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 circuit court, should make that pronouncement.” Wiener believed that the panel should have decided the Hopwood case against UT simply because the law school’s admissions policies in effect set quotas for minorities and therefore failed to meet the current standards of Bakke and other precedents. A cautious Supreme Court could follow Wiener’s reasoning and rule against UT without addressing the larger issue of whether affirmative action itself is constitutional.
2. Universities can find a loophole. Even if the Supreme Court agrees with the majority opinion and sounds the death knell for affirmative action, there are ways to get around the ruling. The majority opinion says that universities may not discriminate in favor of applicants on the basis of race, but it may discriminate for other reasons, such as: “[the] ability to play the cello, make a downfield tackle, or understand chaos theory [as well as] an applicant’s home state or relationship to school alumni.” Even “economic and social background” is legitimate. In other words, the ultimate effect may be to make admissions more subjective instead of basing them on grades and test scores. By giving extra weight to, say, community involvement and well-rounded activities, schools can justify the admission of minority applicants—and whites too, for that matter—who fall short on credentials. And that isn’t all bad.
To the Victor
WHAT DO OLD RIVALS ANN Richards and George W. Bush have in common? They both were ignored by Texas voters after they made very public endorsements of candidates who went on to lose in the April 9 runoffs. In the race to carry the Democratic mantle against U.S. senator Phil Gramm, Richards backed Congressman John Bryant of Dallas against former schoolteacher and political latecomer Victor Morales—a strange choice, wouldn’t you say, for a former schoolteacher and latecomer, whose vision of a “New Texas” was based on the empowerment of outsiders (like, for instance, Morales). In the battle for the GOP nomination in the Fourteenth Congressional District, Bush (along with ex—President Dad, senators Gramm and Kay Bailey Hutchison, and House Speaker Newt Gingrich) went down with the not-so-good ship Greg Laughlin. A lackluster conservative Democrat who switched parties in midterm, Laughlin lost to Ron Paul, a former Republican congressman who switched to the Libertarian party to run for president. Maybe that explains why Bush’s endorsement didn’t matter to GOP voters: There were no Republicans in the race. The fate of the Richards-Bush endorsements is a clear signal of the weakness of both political parties. Neither party’s establishment can deliver a winner. Meanwhile, Morales faces an excruciating decision. Does he remain an amateur—driving his pickup truck, running his campaign on a shoestring, preserving his for-real image as the ultimate outsider trying to go to Washington—or does he turn pro and hire political consultants, fundraisers, and staffers who can teach him about media politics, at the risk of destroying his genuineness?