Two Views on Hopwood
Texas Attorney General John Cornyn’s Opinion — 1999
Dear Sen. (Bill) Ratliff:
You ask whether public institutions of higher education in the state of Texas are precluded under the court’s decision in Hopwood v. Texas, from considering race or ethnicity in decisions regarding student financial assistance. This office considered a similar question and rendered an opinion in early 1997, concluding that Hopwood precluded state universities from considering race as a factor in any aspect of measuring or awarding higher education benefits, including admissions, financial aid, recruiting and retention.
We caution that the law concerning the consideration of race in higher education programs is in flux and is likely to remain so in the near future. As you know, the question of the state’s higher education institutions’ authority to consider race as a factor in their admissions programs currently is pending before the 5th U.S. Circuit Court of Appeals in Hopwood v. Texas. We hope the 5th Circuit will take the current round of Hopwood litigation en banc and give some additional guidance and clarification in this area of the law, but only the U.S. Supreme Court can resolve these sensitive issues with any degree of certainty. Absent clear guidance from the high court, we think it inadvisable to reach broad conclusions on what may or may not be permitted under Hopwood on matters other than admissions. Because this office’s prior opinion on the subject does just that, we withdraw it. We advise state universities in Texas to await a resolution of Hopwood in the 5th Circuit or the U.S. Supreme Court before restructuring or adopting new procedures for their financial aidprograms.
Texas Attorney General Dan Morales’ Opinion — 1997
Dear Chancellor (William) Hobby:
We have received your opinion request dated Jan. 15 in which you ask various questions concerning the specific effect of the 5th U.S. Circuit Court of Appeals decision in Hopwood v. Texas. …
You … ask whether privately donated, race-restricted scholarships are impacted by Hopwood. … We can say generally that the more involved the university is in administering the program, such as choosing the scholarship recipients or managing the scholarship fund … the higher the probability that a court would imbue the scholarship program with the color of state action. …
If state action exists, then in order to pass constitutional muster, the program must be justified by findings establishing that: 1. Either your institution has discriminated in the not-too-distant past against the racial groups benefited by the preference or that your institution has been a passive participant in acts of private discrimination by specific private actors against the benefited racial groups. 2. There exist present effects of the past discrimination that are not due to societal discrimination. 3. The scholarship program is narrowly tailored to remedy those specifically identified present effects. Narrow tailoring requires that the program be aimed only at the racial groups that were the targets of the past discrimination and that the program last only for as long as necessary to eradicate the present effects of the past discrimination.
You also ask about an institutionally designed, race-restricted internship program. The federal government bears the responsibility of justifying such a racial preference.
Finally, Hopwood does not affect your institution’s ability to collect and report information from institutions regarding minority participation in higher education in Texas. The act of collecting data does not confer a benefit or a burden on any one race.
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