By Richard E. Morgan
City Journal, November 30, 1999
In mid-March the U.S. Court of Appeals for the Fifth Circuit attempted to nudge American race-relations law a bit closer to color-blindness. In Hopwood v. Texas, it held that the University of Texas Law School must stop using racial preferences in admissions in order to achieve a certain percentage of blacks and Mexican- Americans in each class. The court declared unconstitutional a practice in which the same score that won “presumptive acceptance” for a minority applicant was below the score for “presumptive rejection” for a non-minority applicant.
Following now-familiar guidance from the Supreme Court, the Fifth Circuit held that such racial choosing was incompatible with the equal protection clause of the Fourteenth Amendment unless a state used it to advance a ” compelling interest.” Texas asserted two such interests: redressing past discrimination and ensuring “diversity” in its student body. The court rejected both, holding that the U.T. Law School had no relevant history of discrimination and that the desire to achieve “diversity”–introduced into constitutional parlance in 1978 in Regents of the University of California v. Bakke–could not justify an affirmative-action program.
In fact, as Judge Jerry E. Smith rightly noted, there are many problems with invoking Bakke in such cases. In the first place, only a small part of Justice Lewis F. Powell’s famous opinion–with its endorsement of using race as a modest plus factor in admissions–had won the support of a majority of the hopelessly fractured Court. Four justices had agreed with him that the medical school of the University of California at Davis had discriminated illegally against Bakke, and four others had seemingly endorsed his vague idea that considerations of race and ethnic origin could nonetheless be a ” competitive consideration” in state university admissions.
Second, even if Powell’s affirmative-action formula enjoyed tacit majority support at the time, more recent Supreme Court decisions have completely undermined its standing as precedent. Cases such as Richmond v. Croson in 1989 and Adarand v. Pena in 1995 have established that the only interest sufficiently compelling to justify preferences is remedying an established pattern of past discrimination by the institution in question.
The decision in Hopwood still has to survive possible review by the Supreme Court itself; the Democratic attorney general of Texas, acting independently of the Republican governor, has already retained Harvard Law School professor Laurence Tribe to represent the law school. But if Hopwood stands, it will signal the end of Bakke’s influence, both in the courts and in our law-school classrooms.
If Hopwood has a fault, it is that the Fifth Circuit decided it on constitutional grounds rather than simply declaring it a violation of the Civil Rights Act of 1964 (the law cited by the four justices who joined Powell in ruling for Bakke). Such a ruling would have allowed the court to sidestep the vague and manipulable terms of the constitutional jurisprudence on affirmative action. Rather than determine what is or is not a “compelling” state interest, it might just have pointed to the act’s requirement of strict color-blindness. As John Paul Stevens wrote in Bakke in 1978, under the Civil Rights Act “race cannot be the basis of excluding anyone from participation in a federally funded program.”