When University of Texas law professor Lino Graglia said publicly that black and Mexican American students are not “academically competitive” with white students at elite universities, there descended on him a firestorm of rage and contempt. The extent of student anger is evident in the photograph accompanying this column, but most of the faculty and administration–along with Mexican American legislators–were just as furious.
The anger, however, went deeper than Graglia. In March 1996, the University of Texas had been stunned by the Fifth Circuit Court of Appeals’s decision (Hopwood v. State of Texas), which ruled that the university’s law school could no longer use race as a factor in admissions.
If left unreviewed by a superior court, that decision would eliminate all affirmative action admission programs in higher education within the Fifth Circuit.
The University of Texas, which had a great social and emotional investment in its affirmative action program, appealed to the Supreme Court of the United States, which refused to review the Fifth Circuit’s decision. That didn’t mean the High Court necessarily agreed with the abolition of racial preferences in the law school. It meant that the Court was not ready to decide the merits of that particular issue in the case as presented. So the Fifth Circuit decision applies only to Texas, Louisiana, and Mississippi–the states covered by the Fifth Circuit.
I knew something of the affirmative action program at the law school even before the court case. An official of the university told me about it, and I was surprised that all these legal scholars had so carelessly violated the ruling in Bakke, the Supreme Court’s precedent in affirmative action cases on the college level.
In Bakke v. Regents of the University of California (1978), the Court was divided four to four on the issue of affirmative action. Lewis Powell cast the deciding vote, and his opinion influenced graduate schools across the country in their affirmative action practices.
For the first time in the Court’s history, Powell said that race could be an element in admissions decisions, but race could not be the sole or determining factor. Race would be a “plus” on an individualized–not a collective–basis. It would be considered the same way as admissions offices have taken into account where an applicant comes from (colleges want geographic diversity) or a special skill (like musical ability).
But there were to be no quotas–no set number of blacks or Mexican Americans who had to be part of the entering class. Furthermore, the admissions process could not “insulate individuals from comparison with all other candidates for the available seats.”
That is, there could not be an utterly separate process for black applicants by which they would not be compared for admittance with the applicant pool as a whole.
The University of Texas ignored Bakke. The law school’s goal was to have an entering class that would be 5 per cent black and 10 per cent Mexican American. Those are quotas. And quotas are of dubious constitutionality. Actually, to the current Supreme Court, quotas in college admissions are unacceptable.
Furthermore, minority applicants at the Texas law school were reviewed by special minority admissions committees that made recommendations. This meant–contrary to Bakke–that the minority applicants were not judged as part of the whole pool, but were part of a segregated evaluation process.
It was a bad case to bring before the federal courts. I was surprised that the NAACP Legal Defense Fund–a group of unusually skilled and committed lawyers–would support so weak a case. It doesn’t help the cause of equality to back highly vulnerable cases. If the High Court had actually reviewed Hopwood and decided against the University of Texas, the factor of race in admissions would have been ended in every state in the union.
The white plaintiffs in Hopwood–represented by the Center for Individual Rights in Washington–were rejected when they applied in 1992. In that year at the University of Texas–according to The Chronicle of Higher Education–“36 of the 43 Hispanic Texans admitted to the law school had lower index scores (a combination of LSATs and grades) than all the white plaintiffs. Also, 16 of the 18 black Texans had lower scores than the whites who had been rejected.”
As Michael Greve of the Center for Individual Rights pointed out in the Fall/Winter 1996 Pace Law Review, “It is inaccurate to say that race is just one factor in these decisions when someone who is black and has a certain score is almost automatically in–and someone who is white and has that same (or a higher score) is automatically out.”
The case gets its name from plaintiff Cheryl Hopwood, who grew up in a working-class family and has never known anything but hard work to survive economically. She has a three-year-old daughter, Tara, born with cerebral palsy and a rare muscular disease.
While her case was still in the courts, Hopwood told Rolling Stone that “the law school discriminated against me. It gave my spot to a minority student because I happened to be white.” The constitutional thrust of her case was that she had been denied equal protection of the laws.
A frequent black argument is that blacks cannot discriminate against whites because you have to be in power to be able to discriminate. But Cheryl Hopwood was not discriminated against by blacks. The prejudice that kept her out of the law school was that of the state of Texas and the University of Texas.
University of Texas law professor Lino Graglia was delighted with the Fifth Circuit decision, having predicted that the law school’s grouping of applicants into “racial pools” was open to constitutional attack. This, of course, did not endear him to many students–white, black, and Mexican American–at the university.
During the current term of the Supreme Court, another very weak case–Piscataway Township Board of Education v. Sharon Taxman–is likely to do great damage to affirmative action hiring practices. (A white teacher was laid off in favor of a black teacher when both were equally qualified. Race was the only factor in the decision.) This lemon was pushed by Deval Patrick, a former assistant attorney general of the United States, and our president, who used to teach constitutional law. The case lost in the Third Circuit, and it will lose again in the High Court.