Lawsuit In Texas Turns Racial Justice On Its Head

CHERYL HOPWOOD has struggled most of her life to overcome adversity. Although her father died when she was young, she worked her way through college and became a certified public accountant. But when she decided to become a lawyer, Ms. Hopwood says she ran into an obstacle she could not surmount - racial bias.

This might be a typical story, except that Hopwood is white. She and three other plaintiffs are suing the University of Texas Law School for ``reverse discrimination.''

They charge that the law school's separate admissions requirements for black and Mexican-American applicants are unconstitutional.

The closely watched case was heard in June in federal district court in Austin, Texas, and a decision is expected in the next few weeks. The outcome could determine the future for affirmative-action policies put in place at universities two decades ago.

The case could also add fuel to a growing backlash against racial preferences.

``Prior to this case, I don't think people had an understanding of the degree and extent to which the standards differed for different races,'' says Michael Rosman, assistant general counsel at the Center for Individual Rights in Washington and a lawyer for the plaintiffs.

The University of Texas Law School application asks applicants to check one of six boxes identifying race and clearly states: ``Race/ethnicity may be one factor in the admissions decision.''

During the trial, the University of Texas admitted that when Hopwood applied to the law school, blacks competed only against other black applicants and Mexican-Americans competed only against themselves, while everyone else competed against one another. The law school changed that policy just weeks before the case went to trial.

``We did that, frankly, because the judge had expressed concern about those aspects of the plan,'' says Harry Reasoner, a lawyer for the university. ``We no longer will have a separate subcommittee of the main admissions committee focusing on minority admissions.''

As the premier public law school in a state where ethnic minorities make up 40 percent of the population, the University of Texas has an obligation to help train minority lawyers, Mr. Reasoner says. Several minority graduates of the law school are now political leaders in Texas; and Federico Pena, Clinton's secretary of transportation, is also a graduate.

``When a state has a history of discrimination against minorities, there is an affirmative duty to eliminate the effects of that discrimination,'' Reasoner says.

In recent years, the law school has kept a steady enrollment of 7 percent blacks and 11 percent Mexican-Americans in each entering class. Other minorities are not eligible for the affirmative-action program. ``In Texas, those are the two historically substantial minorities where we've had a history of discrimination in our public schools that call for a remedy,'' Reasoner explains.

The plaintiffs argue that this is a discriminatory quota system.

``We say that it doesn't matter whether you call it a quota, or a target, or a goal, if you're setting aside a certain number of seats for minorities, it's unconstitutional,'' Mr. Rosman says.

In 1978, the United States Supreme Court ruled 5 to 4 that the University of California violated Allan Bakke's rights when his application to medical school was denied because he is white.

``It was considered half a victory for Bakke and half a victory for affirmative action,'' says Reginald Wilson, a senior scholar at the American Council on Education in Washington. ``The Bakke case made it very clear that you can take race into consideration, but you cannot set aside a specific number of seats. The court will have to decide whether taking race into consideration automatically establishes a quota.''

The costs of affirmative action are acknowledged by both sides of this case. Yet they disagree about whether the costs are too high or worth bearing.

Without affirmative action, you would have ``tokenism,'' Reasoner warns. ``In the end, I think it's true that there is some cost to having affirmative action. But then you have to ask yourself: What would the cost be if the University of Texas had a lily-white law school? It seems to me that would be a far higher cost in a state that is 40 percent minority.''

No matter which way the judge rules, Mr. Wilson expects the case to end up before the Supreme Court.

``I don't believe that either a district or appeals court ruling will stand,'' he says. ``[Both sides are] going to challenge it no matter how it comes out.''