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Colleges watching Texas vs. Hopwood High court has chance to further define limits on affirmative action

THE BALTIMORE SUN

Steven Smith, a Texas attorney, had a theory. Cheryl Hopwood, a Maryland accountant who wants to be a lawyer, had grievance. That brought them together in a legal challenge that threatens to dismantle affirmative action programs and transform campuses across the country.

Hopwood, who is white, believes that the University of Texas Law School rejected her four years ago because its admissions policy unfairly favored minorities. She signed on to what has become a major constitutional cause: a lawsuit that could block the use of race in selecting students at colleges and universities.

This week, the Supreme Court is expected to decide whether to take on that volatile issue. For a court that is increasingly wary about race preferences in drawing voting districts, offering scholarships or awarding contracts, Texas vs. Hopwood may provide another opportunity to further define the limits.

"We're all watching Hopwood," said Donald N. Langenberg, chancellor of the University of Maryland System. "If the decision in the Hopwood case is, in the end, upheld as national law, very large changes in affirmative action programs will be required."

In March, a federal appeals court shocked the academic world by ruling in the case that achieving diversity in a college's student body cannot justify using race as a factor in admissions decisions. If the Supreme Court justices agree to review that decision, a final ruling would be a year away.

Higher education officials say that if race weren't considered, significant numbers of minority students would be turned down. At the University of Texas, for example, Provost Mark Yudof predicts the school could not admit one-half to two-thirds of its black and Hispanic students.

While affirmative action programs are under increasing attack from conservatives -- regents of the University of California System killed such programs last year -- they are in place on most major campuses, often due to government prodding. Many private universities have such programs, too, and also would be affected if the highest court upheld the Hopwood ruling because those institutions receive federal funds.

At the University of Texas and other schools, minority students have reacted by protesting in support of affirmative action. In some states, public officials hostile to racial preferences have seized on the ruling. Citing the case, Georgia's attorney general said he would not defend his state's universities against any reverse discrimination lawsuits. "Our law school is terrified," says Donald Eastman, a vice president at the University of Georgia in Athens.

Elsewhere, administrators are looking for new ways to enroll minority students. At Rice University in Houston, for example, officials may boost the prospects of students who reflect "the culture of the inner city," says Kathryn R. Costello, a vice president.

The Bakke decision

The Hopwood case could seriously threaten -- if not actually overturn -- part of the court's landmark decision in the reverse discrimination case brought by Allan Bakke, a white Californian who had been rejected by a state medical school. Arguing that the school unconstitutionally set aside seats for blacks, Bakke won a 5-4 victory in the Supreme Court nearly two decades ago.

But that decision -- a compromise that splintered the court more than usual -- still permitted some consideration of race in admissions, as a way to achieve "diversity" among students. It gave rise to affirmative action programs at schools across the country, including the University of Texas Law School.

Almost submerged in the dispute is Hopwood, 33, who now lives in Columbia and works part time at an accounting firm in Laurel. She joined the suit because of what she viewed as inequitable treatment. She has said that she supports affirmative action but only at the undergraduate level.

"Minorities do need some help," she told the National Law Journal in 1994, "but no one helped me. It should even the playing field by the time you get beyond the bachelor's level. When does the catch-up stop?"

Hopwood has withdrawn from the public stage, just as controversy over the case deepens. Her lawyers say she has grown wary of becoming a symbol of conflict between the races. She did not respond to requests to be interviewed by The Sun.

Hopwood graduated from California State University at Sacramento in 1988. She worked her way through by spending 20 to 30 hours a week at an accounting job.

In 1991, she and her husband moved to San Antonio, where he was sent by the Air Force. Their daughter, Tara, was born that summer with cerebral palsy and a rare muscle disease. The following January, Hopwood applied to the Austin law school. She had good grades -- a 3.8 average -- and law board scores, but was offered only a place on the waiting list.

The University of Texas, with a long history of discrimination against minorities, had been under federal pressure to increase minority admissions. At the time Hopwood applied, the law school rated applicants on a numerical index (including grades and law board scores) and set two cutoff points -- one for blacks and Hispanics, and another, higher one for everyone else. It also used two committees to pick among the applicants in the separate racial categories.

Such emphasis on race is not unique. Until recently, the University of Georgia used a similar index and applied different minimums to blacks and whites; the dual minimums were dropped, but a new policy still considers race the most important of 15 additional factors reviewed. And the University of Maryland law school last fall accepted some minority applicants with lower test scores and grades than other students ranked ahead of them on the waiting list, according to a memo from the admissions dean.

