School Colors

Reaffirming affirmative action

"Not unlike cheap booze, the Hopwood opinion is palatable (if barely so) at first impression but leaves an awful aftertaste." That's how the Center for Individual Rights, a conservative public-interest law firm, summarized the first decision on affirmative action admissions policies since Board of Regents v. Bakke in 1978.

The case, Hopwood v. State of Texas, involved a dispute between the University of Texas Law School and four white applicants who say they were denied admission to the law school's 1992 entering class because of their race. CIR represented the plaintiffs in court.

To meet the school's enrollment goals for blacks and Mexican Americans, a black or Mexican-American applicant could be automatically admitted to the law school with a lower score than a white applicant who was automatically rejected.

On August 19, 1994, Judge Sam Sparks ruled that the differential cut-off scores and a separate admissions committee were unconstitutional. But he said affirmative action is still "necessary," declaring racial preferences in general constitutional. Sparks ruled that the law school did not have to admit the students and was required to pay each only the token sum of $1.00.

On the scope of racial preferences, Judge Sparks relied on Bakke, in which the U.S. Supreme Court ruled that explicit quotas were illegal, but that race could be used as a "plus" factor.

Richard Epstein, a law professor at the University of Chicago and author of a book on discrimination law, says this decision "follows the conceit that this is a small problem that can be easily solved."

CIR's executive director Michael Greve agrees. "The only way the law school can continue to meet its enrollment targets," he says, "is to make race a factor that swamps all other variables."