Saturday, March 27, 1999; Page A19
Night is coming for racial preference in admissions to colleges and universities. Also affected are elite public high schools and magnet schools.
Already, two states, California and Washington, have ended -- by ballot initiatives -- the consideration of race in admissions. And as a result of a 5th Circuit Court of Appeals decision (the Hopwood case), race as a factor in college admissions also has ended in Texas, Louisiana and Mississippi.
The 1st Circuit Court of Appeals (Maine, Massachusetts, Rhode Island, New Hampshire, Puerto Rico) has ruled that a racial preference system for the prestigious Boston Latin School is unconstitutional. The Boston School Committee has been persuaded by the NAACP and the U.S. Department of Education not to appeal to the Supreme Court for fear of another defeat for this form of affirmative action.
Recently, a federal district judge in the 11th Circuit has ruled -- as the Chronicle of Higher Education reports -- that "the University of Georgia used an unconstitutional admissions policy from 1990 to 1995 that gave preference to black applicants."
In the Georgia case, Judge B. Avant Edenfield decided that the university's method of increasing the diversity of its student body resulted in "stigmatizing, polarizing costs imposed by racial classifications."
"Beyond group-level harms are the real injuries suffered by innocent individuals" that prevented a plaintiff "solely on the basis of his skin color from competing on an equal footing."
The fundamental issue, said the court, is the 14th Amendment's guarantee of "equal protection of the laws." The judge quoted Lewis Powell in the 1978 Bakke case. Powell had said that race could be one of a number of factors in deciding admissions but could not be the determining factor because "the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color."
The University of Georgia had used "dual-tracking" in its admissions policy. Applications were divided into two piles -- one for blacks and one for nonblacks. The blacks did not have to meet the grade-point and LSAT standards that the whites had to achieve for admission.
The only justification for racial classifications, the court continued, would be a compelling state interest. That can be proven if evidence shows that in the particular institution, present effects of previous racial discrimination exist. This was not in evidence in the Georgia case.
Trying to achieve diversity to remedy general historical, societal discrimination, the court emphasized, is not a compelling state interest.
"However noble this general goal is," said the judge, it would be "a cause for consternation if a court accepted a term as malleable as 'diversity' in satisfaction of the compelling interest needed to justify governmentally-sponsored racial distinctions. . . . Notions of 'racial entitlement' will be fostered."
Referring to the NAACP's support, in this case, of the university's racial preferences, the judge noted that the NAACP argument was not "narrowly tailored" to prove a compelling state interest. Accordingly, "if one is to limit consideration to generalities, any proponent of any notion of diversity could recite a similar litany of virtues."
Furthermore, lowering the bar only for blacks "presumes lower achievement based solely on skin color" and thereby "permits government officials' unchecked power to apply statistical data and personal assumptions about a particular racial group's capabilities. Such race-counting cannot help but spawn race-based resentment, identity-group politics and, in individual cases, nothing less than a barefaced denial of equal protection."
Meanwhile, the University of Massachusetts, which has been using racial preference guidelines, has significantly limited that policy in view of the changing climate. And San Francisco has stopped assigning students to public school classes on the basis of race or ethnicity.
Ward Connerly, instrumental in California's ending of racial preference in college admissions, has begun a Florida campaign to get a similar initiative on the ballot in next year's general election.
Gov. Jeb Bush calls him "divisive," but Connerly again is going directly to the electorate to get 453,073 signatures for a place on the ballot. The wind is blowing his way.
© Copyright 1999 The Washington Post