Full opinion text
MEMORANDUM OPINION SPARKS, District Judge. The plaintiffs, Cheryl J. Hopwood, a white female, and Douglas W. Carvell, Kenneth R. Elliott, and David A. Rogers, three white males, have brought suit against the defendants alleging violations of the Fourteenth Amendment, 42 U.S.C.A. § 1981 (West Supp. 1994), 42 U.S.C.A. § 1983 (West 1981), and Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (West 1981). All of these provisions prohibit discrimination because of race. For the alleged violations, the plaintiffs seek injunctive and declaratory relief, as well as compensatory and punitive damages. The plaintiffs contend the defendants discriminated against them by favoring less qualified black and Mexican American applicants for admission to the University of Texas School of Law through the use of a quota system. This cause was tried before the Court, without a jury, on May 16th through May 20th and May 23rd through May 25th, 1994. The cause focuses on one of the most divisive issues faced by society, affirmative action, and highlights the tension that exists when the individual rights of nonminorities come into conflict with programs designed to aid minorities. The plaintiffs have contended that any preferential treatment to a group based on race violates the Fourteenth Amendment and, therefore, is unconstitutional. However, such a simplistic application of the Fourteenth Amendment would ignore the long history of pervasive racial discrimination in our society that the Fourteenth Amendment was adopted to remedy and the complexities of achieving the societal goal of overcoming the past effects of that discrimination. Further, the Supreme Court, which is continually faced with trying to reconcile the meaning of words written over a century ago with the realities of the latter twentieth century, has declined to succumb to an original intent or strict constructionist argument. Therefore, the Court will decline the plaintiffs’ invitation to ignore the law established by the highest court of this land and to declare affirmative action based on racial preferences as unconstitutional per se. The issue before the Court is whether the affirmative action program employed in 1992 by the law school in its admissions procedure met the legal standard required for such programs to pass constitutional muster. The Court, having carefully considered the evidence presented at trial, the arguments of counsel, and the briefing provided by the parties, finds that it did not. I. HISTORICAL BACKGROUND The reasoning behind affirmative action is simple — because society has a long history of discriminating against minorities, it is not realistic to assume that the removal of barriers can suddenly make minority individuals equal and able to avail themselves of all opportunities. Therefore, an evaluation of the purpose and necessity of affirmative action in Texas’ system of higher education requires an understanding of past discrimination against blacks and Mexican Americans, the minorities receiving preferences in this cause, and the types of barriers these minorities have encountered in the educational system. A. Discrimination in Primary and Secondary Education The history of official discrimination in primary and secondary education in Texas is well documented in history books, case law, and the record of this trial. The Court, therefore, will address it only in summary fashion. Even after the Supreme Court’s decision in Brown v. Board of Education, the State of Texas adopted a policy of official resistance to integration of its public schools. This policy of resistance resulted in numerous lawsuits and court-imposed desegregation plans throughout the past twenty years. Wright, vol. 19 at 38-44; Romo, vol. 17 at 45-51. Many of the school districts found to be operating dual systems of education were also found to practice official discrimination against black and Mexican American students. Wright, vol. 19 at 40 — 43; Romo, vol. 17 at 45-51; Rodriguez, vol. 17 at 8-9. The problem of segregated schools is not a relic of the past. Despite the fact that the public school population is approximately half white and half minority, minority students in Texas attend primarily majority minority schools while white students attend primarily white schools. Glenn, vol. 23 at 46-49. Further, as of May 1994, desegregation lawsuits remain pending against over forty Texas school districts. D-457; see also D-370, 373, 419; Wright, vol. 19 at 38 — 40; Romo, vol. 17 at 45-46. The lack of educational opportunity for minorities has been compounded by the lower socioeconomic status of minorities in Texas. Statistics continue to indicate significant disparities between minority and nonminority students in skills and academic knowledge attained in the public schools. Although the generally lower socioeconomic status of black and Mexican American families is partially accountable for some of the disparities, the gap is exacerbated by historically inferior educational preparation of minorities. Glenn, vol. 23 at 30-36. Further, at each educational level, there is a marked decline in the level of attainment by minorities, as reflected in comparison of drop-out rates between minorities and nonminorities. and the percentages of the respective groups that graduate from high school and college. B. Discrimination in Higher Education As with primary and secondary education, Texas’ system of higher education has a history of state-sanctioned discrimination. Discrimination against blacks in the state system of higher education is well documented in history books, case law, and the State’s legislative history. The State of Texas, by constitution and statute, previously required the maintenance of “separate schools ... for the white and colored children.” See Tex. Const, art. VII, § 7 (1925, .repealed 1969). This policy resulted in the establishment of segregated schools for blacks that were inferior to the white schools. Further, opportunities available to blacks to attend college were extremely limited. In 1946, when Heman Sweatt, a black man, sought admission to the law school and was refused admission, a Texas court, while holding that Article VII, Section 7 of the Texas Constitution precluded his admission, ordered the state to provide a law school for blacks. See Sweatt v. Painter, 210 S.W.2d 442 (Tex.Civ.App.