Affirmative action on the rocks.

• Author: Bresler, Robert J.

AFFIRMATIVE ACTION is in crisis, and proponents find themselves fighting a rearguard action for its survival. The Supreme Court in Adarand v. Pena (1995) made it clear that the use of racial preferences to remediate past wrongs will be subject to strict scrutiny and will have to be justified in painstaking detail. What may remain as the last constitutional justification for racial preferences is the diversity rationale. Its roots can be traced to Supreme Court Justice Lewis Powell's opinion in Regents of the University of California v. Bakke (1978), wherein he opined that race could be taken into account for achieving diversity within a student body.

The diversity rationale soon was adopted by most universities and many companies and became a powerful tool for affirmative action. Since it required no proof of historic discrimination, the diversity rationale had fewer legal hurdles to overcome. On its face, the concept of diversity in the university or in the workplace engendered little opposition. The problems were to come in its implementation and with the inevitable issue of racial proportionalism. Who could define diversity so as to satisfy all claimants? If the diversity rationale were to address the problems of the underrepresentation of certain minorities, the issue of overrepresentation of other minorities would not lurk far behind.

In California, a state teeming with racial and ethnic diversity, the issue already has risen with ugly overtones, pitting one minority group against another. Asian students at the University of California's Berkeley campus were felt to be overrepresented due to their outstanding academic performance and actually were placed at a disadvantage under certain affirmative action programs. In Los Angeles County, affirmative action goals were raised for Hispanics, who, as a result of immigration, have become almost 40% of the county, and lowered for blacks, who represent 12% of the population and have 30% of the county jobs. Unsurprisingly, new tensions have developed between blacks and Hispanic leaders over this question.

In the spring of 1996, a Federal court dealt what may be a fatal blow to the constitutional standing of the diversity rationale. In Hopwood v. Texas, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit struck down an affirmative action program adopted by the University of Texas Law School that set lower minimum standards for Law School Admission Tests (LSATs) and grade point...