IN 1991, NEW YORK TIMES columnist Tom Wicker published a book suggesting that Richard Nixon had, despite everything, been “one of us” — a liberal after all. Not even Wicker could ever have imagined that the day would come when liberals would attempt to rehabilitate George Wallace. But in a conservative era, liberals are in no position to be picky about the company they keep.
In March, the U.S. Court of Appeals for the Fifth Circuit told the University of Texas Law School that its affirmative action program had crossed the line from the pursuit of diversity into active reverse discrimination. The case wasn’t really a very close call. The school grouped applicants into separate racial categories bundled in color-coded envelopes, evaluated by different committees. Texas is a huge school, without time for the exquisitely refined admissions process of a Yale or Stanford.
No, applicants were admitted or rejected on the basis of their grades and LSAT scores — and the score that suffced to admit a member of a favored minority group would have consigned a white or Asian or, for that matter, Cuban-American applicant to the reject pile.
This was exactly the kind of crude quota-mongering that the U.S. Supreme Court forbade in 1977, and has continued to forbid ever since. In Hopwood v. Texas, the Fifth Circuit — the court responsible for many of the great civil-rights victories of the 1950s and 1960s — forcefully reminded Texas that whites as well as minorities are entitled to the equal protection of the law.
Appealing such an unromising case after so definitive a decision calls for more than ordinary legal talent. So the University of Texas hired itself one of the most ingenious constitutional lawyers in America, Harvard Law School’s Laurence Tribe, to ask the Supreme Court to review Hopwood. On April 30, Tribe and Texas attorney general Dan Morales filed a writ of certiorari — a formal application for review — with the high court.
Morales offered six reasons for overruling Hopwood, but one stands out. That is Reason Number Four, which would have brought a swell of recognition to the late governor of Alabama: “The court of appeals had no subject-matter jurisdiction to entertain an action against Texas and its offcials in clear derogation of the protections of traditional sovereign immunity contained in the Eleventh Amendment.” Which is to say, the constitutional sovereignty of the states bars citizens from suing them in federal court for racial discrimination. Welcome back to Alabama, circa 1962.
Constitutional law doesn’t usually invite humor, but you have to believe that Prof. Tribe and his interns were chortling hard as they hit the save key after typing in that argument. So they were all wrong, all the civil-rights cases? Linda Brown had no right to sue the Board of Education? Nicholas Katzenbach had no power to push George Wallace out of the schoolhouse door?
Well . . . not quite. In those cases, Tribe seems to think, it was perfectly acceptable to sue states without their consent. This case, though, is different. It’s not because Cheryl Hopwood and her fellow plaintiffs are white — perish the thought! It’s because the plaintiffs rested a portion of their case on Title VI of the 1964 Civil Rights Act, which forbids state institutions receiving federal funds to discriminate on grounds of race. And that bit of the act — a bit likely to inconvenience many state universities that admit applicants using racially lopsided procedures like those of the University of Texas — is the one bit, Tribe contends, that can’t be used against a sovereign state in federal court.
It’s an amazingly audacious argument. Let’s hope the Supreme Court does decide to grant Prof. Tribe his writ — if only so that we can all enjoy the sight of this famous advocate ending his oral argument with a thrilling new battle cry: “Reverse discrimination now! Reverse discrimination tomorrow! Reverse discrimination forever!”
by David Frum