—Austin 1948). The State hastily created a makeshift law school that had no permanent staff, no library staff, no facilities, and was not accredited. Sweatt v. Painter, 339 U.S. 629, 632, 70 S.Ct. 848, 849-50, 94 L.Ed. 1114 (1950). In 1950, a unanimous United States Supreme Court ruled that the State of Texas’ provisions regarding the legal education of white and minority students violated the Fourteenth Amendment and ordered that Sweatt be admitted to the previously all-white University of Texas School of Law. Sweatt, 339 U.S. at 636, 70 S.Ct. at 851. Sweatt left the law school in 1951 without graduating after being subjected to racial slurs from students and professors, cross burnings, and tire slashings. Wright, vol. 19 at 24-25. The Sweatt case is the most flagrant incident of state-sanctioned discrimination occurring against blacks at the University of Texas. However, the record reflects that during the 1950s, and into the 1960s, the University of Texas continued to implement discriminatory policies against both black and Mexican American students. Mexican American students were segregated in on-campus housing and assigned to a dormitory known as the “barracks,” as well as excluded from membership in most university-sponsored organizations. Romo, vol. 17 at 43. Additionally, until the mid 1960s, the Board of Regents policy prohibited blacks from living in or visiting white dormitories. Wright, vol. 19 at 26-28; D-82. Beginning in the mid 1970s, discrimination in Texas’ system of higher education came under attack through a court-ordered investigation by the Department of Health, Education and Welfare (HEW) Office for Civil Rights (OCR). The investigation of Texas’ system resulted from a lawsuit initiated in 1970 to require HEW to take action to enforce the provisions of Title VI. The court-ordered investigation of ten states, which did not include Texas, began in 1973. In 1977, the court extended the order to an additional six states, which included Texas. Ashworth, vol. 12 at 8; D-296. Between 1978 and 1980, the OCR conducted an investigation of Texas’ public higher education system. The investigation culminated in a finding that Texas had “failed to eliminate vestiges of its former de jure racially dual system of public higher education, a system which segregated blacks and whites.” D-297. Additionally, the OCR found that Hispanics were significantly underrepresented in state institutions and indicated it would continue its investigation of discrimination against Hispanics. Id. During the early 1980s, the OCR and Texas officials engaged in considerable negotiations regarding efforts to bring Texas into compliance with Title VI. Texas, in an effort to achieve a state-wide desegregation plan acceptable to the. OCR, attempted to address OCR concerns through submission of the Texas Equal Education Opportunity Plan for Higher Education (Texas Plan), which included a commitment to the goal of equal educational opportunity and student body desegregation for both black and Hispanic students. D-237. In 1982, Assistant Secretary of Education Clarence Thomas informed Governor Clements that the Texas Plan was deficient because the numeric goals of black and Hispanic enrollment in graduate and professional programs were insufficient to meet Texas’ commitment to enroll those minority students in proportion to the representation among graduates of the state’s undergraduate institutions. Ashworth, vol. 12 at 16-17; D-284. Texas revised its plan and resubmitted it to the OCR; the OCR found the modified plan to be deficient because it did not set targets for increasing minority enrollment for each institution, instead of on a statewide basis, and it did not project achievement dates for the targeted goals. Ashworth, vol. 12 at 19-20; D-219. In 1983, the District Court for the District of Columbia entered an order in the ongoing Title VI-enforeement suit, in which the court found that “Texas has still not committed itself to the elements of a desegregation plan which in defendants’ judgment complies with Title VI.” D-446. The court ordered the-DOE to begin enforcement proceedings against Texas unless Texas submitted a plan in full conformity with Title VI within forty-five days. Ashworth, vol. 12 at 22-23; D-446. In response to the order, the OCR submitted thirty-seven suggested measures for increasing black and Hispanic student enrollment in professional and graduate programs at traditionally white institutions. Among the suggestions were that each graduate and professional school should re-evaluate its admissions criteria and that “admissions officers will consider each candidate’s entire record and will admit black and Hispanic students who demonstrate potential for success but who do not necessarily meet all the traditional admission requirements.” D-220. In June 1983, the Texas Plan, as amended to account for the deficiencies identified by the OCR, was accepted by OCR as being in compliance with Title VI. However, acceptance was contingent on adequate funding and completion of key activities within a specified time. D-314. Further, the Texas Plan was subject to monitoring for compliance until 1988. Ashworth, vol. 12 at 23, 25-26. In November 1987, OCR contacted the state regarding the expiration of the plan in 1988 and indicated OCR would perform a final evaluation to determine if further action would be necessary to bring Texas into compliance with Title VI. OCR further instruct ed state officials that, pending the evaluation, Texas should continue to operate under the plan. Ashworth, vol. 12 at 32-34; D-323. Because Texas Higher Education Coordinating Board officials determined Texas had not met the goals and objectives of the plan, the board voluntarily developed a successor plan (Plan II) to avoid a mandate from the .federal government to negotiate another plan. Ashworth, vol. 12 at 34-35; vol. 13 at 45-46. Plan II did not contain any specific numeric enrollment goals but retained Texas’ commitment to increasing black and Hispanic student enrollment. D-326 at 9. To date, OCR has not completed its evaluation to determine if Texas is in compliance with Title VI. However, in January 1994, the DOE notified Governor Richards that OCR was continuing to oversee Texas’ efforts to eliminate all vestiges of de jure segregation and that it would be reviewing the Texas system in light of United States v. Fordice, — U.S. -, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992). Ashworth, vol. 12 at 35-38; D-293. Against this historical backdrop, the law school’s commitment to affirmative action in the admissions process evolved. II. THE ADMISSIONS PROCESS A. Evolution of the Admissions Process and Affirmative Action The law school’s admissions procedure was not always a complicated process. In the early 1960s, all applicants who had taken the LSAT and had at least a 2.0 or 2.2 grade point average on a 4.0 scale were accepted. In about 1965, the number of applicants began to significantly exceed the law school’s capacity, and, as a result, the law school established additional criteria to aid in the selection process. Smith depo. at 7-8. Under the more selective system, a baseline was established each year based on the Texas Index (TI). The law school automatically admitted applicants whose TI exceeded the baseline, and the admissions committee reviewed applicants whose TI was below the baseline. This procedure was used until the late 1960s when an inundation of applications meeting the baseline criterion created a class of more students than could be adequately accommodated and precluded review of those who did not qualify for automatic admission. That particular year, the first-year class of law students consisted of almost 700 students. Johanson, vol. 3 at 14. As a result, the law school modified the admissions process and changed the automatic admission baseline to a presumptive admission score. Additionally, the admissions committee began to use a presumptive denial baseline, and applicants whose TI fell below that baseline were presumptively denied admission. Also during the late 1960s, the law school began implementing affirmative action by attempting to recruit minority individuals who had performed well in the CLEO program. The only race or ethnic-based scholarships available during this time, however, were limited to “whites only.” Smith depo. at 12. A perception began to develop that the CLEO program had shifted its focus