Revised October 30, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-50454

FRANCOIS DANIEL LESAGE,

Plaintiff-Appellant,

VERSUS

STATE OF TEXAS; UNIVERSITY OF TEXAS SYSTEM;

BERNARD RAPOPORT; THOMAS O. HICKS; MARTHA SMILEY;

LINNET DEILY; DONALD EVANS; ZAN HOLMES, JR.;

LOWELL LEBERMANN; TOM LOEFFLER; ELLEN CLARKE TEMPLE;

UNIVERSITY OF TEXAS AT AUSTIN; ROBERT BERDAHL;

COLLEGE OF EDUCATION; MANUEL JUSTIZ, Dean of the

College of Education, in his official capacity;

FRANK WICKER, Director of Admissions, in his official

capacity; WILLIAM CUNNINGHAM, Chancellor, Chancellor of

the University of Texas System in his official capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas

October 13, 1998

Before REAVLEY, DeMOSS, and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:-2-

Francois Daniel Lesage applied to enroll in a doctoral program

in counseling psychology at The University of Texas at Austin.

Midway through the University’s process of accepting applicants to

that program, our Court handed down its opinion in Hopwood v.

Texas

, 78 F.3d 932 (5th Cir.), cert. denied

, 518 U.S. 1033, 116 S.

Ct. 2581 (1996).

Lesage, an African immigrant of Caucasian descent, was denied

admission. He consequently sued the State of Texas, the University

and several of its subdivisions, and various University officials

in their official capacities. Lesage alleged that the University

impermissibly relied on race as a selection criterion by giving

preferred status to Black and Hispanic applicants. He claimed that

the University’s admissions policy violated the Fourteenth

Amendment of the United States Constitution and 42 U.S.C. §§ 1981,

1983, and 2000d. He sought monetary, declaratory, and injunctive

relief.

The state asserted sovereign immunity for itself, its

agencies, and its officials acting in their official capacity under

the Eleventh Amendment, and at an early stage in the proceedings

the district court dismissed Lesage’s claims to the extent that he

sought monetary relief under §§ 1981 and 1983. Lesage moved for

partial summary judgment on the issue of the state’s liability, and

the state moved for summary judgment based on its theory that

Lesage would have been denied admission regardless of the use of1 The state has not filed a notice of appeal from the district

court’s ruling that the state was not immune from Lesage’s Title VI

claims. At first blush it might appear that to dismiss the case

now on sovereign immunity grounds would violate the rule that an

appellate court simply has no authority to grant the state relief

that would expand its rights under the judgment. See F ED

. R. A PP

.

P. 4(a) (“[I]n a civil case in which an appeal is permitted by law

as of right from a district court to a court of appeals the notice

of appeal required by Rule 3 must be fi led with the clerk of the

dist rict court within 30 days after the date of entry of the

judgment or order appealed from

. . . .”); cf. United States v.

Coscarelli

, 149 F.3d 342, 343 (5th Cir. 1998) (en banc).

Nevertheless, “the Eleventh Amendment defense sufficiently partakes

of the nature of a jurisdictional bar so that it need not be raised

in the trial court.” Edelman v. Jordan , 415 U.S. 651, 678, 94 S.

Ct. 1347, 1363 (1974); see Texas ex rel. Bd. of Regents of Univ. of

Tex. Sys. v. Walker

, 14 2 F.3d 813, 819 n.7 (5th Cir. 1998),

petition for cert. filed

, 67 U.S.L.W. 3156 (U.S. Aug. 26, 1998)

(Nos. 98-348 & 9 8-350). It would be anomalous for us to require

the state to file a cross-appeal to preserve the immunity issue for

appeal when the state had no obligation to raise the issue in the

district court in the first place.

-3- racial preferences in admissions. The district court granted the

state’s motion and dismissed the case.

Lesage appeals from the adverse judgment, and we reverse.

I.

The state asserts that Lesage’s claims under Title VI of the

Civil Rights Act of 1964, 42 U.S.C. § 200 0d, are barred by the

Eleventh Amendment. 1 Pursuant to the United States Constitution,

“[t]he Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or

by Citizens or Subjects of any Foreign State.” U.S. C ONST . amend.-4-

XI. Federal jurisdiction is thus negated with respect to covered

suits, includ ing federal suits against a state brought by the

citizens of that state. S ee Idaho v. Coeur d’Alene Tribe

, 521 U.S.

