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Courts Consider Affirmative Action
Differing decisions reveal national ambivalence

PUBLIC CAMPUSES in Louisiana, Mississippi and Texas, as well as California, have been ordered not to consider racial or ethnic backgrounds in affirmative action programs.

The U.S. Supreme Court indicated it had no quarrel with that view last year, when it let stand, without dissent, an appellate ruling upholding California Proposition 209 on grounds that the U.S. Constitution requires the government to treat all people equally, regardless of race. The American Civil Liberties Union had appealed, in vain, that government sometimes must employ racial preferences to make up for past or present discrimination.

The high court’s first major action on this issue came in 1978, when it ruled in the "Bakke case" that the University of California at Davis medical school could not use racial quotas in admitting students. But the majority opinion, written by Justice Lewis Powell, said a university could take race into account, among a number of factors, in order to achieve diversity.

However, in 1996 the Supreme Court let stand an appellate decision in Hopwood vs. Texas that, contrary to the 1978 decision, held that diversity does not justify using race as a factor in admissions. The ruling covered public campuses in Texas, Louisiana and Mississippi, but currently only the University of Texas at Austin and the main Texas A&M campus in College Station are affected because they did not have room for all the qualified students who applied.

The affirmative action program at the University of Michigan, in Ann Arbor, faces legal challenges from white students who say they were denied admission to the law school, and admission as undergraduates, because of race. But a more liberal U.S. Court of Appeals than the one that issued the Hopwood decision has jurisdiction over Michigan.

One legal expert who closely follows these issues predicted that Ann Arbor might not be ordered to drop its present affirmative action policy, which does take race into account.

A similar challenge was filed against the University of Washington law school last fall by a white student who claimed she was denied entry because of different standards for white and minority applicants. A constitutional amendment to ban race as a factor is expected to qualify for the November ballot. The Republican-controlled legislature seems unlikely to support an alternative proposed by Governor Gary Locke, a Democrat, that would permit race-based affirmative action for qualified minority students.

In February, the Arizona State Senate turned down a proposal to ban racial considerations, as did a unanimous Senate committee in South Dakota and the Democratic-controlled Georgia Legislature. At the time of publication, the issue was unresolved at various legislative levels in Alabama, Missouri and South Carolina.

Recently, courts have examined claims that diversity has educational benefits, according to an analysis by Jonathan R. Alger, counsel for the American Association of University Professors, and Eric M. Albert, a Columbia University law student. The AAUP and allied groups have been surveying faculty to find such evidence to support race-based affirmative action.
In support of this view, former Stanford University President Donald Kennedy refers, in a recent article in The Atlantic Monthly, to a "little secret, closely held in elite higher education, that students extract more value from their fellow students than from the faculty. Prestigious institutions offer their students bright, interesting and diverse companions in learning–and not incidentally, valuable networks to carry into the rest of their lives."

Carl Irving


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© 1998 The National Center for Public Policy and Higher Education

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