A logical stopping point

The U.S. Court of Appeals for the Fifth Circuit handed advocates of governmental "affirmative action" a big blow March 18 when it struck down a racial preference admissions program at the University of Texas School of Law. The court was overturning a lower U.S. District Court decision that upheld the constitutionality of the law school's racial admissions policy.

The appeals court cited Supreme Court precedent requiring "some showing of prior discrimination" before a public institution may enact remedial policies-most often referred to as affirmative action-that give racial minorities favorable treatment over members of other groups. The court also held that racially remedial programs must pass a legal test known as "strict scrutiny," which in this context means affirmative action programs may not be undertaken for trivial reasons such as fostering racial or ethnic "diversity."

Even though the opinion technically applies only to the three states covered by the Fifth Circuit, the ruling no doubt will make it to the Supreme Court and could have profound effects on the American debate over racial preferences and quotas. Below is an extended excerpt of the court's opinion in the case, Hopwood v. Texas. All legal citations are omitted from this text.

[W]e conclude that the district court erred in expanding the remedial justification to reach all public education within the State of Texas. The Supreme Court repeatedly has warned that the use of racial remedies must be carefully limited, and a remedy reaching all education within a state addresses a putative injury that is vague and amorphous. It has "no logical stopping point."...

Strict scrutiny is meant to ensure that the purpose of a racial preference is remedial. Yet when one state actor begins to justify racial preferences based upon the actions of other state agencies, the remedial actor's competence to determine the existence and scope of the harm-and the appropriate reach of the remedy-is called into question....

Here, however, the law school has no comparative advantage in measuring the present effects of discrimination in primary and secondary schools in Texas. Such a task becomes even more improbable where, as here, benefits are conferred on students who attended out-of-state or private schools for such education. Such boundless "remedies" raise a constitutional concern beyond mere competence. In this situation, an inference is raised that the program was the result of racial social engineering rather a desire to implement a remedy.

No one disputes that in the past, Texas state actors have discriminated against some minorities in public schools. In this sense, some lingering effects of such discrimination is not "societal," if that term is meant to exclude all state action. But the very program at issue here shows how remedying such past wrongs may be expanded beyond any reasonable limits.

Even if ... the state is the proper government unit to scrutinize, the law school's admissions program would not withstand our review. 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. Obviously, none of those predicates has been satisfied here....

Next, the relevant governmental discriminator must prove that there are present effects of past discrimination of the type that justify the racial classifications at issue.

To have a present effect of past discrimination sufficient to justify the program, the party seeking to implement the program must, at a minimum, prove that the effect it proffers is caused by the past discrimination and that the effect is of sufficient magnitude to justify the program....

Here, according to the district court: "The evidence presented at trial indicates those effects include the law school's lingering reputation in the minority community, particularly with prospective students, as a "white" school; an underrepresentation of minorities in the student body; and some perception that the law school is a hostile environment for minorities." Plaintiffs now argue that these three alleged effects are at most examples of societal discrimination, which the Supreme Court has found not to be a valid remedial basis....

As a legal matter, the district court erred in concluding that the first and third effects it identified-bad reputation and hostile environment-were sufficient to sustain the use of race in the admissions process. The Fourth Circuit examined similar arguments in a ... recent case that struck down the use of race-based scholarships. The university in that case sought, in part, to justify a separate scholarship program based solely upon race because of the university's "poor reputation within the African-American community" and because "the atmosphere on campus [was] perceived as being hostile to African-American students."

The [Fourth Circuit] court rejected the notion that either of these rationales could support the single-race scholarship program. The court reasoned that any poor reputation by the school "is tied solely to knowledge of the University's discrimination before it admitted African-American students." The court found that "mere knowledge of historical fact is not the kind of present effect that can justify a race-exclusive remedy. If it were otherwise, as long as there are people who have access to history books, there will be programs such as this."

In such a case, one cannot conclude that a hostile environment is the present effect of past discrimination. Any racial tension at the law school is most certainly the result of present societal discrimination and, if anything, is contributed to, rather than alleviated by, the overt and prevalent consideration of race in admissions.

Even if the law school's alleged current lingering reputation in the minority community and the perception that the school is a hostile environment for minorities were considered to be the present effects of past discrimination, rather than the result of societal discrimination, they could not constitute compelling state interests justifying the use of racial classifications in admissions. A bad reputation within the minority community is alleviated not by the consideration of race in admissions, but by school action designed directly to enhance its reputation in that community.

Minority students who are aided by the law school's racial preferences have already made the decision to apply, despite the reputation. And, while prior knowledge that they will get a "plus" might make potential minorities more likely to apply, such an inducement does nothing, per se, to change any hostile environment. As we have noted, racial preferences, if anything, can compound the problem of a hostile environment. The testimony of several minority students underscores this point. They stated generally that they felt that other students did not respect them because the other students assumed that minorities attained admission because of the racial preference program.

The law school wisely concentrates only on the second effect the district court identified: underrepresentation of minorities because of past discrimination. The law school argues that we should consider the prior discrimination by the State of Texas and its educational system rather than of the law school. The school contends that this prior discrimination by the state had a direct effect on the educational attainment of the pool of minority applicants and that the discriminatory admissions program was implemented partially to discharge the school's duty of eliminating the vestiges of past segregation.

As we have noted, the district court accepted the law school's argument that past discrimination on the part of the Texas school system (including primary and secondary schools), reaching back perhaps as far as the education of the parents of today's students, justifies the current use of racial classifications.

Moreover, if we did find that the past wrongs of Texas school districts were the sort of discrimination that the law school could address, the school still would have to prove the present effects of that past wrong. Without some strong evidence in the record showing that today's law school applicants still bear the mark of those past systems, such effects seem grossly speculative. The district court simply assumed that "[t]his segregation has handicapped the educational achievement of many minorities...." And we would still have to ask whether the program was narrowly tailored to this goal.

No one disputes that Texas has a history of racial discrimination in education. [But] the district court squarely found that "[i]n recent history, there is no evidence of overt officially sanctioned discrimination at the University of Texas." As a result, past discrimination in education, other than at the law school, cannot justify the present consideration of race in law school admissions....