This Note examines the burden placed on educational institutions to justify race-conscious admissions programs in light of the Equal Protection Clause. First, this note reviews the facts of the case and the decision in Hopwood. Next, this note provides a background of the law applicable to race-conscious programs by examining: (1) University of California v. Bakke; (2) the underlying theories of interpreting the Fourteenth Amendment; (3) the strict scrutiny standard of review; and (4) the Fourth Circuit's 1994 decision to invalidate a university's race-conscious scholarship program in Podberesky v. Kirwan. Finally, this note analyzes the decision by the Fifth Circuit. The analysis reveals that the decision in Hopwood was overly broad in finding that race could never be used to achieve diversity. However, the analysis shows that the argument suggested by Hopwood that race should not be used as a proxy for diversity is provocative. The analysis explains the difficulty that race-conscious admissions programs have with sustaining constitutional validity, and suggests alternatives to using race in admissions.
Kevin Joyner, The Use of Race in the Admissions Programs of Higher Educational Institutions - A Violation of the Equal Protection Clause?, 19 Campbell L. Rev. 489 (1997).