PERSPECTIVE ON AFFIRMATIVE ACTION : The Case Against Preferences : A federal court strikes a blow against ‘racial social engineering’ posing as a ‘remedy’ for bias in Texas law schools.

President Clinton says we should “mend, not end, affirmative action.” But the Texas case ruled on this week by the U.S. 5th Circuit Court of Appeals demonstrates why preferential treatment cannot be satisfactorily mended and has to be ended.

In 1992, Cheryl Hopwood applied for admission to the University of Texas School of Law. She had a 3.8 grade-point average as an undergraduate at Cal State Northridge and scored 39 out of 48 on the Law School Admission Test. Strong credentials, but the law school turned her down. “The only thing I could think of,” she told me in an interview last year, “was that the class the school admitted must have been very, very good.”

What she found was an admissions policy that had discriminated against her because she is white. Under that policy, the school had reserved 5% of the roughly 500 seats for African Americans and 10% for Mexican Americans. Members of these two minority groups were admitted under lower academic standards than those used to measure the applications of “whites and others,” the others being all who were not white, African American or Mexican American. The school assigned applicants a composite number based on grade-point average and LSAT score. Hopwood’s was 199--higher than those of most of the African Americans and Mexican Americans who were admitted.

Hopwood’s lawsuit was not taken seriously by Texas officials until the eve of trial, in 1994, whereupon the school decided to “mend” its admissions procedures.

Like most institutions of higher education, the school had for years taken its cue from Justice Lewis F. Powell Jr.’s opinion in the 1978 Bakke case. There, the UC Davis medical school had set aside 16 out of 100 seats in each class for certain minorities. There was one admissions committee for the regular applicants, another for the “special” applicants, with the latter committee using lower standards. Powell found this dual system illegal on the grounds it had discriminated against a white man, Allan Bakke, because of his race: There must be one committee evaluating all applicants for all seats; everyone had a right to “competitive” comparison. Powell, however, also allowed the use of race, but as a “plus factor.” His opinion effectively allowed colleges and universities to discriminate against those not of the “right” race, so long as schools maintained “proper” form.

In 1991, the Texas law school revived a dual system not unlike that condemned by Powell. The applications from “whites and others” were sorted into one pile, those from African Americans and Mexican Americans into another, with a subcommittee of the full admissions committee passing judgment on the latter. The law school thus thought it could “mend” affirmative action by replacing the dual admissions system with a unitary one that would provide “competitive” comparison--and of course enable it still to discriminate against applicants like Hopwood.

This satisfied the trial court judge, who took Powell’s opinion to be the law of the land. But now the 5th Circuit has reviewed Powell’s opinion and rightly found it wanting. The fundamental problem with the opinion is that Powell justified the use of race in terms of “diversity.” But no Supreme Court majority has ever endorsed this as a suitable rationale for government-sponsored racial preferences. Indeed, in recent years the court has declared that preferences might be justified only to remedy the ill effects of past discrimination.

The school also made a remedial argument, which the 5th Circuit ruling also rejected. If the school itself was currently discriminating against African Americans and Mexican Americans, then there might be an adequate remedial premise. But the school long ago ceased to discriminate against African Americans and had never discriminated against Mexican Americans. Moreover, a majority of the African Americans admitted were not even from Texas. “An inference is raised,” the court dryly notes, “that the program was the result of racial social engineering rather than a desire to implement a remedy.”

The University of Texas now has suspended its discriminatory admissions procedures. It has, for the moment, ended preferential affirmative action. The 5th Circuit could be overruled in some particular but probably not all. The direction of constitutional law seems firmly set against preferences. The important question now is whether higher education will understand that it must quit the racial social engineering in admissions that has divided and embittered the nation. Only race-blind admissions procedures--those that treat individuals without regard to their racial or ethnic identity--can ensure fairness and protect rights that are personal in nature.