Law of the Land

illustration by Jason Stout

In March 18, 1996, Texas had the dubious honor of becoming the first state in the country to have its race-based admissions policies at its higher education institutions legally banned by the courts. Two years later, minority communities throughout the nation are still reeling from the Hopwood decision handed down by the Fifth Circuit Court, but their worries don't end there. Now the same right-wing law firm that represented the white University of Texas Law School applicants in their reverse discrimination case is pursuing two similar cases in other states. The firm's intent is to eventually reach the Supreme Court, so that it can strip such affirmative action policies from the country's state-funded institutions of higher learning altogether. However, most affirmative action supporters are not predicting the death of affirmative action in university admissions just yet. Though disappointed with the decision, ultimately they believe that Hopwood was a unique case, and that public support across the nation will buttress affirmative action through this period of assault. The legal counsel for the Hopwood plaintiffs was the Center for Individual Rights (CIR), which has been described in the media as a new breed of grassroots law firms, whose tactics resemble those of the civil rights activists of the Sixties, but whose politics lean to the right. The firm's careful selection of precedent-setting litigation has earned it a powerful reputation and $1.3 million in annual contributions from major conservative foundations such as the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, the Carthage Foundation, and the Smith-Richardson Foundation.

The CIR, in its quest for a Supreme Court hearing - denied in the case against Texas - is pursuing two more affirmative action cases in Washington and Michigan. In litigation which closely resembles the Hopwood case, two white female applicants claim that the University of Washington Law School and the University of Michigan violated their rights under the 14th Amendment and the Civil Rights Act of 1964. Terrence Pell, CIR's Senior Counsel for Legislative and External Affairs, is straightforward in defining his firm's national ambitions when filing such cases: "Our goal is to take race out of the admissions process."

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Back to Bakke

CIR's national quest may have begun in Texas due to the extraordinary steps the University of Texas was taking to diversify its 1992 law school class, as well as the state's placement within a reputedly conservative circuit court. Some speculate that Michigan is an attractive target for CIR because the University of Michigan's pool of applicants is so large that it relies heavily on numbers and charts in making admission decisions, making it easier to catch instances in which race may have figured too prominently in admissions. The University of Washington, meanwhile, is located in the Ninth Circuit Court, the largest in the country, and a victory there would make a significant impact. The CIR has already logged a victory in the Ninth Circuit when, in April of 1997, it successfully defended the constitutionality of California's Proposition 209 which bans all forms of affirmative action in California.

Despite similarities between the Hopwood case and the suits filed against Washington and Michigan, there is reason to believe the Texas decision will not be so easily duplicated. Though affirmative action supporters were certainly not happy with the Hopwood suit, they were also not surprised that UT's policies were called into question. Keryl Douglis, Executive Director of the Houston branch of the NAACP said, "I do feel there were a number of civil rights groups, myself included, who thought UT might be overstepping the law. I wish it [the admissions policy] had been set up with more foresight. It could have been better crafted such that it could stand up to legal challenge."

Two major aspects of UT Law School's policy raised a red flag, according to Hopwood supporters. Minorities were admitted based on lower admissions standards than non-minorities, and minority applications were reviewed in a subcommittee separate from the full committee. Though the subcommittee reported to the full committee, its evaluations were virtually always accepted.

But the Fifth Circuit Court went beyond declaring this single admissions policy flawed; it took a broad swipe at affirmative action, contradicting the Supreme Court precedent which still governs the 47 states not under the jurisdiction of the Fifth Circuit. (It should be noted that although Louisiana and Mississippi are also under the Fifth Circuit's jurisdiction, the Hopwood decision only applies to Texas because of prior court orders to rectify histories of discrimination in the other two states.) The Supreme Court precedent was set forth in the 1978 Regents of University of California v. Bakke. In that case, an applicant to the University of California Davis Medical School sued the university for violating his rights guaranteed under the 14th Amendment and the Civil Rights Act of 1964, after learning he was denied admission while 16 of 100 available slots were reserved for disadvantaged minorities. The Bakke case splintered the Supreme Court. Justice Lewis Powell wrote an opinion that is most frequently quoted as legal authority on three key issues surrounding affirmative action admissions. He found that racial quotas are unlawful; he stated that race or ethnic background can remain a part of admissions decisions, but only as a "plus" factor; and also that a diverse student body is a "constitutionally permissible goal for an institution of higher education" as reparations for recent discrimination.

