Silence on affirmative action Supreme Court: Decision not to review Texas case leaves questions unanswered.


SOMETIMES the Supreme Court speaks loudest simply by saying nothing. On the final day of its term, the court declined to hear an appeal of a lower court ruling nullifying an affirmative action plan at the University of Texas that used race as a major factor in admissions decisions. That refusal has produced confusion for higher education officials, as well as fear that other affirmative action programs will fail to pass constitutional muster.

The court's decision left standing a sweeping ruling from the Third Circuit Court of Appeals, governing Texas, Mississippi and Louisiana. The appeals court not only threw out the admissions plan for the University of Texas Law School but also cast grave doubt over the legality of almost any form of preference for

minority students. In its ruling, the appeals court went so far as to say that the Supreme Court's 1978 Bakke case decision, which allowed race to be taken into account in order to diversify a student body, was no longer a valid interpretation of the constitutional principle of equal protection under the law.

Fortunately, however, the court's silence on this issue was not complete. Justice Ruth Bader Ginsburg, joined by Justice David H. Souter, attached a one-paragraph opinion noting that the Texas case was not a live issue, since the university had agreed that the law school's two-track admission system for white and non-white applicants was not legal. "We must await a final judgment on a program genuinely in controversy before addressing the important question raised in this petition," Justice Ginsburg wrote.

Some supporters of affirmative action will take this explanation of the court's action as a cautionary note suggesting that the Third Circuit's harsh approach to the issue would not necessarily withstand a challenge based on a "program genuinely in controversy." But that's cold comfort to university administrators who must proceed with programs, while trying to guess where the Supreme Court will eventually come out on affirmative action. For them, the full court's silence on this case is deafening.

Pub Date: 7/03/96

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