261, ---, 117 S. Ct. 2028, 2033 (1997); Hans v. Louisiana

, 134 U.S.

1, 10 S. Ct. 504 (1890). Eleventh Amendment immunity, if

applicable, is shared by a state’s agencies and officers to the

extent that the state is the “real, substantial party in interest.”

Pennhurst State Sch. & Hosp. v. Halderman

, 465 U.S. 89, 101, 104 S.

Ct. 900, 908 (1984); see Regents of the Univ. of Cal. v. Doe , 519

U.S. 425, ---, 117 S. Ct. 900, 903 (1997); Earles v. State Bd. of

Cert. Pub. Acc’ts

, 139 F.3d 1033, 1036 (5th Cir. 1998), petition

for cert. filed

, 67 U.S.L.W. 3177 (U.S. Sept. 1, 1998) (No.

98-385).

The di strict court addressed the state’s original claims of

sovereign immunity with respect to the entire case and granted the

state’s motion to dismiss to the extent that Lesage sought monetary

relief from the state pursuant to 42 U.S.C. §§ 1981 and 1983. The

motion was otherwise denied. The entire case was later dismissed

with prejudice pursuant to the court’s entry of summary judgment in

favor of the state.

Lesage may not bring his claims against the state in federal

court unless the state has waived its immunity or Congress has

abrogated it. Congress has conclusively resolved this issue

against the state’s claims of immunity by providing that “[a] State-5-

shall not be immune under the Elev enth Amendment of the

Constitution of the United States from suit in Federal court for a

violation of . . . title VI of the Civil Rights Act of 1964.” 42

U.S.C. § 2000d-7(a)(1).

A.

The state contends that the abrogation of its Eleventh

Amendment immunity under 42 U.S.C. § 2000d-7(a)(1) is invalid. “In

order to determine whether Congress has abrogated the States’

sovereign immunity, we ask two questions: first, whether Congress

has ‘unequivocally expresse[d] its intent to abrogat e the

immunity’; and seco nd, whether Congress has acted ‘pursuant to a

valid exercise of power.’” S eminole Tribe of Fla. v. Florida

, 517

U.S. 44, 55, 116 S. Ct. 1114 , 1123 (1996) (quoting G reen v.

Mansou r , 474 U.S. 64, 68, 106 S. Ct. 423, 426 (1985)) (internal

citation omitted, alterations in original). The first element of

this inquiry

-- “a clear legislative statement,” i d.

, of

congressional inten t to abrogate the states’ immunity -- has

plainly been satisfied by 42 U.S.C. § 2000d-7(a)(1).

The second element

-- federal legislative power to accomplish

the abrogation

-- is also present. The Constitution forbids any

state law that may “deny to any person within its jurisdiction the

equal protection of the laws.” U.S. C ONST

. amend. XIV, § 1. This

provision has been construed to mean that in the distribution of-6-

benefits a state government cannot discriminate among citizens on

the basis of race absent a compelling governmental interest in

doing so, narrowly tailored to accomplish that need. S ee, e.g.

,

Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 227, 115 S. Ct.

2 097, 2113 (1995); City of Richmond v. J.A. Croson Co.

, 488 U.S.

469, 493-94, 109 S. Ct. 706, 721-22 (1989); Dallas Fire Fighters

Ass’n v. City of Dallas, Te x. , 150 F.3d 438, 440-41 (5th Cir.

1998); Messer v. Meno

, 130 F.3d 130, 135-36 (5th Cir. 1997),

petition for cert. filed

, 67 U.S.L.W. 3259 (U.S. Sept. 23, 1998)

(No. 98-535); Hopwood , 78 F.3d at 940.

Congress has “power to enforce” the substantive provisions of

the Fourteenth Amendment. U.S. C O NST

. amend. XIV, § 5. While this

is a broad grant of power, it is not unlimited. S ee City of Boerne

v. Flores

, 117 S. Ct. 2157, 2163 (1997) (quoting Oregon v.

