Constitutional Opinions: The Yellow Pose of Texas
Eastland, Terry
"Constitutional Opinions: The Yellow Pose of Texas" by `ferry Eastland The Yellow Pose of Texas Hopwood upheld dooms affirmative action admissions....
...a "white and other" applicant with such a score had almost no chance...
...And Texas had not done that...
...An inference is raised," the panel dryly noted, "that the program was the result of racial social engineering rather than a desire to implement a remedy...
...Without some strong evidence in the record showing that today's law school applicants still bear the mark of those past [wrongs]," said the panel's opinion, written by Judge Jerry Smith, "such effects seem grossly speculative...
...The question before the three-judge panel was whether the law school's admissions policy was at odds with the Equal Protection Clause of the Fourteenth Amendment...
...The personal factors included "race" and "ethnicity...
...If it doesn't, it could find itself back in court...
...The Fifth Circuit also could have shown that Powell's opinion, strictly applied, won't achieve what Texas still wants...
...But surely the three judges know the defendant they are dealing with...
...The amendment's purpose was to take the states out of the business of classifying citizens by race, and yet diversity requires the identification and celebration of racial differences...
...that race (and presumably all of the other elements) may count as a "plus" factor but not the "decisive" factor...
...Two of the panel's three judges decided not to accept and apply Powell's teachings on diversity, instructive as that might have been...
...One was reme dial: specifically, the policy was said to remedy the present effects of past discrimination in the state's primary and secondary schools...
...For the gap in academic credentials between the affirmative action admittees and the regular admittees is so great that, to matriculate more than a dozen or two blacks and Mexican-Americans, the school would have to accord more than slight weight to race and ethnicity in dozens of cases, making race more than a mere "plus" factor...
...It did not help the law school's remedial case that more than half of the blacks admitted in 1992 were from out of state...
...Critics have knocked the Fifth Circuit's ruling in Ho pwood v. Texas as an egregious example of judicial activism, but the decision was defensible...
...and that Mexican-Americans, unlike blacks, had never suffered de jure discrimination in Texas public education and yet were twice as favored by the law school's affirmative action policy, since Mexican-Americans were to comprise lo percent of the entering class, and blacks five percent...
...The former group was held to decidedly lower standards...
...Most schools jus 44 If the Supreme Court wants to carve out a 'diversity exception' for higher education, it can certainly do so...
...And if the school remains arrogant enough to use race in admissions, the plaintiffs will likely seek a court order telling it to stop...
...61 The American Spectator • September r 9 9 6...
...and that the consideration of race must not be driven by a numerical goal, thus becoming "discrimination for its own sake...
...The Hopwood plaintiffs have vowed to monitor the law school's compliance...
...Indeed, as this case shows, "whites and others" are the ones the law school officially has disfavored...
...It must obey the Fifth Circuit...
...The majority's absolute rejection of the diversity rationale proved the most controversial part of the Fifth Circuit's decision, and it's not hard to see why...
...The Fifth Circuit could have applied Powell's opinion, thus accepting his view that diversity is a compelling state interest in higher education...
...For contrary to what Powell believed, there is no meaningful distinction between using race as a "plus" but not the "determinative" factor: Whenever an affirmative action applicant would not have gained admission but for his race, it was that element in his file - no matter how large or small a "plus" it was deemed-that was "determinative...
...In that case we could have the makings of a lawsuit that would again put Powell's Bakke opinion on trial...
...Just why the Fifth Circuit should have treated Powell's opinion as though it were a majority opinion that is still viable despite the current Court's recognition of only the remedial rationale as a compelling interest is a puzzle...
...For instance, a black or MexicanAmerican applicant scoring in the 5oth percentile on the Law School Admissions Test had a reasonable chance of being admitted...
...It was the duty of the panel to apply the law as it now exists...
...Ultimately-whether in Hopwood II or some other case-the Supreme Court is going to have to address that mischievous (albeit sincere) opinion...
...C O N S T I T U T I O N A L O P I N I O N S by `ferry Eastland The Yellow Pose of Texas Hopwood upheld dooms affirmative action admissions...
...Powell also insisted that the school must administer a unitary admissions system in which all students receive "competitive consideration" under the same admissions standards, not a dual system in which minority applicants compete only among themselves under different (i.e., lower) standards from those governing all other applicants...
...TARRY EAST LAND is editor o f Forbes MediaCritic, a fellow at the Ethics and Public Policy Center, and author o f the new book, Ending Affirmative Action: The Case for Colorblind Justice (Basic Books...
...In 1978, in Bakke, the first and only university admissions case decided by the Supreme Court, Justice Lewis Powell wrote that diversity was a compelling interest which might justify preferences in admission...
