| OCR Text |
Show AFFIRMATIVE ACTION: PATH TO EQUALITY OR REVERSE DISCRIMINATION? Natalie A. Noel state interest encompasses a far broader array of qualifications and characteristics of which ethnic origin is but a single though important element." (Dale 2001, 6). PowelPs opinion illustrates the importance that the race of a candidate not be the "sole" or "determinative" factor, while simultaneously asserting that diversity in higher education in a worthy goal. Recently, the Supreme Court denied review of a Fifth Circuit Court decision in a 1996 case Hopwood v. State of Texas (Hopwood II)1. The Fifth Circuit concluded that any use of race in the admissions process was forbidden by the Constitution. The University of Texas School of Law had two separate paths for assessment of applicants; one for blacks and Mexican-Americans and another for whites and all other "non-preferred" minorities. Much like Bakke, there was a disparity in the application of standards to the differing groups. Similarly, the applications for the preferred group were never compared to those in the other group. "Race was always an overt part of the review of an applicant's file" (Dale 2001, 7). In direct contrast to PowelPs opinion in Bakke, the three judge appellate court rejected PowelPs diversity rationale and held in Hopwood II that the desire to create a diverse student body never provides a "compelling" justification for the use of race in student admissions. The Hopwood II court recognized Justice PowelPs rationale as "not binding precedent," in consideration that no other Justice formally joined in his opinion. Similarly, the court determined that the law school failed to demonstrate sufficient continuing effects of prior illegal acts that would justify remedial affirmative action. Instead, the appellate panel held that, For the admissions scheme to pass constitutional muster, the State of Texas, through its legislature, would have to find that past segregation has present effects; it would have to determine the magnitude of those present effects; and it would need to limit carefully the "plus" given to applicants to remedy that harm. A broad program that sweeps in all minorities with a remedy that is in no way related to past harms cannot survive constitutional scrutiny (Dale 2001, 7). The effect of Hopwood II was to narrow the scope in relation to what constitutes sufficient past discrimination and its continuing effects upon the admissions process. Thus, without an adequate justification the implementation of a preferential admissions policy was rejected. To heighten the difference between PowelPs opinion and that of Hopwood II, and to complicate matters further, another Fifth Circuit panel "reviewed an appeal from an injunction order entered by a federal district court from the 1996 Hopwood II decision" (Dale 2001, 8). In the latter part of Hopwood v. State of Texas 1994 (Hopwood I) A federal district court ruled that the University of Texas School of Law's dual admissions policy violated the Fourteenth Amendment's Equal Protection Clause and held that separate evaluations for minority applicants were unconstitutional because they were not "narrowly tailored to the state's compelling interest in diversity and overcoming past discrimination." The court held that giving a "plus" to minority students was lawful, though a separate standard for minorities and non-minorities was not (Springer 2001). 2000, Hopwood v. State of Texas (Hopwood III), affirmed the ruling in Hopwood II that rejected PowelPs diversity rationale in Bakke. However, Hopwood III reversed the injunction that Hopwood II placed to forbid any consideration of racial preferences in admissions. Instead, in Hopwood III, the district court held that the injunction resulting from Hopwood II was in conflict with Bakke. Specifically, the court held that the injunction, Forbids the University from using racial preferences for any reason, despite Bakke's holding that racial preferences are constitutionally permissible in some circumstances. Consistent with that position, Hopwood II does not bar the University from using race for any and all remedial purposes; rather Hopwood II bars the University from using race to remedy the effects of previous discrimination in other components of Texas's public education system only. By enjoining any and all use of racial preferences, the district court went beyond the holding of Hopwood II and, in the process, entered a judgment that conflicts with Bakke (Dale 2001, 9). Thus, the overall effect of Hopwood III, was to lift the previous court's injunction, while leaving in place the constitutional rationale and conclusion of the appeals court in Hopwood II (Dale 2001, 9). In Washington, the Ninth Circuit court created a conflict with the Fifth Circuit court by ruling in the case Smith, v. University of Washington that the "extensive use of race-based factors" in UWSL admissions process was constitutional. Instead of rejecting Justice PowelPs diversity rationale in Bakke, the Ninth Circuit court argued that Justice PowelPs opinion provided "the narrowest footing upon which a race-conscious decision making process could stand" (Dale 2001, 9). Though passage of Initiative 200 limits the significance of this ruling, it does shed light on the fragmented nature of the judicial opinion. Bakke's precedent is important because the Supreme Court has yet to address affirmative action in higher education since the Bakke decision (Dale 2001, 9). The judicial divide inherited from the fragmented Bakke opinion is also mirrored in two recent cases involving the University of Michigan. Two separate federal district courts took decidedly different approaches to the University of Michigan's admission policies (Dale 2001, 9). The University of Michigan has been operating under what is commonly known as the "Michigan Mandate." Under the Michigan Mandate, undergraduate applicants are evaluated using a grid system in which applicants are ranked by their test scores and high school GPA. The admissions system awards a 20-point advantage to black and Hispanic students on a 150-point scale. Incidentally, the university also awards "six points for geographical factors, five points for leadership skills, three points for an outstanding essay, and so on" (Dale 2001, 10). In the first case, Gratz v. Bollinger decided in 2000, the Ninth District court upheld for diversity reasons the University of Michigan's race-based undergraduate admissions policy. In Gratz, the court reached a similar conclusion as the Ninth Circuit court in Smith. That is, they held that 14 |
