Compounding the uncertainties about the use of race in college admissions and scholarships, the United States Department of Education has warned Texas officials that the state could lose federal higher education funds unless it maintains affirmative-action programs in its university system -- programs the Texas attorney general says are illegal under a groundbreaking federal court ruling.
In a letter March 18, the department's Office of Civil Rights told Texas officials they must
aggressively take steps such as affirmative action to attract minorities or risk losing $500 million
in student scholarships, work-study programs and research grants.
The education department's statement directly contradicts Texas Attorney General Dan
Morales's directive that the decision in the Hopwood reverse-discrimination case has the effect of
barring any use of race in admissions and scholarships at state colleges and universities.
In the Hopwood case, a three-judge panel said that affirmative action as approved by the
Supreme Court in the landmark 1978 Bakke decision was no longer permissible.
Experts say state officials are highly unlikely to risk legal sanctions from the federal court by
ignoring the attorney general's interpretation of the case.
Still, the conflicting directives are the clearest display of the nation's widespread uncertainty
about what the law allows for affirmative action and what further guidance will be coming from
the courts.
Lawsuits in Washington and Georgia have the potential to become the next major tests of
affirmative action. Ballot initiatives banning affirmative action are being proposed in several
states including Florida, Washington, Colorado and Ohio.
In the other direction, two civil rights groups have filed complaints challenging the decision of
the California Board of Regents to bar affirmative action in hiring and admissions at public
colleges and universities.
"What's needed is some authoritative statement by the Supreme Court of where Bakke stands,"
said Samuel Issacharoff, a University of Texas law professor and one of the attorneys for the
university in the Hopwood case. "One of the ironies of the situation is that until Hopwood came
along Bakke stood in a vacuum. Bakke came in 1978 and there's been no interpretive case law
since then."
"I can't think of any other area of law Issacharoff added, "where there's been one major Supreme
Court decision that's stood by itself for 25 years and then a lower court comes along as says it's to
be disregarded."
In fact, while officials for the attorney general's office in Texas disagree with the education
department's interpretation of Hopwood, Ron Dusek, a spokesman for Morales, said the
conflicting directives could provide an avenue for further court review.
The Texas case stems from a lawsuit filed in 1992 by Cheryl Hopwood and three other white
law-school applicants at the University of Texas. They asserted that they were denied admission
because affirmative action policies gave unfair preferences to less-qualified, minority applicants.
The three-judge panel, by the 5th U.S. Circuit Court of Appeals in New Orleans, shook the
academic world last March by ruling not only that the law school's admissions policies were
illegal but that the the Supreme Court's ruling in the 1978 Bakke reverse discrimination case was
no longer valid.
The Bakke decision said schools could not adopt racial quotas but race could be used as one of
several factors in admissions. The 5th circuit ruling said the law school "may not use race as a
factor" in admissions, "even for the wholesome purpose of correcting perceived racial imbalance
in the student body."
But the decisive language of the ruling has not been affirmed elsewhere. Instead, the U.S.
Supreme Court let the ruling stand, leaving it in effect only in the 5th Circuit. But even the two
other states covered by the 5th Circuit, Louisiana and Mississippi, are under court orders to
further desegregate their schools and have not adopted the strict interpretation of Hopwood being
used in Texas.
And even in Texas, despite Morales's directive, there is still disagreement over how far the
Hopwood ruling extends. Lawmakers have vowed to amend Hopwood though legislative action
and until Morales's directive, the University of Houston was continuing some race-based
scholarships after other state universities had decided they were not permitted.
The education department's stance is the latest wrinkle. It was offered in response to a letter
from Texas legislators asking for an interpretation of Hopwood. It is also part of a review of
progress toward desegregation in six states first announced in 1994.
In a letter to Texas legislators, Norma Cantu, head of the department of education's office of
civil rights, said the Hopwood decision applies only to admissions programs used by the law
school at the time the suit was filed.
The old policy of separate application tracks for different races is no longer in effect, and both
sides agree it was not permissible.
Instead, Ms. Cantu said, under the terms of the 1992 Ayers v. Fordice ruling in Mississippi,
Texas is required to continue to root out current discriminatory practices and the vestiges of past
discrimination and make its campuses more accessible to minorities.
Not only can race be used as a factor in admissions, universities "have a clear legal obligation to
do so to remedy current discrimination or the effects of past discrimination," Ms. Cantu's letter
said.
"The Texas Attorney General's office has interpreted the 5th Circuit decision much more broadly
than necessary," Ms. Cantu said in a telephone interview.
"Unless the facts are identical to those in place at the time at the University of Texas Law
School, universities may use appropriate affirmative action."
Ms. Cantu said she hoped to meet with Texas officials to help craft "a more reasoned reading of
the 5th Circuit decision that would permit the universities to continue appropriate use of
affirmative action."
Critics of affirmative action said Ms. Cantu's statement reflected the degree to which the Clinton
administration remains doggedly committed to affirmative action no matter what the courts say.
"It seems to me this is an outright flouting of very clear Supreme Court precedent," said Clint
Bolick, litigation director of the Institute for Justice, a conservative public-interest legal
organization. "This adminisrtration has not found a preference policy it will not abide."
Meanwhile, officials in Texas said there was no way to comply with both sets of contrasting
directives.
"I can't imagine the University of Texas is going to undertake to ignore the 5th Circuit opinion
and the directive of the Attorney General of Texas," said Michael Sharlot, dean of the University
of Texas Law School.
"If the Department of Education's Office of Civil Rights seeks to require us to engage in
affirmative action," Sharlot said, "maybe we should let Ms. Cantu fight it out with them, and
we'll hold their coats."