from students who were just below the level where law schools would seriously consider them for admission to students who were significantly below that level. Smith depo. at 14-16. Therefore, those responsible for admissions at the law school felt that the CLEO program could not successfully prepare the participants in one summer to be competitive students in a regular law school class. Id. at 16. Additionally, minorities represented only a small percentage of the entire pool of applicants to the law school, and law schools around the country competed for the top minority applicants. Id. at 18. In 1971, after the law school terminated its participation in the CLEO program, the law school admitted no black students. Wright, vol. 19 at 32. In the early 1970s, because of the university’s concern over the few minority students enrolled in the law school, a separate admissions committee, informally called the “Treece committee,” was formed to consider applications from minority students and disadvantaged nonminority students. The purpose of the committee was to ensure that the applicants the committee reviewed received “fuller consideration” than they would have in the regular admissions process. Smith depo. at 16. The applicants were evaluated separately from the applicants before the regular admissions committee, and the sole criterion for applicants before the Treece Committee was whether the applicant had a reasonable prospect of passing the first year. The Treece committee had no set goals for the number of admissions to be made through the committee, and the number of applicants it admitted had little impact on the regular admissions. In 1977, the Treece committee considered 500 applicants, including approximately 100 nonminority applicants. Of these applicants, the Treece committee admitted sixty-eight minority students and three nonminority students. “Thus, while the special subcommittee did consider and grant admission to some white applicants, the predominant objective of the special subcommittee was to increase minority enrollment at the Law School.” P-1 (Smith memo to Rogers, Oct. 18, 1978, at 1). The applications before the regular admissions committee were subjected to a different process. Because of the volume of applications, the admissions committee could not give individual consideration to each application. Therefore, the law school implemented a three-category system to narrow the pool of applications requiring committee consideration. The first category of applicants, those with TIs above a certain number, were granted “administrative admission”; that is, administrative personnel automatically sent offers of admission to these applicants based on the applicants’ TIs. A “presumptive denial” category was at the other end of the scale, in which administrative personnel screened the applications based on specified criteria. If the administrative person determined the file warranted further consideration, the file was sent to the regular admissions committee. The admissions committee reviewed the individual applications in the middle category or “discretionary zone,” which included those referred to the committee from the presumptive denial category. The law school used this admissions procedure until 1978 when, as a result of the Supreme Court’s decision in Bakke, the law school reassessed its minority admissions procedure. The law school determined that, although its procedure differed from that at issue in Bakke, the use of the separate committees to evaluate applicants was defective. Therefore, then Dean Smith directed the admissions committee to operate as one unit rather than as two subcommittees and instructed the committee to establish the administrative admission and presumptive denial lines at levels that would increase the number of applicants given individual consideration. P-1. After 1978, Johanson set the lines to allow for a reasonable number of minority candidates to be included with nonminorities in the discretionary zone. Johanson, vol. 3 at 21. The discretionary zone was then divided into five or six “bands.” The law school offered admission to a set percentage of applicants from each band. The percentage decreased from the first or top band to the last, a reflection of the diminishing credentials of the bands. The minority applicants were primarily clustered in the lower bands with few in the upper bands. Wellborn, vol. 24 at 45. Within each band, minority and nonminority files were blended into groups of thirty. Each pile was reviewed by three committee members, each of whom was allocated a certain fixed number of votes determined by the yield desired from a particular band. Therefore, each member of the committee ultimately had total discretion to decide whether and what extent to implement affirmative action for each pile of files that person reviewed. Wellborn, vol. 24 at 9. Professor Wellborn testified he and other faculty members perceived two problems with this system: 1) potential unfairness to nonminority candidates who could be affected by affirmative action solely as a result of the pile in which they were included and 2) the application of personal affirmative action efforts, requiring no justification to the committee as a whole, rather than a system based on a set policy. As a result, in 1980, the law school abandoned the banding admissions procedure and formed the minority subcommittee. The minority subcommittee was a part of the full committee that reviewed and voted on nonminority files. All minority files below the presumptive admission line were studied by the minority subcommittee. The subcommittee would then bring its recommendations to the full committee. At some point during the middle of the admissions process, the subcommittee would present a report to the full committee that summarized the features of the minority files being recommended for admission. The actual files were also available at the meeting so the full committee could make its own determinations about the recommended minority applicants in comparison to the nonminority applications pending at the time. At this point in the process, the members of the full committee were involved in reading piles of nonminority files and were cognizant of the qualifications of the nonminorities. Although this method often resulted in heated discussion and disagreement among committee members over whether to admit a particular candidate, the process also provided open discussion rather than the silent voting, which could have reflected personal agendas, that occurred with the banding procedure. Well-born, vol. 24 at 15. In the early 1980s, during these meetings, the committee members spent considerable time debating whether individual minority candidates met minimum admissions standards and, thus, could do passing work in law school. As a result, the full committee often examined specific minority files. The ultimate effect was that the entire committee voted on each minority applicant that the subcommittee brought before the full committee. Goode, vol. 9 at 6.. However, as the pool of minority. candidates improved, the focus of the meetings shifted to choosing among minority candidates that the committee knew, based on their TIs, could succeed in law school. Wellborn, vol. 24 at 33. Therefore, less full committee review of each individual file became necessary. Ultimately, the admissions