Texas educators seek clarification on Hopwood decision

Austin, Texas

As African American admissions at Texas’s elite
public universities go into a free-fall because of the Hopwood ruling,
a free-for-all has ensued over the interpretation of the court decision
that ended affirmative action in higher education in the state.

Conflicting legal interpretations, clarifications and legislative
attempts to undo Hopwood’s effect on minority admissions to state
colleges and universities have increased the acrimony and politics
surrounding the 1996 Fifth U.S. Circuit Court of Appeals ruling. Texas
Attorney General Dan Morales maintains that Hopwood bans the
consideration of race in admissions, financial aid, scholarships and
recruiting. Federal officials and critics argue that previous court
rulings to desegregate higher education and promote diversity still
apply to Texas.

As the political volleys fly across the campus at the University of
Texas at Austin, where the Hopwood case originated, administrators are
frustrated because African American undergraduate and law school
applicants for the fall semester have declined by 21 percent from last
year. White applicants declined by 14 percent, according to university
figures. This fall is to be the first semester in which students will
be admitted to state universities and colleges under court-mandated
race-neutral policies.

The War of Words

A new source of confusion emerged late last month when Norma Cantu,
assistant education secretary for the Office for Civil Rights, appeared
to back away from her warning to Texas not to place too much emphasis
on the Hopwood ruling. This reversal came after U.S. Senator Phil Gramm
(R-Texas) threatened to block Education Department (ED) funding. Gramm
accused Cantu of pursuing “a political agenda” for Texas higher
education after Cantu had strongly advised Texas to give the U.S.
Supreme Court’s Bakke decision precedence over Hopwood. In the 1978
Bakke decision — one of the first so-called reverse discrimination
cases — justices allowed race as a criterion in admissions in the
interest of diversity.

In a March letter to Morales, Cantu said Hopwood applied only to
the University of Texas (UT) law school, where four white applicants
challenged a former admissions policy, and that Texas universities
could still use affirmative action to cure discriminatory practices.

The letter also said, “On two occasions, I have offered to meet
with your office to ensure that public institutions of higher education
are receiving clear and comprehensive advice regarding the scope of the
Hopwood decision.”

But at a recent Texas Senate Education Committee hearing, Morales
accused Cantu of threatening to withhold about $2 billion in federal
aid for higher education in Texas.

“To the extent that the department is attempting to pressure or
intimidate our state to reimpose race preferences in our public
colleges or universities — in direct contradiction of a binding
federal court order — we are obligated to oppose those efforts with
the force I think is warranted,” Morales said.

The same week, twelve Texas state senators sent a letter to
President Bill Clinton that stated: “Our attorney general is incorrect
in his interpretation of the Fifth Circuit Court of Appeals decision in
the Ho wood case and Texas public universities have been incorrect in
extending that opinion far beyond the intended scope of the judgment.”

State Sen. Rodney Ellis (D-Houston) signed the letter and has corresponded with Cantu about Hopwood.

“I just read [Morales’s opinion] as an attempt to broaden his political base,” Ellis said.

However, in what press secretaries dubbed “clarifications,” both
Cantu and Morales appeared to have backed down from their earlier
positions. Morales maintained that he never said race could not be a
criterion in admissions in certain cases. In Cantu’s new letter
(published on page 20), she said that Texas schools should follow
Hopwood.

Cantu’s clarification likely will not sit well with many law
professors and those who believe other court rulings supersede Hopwood.
Recently, Barbara Bader Aldave, the dean of the St. Mary’s School of
Law in San Antonio, circulated a petition at state law schools that
said the U.S. Supreme Court’s decision in University of California
Regents v. Bakke was the binding law in Texas.

Aldave, who testified earlier this month before a Texas advisory
committee to the U.S. Commission on Civil Rights, said: “When a
jurisdiction has on its books two conflicting decisions, the decision
of the superior court prevails.”

“A Competitive Disadvantage”

And despite Morales’s clarification, many university administrators
believe that his opinion will leave the state at a national
disadvantage. They expect many of the state’s top minority students to
go elsewhere to continue their education. This threat to the expansion
of minority access to higher education is an important social and
economic issue, they maintain, because Blacks and Hispanics are
expected to be the majority of the state’s population in the next
century.

