Jan. 11, 2004
One Month Later,
We are Still Surprised and
Confused:
It is Time for the Public to be Shown
Why and How the Recommendation
Was Formulated to Abolish Affirmative Action
At College Station and
Galveston
By Greg
Moses
https://texascivilrightsreview.org/phpnuke
In light of the Dec.5, 2003
announcement by officials of the Texas A&M University System that affirmative action would be suspended
in the admissions process, questions might be asked. At what point did Texas A&M formulate its
strategic decision to abandon affirmative action, and what sorts of considerations were given what
measures of weight? The surprising nature of the Texas A&M announcement is itself already an
indictment of sorts, because it counts as evidence that neither state lawmakers, civil rights groups,
nor citizens were given fair warning that such an important policy reversal was in the works.
An examination of the most prominent documents relating to diversity and admissions
offers no warnings that Texas A&M would be considering such an important reversal of policy. In fact,
the documents pledge with exuberant language that all available legal and constitutional means would be
employed by policy makers in Texas to improve admissions performance.
Affirmative action
in admissions was voluntarily adopted by the Texas A&M Board of Regents on Dec. 5, 1980, as a way to
show that Texas A&M would conduct itself in “good faith” during the coming years of de-segregation.
And when Texas A&M was forced to suspend affirmative action during the Hopwood challenge, internal
memos indicated that the change was not a welcome one for university administrators.
Wrote Provost Ronald G. Douglas on Aug. 7, 1996: “reluctantly, we must change a system
which was working.” In language that expressed disappointment with the Hopwood context, Douglas
explained that Texas A&M had, “developed an admissions process which we believed was fair and promoted
all our goals.” In light of recent statements by Pres. Gates that consideration of race tends to
prevent individualized evaluation of applicants, Douglas reported that “Texas A&M University has
considered a spectrum of individual characteristics beyond simply examining academic credentials”
(http://www.tamu.edu/univrel/aggiedaily/news/stories/archive/080796-2.html).
In a series
of crucial documents, expectations have been raised that Texas A&M would pursue vigorous exercise of
diversity policies. These expectations were outlined in a key report, “Vision 2020,” prepared
internally at the College Station campus and endorsed in 1999 by the Texas A&M Board of Regents. In
addition, the Texas Higher Education Coordinating Board, the Office of Governor, and the Office for
Civil Rights at the US Dept. of Education also have left the clear impression that everything would be
done to enhance diversity that was legally and constitutionally possible.
Furthermore,
an agreement between OCR and the Governor in the summer of 2000 explicitly promises that the state
would consult with OCR on a continuing basis for several more years as Texas seeks to conclude its
period of federal supervision for the de-segregation of higher education.
And finally,
during the Summer of 2003, in response to the Supreme Court’s approval of affirmative action in college
admissions, Texas A&M President Robert Gates promised that, “We are looking to see if the Supreme Court
decision offers us additional opportunities to assist in attracting a student body more representative
of all Texans” (http://www.tamu.edu/univrel/aggiedaily/news/stories/03/062703-
5.html).
At no time do we find any document or announcement that would prepare us for
the likelihood that widely-promulgated expectations would be abandoned.
Any review of
crucial documents would have to include the “Texas Commitments” that were made by Gov. George W. Bush
to the OCR in the Summer of 2000. The very first sentence of this commitment states that, “The State
of Texas is committed to ensuring equal access to high quality education for all of the State’s
citizens regardless of race, color, or national origin, and is aware of its affirmative duties
under Title VI of the Civil Rights Act of 1964” (italics added, pdf page 40, Fourth Texas Plan,
Appendix, http://www.thecb.state.tx.us/reports/pdf/0313.pdf).
The “Texas Commitments”
then quickly refer to the Constitutional context established by the Fordice ruling, whereby, “race
neutral policies alone are not sufficient to determine that a state has effectively discharged its
affirmative obligation to dismantle a formerly de jure
segregated system of higher education” (pdf
page 40, Fourth Texas Plan).