Mitchell

, 400 U.S. 112, 128, 91 S. Ct. 260, 266 (1970)). Congress

only has the power to “enforce.” This power is not a power to

decree or change the substance of constitutional rights, because if

it we re Congress could no longer be said to be enforcing the

provisions of the Fourteenth A mendment. S ee id

. at 2164. The

Supreme Court thus recently announced a new standard for testing

whether Congress has properly exercised Section Five power: “There

must be a congruence and proportionality between the injury to be

prevented or remedied and the means adopted to that end.” Id

., 117

S. Ct. at 2164. This Court has paraphrased the command in Flores2 The text of the statute apparently does not account for a

constitutionally permissible race-based distinction. Strict

scrutiny is not “s trict in theory, but fatal in fact.” A darand

,

515 U.S. at 237, 11 5 S. Ct. at 2117 (citing U nited States v.

Paradise

, 480 U.S. 149, 107 S. Ct. 1053 (1987), as an example of a

case in wh ich a narrowly tailored race-based remedy survived

scrutiny).

-7- to involve consideration of “two primary facets: the extent of the

threatened constitutional violations, and the scope of the steps

provided in the legislation to remedy or prevent such violations.”

Coolbaugh v. Louisiana ex rel. La. Dep’t of Public Safety & Corr.

,

136 F.3d 430, 435 (5th Cir. 1998), cert. denied on other grounds

,

67 U.S.L.W. 3230 (U.S. Oct. 5, 1998) (No. 97-1941) (petition filed

by Coolbaugh on ADA issues); see also Scott v. University of Miss.

,

148 F.3d 493, 501-02 (5th Cir. 1998).

In the case of Title VI, the constitutional concern is racial

discrimination in federally funded publi c institutions. Racial

discrimination by state actors invokes the prohibition of the Equal

Protec tion Clause. S ee U.S. C ONST

. amend. XIV, § 1. The

legislation enacted by Congress to enforce that pro hibition

provides that “[n]o person in the United States shall, on the

ground of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to

discrim ination under any program or activity receiving Federal

financial assistance.” 42 U.S.C. § 2000d. This law prohibits

precisely that which the Constitution prohibits in virtually all

possible applications. 2 It can therefore hardly be argued that the-8-

s tatute does not reflect “congruence and proportionality betwee n

the injury to be prevented or remedied and the means adopted to

that end.” That being the case, the original enactment of Title

VI, as well as the subsequent explicit abrogation of state

sovereign immunity to permit federal enforcement of Title VI, were

within the congressional power to enforce the Fourteenth Amendment.

B.

The state suggests that Congress intended to invoke its powers

under the Spending Clause rather than the Fourteenth Amendment when

it enacted Title VI. Assuming arguendo the validity of that

proposition concerning the subjective intent of certain

leg islators, it is entirely irrelevant to our inquiry. In

evaluat ing the constitutionality of a statute, we simply ask if

Congress sufficiently articulated an abrogation of state sovereign

immunity and if it had the power to do so. S ee Seminole Tribe

, 517

U.S. at 55, 116 S. Ct. at 1123. This is an entirely objective

inquiry, for “‘[t]he constitutionality of action taken by Congress

does not depend on recitals of the power which it undertakes to

exercise.’” E

EOC v. Wyoming

, 460 U.S. 226, 24 3 n.18, 103 S. Ct.

1054, 1064 n.18 (1983) (quoting Woods v. Miller

, 333 U.S. 138, 144,

68 S. Ct. 421, 424 (1948)) (alteration in original); see also

Ussery v. Louisiana ex rel. La. Dep’t of Health & Hosps.

, 150 F.3d

431, 436 n.2 (5th Cir. 1998) (“Given the objectiv e nature of our3 Pub. L. No. 93-112, § 504, 87 Stat. 355, 394 (codifi ed as

amended at 29 U.S.C. § 794).

