Opinion: Clarion Call

Va. Attorney General says universities can’t justify preferences for remediation

Clarion Call No. 154
Racial and ethnic preferences in admissions and scholarships at Virginia state public universities can no longer be justified on the basis of remedying past discrimination, according to a memorandum from the office of Virginia Attorney General.

The memo, written by State Solicitor William H. Hurd and dated April 22, was sent to all Virginia state universities. A recipient sent it to the Center for Equal Opportunity, which has published a series of reports on the use of racial and ethnic discrimination in Virginia state universities. CEO has placed the entire memo on its website, www.ceo.org.

“Any analysis of race-conscious measures by a public institution must begin with the 14th Amendment,” Hurd explains, “which provides that States shall not deny to any person ‘the equal protection of the laws.’ In interpreting this constitutional guarantee, the U.S. Supreme Court has ruled that any attempt by States to classify citizens based on race is inherently ‘suspect’ and is subject to ‘strict scrutiny’ by the court.” As Hurd explains, the strict-scrutiny test means that a program in question must “serve a compelling state interest” and “be narrowly tailored to further that interest.”

Hurd writes that “remediation — i.e., eliminating present effects of past discrimination — qualifies as a compelling state interest.” But a review of recent court rulings and Virginia’s recent attention to those matters leaves the office of attorney general “unaware of any facts or any credible legal theory that would support the use of race-conscious programs — for remedial purposes — at any of Virginia’s public institutions of higher education.”

Nevertheless, Hurd writes, there might be support for them for “diversity purposes,” although whether they might be narrowly tailored is a concern. As Hurd explains, support for that use is found in Justice Lewis Powell’s sole opinion in the landmark 1978 Supreme Court decision Regents of the University of California v. Bakke that diversity is a compelling interest and that universities may consider race among many other factors in making admissions decisions. The Fifth Circuit, however, in Hopwood v. Texas found otherwise. And in Tuttle v. Arlington County School Board the Fourth Circuit, which governs Virginia (and North Carolina), in Tuttle v. Arlington County School Board, wrote that “Although no other Justice joined the diversity portion of Powell’s concurrence, nothing in Bakke or subsequent Supreme Court decisions clearly forecloses the possibility that diversity may be a compelling interest.”

“It is not within the scope of this memorandum to analyze which argument is stronger, or to predict which way the Supreme Court or Fourth Circuit will ultimately rule,” Hurd writes. “This memorandum will simply assume, without deciding, that diversity may be a compelling government interest and will address those factors likely to affect whether race-based programs will be deemed narrowly tailored.”

Hurd suggests universities try to “identify measures that will promote diversity without engaging in racial discrimination,” and concludes by saying that the attorney general’s office was “prepared to work with institutions of higher education in identifying and evaluating race-neutral alternatives that promote genuine diversity.”

CEO president Linda Chavez called the memo “a giant step toward getting rid of the racial and ethnic discrimination that exists at too many Virginia state schools.” Nevertheless, she did criticize it for leaving open the possibility of discriminating under a diversity rationale. Chavez said Hurd “should have made it clear that such discrimination cannot be justified under any circumstances.”

The diversity justification “rests entirely on racial and ethnic stereotyping,” Chavez said. “It is wrong to assume that someone has a particular outlook or has had a certain set of life experiences just because of that person’s skin color or where his or her ancestors came from.”