by Ken Emanuelson
Bill Clinton announced earlier this year that he'd like for us to have a "national dialogue on race." Looking around the UT campus this semester, I'd say his prayers have been answered. Between Lino Graglia, Oscar de la Torre, the Texan editors, Marlen Whitley, Marc Levin, and the rest of our motley crew, I'd say Austin's been doing more than it's part. I've attended most of the debates and panel discussions, and it's become painfully clear that there's very little common ground, or hope for common ground, between the two sides. Unfortunately for Whitley, de la Torre, and others who worship at the altar of racial preferences, their concurrence is not required. Like Orval Faubus and George Wallace were in years past, they are on the losing side of history. One opinion poll after another shows that racial preferences are incredibly unpopular with the American people. The bleak future of racial preference is aptly demonstrated by the fact that the NAACP Legal Defense Fund recently settled out-of-court for over $300,000 rather than allow another racial preference case to be heard by the Supreme Court. It's abundantly clear which way the winds are blowing.
The source of all the uproar here in Texas is the Hopwood decision, which the Attorney General and the University claims is a flat prohibition on the use of racial classifications in making admissions decisions to the U.T. Oscar de la Torre and his band of malcontents claim it's no such thing. Judge for yourself.
The Hopwood decision, like any other legal opinion, is best understood within the legal context in which it was decided. To really understand what a given legal opinion means-in contrast to what it says-you really have to look at the opinions handed down both before and after the opinion in question. For example, Brown v. Board of Education was handed down in 1954, but attorneys, judges, and law professors are still wrestling over what the hell it meant then, and what it means today. In order to understand the Hopwood decision, we have to first look to the last word from the Supreme Court on the issue: the Bakke case.
In Regents v. Bakke, a 1978 decision, the Court was faced with a fact pattern almost identical to Hopwood: Allan Bakke, a white applicant to graduate school, was denied admission while non-white applicants with much lower objective qualifications were admitted. The school operated a two-track admissions system, with 16% of the acceptance slots reserved for persons of certain ethnic groups. The difference in objective qualifications between Bakke and the special admittees was dramatic: Bakke's verbal, quantitative, and science MCAT scores placed him in the 96th, 94th, and 97th percentiles respectively, while the average special admittee scored at the 34th, 30th, and 37th percentile levels. Bakke's undergraduate GPA was 3.46, compared to the average special admittee GPA of 2.62. After twice being denied admission to medical school, Bakke brought suit alleging that the two-track admissions program was unconstitutional under the Fourteenth Amendment.
The Supreme Court opinion is huge and confusing, consuming 154 pages in the U.S. Reports, owing mostly to the fact that it is actually six separate-and somewhat difficult to reconcile-opinions. (Interested readers can pull up the opinion online at http://www.findlaw.com/casecode/supreme.html. The cite is 438 U.S. 265). After a discussion of the facts of the case and the prior law, Justice Powell, writing for a divided Court, began by rejecting the school's argument that discrimination against whites should not be subjected to strict judicial review, explaining that 'guarantees of the Fourteenth Amendment extend to all persons,' and that 'there is a measure of inequity in forcing innocent persons . . . to bear the burdens of redressing grievances not of their making,' The Court ruled that all racial classifications and preferences of this sort must be subjected to 'strict scrutiny,' and must satisfy a 'compelling state interest,' legal standards which are, in practice, almost never met.
Powell then addressed the four 'compelling state interests' advanced by the medical school in defense of its racial preference system. The school argued that racial preferences were necessary: (1) to increase the number of minority students graduating from medical school, (2) to counter the effects of societal discrimination, (3) to increase the number of doctors serving minority communities, and (4) to obtain the educational benefits that flow from a diverse student body. Point-by-point, Powell solidly rejected each of the first three arguments. He accepted the diversity argument in theory, but found that the system under consideration was constitutionally unacceptable. He explained that the school's admission program 'involves the use of an explicit racial classification never before countenanced by this court,' and that '[e]thnic diversity . . . is only one element in a range of factors a university properly may consider. . . . Petitioner's special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.' A two-track program was therefore impermissible. He described a constitutional admissions program as one in which 'race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats.'
