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           -