Hopwood ruling may be appealed

In a letter Tuesday, UT System Chancellor William Cunningham asked Texas State Attorney General Dan Morales to appeal the settlement issued March 20 by U.S. District Judge Sam Sparks, UT System General Counsel Ray Farabee said Wednesday.

In Sparks' settlement ruling, he issued an injunction against the UT School of Law prohibiting it under a higher court ruling from using race as a factor in admissions.

In 1996, the 5th U.S. Circuit Court of Appeals ruled that the law schools' affirmative action admissions policies were unconstitutional.

But UT officials say Sparks' latest ruling singles out the UT School of Law, placing it at an unfair disadvantage with other schools and universities who may use affirmative action programs.

Morales interpreted the Hopwood ruling to effectively end affirmative action policies at all Texas public colleges and universities.

UT General Counsel Patricia Ohlendorf said UT officials are seeking a 5th Circuit decision that will put the University on the same footing as other public universities nationwide.

"What is important is that there be some decision on this issue, so all universities know what the law is, and are facing this issue on a common level," Ohlendorf said.

Only in Texas and California - where University of California regents voted to end the use of race in admissions and financial aid - are universities prohibited from using affirmative action.

But Farabee said it would probably take a high court ruling to make Hopwood more broadly applicable. "For UT, Hopwood really just dealt with the law school, but it had implications with all of higher education in Texas," Farabee said.

Vice President for University Relations Lisa Baker would not comment on how the appeal could affect the University, which is facing two similar lawsuits. In July 1996, the U.S. Supreme Court refused to hear the Hopwood case, stating the issue was moot because the law school had already changed the admissions practices in question. In addition, UT officials may appeal the attorneys' fees awarded to the plaintiffs in the case.

Sparks awarded about $776,700 in legal fees to the lawyers of the four white plaintiffs denied admission to the UT School of Law in 1992.

While the 5th U.S. Circuit Court of Appeals ruled in favor of the plaintiffs in 1996, Sparks denied their request for more than $5 million in damages, awarding them $1 each instead.

But Farabee said Wednesday an appeal of the settlement ruling could present issues other than attorneys' fees to the court.

"The attorney general wanted to know what we thought, and we advised that there was certainly a matter of three quarters of a million dollars in attorneys' fees, as well as any other issues that might be presented that would give UT-Austin a level playing field with other universities," Farabee said.

Ron Dusek, spokesperson for Morales, said he could not speculate on Morales' actions concerning the request Wednesday.

Whether the 5th Circuit overturns its decision depends on the panel of judges chosen to hear the case, Farabee said.

But Lino Graglia, a UT law professor, said he did not think the court would overturn its original decision banning the use of race in admissions to the law school.

There is a possibility that the court may increase the damages awarded to the plaintiffs, said Graglia, who does not support affirmative action policies.

"There's a possibility that the plaintiffs are entitled to more damages. They could hardly get less," Graglia said. "The only substantial amount was the lawyers' fees, and that was half or less of what they asked."

Monty Jones, UT System director of News and Public Information, said Cunningham wouldn't comment on the letter Wednesday.

-Daily Staff Reporter Katie Plona contributed to this report.

04-17-98