committee determined that the process was inefficient and not the most effective way of processing minority applicants. Johanson, vol. 5 at 27. In April 1991, “[a]fter considerable debate, the [admissions] committee, over some strong opposition, directed the chair [Johanson] to form a subcommittee (including Deans Ale-man and Hamilton and the two minority students) which was to review the minority files and recommend sufficient candidates for admission to achieve a class that was 5% Black and 10% MA.” Therefore, by 1992, the full admissions committee no longer selected individual applicants for admission. Wellborn, vol. 24 at 53. Instead, the minority subcommittee compiled a list and presented it to the full committee, which made a judgment of how many offers to give to minority applicants. The minority subcommittee was then delegated the task of deciding which individual minority applicants were to receive offers of admission. Thus, by 1992, the admissions process, although involving some interaction and exchange of information between the full committee and minority subcommittee, was markedly similar to the pre-Bakke procedure of two separate committees. This 1992 procedure is the crux of this lawsuit. B. 1992 Admissions Process In 1992, the admissions committee was comprised of nine professors, two assistant deans, and four students. Johanson, vol. 6 at 26. The minority subcommittee was comprised of Johanson, Aleman, and Hamilton, all of whom were also members of the full committee. Aleman, however, did not participate in reviewing nonminority applications. Johanson, vol. 6 at 25-26. In 1992 when an application arrived, administrative personnel placed it in an individual folder, to which additional materials, such as letters of recommendation, were added as they arrived at the law school. Each folder was color-coded based on two criteria: residency and race or ethnicity. The residency classification indicated whether the applicant was a resident or nonresident of Texas. The race or ethnicity classification was based on which of several boxes the applicant checked on the application: Blaek/African American, Native American, Asian American, Mexican American, Other Hispanic, White, or Other. Hamilton, vol. 2 at 19-20. The application deadline was February 1. However, because the law school wished to get early offers sent to top applicants in late January if possible, Johanson drew initial presumptive admission lines as soon as he had an initial computer printout showing the numbers and qualifications of the applicants. Johanson, vol. 3 at 26-27. At this point, about half of the applications were complete; therefore, Johanson drew the initial lines relatively high to avoid too many early offers of admission before the quality of the entire pool of applicants was defined. The goal of the initial presumptive admission lines Johanson drew was to ensure that the top candidates in each category received offers of admission from the law school as soon as possible. Once Johanson determined which files were in the presumptive admission category, he conducted a preliminary review of the files. By the end of the admissions process, Johanson reviewed 300 to 350 resident files and 200 to 250 nonresident files in this category. Johanson, vol. 3 at 32-35. In his review of these files, Johanson checked to see if the applicant’s TI was inflated by high grades in a noncompetitive major or at a weak school or if there was some other questionable feature of the applicant’s file. Johanson generally held those files for further review in the discretionary zone. Johanson dropped approximately ten percent of the presumptive admission applicants into the discretionary category. Those applicants with a high TI reflecting a high LSAT and high grades in a rigorous major at a leading undergraduate institution were admitted by Johanson, who had unilateral authority to admit any applicant in this category without further consultation with the full admissions committee. D-362. At the other end of the spectrum, Johanson set another line, and applicants whose TIs fell below that line were presumptively denied admission. One or two members of the admissions committee reviewed each application in this category to determine if the TI adequately reflected the applicant’s likelihood of success in law school or competitive standing relative to the entire applicant pool. Johanson, vol. 3 at 31-32; P-41; D-362. Generally, as a result of this review, twenty to forty files were upgraded from the presumptive denial zone to the discretionary zone, although Johanson did not recall the specific number of files moved to the discretionary zone in 1992. Johanson, vol. 5 at 24-25. The middle category was comprised of those applicants whose TIs fell between the presumptive denial line and the presumptive admission line, those applicants who Johanson had moved down from the presumptive admission category, and those applicants who reviewers had moved up from the presumptive denial category. In the middle discretionary category, reviewers focused less attention on the applicant’s numbers, as all were relatively close, and instead carefully evaluated the applicant’s qualifications as reflected by the entire file. Goode, vol. 9 at 4; D-362. The standards the law school applied to assess applicants in this system differed based on race and national origin in two ways. First, Johanson’s determination of the presumptive admission and denial TIs varied between nonminorities and minorities. By March 1992, Johanson had lowered the presumptive admission score for resident nonminorities from a threshold setting of 202/90 to 199/87. Similarly, Johanson lowered the presumptive admission score for Mexican American applicants from 196/84 to 189/78 and the presumptive admission score for black applicants from 192/80 to 189/78. P-49. The presumptive denial score for nonminorities was 192/80, and the presumptive denial score for blacks and Mexican Americans was 179/69. Thus, the presumptive denial score for nonminorities was higher than the presumptive admission score for minorities. Additionally, the law school admissions committee had different procedures for the review of nonminority and minority files in the discretionary zone. Nonminority files were divided into stacks of thirty, which were reviewed by three members of the admissions committee. Each person on the three-person subcommittee voted, on an individual basis with no verbal or written explanation, to offer admission to a set number of applicants from within the stack of thirty files. After the three members completed their independent screening of the files, Johanson compiled a master tally sheet reflecting the number of votes received by each applicant in the group of thirty-five. See, e.g., P-73. Subject to Johanson’s review, those applicants that received two or three votes were offered admission. In 1992, the law school made an average of nine offers of admission per stack. P-58. Those who received no votes were automatically denied admission at that time. The law school sent a letter offering applicants who received one vote a place on the waiting list. The minority subcommittee reviewed the minority files. In theory, each member of the subcommittee was to be part of the three-person subcommittees that reviewed the nonminority files. The testimony reflected, however, that in 1992 Aleman was not on