U.S. Argues Case for Affirmative Action

Clinton administration lawyers said Friday that blacks and Latinos should continue to receive preferences in college admissions because they suffer continuing discrimination in their daily lives.

“A black or Mexican-American student reared in this country is likely to have had different life experiences, precisely because of his or her race, than an otherwise similarly situated white student,” the administration said in a brief to the Supreme Court. For this reason, colleges and universities should be allowed to favor students who “experience racial minority status,” even if they come from affluent families.

The administration’s latest defense of affirmative action comes in what is shaping up to be this decade’s most important case in higher education. In March, a federal appeals court ruled that the Constitution does not permit the University of Texas law school to use race as a factor in admissions.

If that ruling is upheld, it will force nearly all state colleges, and possibly many private ones as well, to adopt a “race-neutral” approach when evaluating applicants.

In Friday’s brief, the administration urged the justices to hear the appeal filed in the case (Texas vs. Hopwood, 95-1773) and to throw out the lower court ruling.

“The practical effect [of a race-neutral approach] will be to return the most prestigious institutions within state university systems to their former ‘white’ status,” said U.S. Solicitor Gen. Drew S. Days III.

In its March decision, the appeals court said that Cheryl Hopwood, a well-qualified white student who grew up in a poor family, had been discriminated against when she was passed over in favor of minority students with lower grades and test scores.

While the appeals court said that Texas officials “may not use race as a factor” in evaluating students, it also said that students who are disadvantaged because of their “economic or social background” could be given a preference.

But administration lawyers said that is not good enough.

“The inclusion . . . of those who have experienced, and will continue to experience, racial minority status, is essential to achieving meaningful educational diversity,” the brief asserts.

Days, who is leaving his job soon to return to Yale Law School, has been repeatedly rebuffed by the Supreme Court on matters involving affirmative action.

Last year, Days, speaking for the administration, urged the justices to allow the University of Maryland to maintain a small scholarship program that was limited just to black students. His appeal was rejected.

He also argued in favor of steering some federal contracts to minority-owned businesses and in support of congressional districts that were drawn along racial lines. In both cases, the high court by 5-4 margins ruled against the administration.

The series of Supreme Court opinions demanding a race-neutral approach by public agencies has raised doubts about the future of the 1978 Bakke decision.

In that ruling, Justice Lewis F. Powell, speaking as the decisive swing vote, said that the Constitution’s equal-treatment rule generally forbids official discrimination against whites as well as blacks.

However, an exception may be allowed in higher education, he said. To achieve diverse classes, colleges may consider many factors, including race, when admitting students, Powell said.

Since then, colleges and universities have relied on Powell’s opinion to justify broad-ranging affirmative action policies.

But in the Texas case, the lower court boldly declared that Powell’s opinion had been implicitly overturned by later Supreme Court rulings.

This ruling “disregards two decades of established law” and “has already created substantial confusion and upheaval among colleges and universities nationwide,” said Days in urging the court to hear the appeal.