Letter from attorney

Four months after being turned down by the law school, Hopwood got a letter from Austin attorney Steven W. Smith. Inspired by a 1991 article by a conservative Texas law professor, Smith had been pondering what he thought would be an interesting challenge to the school's admissions policy, he recalls. Looking for clients, Smith sent letters to 30 other white Texans rejected by the school.

Smith told the group that he thought racial criteria to decide who got into law school could not stand up under Supreme Court rulings that had come down since the Bakke case. Hopwood was the first to reply.

Her resentment over what she considers an injustice is clear. African-Americans are "given full scholarships," she said last year on National Public Radio. "I wasn't helped at all. I put myself through college. They only looked at race. They didn't look at anything but race. And to me, that's not fair."

In preparing for the lawsuit, Smith had hit upon a potential weakness of the Bakke ruling. It had a quirk seldom seen in the court's major decisions: the justices split 4-1-4. Four justices wanted to go further than the opinion did, four did not want to go that far, so the middle opinion turned out to be the decisive one.

Written by since-retired Justice Lewis F. Powell Jr., the opinion found the race-based admissions program at University of California at Davis to be unconstitutional. But Powell also said that, in some circumstances, colleges and professional schools could take race into account in picking students.

"Race or ethnic background may be deemed a 'plus' in a particular applicant's file," Powell wrote. It may be considered as one factor to bring "diversity" to a college's student population, he added.

Smith noted in his letter to Hopwood and the others that Powell's opinion was joined by no other member of the Supreme Court. The lawyer wrote that more recent court decisions indicated Powell's opinion would be overruled when a similar case came up.

The attack on the Bakke ruling did not work at the first level.

In August 1994, U.S. District Judge Sam Sparks of Austin struck down the admissions plan because of the two-track, race-based selection process. But the attorneys for the white challengers failed to convince him to nullify the program on a broader ground.

They had argued that the educational benefits derived from a racially diverse student body were not strong enough to justify race-based preferences.

Their view was based on a 1989 Supreme Court ruling that said that race-based government programs could be used only as a last resort, and only to remedy the most clear-cut racial bias by government.

Sparks, however, said that law schools could still use their admissions process to try to achieve a racially and ethnically diverse student body. Texas, he said, had just gone too far.

Success in appeals court

But the challengers succeeded in the 5th U.S. Circuit Court of Appeals in New Orleans.

By then, the legal firepower in the dispute had grown considerably. The Center for Individual Rights, a Washington conservative group that helped finance the lawsuit, recruited Theodore B. Olson, who has handled a number of high-profile cases. (Imitating its adversaries, the University of Texas later brought in Harvard law Professor Laurence H. Tribe, holder of one of the best winning records before the court.)

In July, Olson and his team filed a brief in the appeals court, attacking Powell's "diversity" argument. Reacting to a just-issued Supreme Court ruling that appeared to be a sweeping condemnation of affirmative action, their brief hinted that recent court rulings may have abandoned any embrace of diversity as a rationale for race-based preferences.

The appeals court, in a ruling March 18, said the use of race in admissions decisions was unconstitutional.

In words very close to those Steven Smith had used in enlisting clients for the case, the appeals court declared: "Justice Powell's argument in Bakke garnered only his own vote and has never represented the view of a majority of the court in Bakke or any other case."

'Not binding precedent'

It added: "The classification of persons on the basis of race for the purpose of diversity frustrates, rather than facilitates, the goals of equal protection. Justice Powell's view in Bakke is not binding precedent on this issue."

The court said -- in the phrase that has set off some of the most heated complaints by supporters of affirmative action -- that "any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the 14th Amendment."

Colleges and universities are chafing at that language. Many school officials say, under that logic, they could give students an edge for athletic or musical ability, for growing up in an inner city or a rural town, for being left-handed or red-headed or Armenian or the child of an alumnus -- but not for being black, Hispanic or a member of another minority group.

At the University of Texas, officials say that doesn't make sense. "I think it is a good idea to have as many minority youngsters as we can benefit from the best education we can in this country -- at our most elite institutions," says Yudof, the provost. Without affirmative action, he continues, "the institution will be overwhelmingly white and we will not be serving the population of our state as we should."

Freeman Hrabowski, president of the University of Maryland Baltimore County, echoes that view. "The nation needs affirmative action to ensure that all types of Americans are participating in mainstream society.

"People assume that affirmative action means lowered standards. Some of the most successful lawyers in this country may not have the highest test scores."

Pub Date: 6/23/96

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