The early language of the “Texas Commitments” raises
expectations that “affirmative duties” will be seriously exercised by policy makers across the state of
Texas, and that something more than “race neutral policies” will be considered obligatory for states,
like Texas, who are working to “dismantle a formerly de jure segregated system of higher education.”
Nothing in this language so far hints that Texas will allow any of its campuses to
unilaterally withdraw affirmative action so long as it can be pursued to the fullest extent of the
law.
In fact, the “Texas Commitments” go on to promise that (take a deep breath), “when
the public agencies or institutions of higher education in Texas implement any of the measures or
operate any other programs relating to admissions or financial aid in a race-conscious manner, they
must operate in conformity with Title VI of the Civil Rights Act of 1964, and its implementing
regulations, applicable federal court case law, including Fordice, Regents of the University of
California v. Bakke, 438 U.S. 265 (1978), Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), and the U.S.
Department of Education’s published policy regarding race-targeted financial aid, 59 Federal Register
4271 (Feb. 23, 1994), so long as they are controlling law” (pdf page 42, Fourth Texas
Plan).
This sounds like a mouthful, but the paragraph conveys an expectation
nevertheless, that Texas will operate with a sensitivity to the total context of Constitutional case
law. Thus, when Hopwood was superseded by Grutter, and when the new legal environment was acknowledged
by Pres. Gates in a public release on June 27, 2003, citizens of Texas had a right to expect that the
use of affirmative action in admissions would be part of the state’s, the system’s, and the
university’s “affirmative duties” to do something more than pursue “race neutral policies.”
In Grutter v Bollinger, Justice Sandra Day O’Connor wrote a succinct and clear
vindication of affirmative action. Briefs in favor of affirmative action were filed by prestigious
corporations and institutions, including the United States Military. So when the Supreme Court did
what the US Military asked it to do, and vindicated affirmative action; once again, citizens of Texas
had every reason to expect that an institution with deep and lasting military ties, such as Texas A&M,
would show leadership in the field.
On June 27, 2003, Pres. Gates issued an official
statement that recognized the importance of the Grutter ruling, made reference to Texas A&M’s “Vision
2020” plan, and said, “We are looking to see if the Supreme Court decision offers us additional
opportunities to assist in attracting a student body more representative of all Texans”
(http://www.tamu.edu/univrel/aggiedaily/news/stories/03/062703-5.html).
When Pres. Gates
publicly announced that he was seeking “additional opportunities”
in the wake of a Constitutional
vindication of affirmative action, what sort of expectations was he raising in the minds of the
citizens of
Texas? The plain language of his message was clear. Texas A&M University will be doing
more, not less. There was no hint in his public statement that his quest for “additional
opportunities” would culminate five months later in his recommendation to abolish affirmative action in
the admissions process.
On Dec. 9, 2003, The Texas Civil Rights Review filed an open
records request seeking “complete minute-item supporting materials” that were provided to the Regents
when they were asked to adopt the Gates recommendation. The reply from the Texas A&M University System
on Jan. 7 indicates that no supporting rationale whatsoever was provided to the Regents. Only a few
sheets of paper were returned in reply to the Open Records request, and they only convey the bare-bones
outlines of “recommended changes.” A one-page summary of the “recommended changes,” marked “Item 16,
Exhibit D” simply states the bare features of certain academic requirements, and makes no mention of
the fact that the proposal will affect affirmative action. I don’t yet know what to make of the
meaning of “Exhibit D,” but I do know that I asked for the “complete minute-item supporting materials.”
If Exhibits A-C or E-Z also belong to Item 16, I am entitled to them by Texas law, no further
questions asked.
Between June 27 and Dec. 5, Texas A&M University translated “additional
opportunities” afforded by a recent Supreme Court decision into a historical rejection of affirmative
action. In light of the documents that raise our expectations toward more vigorous pursuit of the
state’s “affirmative duties”, the citizens of Texas have not yet been provided with the substantial
documents they have a right to expect, because such an important and counterintuitive transformation in
policy must surely be carefully documented somewhere in a form that is accessible to public review and
comment.