any of the nonminority screening subcommittees. Compare D-362 with Johanson, vol. 6 at 26. According to the testimony, instead of each member of the minority subcommittee performing an individual review of the minority files, as was the procedure for review of nonminority files, the minority subcommittee met as a group and reviewed each minority applicant’s file. The subcommittee did not review a set number of files at each meeting but, instead, made as many decisions as the members felt comfortable with until their “decision-making powers started to wane.” Johanson, vol. 5 at 30. Resident presumptive denial minority files were screened exclusively by Johanson and Hamilton. Id. at 25. The members of the minority subcommittee attended the meeting of the full committee and provided the full committee with a summary of the files the subcommittee believed to be good applicants for admission. Wellborn, vol. 24 at 18. Although the evidence reflected that the subcommittee shared general information about the minority pool of applicants with the full committee, the minority subcommittee’s admission decisions on individual applicants were virtually final. C. Admission Goals and Guidelines The law school is the State’s premier law school and is top-rated nationally. The cost of a legal education at the law school, a state-supported institution, is inexpensive in comparison to other schools of its caliber and, therefore, a bargain for the quality of education the law school’s students receive. As a consequence, over 4000 applicants to law school each year compete for approximately 500 available seats. In selecting the entering class, the law school admissions committee has two specified requirements it must achieve. First, state law mandates the percentage of nonresidents that may be included in the entering class. In 1992, the law school was prohibited from having more than fifteen percent nonresidents in the entering class. The other fixed figure to which the admissions committee must adhere has been set by the Board of Regents. This mandate requires the entering class to be composed of at least 500 students. In addition to these established figures, the law school attempts to meet the targets established by the Office of Civil Rights through the Texas Plan of ten percent Mexican American students and five percent black students in an entering class. Johanson, vol. 4 at 10. These numbers reflect an effort to achieve an entering class with levels of minority enrollment generally consistent with the percentages of black and Mexican American college graduates. The OCR figures, however, are aspirations only, subject to the quality of the pool of applicants. Johanson, vol. 4 at 9; Goode, vol. 9 at 12-13. Personal interviews are not part of the law school’s admission process. Therefore, the law school must make its decision based on the information provided in the applicant’s file, which, in addition to the application form and LSDAS material, may include a personal statement or letters of recommendation. The law school used the TI as an administrative tool to order candidates for review in the admissions process. However, the law school did not rely solely on the TI as the basis for admissions decisions but instead used it to create presumptions that could be overcome upon individual review of the files. The importance of individual review stems from the fact that the applicants selected for admission come from a relatively narrow band within the full range of scores, and a difference of few points does not necessarily correlate with more successful work in law school. Johanson, vol. 3 at 11; Stein, vol. 18 at 15. Further, the TI does not adequately reflect the qualifications and characteristics a law school should consider in developing a diverse student body, which provides substantial educational benefit for all members of a law school class. Brest, vol. 22 at 14. IIL THE PLAINTIFFS In 1992, Hopwood, Elliott, Carvell, and Rogers applied for admission to the law school. Hopwood is a white female; Elliott, Carvell, and Rogers are white males. None of the plaintiffs are Mexican American and all are residents of Texas. A. Cheryl Hopwood Cheryl Hopwood had a TI of 199, which placed her in the resident presumptive admit range. Hopwood’s TI reflects a 3.8 grade point average and an LSAT score of 39. Hopwood’s application indicates she received an associate’s degree in accounting from Montgomery County Community College in May 1984 and a bachelor’s degree in accounting from California State University in Sacramento in 1988. The application further indicates she is a certified public accountant in California, she worked twenty to thirty hours a week while obtaining her undergraduate degree, and she was active in Big Brothers and Big Sisters in California. P-145. Hopwood submitted an additional letter to the law school dated January 22, 1992, requesting permission to attend law school on a limited basis the first year, if accepted, because of the needs of her child, who had been born with cerebral palsy. Hopwood’s application file contains no letters of recommendation. Additionally, her responses to the questions are brief and do not elaborate on her background and skill. She provided no personal statement with the application. After his initial review of Hopwood’s file, Johanson dropped her from the presumptive admission zone to the discretionary zone because, in his evaluation, she had not attended schools that were academically competitive with those of the majority of the applicants, had a large number of hours at junior colleges, and was able to maintain a high GPA although working a substantial number of hours. Her file was subsequently reviewed by a three-member subcommittee of the admissions committee, which was comprised of Associate Dean Michael Sharlot, Dean Hamilton, and a law student. P-217 (Answer to int. 3). Because Hopwood received only one vote as result of the subcommittee review, the law school sent her a letter, dated April 8, 1992, offering her a place on the waiting list. The letter, which stated “[w]e regret that we cannot grant you admission to the 1992 entering class of the Law School at this time,” instructed Hopwood to return the attached form to the law school within three weeks if she wished to be placed on the waiting list. P-145. The letter further instructed Hopwood not to put her name on the list if she would not be able to accept an offer of admission as late as August. Hop-wood testified she subsequently called the law school admissions office and was told offers could be made from the waiting list through the first week of school. Hopwood, vol. 8 at 11-12. Hopwood did not put her name on the list because personnel in the law school’s admissions office could provide no information regarding the likelihood of admittance from the list and Hopwood did not believe she would be in a position to make last minute arrangements for her special childcare needs if she were admitted either just before or in the first week of classes. Hopwood, vol. 8 at 12. The Court finds that, under Hopwood’s circumstances, she was effectively denied admission when she received the April 8 letter. Her failure to accept a position on the waiting list or to seek a deferral of admission until the following year, which information the Court notes is not included in the law school’s April 8 letter to Hopwood, does