“Any institution caught between two government agencies is in a
very difficult situation,” said Dr. Ed Sharpe, vice president for
administration. “Our lawyer by statute [Morales] has given an
interpretation and we must follow it…. It’s not a case of picking and
choosing.”

Figures show that only five of the 791 applicants offered admission
to the Texas law school this fall are African American. Officials
expect to admit 1,000 students this fall. Last year, 65 African
Americans were admitted to the law school. And at Texas A&M
University in College Station, where Gramm once taught economics,
African American undergraduate applicants dropped by 15 percent from
last year, five times the decline of white applicants.

“We are at a competitive disadvantage,” Sharpe said. “Texas is being raided.”

Although the fall 1997 admissions figures represent a setback for
African Americans at the state’s premiere universities, Hopwood’s
effect at other public state universities and colleges in unclear.

In March, the Texas Higher Education Coordinating Board, which
oversees public colleges and universities, reported Blacks and
Hispanics accounted for a growing proportion of Texans in junior and
senior colleges, although they remained under-represented in higher
education.

In fall 1996, Blacks were approximately 9.14 percent of students
enrolled at state public universities, 10.23 percent of students at
community and technical colleges, and 4.3 percent of students at
health-related institutions. Those numbers showed less than a
percentage point increase over the previous year. African Americans are
about 12 percent of Texas’s population.

“Despite Hopwood, we must do whatever we can to provide educational
opportunities for all Texans,” said Kenneth Ashworth, former
Commissioner of Higher Education. “A substantial increase in access to
financial aid is, probably part of the answer as well. Also, we must
make sure that all of our students are aware of the multitude of higher
education opportunities that exist today — even after Hopwood.”

However, the legislature has not acted to increase financial aid
and may not pass bills that attempt to limit the effects of the Hopwood
ruling. That is why Morales’s critics welcome the education
department’s scrutiny of Texas’s higher education system.
Notwithstanding the Hopwood ruling, the department had planned to
examine Texas’s compliance with the 1992 U.S. Supreme Court decision in
United States v. Fordice, a Mississippi public higher education
desegregation case.

If federal officials find that Texas harbors vestiges of past
discrimination federal officials could require remedies under civil
rights laws, including affirmative action programs. Opponents of
Hopwood and Morales’s interpretation of it are pinning hopes of
sidestepping the ruling on the findings of education department
officials.

Meanwhile, Cheryl Hopwood, who initiated the case, and another
plaintiff are seeking $1.5 million each in damages from the University
of Texas Law School, saying that they could have earned that much as
lawyers had they been admitted to the law school.

The following is the text of the letter sent by the U.S. Department
of Education’s Office for Civil Rights to Texas Senator Rodney Ellis
clarifying a previous letter sent on March 18, 1997. (For the full text
of the previous letter, see Black Issues in Higher Education, April 3,
1997.)

April 11, 1997

Dear Senator Ellis:

I am writing by way of a follow-up to my letter to you of March 18,
1997, which responded to a series of question that you posed to the
Department of Education arising out of last year’s ruling by a panel of
the Fifth Circuit Court of Appeals in the Hopwood case. Hopwood v.
Texas, 78 F. 3d 932 (5th Cir.). I want to ensure that recent
mischaracterizations of my letter do not lead to a misunderstanding of
the answers I provided to you.

First, as I started in my March 18 letter, I recently wrote to
Governor Bush to inform him that, pursuant to Title VI of the 1964
Civil Rights Act — which forbids recipients of federal funds from
discriminating on the basis of race — the Office for Civil Rights
(OCR) presently is conducting a review of the Texas system of higher
education to ensure that Texas has eliminated all remnants of the
former de jure segregated system. This review is being conducted under
the standards set out by the Supreme Court in 1992 in the Fordice case
regarding the obligation of formerly segregated systems of higher
education to eliminate the vestiges of those old systems. United States
v. Fordice, 505 U.S. 717 (1992). The review process should take
approximately one year. At this point, OCR has not made any
determinations of the current obligations of Texas colleges and
universities to take remedial action, nor has it told Texas that it is
in danger of having its federal funds terminated.

