Reverse discrimination tops a busy week in courts

Robert Marquand

Thursday, March 21, 1996 | 11:59 a.m.

BOSTON -- IN a week filled with courtroom drama and legal news, the most far-reaching case, by far, involves a ruling to end college racial-diversity policies, handed down by a federal appeals court in New Orleans.

The federal court ruling, which states that preferential treatment of blacks and Hispanics is unconstitutional, startled the American higher-education community. If the US Supreme Court upholds the lower court's ruling, colleges and universities nationwide would be compelled to revamp diversity policies many hold dear as an educational benefit. For now, the law applies in Texas, Louisiana, and Mississippi.

The decision is the most powerful articulation of "reverse discrimination" since the high court's 1978 Bakke case. It came on behalf of four white students denied admission to the University of Texas Law School.

The unanimous decision of the three-member Fifth Circuit Court of Appeals would nullify the famous Bakke case, since the appeals court found that race should play no factor in University of California admissions. "To believe that a person's race controls his point of view is to stereotype him," the judges wrote.

In the Bakke decision, which has had little practical effect, the Supreme Court allowed that race and ethnicity were among several factors universities could use in shaping their admissions policies.

"It is hard to imagine the (high) court will stay away from this one," says Mark Tushnet, a dean of the Georgetown University Law School. The appeals court is "saying Bakke isn't good law anymore."

In a week that brought guilty verdicts in the high-profile murder trials of John Salvi and the Menendez brothers, the Supreme Court also weighed in with two noteworthy decisions. It upheld the 1990 census, saying the federal government was not obligated to adjust the census figures even if it agreed the population count in urban areas, where concentrations of minorities and the poor are high, was not accurate.

The case, brought by a coalition of cities including New York, resulted from 1990 census-adjustment techniques that a federal court ruled to be more accurate. The count is important because census figures are used to determine congressional reapportionment, the makeup of state legislatures, and government funding formulas. But the Clinton administration argued that Commerce Secretary Ron Brown could use "reasonable" discretion in following the count of his predecessor.

The court also further protected workers' pensions, ruling that employees had a right to sue employers who mislead them into foregoing their retirement benefits.