Lesage v. State of Texas ( 1998 )


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  •                     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:
          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 of
    
    
                                       -2-
    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. § 2000d, 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. CONST. amend.
    
    
    
      1
         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 FED. R. APP.
    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 filed with the clerk of the
    district 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, 
    142 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 & 98-350). 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-
    XI.    Federal jurisdiction is thus negated with respect to covered
    
    suits, including federal suits against a state brought by the
    
    citizens of that state.        See 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 district 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
    
    
                                           -4-
    shall    not   be     immune   under    the     Eleventh     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    abrogate     the
    
    immunity’; and second, whether Congress has acted ‘pursuant to a
    
    valid exercise of power.’”         Seminole Tribe of Fla. v. Florida, 
    517 U.S. 44
    , 55, 
    116 S. Ct. 1114
    , 1123 (1996) (quoting Green v.
    
    Mansour, 
    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,”      id.,    of
    
    congressional intent 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. CONST. amend. XIV, § 1.           This
    
    provision has been construed to mean that in the distribution of
    
    
                                            -5-
    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.                See, e.g.,
    
    Adarand Constructors, Inc. v. Pena, 
    515 U.S. 200
    , 227, 
    115 S. Ct. 2097
    , 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, Tex., 
    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. CONST. amend. XIV, § 5.       While this
    
    is a broad grant of power, it is not unlimited.           See 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 were Congress could no longer be said to be enforcing the
    
    provisions of the Fourteenth Amendment.             See 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 Flores
    
                                            -6-
    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 public institutions.                     Racial
    
    discrimination by state actors invokes the prohibition of the Equal
    
    Protection    Clause.     See     U.S. CONST.     amend.    XIV,   §   1.      The
    
    legislation    enacted   by     Congress    to   enforce    that   prohibition
    
    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
    
    discrimination 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
    
    
      2
         The text of the statute apparently does not account for a
    constitutionally permissible race-based distinction.        Strict
    scrutiny is not “strict in theory, but fatal in fact.” Adarand,
    515 U.S. at 237, 115 S. Ct. at 2117 (citing United States v.
    Paradise, 
    480 U.S. 149
    , 
    107 S. Ct. 1053
     (1987), as an example of a
    case in which a narrowly tailored race-based remedy survived
    scrutiny).
    
                                          -7-
    statute does not reflect “congruence and proportionality between
    
    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
    
    legislators,      it    is    entirely   irrelevant       to   our   inquiry.      In
    
    evaluating 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.             See 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.’”       EEOC v. Wyoming, 
    460 U.S. 226
    , 243 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 objective nature of our
    
    
                                             -8-
    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   acting      pursuant        to   the
    
    interstate    commerce       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    statute’s    preamble      or    legislative
    
    history.”); Crawford v. Davis, 
    109 F.3d 1281
    , 1283 (8th Cir. 1997);
    
    Bryant v. New 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
    
    unquestionably 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 Atascadero State Hospital v. Scanlon, 
    473 U.S. 234
    , 
    105 S. Ct. 3142
     (1985).               In Atascadero, the Court held
    
    that   Section   504    of    the       Rehabilitation      Act   of     1973,3    which
    
    prohibited states from discriminating against the disabled in the
    
    
      3
         Pub. L. No. 93-112, § 504, 87 Stat. 355, 394 (codified as
    amended at 29 U.S.C. § 794).
    
                                              -9-
    administration of federally funded programs, did not contain a
    
    sufficiently specific statement of abrogation of Eleventh Amendment
    
    immunity to permit suits against states in federal court.        See
    
    Atascadero, 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 court 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   The
    
      4
         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 Education 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 et
              seq.], or the 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
    provision, spoke on the floor of the Senate concerning the
    provision that would ultimately 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-
    state’s argument thus rests on presumptions regarding subjective
    
    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.
    
    
    
    
    Senator 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 CONG. REC. S15100 (daily ed. Oct. 3, 1986) (Letter from John R.
    Bolton, Assistant 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-
                                         II.
    
          In his motion 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 Lesage 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.
    