The legacy of the Bakke case then, is that race can be considered a 'plus' in achieving diversity so long as it's not the only consideration. Under Bakke, any system of racial 'set-asides' or 'quotas' is clearly unconstitutional, but some consideration could be given to race in deciding between similarly-qualified applicants. Simple enough, right? Well, not exactly. There's a serious problem with Bakke: Powell's opinion was a single-justice opinion. For a major part of the opinion, the arguments and explanations were his alone. In essence, the Court came to a slim consensus on which party should prevail, but none as to the most important question: 'why?' With respect to diversity in particular, no other justice joined Powell's rationale. This state of affairs has fostered a fair amount of debate among attorneys, judges, and legal commentators. There's been a question, left hanging in the air, as to whether the diversity rationale was ever legitimate. Decisions handed down after Bakke relating to other types of racial preferences, while not completely denouncing the diversity rationale, have seldom applied it and have, in most cases, explicitly rejected it.
It's against this backdrop that the Hopwood case was decided. Like Allan Bakke, Cheryl Hopwood was denied admission to graduate school, in this case the University of Texas School of Law. Learning that U.T. Law was, like the school in Bakke, operating a two-track admissions system, in which the 'presumptive admit' qualifications for blacks and Mexican-Americans were lower than the 'presumptive deny. qualifications for whites and other minorities, Hopwood and several other white applicants filed suit in federal court. The school, as might be predicted, countered that their program was acceptable under Bakke as a means of attaining diversity.
The opinion in the Hopwood case is fairly short - only 35 pages. (The opinion is available on-line at http://www.ca5.uscourts.gov/Opinions/Pub/94/50000/94-50569-cv0.htm). The opinion begins with a lengthy discussion of the UT admissions program and the Bakke case, including a serious analysis of the infirmities of both. After addressing post-Bakke Supreme Court decisions on racial preferences in non-educational settings, most of which rejected the diversity rationale, the court held that the use of racial discrimination to foster diversity was constitutionally impermissible, explaining that "the use of race to achieve a diverse student body . . . simply cannot be a state interest compelling enough to meet the steep standard of strict scrutiny." The court also rejected various arguments that racial preferences were justified in order to overcome the effects of past discrimination.
The opinion concludes thus: 'In summary, we hold that the University of Texas School of Law MAY NOT USE RACE AS A FACTOR in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school's poor reputation in the minority community, or to eliminate the any present effects of past discrimination by actors other than the law school.' (emphasis added.) There you have it. An application for rehearing en banc (a decision by a larger panel of Fifth Circuit judges) was denied. Certiorari (appeal to the Supreme Court) was denied. Although these do not technically count as affirmances of the decision, they do support a strong inference that the court is on the right track in its legal analysis. At the very least, they establish beyond any doubt that the Hopwood decision is the law of the land here in Texas. I don't know about you, but the language of the opinion seems pretty clear to me. Does the wording seem somehow vague or cryptic? Being a mere mortal, I have trouble imparting ambiguity to clear text. Perhaps someone more sophisticated, some modern-day John Marshall, could write in and explain it to me. I leave it to the reader to determine for himself or herself how the opinion is to be interpreted, but it's difficult for me to see how the above-quoted language can be construed as anything other than a total prohibition on the use of race in admissions decisions. The onus would appear to be on the proponents of racial preferences to provide a convincing argument as to why the opinion doesn't mean what it says. Perhaps they could hold a seance and conjure up the ghost of Justice Brennan (a.k.a., 'The Great Obfuscator') for advice. Until they get the word back from the other side, I'd encourage them to move on to real issues in the debate, and refrain from tossing out red herrings. Doing so serves only to further marginalize their rapidly-evaporating position.
Ken Emanuelson is a second year law student and law representative in the Student Government.