Texas regents vote to appeal ruling against affirmative action Supreme Court likely to get case brought, in part, by Md. woman


WASHINGTON -- The celebrated case of white students, including a Maryland woman, who alleged that the University of Texas law school kept them out because of their race began a new journey yesterday toward the Supreme Court as a major test of college affirmative action.

The University of Texas board of regents voted unanimously to pursue a new appeal in the "Hopwood case," to challenge a federal judge's order that bars the law school from using race to determine who is admitted.

That case takes its name from Cheryl J. Hopwood, 37, an accountant who lives in Columbia, who sued with three other rejected white applicants. They contended that the law school used an unconstitutional system of two race-based tracks of admissions when they applied in 1992.

Once before, the case had gone to the Supreme Court, but the justices voted in 1996 not to hear it, apparently because it had not been resolved in lower courts.

Two justices said the Texas dispute raises "an issue of great national importance."

The case reached a final point at the lower court level in March, when U.S. District Judge Sam Sparks of Austin barred the law school "from taking into consideration racial preferences" in its admissions program.

Simultaneously, Sparks ruled that none of the four white students was a strong enough candidate to have gained admission even if the law school had not used race as a factor. Although those students sought a total of $5 million in damages -- Hopwood alone sought damages of $2,860,000 -- the judge awarded each of them only $1 for having successfully challenged the race-based system.

The four students said earlier that they would seek to revive their claims with their own appeal, but the university chose yesterday to appeal in hopes of regaining the power to use race as an admissions factor.

Although the Texas regents' case will go through a federal appeals court first, that court has already made clear that it strongly opposes race as an admissions factor. The appeals court concluded two years ago that the Supreme Court would no longer apply its 1978 ruling in the famous Bakke case, allowing public colleges and universities to base admissions in part on race.

The Texas regents made clear yesterday that they were aiming to set the stage for an ultimate constitutional fight before the Supreme Court.

The regents chairman, Donald L. Evans, said in Odessa: "An early decision by the Supreme Court would bring needed clarity, uniformity and finality to this important issue, and it would permit Texas colleges and universities to compete at a much earlier time on a level playing field."

While other states may make room in their public colleges for minority candidates, "that is not the case" in Texas because of the lower-court rulings, Evans said. University Chancellor William H. Cunningham said the future of Texas -- soon to have a majority of its population made up of blacks, Hispanics and other minorities -- "is irrevocably linked to its ability to recruit and graduate minority students."

Even some foes of affirmative action regard the Hopwood case as an appropriate one to test affirmative action at the college level. Clint Bolick, vice president of the Institute for Justice and one of the leaders of the anti-affirmative action movement, said:

"This case is a superb candidate for the Supreme Court to reiterate in the context of higher education what it has made clear in other contexts: Racial preferences are contrary to the Constitution."

In a series of rulings dating to 1989, the Supreme Court has struck down a variety of affirmative action plans in public jobs, government contracting and legislative redistricting. But it has not had a case, like the Texas dispute, directly testing its current views on race in college admissions.

Pub Date: 5/14/98

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