The “Vision 2020” plan that Pres. Gates references in his Jun. 27
announcement was developed by the Texas A&M community and adopted by the Regents on May 28, 1999
(http://www.tamu.edu/vision2020/culture/84.php). Imperative Number Six of this plan calls upon Texas
A&M to become “a leader in promoting diversity in its student body.” Two reasons are given that,
“require diversity”: first there is the intellectual demand that comes with the meaning of a
university; second there is a practical demand of material economy. Both of these demands were
underscored in O’Connor’s vindication of affirmative action. It would seem that O’Connor’s decision
matched perfectly with Texas A&M’s own self-adopted goals
(http://www.tamu.edu/vision2020/culture/43.php).
At crucial points in the documentary
record we find self-adopted promises and plans that seemed ready and waiting for the Supreme Court’s
vindication of affirmative action. Consider again the Governor’s “Texas Commitments” that were pledged
to OCR. In this case the italics were provided by Gov. Bush: “The State and its institutions are
committed to the continuing support, implementation, and,where possible, the augmentation of these
efforts to improve recruitment,retention, and success of other race students, faculty, and staff.”
The Governor’s language of the summer of 2000 sounds very much like the language used
by Pres. Gates in the summer of 2003. Where possible, efforts will be “augmented” with “additional
opportunities.” These are the expectations that were raised by Texas A&M’s own internal plan, the
Governor’s “Texas Commitments”, the O’Connor opinion, and the summer announcement by Pres.
Gates.
But these are not yet all the expectations that have been raised. In the “Texas
Commitments” of Gov. George W. Bush, the state promised to remain in close consultation with OCR during
the period of the Fourth Texas Plan, which runs at least through the 2006-2007 biennial budget:
“Because the State and OCR recognize that the affected universities’ governing boards will play an
important role in implementation, the universities’ governing boards, which will continue to be
composed of outstanding members, will fulfill their constitutional and statutory duties in this regard
and the State will assist, as necessary, the governing boards in effectively carrying out the
agreement. The State and OCR will continue to collaborate during the monitoring and implementation
period of the final State plan until implementation is complete” (pdf page 48, Fourth Texas
Plan).
Again, the language is plain. The Governor promises that Regents will work in
collaboration with the Governor and the OCR as they implement the final stages of de-segregation in
Texas. Surely this means that if the Texas A&M University System Board of Regents is considering a
surprising policy that would eliminate affirmative action so shortly after the Supreme Court affirms
it, then consultation is called for.
The citizens of Texas have not been provided with
any evidence that the “Texas Commitments” have been kept. Where is the documentary evidence of the
Regents’ consultation with the Governor? Where is the correspondence with OCR?
In the
end, citizens of the state of Texas have two reasons to be surprised and two legitimate demands for
public accountability. One the one hand, Texas citizens have a right to be surprised that a University
President’s pledge to seek “additional opportunities” in the wake of the O’Connor opinion turned out to
be a recommendation to abolish affirmative action in admissions. Along with this surprise, the
citizens of Texas also have a right to view and discuss any intervening documentation that would
support such a surprising result.
Finally, the citizens of Texas have a right to be
surprised that the Regents would adopt such a policy in close collaboration with the Governor and OCR.
But if the Regents did NOT collaborate with the Governor and OCR, then the citizens of Texas have a
right to be surprised that the Regents acted unilaterally, in violation of the “Texas Commitments” made
by Gov. George W. Bush. Along with this surprise comes a right. The citizens of Texas have a right to
view and discuss any correspondence that would help us to understand how the Regents, the Governor, and
the OCR collaborated on this particular “implementation” of de-segregation in Texas. If there is no
such documentation, the citizens of Texas have a right to see the Regent’s policy rescinded
immediately, along with the resignation of the Chairman of the Board of Regents.
As an
afterthought, I think about the list of Fortune 500 companies who rushed into court in support of
affirmative action in Michigan. They argued that practical realities of the business world made
affirmative action a wise policy for higher education. So we have another question on our hands.
What’s up with the Chairman and CEO of Clear Channel? Why is Lowry Mays, who is chair of Clear Channel
and the Texas A&M University System, using his significant political clout to implement a reversal that
other corporate leaders would ill advise? I think we need to hear from him, too.
Texas Civil Rights Review 