-9- judicial review, the State’s cursory argument that the statutory

text and legislative history of the 1974 Amendments to the EPA

support a finding that Congress was act ing pursuant to the

interstate co mmerce clause when it made those amendments is

immaterial.”); Wheeling & Lake Erie Ry. Co. v. Public Util. Comm’n

,

141 F.3d 88, 92 (3d Cir. 1998) (“[W]hen determining the sources of

Congress’s authority to legislate, we may look beyond the expressed

constitutional basis in a statut e’s preamble or legislative

history.”); Crawford v. Davis

, 109 F.3d 1281, 1283 (8th Cir. 1997);

Bryant v. Ne w Jersey Dep’t of Transp. , 1 F. Supp. 2d 426, 432-35

(D.N.J. 1998).

Moreover, it is the statute abrogating immunity, not the

particular substantive provision of the statute, which specifically

concerns us. See Ussery , 150 F.3d at 436 n.2; Timmer v. Michigan

Dep’t of Commerce

, 104 F.3d 833, 838 n.7 (6th Cir. 1997). Congress

u nquestionably enacted 42 U.S.C. § 2000d-7 with the “intent” to

invoke the Fourteenth Amendment’s congressional enforcement power.

The purpose of the provision, enacted in 1986, was to legislatively

overrule the result in Atascad ero State Hospital v. Scanlon , 473

U.S. 234, 105 S. Ct. 3142 (1985). In A tascadero

, the Court held

that Section 504 of the Rehabil itation Act of 1973, 3 which

prohibited states from discriminating against the disabled in the4 Pub. L. No. 99-506, § 1003, 100 Stat. 1807, 1845 (codified at

42 U.S.C. § 2000d-7).

5 The coverage of the abrogation of Eleventh Amendment immunity

includes:

title IX of the Ed ucation Amendments of 1972 [20

U.S.C. § 1681 et seq .], the Age Discrimination Act

of 1975 [42 U.S.C. § 6101 et seq .], title VI of the

Civil Rights Act of 1964 [42 U .S.C. § 2000d e t

seq .], or t he provisions of any other Federal

statute prohibiting discrimination by recipients of

Federal financial assistance.

42 U.S.C. § 2000d-7.

6 Senator Cranston, self-proclaimed author of § 504 of the

Rehabilitation Act and the post- Atascadero legislation to abrogate

the states’ Eleventh Amendment immunity from suit under that

provisio n, spoke on the floor of the Senate concerning the

provision that would ultima tely be enacted and codified as 42

U.S.C. § 2000d-7. By unanimous consent, an official report on the

legislation, written by the Justice Department and relied upon by

-10- administration of f ederally funded programs, did not contain a

sufficiently specific statement of abrogation of Eleventh Amendment

immunity to permit suits against states in federal court. S ee

A tascadero

, 473 U.S. at 245-46, 105 S. Ct. at 3149. Congress

instantly recognized the far-reaching implications of this ruling

and enacted, as part of the Rehabilitation Act Amendments of 1986, 4

legislation to reverse the result in Atascadero and to prevent the

application of the reasoning in Atascadero to preclude the filing

of suits in federal co urt against states under similar statutes. 5

The Congressional Record contains specific references to exercising

congressional power under Section Five of the Fourteenth Amendment

to accomplish this abrogation of Eleventh Amendment immunity. 6 TheSenator Cranston, was entered into the report at Senator Cranston’s

request. With respect to congressional authority for the proposed

abrogation of Eleventh Amendment immunity, the letter opined that

such an action could be taken pursuant to powers under both the

Spending Clause and the enforcement clause (§ 5) of the Fourteenth

Amendment. With reference to use of the enforcement power, the

letter noted:

The [ Atascadero ] Court stated that Congress may

provide for suits against the States to enforce the

fourteenth amendment . . . .

* * *

. . . Atascadero provides the blueprint for

Congressional action to waive the eleventh

amendment’s ban to suit in Federal court under the

fourteenth amendment

. . . . Thus, to the extent

that the proposed amendment is grounded on

congressional powers under section five of the

fourteenth amendment, S. 1579 makes Congress’

intention ‘unmistakeably clear in the language of

the statute’ to subject States to the jurisdiction

of Federal courts.

132 C ONG

. R EC

. S15100 (daily ed. Oct. 3, 1986) (Letter from John R.

