Educational `diversity' under attack

Rulings: Increasingly, U.S. courts reject admission plans, inspired by the 1978 Bakke case, as unconstitutional race discrimination.

March 26, 2000|By Ann G. Sjoerdsma

LAST WEEK, the U.S. Supreme Court passed up another opportunity to enter the national affirmative action debate that has public education officials wondering, in light of recent federal appeals court decisions, how, if at all, race can be factored into student admissions and school assignments -- and whether "diversity" still has a role.

This time, the justices let stand a ruling by the 4th U.S. Circuit Court of Appeals that the Montgomery County, Md., school system violated a white kindergartner's 14th Amendment equal protection rights when it denied his requested transfer to a math and science "magnet" school because of his race.

The county rejected Jacob Eisenberg's transfer from his neighborhood school, which has a small and rapidly declining white population, to a majority-white magnet program at another elementary school, because it would have a negative "impact on diversity."

Diversity is the key concept. A mix of people, of cultures, of viewpoints, of socioeconomic status. Diversity, however defined -- and the definition is hardly fixed -- has been the guiding light of educational affirmative action since the Supreme Court implicitly approved it 22 years ago as a constitutional defense to so-called "reverse-discrimination" in Regents of the University of California v. Bakke.

Though the Bakke ruling, an ideologically divided opinion with no clear majority on any legal issue, has long been confounding, it has been the uncontested law. Then came Hopwood vs. Texas. Today, public school administrators, from kindergarten to the university, increasingly find their race-conscious, diversity-based admissions plans under legal assault -- successful legal assault.

Four years ago, the New Orleans-based 5th U.S. Circuit Court of Appeals sent shock waves through academia when it boldly declared in Hopwood vs. Texas that Bakke was dead. A three-judge panel not only ruled that the University of Texas law school's admissions plan, which treated African-Americans and Mexican-Americans separately and more favorably, violated the equal protection rights of white applicants, but it rejected Justice Lewis F. Powell Jr.'s famous formulation in the Bakke ruling that attaining a diverse student body "clearly is a constitutionally permissible goal for an institution of higher education."

However improbably, Powell's diversity rationale -- a rationale joined by none of his brethren -- gave rise to the numerous race- and ethnicity-conscious admissions plans that changed the face of student bodies nationally, plans that schools are now being compelled to defend. To repudiate Bakke is to repudiate diversity as a justification for preferences, to undo the past 20 years of educational affirmative action.

The 5th Circuit panel looked at recent Supreme Court affirmative-action decisions -- none of them in an educational setting -- and marked a trend toward "color-blind" practices. It then surmised that five of today's nine justices -- Chief Justice William H. Rehnquist, Antonin Scalia, Sandra Day O'Connor, Anthony Kennedy and Clarence Thomas -- do not consider diversity a sufficiently compelling governmental interest to protect a race-based admissions plan from a 14th Amendment discrimination challenge.

While this prediction seems accurate enough, only the Supreme Court can overrule itself. Two of the three judges in Hopwood (both Republican appointees) went out of their way to attack the Bakke ruling, breaking ground that the high court has carefully avoided --and did again when it declined to review the Eisenberg case. The 5th Circuit panel could have invalidated the UT plan under the Bakke decision.

The U.S. Supreme Court declined to review the unorthodox Hopwood case, and no other federal appeals court has wholly embraced it. It is the law only in Texas, Louisiana and Mississippi. But several circuits, including the 4th Circuit, which, like the 5th, has a slight majority of Reagan-Bush appointees, have weighed Hopwood-influenced challenges -- and have invalidated race-based school policies.

Two compelling interests

In the Eisenberg case, Montgomery County school officials argued that their race-conscious nonremedial transfer policy -- it was not designed to remedy any specific past discrimination -- served two compelling interests: the avoidance of racially isolated schools, and thus, segregated enrollments; and the promotion of a "diverse" student population. In line with most other appellate courts that have heard post-Hopwood cases, the 4th Circuit sidestepped the question of whether diversity constitutes a compelling reason for race distinctions. Instead, it struck down the county's transfer policy, an attempt to prevent "white flight" from mostly minority, and heavily poor, schools, as unconstitutional "racial balancing."

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