[Congressional Record Volume 142, Number 108 (Monday, July 22, 1996)]
[Senate]
[Page S8490]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     DUCKING ON AFFIRMATIVE ACTION

 Mr. SIMON. Mr. President, the New York Times recently had an 
editorial titled Ducking on Affirmative Action.
  The subject is the refusal of the Supreme Court to consider a 
decision by the Fifth Circuit Court of Appeals that would have 
devastating consequences for our society.
  No one should underestimate the shortsightedness and the harm that 
can come from leaving the Hopwood decision of the fifth circuit stand.
  Mr. President, I ask that this article from the New York Times be 
printed in the Record.
  The article follows:

                     Ducking on Affirmative Action

       In a hurtful blow to affirmative action in higher 
     education, the Supreme Court said on Monday that it would not 
     hear an appeal by the state of Texas from a lower court 
     ruling that barred public universities from using race as a 
     factor in selecting students. With this sidestepping, the 
     Court left officials in at least three Southern states who 
     are working to open educational opportunities for minorities 
     in an untenable state of uncertainty. It also sowed confusion 
     nationwide--hardly an uplifting way for the Court to finish 
     its term and head into recess. The Court should instead have 
     seized the opportunity to reject the lower court's flawed 
     pronouncement and reaffirmed its historic commitment to 
     carefully designed affirmative action.
       The high court seemed insensitive to the long history of 
     racism at the University of Texas Law School, whose 
     affirmative action program was challenged by rejected white 
     applicants, giving rise to the case. As late as 1971, the law 
     school admitted no black students. The Court also ignored the 
     Clinton Justice Department, which filed a brief warning that 
     the ``practical effect'' of the lower court's holding ``will 
     be to return the most prestigious institutions within state 
     university systems to their former `white' status.''
       The refusal to hear the case left standing a ruling by the 
     United States Court of Appeals for the Fifth Circuit that 
     caused justifiable consternation in the academic world three 
     months ago. An appellate panel invalidated a special 
     admissions program at the Texas law school aimed at 
     increasing the number of black and Mexican-American students. 
     In doing so, the panel took the gratuitous, additional step 
     of declaring the Supreme Court's landmark 1978 affirmative 
     action decision in the so-called Bakke case no longer good 
     law. That case, involving a suit by a rejected white 
     applicant who sought entry to a California state medical 
     school, resulted in a ruling that barred the use of quotas in 
     affirmative action plans but permitted universities to use 
     race as a factor in choosing among applicants to serve the 
     ``compelling interest'' of creating a diverse student body.
       If Bakke is no longer good law, it is for the Supreme Court 
     to declare. But instead of grabbing the case to reassert 
     Bakke's sound principle, the justices found a way out in the 
     odd posture of the case. In an unusual one-paragraph opinion 
     that was also signed by Justice David Souter, Justice Ruth 
     Blader Ginsburg said that the Court was denying review 
     because the case did not actually present a live controversy. 
     The kind of two-track admissions system that inspired the 
     legal challenge is no longer used or defended by Texas, she 
     explained. Like most other colleges and universities, the 
     University of Texas Law School now uses a single applicant 
     pool, in which race is one factor to be considered among 
     others in choosing among the qualified.
       Justice Ginsburg's message, a welcome one, was that the 
     Court's refusal to hear the case should not be read as an 
     endorsement of the Fifth Circuit's analysis. But, in fact, 
     there was a remaining live controversy before the Court in 
     the Fifth Circuit's direction to a state's leading law school 
     to complete-direction to a state's leading law school to 
     completely excluded race as a factor in future admissions. 
     The shame is the Court declined to address it.
       Instead, the Court left behind a mess. Its refusal to hear 
     the case has put educational institutions in the three states 
     that make up the Fifth Circuit--Texas, Louisiana and 
     Mississippi--in a terrible spot. They could face punitive 
     damages if they fail to change their practices to conform to 
     an ill-considered ruling that may ultimately be judged an 
     incorrect statement of the law.
       Nervous educators elsewhere in the nation can find some 
     comfort at least in Justice Ginsburg's benign explanation. 
     Eventually, this equal rights battle will find its way back 
     to the Supreme Court. Meanwhile, it is premature to give up 
     on affirmative action programs still needed to blot out 
     historic racial bias and promote educational 
     diversity.

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