Department of Education OCR Reviews Texas Higher Education

Top Story of 1997:

By Greg Moses

(August 20, 1997) Officials from the Office for Civil Rights at the U.S. Department of Education are undertaking a major review of higher education in Texas, to determine if the state is in compliance with its legal obligation “to eliminate all vestiges” of segregation.

The review is the first major study of Texas higher education undertaken by OCR since 1978-79. At that time, OCR concluded, “that the State of Texas has failed to eliminate the vestiges of its former de jure racially dual system of public higher education, a system that segregated blacks and whites” (Brown 1981, p.3).

Facing Fallout from Hopwood

The current investigation by OCR comes at a time when Texas colleges and universities have virtually dismantled their affirmative programs in the wake of a decision issued by a federal district court in West Texas. The Hopwood ruling, which was originally issued to settle a relatively narrow question about the use of affirmative action at the University of Texas Law School, has been extended by Texas policy-makers to encompass all affirmative action for students in Texas higher education.

In late July, the Texas Higher Education Coordinating Board reported that freshman minority enrollments in Fall 1997 would be substantially lower at the two largest university campuses in Texas–The University of Texas at Austin and Texas A&M University. The decrease affects African Americans and Hispanics, while Asian American enrollments will rise.

According to published figures, enrollment of African American freshmen will represent 2.3 percent of all freshmen at The University of Texas, and 2.6 percent at Texas A&M. According to the U.S. Census bureau, African Americans make up about 12 percent of the Texas population.

Hispanic freshmen will make up 12.6 percent of the entering class at the University of Texas, and 9.9 percent at Texas A&M. The census bureau reports that 27 percent of the Texas population is Hispanic.

OCR Cites Fordice

In a June 28 letter to Joseph Gourrier, who now serves as National Attorney General for the National Black Law Students Association, the OCR indicated that the review of Texas higher education will be guided by standards set by another federal court decision known as Fordice (Cantu 1997). The Fordice decision was issued in Mississippi as the result of a class action suit brought by African American students seeking desegregation.

Under guidelines set by the Fordice case, states are required to take affirmative action to “eliminate all vestiges of prior de jure [official and legal] segregation.” According to the OCR, Texas is one of six states being reviewed under the Fordice order.

The following criteria have been copied from one Fordice ruling posted on the web at Mississippi State University: “the issues in this cause focus on determining where unlawful barriers, if any, continue to persist which deter further desegregation of the system. Stated differently, in this context, the court must identify traceable practices and policies from the de jure period that discourage or prevent blacks from attending the HWIs [Historically White Institutions] or, conversely, whites from attending the HBIs [Historically Black Institutions].”

Fordice or Hopwood?

The proposed review by the OCR brings to a head the policy confusion caused by the conflicting criteria of the Hopwood and Fordice cases. The Hopwood ruling assumes that “officially sanctioned discrimination” ended in 1964, whereas the Fordice ruling places the burden of proof upon certain states to prove that “vestiges” of such discrimination have indeed been eliminated (see Gourrier 1997, p.1).

The OCR appears to be adopting Fordice criteria.

Does the dismantling of affirmative action count as a traceable practice or policy that would discourage integration? Under what conditions, if any, would OCR ask for reinstatement of affirmative action in Texas higher education?

In an August 20 letter to the Wall Street Journal, Assistant Secretary for Civil Rights Norma Cantu explained that the Department of Education supports affirmative action in education to achieve diversity or to remedy the effects of past discrimination.” However, continued Cantu, “except in those situations where it may be necessary to remedy the effects of discrimination, we have never suggested in California, Texas, or anywhere that affirmative action is legally required or that cessation of such voluntary programs is, in itself, a form of discrimination.

“Upon completion of our compliance review, if we find that vestiges of discrimination continue to exist, we will take actions to remedy the violations,” said Cantu in the June 28 letter to Gourrier.

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