By David Tell
The Weekly Standard, April 1, 1996
Affirmative action bleeds anew. And this latest wound might eventually prove fatal. Ruling March 18 in the case of Hopwood v. Texas, the U.S. Court of Appeals for the Fifth Circuit has now sharply limited the circumstances under which a state-sponsored institution of higher education may give “substantial racial preferences in its admissions program . . . to the detriment of whites and non-preferred minorities.” Such preferences remain theoretically permissible when designed to remedy the proved, persistent effects of a school’s own past discriminatory practices, the court acknowledges. But the Fourteenth Amendment’s Equal Protection Clause otherwise forbids the elevation of “some races over others, even for the wholesome purpose of correcting perceived racial imbalance in the student body.”
In other words, almost every race-conscious student-selection procedure now in place at an American public college or university is unconstitutional. And the constitutionality of American affirmative action generally, far beyond the realm of higher education, has never been more in question. The Fifth Circuit’s reasoning eviscerates the “diversity” rationale upon which affirmative action loyalists have been hanging their increasingly slender hopes. If the opinion survives potential appeal, and if relevant authorities conscientiously comply with its clear meaning, then Hopwood, as one of the defeated attorneys in the case complains, leaves “no place in the country for affirmative action.” He exaggerates. But only a little.
Cheryl Hopwood is a 32-year-old white woman who applied for admission to the University of Texas law school’s 1992 freshman class. She was denied admission, though the vast majority of black and Mexican-American students who were offered admission that year had a much lower test-score and grade-point-average ranking.
Two years later, Hopwood sued, alleging unconstitutional discrimination on account of race. As conceded by the state and university defendants in the case, the law school handled white applications differently from those of black and Mexican-American students, granting clear and heavy preference to the latter in the service of an “aspiration” to achieve 15 percent minority enrollment.
In August 1994, a U.S. district court held only nominally in Hopwood’s favor, awarding her one dollar in damages and the right to reapply for admission free of charge. The law school’s 1992 affirmative action procedures were, purely by virtue of technical design, a violation of the Fourteenth Amendment, that court decided. But on the eve of trial, the school had announced an intention to correct such flaws. And its revised affirmative action plan, the district court held, would satisfy constitutional requirements — even though it would admittedly continue to discriminate on the basis of race, with exactly the same practical results.
It is this “new” race-preference mechanism, and its affirmation by the district court, that the Fifth Circuit has struck down. Hard. As the Supreme Court had already established, any racial discrimination by the state must serve a “compelling government interest” and be “narrowly tailored” to achieve that goal. The lower court held that two such goals justified Texas’s discrimination in favor of black and Mexican-American law school applicants: correcting the present effects of past discrimination and maintaining a “racially and ethnically diverse student body.” But the first of these goals cannot justify race preferences at the University of Texas School of Law, the Fifth Circuit has now determined. And the second of these goals, diversity, cannot justify race preferences anywhere.
The defendant officials in Hopwood contended that discrimination at all levels of Texas public education in the 1950s and 1960s had two contemporary, negative effects at the law school: the institution’s alleged reputation as a “white” bastion hostile to minorities, and the statistical underrepresentation of minorities in its student body. The Fifth Circuit rejected this contention, concluding — beyond dispute, really — that Texas had failed to show constitutionally acceptable evidence of such a cause-and- effect connection and that the “remedy” involved was inappropriate to the ” harm.”
The law school’s race preferences were instituted in the 1970s, like so many similar programs, simply because they seemed a “good idea”; their ” remedial” justification is a defensive afterthought. How might the legacy of long-ago discrimination in elementary and secondary schools explain the current qualifications of black and Mexican-American applicants to law school when most of those applicants first attended Texas public school no earlier than 19807
In any case, Supreme Court precedent allows the University of Texas to correct only its own past discrimination, not discrimination in grade school. And here Texas’s rationale was even weaker. The law school’s exclusion of black students was abolished in 1950. Mexican-American students were never excluded.
Nor was the law school’s affirmative action program ever really contingent on discrimination in Texas public schools at all. Race preferences were granted to graduates of private and parochial schools. And more than two- thirds of all black students offered admission in the year Cheryl Hopwood applied were from out of state. “In this situation,” the Fifth Circuit’s opinion dryly reads, “an inference is raised that the program was the result of racial social engineering rather than a desire to implement a remedy.”
So what about “diversity” as the justification for a public university’s racial favoritism? It is totally impermissible, the Fifth Circuit says. And here the Hopwood decision represents a major threat to the legality of race preferences on campus and off. Because few existing race preferences in America can meet the constitutional “remediation” standard the Supreme Court has established since 1989. “Diversity” is affrmative action’s last gasp.
Writing the controlling opinion in the only Supreme Court case involving race preferences in student admissions (Regents v. Bakke, 1978), Justice Lewis Powell said that diversity could be an acceptable justification for affrmative action so long as minority and non-minority candidates were not entirely segregated in the competition for placement. If race were merely a ” plus factor,” in other words, and did not by itself and by definition determine the results, race-conscious decision-making would be okay.
The Supreme Court was split three ways in Bakke. Powell wrote only for himself, his conclusions have never commanded a majority of the court, and his opinion’s value as legal precedent has always been hotly disputed. The Fifth Circuit, from an obvious reading of more recent Supreme Court decisions, now concludes that Powell’s Bakke opinion “is not binding precedent.” For as the facts of the Texas case make clear, the Powell-derived fiction that affirmative action involves constitutional “goals” rather than unconstitutional “quotas” is just that: a fiction.
At the University of Texas law school, minority test scores and college records were ranked on a separate, much less stringent scale. White candidates were presumptively denied admission at the same index rankings that effectively guaranteed admission to black and Mexican-American applicants. All black and 90 percent of Mexican-American applicants whose rankings fell just below the so-called discretionary zone for white students were offered law school placement in 1992; only 6 percent of white students with the same scores earned the same reward. Texas passed over Cheryl Hopwood and roughly 700 other higher-scoring white applicants that year before it denied admission to any black in-state candidate. And only one black applicant admitted to the school had an objective ranking as high as hers.
A series of law school deans from around the country testified in Hopwood that their institutions employ racial preferences essentially identical to those at Texas — in order to achieve, as they invariably succeed in doing, “flexible goals” for minority opportunity. So race is not just a “plus factor” in diversity-based affirmative action in the United States. It is, sad to say, the only plus that matters. And a dispositive racial quota like this, the Fifth Circuit now announces, is no longer constitutional just because some people are prepared to lie about how it works.
Hopwood does not end the affirmative action battle. It is a circuit court decision that formally applies in just three states. The realization of its broader implications for full, colorblind justice probably depends on further litigation. And the same, noble goal certainly depends on the efforts of elected officials, who must respect rather than resist such judicial results, and who must also correct certain perversions of colorblind principle that our courts cannot reach.
At least in the near term then, afftrmative action remains a political as well as constitutional issue. An elected politician — the president — appoints federal judges. And our current president has fought the clear, current trend of judicial affrmative action rulings — a trend now capped by Hopwood — from the day he took offce and at every turn. Bill Clinton should be forced to explain his obstinate defense of official race discrimination, and to join a serious national debate about affirmative action, in the coming campaign.