THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Tuesday, July 2, 1996 TAG: 9607020292
SECTION: FRONT PAGE: A2 EDITION: FINAL
SOURCE: KNIGHT-RIDDER NEWSPAPERS
DATELINE: WASHINGTON LENGTH: 78 lines
Leaving legal clouds over the future of affirmative action in higher education, the Supreme Court Monday allowed public colleges and universities in three Southern states to be barred from considering race or national origin in student admissions.
The justices, refusing to hear objections from the Clinton administration and 10 states, left intact a federal appeals panel's ruling in March that the University of Texas Law School's affirmative action program amounted to unconstitutional discrimination against whites.
But because the court didn't issue a ruling of its own, it left no nationwide guidance on the current validity of its 1978 conclusion in the landmark Bakke case that colleges could consider race as one of many factors in an effort to obtain a diverse student body.
The Texas law school program, aimed at increasing the enrollment of blacks and Hispanics, was invalidated in Texas, Louisiana and Mississippi by a New Orleans-based panel of appellate judges that said Bakke was no longer valid law. That decision was unique among federal appeals courts.
Consideration of race to promote student diversity ``is no more rational applicants,'' declared the appeals panel, which consisted of two appointees of President Bush and one of President Reagan.
For almost two decades, hundreds of educational institutions throughout the United States, relying on the 5-4 Bakke decision, have used affirmative action to select students and grant financial aid.
That practice will continue in 47 states because ``the Bakke decision will continue to be in effect,'' said David Merkowitz, spokesman for the American Council on Education, which represents 1,600 public and private colleges and universities.
Affirmative action, among other factors, has helped young blacks reach the highest rate of participation in higher education in history, Merkowitz said. Council statistics for 1994 showed that 59 percent of African Americans 25 years of age or younger spent at least one year in college or were enrolled. Ten years earlier, the participation rate was 45 percent.
As a result of the Supreme Court's refusal to intervene, the appeals court ruling is certain to be cited in support of efforts to scrap similar affirmative action programs beyond the three states directly affected.
Justice Department lawyers said the lower court decision could also jeopardize affirmative action programs in private institutions in the three states if they receive federal assistance.
The decision ``has already created substantial confusion and upheaval among colleges and universities nationwide,'' the administration told the court. ``It also ... interferes with the federal government's efforts to obtain voluntary compliance by the states with their desegregation obligations.''
Theodore Shaw of the NAACP Legal Defense and Educational Fund said he did not expect a similar affirmative action case to reach the high court soon. Meanwhile, he said, ``affirmative action, while still under siege, is alive.''
The justices' action leaves the nation with no uniform, nationwide answer to some fundamental constitutional questions on affirmative action in higher education:
Can race or national origin be considered in public college admissions? Is diversity of the student body a sufficiently important governmental goal to justify such affirmative action?
Justice Ruth Bader Ginsburg, joined by David Souter, acknowledged that the issue was ``of great national importance.''
However, she said the disputed affirmative action program at the University of Texas Law School had been discontinued and replaced, leaving the justices with no current dispute to review. ILLUSTRATION: IN OTHER ACTION
The justices also:
Revived a free-speech challenge to Baltimore's prohibition on
billboard ads for cigarettes, telling a federal appeals court to
restudy its ruling upholding the ban.
Ruled that police generally do not need court warrants before
searching cars they reasonably believe are carrying narcotics.
Refused to revive Missouri's $100 to $300 caps on individual
campaign contributions to candidates for state and local political
offices.
KEYWORDS: SUPREME COURT by CNB