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36 Washburn L.J. 179 (1996-1997)
Toward Equal Protection: A Review of Affirmative Action

handle is hein.journals/wasbur36 and id is 191 raw text is: Toward Equal Protection: A Review of Affirmative Action Robert D. Altl To pursue the concept of racial entitlement-even for the most admirable and benign of purposes-is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.' I. INTRODUCTION Affirmative action suffered three major defeats in 1996, which collectively signal the end of the preferential policies practiced for the last thirty years. First, in March the Fifth Circuit Court of Appeals ruled in the landmark case of Hopwood v. Texas2 that non-remedial racial preferences in college admissions-even to promote diversity-violate the equal protection guarantee of the Fourteenth Amendment. On the last day of the 1995 term, the Supreme Court decided not to hear Hopwood, letting stand the ruling of the Fifth Circuit.' This case has already had an enormous impact on higher education, ending non-remedial, race-based preferential admissions and scholarship programs in the Fifth Circuit. Described by defenders of the affirmative action status quo as the A- Bomb,4 the shockwaves of this decision led the Attorneys General of Colorado and Georgia to recommend eliminating race-conscious policies in their respective states, despite the fact that Hopwood is not directly binding outside of the Fifth Circuit.5 It has already been predicted, and t Director of Public Relations and Education, Center for Individual Rights (CIR). CIR has served since 1993 as co-counsel to Cheryl Hopwood and Douglas Wade Carvell in Hopwood v. Texas, and currently serves as co-counsel to defendant-intervenors, Californians Against Discrimination And Preferences, in the constitutional challenge of the California Civil Rights Initiative, also known as California Proposition 209. I would like to thank Jason Cooley, Caleb Williams, Hans Bader, Michael Greve, Christopher Flannery, and James McCament for their assistance at various stages of this article. Any errors which remain are my own. 1. Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2119 (1995) (Scalia, J., concurring in part and concurring in the judgment). 2. 78 F.3d 932 (5th Cir. 1996), cert. denied, 116 S. Ct. 2581 (1996). 3. Texas v. Hopwood, 116 S. Ct. 2581 (1996) (denying certiorari because petitioners challenged only the Fifth Circuit's rationale conceding that the discontinued admissions program was not constitutional). 4. Tom Morganthau & Ginny Carroll, The Backlash Wars, NEWSWEEK, Apr. 1, 1996, at 54 (quoting Mark Yudof, defendant in Hopwood and former dean of the University of Texas Law School). 5. Patrick Healy, California Colleges Will Stop Designing Some Classes for Specific Ethnic Groups, CHRON. HIGHER EDUC., July 26, 1996, at A26.

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