Hopwood, Bakke and the Future of the Diversity Justification

The decision of the Court of Appeals for the Fifth Circuit in Hopwood v. Texas sent shock waves through the academic community with its holding that the Equal Protection Clause of the Fourteenth Amendment prohibited the University of Texas Law School from taking account of race as a factor in its admissions process. In the course of invalidating certain procedures employed by the law school, the Fifth Circuit concluded that Justice Powell's influential opinion in Regents of the University of California v. Bakke, which recognized the pursuit of diversity in higher education as a compelling state interest, had never constituted a majority holding of the Court, had been substantially undermined by recent precedent, and was inconsistent with basic principles of equal protection. Consequently, the Fifth Circuit concluded that the promotion of racial diversity in the law school's student body was not a compelling state interest under the Equal Protection Clause. While acknowledging that providing a remedy for the present identified effects of past discrimination can be a compelling state interest, the Court of Appeals concluded that the law school had failed to establish any such present effects. In the absence of a compelling state interest, the court held that the law school could not constitutionally take race into account in the admissions process. The United States Supreme Court denied the state's petition for certiorari. Consequently, public universities in Texas are presently precluded from taking account of race in admissions and, presumably, in financial aid as well. The same restrictions apparently apply to private institutions within the Fifth Circuit receiving federal aid pursuant to the Civil Rights Act of 1964, for both in Bakke, and in subsequent cases, a majority of the Supreme Court has held that the substantive standard under Title VI is identical to that of equal protection.This article will focus on the Hopwood court's treatment of Bakke and the diversity issue. It will work through relevant aspects of the Supreme Court's racial preference case law and then analyze Hopwood's treatment of that law. This article concludes that, while the holding of Bakke is maddeningly ambiguous, the Fifth Circuit may well have been technically correct in concluding that Justice Powell's diversity rationale was never a valid precedent in that it was never supported by a majority of the Court. This article also concludes that if Bakke was a valid precedent, the Fifth Circuit was incorrect in determining that it has been significantly undermined by subsequent case law, although tension is certainly mounting. This article will also show that the Powell opinion in Bakke is not inconsistent with the equal protection principles of individuality, anti-stigmatization, and the elimination of enduring racialism. Furthermore, it will contend that, whether or not it ever commanded a majority, the Powell opinion in Bakke is entitled to a fair amount of judicial respect because it has been openly relied upon by a large number of universities and professional schools nationwide without apparent disapproval by the Court. Finally, this article recommends that the principle of strict scrutiny be combined with a proposed requirement that institutions that employ race as a diversifying factor publish relevant information about their admissions processes. Such a combination should provide adequate judicial and political checks against the apparent pattern of abuse of the diversity justification.