At first blush, it seemed an abdication of responsibility when the Supreme Court declined to review the 5th Circuit's sweeping decision barring all consideration of race in admissions at the University of Texas School of Law.
The July I denial of certiorari in Texas u Hopwood sowed confusion-probably into the next millennium-as to the legality of racial preferences in admissions everywhere. It left institutions in different states subject to disparate interpretations of the Constitution.
State universities in most of the country will presumably feel free to continue using racial preferences, reasoning that the Court's 1978 decision in Regents of the University of California v. Bakke remains the law of the land.
But those in Texas, Louisiana, and Mississippi are subject to the 5th Circuit's broad directives in Hopwood that Bakke is no longer good law, that universities may not consider race, and that any who do so risk punitive damage awards to rejected white applicants.
(While the 5th Circuit did say that preferences could theoretically be used to remedy an institution's recent history of proven discrimination against minorities, no university appears to have such a recent history.)
Justice Ruth Bader Ginsburg's one-page explanation for her vote to deny certiorari, joined by Justice David Souter, was less than convincing.
Ginsburg noted that Texas no longer defended the crude, quota-like admissions process that the law school had used in 1992 (when the case was filed), and that the record shed little light on the operation of the school's current regime of racial preferences.
Such factors might warrant passing up an ordinary case. But this case involved pressing issues of huge national importance. And it will probably take at least four years for another university admissions case to make its way to the Court and present She justices with another opportunity to resolve the state of confusion they have helped create.
Besides, the Court has often made broad pronouncements with no more guidance from the record before it than it had in Hopwood. A leading example is Justice Lewis Powell Jr.'s pivotal opinion in the 5-4 Bakke decision. Powell endorsed as a model the use of minority racial status as a "plus" factor in a Harvard College plan that was before the Court only via an amicus brief.
I'd wager that the four more liberal justices would have jumped at the chance to reverse Hopwood had they been confident of a fifth vote; that the three more conservative justices would have done the same had they been confident of five votes to affirm; and that the real reason for the outcome was that neither bloc wanted to gamble on what Justice Sandra Day O'Connor (and perhaps Justice Anthony Kennedy) would do.
But for all this, I lean to the view that the Court may have made the least bad choice when it ducked Hopwood, because the alternative would have been worse: rendering a climactic decision, probably by a 5-4 margin, that could have pre-empted evolutionary, democratic decision-making on an issue of vital national importance as to which the country and the Court alike are deeply divided.
Maybe this is just a rationalization for the fact that I am as conflicted about racial preferences in admissions as I imagine Justice O'Connor to be. But consider the possible outcomes if the Court had taken up Hopwood.
If It had affirmed the 5th Circuit-virtually outlawing racial preference-It would have required a radical change in admissions procedures nationwide, over the bitter opposition of the vast majority of educators. If rigorously enforced, such a decision might produce something close to de facto resegregation of most elite universities.
Any such ruling would be seen by a great many minorities, rightly or wrongly, as a pretext for returning to the bad old days of racial hierarchy. It would also lack legitimacy in many eyes as having been imposed, with no popular mandate, by a bare majority of nine unelected judges, with four dissenters excoriating the Court for perverting the Constitution.
"[T]he Court should declare as law only such principles as will- in time, but in a rather immediate foreseeable future-gain general assent," as Alexander Bickel wrote. "The Court ... must lead opinion, not merely impose its own; and ... it labors under the obligation to succeed."
As one who hopes to see the nation weaned from racial preferences before we descend ever deeper into tribalism, I nonetheless think it would be unwise for the Court to impose the kind of cold-turkey withdrawal by judicial fiat prescribed by the 5th Circuit.
Does this mean that the Court should have taken up the Hopwood case and reversed?
Not necessarily. For even the narrowest possible Supreme Court endorsement of racial preferences in admissions would be taken by predominantly liberal university administrators as a mandate for the perpetual entrenchment of what has become a pervasive regime of heavily race-based admissions.
That's what happened after Bakke. even though the Court there voted to bar racial quotas and endorsed only quite limited use of racial preferences. The outcome hinged on Justice Powell's view that race could be considered in seeking "a diverse student body." But he implied (by quoting the Harvard plan with approval) that race should come into play only in choosing between closely matched individuals, as a marginal factor that "may tip the balance in [an applicant's] favor just as [may the] geographic region [of] a farm boy from Idaho."
Notwithstanding the narrowness of this endorsement, Bakke has been used to justify pursuit of stated or unstated numerical "goals" that are met with such consistency as to be almost indistinguishable from the quotas that the Court condemned. Consider the remarkable record in Hopwood itself, involving one of the nation's top law schools.
Decades after discrimination against minorities had ended at the University of Texas, the law school was pursuing fixed goals of admitting at least 10 percent Mexican-Americans and 5 percent blacks in each class. It granted "presumptive admit" status to black and Mexican-American applicants-including those from affluent families and other states-whose rank on the Texas Index (a composite of undergraduate GPA and LSAT scores) was above 188, while rejecting almost all whites (and others) whose rank was below 193. Applications were color-coded by race. And the admissions process was segregated by race, with a special "minority subcommittee" for the two preferred groups.
The experience after Bakke thus shows tot when the Court gives university administrators an inch, they take a mile. Any new decision putting the Grant's moral authority behind preferential admissions would probably be used to perpetuate, with largely cosmetic modifications, programs that aim for a similar racial-balance-at-any-cost bottom line.
Nor Is it clear 'that preferential admissions Really help all or even most of the purported beneficiaries.
The end result is often that promising minority students-who could be academic stars at most universities-are lured to intensely competitive schools where disproportionate numbers drop out, struggle academically, become alienated, and seek solace through self-segregation.
Meanwhile, perhaps in part because of the legal uncertainty that the Court has created, there is al least a glimmer of hope that our institutions-and our democratic process-may be starting to feel their way toward a tolerable resolution of the controversy over racial preferences.
With the threat of judicial invalidation looming, and with preferences under growing political attack, people of diverse ideological perspectives are scrambling to find alternatives to race-based programs. And some are seeking to redirect social energies toward the most intractable sources of inequality: the woefully inadequate primary and secondary education received by many minority children, and the dispiriting cultural and economic environment in which many are raised.
Meanwhile, it seems likely that the University of Texas will find ways to continue admitting substantial numbers of blacks and Mexican-Americans without overt consideration of race-for instance, by giving less weight to standardized test scores and by giving special consideration to applicants of all races who have shown unusual potential by overcoming poverty or adversity.
Similar adjustments seem likely to develop in California, where me state Board of Regents has ordered abandonment of racial preferences in admissions, and where an initiative slated for the November ballot would bar the state from using racial and gender preferences in education, employment, and contracting.
Where all this will lead is hard to foresee. But there are times when it is best for the Supreme Court to let events take their own course. This may be one of those times.