Constitutional Opinions / Back to Bakke
Eastland, Terry
Back to Bakke by Terry Eastland J n the spirit of the president who feels our pain, put on the shoes of one Cheryl Hopwood, perhaps destined to become a famous name in American constitutional law....
...UT Law had not used "an illegal quota," he said, but its admissions procedure was flawed because it "use[d] the color of an applicant's skin to limit" to a significant degree the plaintiffs' prospects for admission...
...Judge Sparks dismissed as "simplistic" the race-neutral argument originally advanced by the plaintiffs in his court, but the Fourteenth Amendment's original meaning undoubtedly would be argued in briefs and, one must hope, addressed by the Supreme Court in a case like Hopwood...
...Hopwood, a certified public accountant, applied for admission to the University of Texas School of Law in 1992...
...The unhappy news is that the gap appears unlikely to narrow anytime soon...
...Cheryl Hopwood and her co-plaintiffs are appealing the decision, and the case could wind up in the Supreme Court...
...She—and three other in-state white applicants who also were turned down, and who each had an index of 197—sued in federal court...
...Justice Powell said that schools may not have a separate committee passing on minorities, and that they must have a single committee passing on everyone...
...It will be able to do this in enough instances to reach the 5 and 10 percent levels—what Judge Sparks agreed were not quotas but simply "aspirations...
...That is, in order to admit the 96 resident blacks and Mexican-Americans it did in 1992, UT Law had to do more than merely give a plus (which in fact it did) to all such applicants in the discretionary zone...
...Bakke is a decision the court must revisit...
...They charged that the school had discriminated against them by admitting less qualified blacks and Mexican-Americans through a quota system, in violation of the Fourteenth Amendment and Title VI of the Civil Rights Act...
...One committee evaluated non-minority applicants, another the minority hopefuls...
...and that they may not have quota, but may take race into account in what he evidently thought would be a very limited manner...
...The Court agrees with the plaintiffs that [there is] a significant disparity in TIs between minority and non-minority pools," wrote Judge Sparks...
...The facts in Hopwood show that it still is...
...Title VI damages, you ask...
...of all Mexican-Americans in the country who took the test, 52 scored higher than the UT median for whites...
...Specifically, it had to make race an important consideration in probably most of the remaining 64 minority grants of admission to resident blacks and Mexican-Americans...
...Sparks awarded the nominal amount of a single dollar...
...Non-minorities competed for 84 slots in each class of 100...
...This gap exists with respect not just to resident but also non-resident applicants—in 1992, of all blacks in the country who took the LSAT, 88 scored higher than the median for whites admitted to the Texas law school...
...58 The American Spectator January 1995 Operating a single admissions committee, UT Law still will be quite able to discriminate in favor of applicants who are black and Mexican-American and against those who are neither...
...Thus, had the law school held black and Mexican-American applicants to the same standards as it did white hopefuls, just 12 resident minority applicants would have been placed in the presumptive admission category—where Cheryl Hopwood was placed...
...It is Powell's Bakke opinion that makes this possible...
...0 The American Spectator January 1995 59...
...A s I argued fifteen years ago in Counting by Race, Powell's view of affirmative action in professional and graduate education was far removed from the real world...
...If the court does so, say in Hopwood, it is hard to see how Bakke can survive as good law...
...Hopwood herself is a case in point...
...These facts about affirmative action and its longevity in professional and graduate education are ones that the Supreme Court eventually must confront...
...minorities for the remaining 16...
...prove what their lawyers agreed would have been virtually impossible to prove—that they would have been admitted but for the unlawful admissions procedure...
...He is co-author of Counting by Race (1979...
...Sixteen years after Bakke, Hopwood raises the question of how long "temporary" is, even as it suggests, given the "significant disparity" problem, that affirmative action must be employed for a very long time...
...Similar gaps are found in the applicant pools for other professional and graduate education...
...In late August, District Judge Sam Sparks—a George Bush appointee—ruled that the law school had indeed violated the Constitution...
...But Hopwood, who is white, was denied admission...
