Laying Down the Law
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ELIZABETH FARNSWORTH: Yesterday, a U.S. Circuit Court of Appeals struck down an admissions policy at the University of Texas Law School which gave preference to Blacks and Hispanics. The Court ruled that the law school’s affirmative action program violates the U.S. Constitution’s equal protection guarantee. For more on the decision, we’re joined by Stuart Taylor, correspondent for the “American Lawyer,” and for “Legal Times,” and a NewsHour regular. Welcome, Stuart.
STUART TAYLOR, The American Lawyer: Nice to be here.
ELIZABETH FARNSWORTH:We’re talking about this case because it has very wide implications, doesn’t it?
MR. TAYLOR: It certainly has very wide potential implications because the holding of this three-judge court is, in essence, that racial preferences in universities, admissions at the University of Texas Law school in particular, but also nationwide, are unconstitutional and must be abolished. Now if this case goes to the Supreme Court of the United States, which it almost certainly will, and if the Supreme Court adopts a similar rationale, it would have a dramatic impact. It would bar consideration of race in university law school, graduate school admissions for state institutions, not private institutions. And it would result in a dramatic reduction in a number of racial minority group members, at least Black and Hispanic Americans in those institutions.
ELIZABETH FARNSWORTH: What are the facts of the case?
MR. TAYLOR: It started when four white applicants to the University of Texas law School who were rejected filed suit, saying they had been victims of racial discrimination. They said that Black and Mexican-American applicants who were dramatically less qualified than they were in terms of grades and test scores were admitted ahead of them solely on grounds of race. And they have carried that now to the U.S. Court of Appeals for the 5th Circuit, where they’ve just won a very big victory.
ELIZABETH FARNSWORTH: And this was a three-judge panel of the 5th Circuit. What was the decision?
MR. TAYLOR: The decision, in essence, was that racial, that race may not be considered by the University of Texas Law School in its admissions process at all, that racially preferential admissions have to be done away with entirely and the Court used a very broad and sweeping rationale that would rather clearly apply to virtually every state institution in the country if it were–if the same rationale were applied in other cases.
ELIZABETH FARNSWORTH:What was that broad and sweeping rationale?
MR. TAYLOR: Well, the two main arguments that are usually mounted in favor of the constitutionality of consideration of race in admissions are to have a diverse student body and to make up for past discrimination. This Court held for the first time that any court has clearly held, I think, that the pursuit of a diverse student body is not a good enough reason ever to consider race in admissions, that you can consider people as individuals, you can consider things they have to bring, but race, itself, can’t be the proxy for diversity. They also said that while race can be used to make up for past discrimination, it can only be used in the very narrowest sense. They, in essence, said if you had an institution that admits that it has blatantly discriminated against Blacks say very recently, why then maybe they could have a racial preference to make up for that. That isn’t true of any institution in the country that I know of.
ELIZABETH FARNSWORTH:Now, this is a court of appeals which has jurisdiction over three states. Explain why this could become a national phenomenon.
MR. TAYLOR: Well, as of now, this court has Texas, Mississippi, and Louisiana in its jurisdiction, and courts in other states may be persuaded by their approach but aren’t bound by it. If–it will go to the Supreme Court, however, which has not heard a case since the famous Baake case in 1978.
ELIZABETH FARNSWORTH:You’re sure that the University of Texas will now appeal this?
MR. TAYLOR: They have said they will.
MR. TAYLOR: And they could make an intermediate stop by appealing to the full 17-judge appeals court, or they could appeal directly to the Supreme Court, which would have the option of hearing it or not hearing it. It’s almost certain, I would think, that the Supreme Court would hear it because of the importance of the issues.
ELIZABETH FARNSWORTH:I don’t like–I don’t want to ask you to predict, but I’m going to. What do you think would happen in the Supreme Court? You know how the judges have been voting on these things.
MR. TAYLOR: It’s hard to predict. I think it’s clear the Supreme Court wants to cut back on affirmative action. But Justice Sandra Day O’Connor, who tends to be the swing vote, the fifth vote, the anti-affirmative action people need to get, has never indicated she wants to abolish it entirely. I would be surprised if she and, therefore, the full Court, went as far in wiping out affirmative action in university admissions as this lower court has, but I would expect to see them put a tighter squeeze on it than has been true in the past.
ELIZABETH FARNSWORTH:Because this is–this decision in, in Texas is kind of part of a whole series of decisions about affirmative action. Can you just briefly give us a couple of those.
MR. TAYLOR: Well, of course, the Supreme Court had two big decisions last year in which it squeezed affirmative action, said it has to, you have to have very important reasons for it, and it’s presumptively unconstitutional and left it for lower courts to work out the details. Meanwhile, all around the country, there are other developments not necessarily in the courts. In California, the University of California regents have voted to do away to a large extent with consideration of race, and there is a ballot petition in California that the voters will pass judgment on in November that would eliminate consideration of race in all state programs.
ELIZABETH FARNSWORTH:Okay. Thank you very much, Stuart.
MR. TAYLOR: Thank you.