not negate this fact. B. Kenneth Elliott Kenneth Elliott applied with a TI of 197, representing a GPA of 2.98 and an LSAT score of 167. Elliott’s application indicates he received a B.B.A. in accounting from the University of Texas in 1984, is a certified public accountant, and has worked as an auditor or examiner for state agencies since receiving his undergraduate degree. P-153. In addition to his personal statement, Elliott’s file contains two letters of recommendation from employment supervisors. In the discretionary zone of nonminority applicants, Elliott’s file was reviewed by a subcommittee of three that included Johanson. D-332 at A-33. Elliott received no votes, and the law school sent him a denial letter dated April 11, 1992. P-153. In July 1992, Elliott’s father wrote a letter to Dean Mark Yudof in which he requested that Elliott’s application for admission be reconsidered. P-165. Elliott’s father further stated that Elliott did not know he was writing the letter and that Elliott’s “friends and family all feel that he was not accepted to U.T. because of limited openings at U.T. due to mandatory minority and women quotas which use a large percentage of the openings.” The dean referred the letter to Hamilton, who informed Elliott’s father that although she was not at liberty to discuss Elliott’s application, she would pursue the matter with Elliott if Elliott felt he had been treated unfairly. Hamilton, vol. 2 at 67. Hamilton testified she telephoned Elliott, told him she had received a letter on his behalf, and invited him to come to her office to visit. Id. at 67-68. Hamilton testified Elliott canceled the first appointment and she scheduled a second appointment, which she canceled. Hamilton testified she subsequently called him back and told him she was placing him on the waiting list. Elliott, however, testified he had no farther conversations with anyone at the law school after the failed meetings and did not know he had been placed on the waiting list. Elliott, vol. 7 at 21. Hamilton testified that on August 24, she decided to grant Elliott an offer of admission, left a message on his answering machine, and instructed admissions personnel to continue to try to reach him. Hamilton, vol. 2 at 58-59. Hamilton stated that approximately a week later, after classes had begun, Elliott returned her call but indicated it was impossible for him to attend school at that time. Id. at 59-60. However, in Hamilton’s affidavit, submitted to this Court as part of the pretrial motions, Hamilton stated that Elliott never responded to her phone calls. D^147 (Supp.Deel. of Hamilton at 3). Further, Elliott’s file contains no letters either notifying him of his placement on the waiting list or his admission to school, despite the existence of such documentation for others offered admission from the waiting list late in the process. The Court finds that Elliott had to have realized, at minimum, his application was under reconsideration when an assistant dean initially contacted him. However, being offered a position on the waiting list, as the Court has already found, is not equivalent to admission. To determine whether Elliott actually received an offer of admission, the Court must evaluate the conflicting testimony of Elliott and Hamilton. The discrepancies in Hamilton’s affidavit and trial testimony, as well as the law school’s lack of documentation of Elliott’s status, weigh in Elliott’s favor. Accordingly, the Court finds that Elliott was not notified of his admission to law school. In 1992, Elliott also applied to Baylor School of Law and Texas Tech School of Law. He was denied admission to Baylor. Although accepted at Texas Tech, a state university, Elliott declined the offer of admission by letter dated June 2, 1992. See D-401. C. Douglas Carvell Douglas Carvell had a TI of 197, which was based on an undergraduate GPA of 3.28 and an average LSAT score in the 76th percentile. His application reflects that in 1991 he received his B.A. in political science from Hendrix College in Conway, Arizona. P-151. The LSDAS report indicates Carvell ranked 98th in his class of 247 at Hendrix College. P-151; D-336 at A-49. Carvell provided detailed responses to the application questions on typewritten attachments to his application. Carvell’s file included three letters of recommendation, one from a professor at Hendrix College that compliments his intellectual abilities but describes his performance as uneven, disappointing, and mediocre. P-151. Because Carvell’s TI placed him in the nonminority discretionary zone, his file was reviewed by a subcommittee of three. He received no votes from the two faculty members on the subcommittee, Professors Steven Goode and Mark Gergen, but did get one favorable vote from a student member of the committee. See D-335, D-336. Therefore, by letter dated April 15, 1992, the law school offered him a position on the waiting list, which he accepted. While he was on the waiting list, Carvell’s file was reviewed by Associate Dean Michael Sharlot, a member of the admissions committee. Sharlot did not vote to admit Carvell from the waiting list. D-334 at A-43-A-44. By letter dated July 16, 1992, the law school denied Carvell admission. P-151. In addition to the law school, Carvell applied for admission to Southern Methodist University School of Law and Vanderbilt School of Law. He was denied admission to Vanderbilt, but was accepted at SMU, where he has completed his first year of law school. Carvell, vol. 10 at 6-7. Carvell also applied to the University of Texas School of Business and was denied admission. Id. at 12. At SMU, Carvell is pursuing a master’s of business administration in a joint program with the SMU law school. Id. at 6. D. David Rogers David Rogers had a TI of 197 based on his undergraduate GPA of 3.13 and an LSAT score of 166. In the early to mid-1980s, Rogers attended the University of Texas as a student in Plan II, an honors program. However, in 1985, he was dismissed because of his poor scholastic performance. Rogers, vol. 11 at 55. Rogers subsequently attended the University of Houston-Downtown and received an undergraduate degree in professional writing in 1990. P-171; Rogers, vol. 11 at 56. In 1992, Rogers received an advanced degree in professional writing from the University of Southern California. P-171. Rogers noted on his law school application that “as a white who attended an all-minority school for several years, and who was raised by a single mother, I have an unusual understanding of the challenges faced by women and minorities.” P-171. Rogers’s application file contains no letters of recommendation. P-171; see also D-335 at A-46-A-47. Rogers received no votes from any member of the subcommittee that reviewed his file in the nonminority discretionary zone. By letter dated April 7, 1992, he was denied admission to the law school. P-171. IV. DISCUSSION A. Ripeness and Standing As a preliminary matter, the defendants contest the ripeness of two of the plaintiffs’ claims and the standing of all plaintiffs to bring this cause of action. With regard to Hopwood and Elliott, the defendants argue their claims are not ripe because neither was denied admission. As stated above, the Court has found both Hopwood and Elliott were, in effect, denied admission to the law school. Therefore, a ripe controversy exists between these two plaintiffs and the defendants. The