High Court Sets Back Affirmative Action
By DAVID G. SAVAGE
Los Angeles Times, July 2, 1996
WASHINGTON-In a surprise move, the Supreme Court yesterday let stand a ruling that struck down a University of Texas law school admissions policy on grounds that it preferred black and Mexican-American applicants over better qualified white students.
While the court's action marks another setback for affirmative action, it fails to resolve the central question of whether colleges can continue to use a student's race or ethnic background as one factor in admissions.
"This leaves a cloud of confusion," said Harvard law professor Laurence H. Tribe, who had urged the court to hear the appeal on behalf of Texas officials.
For now, it appears that colleges and universities in Texas, Louisiana and Mississippi must use a strict color blind approach when admitting students. That was the standard announced in March by the U.S. 5th Circuit Court of Appeals, which sets the law in those three states. The high court let that decision stand.
However, the Supreme Court's refusal to hear an appeal does not render the lower court decision a binding national rule.
As a result, colleges and universities elsewhere may continue to rely on the high court's 1978 Bakke decision. By a 5 4 vote, the court said then that admissions may not be race-driven, but that schools can consider a student's race as a "plus factor."
The high court most likely backed away from deciding that issue now because of both uncertainty among the justices and a procedural flaw at the heart of the Texas case.
In 1992, Cheryl Hopwood, who had earned a 3.8 grade average and an 83rd percentile score on the Law School Admissions Test, was rejected at the Texas law school. After she and three other white students sued alleg ing reverse discrimination, her lawyers discovered that the school had used a two-track admissions process.
Applications were "color-coded" by race. White, Asian and some Latino students went through a screening process with one set of standards while black and Mexican-American applicants were considered by a sepa rate committee using more lenient standards.
Hopwood's grade and tests eave her a point total higher than all but one of the roughly 25 black students who were enrolled, and all but three of the 50 Mexican-American students who were admitted.
In the midst of the trial, the law school admitted that its two-track pol icy was illegal. Nonetheless, a federal judge in Austin ruled that the school did not violate Hopwood's rights.
On appeal, the 5th Circuit not only ruled for her, but declared broadly that colleges "may not use race as a factor" in admissions.
This sweeping opinion gained national attention because it declared that the Bakke ruline no loneer stood as the law. If it had been affirmed by the high court, it would have ended race-conscious admissions poricies at colleges nationwide, both private and public.
Because private colleees and uni versities receive federal funds, they have been obliged to follow anti-dis crimination rules set by the federal courts.
But the justices put off such a decision yesterday.
Everyone agrees that two-track policy was "constitutionally flawed," noted Justices Ruth Bader Ginsburg and David H. Souter
"Accordingly, we must await a final judgment on a program genuinely in controversy before address ing the important question" of raced based admissions, they said in their opinion in the case (Texas vs. Hopwood. But in California, the voters may decide the issue first. The University of California Board of Reeents has voted to end race-based admissions, and the proposed California Civil Rights Initiative, if approved by the voters in November, would mandate a color-blind approach in the state's public colleges.
(
Back to top
)
(
AAD Homepage
)
Carl Gutierrez-Jones
,
Department of English
University of California
Santa Barbara, CA 93106
E-mail: carlgj@humanitas.ucsb.edu
