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Hopwood and Ayers v. Fordice: the beginning of the end? – legal implications of court rulings on desegregation in higher education

Over the years, courts have attempted to
leave education to the educators. But
with courts now taking the Hopwood
approach, colleges could find
themselves tangled in a legal web.

The Fifth Circuit in Hopwood said
that only the Texas legislature could
authorize an affirmative action
program and only after a legislative
finding of discrimination. This clearly
ignores Brown v. Board of Education
and Ayers v. Fordice.

The Hopwood court attempted to
distinguish U.S. & Ayers v. Fordice
from the issues before it, stating, “the
Fordice Court did not address in any way
a state’s active duty to counter the
present effects of past discrimination
that it did not cause.” However, this
does not justify the disingenuous
approach that the court took
— especially in light of Ayers v. Fordice.

The real question in Hopwood
must be framed by us within other
desegregation contexts. More
specifically, the issue must be framed in
terms of Title VI remedial obligation
flowing from the 1964 Civil Rights Act
and Adams v. Richardson. In the
Adams states, which are states that
previously had legislated systems of
segregation, the Office for Civil Rights
under the Department of Education
has primary jurisdiction and must
review all of the states’ systems
pursuant to Ayers v. Fordice.

The Fourteenth Amendment
extends at least to where Title VI
legislation, regulations and
administrative policy reach. Black
people have a constitutional right to be
free from racial discrimination and

Finally, we must argue the
Thirteenth Amendment — that
vestiges, not remnants, of slavery
remain; that races plus actual active
racial exclusionary policies remain. Ayers v.
Fordice applies to Hopwood. We
cannot allow Plessy v. Ferguson to
control the debate.

The “color-blind” approach to equal
protection jurisprudence is premised on
principles that are not applicable to
educational law and is educationally
unsound, it treats racial groups as if they
occupied the same status without the
slavery question being discussed. Black
people have been subordinated for
centuries because of race.

The strict
scrutiny standard used to protect
discrete and insular minorities from the
excesses of majority rule should apply
to policies that were developed to
remedy the effects to present and past
discrimination on a non-individualized
basis. Jim Crow-era segregation is
treated the same as remedial
classification used to dismantle the
vestiges of that era.

The real reason that the affirmative
action diversity debate cannot be won in
its present form is that Black public
colleges are not at the table or in the
discussion. It appears that many white
people want diversity on their own

In Ayers v. Fordice, good principles
were won, but strategies for years of
struggle are needed. Whether HBCUs are
educationally sound must be documented
within the context of their mission. The
ultimate question for Black public
colleges is whether or not Hopwood will
ultimately hurt the overall access
movement. The issue for traditionally
white institutions is, whether framed as
diversity or affirmative action, do Black
students have access to higher
education? Moreover, affirmative action
is voluntary and permissible in
appropriate circumstances while Title VI
is mandated and is the law.

It is my firm belief that Hopwood
has seen its best days if, and only if,
Black people use the Title VI tools and
desegregation remedies. Integration to
many majority race people means
closing all public Black colleges. The
issue being framed is that lower
admission standards are vestiges that
cause segregation. If you eliminate the
segregation by closing Black schools,
then the system would be all right.

Thus, the argument goes, integration
is a good thing because it prevents
marginal students from going to college
and it liquidates everything Black. This
argument ignores historical fact, culture
and its role in society, and
socio-economic facts Such as income, exposure
and capacity. Desegregation is a means
to a quality education, but it is not the
end result.

The end result is education
— not integration, segregation or
desegregation. So when we compare and
contrast Hopwood and Ayers, we start by
saying that all of the traditional court
remedies are alive and well in the Fifth
Circuit. Diversity and affirmative action
are played out in terms like other-race
scholarships, employment, financial aid
and admissions.

Hopwood cut off historical evidence.
Ayers expanded the concept of
traceability. Hopwood held that race
cannot be used to remedy imbalances.
Ayers said that it could be used in just
about every context. Hopwood
threatened punitive damages. Ayers
excluded their use. Finally, Ayers is
predicated on a U.S. Supreme Court case,
where Hopwood v. Texas is based on no
single Supreme Court case. Hopwood is
effectively overruled in the Fifth Circuit
because the last decision governs. This is
not to say that a district court cannot go
with Hopwood as precedent. Until the
U.S. Supreme Court of the Fifth Circuit
en banc resolves the conflict, courts have
a choice. Ayers is predicated on a U.S.
Supreme Court decision that applies
nationally. This gives it much more

Chambliss, lead attorney for the plaintiffs
in Ayers v. Fordice, is professor of law at
Texas Southern University.
(Editor’s note: In the state of Mississippi, the
Fifth Circuit court case of Avers v. Fordice is
referred to as the Ayers case. Elsewhere, it is
referred to as the Fordice case.)

COPYRIGHT 1997 Cox, Matthews & Associates

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