The 1997 SPSSI presidential address: affirmative action: a compelling state interest - Society for the Psychological Study of Social Issues President Dalmas Taylor - Transcript

Justice Powell added a majority to the Brennan group's support of the use of race but stopped short of affirming the use of race in curing the effects of past discrimination. The Powell opinion, therefore, sets a conservative boundary in interpreting Bakke's support of race as a factor in affirmative action plans. Race or ethnic background may be used in a pursuit of diversity as long as it is clearly stated as an a priori policy stipulation, is only one of several factors weighed fairly against others, and does not allow the systematic exclusion of any group.

Powell did another thing that jurists find strange. While he did not affirm race as a curative for past discrimination, he appended the Harvard program and cited a defense of it, an endorsement of it, which seemingly extends his opinion. Thus, the most conservative interpretation of Bakke affirmed in two state court opinions sanctions diverse group perspectives as a bona fide objective in university admissions and a compelling state interest.

Now, after more than 20 years since the Supreme Court encountered its first challenge in DeFunis and an equal number of years of litigation at varying court levels, the U.S. Fifth Circuit Court of Appeals has managed to turn things upside down. Just when we had settled into at least a precarious understanding of the legal guidelines, we're implementing affirmative action plans including the use of race under some circumstances. The Hopwood v. Texas decision (1996), citing 14th Amendment protections, has stated that any consideration of race or ethnicity for purposes of achieving a diverse student body is not a compelling interest.

This decision, made by a two-judge majority of a three-judge panel, undercuts the Supreme Court's arguments in Bakke and furthers the anti-affirmative action sentiment throughout the country. Cheryl Hopwood and the three White male applicants to the University of Texas Law School alleged that they were denied admission because of their race. Without going into the details of the admissions procedure, the university used pretty much the procedures outlined in the earlier instance with one blatant exception: they did create a separate committee or subcommittee for screening minority applicants only; since that committee's judgments were final, there was a due process involvement. But again, Hopwood would be narrowly considered unconstitutional for procedural reasons that could be cured and do not necessarily void or nullify policy and program otherwise. There is a larger issue behind Hopwood, and this is where I'd like to go.

Hopwood and her colleagues, represented by the Center for Individual Rights, were awarded one dollar each in the lower court in damages and permission to reapply without submitting an application fee. Not satisfied with this judgment, the Center for Individual Rights appealed and won the broader decision, which is now what is know as the Fifth Circuit's Hopwood argument. Consequently, it never considered whether the admissions program was narrowly tailored to meet the school's objectives, and although the ruling applies only to institutions within the Fifth Circuit, which is Texas, Louisiana, and Mississippi, it will have a more general impact on affirmative action in this country.