Judges reject race as factor in university admissions Appellate court strikes another blow against affirmative action


A federal appeals court decision that sharply limits the use of affirmative action at the University of Texas has shaken the nation's colleges and universities by threatening to dismantle admissions policies that give preferences to minorities.

The unanimous ruling by a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans forcefully rejected using race or ethnicity as a factor in admissions, even for what the appeals court called "the wholesome practice of correcting perceived racial imbalance in the student body."

It was a rejection of race-based affirmative action admissions policies that went far beyond the Supreme Court's landmark 1978 decision in the Bakke "reverse discrimination" case, which said that in the interest of diversity on campus, race could be a factor among many in admissions decisions.

Ecstatic conservatives hailed the ruling as a definitive statement in the continuing dismantling of affirmative action programs nationwide.

"This is clearly another nail in the coffin of racial preferences," said Clint Bolick, litigation director of the Institute for Justice, a conservative legal organization based in Washington. "I think it would be a very costly gamble for any public university to persist in any kind of racial preference system. As an attorney, my advice to any university would be to get out of the racial classification business."

But some scholars and affirmative-action supporters said the appeals court had dangerously exceeded its powers in rejecting the Supreme Court's Bakke decision. But they said that it was uncertain that the Supreme Court would hear the case, let alone uphold the 5th Circuit Court's opinion.

Ted Shaw, associate director of the NAACP Legal Defense and Educational Fund Inc., said, "This is a disturbing, troubling ruling part of a pattern we're seeing in which some judges who were appointed by very ideologically conscious administrations are really emboldened to try to dismantle the entire body of case law in the area of race discrimination."

Two of the three judges were appointed by President George Bush; the third was appointed by President Ronald Reagan.

For now, the decision's effects are limited to public institutions in the three states represented by the 5th Circuit Texas, Louisiana and Mississippi.

The appeals panel decision Monday, drawing heavily on recent Supreme Court rulings, said the University of Texas Law School could not give preferences to black or Hispanic students in admissions as part of a strategy to increase racial diversity.

The Supreme Court's landmark 1978 case of Regents of the University of California vs. Bakke had allowed the use of race as a factor, among many, in admissions to achieve diversity.

But the three appellate judges unanimously said the deeply divided court ruling in Bakke had been taken further than had been intended in allowing race as a favor in college admission; subsequent Supreme Court rulings had consistently limited the use of race-based preferences, they said.

Outside the three states in the 5th Circuit, officials at state universities across the nation said the ruling would not affect their admissions processes for the freshman class entering this fall.

But legal and education experts said the current case, Hopwood vs. Texas, often dubbed "Bakke II," had the potential to end affirmative action programs that give preference to minority applicants at state schools nationwide and had further enflamed one of the most contentious issues in American education.

Pub Date: 3/21/96

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