The U.S. Supreme Court on Monday refused to hear an appeal of a lower court ruling that had struck down a race-based admissions plan at the University of Texas’ law school, dashing hopes for clarification of the uncertainty surrounding such programs at public universities across the nation.
“We are still left sort of hanging, trying to figure out what can we do to abide by the law,” said Walter Harrison, director of government relations at the University of Michigan.
Some who studied the high court’s decision Monday took hope in a brief opinion by Justices Ruth Bader Ginsburg and David Souter leaving the door open for considering another case that would test the issues.
“We must await a final judgment on a program genuinely in controversy before addressing the important questions raised in this petition,” Ginsburg wrote. The Texas admissions system was abandoned in 1992, making the case moot.
The case involved a lower court ruling that the law school’s admission policies discriminated against whites. The law school had a separate review board and lower test score standards for applicants who were black and Mexican-American. The U.S. Fifth Circuit Court of Appeals upheld the lower court ruling in March.
“It’s not amazing that the court decided not to hear this case. What’s amazing is that the Texas plan was around so long without anybody attacking it,” said Ronald Rotunda, a constitutional law professor at the University of Illinois at Champaign-Urbana.
The Supreme Court’s end-of-session decision against a hearing leaves standing the appellate court’s ruling, which concerns many in higher education because it went further than merely striking down what essentially was a two-tier admissions system.
“The Fifth Circuit (decision) states that diversity cannot serve as a compelling interest to race-based affirmative action programs,” said Jonathan Alger, counsel for the American Association of University Professors, who worked on a friend-of-the-court brief in the case, Texas vs. Hopwood.
This seems to run counter to the 1978 Supreme Court ruling in the Allan Bakke case in which the University of California could consider race in admissions to achieve a diverse student population and increase minority representation, as long as race is not the only consideration.
Theodore Shaw of the NAACP’s Legal Defense and Education Fund, said Ginsburg’s opinion “makes clear that the court is not endorsing the appeals court’s radical view and that affirmative action, while still under siege, is alive.”
Unless the Supreme Court chooses to hear another case on the issues, Monday’s refusal to hear the case in effect leaves public universities in Texas, Louisiana and Mississippi, the three states under the Fifth Circuit’s jurisdiction, under one standard–and the other 47 states under another.
“In the remaining 47 states, the 1978 Bakke decision is still the law of the land, in which race can still be used as a plus factor in the admissions process,” said Sheldon Steinbach, general counsel for the American Council on Education.
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There is some concern, however, that pressures could be brought to bear on admissions policies in other states.
In Georgia, Atty. Gen. Michael Bower has asked University of Georgia Chancellor Stephen Portch to review admissions policies in light of the Texas case.