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'Bakke II' Case Renews Debate on Admissions


AUSTIN, Tex. — As dean of the University of Texas Law School, Mark G. Yudof faced a familiar concern that he called the "pool problem."

Highly competitive graduate and professional schools such as his were scouring the countryside for academically superior black and Latino students. But the pool of such students was shallow, at least as measured by grades and standard tests.

Texas solved that problem in a familiar way, by giving blacks and Mexican Americans a preference in the admissions process. Now its solution, challenged in the federal courts by a disappointed white student, has become central to the national debate over affirmative action.

The case, which will soon go before a federal appeals court in New Orleans, could overturn educational affirmative action plans nationwide. Its aftershocks could be felt in a host of other fields.

Both sides in the Texas case say they will appeal to the U.S. Supreme Court if they lose before the appeals court. And many legal experts say they believe that the high court is ready to take a critical look at affirmative action in higher education for the first time since the landmark 1978 ruling in the Allan Bakke case in California.

The Texas law school takes in 500 students each year. It admits applicants who on average score better than 85% of all college graduates who take the Law School Admissions Test and have a 3.5 college grade-point average.

In 1992, however, only 88 African Americans and 52 Mexican Americans in the entire nation sought admission to law school with those credentials. While Texas rates in the top 20 of the nation's 175 law schools, it stands well below Harvard University, Yale University, Stanford University, the University of Chicago, Columbia University, the University of Virginia, Duke University and UC Berkeley in its ability to lure top minority students.

Consequently, to meet its goal of a "diverse" class including nearly 100 blacks and Latinos, Texas must admit minority students from out of state with lesser academic qualifications, while rejecting higher-achieving white applicants who reside in Texas.

"That's the situation we are facing, and I think we have to be candid about it," Yudof, now the university provost, said in an interview. "To some extent, we are in a bidding war" for talented minority students.

Cheryl J. Hopwood believes that she is one of the casualties of that war.

Hopwood has had her share of hardships. Her father, a Vietnam War veteran, left home when she was a child. Her mother worked three jobs to support her family. She herself is raising a severely handicapped daughter.

As a college student, Hopwood paid her way by working at least 20 hours a week and still managed to attain a 3.8 grade-point average. Her LSAT score ranked her at the 83rd percentile. But in 1992, the Texas law school turned down her application without explanation.

But she thinks she knows why. Aided by a conservative legal organization, she filed a lawsuit contending that she was discriminated against because of her race.

"I thought I was disadvantaged too, but that didn't count for me," Hopwood said. Her case has been dubbed "Bakke II" in higher-education circles.

The Bakke case split the nine Supreme Court justices in 1978. On the one hand, they said the University of California had wrongly denied admission to a highly qualified white candidate through the use of racial quotas. On the other, they said, colleges could use race as a "plus factor" in favor of minority students as they sought to achieve diverse student bodies.

Ever since, college admissions officers have cited the Bakke case as justification for broad affirmative action efforts.

Lawyers for Hopwood said the Texas law school, like many other university programs, uses the kind of quota-like system that was condemned in the Bakke decision.

"They made race the predominant factor in admissions," said Michael McDonald, an attorney for the Center for Individual Rights, the conservative Washington, D.C.-based group that is financing Hopwood's suit. "This case is a perfect vehicle" for a re-examination of the Bakke decision "because it shines a light on practices that have become nearly universal in higher education."

In trial testimony last year, law school officials revealed that they routinely "color-coded" applications by the race or ethnic background of the students. While white, Asian and non-Mexican Latino students were evaluated by the regular admissions committee, African American and Mexican American applicants were put in a separate file. A single admissions officer reviewed them and decided who would be admitted.

Memos exchanged by admissions committee members also speak candidly about using "what is in essence a quota system" to obtain the right number of minority students.

"Without some sort of quota as a reference," one 1989 memo said, "virtually none" of the African American and Mexican American applicants would be admitted.

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