defendants contend Hopwood lacked standing to challenge the admissions policy because she failed to accept a position on the waiting list or to ask for deferred admission. Therefore, according to the defendants, she has failed to exhaust the administrative procedures available to her. The defendants further contend all plaintiffs lack standing in that none can show they would have been granted admission absent the challenged admissions policies. To have standing to challenge a governmental action, a plaintiff must demonstrate a concrete “injury in fact,” a causal relationship between the injury and the challenged conduct, and a likelihood the injury will be redressed by a favorable decision. Northeastern Fla. Contractors v. City of Jacksonville, — U.S. -, ---, 113 S.Ct. 2297, 2301-02, 124 L.Ed.2d 586 (1993). However, the “injury in fact” in an equal protection case involving a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group is the denial of the equal treatment and not the ultimate inability to obtain the benefit. Id. at -, 113 S.Ct. at 2303. The defendants assert this exception to requiring plaintiffs to show a direct causal relationship is limited in its application to challenges to the validity of express set-asides or reservations such as those addressed in City of Jacksonville and Bakke. The Court does not read the requirements for standing set forth in City of Jacksonville to be limited in the manner defendants contend. In defining standing as applied in equal protection cases, the Supreme Court reviewed its precedent on the issue. The overarching proposition of the cases the Supreme Court cited in reaching its holding was not that the causal-connection exception applied only to specific set-asides, but that an “injury in fact” stemmed from any governmental barrier that either created a discriminatory obstacle or had the effect of producing unequal access to a governmental benefit. Accordingly, the Court finds all the plaintiffs have standing — they have sufficiently alleged that the law school’s admission process is the cause of their injury and that a judicial order could redress the injury. B. Standard of Review Affirmative action plans based on race trigger strict judicial scrutiny. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 721, 102 L.Ed.2d 854 (1989); see also Bakke, 438 U.S. at 291, 98 S.Ct. at 2748 (Powell, J.) (“Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.”). Further, “the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273, 106 S.Ct. 1842, 1846, 90 L.Ed.2d 260 (1986); see also Croson, 488 U.S. at 494, 109 S.Ct. at 722 (reaffirming equal protection analysis is not dependent on the race of those burdened or benefited by a classification). The defendants contend, however, strict scrutiny is inappropriate in this cause in light of the Supreme Court’s holding in Metro Broadcasting v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990). In Metro Broadcasting, the Supreme Court held that affirmative action plans adopted pursuant to federal mandates are subject to intermediate scrutiny — a determination whether the plans serve important governmental objectives and whether they are substantially related to the achievement of the objectives. Id. at 565, 110 S.Ct. at 3009. The defendants contend that the Texas Plans equate to a federal mandate because they stem from the OCR’s insistence on full compliance with Title VI, an objective that is within the power of Congress. The Court finds the argument unpersuasive. In Metro, the FCC’s minority ownership programs had been specifically mandated and approved by Congress. Id. at 563, 110 S.Ct. at 3008. While it is true that Congress has the power to identify and redress the effects of discrimination and has charged the DOE with assuring compliance with Title VI, there is no similar congressional mandate in this cause. Further, the FCC is a licensing body that, pursuant to a congressional mandate, established specific minority ownership policies. The OCR has provided Texas with a number of suggested tools Texas may implement to bring the higher educational system into compliance with Title VI; it has not, however, required the State to adopt any specific procedures. Although the defendants characterize the law school’s efforts as pursuant to an OCR “consent decree,” the evidence reflects that, to date, the State of Texas’ efforts to comply with Title VI have been made voluntarily in an effort to avoid a specific mandate or the loss of federal funding. Ashworth, vol. 13 at 34, 39. Further, under equal protection analysis, the same level of scrutiny applies to race-conscious affirmative action plans adopted pursuant to consent agreements as to other voluntarily adopted plans. See, e.g., In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1501 (11th Cir.1987), aff'd sub nom. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) (Title VII consent decree). Indeed, the most recent circuit court opinion analyzing an affirmative action plan in the education context, specifically a scholarship plan adopted in response to protracted litigation and OCR guidelines, upheld the lower court’s application of strict scrutiny as the proper standard for review of the plan. See Podberesky v. Kirwan, 956 F.2d 52, 55 (4th Cir.1992). The most compelling justification for application of strict scrutiny in this context is to provide assurance that individual rights are afforded the full protection they merit under the Constitution. Only by applying strict scrutiny can a court honestly weigh the validity and necessity of efforts to remedy past wrongs against the rights of otherwise qualified nonminorities affected by the efforts. Although the use of racial classifications is disfavored, there are instances when such classifications serving proper purposes should be upheld. Only through diligent judicial examination can a court determine if a classification is consistent with constitutional guarantees and not related to “illegitimate notions of racial inferiority or simple racial politics.” Croson, 488 U.S. at 493, 109 S.Ct. at 721. Accordingly, the Court concludes the law school admissions process must be subjected to a strict scrutiny test under the Equal Protection Clause of the Fourteenth Amendment to protect both the integrity of the process and the important individual rights at issue. C. Application of Strict Scrutiny Strict judicial scrutiny involves a determination of whether the law school process served “a compelling governmental interest” and whether the process is “narrowly tailored to the achievement of that goal.” See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274, 106 S.Ct. 1842, 1847, 90 L.Ed.2d 260 (1986). The purpose of ascertaining whether a compelling governmental interest exists is to “smoke out” illegitimate uses of race by ensuring that the goal is important enough to use the suspect tool of racial preference. Croson, 488 U.S. at 493, 109 S.Ct. at 721. The narrowly tailored analysis “ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Id. 1. Compelling Governmental Interest. — Both sides expended considerable time and effort at trial on the issue of whether a compelling governmental interest existed sufficient to justify the need for the law school’s affirmative action program. The defendants offered a number of reasons as justification for the law school’s affirmative action program. These