Bolton, Assi stant Attorney General, U.S. Department of Justice,

Office of Legislative and Intergovernmental Affairs, to Hon. Orrin

Hatch, Chairman, Committee on Labor and Human Resources, U.S.

Senate (July 13, 1986) (citing Atascadero

, 473 U.S. at 242, 105 S.

Ct. at 3147, and Fitzpatrick v. Bitzer

, 427 U.S. 445, 96 S. Ct.

2666 (1976))).

-11- s tate’s argument thus rests on presumptions regarding subjectiv e

intent which are simply incorrect with respect to the relevant

statute.

We thus conclude that the district court correctly ruled when

it declined to dismiss Lesage’s claims under 42 U.S.C. § 2000d on

Eleventh Amendment grounds.-12- II.

In his mot ion for partial summary judgment, Lesage relied

entirely upon the state’s admission that its pre- Hopwood admissions

process “involved explicit assessments of many candidate

attributes, including race.” The state responded in its own motion

for summary judgment and in its reply to Lesage’s motion that race

had nothing to do with the decision to exclude Le sage from the

counseling psychology program. The state’s main two contentions

were that Lesage was eliminated from consideration before race was

taken into account, and that Lesage would not have been offered

admission even if racial preferences had not been employed.

W e review a summary judgment de novo. S ee, e.g.

, FDIC v.

Shaid

, 142 F.3d 260, 261 (5th Cir. 1998) (per curiam). Summary

judgment is appropriate when “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” F E D

. R. C IV

. P. 56(c). The movant is

obligated to explain the basis for its motion, identifying evidence

in the record which demonstrates the absence of a genuine issue of

material fact. S ee Celotex Corp. v. Cat rett

, 477 U.S. 317, 323,

106 S. Ct. 2548, 2553 (1986)

. In order to defeat summary judgment,

the nonmovant must produce affidavits or othe r evidence

establishing specific facts that show that there is a genuine issue-13-

for trial. S ee F ED

. R. C IV

. P. 56(e); Matsushita Elec. Indus. Co.

v. Zenith Radio Corp.

, 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356

( 1986). Drawing all reasonable inferences in favor of the

nonmovant, we conduct the same inquiry as would the district court.

See, e.g.

, Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 255, 106

S. Ct. 2505, 2513 (1986).

A.

The s tate presented evidence to clarify the admissions

procedure for the counseling psychology program in order to support

its contention that, although race had been considered during the

admissions process, Lesage had been eliminated as a candidate prior

to the use of racial preferences. An affidavit by Dr. Frank

Richardson, an associate professor of counseling psychology and the

chairman of the University’s counseling psychology admissions

committee, was attached to the state’s response. In it, Dr.

Richardson explained the admissions procedure, as it was conducted

for the class entering in the fall of 1996. Approximately 223

applications were received in January and February 1996. The first

cut, when Lesage’s application was eliminated, narrowed the field

to forty qualified applicants, from which approximately fifteen to

eighteen applicants would be offered admission. Applicants who did

not meet the minimum standards for grade point average or Graduate

Record Exam (GRE) score were eliminated at this stage. Marginal-14-

candidate s whose relatively poor academic record or test scores

were not counterbalanced by other factors such as the personal

statement, difficulty of undergraduate curriculum, strength of

recommendations, or extenuating circumstances, were also

eliminated. The affidavit conceded that in choosing students from

the resulting pool of forty candidates, the committee did consider

“the Program’s pedagogical need for a diverse entering class,”

which, to the committee, meant that it would “consider factors such

as gender, age, race, and ethnicity in making [a] final decision as

to the most desira ble composition of the class.” Based on this

evidence, the state asserted, in it s response to Lesage’s motion

for partial summary judgment, that:

Whatever consideration is given race and ethnicity

in deciding on the ultimate makeup of a counseling

psychology cla ss, it played no role in the review

of Lesage’s application. His application was

rejected early on, when the committee was reviewing

the large pool and narrowing it down to

approximately 40 applicants. Contrary to the twotrack system analyzed in Hopwood

, Lesage’s

application was “in the mix” with the rest, and was

not even remotely competitive. Only later on did

the committee add student “diversity” as a

decision-making criterion.