...Having maintained, consistent with Bakke, a unitary admissions process since 1978, UT Law School backslid in 1991, creating a separate committee to review minority applicants and recommend enough for admission so that the proportion of accepted blacks and Mexican-Americans (the state's two largest minority groups) reflected their graduation rates from Texas universities and colleges...
...from a working-class background, she attended a junior college before enrolling in a senior college, and worked twenty to thirtyhours a week to help put herself through school...
...And if the court says our fundamental law is not colorblind, the time will have arriyed to propose a new constitutional amendment...
...What might replace it...
...no real injury, he explained, and besides, the law school intended you people no harm...
...Leave aside the dubious assumption that mere minority status helps create a learning atmosphere, in Powell's words, of "speculation, expression, and creation...
...Consider the Texas Indexes of resident applicants in 1992 (by law, 85 percent of each class must be from the state...
...To admit substantial numbers of minorities in professional and graduate schools, race, contrary to what Powell famously wrote in Bakke, must be not a but the decisive consideration in most minority admissions decisions...
...In Bakke, four justices said that Title VI of the Civil Rights Act proscribes the use of race in an admissions program...
...n Bakke, Powell also indicated his belief that the Constitution permits only temporary affirmative action...
...And what this often will mean is that some lower-scoring but privileged minorities—sons and daughters of professionals in upper-income brackets who attended the best undergraduate schools—will be chosen over higher-scoring but less privileged applicants who lack the necessary race...
...This meant each class was to be 5 percent black and 10 percent Mexican-American...
...She had a 3.8 grade point average and a score of 39 on the Law School Admissions Test...
...While 372 resident white applicants had TIs of 199 or above—a score that placed a white applicant in the presumptively admitted group—only 11 resident Mexican-Americans had TIs at that level or above, and only one resident black applicant had a TI of even 199...
...Certainly it, or one like it, should: Sparks relied heavily on Justice Lewis Powell's opinion in Bakke, but as the evidence in Hopwood shows, Powell's opinion cannot sustain affirmative action admissions policies as they in fact are practiced...
...You can reapply, he said, and without having to pay the application fee ($50...
...Her Texas Index (TI)—a composite number based on an applicant's GPA and LSAT score that chiefly decides an applicant's fate, providing one is white—was a very good 199...
...Four years earlier she had earned a degree in accounting from California State University...
...Four other justices said that the Fourteenth Amendment permits race to be the decisive consideration in such a program...
...The ninth justice, Powell, said that no, under the Constitution race can't be the decisive factor, but for the sake of campus "diversity" it may be a consideration...
...It is hard to see how race in most of these decisions can be called anything but the decisive consideration...
...Had the school applied the same standards without regard to race, the 20 resident black and Mexican-American applicants with TIs between 193 and 198 would have been placed in this middle group, where the chances for admission were about one in two...
...The gap existed at the time of Bakke and indeed well before it, and has persisted without much change since that decision...
...At first calling the Hopwood complaint frivolous, UT Law before trial did away with the separate committee, thus conforming its admissions process to Powell's opinion...
...A t issue in that historic case was the admissions procedure of the University of California at Davis medical school...
...Instead, observe what the justice evidently believed: that meaningful affirmative action requires taking race into account just a little bit—a mere "plus" that may "tip the balance" in a minority applicant's favor, as he put it...
...Establishing 192 as the score for presumptively rejecting white applicants, the law school placed those whites with TIs between 193 and 198 in a discretionary zone where they were subject to further review...
...This is Hopwood v. Texas, the first reported case addressing the merits of racial discrimination in student admissions since the Supreme Court decided Regents of the University of California v. Bakke in 1978...
...Sparks, however, refused to order the plaintiffs' admission, maintaining that they could not Terry Eastland is editor of Forbes MediaCritic and a fellow at the Ethics and Public Policy Center...
...This did not spare the school from Sparks's adverse judgment—after all, it was the admissions system begun in 1991 that the Hopwood plaintiffs complained about—but the school has merely lost a battle while winning, at least in district court, the war...
Vol. 28 • January 1995 • No. 1