reasons are set forth in the law school’s “Statement of Policy on Affirmative Action”: To achieve the School of Law’s mission of providing a first class legal education to future leaders of the bench and bar of the state by offering real opportunities for admission to members of the two largest minority groups in Texas, Mexican Americans and African Americans; To achieve the diversity of background and experience in its student population essential to prepare students for the real world functioning of the law in our diverse nation; To assist in redressing the decades of educational discrimination to which African Americans and Mexican Americans have been subjected in the public school systems of the State of Texas; To achieve compliance with the 1983 consent decree entered with the Office of Civil Rights of the Department of Education imposing specific requirement for increased efforts to recruit African American and Mexican American students; To achieve compliance with the American Bar Association and the American Association of Law Schools standards of commitment to pluralist diversity in the law school’s student population. D-362. Although all are important and laudable goals, the law school’s efforts, to be consistent with the Equal Protection Clause, must be limited to seeking the educational benefits that flow from having a diverse student body and to addressing the present effects of past discriminatory practices. See Bakke, 438 U.S. at 313; 98 S.Ct. at 2760 (environment fostering robust exchange of ideas makes goal of diversity “of paramount importance in the fulfillment of [a university’s] mission”); United States v. Paradise, 480 U.S. 149, 167, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (1987) (“The government unquestionably has a compelling interest in remedying past and present discrimination by a state actor.”); Podberesky, 956 F.2d at 57 (race-related remedy may be used in attempt to remedy effects of past discrimination). Accordingly, the Court will evaluate the program in light of these goals. The plaintiffs do not dispute that under the holding of Bakke, obtaining the benefits that flow from a racially and ethnically diverse ,; student body is a compelling interest justifying the use of racial preferences. Nevertheless, the plaintiffs suggest that under more recent Supreme Court decisions, the only compelling interest recognized for race-conscious programs is remedying the past effects of racial discrimination. However, none of the recent opinions is factually based in the education context and, therefore, none focuses on the unique role of education in our society. Absent an explicit statement from the Supreme Court overruling Bakke, this Court finds, in the context of the law school’s admissions process, obtaining the educational benefits that flow from a racially and ethnically diverse student body remains a sufficiently compelling interest to support the use of racial classifications. The defendants presented evidence, which included the testimony of deans from law schools across the country and the testimony of former and current law students, that the benefit to the law school educational experience derived from a diverse student population is substantial. See, e.g., Brest, vol. 22 at 22-23; Stein, vol. 18 at 20-21; Bollinger, vol. 16 at 23-26; Spedor, vol. 15 at 9-10. Additionally, several professors testified regarding the educational benefit of having a diverse group of students in the classroom setting. See, e.g., Goode, vol. 9 at 20-21; Yudof, vol. 21 at 59-60. According to the evidence presented at trial, without affirmative action the law school would not be able to achieve this goal of diversity. Had the law school based its 1992 admissions solely on the applicants’ TIs without regard to race or ethnicity, the entering class would have included, at most, nine blacks and eighteen Mexican Americans. Although under current law the goal of diversity is sufficient by itself to satisfy the compelling governmental interest element of strict scrutiny, the objective of overcoming past effects of discrimination is an equally important goal of the law school’s affirmative action program. The plaintiffs have asserted that any past discrimination against blacks occurred so long ago, it has no present effects and that the law school has never discriminated against Mexican Americans. The plaintiffs further assert the Court should limit its review of past discrimination to official acts and policy of the University of Texas law school and should not consider discrimination in Texas’ educational system as a whole. As support for this contention the plaintiffs cite Croson, in which the Supreme Court struck down a city set-aside program that required thirty percent of city contracts to be subcontracted to minority businesses. 488 U.S. at 499, 109 S.Ct. at 724 (“Like the claim that discrimination in primary and secondary school justifies a rigid racial preference in medical school admissions, an amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota.”). Recently, however, the Supreme Court held that a system of higher education is under an affirmative duty to eliminate every vestige of racial segregation and discrimination in its educational system and to reform those policies and practices that required or contributed to separation of the races. United States v. Fordice, — U.S. -, -, 112 S.Ct. 2727, 2743, 120 L.Ed.2d 575 (1992). Thus, it appears the Supreme Court has recognized that the restrictions it has applied in ascertaining the present effects of past discrimination in the employment context, specifically the prohibition against remedying effects of “societal discrimination” and discrimination implemented by another governmental unit, are not appropriate in the education context. See also Podberesky v. Kirwan, 838 F.Supp. 1075, 1098 & n. 79 (D.Md.1993). “Applicants do not arrive at the admissions office of a professional school in a vacuum,” and, in fact, have ordinarily been students in an educational system for sixteen years. Geier v. Alexander, 801 F.2d 799, 809 (6th Cir.1986). The Court believes, therefore, the residual effects of past discrimination in a particular component of a state’s educational system must be analyzed in the context of the state’s educational system as a whole. The State’s institutions of higher education are inextricably linked to the primary and secondary schools in the system. Accordingly, this Court has not limited its review to the law school or Texas’ higher education system in evaluating the present effects of past discrimination. However, were the Court to limit its review to the University of Texas, the Court would still find a “strong evidentiary basis for concluding that remedial action is necessary.” Podberesky v. Kirwan, 956 F.2d at 55. As discussed above, Texas’ long history of discrimination against blacks and Mexican Americans in public education is chronicled in court opinions, the findings of the OCR, and the continuing desegregation suits against the State. The State of Texas engaged in overt discrimination against blacks until the practices were forcibly dismantled in the relatively recent past. Discrimination in education was at the center of official discrimination against black Texans. Additionally, the University of Texas has a history of racial discrimination. Similarly, the State has subjected Mexican Americans t