Texas Asks High Court to Uphold Legality of Affirmative Action

The Chronicle of Higher Education

May 10, 1996

Texas Asks High Court to Uphold Legality of Affirmative Action

By Douglas Lederman

Texas forcefully urged the Supreme Court last week to hear its appeal of a controversial court ruling that virtually forbids the use of race as a factor in admitting students. At stake, the state argued, is the fate of affirmative-action programs at colleges across the country.

In a written petition to the Court, Texas officials broadly criticized the decision in March by the U. S. Court of Appeals for the Fifth Circuit, which barred the law school at the University of Texas at Austin from considering race in admissions. They argued that the court had erred by shunning diversity as illegal rationale for race based policies, and by ignoring the effects that the state's past discrimination continues to have on today's minority students.

A Restrained Defense

Critics of racial preferences said the state's brief did little more than rehash arguments that had been made in-and discarded by-the lower courts. Some representatives of minority groups, meanwhile, complained that Texas had not made the case for affirmative action aggressively enough.

The Texas petition is restrained in its defense of race-based remedies. But legal experts noted that the primary purpose of a petition to the Supreme Court is to persuade the court to take the case, not to argue its substantive merits.

Texas's petition, which was prepared by 13 lawyers, including Attorney General Dan Morales and Laurence H. Tribe of Harvard University, asked the Court to review the Fifth Circuit's decision in the case known as Hopwood v. State of Texas.

Core of the Petition

In that ruling, a three judge panel of the Fifth Circuit not only scrapped the admissions program at the Texas law school. but also repudiated the Supreme Court's 1978 ruling in Regents of the University of California v. Bakke which declared that the goal of attracting a diverse group of students justified a college's use of race as one of many factors in deciding whom to admit. Bakke has been the basis of most college affirmative action programs ever since.

At the core of the Texas petition is the argument that the Court should uphold Bakke and allow colleges to use diversity as a rationale for considering race. For two decades, it said, colleges have relied on the Bakke ruling to compose student bodies "that are not only bright, but diverse, to make education and the dialogue that advances it more effective and relevant to the society that graduates will enter."

"This Court should correct the Court of Appeals misperception that Bakke is no longer the law and should reaffirm that educational diversity remains a compelling interest that justifies individualized consideration of race among other factors," in admissions, it said.

Texas also asked the Court for more leeway in justifying the use of race-based remedies to ease continuing effects of past discrimination. The Fifth Circuit ruled that the law school could consider race as a factor only if the school itself--rather than the university system or the state--had committed the discrimination that the remedies were designed to overcome.

The petition to the Supreme Court said the state's long history of discrimination continued to affect residents in Texas, including applicants to the university's law school. The state, Texas officials noted, is still operating under federal desegregation plans, and has never won Education Department approval for having stamped out the vestiges of past discrimination.

''The undisputed record shows that Texas students applying to the challenged 1992 incoming class were largely the products of a public school system that was still under court supervision for failing effectively to remedy unconstitutional de jure segregation," the state contended in its petition.

In addition to those central points, Texas also argued in its petition that the Court should use Hopwood to limit the role of federal courts in punishing states for discriminating against their citizens.

Texas urged the Court to restrict the right of victims of discrimination to sue states under the Civil Rights Act of 1964, and to require plaintiffs to prove they've been affected by a state's action before allowing them to collect damages. The Fifth Circuit opened the door for future plaintiffs to get punitive damages from individual college officials, and the University of Texas has since been hit with two new lawsuits. The second, filed last week, charges that the university's education college engaged in reverse discrimination when it failed to admit a white students with a 3.9 grade-point average.

Some legal experts said they were surprised that the petition's writers, in defending affirmative action, would seek to inhibit victims of discrimination from seeking recompense, since many such victims are from minority groups.

"That stands the traditional civil-rights concept about the necessary role of the courts in remedying discrimination on its head," said George R. La Noue, a professor of political science at the University of Maryland-Baltimore County.

'Resoundingly Strong'

This did not trouble civil-rights lawyers like Michael A. Olivas, a law professor at the University of Houston. He applauded the Texas brief as a "resoundingly strong and aggressive attack on all fronts."

But many supporters of affirmative action accused Mr. Morales, the Attorney General, of playing politics. The day the petition was to be filed, he held a press conference in which he signaled that the state, in its brief, would back away from affirmative action.

"It's simply wrong," he said, "to give one applicant an automatic advantage over another applicant, based solely upon the color of one's skin."

The state's petition was more supportive of race-based remedies than that statement would seem to indicate, prompting the head of the independent Texas Civil Rights Project to accuse Mr. Morales of "speaking with one face" to the voters of Texas and "with another face" to the Supreme Court.

College officials and lawyers generally praised the Texas brief. Martin Michaelson, a lawyer and expert of affirmative action, said it was "short on adjective, long on muscular analysis," as requests for hearing should be.

The Court could decide by next month whether to hear the case.

Katherine S. Mangan contributed to this article

Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu