Data Bases • Custom Term Papers • Free Term Papers • Free Research Papers • Free Essays • Free Book Reports • Plagiarism? Links • Top 100 Term Paper Sites • Top 25 Essay Sites • Top 50 Essay Sites • Search 97,000 Papers @ DirectEssays.com • Search 101,000 Papers @ ExampleEssays.com • Search 90,000 Papers @ MegaEssays.com Free Essays • Term Paper Sites • Chuck III's Free Essays • Free College Essays • TermPaperSites.com • My Term Papers • Get Free Essays • Essay World • Planet Papers	Search Lots of Essays Back to Subjects - Political Science summary summary In this chapter, I will discuss some of the most important affirmative action court cases. along with each case, a summary will be provided of whether each case helped or hurt African American efforts toward economic, social, and economic equality. Allan Bakke had been an honor student in college and, later, a space-agency engineer before he decided, at age 32, to become a medical doctor. He applied twice for entry to the medical school at the University of California at Davis; the school denied his application both times. Bakke later learned that his college grades and aptitude test scores were higher than those of others who had nevertheless gained admission. The reason for his rejection, Bakke concluded, was that he was white, while some of the successful applicants were not. The medical schools admissions procedures included a quota system for applicants who were members of "minority groups": Blacks, Hispanics, Asians, and American Indians. A specified number of spots in every entering class were reserved for such applicants; the school admitted some members of the minority groups even though their grades and test scores were lower than the cutoff applicable to non-minorities. Bakke sued the University of California, claiming violation of his rights under both Title VI of the Civil Rights Act of 1964 and the equal protection clause of the fourteenth amendment to the US Constitution. By the time Bakke's case reached the US Supreme Court, nearly 60 organizations had submitted amicus curiae, or "friend of the court" briefs, court pleadings filed not by the parties to the lawsuit, but by various groups interested in its result. Ultimately, five members of the nine-justice Court found the medical school's quota system unlawful. While a majority of the Court agreed upon such a judgment in Bakke's case, however, no majority could agree upon an opinion (a statement by the Court expounding on the law and detailing reasons for the judgment). That a decision of the US Supreme Court includes no majority opinion is unusual; typically, a majority of the Court can reach a consensus on the reasons underlying a judgment. As the Justices could not agree on a majority opinion, Bakke did not come to be the conclusive statement on so-called "reverse discrimination" many had expected. While Bakke offers no majority opinion, an opinion by Justice Powell "announced" the judgment of the Court. Accordingly, his views are most often quoted as legal authority on three issues surrounding affirmative action admissions policies in higher education: 1. Diversity. Justice Powell found a diverse student body to be a "constitutionally permissible goal for an institution of higher education," and declared that "the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples." 2. Racial and ethnic quotas. Justice Powell rejected quotas, however, as a means of achieving diversity; he termed such a mechanism "facially invalid." "Preferring members of any one group," Justice Powell wrote, "for no reason other than race or ethnic origin is discrimination for its own sake." 3. Race as a factor in admissions. Quotas, according to Justice Powell, are not a "necessary means" to diversity among students at a college or university. Rather, race or ethnic background could be deemed a "'plus' in a particular applicants file." "The file of a particular black applicant" he wrote, "may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism." ntation of those minorities in their student body.(5) In striking down the law school's admissions procedures, the Fifth Circuit concluded that any use of race in the admissions process was forbidden by the Constitution.(6) By so doing, the Fifth Circuit has made the struggle for equality harder for blacks as well as a federal appellate court’s decision in Hopwood v. Texas purporting to overrule the Supreme Court’s landmark Bakke decision of 1978 with regard to the validity of diversity-based affirmative action in university admissions. In Hopwood, the Fifth Circuit decided that the admissions process at the University of Texas School of Law violated the United States Constitution because it maintained a process by which black and Mexican-American students were evaluated under a different system in order to obtain proportionate represe We hold that the University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school's poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school (Hopwood Case). The Hopwood Decision in Texas as an Attack on Latino Access to Selective Higher Education ProgramsJorge Chapa et al.*Lyndon B. Johnson School of Public AffairsThe University of Texas at Austin Click here to see the tables associated with this paper.AbstractThis paper begins with a review of the Hopwood decision which has prohibited Texas colleges and universities from making any consideration of race or Latino origin in admissions or financial aid decisions. One of the immediate effects of the Hopwood decision was to decrease the number of Latino who applied and were admitted to many of the most selective publicly-funded higher education programs in the state. The amount of financial aid available to Latino students was also drastically decreased because of Hopwood. The next section of the paper argues that the Texas Higher Education Coordinating Board, the Texas Legislature and the top administrators in the public higher education systems have taken actions that can be seen as largely supportive of increasing Latino access despite Hopwood. Public opinion is generally supportive of diversity but critical of racial preferences. The paper concludes that the strongest opposition to Latino access is found in the legal establishment; i.e., the courts, the Texas Attorney General and some law school faculty. IntroductionThe rapid growth of the Latino population is one the key features of the American landscape in the last part of the twentieth century. During the 1970s, the Latino population of the U.S. grew by 57%. During the 1980s, it grew by 54%. These rates stand in sharp contrast to the rates for the Anglo (i.e. white non-Latino) population which grew by 1% during the'70s and 4% during the'80s. In Texas between 1970 and 1990, the Latino population grew by 45% each decade. Now more than one of every four Texans is Latino. All population projections show that the Hispanic population will continue to grow rapidly. Under some assumptions, they could become the largest part of the state's school-age within a decade. It is difficult to believe that there is not a relationship between the growing Latino population and the growing attacks on Latino civil rights. Latino civil rights have faced severe restrictions since the mid-nineteenth century. Observers of that period saw that the Mexican-origin residents of Texas were subject to prejudice and contempt. This ignominious beginning of restricted Latino civil rights in the U.S. was the foundation for other gross civil rights violations in the twentieth century such as blocked access to the ballot box, de jure segregation into inferior schools, residential segregation and widespread employment discrimination (MALDEF, 1996; Montejano, 1987). Such violations of civil rights are not only part of Latino history. There are several instances of recent social science research that provide very strong evidence of present-day discrimination against Latinos in many areas. For example, Holmes et al. (1993) found that while Hispanicjudges give similar sentences to Anglo and Hispanic convicts, Anglojudges give much more severe sentences to Hispanics than they do to Anglos. A number of matched-pair "audits" where Anglos and Latinos with substantively identical credentials apply forjobs, housing or mortgage loans convincingly show a high degree of discrimination against Latinos. (See Kenney and Wissoker, 1994; Fix and Struyck, 1993.) The end of affirmative action and continued discrimination against Latinos would be bad news in any case. However, it is tragic in the face of the fact that even with the enhanced opportunities offered by affirmative action, Latinos are far from attaining equal access to higher education. Since the early 1970's, the Latino proportion of the U.S. college-aged population, those between 18 through 24 years old has more than doubled. However, the proportion of Latinos among all B.A. degree recipients has increased at a much lower rate. Similarly, the percentage of Latino high school graduates ever enrolled in college has decreased since the mid-1970s. In 1975 the proportion of Latino high school graduates attending college was within two percent of that for the total U.S. population. Since that time, the Latino proportion has decreased so that 15% fewer Latino high school grads went to college than was true for the total U.S. population (Chapa, 1991 ). At each successive step or level, the higher education pipeline is increasingly leaky, and it is losing or leaving out larger numbers and proportions of the rapidly growing Latino population. In spite of increased opportunities that may have resulted from earlier lawsuits to increase Latino access to public education like the Edgewood and LULAC suits, the low levels of Hispanic parental educational attainment, high povecTy levels and a number of other demographic characteristics all work to create barriers to rapid increase in future Latino educational success. The low levels of attainment and high school completion are not merely artifacts of high levels of immigation. U.S.bom Latinos have much lower educational levels than non-Latinos. This is true even when different generations among the U.S: born are distinguished and analyzed separately. (See Bean, et a1,1994; and Chapa, 1989, 1990, 1992). While dejure segregation may have been eliminated from Texas higher education by the mid-1960s, de facto segregation has continued to this day. In 1980, the Office of Civil Rights (OCR) of the U.S. Department of Education found that "Texas had failed to eliminate the vestiges of its segregated higher education system and was in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d. In 1983, just eight years before Cheryl Hopwood applied to the University of Texas Law School, the state of Texas agreed, under threat of federal action, to formulate a plan to desegregate its higher education system, including the UT Law School. According to Coordinating Board Commissioner Kenneth Ashworth, various affirmative action programs resulted in an additional 85,000 Hispanic students and 22,000 Black students being admitted to Texas colleges and universities since 1983. Despite improvements made by race-based admissions policies, scholarships, and outreach, recruirinent and retention programs, minorities have been and continue to be underrepresented at Texas public colleges and universities. (House Research Report No. 75-14) At the time the Hopwood case was filed and decided, the publicly-funded educational opportunities available to minorities were vastly inferior to those offered to majority students (Jones and Kauffman, 1994). Yet the specifics of the Hopwood case resulted in rulings that ignores the great disparities of opportunity and prevents the use of most effective means to minimize them. Ironically, the legal tlaw which ultimately laid the basis in Hopwood for the end of affirmative action in Texas was the Law School's tlawed, unconstitutional implementation of the admission system it adopted under pressure to desegregate its student body. The fact that Latinos have faced restricted civil rights throughout their history in the U.S. and that they are still subject to racial discrimination would be reason enough to be pessimistic about Latino civil rights in the future. The U.S. Fifth Circuit Court's Hopwood decision banning the consideration of race in higher education admissions and financial aid decisions in Texas is an indication that whatever progress Latinos have made towards full participation in higher education is under fierce attack. Hopwood v. State of TexasAlmost two years ago, a three-judge panel of the United States Court of Appeals issued its opinion in Hopwood v. Texas, the University of Texas Law School's "reverse discrimination" lawsuit filed by four white students who claimed that they had been denied admission in 1992 in favor of less qualified minorities. Since it was handed down, Hopwood has ended affirmative action in Texas higher education. Higher educational policy is still in ilux. The legislature and education administrators have made many changes in response to Hopwood and they are considering many more. The Hopwood case was first tried before federal district court in Austin before Judge Sam Sparks without ajury during May 16-25, 1994. On August 19, 1994, Judge Sparks issued his ruling which was technically a victory for the plaintiffs. The U.S. District Court ruled that the University of Texas Law School's affirmative action admissions program was unconstitutional. The judge found that "while certain types of race-conscious admissions are constitutionally justified at the law school, the 1992 admissions policy under which the plaintiffs were considered and rejected was not `narrowly tailored' and was therefore unlawful" (Sparks, 1994, p. 553). The dual admissions procedure instituted for minority applicants was identified as the major culprit. In the face of a federal mandate to admit more minority students and the need to process a large number of applications, the UT Law School had instituted a dual admissions system. In this dual system, the files of minority applicants would get a more careful and considered reading. In contrast, the admission decisions for non-minority applicants were based on the heavily formulaic consideration of the Texas Index (TI) score. The TI score was the result of multiplying the grade-point average by ten and adding it to the LSAT score. By 1994, the law school had long since abandoned that specific admissions procedure. Moreover, the District Court decision was a resounding reaffirmation of the need of race-conscious aftirmative action to mitigate past and recent if not present-day discrimination in Texas. Judge Sparks' decision was clear and compelling. On the claim of "reverse discrimination," he found that: The plaintiffs have contended that any preferential treatment to a group based on race violates the Fourteenth Amendment and, therefore, is unconstitutional. However, such a simplistic application of the Fourteenth Amendment would ignore the long history of pervasive racial discrimination in our society that the Fourteenth Amendment was adopted to remedy and the complexities of achieving the societal goal of overcoming the past effects of that discrimination (p. 554).On the justification of affirmative action Sparks wrote: The reasoning behind affirmative action is simple--because society has a long history of discriminating against minorities, it is not realistic to assume that the removal of barriers can suddenly make minority individuals equal and able to avail themselves of all opportunities. Therefore, an evaluation of the purpose and necessity of affirmative action in Texas' system of higher education requires an understanding of past discrimination against blacks and Mexican Americans, the minorities receiving preferences in this cause, and the types of barriers these minorities have encountered in the educational system (p. 554). Court finds, in the context of the law school's admissions process, obtaining the educational benefits that tlow from a racially and ethnically diverse student body remains a sufficiently compelling interest to support the use of racial classifications (p. 571 ).Sparks found that the law school's procedure of giving minority applications separate consideration was flawed: The Court holds that the aspect of the law school's affirmative action program giving minority applicants a "plus" is lawful. But the failure to provide comparative evaluation among all individual applicants in determining which were the best qualified to comprise the class, including appropriate consideration of a "plus" factor, created a procedure in which admission of the best qualified was not assured in 1992. Under the 1992 procedure, the possibility existed that the law school could select a minority, who, even with a "plus" factor, was not as qualified to be a part of the entering class as a nonminority denied admission. Thus, the admission ofthe nonminority