The courts close in on the diversity rationale.

• Author: Bresler, Robert J.
• Position: State Of The Nation - Affirmative action plans on campus - Brief Article

MORE THAN FIVE YEARS AGO, a three-judge panel of the Fifth Circuit Court in Hopwood v. Texas struck down the admissions policy of the University of Texas Law School that gave an automatic advantage to African-American and Hispanic students, stating that "the use of race to achieve a diverse student body cannot be a state interest compelling enough" to meet the standards of the Equal Protection Clause of the 14th Amendment. The Supreme Court refused to hear the case on appeal and left unresolved the issue of the diversity rationale to justify racial preferences in admission. Voters have banned racial preferences in California, Washington, and Florida. Poll after poll shows little support for the practice.

Despite this public distaste, neither Congress nor the Executive Branch has taken any actions to put these policies to rest. Presidents Ronald Reagan and George H.W. Bush, their public statements to the contrary, issued no executive orders eliminating racial preferences in Federally funded programs, and George W. Bush has shown the same reluctance. Bills to outlaw them have been consistently buried in House committee by the Republican leadership.

The president and Congress showed the same unwillingness to tackle this difficult racial issue in the years that followed World War n. It took the Supreme Court decision in Brown v. Board of Education of Topeka (1954) to force the political leadership to confront it. Once again, the situation will fall to the courts to resolve, and increasingly they seem willing to confront it.

In August, 2001, a three-judge panel of the 11th Circuit Court of Appeals, which embraces Alabama, Georgia, and Florida, struck down a University of Georgia undergraduate affirmative action program. The decision, Johnson v. Board of Regents of the University of Georgia, written by Pres. Bill Clinton appointee Judge Stanley Marcus, took another pin from under the diversity rationale, which undergirds almost every affirmative action program at the nation's elite colleges and universities. In 1989, the Federal Office of Civil Rights had declared that the University of Georgia had no need to take any more action to remedy the legacy of its segregated past. Only the diversity rationale was left to justify a program of racial preferences. The university relied upon Justice Lewis F. Powell Jr.'s opinion in Regents of the University of California v. Bakke (1978), in which he stated that "Ethnic diversity, however, is only one...