Court Lets Stand Ruling Against Race Preference

In a surprise move, the Supreme Court on Monday let stand a ruling that struck down a University of Texas law school admissions policy on grounds that it preferred black and Mexican American applicants over better-qualified white students.

While the court’s action marks another setback for affirmative action, it fails to resolve the central question of whether colleges can continue to use a student’s race or ethnic background as one factor in admissions.

“This leaves a cloud of confusion,” said Harvard law professor Laurence H. Tribe, who had urged the court to hear the appeal on behalf of Texas officials.

For now, it appears that colleges and universities in Texas, Louisiana and Mississippi must use a strict colorblind approach when admitting students. That was the standard announced in March by the U.S. 5th Circuit Court of Appeals, which sets the law in those three states. The high court let that decision stand.

However, the Supreme Court’s refusal to hear an appeal does not convert the lower court decision into a binding national rule.

As a result, colleges and universities elsewhere may continue to rely on the high court’s 1978 Bakke decision. By a 5-4 vote, the court said then that admissions may not be race-driven, but that schools can consider a student’s race as a “plus factor.”

The high court most likely backed away from deciding that issue now both because of uncertainty among the justices and a procedural flaw at the heart of the Texas case.

In 1992, Cheryl Hopwood, who had earned a 3.8 grade-point average and an 83rd percentile score on the Law School Admissions Test, was rejected at the Texas law school. After she and three other white students sued alleging reverse discrimination, her lawyers discovered that the school had used a two-track admissions process.

Applications were “color-coded” by race. White, Asian and some Latino students went through a screening process with one set of standards, while black and Mexican American applicants were considered by a separate panel using more lenient rules.

Hopwood’s grade and tests gave her a point total that was higher than all but one of the roughly 25 black students who were enrolled, and all but three of the 50 Mexican American students who were admitted.

In the midst of the trial, the law school admitted that its two-track policy was illegal. Nonetheless, a federal judge in Austin ruled that the school did not violate Hopwood’s rights.

On appeal, the 5th Circuit not only ruled in her favor, but declared broadly that colleges “may not use race as a factor” in admissions.

This sweeping opinion gained national attention because it declared that the Bakke ruling no longer stood as the law. If it had been affirmed by the high court, it would have ended race-conscious admissions policies at colleges nationwide, both private and public.

Because private colleges and universities receive federal funds, they have been obliged to follow antidiscrimination rules set by the federal courts.

But the justices put off such a decision Monday.

Lest anyone think that the court had silently endorsed the 5th Circuit ruling, Justices Ruth Bader Ginsburg and David H. Souter issued a statement explaining that Texas officials had no basis for appealing since they had abandoned their two-track admissions policy.

Everyone agrees that two-track policy was “constitutionally flawed,” they noted--even the Texas officials who were appealing. “Accordingly, we must await a final judgment on a program genuinely in controversy before addressing the important question” of race-based admissions, they said in their opinion in the case (Texas vs. Hopwood, 95-1773).

But in California, the voters may decide the issue first. The University of California Board of Regents has voted to end race-based admissions, and the proposed California Civil Rights Initiative, if approved by the voters in November, would mandate a colorblind approach in the state’s public colleges.

For its part, the Supreme Court has repeatedly frowned on race-based decision-making by the government, but always stopped just short of outlawing the practice entirely.

Last year, a federal appeals court declared unconstitutional a University of Maryland scholarship program that was reserved for highly talented black students, and the justices refused to hear the appeal.

Although Justice Sandra Day O’Connor has consistently joined the conservative majorities on the issue, she has refused to outlaw affirmative action. As a result, neither the conservative nor liberal justices can be sure of mustering a five-member majority on the issue.

Nonetheless, a Washington lawyer who represented Hopwood said the court’s series of decisions suggest differing standards based on race are in deep trouble.

“If I were an admissions officer, I would be very uncomfortable in keeping a policy that used race,” said attorney Ted Olson. He noted that 5th Circuit judges had threatened Texas university officials with punitive damages.