candidate would be solely on the basis of race or ethnicity and not based on individual comparison and evaluation. This is the aspect of the procedure that is flawed and must be eliminated (p. 579).On the plaintiffs central claim; i.e., that they were not admitted in favor of less qualified minority applicants, Judge Sparks said: What the chart [of Texas Index or TI scores] does not prove, however, is that race or ethnic origin was the reason behind the denial of admission to the plaintiffs. Although the plaintiffs had higher TIs than the majority of minority applicants offered admission, the evidence shows that 109 nonminority residents with TIs lower than Hopwood's were offered admission. Sixty-seven nonminority residents with Tls lower than the other three plaintiffs were admitted...Additionally, the Court has reviewed the Fles of the four plaintiffs as well as the files placed in evidence of other applicants reviewed in the discretionary zone, both minority and nonminority.... In fact, of all the applications the Court reviewed, Hopwood's provides the least information about her background and individual qualifications and is the least impressive in appearance, despite her relatively high numbers (p. 581).The plaintiffs sought and won damages, but all that Sparks gave each was one dollar and the right to reapply to the law school without paying any additional application fees. Not content with their very small victory, the Plaintiffs' appealed the district court's judgment. Volume 1, Number 1 Return to Dialogue On Diversity, cover page Considering Race as a Factor inAdmissions Decisions:From Bakke to the PresentDaren Bakst, Esq.PresidentCouncil on Law in Higher Education (CLHE) * * *The following article traces legal developments in the use of race as a factor in the admissions decision with a primary emphasis on recent developments and pending actions. Confusion is the rule and not the exception when trying to examine the legal ramifications of admissions processes in each state. For this reason, this article is merely a summary of what has happened and a "guess" as to possible developments in the near future. However administrators should not be guessing as to what is sound admissions policy. A discussion with Counsel on campus is crucial and admissions practices should be carefully crafted. Hopefully, this overview will help provide some background as to the environment that currently exists.A Starting Point: Regents of the University of California v. BakkeThe Supreme Court, in 1978, issued an opinion in the Bakke case that is still referred to as the "law of the land." Justice Powell, in the opinion issued by the Court, stated that race can be taken into account as one of many factors in admissions for the purpose of achieving diversity on campus. For most institutions, this case is the legal precedent to follow and is the legal foundation for developing admissions policies.Unfortunately, some institutions have read this opinion too broadly and have developed admissions processes that would not even comply with a strict or even liberal reading of the opinion. The opinion does not offer the freedom to make decisions solely on race. Some institutions developed and still continue to have different admissions committees and criteria based on race. Inevitably, a challenge to this type of system was going to take place and it occurred only a couple of years ago in the Hopwood case.Hopwood v. TexasThis action was brought because of admissions practices that would likely not even be deemed constitutional under Bakke (Different sets of criteria and committees existed based on the race of the applicant). Hopwood, however, is of interest because it appears to be in conflict with the Bakke opinion. The Fifth Circuit held that race could not be used as a factor for the sole purpose of achieving diversity. It could be used in the narrow circumstance where it can be shown that the admissions practices are designed to remedy the past effects of discrimination at a particular institution.This case, affecting institutions in Texas, Louisiana, and Mississippi, still causes great confusion. How can the Hopwood opinion be reconciled with Bakke? There was hope that the Supreme Court would hear the case and make a definitive statement of the law. The case was appealed, but the Supreme Court refused to review the matter because the issue in the case was moot--the admissions practices that were being challenged were no longer practiced by the institution. Many felt that this was an excuse not to address this complicated and divisive issue. Regardless, the higher education community was going to have to wait for another opportunity to receive clarification. Not long after, a case coming out of the Third Circuit, while not directly on point, was going to be heard by the Supreme Court: Piscataway v. Taxman.Piscataway v. TaxmanThe facts of the case did not even deal with admissions in colleges. However, there is no question that the case could have provided important insight into the law of the land. A school district in New Jersey had to lay off one teacher as a result of financial problems. In order to promote diversity (this was the only reason), the school district decided to lay off the white teacher instead of the African-American. The facts were undisputed by the parties in that the teachers were equally qualified. The Third Circuit (Pennsylvania, Delaware, New Jersey, and the Virgin Islands) held that this was a violation of Title VII of the Civil Rights Act of 1964.The case was appealed to the Supreme Court and was selected to be heard by the Justices. In a last second compromise, many civil rights groups