Hos
Cir.1998) (“Given
objective
nature of our pital
Scanlon,
v.
judicial review, the
cursory argument
State’s
Atascadero,
L.Ed.2d 171
statutory
legislative
text
history
the Court held that Section 504 of the Reha
of the 1974Amendments to
support
the EPA
1973,3
bilitation Act of
which prohibited
finding
Congress
acting pursuant
states from discriminating against the dis
to the interstate commerce clause when it
abled
the administration of federally fund
made
immaterial.”);
those amendments is
programs,
ed
did not contain a sufficiently
Wheeling & Lake Erie Ry. Co. v. Public Util.
specific
of abrogation
statement
of Eleventh
Comm’n,
(3d
Cir.1998)
141 F.3d
Amendment
immunity
permit
suits
(“[Wjhen determining the sources of Con
against states in federal court. See Atas
gress’s authority
legislate,
we may look cadero,
46, 105
473 U.S. at
S.Ct. at 3149.
245—
beyond
expressed
constitutional basis in Congress
recognized
instantly
the far-reach
a statute’s preamble
legislative
history.”);
ing implications of
ruling
enacted,
Davis,
Crawford
part
as
of the Rehabilitation Act Amend
Cir.1997); Bryant v.
Jersey Dep’t
New
1986,4
of ments of
legislation to reverse the
Transp.,
(D.N.J.
1 F.Supp.2d
432-35
result in
prevent
Atascadero and to
ap
1998).
plication of
reasoning
in Atascadero to
Moreover,
preclude
it is the statute abrogating im
filing
suits in federal court
munity,
particular
not the
against
provi
substantive
states under similar statutes.5 The
statute,
sion of the
which specifically
Congressional
con
Record
specific
contains
ref
cerns
Ussery,
us.
2;
See
correctly ruled when psy- counseling for the procedure admissions § on 2000d 42 U.S.C. Lesage’s claims under con- support order to its program in chology grounds. Amendment Eleventh been that, although race had consid- tention Lesage process, during the admissions ered II. prior to as a candidate eliminated been had summary judg- partial motion In his An affidavit preferences. racial the use of state’s entirely upon the ment, Lesage relied Richardson, professor an associate Dr. Frank admissions pre-Hopwood that its admission the chairman counseling psychology assessments explicit “involved process ad- psychology counseling University’s attributes, race.” including many candidate committee, was attached missions own motion responded its The state it, ex- Dr. Richardson response. state’s Les- reply to and in summary judgment was as it procedure, the admissions plained with nothing to do had race that age’s motion fall of entering for the class conducted Lesage from to exclude the decision were applications Approximately 1996. state’s program. psychology counseling February January and received Lesage was were contentions main two application cut, first when race before from consideration eliminated forty quali- eliminated, the field narrowed Lesage account, into was taken fif- approximately from applicants, fied even admission offered not been would be offered eighteen applicants teen to employed. been had not preferences if racial not meet who Applicants did admission. average point grade standards minimum summary judgment review We (GRE) were score Exam Record or Graduate Shaid, F.3d See, FDIC e.g., novo. de Marginal candi- stage. at this eliminated curiam). Cir.1998) Sum (per 260, 261 record poor academic relatively whose dates “the when appropriate mary judgment counterbalanced not were test scores interroga answers depositions, pleadings, statement, personal as the such factors other file, with together tories, and admissions curriculum, undergraduate difficulty of is no there affidavits, any, show if *7 recommendations, extenuating or strength of that fact and to material as genuine issue circumstances, also eliminated. were as to a moving party is entitled choosing students in that conceded affidavit 56(c). P. R. Crv. of law.” a matter Fed. candidates, forty pool of resulting from the for the basis explain to obligated is movant Program’s “the consider did committee record in the motion, identifying evidence entering for a diverse need pedagogical genuine of a the absence demonstrates committee, it that meant which, class,” to the Corp. v. Celotex fact. See of material issue age, gender, as such factors “consider would 2548, 323, 317, Catrett, deci- final making race, ethnicity [a] in and (1986). to order In L.Ed.2d composition the most desirable as to sion nonmovant summary judgment, defeat evidence, state this Based the class.” evidence other or affidavits produce must motion Lesage’s to asserted, response in its that show that facts establishing specific that: judgment, summary partial for trial. See issue genuine for Fed. a there is race and given is consideration Whatever Co. 56(e); Elec. Indus. Matsushita P. R. Civ. make- ultimate deciding on the ethnicity in 586-87, Corp., Radio v. Zenith class, it counseling psychology up of a L.Ed.2d the review role in no played in favor inferences reasonable Drawing all rejected was application His application. inquiry nonmovant, the same conduct we was review- on, committee