FOR the past 18 years, public colleges and universities in the United States have tried to craft admissions policies that open higher education to a wider diversity of students while not crossing the line into quotas.
That was the balance struck by the US Supreme Court's 1978 Bakke "reverse discrimination" ruling. It invalidated a racial-quota system at the University of California at Davis medical school, but left open the option of weighing race and ethnicity along with other factors in selecting students.
A three-judge panel of the US Court of Appeals for the Fifth Circuit has now leapt over Bakke, stating that race can play no part in the admissions policies of public higher education. At issue is an affirmative-action program at the University of Texas Law School.
That stance has a certain appeal: Simply eliminate any consideration of race. But is that the best way to resolve the dilemmas raised by affirmative action? More important, does it address, or merely brush aside, continuing concerns about equality of opportunity in America?
The four white applicants who sued the University of Texas felt cheated because their test scores surpassed those of some blacks and Hispanics who gained admission. The minority students, once in, may well carry the burden of being perceived as less qualified, or even less bright.
Such are the distortions and injustices that can accompany affirmative action. But it shouldn't be forgotten that this system evolved in response to the historic injustice of widespread, often officially sanctioned racial discrimination. Has that heavy legacy been lifted to the extent that "affirmative" policies in education are outdated?
Progress is evident. But the sad state of inner-city schools that serve mostly minority students and the extremely high poverty rate among African-Americans make it difficult to glibly answer "yes." That doesn't mean, however, that affirmative action shouldn't be scrutinized and adjusted.
More emphasis should be put on developing and recruiting qualified students than on making adjustments at the admissions gate.
Universities, along with other agencies, should commit themselves to strengthening the public elementary and secondary schools that prepare many minority students for work, college, and citizenship.
Few would argue with the goal of helping all Americans realize their full potential, or object to focusing resources where the need is greatest. A public commitment to such tasks as rebuilding decrepit urban schools is sadly lacking, however, and it's hard to see it emerging very soon in the present political climate. Without that commitment, "diversity," an ever-present facet of American life, is blocked from flowing more naturally into universities and professional schools.
Affirmative-action programs have allowed a significant number of blacks and Hispanics to break into law and other professions. Typically, these are otherwise qualified people, often from disadvantaged backgrounds, who were given a boost by their minority status. Their advancement benefits not only them, but the broader society. Not least, minority youngsters are given needed examples of success.
But today's politics make it all too clear that affirmative action itself carries a price - resentment against those perceived as favored. That resentment is heightened if race or ethnicity is seen to favor the offspring of well-off families in any minority group, who need no extra boost.
The final word - or something close to it - will come from the Supreme Court if it agrees to take the university's appeal of the Texas case. The best outcome would restate the ban on quotas, but allow admissions offices continued leeway to weigh individuals' background and experience and not just their transcripts and test scores.