May 10, 1996

"Conflicting Court Rulings"

1992 decision in a desegregation case may help colleges defend affirmative action

By Patrick Healy

A four-year-old Supreme Court ruling on desegregation could help colleges in Texas and 18 other states justify their affirmative-action programs, say legal and civil-rights experts. In 1992, in a case known as United States v. Fordice, the court ruled that these 19 states had an affirmative duty to wipe out traces of segregation in their public-college systems. The Court held the states to a new desegregation standard, under which they could be required to devise other remedies than simply eliminating segregationist laws.

The Fordice decision was barely mentioned in a ruling handed down this March by the U. S. Court of Appeals for the Fifth Circuit in a case known as Hopwood v. Texas. The ruling found that the affirmative-action program for admitting students to the University of Texas at Austin's law school discriminated against white applicants. But legal experts predict that if the Supreme Court hears Texas's appeal of the ruling, Fordice could be a major factor-in the future of affirmative action in the 19 states.

Appeal Cites Earlier Case

Last week, in fact, officials in Texas cited Fordice and the state's obligations to remedy the effects of de jure segregation in their appeal of the Hopwood ruling. "This is not just an affirmative action case," the Texas brief to the Supreme Court read. "It is a desegregation case."

In its Hopwood decision, the Fifth Circuit declared that colleges no longer could cite the pursuit of diversity as justification for using race as a factor in college admissions. That assertion directly undercut the Supreme Court's decision in 19/8 in Regents of the University of California v. Bakke. The Fifth Circuit said that a university could legally use race-based programs only if they addressed specific. present effects of past discrimination.

The appeals court said the Texas law school could not use that rationale because the school itself was not responsible for any present effects of past discrimination. Even if such effects exist elsewhere in the University of Texas System. the Fifth Circuit held, the Fordice decision offers no guidance on whether the law school has a duty to try to overcome them. The court added that the system was ''too expansive" for a judicial inquiry into whether such discrimination had existed.

Some legal experts say the appellate court erred in its reading in its reading of the Fordice decision. Fordice, they believe, encourages states to take system wide steps to remove any taint of segregation. ''The Fifth Circuit decision is a significant break from the precedent that was set in Fordice," says Raymond C. Pierce, the Deputy Assistant Secretary of Education for civil rights.

Regarding the Texas law school specifically, experts on Fordice make two points.

While the Supreme Court did not mandate specific remedies to desegregation, they say, it gave authority and latitude to the 19 states to create their own desegregation strategies. Robert Kronley, an expert on desegregation at the Southern Education Foundation, believes that racial-preference programs in these states are a sound response to the High Court's orders in Fordice.

''These 19 states have been struggling to create sound educational practices as dictated by Fordice," he says. ''It's difficult to craft meaningful remedies that don't take race into account."

When did segregation end?

The second consideration is the Supreme Court's determination in 1950 that Austin's law school was segregated. At the time, the state created a public law school for blacks in order to keep the Austin school all-white. In Hopwood, the Fifth Circuit noted that the Supreme Court had integrated the Austin law school. and argued that "any other discrimination" ended in the 1960s. But experts say the two law schools show present-day effects of de jure segregation, since the Austin school's student body is 75 per cent white and the Texas Southern University school's is 54 percent black.

In Fordice, the Court was explicit on the subject of admissions to formerly segregated institutions, experts say. 'Even after a State dismantles its segregative admissions policy,'' the Court held, "there may still be state action that is traceable to the State's prior de jure segregation and that continues to foster segregation.'' The Court did not endorse closing institutions to spur integration, but it found that states should adopt ''sound'' policies to remove any vestiges of segregation .

"Fordice clearly dictates the necessity for affirmative action regarding admissions in Texas,'' says Dennis D. Parker, a lawyer with the NAACP Legal Defense and Educational Fund.

On the other hand, critics of affirmative action say that nowhere in Fordice does the Supreme Court give states and educators carte blanche to create any kind of racial preferences they like. ''The reliance on Fordice is hogwash," says Michael S. Greve, executive director of the Center for Individual Rights and an adviser to the plaintiffs in the Texas lawsuit. It is a very, very limited decision, having to do with a state that had adopted an admissions requirement to keep blacks out of particular schools.''

Advice in Georgia

Michael J. Bowers, the Attorney General of Georgia, a critic of affirmative action who has advised colleges in his state to abide by the Hopwood' ruling, notes that the Supreme Court ruled last June that affirmative-action programs had to be narrowly tailored and meet a compelling government interest. The decision in that case, Adarand Constructors v. Peña, supersedes Fordice, he says.

But Robert Davis, an associate professor of law at the University of Mississippi law school, says that Mr. Bowers has misread Adarand and Fordice. Mr. Davis notes that Adarand was an employment-practice decision and therefore is more relevant to business than to higher education. He also cites justice Sandra Day O'Connor's majority opinion in Adarand , which said that while affirmative-action programs must meet a standard of ''strict scrutiny,'' racial preferences are not categorically illegal.

Referring to a past Supreme Court decision, Justice O'Connor wrote: ''We wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact.' The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it.''

While the Fifth Circuit held that the Texas law school was not directly responsible for de jure segregation, Mr. Davis says. "That is why Fordice is so important here. The Court said that whole higher education systems could be classified" as responsible.

Alvin O. Chambliss, Jr., a lawyer who argued the Fordice ease before the Supreme Court on be half of a group of black Mississippians, says he believes Texas should argue its argue its appeal as a desegregation case, rather than an affirmative action case, if the Supreme Court agrees to consider it. Given its past, he says, Texas has in Fordice a firm legal precedent on which to defend racial preferences.

"Texas is not desegregated. Texas is only in a desegregating mode,'' Mr. Chambliss says.

Federal Investigation

Federal officials have never actually evaluated Texas's desegregation status in light of the Fordice standard, but that will change. The Education Department's Office for Civil Rights plans to investigate in the near future whether Texas complies with Fordice. The office has been considering such an inquiry since 1994, but is likely to do it amid the tumult over Hopwood.

Mr. Pierce of the Education Department says the investigation will probably examine enrollment, retention, and graduation rates of black students in Texas; state support for the two historically black public universities, Prairie View A&M and Texas Southern; and the recruitment of black students by the state's other public campuses.

"Significant" Difficulty

While Mr. Pierce says he does not know whether Texas public colleges are now desegregated, he says the state's initial suspension of its race-based programs following the Fifth Circuit decision was not a step in the right direction.

"A stale would create a significant degree of difficulty for itself in terms of complying with Supreme Court obligations to remedy effects of its demonstrated past practices and policies of segregation if it were to eliminate the very programs designed to bring itself into compliance,'' Mr. Pierce says. For example, he adds, black enrollment would probably decline if all Texas campuses ended affirmative-action admissions programs.

In 1983, Texas received federal approval for a five-year desegregation plan, which included several racial-preference programs in admissions and financial aid that exist today. The state updated the plan voluntarily in 1989 and in 1994: the current plan runs through 2000.

Kenneth H. Ashworth, commissioner of the state's higher-education board points out that Texas risks violating one set of court and federal orders to comply with a new one. If the Supreme Court were to rule on the Texas lawsuit, it could clarify what remedies Texas, and perhaps other states, must create for the Office for Civil Rights to consider them desegregated, he says.

"We still have an underrepresentation of minorities at our historically white institutions, and a predominance of them at our historically black institutions." Mr. Ashworth says. "We've had OCR pressuring us to do what the courts now tell us not to do."

Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu