March 18, 1996, Decided
OPINION: JERRY E. SMITH, Circuit Judge: United States Court of Appeals for the Fifth Circuit
With the best of intentions, in order to increase the enrollment of certain favored classes of minority students, the University of Texas School of Law (the law school) discriminates in favor of those applicants by giving substantial racial preferences in its admissions program. The beneficiaries of this system are blacks and Mexican Americans, to the detriment of whites and non-preferred minorities. The question we decide today in No. 94-50664 is whether the Fourteenth Amendment permits the school to discriminate in this way.
We hold that it does not. The law school has presented no compelling justification, under the Fourteenth Amendment or Supreme Court precedent, that allows it to continue to elevate some races over others, even for the wholesome purpose of correcting perceived racial imbalance in the student body. Racial preferences appear to even the score . . . only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right that an injustice rendered in the past to a black man should be compensated for by discriminating against [*935] a white. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 528, 102 L. Ed. 2d 854, 109 S. Ct. 706 (1989) (Scalia, J., concurring in the judgment).
As a result of its diligent efforts in this case, the district court concluded that the law school may continue to impose racial preferences. See Hopwood v. Texas, 861 F. Supp. 551 (W.D. Tex. 1994). In No. 94-50664, we reverse and remand, concluding that the law school may not use race as a factor in law school admissions. Further, we instruct the court to reconsider the issue of damages in accordance with the legal standards we now explain. In No. 94-50569, regarding the denial of intervention by two black student groups, we dismiss the appeal for want of jurisdiction.
The University of Texas School of Law is one of the nations leading law schools,