WASHINGTON — If the 5th Circuit Court of Appeals’ ruling in the matter of Hopwood vs. Texas is a body blow for affirmative action, minority advocates in higher education are trying hard not to show it.
“People are disquieted, but they are not panicking,” says Ted Shaw, deputy general counsel of the NAACP Legal Defense Fund (NAACP/LDF). “They are going to wait and see what the Supreme Court says.”
His statement came as the NAACP/LDF awaited word from the Supreme Court about whether it will review the 5th Circuit’s ruling to overturn affirmative action in the admissions process for University of Texas at Austin law school applicants.
In a March 18 ruling on Hopwood vs. State of Texas, a three-judge panel ruled that the University of Texas should not give preferred treatment to minority applicants to the public law school and declared unconstitutional the practice of racial preference in admissions.
The action by the 5th U.S. Circuit Court of Appeals applies only to Texas, Louisiana and Mississippi but, if upheld by the high court, would further unravel the fabric of affirmation action remedies now in widespread use throughout higher education.
The state of Texas and the NAACP/LDF, the nation’s chief nonprofit civil rights litigator, both requested a review by the Supreme Court.
Shaw’s characterization of the approach of supporters — and practitioners — of affirmative action suggests that they are taking a deliberate, carefully thought-out strategy for engaging what could be the climactic legal battle of the century over race.
“It is a deeply troubling opinion,” says Shaw. “It means that, at least within the 5th Circuit, race cannot be taken into account and that, for diversity purposes, you cannot consider race.”
Affirmative action advocates worry that, if the Supreme Court rules against Texas, it could lead to the fall of all consideration of race in higher education throughout the nation.
Yet, as race continues to dominate center stage among higher education issues, this latest action adds the highest hurdle so far to the course that African Americans and other minorities are following in the quest for equity.
Shaw and other litigators, along with the corps of higher education advocates, characterize Hopwood as a grave threat that has dominated strategy sessions.
But two months after the three-judge panel’s 2-to-1 ruling, the shape of the counter-assault remains unclear.
So far, despite, or because of, the high stakes, the response of affirmative action supporters appears driven by practicality, not passion.
The most audible element in the chorus of pragmatism is coming from the higher education lobby based here.
Jim Appleberry, president of the American Association of State Colleges and Universities, characterizes the response at this point as “not confrontational.” But, short of the kind of in-your-face tactics reminiscent of the 1960s and 1970s, people are fighting back in every possible legal way that they think they can use,” he says.
With the conservatives on the offensive, an aggressive counterattack is not a sound idea right now, he says. “If we come out that way, many people trying to would be discouraged. We’re trying to avoid the negative reaction and the backlash.”
That approach appears to be the path being followed by the education professionals who are on the front line of the minority advocacy troops.
At the leading edge of that front line is the American Association for Affirmative Action. Newly installed AAAA president Ruth Jones says the drive to achieve diversity in higher education, government-contract jobs and throughout private industry remains unabated.
“I don’t think as a result of the Hopwood case that anybody’s doing anything different,” she says.
Noting that the current regulations and practices to achieve affirmative action were set in motion by an executive order signed by President Lyndon Johnson in 1965, she asserts, “It’s still the law.”
She and other minority rights advocates acknowledge, though, that in the intervening period of nearly three decades the climate has chilled for ensuring broad access for all Americans to all the nation’s institutions and resources.
The Hopwood case is the latest manifestation of the machinery in motion to reverse what Lyndon Johnson set in motion. The high moral ground once occupied by civil rights advocates is now overshadowed by the apparatus orchestrated by a network of legislators, non-government organizations and individuals pushing the idea that affirmative action is an unconstitutional approach to racial equality.
Now on the defensive, Jones and others who promote affirmative action shy away from certain words in public.
“I don’t use the `Q’ word,” she says, referring to the term quotas.
“What we should have done as practitioners was to continue to educate the public as to what affirmative action is and is not. We failed to continue to talk about and study the economic effect of affirmative action on agencies and individuals,” she explains.
The Hopwood case amounts to a wake up call for affirmative action professionals, says Robert Ethridge, affirmative action officer at Emory University. “We have to look at what we do and why.”
“You can get isolated very easily if you don’t know when to hold them and when to fold `em,” he explains. “My philosophy is one of outlasting people.”
“We’re standing strong on our beliefs, knowing that the laws are realistic,” says University of Texas equity officer and AAAA member Alicia Silva Gray.
“We realize that there are a lot of ignorant individuals and that makes the job a little more difficult,” she says.
Part of the dilemma for the proaffirmative action sector is that the latest round of the battle comes at a time when their ranks are filled with newcomers.
A government official who has worked in this arena since it was conceived and now helps set affirmative action policy chronicled the evolution of affirmative action officers this way:
“The first wave of affirmative action officers were untutored in what was, at the time, virgin territory. They made up for it with zeal.
“The second group was made up of people who studied this stuff in college and brought an academic approach to it. But the third wave is made up of folks brought in to replace the first wave. They are more like bureaucrats,” he says.
At the top of the bureaucracy implementing affirmative action are the admissions officers. While they are covered by the mandate to achieve diversity, they are also the ones who have to safeguard a school’s image.
For them, the Hopwood case couldn’t have come at a worse time, says Wayne Becraft, executive director of the National Association of College Registrars and Admissions Officers.
The ruling came down at the peak of the admissions season for the coming school year. Admissions officers are now busy trying to figure out alternatives to the race-preference programs that are now in place throughout the academy.
The Hopwood ruling appears to conflict with previous Supreme Court rulings that endorsed, albeit narrowly, affirmative action, forcing the higher education bureaucracy to scramble for ways to (a) encourage diversity while (b) not mentioning race.
Already some ways of doing this are surfacing, One way is to simply blot out references to race on pamphlets advertising race-sensitive grants. Another method, being tried at some schools in the East, is to interview every applicant.
The experienced view is typified by Kathy Plante, affirmative action officer at Louisiana State University.
“Eventually we will be going through this whole thing all over again. Race is going to have to play a factor in higher education. It’s on a loop.”
Old hands in this struggle “were not surprised that the backlash came,” says AAAA president Jones.
Still, she says, “the backlash now is more centered around politics and economics rather than the social issues affirmative action was intended to address.”
Jones says that organizations such as the AAAA “were started to assist the practitioner and not to be advocates.” As the backlash evolved, she says, the “scope of the organizations didn’t expand to address what was coming down the road.”
Jones says that one of her primary tasks is to forge what she calls “strategic defense planning” to overcome the myths about affirmative action that opponents have hardened into conventional wisdom.
Her goal is to shift the organization away from what has become a procedural focus and move into the battlefield of ideas. She notes that the shift is coming a little late in the fight. But, she adds, “I don’t think it’s ever too late.”
COPYRIGHT 1996 Cox, Matthews & Associates
© Copyright 2005 by DiverseEducation.com