What court didn't stop to think Decision striking down race-based admissions rests on shaky premises

July 21, 1996|By Karen Czapanskiy

UNFORTUNATELY, in the political rush to dismantle affirmative action, careful thinking is getting lost. Take, for example, the decision of the 5th Circuit in Hopwood vs. Texas.

At issue in the case was whether the Constitution permits an affirmative action admissions program at the University of Texas Law School. The law school, which enrolls a first-year class of approximately 500 students each year, sought to increase the enrollment of African-American students to 5 percent of the class, and to increase the enrollment of Mexican-American students to 10 percent of the class. It instituted a two-track admissions process under which numerical qualifications were not as high for African-American and Mexican-American applicants as they were for other applicants.

In 1992, the program contributed to the enrollment of a class of approximately 400 majority students, 41 African-American students and 55 Mexican-American students. Several white students who were not offered admission sued, and the 5th Circuit found that the program violates the Constitution. The Supreme Court recently declined to review the decision.

In recent years, the law school changed its affirmative action program to require a multi-faceted review of all applicants by the same committee. Under the revised program, the race of the applicant is an acceptable factor to consider. While the 5th Circuit pronounced all use of race in admissions to be unconstitutional, its judgment in the case applies only to the two-track process in place at the law school in 1992. Therefore, the constitutionality of a race-regarding affirmative action program for admission to a public college or graduate school has not been finally decided.

According to the opinion of the 5th Circuit, a major evil of using race as a factor in admissions is that it will "fuel racial hostility."

It further claimed that "Any racial hostility 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."

In other words, according to the 5th Circuit, many white people are likely to be so upset by a program resulting in the admission of fewer than 100 people of color to law school that they will inevitably project hostility toward people of the same race as those students.

The 5th Circuit cited no evidence for its prediction -- not a single study or survey was quoted or even cited. We are, therefore, called upon to accept the prediction as a given, as a known and indisputable fact, too obvious to need evidence. I can say with great confidence that the prediction is wrong for at least this one American. I do not experience the admission of people of color to the study of law as a negative. Just the opposite is true, in fact.

The legal profession must be diverse if it is to contribute to the achievement of justice in a diverse society. Few women practiced law 20 years ago. As the numbers have increased, women lawyers have pushed the legal system to be more responsive to problems affecting women, such as domestic violence. In the diverse culture called the United States, different communities have different experiences and needs. Lawyers help communities translate their needs into demands, and their demands into solutions. Lawyers serve in legislatures, staff the bench, act as policy-makers in government and business and, not least of all, help people solve problems.

Historically, few communities of color have had lawyers who can speak with or for them based on common histories and common experiences. If race-regarding admissions practices increase the diversity of the bar, then I'm for them.

But, argues the 5th Circuit, race-regarding practices only serve to remind people of their racial identities and to see their interests in racial terms. If a particular white person is not admitted to law school because the place was given to a person of color, many white people will feel offended and racial hostility on the part of white people will increase.

This simplistic analysis rests on many assumptions.

First, it assumes that racial identity is an important motivator of action. While that remains true for many people in this country, many others have come to the conclusion that justice for all in a diverse society is a more important motivator. Further, it assumes that white people have no capacity to think beyond a narrowly defined set of racial interests. Of course, narrow thinking is encouraged when judges make and act on simplistic and unsupported predictions.

Instead, what policy-makers need to be doing is to explain frequently our common need for all of our members to succeed.

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