Can Texas public universities consider race in awarding financial aid after Hopwood?

Texas AG Opinion JC-0107: Withdrawal of the Hopwood Financial-Aid Letter Opinion

Plain-English summary

Senator Bill Ratliff asked whether the Fifth Circuit's 1996 decision in Hopwood v. Texas barred Texas public universities from considering race or ethnicity in student financial aid decisions, and asked the Attorney General to revisit a 1997 letter opinion on the subject.

The Attorney General's answer was procedural rather than a fresh ruling on the merits. In early 1997, the office had issued Letter Opinion 97-001, reading Hopwood to bar state universities from considering race in any aspect of measuring or awarding higher-education benefits, including admissions, financial aid, recruiting, and retention. By September 1999, the opinion explained, the law on the use of race in higher education was in flux and likely to stay that way. A new round of Hopwood litigation was pending before the Fifth Circuit (No. 98-50506), and the opinion expressed hope the court would take the case en banc and clarify the area. Even so, the opinion stressed that only the United States Supreme Court could resolve these sensitive questions with any real certainty, and that it was inadvisable to reach broad conclusions about what Hopwood permits outside the admissions context. Because the earlier Letter Opinion 97-001 had done exactly that, the Attorney General withdrew it. The opinion advised Texas state universities to wait for the courts to resolve Hopwood before restructuring or adopting new procedures for their financial aid programs.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did this opinion say universities could or could not use race in financial aid?
Neither, squarely. The opinion withdrew the earlier letter opinion that had answered the question broadly, and declined to set a new rule outside the admissions context while the law was unsettled.

What was Letter Opinion 97-001?
It was a 1997 opinion of the same office reading Hopwood to bar state universities from considering race in any higher-education benefit, including admissions, financial aid, recruiting, and retention. This opinion withdrew it.

Why did the Attorney General withdraw the earlier opinion instead of updating it?
The opinion explained that the law was in flux, a new round of Hopwood litigation was pending in the Fifth Circuit, and only the U.S. Supreme Court could resolve the issues with certainty, so a broad opinion beyond admissions was inadvisable.

What did the opinion tell universities to do in the meantime?
It advised them to await a resolution of Hopwood in the Fifth Circuit or the U.S. Supreme Court before restructuring or adopting new financial aid procedures.

Background and statutory framework

The question turned on Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996), the Fifth Circuit decision addressing the use of race in University of Texas admissions. The Attorney General's office had applied Hopwood beyond admissions in Letter Opinion 97-001, concluding it reached financial aid, recruiting, and retention as well. By the time of this opinion, a further round of Hopwood litigation was pending before the Fifth Circuit (No. 98-50506, filed June 1, 1998). Rather than maintain a broad position while the controlling law was unsettled, the opinion withdrew Letter Opinion 97-001 and deferred to forthcoming guidance from the Fifth Circuit or the Supreme Court.

Citations

Authorities:

• Tex. Att'y Gen. LO-97-001 (withdrawn by this opinion)

Cases:

• Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996)
• Hopwood v. Texas, No. 98-50506 (5th Cir. filed June 1, 1998)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0107
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0107.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

September 3, 1999

The Honorable Bill Ratliff
Chair, Finance Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0107

Re: Effect of Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) on the use of race or ethnicity as a factor in matters of student financial assistance; reconsideration of Attorney General Letter Opinion 97-001 (RQ-0044)

Dear Senator Ratliff:

You ask whether public institutions of higher education in the State of Texas are precluded under the court's decision in Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996) from considering race or ethnicity in decisions regarding student financial assistance. This office considered a similar question and rendered an opinion in early 1997 concluding that Hopwood precluded state universities from considering race as a factor in any aspect of measuring or awarding higher education benefits, including admissions, financial aid, recruiting, and retention. See Tex. Att'y Gen. LO-97-001.

We caution that the law concerning the consideration of race in higher education programs is in flux and is likely to remain so in the near future. As you know, the question of the State's higher education institutions' authority to consider race as a factor in their admissions programs currently is pending before the United States Court of Appeals for the Fifth Circuit in Hopwood v. Texas, No. 98-50506 (5th Cir. filed June 1, 1998). We hope that the Fifth Circuit will take the current round of Hopwood litigation en banc and give some additional guidance and clarification in this area of the law, but only the United States Supreme Court can resolve these sensitive issues with any degree of certainty. Absent clear guidance from the High Court, we think it inadvisable to reach broad conclusions on what may or may not be permitted under Hopwood on matters other than admissions. Because this office's prior opinion on the subject, Letter Opinion 97-001, does just that, we withdraw it. We advise state universities in Texas to await a resolution of Hopwood in the Fifth Circuit or the United States Supreme Court before restructuring or adopting new procedures for their financial aid programs.

SUMMARY

Attorney General Letter Opinion 97-001 is withdrawn. We advise state universities in Texas to await a resolution of Hopwood in the United States Court of Appeals for the Fifth Circuit or the United States Supreme Court before restructuring or adopting new procedures for their financial aid programs.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee