Diversity in university admissions decisions: The continued support of Bakke

Journal of Law and Education, Jan 2003 by Daniel, Philip T K

I. INTRODUCTION

The case Regents of the University of California v. Bakke1 represents a plurality decision, authored by former Supreme Court Justice Lewis Powell, stating that racial diversity in higher education institutions may serve as a compelling government interest for racially conscious admissions, even when no past discrimination has been demonstrated, as long as the exercise is narrowly tailored and does not denigrate the rights of white students. The case involved the grant of admission in the medical school at the University of California at Davis where sixteen of one hundred spaces were set aside specifically for students of color. Eight Justices of the Court split evenly over whether "race" could ever be used as a criterion for college admissions. Although ruling against the University, Powell broke the tie by declaring that racially-based affirmative action is permissible and is constitutionally protected by the First Amendment right of academic freedom.2 This decision has been cited almost 4100 times, 3200 of those in legal periodicals, according to the latest iteration of WESTLAW. Like the aforementioned members of the Court, legal researchers have fallen on either side of the issue and some of the published compositions, like the subject of this critique, have offered formulaic interpretations that serve as just another panegyric to the anti-affirmative action position championed by the United States Court of Appeals for the Fifth Circuit in the case of Hopwood v. Texas.3

On the one hand, it appears the author of Diversity in the Halls of Academia: Bye-bye Bakke?4 makes an avid attempt at being even handed; in this regard the research falls short of the full analysis necessary to give the reader a complete picture of the complexities involved in this all-important societal issue. On the other hand, the article appears to be a rendition of the arguments made in Hopwood and ones that can be correlatively found in similar articles that are either inconclusively researched or are end-means oriented.5 In any case, the structural pattern of the arguments is indistinguishable from that formerly put forward in Hopwood. It articulates: 1) Hopwood's problem with the plurality decision in Bakke; 2) an analysis of Supreme Court decisions involving raceconscious affirmative action outside of higher education; 3) the conflict within the lower courts based on the absence of bright line clarity at the Supreme Court level; and 4) a prediction of the Supreme Court position on higher education admissions decisions so as to settle the lower court conflict. The rest of the current article will follow this convention arguing that Bakke was correctly decided and that the United States Supreme Court will have to strain to overcome its own judgment in this area of the law.

II. HOPWOOD ON BAKKE

In Hopwood v. Texas,6 the United States Court of Appeals for the Fifth Circuit challenged the decision in Bakke, claiming that the opinion of Justice Lewis Powell represented no binding precedent on the issue of affirmative action in higher education.7 The plurality Supreme Court decision had declared that university affirmative action admissions could be constitutional if race was used as "a" factor as opposed to "the" factor; hence, as stated above, diversity could be a compelling government interest if used within the context of the university' s pursuit of academic freedom. Hopwood concerned the suit of four white students against the admissions program at the University of Texas at Austin College of Law.8 The university had established a quota-based system much like the one declared unconstitutional in the Bakke decision. The Fifth Circuit majority, however, declined to follow the Supreme Court plurality decision rendered by Justice Powell claiming that his position was joined by no other Justice.9 The lower court stated 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 Fourteenth Amendment."10 According to the court, subsequent Supreme Court decisions provide the backdrop for such a perspective. This is the first sentence in the article under scrutiny here, to wit, "[t]he United States Supreme Court has never held that diversity in an academic setting to enable an affirmative action program is a sufficiently compelling interest to survive strict scrutiny constitutional review."11 This statement is largely incorrect insofar as it incorporates the Bakke decision in its purview. It is somewhat correct if its focus is on the core affirmative action cases decided most recently, since no other Supreme Court decision has been rendered regarding the issue of a compelling government interest based on diversity in colleges and universities. The article, accordingly, follows the Hopwood misguided diatribe in relying on associated decisions claiming that this sets a pattern for future holdings.

III. SUPREME COURT ON AFFIRMATIVE ACTION

In the article two Supreme Court cases serve as determinates of "[w]here the Supreme Court [is] heading."12 In City of Richmond v. Croson13 the Supreme Court struck down as unconstitutional a set-aside program automatically giving 30% of city subcontracts to minorityowned businesses.14 The Court was critical of the program because there was no indication of a race-neutral means to ameliorate the problem of participation by persons of color in the city' s business bidding scheme. Moreover, the program was based on a program of absolute preference based on race, or the same kind of activity declared unconstitutional in Bakke. Also a plurality opinion, the Court struck down the plan declaring that such racial classifications are based on remedial settings and proof of past discrimination and not "generalized assertions." It is interesting to note, as I have articulated in other writings, that no part of the Croson decision, plurality, concurrence, or dissent, gave any "critique of the diversity rationale."15 Bakke and Croson, hence, do not interface on point as regards judicial reasoning. The Croson Court had every opportunity to simply overrule Bakke on the issue of compelling interest, but chose instead to concentrate its approach on past discrimination within non-academic settings. I have labeled the Hopwood attempt to combine these two different positions as "unprincipled" legal reasoning and any secondary research following such an example, ipso facto, would seem to suffer from the same infirmity.16