Legal Guidance Legal Guidance
Fort Worth Star Telegraph Wednesday, June 27, 2001
The Supreme Court must provide clarity on affirmative action. Texas' latest petition for Supreme Court review of an appellate ruling that erased racial factors from state university admission programs was perhaps more of a long shot than a similar appeal that the justices turned away in 1996.
The Supreme Court must provide clarity on affirmative action. Texas' latest petition for Supreme Court review of an appellate ruling that erased racial factors from state university admission programs was perhaps more of a long shot than a similar appeal that the justices turned away in 1996. So it wasn't so much surprising as it was disappointing that the high court declined to use the case of Hopwood vs. Texas to address the agonizingly complex issue of affirmative action in higher education - disappointing because educators, students, parents, state governments and all who care about the future of access to higher education need definitive guidance that only the Supreme Court is empowered to provide.
The Constitution's equal protection guarantees bar the government from basing its treatment of individuals on their race or ethnicity. But the court has said that compelling reasons may allow race legitimately to be taken into account under limited circumstances. In the Supreme Court's 1978 Bakke ruling, Justice Lewis Powell wrote for the court that one such compelling reason would be to diversify the student body, allowing schools to consider race along with other factors.
But there's so much discord in the federal courts - and the country itself - over whether he was right that states are operating under different rules. Texas officials insist that public schools here are losing too many high-quality black and Hispanic students because they can get scholarships in other states unconstrained by laws or court rulings squelching affirmative action efforts in admissions and financial aid. The national debate is capsulized by conflicting rulings from two federal courts in separate cases involving the University of Michigan's law school and undergraduate program. Whatever conclusion the 6th U.S. Circuit Court of Appeals reaches in these cases will certainly land at the Supreme Court's door. And the justices would be derelict to turn that appeal away.
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