UNDOING DIVERSITY

By S.C. Gwynne/Austin

IT HAS BEEN ALMOST 47 YEARS SINCE a black man named Heman Sweatt and his lawyer, Thurgood Marshall, brought a case before the Supreme Court that forcibly integrated the University of Texas. So it was oddly appropriate last week that the University of Texas at Austin was once again the defendant in a sweeping, precedent-setting court ruling on the subject of race. This time, though, the university was chastised for promoting racial diversity, not racial exclusion.

In blunt and remarkably plain language, the 5th U.S. Circuit Court of Appeals declared that the University of Texas law school could not use different admission standards for minority students than it does for white applicants. The court's decision was a frontal assault on the current law of the land--embodied in the Supreme Court's 1978 Bakke decision--which prohibits quotas but allows schools to consider race as a factor in college applications.

The ruling stunned officials at the university, who had been loudly supportive of affirmative action and were in the midst of a multimillion-dollar campaign to boost minority enrollment. University president Robert M. Berdahl warned that the decision could lead to "the virtual resegregation of higher education," and the entire 15-school system of the University of Texas temporarily suspended admissions. Texas A&M, the other large state system, later announced that it would follow suit.

They reacted swiftly in part because the court's decision included a sharp warning that "if the law school continues to operate a disguised or overt racial classification system in the future, its actors could be subject to actual and punitive damages." Says Berdahl: "That gets your attention real fast." Other state schools in the circuit, which includes Texas, Louisiana and Mississippi, are bound by the decision. Private schools may also be affected because many receive federal funds, and campuses nationwide are studying the ruling as a possible harbinger of things to come.

The circuit court ruled on the 1992 case of Hopwood v. State of Texas, in which Cheryl Hopwood and three other students disputed their rejection by the law school. One of the strengths of the case, says Terral Smith, the Austin lawyer who filed it, is that Hopwood is "a real victim, the sort of person affirmative action should help." According to Smith, Hopwood, who comes from a blue-collar family, was offered a couple of partial scholarships--including one to Princeton--but still could not afford to go. Instead she attended California State University, married a serviceman, worked as an accountant and was raising a disabled child when she applied to the University of Texas law school at age 29. Her LSAT scores were good enough to qualify for the pool of minority and disadvantaged applicants. But, charges Smith, "they take the last 60 white kids and make places for minority students."

The court agreed that Hopwood is "a fair example of an applicant with a unique background...Her circumstances would bring a different perspective to the law school." Significantly, this statement endorses the idea that "diversity" is a valid goal for universities. And later in the decision, it states that "a university may properly favor one applicant over another because of his ability to play the cello, make a downfield tackle...[his] relationship to alumni...or [his] economic or social background." But, concluded the court, schools must "scrutinize applicants individually, rather than resorting to the dangerous proxy of race."

Minority groups argue that screening for special skills or family connections amounts to affirmative action for white students. In fact, a day after the Hopwood ruling, the Los Angeles Times reported that UCLA routinely gives preference to the sons and daughters of "major donor prospects," admitting the rich kids over thousands of applicants with higher grades. Other papers charged that several of the University of California regents who had voted to end affirmative action--including Governor Pete Wilson--had used their influence to get the children of relatives, friends and business partners into the school of their choice.

All of which raises the tension level as the University of Texas decides how to proceed. It will certainly appeal the ruling, either to all 16 federal judges in the 5th Circuit or to the Supreme Court. But some civil rights activists such as Al Kaufman of the Mexican American Legal Defense and Education Fund worry that although the decision is "inconsistent with Supreme Court rulings," Hopwood's appealing story and prevailing political winds could carry the day. Student leader Gilberto ("Tito") Garcia, who helped organize a campus rally, says, "Affirmative action is not a handout. It's an opportunity. The window of opportunity has only been open for 20 years. Discrimination has existed for 300 years."

--Reported by Dan Cray/Los Angeles and Hilary Hylton/Austin

With reporting by DAN CRAY/LOS ANGELES AND HILARY HYLTON/AUSTIN