helped to pay the plaintiff in order to settle the case so that the Court would not issue an opinion. The reasoning was clear: the facts were not favorable to proponents of affirmative action and the Third Circuit decision was expected to be affirmed. The burden of getting five justices out of the nine would have been on the school district since they were bringing the appeal: a very risky endeavor. A decision on this matter would have made it clear, at least in employment situations, whether diversity could be the deciding factor. The opinion could have been written in a manner that would have been broader in scope than the facts presented and could have been legal precedent for the use of race as a factor in admissions. As a result of the compromise, no further clarification was forthcoming from the Supreme Court.When will the Supreme Court hear a case that will make it clear whether race can really be used as a factor in admissions for the purpose of achieving diversity? This is a question that is asked all the time. There are no answers to this question but there are plenty of pending cases that could be the eventual vehicle for the clarification that administrators seek.Important Pending Cases· University of Michigan and University of Washington: Actions have been brought against both institutions for their admissions practices based on reverse discrimination arguments. The unique nature of these cases is the argument by plaintiffs' counsel that the administrators should be held personally liable for violating the civil rights of the plaintiffs. While this threat should not be a major concern, discussion with your own Counsel would be highly recommended. In general, administrators, at least in most of the country, should expect to be immune from liability because reliance on the Bakke decision is clearly reasonable. As to the status of these cases, both are very early in the litigation process so no major developments have occurred.Some Good News for Proponents of Affirmative ActionIn a case that has not received much attention, the state Supreme Court of Nevada in University and Community College System of Nevada v. Farmer held that it was permissible for the University of Nevada at Reno to hire an African-American faculty member over a white individual in order to promote diversity. The Court cited Bakke as precedent for their decision. The case was appealed to the U.S. Supreme Court but they refused to review the case on March 9, 1998. Once again, the confusion still exists.Some Good News for Opponents of Affirmative ActionAfter facing many legal challenges, Proposition 209, a referendum passed by 54% of the California voters in the 1996 election is now being enforced. This amendment to the state constitution does not allow institutions to use race as a factor in the admissions decision.California is notorious for being the launching pad of many political and policy initiatives across the country. While there was not as many state ballot measures similar to Proposition 209 as may have been expected in this most recent election, the voters in the State of Washington passed a similar measure called I-200. Even though there were 30 days after its passage until it took effect, changes were being made immediately by state institutions to get ready to comply with this new law.The FutureThese are the "guesses" that I mentioned in the early part of the article. First, it is unlikely that restrictions on the use of race in admissions will come from a legislative body. States such as South Carolina have introduced and killed legislation that would have affected admissions. Recently, just this past year, in the House of Representatives, legislation was introduced and quashed just as quickly.Why is this trend likely to continue? Legislators want to stay away from divisive issues and as a result one agent of change (if there will be any) will come from state ballot measures. We have seen them in California and Washington. Similar measures will likely be passed in other states but it will probably not be a major trend across the country but instead isolated developments.Ultimately, the future of using race as a factor in admissions will likely be decided in the Courts. As Circuits have conflicting opinions on important legal issues, the Supreme Court will eventually feel obligated to reconcile the inconsistencies and develop a coherent body of law. The time frame is hard to predict and so is the eventual result if the Supreme Court was reviewing a case. The facts of course would be important but so too would be the party who brought the appeal and the make-up of the Court when the case was being reviewed.Legal experts and campus administrators will continue to be confused as to what is the law for their individual state. However, for most of the country, Bakke is still the law of the land. There are two points that must be emphasized to insure that your admissions practices are in compliance with the law. First, make sure that you are at a minimum complying with the Bakke opinion (race should be used as only one factor to promote diversity) and finally talk to your Counsel to identify what is the controlling law in your state.All of this legal mess may seem discouraging and a serious challenge to your attempts to achieve diversity. You would be right. However, it forces all admissions professionals to think outside the box and become innovative in their approaches to developing a diverse student constituency. The goals will continue to be achieved even if confusion and restrictions make it more challenging.* * * Bibliography: Word Count: 4521
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