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
exclusion.
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.
