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High Court Review of Ruling Striking Race-Based Admissions Asked

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Washington

The Clinton administration, citing the importance of racial diversity in higher education, has joined the state of Texas in asking the U.S. Supreme Court to review a federal appeals court ruling that struck down the admissions program at the University of Texas law school.

The March 18 ruling by a panel of the U.S. Court of Appeals for the 5th Circuit has "created substantial confusion and upheaval among colleges and universities nationwide," the Department of Justice says in its friend-of-the-court brief in the case of Texas v. Hopwood.

The brief argues that higher education institutions, and particularly law schools, have a compelling interest in maintaining a racially diverse student body.

"At this time in the history of Texas and the United States, the inclusion in the law school educational process of those who have experienced ... racial-minority status, is essential to achieving meaningful educational diversity," says the brief, which was signed by Solicitor General Drew Days 3rd and other Justice Department lawyers.

The Texas law school's affirmative action policy, which favored African-American and Mexican-American applicants, was challenged by four white applicants who were denied admission to the 1992 law school class.

Two of the three judges on the Fifth Circuit court said the goal of achieving racial diversity was not a valid reason to employ affirmative action preferences. They said the policy "treats minorities as a group, rather than as individuals."

The panel said the Supreme Court's 1978 ruling in Regents of the University of California v. Bakke, which said colleges could use race among several factors in admissions decisions, was no longer valid in light of recent high court decisions that curtailed affirmative action in government contracting. (See Education Week, March 27, 1996.)

'Predictable' Views

The appeals court's ruling has not taken effect, and Texas filed its appeal with the Supreme Court in late April. The case gives the Clinton administration a high-profile opportunity to express its current thinking on affirmative action.

The Justice Department brief says that, contrary to the opinion expressed by the appeals court, ensuring racial diversity in higher education does not "rest on impermissible racial stereotypes."

"It does not presume that all individuals of a particular race act or think alike," the brief argues. "An admissions program that values racial diversity recognizes that a black (or Mexican-American) student reared in this country is likely to have had different life experiences, precisely because of his or her race, than an otherwise similarly situated white student."

However, while a law school may consider race, the administration says, it may not use "rigid numerical goals amounting to fixed quotas ... which deny each applicant's right to be treated as an individual in the admissions process."

The brief also argues that the practical effect of the 5th Circuit ruling would be "to return the most prestigious institutions within state university systems to their former 'white' status."

Michael Greve, the executive director of the Center for Individual Rights, a Washington-based legal organization that opposes affirmative action and represents some of the white plaintiffs in the Texas case, called the administration's views "predictable."

"There were no real surprises," he said. "If anything, it seems rather muted."

The administration did not back one of Texas's key arguments in the appeal: that state institutions should have wide latitude to establish admissions standards without federal court interference. That argument is being viewed as an appeal to the high court's recent leaning toward strengthening states' rights.

Texas argues that the constitutional provision giving states broad immunity against suits by individuals should bar suits brought under Title VI of the Civil Rights Act of 1964, which bars discrimination in educational programs.

The Justice Department rejected that idea. The department contends that the state has no sovereign immunity from suits brought under Title VI.

Responses from lawyers rep-resenting the white applicants were due late last week; the high court rejected a request for an extension of time to file those briefs. That rejection could indicate the court is eager to address the appeal before the end of its current term late this month or early next month.

Even if the court grants the appeal, the case would not be heard until the next term, which begins in October.

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