...This remained their intention after the Fifth Circuit rendered its bracing opinion...
...The Fifth Circuit also rejected the other compelling interest advanced by Texas-the composition of a "diverse" student body...
...This judgment was practically meaningless, since on the eve of trial the law school said it would do away with the separate admissions committees and henceforth have a single committee review all applicants...
...How can it be judicial activism to enforce the terms of the Constitution...
...Though the school once did exclude blacks (though never Mexican-Americans), it obviously has not disfavored blacks in recent decades...
...The school could still use race as a "plus" factor-meaning it could still make race as big a factor as it had to achieve similar admissions results...
...Even so, those precedents make clear that it is not enough simply to assert that there are "present effects" of past discrimination...
...But the Fifth Circuit had no obligation to do that...
...And it is now the law, in Texas, Louisiana, and Mississippi, which form the Fifth Circuit...
...The Fifth Circuit did not order the law school to quit using race to admit students, expressing confidence that "the conscientious administration at the school, as well as its attorneys, will heed the directives contained in this opinion...
...Measured by Powell's opinion, the Texas law school's admissions policy was flagrantly unconstitutional, and the district court managed at least to condemn the separate admissions process that denied the plaintiffs "competitive con 60 September r996 • The American Spectator sideration...
...They got the decision they wanted from the district court: in effect, a green light to discriminate on the basis of race, though the deed must be done covertly, with a single admissions committee-surely a minor inconvenience...
...plainly classified its potential students by race-black and Mexican-American applicants were assessed by one committee, "white and other" hopefuls by another...
...Texas did not argue that the policy was designed to remedy discrimination practiced by the law school itself, and of course it could not have...
...Very likely, the school would have to establish numerical goals, as Texas had done, but according to Powell, admissions decisions shaped by such goals would amount to discrimination for its own sake...
...The panel's holding against diversity, while politically incorrect, is judicially on strong ground...
...0 n July i the Supreme Court declined to review the holding by the Fifth Circuit Court of Appeals last March that the University of Texas law school may not use race in considering applicants for admission...
...If a majority of the Supreme Court wants to carve out a "diversity exception" for higher education, it certainly can do so, and perhaps may...
...Few institutions of higher education regard affirmative action as a remedy for anything they have done wrong, and indeed the counterparts of Bull Connor long ago were expelled, and rightly so, from admissions offices...
...known as "strict scrutiny...
...Had it done so in a rigorous fashion, the panel could have added to the district court's judgment by pointing out that the school's focus on only blacks and Mexican-Americans misconceived Powell's educational diversity...
...Moreover, in a largely unnoticed part of his opinion, Judge Smith indicated the ultimate reason for his decision to reject the diversity rationale: it is fundamentally at odds with the purposes of the Fourteenth Amendment...
...On this, Smith was absolutely right...
...With the Supreme Court's decision not to review the Fifth Circuit's ruling, the Texas law school can no longer use race or ethnicity in any way in its admissions procedures...
...Will the Texas law school abide by the decision...
...In holding that "any consideration of race or ethnicity by the law school for the purposes of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment," the Fifth Circuit thus declared law that would end most affirmative action admissions policies in use today...
...And in this circumstance, the non-affirmative action applicant who otherwise would have been admitted endured race-based discrimination...
...Though the attorney general for the state of Texas declared that "admissions decisions should not be based on race or ethnicity," he also said: 'We believe a multitude of personal factors may properly be considered in determining individual merit...
...77 tify affirmative action in legal terms as a necessary means of ensuring diversity, though few define it as broadly as Powell did, most reducing it instead to the mere racial diversity he clearly condemned...
...The lawyers for the Texas law school had no doubt read the Bakke case and yet they had the nerve to violate Powell's opinion by resorting to separate admissions committees...
...Under strict scrutiny, a racial classification must pass two tests: it must further a "compelling governmental interest," and it must be narrowly tailored to that end...
...Appropriately, the Fifth Circuit began its analysis by explaining that, according to the Supreme Court, all racial classifications must be held to the most demanding equal protection standard, what is...
...Powell explained that attaining not mere racial but educational diversity, in which race is one of many non-academic elements that merit consideration, should be the goal...
...they must be demonstrated...
...They pushed Powell aside not only because the substance of his Bakke opinion was joined by no other justice, but-and more important-because the only compelling state interest now recognized by the Supreme Court is the remedial one...
...that some black and Mexican-American admittees were graduates of private schools...
...Texas argued that the policy furthered two compelling interests, both of which won the endorsement of the district court in its August 1994 ruling...
...The Fifth Circuit may have read recent Supreme Court decisions too narrowly by insisting that the law school could remedy only discrimination of its own...
Vol. 29 • September 1996 • No. 9