          We review a summary judgment de novo.          See, 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.”         FED. R. CIV. 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.    See Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323,
    
    
    106 S. Ct. 2548
    , 2553 (1986).       In order to defeat summary judgment,
    
    the   nonmovant   must     produce     affidavits   or   other   evidence
    
    establishing specific facts that show that there is a genuine issue
    
    
                                         -12-
    for trial.    See FED. R. CIV. 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   state     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
    
    
                                          -13-
    candidates 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 desirable composition of the class.”              Based on this
    
    evidence, the state asserted, in its 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 class, 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 two-
                track   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 provided the district court with evidence that
    
    race 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   applicant   pool    to   forty   candidates.   Dr.    Richardson
    
    testified that:
    
    
                                         -14-
                 [T]here are a couple of other things that are
                 involved.   . . .     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.7
    
      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 40 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 some 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 puzzle. So
          there is a set of conventional criteria like that we use,
          and people have to be fairly high on most of them, you
          know, strong on all but one or two and decent on those.
    
            Q.     To move up?
    
    
                                     -15-
       A.   To move up. There is another consideration, and we
    try to evaluate by looking at letters on statements and
    background. This is written in our literature. And we
    want people who give evidence of interest in and aptitude
    for and personal qualities for counseling and psychotherapy
    work for professional psychology 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 psychotherapists, who are interested in
    public service, public policy, what is sometimes called
    community psychology work, or who have research or theory
    interests of a special kind, professional or academic
    creativity and what is the word, originality, 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
    student 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 wouldn’t make it in a
    graduate school of this type, but that is not always the
    case.    We’ve accepted a couple of students in the last
    couple of years or two from Iceland, which has an
    
                              -16-
    Despite this evidence, the district court granted the state’s
    
    summary judgment motion, stating: “[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 discrimination.”                  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
    
    University’s       evaluation     of   his   admissions    application.         See
    
    Hopwood, 78 F.3d at 938.           Dr. Richardson’s deposition testimony
    
    created a fact issue as to whether race was considered by the
    
    admissions    committee     during     the    first   screening   phase,       while
    
    Lesage’s application was still being considered.                      If race was
    
    considered before Lesage’s application 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
    
    
           interesting program of preparing people very well for
           graduate studies overseas.
    
                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.
    
                                           -17-
    scenario, the University’s consideration of race as an admissions
    
    criterion must be subjected to strict scrutiny analysis.                      See,
    
    e.g., Adarand, 515 U.S. at 227, 115 S. Ct. at 2113 (“[A]ll racial
    
    classifications, imposed by whatever federal, state, or local
    
    governmental 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 compelling 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 purpose 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)].”), petition 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 an
    
                                            -18-
    appropriate justification for affirmative action programs in the
    
    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.                      See,
    
    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 recollection at his deposition, that Lesage’s
    
    application was eliminated from consideration before any other
    
    applicant   benefitted      from    the     admissions     committee’s        racial
    
    preferences.    Counsel provided no such example; neither has our
    
    review of the record discovered any such evidence.                    It logically
    
    follows that the district court erred by resolving a factual
    
    dispute at the summary-judgment stage and declaring that there was
    
    “no evidence that race was a factor in the decision to deny
    
    Plaintiff’s    admission    to     the    counseling    psychology      program.”8
    
    
      8
         While we need not consider any evidence other than Dr.
    Richardson’s deposition 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 candidates were extended
    offers of admission and admitted to the program, even before the
    
                                             -19-
    Under these circumstances, 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 to 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
    
    reasoning 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
    
    to 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
    
    
    first cut was even made.     Lesage did not bring this specific
    evidence to the attention of the district court until he filed his
    motion for reconsideration of the court’s grant of summary
    judgment. Because Dr. Richardson’s deposition testimony, standing
    alone, is sufficient to create a factual 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-
    and criticized 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 on summary judgment, namely,
    
    whether   the   state   violated   Lesage’s   constitutional   rights   by
    
    rejecting his application in the course of operating a racially
    
    discriminatory admissions program.
    
         In Hopwood, even though the district court determined 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 judgment for the state.        Hopwood v. Texas, 
    861 F. Supp. 551
    , 581 (W.D. Tex. 1994), rev’d on other grounds, 
    78 F.3d 932
     (5th
    
    Cir.), cert. denied, 
    518 U.S. 1033
    , 
    116 S. Ct. 2581
     (1996).             The
    
    district court first determined liability and then turned to 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 of
    
    
                                        -21-
                                         21
    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
    
    consideration 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.’”            Adarand, 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.
    
    
    g:\tempmail\97-50454.op4                     22
    g:\tempmail\97-50454.op4   23
    REAVLEY, Circuit Judge, specially concurring:
    
             This court’s writing in Hopwood, 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. 265
    ; 
    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.
    
    
    
    
    g:\tempmail\97-50454.op4         24