Court Strikes Down Affirmative Action At Texas University Case Has The Potential To End Affirmative Action At Colleges And Universities Nationwide

For the first time, a federal appeals court has struck down the use of affirmative action in state colleges and universities, a ruling that will likely force the Supreme Court to reconsider the issue in the next year.

In a 3-0 ruling, the U.S. 5th Circuit Court of Appeals said Tuesday the University of Texas may not use race as factor when admitting students.

The court concluded that a white applicant to the law school, who was rejected despite her 3.8 grade average, was a victim of racial discrimination because many black and Latino candidates were admitted despite their lower academic standing. The court, which has jurisdiction in Texas, Louisiana and Mississippi, ordered the university to admit her and pay damages for violating her rights.

The 14th Amendment’s guarantee of equal treatment for all does not allow the university “to continue to elevate some races over others, even for the wholesome purpose of correcting perceived racial imbalance in the student body,” said Judge Jerry E. Smith of Houston.

The closely watched Texas case has been dubbed “Bakke II” in education circles. For the past two years, conservative legal activists have supported the white student’s lawsuit and believed the case has the potential to end affirmative action at colleges and universities nationwide.

Tuesday’s ruling in their favor could not be more sweeping. The appeals court concluded that the Supreme Court’s Bakke decision of 1978 is “not binding precedent” any longer because more recent decisions have implicitly overturned it.

Moreover, the court threatened the Texas officials with punitive damages if they continue to give admission preferences to black and Latino students.

Washington attorney Theodore R. Olson, who represented the unsuccessful white applicant, said he was delighted with the decision.

“This is a ringing endorsement of the view that racial discrimination is not the way to end racial discrimination,” Olson said. “This makes clear for the first time that it is not constitutional to discriminate against some students to accomplish something so elastic as ‘diversity,”’ he said.

“This looks to be an explicit rejection of Bakke,” said Sheldon Steinbach, an attorney for the American Council on Education, which supported the university in the case.

The 1978 Bakke case has set the standard for affirmative action in higher education. Four justices in that ruling said it was illegal to discriminate in favor of minorities and against whites in the admissions process. Four other justices said such affirmative action was legal to make up for past discrimination.

Then-Justice Lewis F. Powell Jr. split the middle. Generally, racial discrimination of any sort is illegal, he said, but universities may consider the race of black students as a “plus factor” so as to bring about “diversity” in their entering classes.

Since then, university officials have routinely cited Powell’s opinion as justification for their affirmative action policies. It is not clear, however, that the current Supreme Court still supports the “diversity” rationale.

In 1989, the Supreme Court said state and local officials may not use race as a factor in awarding contracts, except as a narrow remedy for proven past discrimination.

Last year, the justices on a 5-4 vote affirmed that strict approach and overturned an earlier decision that had allowed the government to seek “diversity” on the airwaves by steering new radio and TV licenses to minority entrepreneurs.

That suggested to leaders of the Center for Individual Rights, a conservative legal group in Washington, that the Bakke decision would be reversed if a challenge made its way to the Supreme Court.

And the case of Cheryl J. Hopwood looked to be an ideal vehicle for the challenge.

Having grown up in a poor family in New Jersey, Hopwood worked her way through college and earned a 3.8 grade average. As a new Texas resident, she scored at the 83rd percentile on the law school admissions test and applied to the University of Texas law school in Austin.

In 1992, she was rejected, although her scores and grades were higher than all but one of the 41 black students who were admitted that year and all but three of 55 Mexican-American students who won admission.

Armed with a lawsuit, her attorneys examined how students were admitted. As the appeals court noted, they learned applications were “color-coded according to race” and handled by separate evaluating committees. In memos, faculty members conceded they were using “what is in essence a quota system.”

Citing a series of Supreme Court rulings, Smith of the U.S. 5th Circuit Court of Appeals said university officials may not classify students differently based on their race.

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