Diversity in University Admissions Decisions: The Continued Support of Bakke

I. INTRODUCTION The case Regents of University of California v. Bakke1 represents plurality decision, authored by former Supreme Court Justice Lewis Powell, stating that racial diversity in higher education institutions may serve as compelling government interest for racially conscious admissions, even when no past discrimination has been demonstrated, as long as exercise is narrowly tailored and does not denigrate rights of white students. The case involved grant of admission in medical school at University of California at Davis where sixteen of one hundred spaces were set aside specifically for students of color. Eight Justices of Court split evenly over whether could ever be used as criterion for college admissions. Although ruling against University, Powell broke tie by declaring that racially-based affirmative action is permissible and is constitutionally protected by First Amendment right of academic freedom.2 This decision has been cited almost 4100 times, 3200 of those in legal periodicals, according to latest iteration of WESTLAW. Like aforementioned members of Court, legal researchers have fallen on either side of issue and some of published compositions, like subject of this critique, have offered formulaic interpretations that serve as just another panegyric to anti-affirmative action position championed by United States Court of Appeals for Fifth Circuit in case of Hopwood v. Texas.3 On one hand, it appears author of Diversity in Halls of Academia: Bye-bye Bakke?4 makes an avid attempt at being even handed; in this regard research falls short of full analysis necessary to give reader complete picture of complexities involved in this all-important societal issue. On other hand, article appears to be rendition of arguments made in Hopwood and ones that can be correlatively found in similar articles that are either inconclusively researched or are end-means oriented.5 In case, structural pattern of arguments is indistinguishable from that formerly put forward in Hopwood. It articulates: 1) Hopwood's problem with plurality decision in Bakke; 2) an analysis of Supreme Court decisions involving raceconscious affirmative action outside of higher education; 3) conflict within lower courts based on absence of bright line clarity at Supreme Court level; and 4) prediction of Supreme Court position on higher education admissions decisions so as to settle lower court conflict. The rest of current article will follow this convention arguing that Bakke was correctly decided and that United States Supreme Court will have to strain to overcome its own judgment in this area of law. II. HOPWOOD ON BAKKE In Hopwood v. Texas,6 United States Court of Appeals for Fifth Circuit challenged decision in Bakke, claiming that opinion of Justice Lewis Powell represented no binding precedent on issue of affirmative action in higher education.7 The plurality Supreme Court decision had declared that university affirmative action admissions could be constitutional if race was used as a factor as opposed to the factor; hence, as stated above, diversity could be compelling government interest if used within context of university' s pursuit of academic freedom. Hopwood concerned suit of four white students against admissions program at University of Texas at Austin College of Law.8 The university had established quota-based system much like one declared unconstitutional in Bakke decision. The Fifth Circuit majority, however, declined to follow Supreme Court plurality decision rendered by Justice Powell claiming that his position was joined by no other Justice.9 The lower court stated that any consideration of race or ethnicity by law school for purpose of achieving diverse student body is not compelling interest under Fourteenth Amendment. …