Second, if at the end of its review OCR finds that there are
current effects of past discrimination in the Texas higher education
system in violation of Title VI, and if it is determined that the
discrimination cannot be remedied through race-neutral means, then
Texas would be required to take narrowly tailored affirmative action
measures to eliminate the vestiges of its discrimination. Such measures
would be consistent with the Fifth Circuit’s ruling in Hopwood, which
recognized that affirmative action by an institution may be warranted
in such circumstances in order to eliminate vestiges of that
institution’s own discrimination. 78 F.3d at 955 (discussing Fordice).
The Department of Education fully expects that Texas would seek
voluntarily to remedy any current effects of past discrimination that
are found.

Third, outside the Fifth Circuit, we believe that it’s permissible
for education institution that receives federal funds to consider race
in an appropriate manner in either its admissions or financial aid
programs in order to achieve a diverse student body, consistent with
Justice Powell’s opinion in the Supreme Court’s Bakke case. Regents of
the Univ. of California v. Bakke, 438 U.S. 265, 311-15 (1978) (Powell,
J.). In addition, outside the Fifth Circuit, we believe that it is
permissible for a state institution to consider race in an appropriate
manner in admissions or financial aid programs in order to remedy past
discrimination in State educational systems.

Fourth, I want to bring to your attention recent correspondence
from the Acting Solicitor General on the effect of the Hopwood
decision….As that correspondence indicates, the Hopwood panel
decision prohibits institutions in the Fifth Circuit from engaging in
race-conscious affirmative action in the admissions process that is
designed either to achieve a diverse student body or to counter the
present effects of past discrimination that the institution itself did
not cause. Absent further legal developments within the Fifth Circuit
or at the Supreme Court, the federal government would not require or
encourage any institution in the Fifth Circuit that receives federal
funds engage in race-conscious affirmative action that is inconsistent
with the prohibitions set forth by the Hopwood panel.

Fifth, the United States continues to believe that the Hopwood
panel was wrong in its rejection of Justice Powell’s Bakke opinion and
in its narrow interpretation of the permissible remedial predicates for
affirmative action. In an appropriate case, we would urge the en banc
Fifth Circuit or the Supreme Court to overturn the panel decision.

I hope that this letter is of assistance to you and that it dispels
any confusion that may have arisen from my March 18 letter. In closing,
let me reiterate that Texas higher education officials have been
cordial and cooperative during the initial phases of OCR’s review, and
I fully expect them to take appropriate remedial measures if any
discriminatory vestiges are found at the end of the review.

Sincerely, Norma V. Canti Assistant Secretary Office for Civil Rights

Racial and Ethnic Backgrounds of Applicants and Admittees to the
University of Texas at Austin Freshman Class and Admittees to UT Austin
School of Law, 1996-97

Total Total Percent(%)
1996 1997 1996

FRESHMAN APPLICANTS
Anglo 10,388 8,843 62.0
African American 766 583
Hispanic 2,418 1,878 14.4
Asian 2,291 2,119 13.7
American Indian 113 59 0.7
Other 772 1,007 4.6
Total 16,748 14,489 100.0

FRESHMAN ADMITTEES
Anglo 6,854 7,140 65.5
African American 421 314 4.0
Hispanic 1,568 1,333 15.0
Asian 1,553 1,715 14.8
American Indians 59 45 0.6
Other 4 104 0.0
Total 10,459 10,651 100.0

LAW ADMITTEES (80% Complete)
Anglo 841 674 76.1
African American 65 5 5.9
Hispanic 70 18 6.3
Asian 93 75 8.4
American Indians 11 7 1.0
Other 25 12 2.3
Total 1,105 791 100.0

Percent(%) Ratio
1997 1997/1996
FRESHMAN APPLICANTS
Anglo 61.0 98.4
African American 4.0 88.0
Hispanic 13.0 89.8
Asian 14.6 106.9
American Indian 0.4 60.4
Other 7.0 150.8
Total 100.0 -

FRESHMAN ADMITTEES
Anglo 67.0 102.3
African American 2.9 73.2
Hispanic 12.5 83.5
Asian 16.1 108.4
American Indians 0.4 74.9
Other 1.0 255.1
Total 100.0 -

LAW ADMITTEES (80% Complete)
Anglo 85.2 112.0
African American 0.6 10.7
Hispanic 2.3 35.9
Asian 9.5 112.7
American Indians 0.9 88.9
Other 1.5 67.1
Total 100.0 -

COPYRIGHT 1997 Cox, Matthews & Associates



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