[Congressional Record Volume 142, Number 49 (Wednesday, April 17, 1996)]
[Senate]
[Pages S3494-S3495]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     BAD LAW ON AFFIRMATIVE ACTION

 Mr. SIMON. Mr. President, one of the recent decisions that was 
a most unfortunate one was the decision by the U.S. Court of Appeals 
that colleges and universities cannot keep in mind diversity as they 
put together a student body.
  No one was advocating quotas in this case, nor advocating that people 
who are not qualified should be admitted.
  But to deny that diversity is part of the learning experiences of 
colleges and universities is to deny reality.
  I hope the decision will be overturned.
  We have enough backsliding in the field of race relations. We do not 
need to add the handicap of a bad court decision as another barrier.
  Recently, Anthony Lewis had a column titled, ``Handcuffs on 
Learning''; and the New York Times had an editorial titled, ``Bad Law 
on Affirmative Action''. I ask that both articles be printed in the 
Record and I urge my colleagues to read them.

[[Page S3495]]

  The articles follow:

                [From the New York Times, Mar. 22, 1996]

                     Bad Law on Affirmative Action

       For two decades the governing principle of affirmative 
     action in higher education has been that race and ethnicity 
     may be a factor, but only one factor, in choosing among 
     applicants in pursuit of the legitimate purpose of a diverse 
     student body. That was the judgment of the Supreme Court in 
     the celebrated 1978 case of Allan Bakke, a white applicant 
     who sued for entry to a California state medical school.
       Now a panel of the U.S. Court of Appeals for the Fifth 
     Circuit declares that the Bakke decision is no longer good 
     law. In a lawsuit by four rejected white applicants, the 
     court strikes down a program of the University of Texas Law 
     School to bring more blacks and Mexican-Americans into its 
     student body. This tool is impermissible, say the judges, 
     ``even for the wholesome purpose of correcting perceived 
     racial imbalance in the student body.''
       The ruling is hasty, aggressively activist and legally 
     dubious. If the Bakke decision is no longer the law, it is 
     for the Supreme Court to say so. We hope the high court does 
     not, for its basic rule is sound. Rigid racial quotas are 
     out, but no serious educational institution should be forced 
     to disregard the goal of educating a diverse population.
       To reach this result, the appeals judges engaged in exotic 
     reasoning. They found that a now-retired Justice, Lewis 
     Powell, who announced the judgment in Bakke, spoke only for 
     himself on the racial diversity question. It is true that he 
     was joined in the judgment by four other justices who relied 
     on different legal grounds, but Justice Powell's announcement 
     has soundly been regarded as the rule of the Bakke case for 
     nearly a generation. Moreover, it has been widely hailed as 
     the work of a respected moderate well grounded in experience 
     as head of the school board in Richmond, Va.
       Texas higher education officials have commendably sought 
     diversity, but they cannot fairly be accused of adhering to 
     rigid quotas. The diverse statewide population is 11.6 
     percent black and 25.6 percent Hispanic; while the 1992 law 
     school entering class was 8 percent black and 10.7 percent 
     Hispanic. Yet the appeals court says the school may not use 
     ``ethnic diversity simply to achieve racial heterogeneity, 
     even as part of the consideration of a number of factors.''
       That is the doctrine of a ``color-blind'' Constitution, but 
     it speaks to a time not yet here when the historic stain of 
     racial oppression is erased, competition is truly equal and 
     diversity comes more naturally. As another former Justice, 
     Harry Blackmun, observed in the same Bakke case, ``In order 
     to get beyond racism, we must first take account of race. . . 
     . And in order to treat some persons equally, we must treat 
     them differently. . . . The ultimate question, as it was at 
     the beginning of this litigation, is: Among the qualified, 
     how does one choose?''
       The appeals court judges, eager to be the first to declare 
     the battle for equal right over, have rendered a judgment 
     that should not stand.
                                                                    ____


                [From the New York Times, Mar. 22, 1996]

                         Handcuffs on Learning

                           (By Anthony Lewis)

       San Diego.--Universities around the world came to 
     understand long ago that the quality of education improved if 
     they had students with varying life experiences. That is why 
     Oxford colleges sought working-class students. It is why 
     Harvard, Yale and Princeton are far better universities today 
     than when they were confined largely to privileged young 
     white men.
       In the life of Americans, race is a profound factor. Blacks 
     may be bright or dull, rich or poor, but their experience in 
     life has been different from whites'. And so, long before the 
     phrase ``affirmative action'' was invented, universities 
     thought it wise to have students of varied racial 
     backgrounds.
       The freedom of American universities to consider race along 
     with other factors in choosing students has just been struck 
     a devastating legal blow. It came in the decision of the 
     United States Court of Appeals for the Fifth Circuit in the 
     case of Hopwood v. Texas.
       The University of Texas Law School some years ago had what 
     amounted to a segregated admissions process. Minority 
     applicants were considered by a separate committee and on 
     different standards.
       Cheryl Hopwood and other rejected white applicants sued, 
     claiming that that system denied them the ``equal protection 
     of the laws'' guaranteed by the 14th Amendment. The Fifth 
     Circuit, ruling in their favor, could have limited itself to 
     the particular admissions process at issue. But it went much 
     further.
       The court said that the Texas law school ``may not use race 
     as a factor'' in admissions. It did not speak of a dominant 
     or even significant factor but outlawed consideration of race 
     as any factor at all. Moreover, in an extraordinary display 
     of hostility, the court left the way open for the plaintiffs 
     to collect money damages for what it said was ``intentional 
     discrimination.''
       The Equal Protection Clause of the Constitution, which the 
     court found violated, applies only to state action. But 
     private universities may also be affected. Civil rights laws 
     forbid racial discrimination at private universities that 
     receive any kind of Federal aid--and nearly all do.
       The ultimate danger is to the freedom of American 
     universities. The Fifth Circuit treated this case as if it 
     were the same as the Supreme Court's recent decisions 
     limiting set-asides for minority contractors and broadcast 
     licensees. But education is different. Its freedom in 
     decisionmaking--an urgent need in our society--has to be 
     weighed against the rightful claims of equal protection.
       Reading the Fifth Circuit's opinion, by Judge Jerry E. 
     Smith, one feels a sense of detachment from reality. For 
     instance, it rejects as racist the assumption that an 
     individual ``possesses characteristics'' because of his race. 
     Right. But the issue is not characteristics. It is 
     experience. And any judge who thinks black Americans have not 
     had a different experience is blind.
       Think about women judges or Supreme Court justices. They 
     are not wiser or less wise by virtue of their gender. But 
     they have had a different experience from men, and that is 
     why it is important to have them on the bench.
       The reality of university admissions, as opposed to the 
     mechanical abstractions of the Fifth Circuit decision, is on 
     display here in California. Gov. Pete Wilson, playing to 
     white male resentment, pushed through the Board of Regents a 
     rule forbidding the use of race or gender as a factor in 
     admissions to the University of California.
       Now it turns out that regents who voted for what they 
     called ``merit'' admissions had leaned on the University of 
     California at Los Angeles to admit the children of friends. 
     An investigation by The Los Angeles Times shows that U.C.L.A. 
     gave special consideration to children of politicians and the 
     rich.
       In other words, we have affirmative action for the 
     privileged. But not for the race that was enslaved for 200 
     years and abused for another 100 and more.
       Universities, in their freedom, can increase understanding 
     across the racial lines in this country. Unless the Supreme 
     Court undoes this assault on their freedom, we are going to 
     be an even more divided society.

                          ____________________