1997 Texas Attorney General Reports and Opinions 1 (1997)

handle is hein.sag/sagtx0067 and id is 1 raw text is: Office of the Attornep           @eneral
Otate of Ecxas
DAN MORALES
ATTORNEY GENERAL                         February 5, 1997
Mr. William P. Hobby                          Letter Opinion No. 97-001
Chancellor
University of Houston System                  Re: Effect of Hopwood v. State of Texas on
1600 Smith, Suite 3400                       various scholarship programs of the University of
Houston, Texas 77002-7347                     Houston (ID# 39347)
Dear Chancellor Hobby:
We have received your opinion request dated January 15, 1997, in which you ask various
questions concerning the specific effect of the Fifth Circuit Court of Appeals decision in Hopwood
v. State, 78 F.3d 932 (5th Cir. 1996), reh'g en ban denie4 84 F.3d 720 (5th Cir. 1996), cer
denie4 116 S. Ct.. 2581 (1996). You first question the application of Hopwood to financial aid
programs and its precedential value in light of the 1978 decision of the United States Supreme Court
in Regents of the University of Cahfornia v. Bakke, 438 U.S. 265 (1978). You then ask about
Hopwood's impact on five specific scholarship programs and certain University of Houston data
collection activities. Because of the importance of these issues to the higher education community
of this state, we have expedited a response to you.
To answer your questions fully, however, it is first necessary to trace the development of the
Equal Protection case law involving governmental preferences based on race decided by the United
States Supreme Court. We will then examine the Hopwood decision itself.
Equal Protection Analysis
The Equal Protection Clause, which is found in section I of the Fourteenth Amendment,
mandates that [n]o State shall ... deny to any person within its jurisdiction the equal protection of
the laws.' The Supreme Court has interpreted this to mean that any racial classification made by
government is highly suspect and must be reviewed under the most exacting judicial scrutiny. City
'Title 42 of tbe United States Code, section 2000d, provides: No 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
discrimination under any propam or activity receiving federal financial assistance. We do not discuss the requirements
of title VI in this opinion because it proscribes only those racial classifications that would violate the Equal Protection
Clause or the Fifth AmendmenL Bakke, 438 U.S. at 287 (J. Powell); UnhitedStates v. Fordice, 505 U.S. 717 (1992) (our
cases make clear, and the parties do not disagree, that the reach of title VI's protection extends no further than the Fourteenth
Amnment. (citations omitted)). We note, however, that the prohibitions of title VI would apply to any institution, public
or private, that receives federal financial assistance.

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