In reply, Lesage prov ided the district court with evidence that

r ace also had been taken into account before the “first cut” to

forty students was determined. The evidence was taken from Dr.

Richardson’s deposition testimony regarding the initial reduction

of the appli cant pool to forty candidates. Dr. Richardson

testified that:7 The quoted passage in the text, taken from Lesage’s response

to the state’s reply to his motion for partial summary judgment, is

a heavily edited condensation of Dr. Richardson’s testimony. The

actual, unedited exchange, reads as follows:

Q. [counsel for Lesage] Well, let’s talk about -- And

this is just real basic -- basic criteria you use, and

let’s just kind of start with this paring down process from

220 to 40. What criteria in the folder do you rely on

most?

A. [Dr. Richardson] From the 40 to the 20 or the 200 to

the 40.

Q. From the 220 to the 4 0 when you’re making the

initial cut. I mean, obviously G.R.E.

A. Well, let me see if I can summarize it

intelligently. From the 220 or so to the 40, there are a

great many folders that even though we try to look at them

thoughtfully for a bit, they’re clearly just completely out

of the consideration, I mean, with very low G.R.E.s or very

low grade point average or very sloppily done or something

but typically G.R.E. and grades. So there is a great many

of them. It’s easy to weed out.

But you know, beyond that there is 100 or so, I guess,

that require s ome thoughtful consideration. And I really

don’t know exactly how many. You know, there is a set of

conventional criteria, G.R.E.s, grades, letters of

recommendation, educational background that might include

the quality of the school or major. And personal statement

is an important, very important piece of the pu zzle. So

there is a set of conventional criteria like th at we use,

and people have to be fairly high on most o f them, you

know, strong on all but one or two and decent on those.

Q. To move up?

-15- [T]here a re a couple of other things that are

in volved. . . . We’re interested in diverse

cultures and ethnic backgrounds. . . . Obviously,

we’re interested in qualified people of Hispanic

and African American background. Everyone in

psychology and counseling psychology is very

sensitive to those issues and very concerned to get

qualified minority students. 7A. To move up. There is another consideration, and we

try to evalua te by looking at letters on statements and

background. This is written in our literature. And we

want people who give evidenc e of interest in and aptitude

for and personal qualities for counseling and psychotherapy

work for professional psyc hology work. Now, that is a

necessary condition but not a sufficient one.

We’re also interested in people who come across pretty

strongly in that regard who have shown some spark of --

some potential for creative, professional or intellectual

work of a special kind. And that includes being interested

in people who want to do things other than just be

counselors and psy chotherapists, who are interested in

public service, public policy, what is som etimes called

community psychology work, or who hav e research or theory

interests of a special kind, professional or ac ademic

creativity and what is the word, ori ginality, those two

things. So we look for that as well as the basic criteria.

Q. Now, have you jumped ahead from cutting from the 220

to the 40 to talking more about how --

A. No.

Q. That is how --

A. I keep expecting you to ask me some more things.

But, you know, there are a couple of other things that are

involved. We’re very interested in people with diverse

interests, backgrounds. We’re interested in diverse

cultures and ethnic backgrounds. We’re interested in

diverse life experiences. We’re interested in getting both

males and females in the program.

I could lump all of those under the category, I guess,

of diversity. We’re keenly interested in getting a diverse

studen t body. Occasionally, a capable handicapped person

will apply. There was one in recent years.

We have a handful of applications of people from other

countries. That is often very interesting, even Russia or

China. They usually look like very interesting people, but

there are reasons why they probably wou ldn’t make it in a

graduate school of this type, but t hat is not always the

case. We’ve accepted a couple of students in the last

c ouple of years or two from Iceland, which has an

-16-interesting program of preparing people very we ll for

graduate studies overseas.

Obviously, we’re inte rested in qualified people of

Hispanic and African American background. Everyone in

psychology and counseling psycholog y is very sensitive to

those issues and very concerned to get qualified minority

students.

-17- Despite this evidence, the district court granted the state’s

summary judgment motion, stati ng: “[T]he Court finds no evidence

that race was a factor in the decision to deny Plaintiff’s

admission to the counseling psychology program. That is, the Court

finds that Plaintiff cannot present a prima facie case of disparate

treatment or disparate impact d iscrimination.” In light of the

state of the record and this Court’s ruling in Hopwood

, the

district court erred by disposing of Lesage’s claims in this

fashion.

