‘Bakke II’ Case Renews Debate on Admissions

As dean of the University of Texas Law School, Mark G. Yudof faced a familiar concern that he called the “pool problem.”

Highly competitive graduate and professional schools such as his were scouring the countryside for academically superior black and Latino students. But the pool of such students was shallow, at least as measured by grades and standard tests.

Texas solved that problem in a familiar way, by giving blacks and Mexican Americans a preference in the admissions process. Now its solution, challenged in the federal courts by a disappointed white student, has become central to the national debate over affirmative action.

The case, which will soon go before a federal appeals court in New Orleans, could overturn educational affirmative action plans nationwide. Its aftershocks could be felt in a host of other fields.

Both sides in the Texas case say they will appeal to the U.S. Supreme Court if they lose before the appeals court. And many legal experts say they believe that the high court is ready to take a critical look at affirmative action in higher education for the first time since the landmark 1978 ruling in the Allan Bakke case in California.

The Texas law school takes in 500 students each year. It admits applicants who on average score better than 85% of all college graduates who take the Law School Admissions Test and have a 3.5 college grade-point average.

In 1992, however, only 88 African Americans and 52 Mexican Americans in the entire nation sought admission to law school with those credentials. While Texas rates in the top 20 of the nation’s 175 law schools, it stands well below Harvard University, Yale University, Stanford University, the University of Chicago, Columbia University, the University of Virginia, Duke University and UC Berkeley in its ability to lure top minority students.

Consequently, to meet its goal of a “diverse” class including nearly 100 blacks and Latinos, Texas must admit minority students from out of state with lesser academic qualifications, while rejecting higher-achieving white applicants who reside in Texas.

“That’s the situation we are facing, and I think we have to be candid about it,” Yudof, now the university provost, said in an interview. “To some extent, we are in a bidding war” for talented minority students.

Cheryl J. Hopwood believes that she is one of the casualties of that war.

Hopwood has had her share of hardships. Her father, a Vietnam War veteran, left home when she was a child. Her mother worked three jobs to support her family. She herself is raising a severely handicapped daughter.

As a college student, Hopwood paid her way by working at least 20 hours a week and still managed to attain a 3.8 grade-point average. Her LSAT score ranked her at the 83rd percentile. But in 1992, the Texas law school turned down her application without explanation.

But she thinks she knows why. Aided by a conservative legal organization, she filed a lawsuit contending that she was discriminated against because of her race.

“I thought I was disadvantaged too, but that didn’t count for me,” Hopwood said. Her case has been dubbed “Bakke II” in higher-education circles.

The Bakke case split the nine Supreme Court justices in 1978. On the one hand, they said the University of California had wrongly denied admission to a highly qualified white candidate through the use of racial quotas. On the other, they said, colleges could use race as a “plus factor” in favor of minority students as they sought to achieve diverse student bodies.

Ever since, college admissions officers have cited the Bakke case as justification for broad affirmative action efforts.

Lawyers for Hopwood said the Texas law school, like many other university programs, uses the kind of quota-like system that was condemned in the Bakke decision.

“They made race the predominant factor in admissions,” said Michael McDonald, an attorney for the Center for Individual Rights, the conservative Washington, D.C.-based group that is financing Hopwood’s suit. “This case is a perfect vehicle” for a re-examination of the Bakke decision “because it shines a light on practices that have become nearly universal in higher education.”

In trial testimony last year, law school officials revealed that they routinely “color-coded” applications by the race or ethnic background of the students. While white, Asian and non-Mexican Latino students were evaluated by the regular admissions committee, African American and Mexican American applicants were put in a separate file. A single admissions officer reviewed them and decided who would be admitted.

Memos exchanged by admissions committee members also speak candidly about using “what is in essence a quota system” to obtain the right number of minority students.

“Without some sort of quota as a reference,” one 1989 memo said, “virtually none” of the African American and Mexican American applicants would be admitted.

Hopwood’s lawyers, citing this evidence, call the law school’s admissions process unconstitutional because it “was driven by overt racial preferences.”

University of Texas officials do not deny giving a clear preference to minority applicants. But they argue that this sort of affirmative action is both justified and necessary, especially at a leading state university.

