   OFFICE
        OFTHEATTORNEY
                   GENERAL
                         STATE
                             OFTEXAS
   JOHN    CORNYN




                                        September 3, 1999




The Honorable Bill Ratliff                        Opinion No. JC-0107
Chair, Finance Committee
Texas State Senate                                Re: Effect ofHopwoodv. Texas, 78 F.3d 932 (5th
P.O. Box 12068                                    Cir. 1996) on the use of race or ethnicity as a
Austin. Texas 7871 l-2068                         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 US. 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 ofmeasuring 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 ofHopwood litigation en bane and give some additional guidance and clarification in
this area ofthe 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, doesjust that,
we withdraw it. We advise state universities in Texas to await a resolution ofHopwood in the Fifth
Circuit or the United States Supreme Court before restructuring or adopting new procedures for their
 financial aid programs.
The Honorable   Bill Ratliff   - Page 2          (JC-0107)




                                          SUMMARY

                        Attorney General Letter Opinion 97-001 is withdrawn. We
                advise state universities in Texas to await a resolution ofHopwood 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.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