Just as in Hopwood

, Lesage’s central claim is that he was

subjected to unconstitutional racial discrimination by the

U niversity’s evaluation of his admissions application. See

Hopwood

, 78 F.3d at 938. Dr. Richardson’s deposition testimony

created a fact issue as to wheth er race was considered by the

admissions committee during the first screening phas e, while

Lesage’s application was still being considered. If race was

considered before Lesage’s app lication was rejected, Lesage has

standing to challenge the admissions policy because his application

may have been affected by the use of racial preferences. In that-18-

scenario, the University’s consideration of race as an admissions

criterion must be subjected to strict scrutiny analysis. S ee,

e.g.

, Adarand , 515 U.S. at 227, 115 S. Ct. at 2113 (“[A]ll racial

classifications, imposed by whatever federal, state, or local

govern mental actor, must be analyzed by a reviewing court under

strict scrutiny.”); Croson

, 488 U.S. at 493-94, 109 S. Ct. at

721-22; Dallas Fire Fighters

, 150 F.3d at 440-41; Messer

, 130 F.3d

at 135-36; Hopwood

, 78 F.3d at 938, 940. “Diversity,” the

justification given for the University’s use of racial preferences,

is not a co mpelling state interest that satisfies the strict

scrutiny standard for the purpose of admissions at a public

university. See Hopwood , 78 F.3d at 944 (“[A]ny consideration of

race or ethnicity

. . . for the pur pose of achieving a diverse

student body is not a compelling interest under the Fourteenth

Amendment.”); cf. Lutheran Church--Missouri Synod v. FCC

, 141 F.3d

344 , 354 (D.C. Cir. 1998) (“We do not think diversity can be

elevated to the ‘compelling’ level [in the context of the FCC’s

equal employment opportunity regulations], particularly when the

Court has given every indication of wanting to cut back Metro

Broadcasting [ Inc. v. FCC

, 497 U.S. 547, 110 S. Ct. 2997

(1990)].”), peti tion for reh’g denied , 1998 WL 611116 (D.C. Cir.

Sept. 15, 1998), petition for reh’g en banc denied

, 1998 WL 611112

(D.C. Cir. Sept. 15, 1998); Taxman v. Board of Educ.

, 91 F.3d 1547

(3d Cir. 1996) (en banc) (declining to endorse diversity as an8 While we need not consider any evidence other than Dr.

Richardson’s deposit ion testimony in order to conclude that the

district court erred by granting summary judgment, we note for the

sake of completeness that the record contains further evidence to

support Lesage’s allegation of race-based discrimination.

Significantly, some Black and Hispanic cand idates were extended

offers of admission and admitted to the program, even before the

-19- a ppropriate justification for affirmative action programs in th e

employment context pursuant to Title VII), cert. dismissed

, 118 S.

Ct. 595 (1997).

Of course, when reviewing a summary judgment, a court must

draw all reasonable inferences in favor of the nonmovant. S ee,

e.g.

, Anderson

, 477 U.S. at 255, 106 S. Ct. at 2513. Dr.

Richardson admitted in his deposition that race was used as a

factor during the winnowing down of the pool of applications “from

the 220 to the 40” -- a stage at which Lesage was indisputably

still “in the mix.” At oral argument, we asked counsel for the

state to identify evidence in the record that might prove, despite

Dr. Richardson’s recollecti on at his deposition, that Lesage’s

applicati on was eliminated from consideration before any other

applicant benefitted from the admissions committee’s racial

p references. Counsel provided no such example; neither has our

review of the record discovered any such evidence. It logically

follows that th e district court erred by resolving a factual

dispute at the summary-judgment stage and declaring that there was

“no evidence that race was a f actor in the decision to deny

Plaintiff’s admission to the counseling psychology program.” 8first cut was even made. Lesage did not bring this specific

evidence to the attention of the district court until he filed his

motion for reconsi deration of the court’s grant of summary

judgment. Because Dr. Richardson’s deposition testimony, standing

alone, is sufficient to create a fa ctual issue that precluded

summary judgment, we decline to address whether the district court

abused its discretion by refusing to reconsider the entry of

summary judgment in light of this additional evidence.