when See, early e.g., court. the district as narrowing down it large pool ing Inc., Liberty Lobby, Anderson approximately to applicants. Contrary applicant pool forty candidates. Dr. Rich- system the two-track analyzed Hop- ardson testified that: wood, Lesage’s application “in couple [T]here are a things other that rest, mix” with the and was not even re- are involved.... We’re interested in di- motely competitive. Only later on did the verse cultures and ethnic backgrounds.... committee add student “diversity” as a Obviously, we’re qualified interested in decision-making criterion. people Hispanic and African American background. Everyone in psychology reply, Lesage provided the district court counseling psychology very is sensitive to with evidence that race also had been taken those very issues and concerned to get into account before the “first forty cut” qualified minority students.7 students was determined. The evidence was taken from Dr. deposition Richardson’s Despite testi- evidence, the district court mony regarding the initial granted reduction of the the state’s judgment mo- text, quoted 7. The passage in the taken from We’re people also interested in who come Lesage’s response reply to the state’s pretty his mo- strongly across regard that who have partial summary judgment, heavily is spark a shown potential some of—some for crea- tive, edited professional condensation of Dr. Richardson’s testimo- or spe- intellectual work of a actual, ny. The exchange, unedited cial kind. And reads as that being includes interested people follows: who things want do other than just be counselors psychotherapists, who Q. Well, [counsel Lesage] let's talk service, public are interested in public policy, just about—And this is real basic—basic crite- what is sometimes community called psycholo- use, you ria just and let's kind of start with this work, gy or who theory have research or inter- paring process down from 220 What kind, special ests professional of a or academic you criteria in the rely folder do on most? word, creativity and what originality, is the A. [Dr. Richardson] From the 40 to the 20 things. those two as the basic criteria. So we look for as that well or the 200 to the 40. Q. From the you’re 220 to the 40 when Now, Q. you jumped ahead from cut- making mean, obviously initial cut. I ting from 220 to talking the 40 to more G.R.E. about how.— Well, A. let me see Iif can summarize it A. No. intelligently. From great 220 or to the so Q. That is how— there are a many folders that even keep A. I expecting you to ask some me though trywe thoughtfully look at them But, know, things. more you there a are cou- bit, they’re a consideration, mean, clearly just completely out of the ple things of other that are involved. We’re very I with low G.R.E.s very people interests, interested in with diverse very grade point low average very sloppi- backgrounds. We're interested in diverse cul- ly something done or typically but G.R.E. and backgrounds. tures and ethnic We’re interest- grades. great So there is many a of them. It’s ed in experiences. diverse life We're interest- easy to weed out. ed getting both males and females in the know, you beyond But there thoughtful 100 or program. so, guess, require I some con- lump I could all of category, those under really sideration. And I exactly don’t know guess, I diversity. keenly We're interested know, many. how You there is set a of con- getting a diverse body. student Occasional- criteria, G.R.E.S, grades, ventional letters of ly, capable handicapped person apply. will recommendation, background educational There years. was one in recent *8 might quality include the of the school or ma- We applications have a handful of people of jor. personal And important, statement is an from other very countries. That is often inter- very important piece puzzle. of the So there is esting, even Russia or They usually China. a use, set of conventional criteria like that we very look like interesting people, but there are people and them, [airly high to be on most of why they reasons probably wouldn't make it in know, you strong on all one but or two graduate a type, school of this but that is not and decent on those. always case. accepted couple the We’ve a of Q. up? To move students couple years in the last of or two from A. up. To move There is another consider- Iceland, which interesting has an program of ation, try and we to by looking evaluate at people very preparing graduate well for studies background. letters statements and This is overseas. written in our And people literature. we want Obviously, qualified peo- we’re interested in give who evidence of aptitude interest in and ple Hispanic of and African American back- personal qualities for and counseling for ground. Everyone psychology and counsel- psychotherapy professional psycholo- for work ing psychology very is sensitive to those issues Now, gy work. necessary is a that condition very get qualified concerned minority to but anot sufficient one. students.
221 FCC, 141 Synod v. an Church-Missouri no evidence finds Court tion, stating: “[T]he (“We (D.C.Cir.1998) do not 344, 354 deny F.3d the decision a factor was race that ‘com elevated the diversity can be psy- think counseling the admission Plaintiffs FCC’s of the context finds the is, [in level pelling’ Court the That chology program. regulations], opportunity prim employment a equal present a cannot Plaintiff that facie every given im- has disparate when particularly treatment disparate of case Metro back wanting the state to cut light of In indication discrimination.” pact Hop- FCC, 110 ruling in 497 U.S. Broadcasting [Inc. this Court’s record (1990)].”), disposing peti by 445 wood, court erred 111 L.Ed.2d district S.Ct. (D.C.Cir. denied, 487 this fashion. F.3d Lesage’s reh’g claims tion for denied, 154 1998), reh’g en banc petition Lesage’s for Hopwood, as Just (D.C.Cir.1998); v. Board Taxman F.3d 494 subjected was that he claim central Cir.1996) (en (3d Educ., 91 F.3d by the racial discrimination unconstitutional diversity as an banc) (declining to endorse ap his admissions University’s evaluation ac affirmative justification for appropriate Dr. at 78 F.3d 938. Hopwood, See plication. context employment in the programs a tion testimony created deposition Richardson’s - dismissed, VII), cert. to Title pursuant considered was race toas whether issue fact L.Ed.2d 431 -, first 118 S.Ct. during the committee admissions application Lesage’s while phase, screening con If was race being considered. still was a course, reviewing when Of re was application Lesage’s before sidered all reasonable court must draw a judgment, challenge the standing to Lesage has jected, See, the nonmovant. in favor of inferences application his policy because admissions at Anderson, at e.g., of racial by the use affected been may have deposi- in his admitted Dr. Richardson scenario, the Universi that preferences. during the as a factor race was used tion that as admissions an of race ty’s consideration applications pool of the winnowing down scrutiny strict subjected to must be criterion 40”&emdash;a stage at which “from Adarand, U.S. at See, e.g., analysis. “in mix.” indisputably still was Lesage classifications, (“[A]I1racial at 2113 115 S.Ct. counsel we asked argument, At oral state, federal, local by whatever imposed that the record identify evidence state by a analyzed actor, be must governmental recol- despite Dr. Richardson’s prove, might scrutiny.”); Cro- strict under court reviewing appli- deposition, at his lection 721-22; 493-94, at son, at be- consideration from eliminated cation was 440-41; at 150 F.3d Fighters, Fire Dallas from the benefitted applicant any other fore 135-36; Hopwood, 78 Messer, at preferences. racial committee’s admissions justifica “Diversity,” the 938, 940. F.3d at neither example; such provided no Counsel of racial University’s use for the given record discovered review has our inter state compelling a is not preferences, that the follows logically It evidence. such scrutiny standard the strict that satisfies est a factual resolving erred district uni public aat of admissions purpose stage and summary-judgment dispute at F.3d at Hopwood, versity. See “no evidence declaring there ... ethnicity race or (“[A]ny consideration deny decision factor in a race was stu achieving diverse a purpose counseling psy- to the admission Plaintiffs interest body compelling is not dent circum- these Under program.”8 Amendment.”); chology Luther- the Fourteenth cf. Lesage made. cut was even first before even other any evidence not consider we need 8. While *9 the atten- specific evidence bring this testimony did not deposition Richardson’s Dr. than his motion filed until he court the district of tion erred court district that the conclude order to grant sum- of court’s the for reconsideration the judgment, note summary we granting de- Dr. Richardson’s judgment. Because mary record contains the completeness that sake of alone, standing is sufficient testimony, position allegation of support Lesage’s evidence further summary precluded issue a factual create Significantly, some discrimination. race-based the whether to address decline we judgment, were extended candidates Hispanic Black and refusing to its discretion abused court program, district to the and admitted admission offers stances, given genuine, the material factual result in an outright grant of summary judg dispute as to when the University first used ment for Hopwood the state. Texas, race as a criterion to choose exclude candi- F.Supp. 551, 581 (W.D.Tex.1994), on rev’d dates to the counseling psychology program grounds, other Cir.), F.3d 932 cert. in relation point to the in time at which denied, Lesage admission, was denied it was error L.Ed.2d 1094 The district court first grant summary judgment in favor of the determined liability and then turned to the state. competitiveness of plaintiffs’ applications the on the question of damages. This was the
B.
proper ordering of matters before the court.
possibility
The
Hopwood
the
plaintiffs,
The State of Texas contends
despite
or Lesage,
preferences
use of racial
would not
have
the
been
admissions
offered ad
process for
mission
University’s
is
only
relevant
counseling psy-
quantum
available&emdash;not
chology program, it is
damages
nevertheless entitled
pure question
to summary judgment because Lesage
liability,
state’s
issue on
not have been admitted to
program
even
summary judgment.
if race had not been taken into consideration.
This reasoning was supported by affidavits
Assuming,
must,
as we
that the state
by Dr. Richardson and Dr.
Ainslie,
Ricardo
did
employ
indeed
a racially discriminatory
both of whom served on the admissions com-
counseling psychology admissions program
mittee
counseling
psychology pro-
alleged,
as
applicants
those
who
yet
had not
gram. Because no records relating to the
been eliminated from consideration at the
admissions committee’s evaluations at
racially preferential
time
criteria
ap
were
stage
retained,
were
opinions expressed
plied have suffered
implied
an
injury&emdash;even
in these affidavits
fresh,
were based on a
if
applications
their
ultimately would not
post-admissions review of the application
have
resulted
admission under a nondis
pool, undertaken for
purposes
of this
criminatory
regime.
admissions
Hop
See
litigation. These affidavits evaluated and
wood,
that “legitimate, nondiscriminatory grounds For the foregoing reasons, exist[ed] the law school’s denial of we admis REVERSE sion to each judgment the four plaintiffs that, district court. Because likelihood, all plaintiffs Lesage appeal would not does not from the denial of his been offered admission even partial consti motion for summary judgment, we tutionally permissible process,” this did not REMAND for further proceedings. entry
reconsider the light of this additional evidence. *10 specially
REAVLEY, Judge, Circuit
concurring: upon Hopwood, writing court’s This reversed, was judgment is the instant of the Su- judgment
inconsistent with University Regents
preme Court Bakke, v. California (1978) was unnec- L.Ed.2d judgment holding or
essary to the however, court, This circuit court.
Hopwood bind- writing to be Hopwood
considers that only. in the here
ing law. I concur America, STATES
UNITED
Plaintiff-Appellee, THOMPSON, Defendant-
Mary Beth
Appellant. 96-30394
No.
Summary Calendar. Appeals,
United States
Fifth Circuit. 16, 1998.
Oct.