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Published in Print: December 8, 1999, as Court Rejects Student's Reverse-Discrimination Claim

Court Rejects Student's Reverse-Discrimination Claim

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The U.S. Supreme Court dealt a serious blow last week to a reverse-discrimination lawsuit filed by a white student over his rejection by a Ph.D. program at the University of Texas school of education.

In a unanimous, unsigned opinion, the court threw out the central part of a federal civil rights lawsuit filed by Francois D. Lesage, who alleged that the university unconstitutionally considered race in deciding whom to admit to the education school's counseling psychology program in 1996.

The high court said that Mr. Lesage had no case under a federal civil rights law because the university rejected his application based on his relatively poor qualifications. Of the 223 applicants to the counseling psychology program in 1996-97, 73 had both higher undergraduate grade point averages and higher scores on the Graduate Record Examination than Mr. Lesage did. The program offered admission to 16 applicants that year, according to the state of Texas.

In a case alleging discrimination in past actions, "the government can avoid liability by proving that it would have made the same decision without the impermissible motive," the court said in its Nov. 29 ruling in Texas v. Lesage (Case No. 98-1111).

Mr. Lesage had sued the state and the University of Texas in federal court over his rejection. The lawsuit contended that the university gave "preferred status to black and Hispanic applicants."

The university acknowledged that race was considered in the admissions process for the counseling psychology program that year, which was completed shortly before the U.S. Court of Appeals for the 5th Circuit struck down the use of race in admissions in a case known as Hopwood v. Texas.

But the university said race was considered only after the initial pool of applicants to the graduate program had been winnowed to a group of 40. Mr. Lesage was not part of that group.

A federal district court ruled for the university, but the New Orleans-based 5th Circuit court reinstated Mr. Lesage's case last year. The appeals court ruled that there were factual questions about whether the university had weighed race in considering Mr. Lesage's application.

In its appeal to the Supreme Court, Texas called Mr. Lesage "an unqualified applicant" and said he "should not be able to establish liability and seek damages merely for having mailed an application."

The high court accepted the state's appeal and ruled in its favor without hearing oral arguments in the case. The justices said the 5th Circuit court's ruling was "inconsistent with this court's well-established framework" for analyzing discrimination claims against the government.

"Even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent the forbidden consideration," the court said.

Transferred Teachers

In other action last week, the Supreme Court declined to hear the appeal of the Victoria, Texas, school district in a case involving the transfer of two teachers who were critical of their principal. A panel of the 5th Circuit court voted 2-1 to reinstate the teachers' suit against the district. The appellate panel said the teachers' comments were protected by the First Amendment because they were members of the school improvement committee.

In a friend-of-the-court brief in the district's behalf, the Texas Association of School Boards argued that the 5th Circuit ruling had greatly expanded First Amendment protections for teachers who criticize the performance of their principals. The high court declined without comment to hear the district's appeal in Victoria Independent School District v. Harris (No. 99-588).

The court also heard arguments in two cases involving efforts of the federal government to protect children.

In U.S. v. Playboy Entertainment Group Inc. (No. 98-1682), the justices are considering the constitutionality of a provision of federal law that requires cable television operators to fully block or scramble sexually explicit programming so that it cannot be viewed by children. The law was a response to so-called signal bleed, when partially scrambled images can still be viewed.

In Food and Drug Administration v. Brown and Williamson Tobacco Corp. (No. 98-1152), the court is weighing whether the federal agency has the authority to regulate tobacco as a drug. At stake are FDA regulations aimed at reducing the use of tobacco products by young people, such as a provision that would ban tobacco billboards within 1,000 feet of schools and playgrounds.

Vol. 19, Issue 15, Page 21

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