Justices let stand ruling onbias case High court turns down Texas appeal to allow race-based admissions

July 02, 1996|By Lyle Denniston and David Folkenflik | Lyle Denniston and David Folkenflik,SUN STAFF

The Supreme Court chose yesterday to stay out of the continuing controversy over the use of race in university admissions, leaving campuses across the nation uncertain about the legality of their selection processes.

Two justices said that the issue had "great national importance," but the full court voted, apparently without dissent, to turn down a Texas appeal seeking permission to give some preference in law school admissions at the University of Texas to blacks and Mexican-Americans.

The court's refusal to hear the case has left public universities and private colleges that receive federal funds in doubt about their affirmative action programs.

One possible effect will be a two-tiered system:

For institutions in Texas, Louisiana and Mississippi -- the states covered by a federal appeals court ruling that was left intact by the justices -- it may be considerably harder to fashion admissions procedures based to any significant degree upon applicants' race or national origin.

For colleges and universities elsewhere, not obliged to obey the appeals court ruling, some use of race or national origin to achieve "diversity" in the student body would be permitted. It would be up to each school's lawyers to advise what could be done legally.

"I am deeply disappointed and, frankly, worried," said Donald N. Langenberg, chancellor of the University of Maryland System. The state of Maryland joined eight other states in supporting Texas' defense of the principle of affirmative action.

"It is a blow to affirmative action," he said.

One practical result of the ruling is that the lead challenger in the Texas case, Cheryl J. Hopwood, who now lives in Columbia, has a strong chance of getting into the Austin school, if she still wishes to go there.

Hopwood's attorney, Theodore B. Olson of Washington, said the Supreme Court's action means that the University of Texas Law School "has got to take race out of their [admissions] system," because that is what the appeals court in the case required.

But some educators insist that the appeals court decision merely strikes down an extreme example of an otherwise sensible practice.

"We're a long way from the conclusion of the issue," said David R. Merkowitz, vice president for public affairs at the Washington-based American Council on Education.

In New Orleans, Tulane University President Eamon M. Kelly said administrators would not alter admissions practices, which include race as one of many factors that could contribute to a candidate's acceptance. But, he said, "legal prescriptions against affirmative action make recruiting minority students -- which is already difficult -- even more difficult."

In March, the 5th U.S. Circuit Court of Appeals in New Orleans said Hopwood, who is white, could be kept out of the Texas law school only if the school could prove she would not have been admitted anyway, whatever her race.

The admissions procedure that was in effect at the time Hopwood was denied entry -- the system nullified by the appeals court -- included separate entry procedures: one for blacks and Mexican-Americans; one for all others, including whites. Blacks and Mexican-Americans could be admitted with lower scores on their undergraduate courses and law school exams than whites who were rejected.

Hopwood and three other white applicants won in lower courts on their claim that they were denied admission in 1992 because of the race-based selection process.

Although the Supreme Court gave no explanation for its action, Justices Ruth Bader Ginsburg and David H. Souter said the Texas appeal involved an admissions procedure that has since been abandoned and that even the university now concedes was based on an unconstitutional use of race and national origin.

To weigh affirmative action on a national scale, Ginsburg and Souter said, the court must await a future case testing "a program genuinely in controversy."

Laurence H. Tribe, the Harvard law professor who filed the appeal for Texas and its university officials, said yesterday that the Ginsburg-Souter explanation of the court's action "should reassure university officials and others throughout the country" that the federal appeals court's "sweeping pronouncements do not represent the law of the land."

But Michael E. Rosman, general counsel of the Center for Individual Rights, a legal advocacy group that helped finance the white applicants' constitutional challenge to the Texas law school procedure, said the court's action "casts grave doubt upon the validity of affirmation action programs in both public and private universities nationwide."

The Texas appeal was based heavily upon an argument that the federal appeals court ruling that struck down the Texas law admissions process could not stand because that decision had undercut the Supreme Court's most important ruling on race-based college admissions -- the so-called "Bakke decision" in 1978, allowing some use of race as a "plus" for minority applicants.

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