-20- Under these circums tances, given the genuine, material factual

dispute as to when the University first used race as a criterion to

choose or exclude candidates to the counseling psychology program

in relation t o the point in time at which Lesage was denied

admission, it was error to grant summary judgment in favor of the

state.

B.

The State of Texas contends that despite its use of racial

preferences in the admissions process for the University’s

counseling psychology program, it is nevertheless entitled to

summary judgment because Lesage would not have been admitted to the

program even if race had not been taken into consideration. This

reasoni ng was supported by affidavits by Dr. Richardson and Dr.

Ricardo Ainslie, both of whom served on the admissions committee

for the counseling psychology program. Because no records relating

t o the admissions committee’s evaluations at this stage were

retained, the opinions expressed in these affidavits were based on

a fresh, post-admissions review of the application pool, undertaken

for the purposes of this litigation . These affidavits evaluated-21-

and criti cized Lesage’s application. Dr. Ainslie also compared

Lesage’s application to twenty-two “much stronger” applications,

all of which, according to Dr. Ainslie, would have earned offers of

admission before Lesage. The district court adopted this reasoning

as an alternative holding supporting its decision to grant summary

judgment in favor of the state. This argument, however, is simply

irrelevant to the pertinent issue o n summary judgment, namely,

w hether the state violated Lesage’s constitutional rights by

rejecting his application in the cours e of operating a racially

discriminatory admissions program.

In Hopwood

, even though the district court determ ined the

state had proved that “legitimate, nondiscriminatory grounds

exist[ed] for the law school’s denial of admission to each of the

four plaintiffs and that, in all likelihood, the plaintiffs would

not have been offered admission even under a constitutionally

permissible process,” this did not result in an outright grant of

summary judgmen t for the state. H opwood v. Texas

, 861 F. Supp.

551, 581 (W.D. Tex. 1994), rev’d on other grounds

, 78 F.3d 932 (5th

Cir.), cert. d enied , 518 U.S. 1033, 116 S. Ct. 2581 (1996). The

district court first determined liability and then turned t o the

competitiveness of the plaintiffs’ applications on the question of

damages. This was the proper ordering of matters before the court.

The possibility that the Hopwood plaintiffs, or Lesage, would not

have been offered admission is relevant only to the quantum of22

g:\tempmail\97-50454.op4 damages available

-- not to the pure question of the state’s

liability, which is the issue on summary judgment.

Assuming, as we must, that the state did indeed employ a

racially discriminatory counseling psychology admissions program as

alleged, those applicants who had not yet been eliminated from

considerat i on at the time racially preferential criteria were

applied have suffered an implied injury

-- even if their

applications ultimately would not have resulted in admission under

a nondiscriminatory admissions regime. See Hopwood , 78 F.3d at

957. “The injury in cases of this kind is that a ‘discriminatory

classification prevent[s] the plaintiff from competing on an equal

footing.’” A darand

, 515 U.S. at 211, 115 S. Ct. at 2105 (internal

citation omitted). Thus, even though the district court may have

correctly predicted that Lesage suffered no direct injury and

therefore incurred no compensatory damages, this scenario does not

foreclose the availability of some other relief to which he may be

entitled. The futility of Lesage’s application was, therefore, an

improper grounds for summary judgment.

III.

For the foregoing reasons, we REVERSE the judgment of the

district court. Because Lesage does not appeal from the denial of

his motion for partial summary judgment, we REMAND for further

proceedings.23

g:\tempmail\97-50454.op424

g:\tempmail\97-50454.op4 REAVLEY, Circuit Judge, specially concurring:

This court’s writing in Ho pwood , upon which the instant

judgment is reversed, was inconsistent with the judgment of the

Supreme Court in Regents of the University of California v. Bakke

,

438 U.S. 2 65; 98 S.Ct. 2733 (1978) and was unnecessary to the

holding or judgment of the Hopwood court. This circuit court,

however, considers that Hopwood writing to be binding law. I

concur here in the judgment only.