November 03, 1994|By GEORGE F. WILL

WASHINGTON — Washington.--In this season of sulphurous politics, with people doubting the ability of government institutions to produce social progress, something sensible has happened. Acting on behalf of a Maryland Hispanic with the unlikely name of Daniel Podberesky, a federal appeals court has unanimously declared unconstitutional a scholarship program that restricts eligibility to students of a particular race.

Mr. Podberesky sailed through high school with a 4.0 average and scored 1,340 on his SATs, but was denied the right to compete for a Banneker Scholarship at the University of Maryland. The Banneker program, comparable to programs at two-thirds of America's colleges and universities, awards about 30 scholarships to African-Americans.

In overruling a lower court's approval of the program, the appeals court declared the program a violation of the 14th Amendment guarantee of equal protection of the laws, and of the 1964 Civil Rights Act. The appeals court rejected the university's claim that the program was justified by rectifying four present effects of past discrimination by the university.

The university says the four effects include the university's poor reputation among African-Americans, the underrepresentation of African-Americans in the student population, low retention and graduation rates of African-American students and a campus atmosphere ''perceived as being hostile to African-American students.'' The lower court said any of these four would justify the Banneker program. The appeals court, by saying that none of the four does, has set standards so exacting that few if any scholarship programs exclusively for a particular racial or ethnic group will be constitutional.

The appeals court said that race-based government actions are constitutional only if there is strong evidence that the actions are truly remedial, meaning narrowly targeted only at effects of past discrimination. The court warned that if the lingering effects of past discrimination are not of sufficient magnitude to justify race-conscious actions, such actions might be motivated by ''simple racial politics'' or ''notions of racial inferiority.''

The court said that if mere knowledge of past discrimination by an institution produces a poor reputation of the institution among minorities, and if that justifies race-based preferences, such preferences will be justified as long as there are history books. Furthermore, the current social climate, irrespective of past discrimination by the university, is a sufficient explanation of a poor racial atmosphere on campus. And the underrepresentation and low retention and graduation rates of African-American students also can be explained by social factors other than past offenses by the university.

The fact that African-Americans from outside Maryland -- indeed, blacks from outside the United States -- are eligible for Banneker scholarships suggests that the program's rationale is not just remedying past discrimination. Rather, the program aims to produce ''diversity.'' That may be a legitimate university goal but it cannot be legitimately pursued by racially exclusive programs. Neither does a university's desire to have ''role models'' and ''mentors'' for African-American students make racially exclusive programs constitutional.

This ruling comes three months after a federal judge declared unconstitutional the University of Texas law school policy of maintaining separate admissions programs for whites and minorities. Such rulings suggest that courts are prudently retreating from permissiveness regarding ''race-conscious'' government programs.

However, this course correction by the judiciary may be coming too late to forestall more forceful and comprehensive measures. In 1996 the country may again be swept up in a California controversy.

Today California's Proposition 187, the ballot initiative that would deny most non-emergency state services to illegal immigrants, demonstrates the power of Californians to pull the other seven-eighths of Americans into an argument. Two years from now an even more furious debate probably will rage around the California Civil Rights Initiative, which would allow California voters to make the following into law:

''Neither the state of California nor any of its political subdivisions or agents shall use race, sex, color, ethnicity or national origin as a criterion for either discriminating against, or granting preferential treatment to, any individual or group in the operation of the state's system of public employment, public education or public contracting.''

The continent-wide reverberations of this debate could lead to a similar amendment to the U.S. Constitution, mandating color-blind public policy.

Some people will say that such an amendment, and the California initiative, and the decision against the Banneker program represent retreats from ''progress.'' But as C.S. Lewis said, ''We all want progress, but if you're on the wrong road, progress means doing an about-turn and walking back to the right road; in that case, the man who turns back soonest is the most progressive.''

George F. Will is a syndicated columnist.

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