Fight Bakke

LEGAL AND POLITICAL ANALYSTS are describing Hopwood v. Texas the dispute over the UT law school’s affirmative-action admissions policy—as the most far-reaching lawsuit since the Supreme Court’s decision 23 years ago in another Texas case, Roe v. Wade. In the Hopwood case, a three-judge panel of the Fifth Circuit Court of Appeals ruled that race cannot be a factor in law school admissions, and the conventional wisdom is that unless the Supreme Court reverses the majority opinion, affirmative action is dead. But that may not be the case. Here are two reasons why some form of affirmative action could survive:

1. The judges’ decision is too broad. Two Texans made up the court’s majority: Jerry E. Smith, a Ronald Reagan appointee, and Harold DeMoss, Jr., a George Bush appointee. They concluded that the famous 1978 Bakke case—which allowed race to be a factor in college admissions only to remedy past discrimination or to achieve diversity—is not the law of the land after all because only a single Supreme Court judge, Lewis Powell, made that point. But the third Hopwood judge, Bush appointee Jacques L. Wiener, Jr., of Louisiana, while agreeing that UT’s admissions policies were flawed, argued that Smith and DeMoss have gone too far. “We judge best when we judge least, particularly in controversial matters of high public interest,” Wiener wrote. “In this and every other appeal, we should decide only the case before us, and should do so on the narrowest possible basis… . [I]f Bakke is to be declared dead, the Supreme Court, not a three-judge panel of a

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