“I don’t think you can have a public institution that is lily white,” Yudof said. “Our basic approach is to look for good people who may not have the same paper qualifications. They are probably a shade lower. But they will go on to graduate and they will be a credit to their community.”

“This state is nearly 50% brown and black, and the UT law school trains the leadership for the state,” added Samuel Issacharoff, a law professor who argued the school’s case in the courts. The university would not be doing its job, he said, if it enrolled a law class without a reasonable number of black and Latino students.

In its court briefs, the university also highlighted its own abysmal history of racial discrimination.

The law school excluded blacks until 1950, when the U.S. Supreme Court rejected the argument that the university system’s separate law school for blacks was equal to the University of Texas school. It ordered the admission of Heman Sweatt , an African American.

The ruling, in the case of Sweatt vs. Painter, proved to be steppingstone to the landmark Brown vs. Board of Education ruling four years later that finally declared racial segregation unconstitutional. As it happened, Sweatt never finished law school. A hostile reception drove him out before he could graduate.

“As late as 1971--20 years after Heman Sweatt left the law school humiliated by the taunts and threats of students and faculty--the entering class had no blacks,” the school told the appeals court.

With that history and a need to train talented minority leaders, the university argued in the Hopwood case, “modest affirmative steps” in favor of African American and Mexican American applicants were justified.

The university won the support of law school leaders around the country. When the case went to trial in U.S. District Court in Austin, Stanford Law Dean Paul Brest testified about the importance of affirmative action.

“Diversity in higher education, and especially in law school, is extremely important,” he said. A ruling striking down the Texas system, he predicted, “would likely have a spillover effect” at other schools.

Judge Sam Sparks, himself a UT Law School graduate, tried to split the difference. He agreed that the school had violated the law by admitting minority students under a separate system. Nonetheless, he ruled for the university because Hopwood did not prove that she should have been admitted.

Had students been admitted “without regard to race or ethnicity,” the judge concluded, “the entering class would have included, at most, nine blacks and 18 Mexican Americans,” numbers he characterized as “woefully inadequate.”

How great is the gap between regularly admitted applicants and minority students? The university calls it trivial; Hopwood’s lawyers describe it as significant.

The law school admits students based on a “Texas index” that combines their grade average and LSAT score. That scale has been shown to predict rather accurately how students will fare in law school.

Hopwood’s lawyers examined the index for the entire class that was admitted in 1992 and found that only one of the 41 African American students and three of the 55 Mexican Americans had totals that matched hers. In fact, they said, 12 other white students with even better qualifications than Hopwood were also denied admission.

The Texas admissions process, they concluded, “creates a quota system to virtually guarantee” the admission of a particular number of minority students.

The university countered that the minority students who are accepted have excellent qualifications. For example, black students who were enrolled that year had a median 3.3 grade-point average and Mexican Americans had a 3.24 average, only slightly below the median of 3.52 for the entire class.

During the early 1980s, the university conceded that only half of its minority graduates were passing the state bar exam on the first try, an embarrassing statistic for the state’s premier law school. But in recent years, Yudof said, the university’s aggressive recruitment program has drawn capable minority students who fare well on the bar exams.

Jonathan Quander, an African American who is president of the law students association, said he enrolled at the Texas law school after getting his undergraduate degree from Yale in part because Texas showed a commitment to affirmative action.

“I wouldn’t have felt comfortable if I was the only African American male,” he said. “I would have gone to Georgetown or Michigan or Duke.”

Even Hopwood’s lawyers have not tried to portray the past as the good old days.

Today’s minority students at Texas, they acknowledged, are on average better qualified than the all-white classes of the 1950s and ‘60s. Then the law school admitted every university graduate who applied, although about one-third of them quickly flunked out.

Instead, Hopwood’s lawyers called her a victim of a new type of unfairness. While affirmative action opens the doors for some, they said, it closes opportunities for others. Hopwood, working part-time as an accountant, said that she has not given up on her goal of becoming a lawyer.

“This is a woman with a blue-collar, working-class background who had to work very hard,” McDonald said. “She is raising a severely handicapped child. She had good grades and good test scores, and for all that, she gets the door slammed in her face.”