With the Hopwood decision, though, the three-judge panel of the Fifth Circuit Court of Appeals contradicted Bakke, declaring that diversity is no longer justification enough for consideration of race in admissions policies. Al Kaufman, Regional Counsel for the Mexican American Legal Defense and Education Fund (MALDEF), finds the Fifth Circuit's ruling extreme, but not as far-reaching as some predict. "The Fifth Circuit Court is the first to have said after 20 years that diversity is not a valid goal," Kaufman says. "This decision is a temporary hurdle, way out of line with the general progress of the law."

One judge diverged from his colleagues on the Fifth Circuit, writing in the panel's opinion that UT's policy had indeed gone too far, but that he was not willing to take the radical step of contradicting the Supreme Court. In a special concurrence the judge stated, "I respectfully disagree with the panel opinion's conclusion that diversity can never be a compelling governmental interest in a public graduate school. Rather than attempt to decide that issue, I would take a considerably narrower path - and, I believe, a more appropriate one - to reach an equally narrow result: I would assume arguendo that diversity can be a compelling interest but conclude that the admissions process here under scrutiny was not narrowly tailored to achieve diversity."

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Court of Public Opinion

Since the Hopwood decision, universities across the country have been careful to make sure they are obeying the law. To help school officials sort out the details, the American Council on Education (ACE), a nonprofit that represents the interests of higher education in Washington, D.C., has been holding workshops along with the Civil Rights Division of the Department of Education and the Department of Justice to help schools shore up their legal standing. According to Debra Carter, ACE's Deputy Director, universities have not been frightened away from using affirmative action, they're just more careful. "Institutions are reviewing policies, and making sure they are as legally sound as possible, but I certainly don't think there has been a mass exodus."

Affirmative action supporters hope that public sentiment will be reflected in the nation's judicial system. The Houston NAACP's Douglis contends that, had the Hopwood case been tried in the court of public opinion, race consideration would still be allowed in the university admissions process. "Perhaps the Hopwood decision was not connected to public sentiment at all. Had Hopwood been put to a general vote, it would have gone the way of Houston," she said, referring to Houston voters' rejection of a 1997 initiative to ban affirmative action throughout the city. "It might have been too close for comfort, but [Hopwood] would not have passed," Douglis says. "The majority of people, slim or not, are committed to making educational opportunities available to all groups of people, even by corrective measures, such as affirmative action."

Ted Shaw, Director-Counsel of the NAACP Legal Defense Fund, predicts that now that we have examples, such as Texas and California, where race is not a factor in shaping a university class, the national audience will become uncomfortable with the results. "I don't think that people really want a system of public education that is supported by the taxpayers of the state that is not open to every member of that state. I don't think they want to go back to being virtually all-white institutions, devoid of African-Americans, Mexican-Americans, and other minorities. Given where we are in this day and age, and how much higher education means to our lives and productivity, to make higher education unavailable to those who are clearly qualified.... It's crazy."

Shaw says some Americans regard the 14th Amendment too simply. "Colorblindness has a very seductive surface appeal. The notion that we would never take race into account sounds egalitarian. If we were operating from a clean slate, that would be wonderful, but we don't have a clean slate," he says. "This is a country with a history of discrimination. We have structural, social, and economic inequality, and it is manifested in discrimination. It is unrealistic to think that people are not going to see race because we do."

If all goes according to the calculations of the CIR's Pell, roughly three years from now the Supreme Court may have a chance to revisit whether or not we are truly ready to be colorblind.