Did Texas Circumvent its own Civil Rights Obligations?

By Greg Moses

One week after the Texas A&M University Board of Regents officially ended affirmative action in admissions, a crucial question remains unanswered. In the process of eliminating affirmative action at Texas A&M, did state officials circumvent a 22-year-old promise to practice affirmative action as a civil right?

Texas made a promise to adopt affirmative action in college admissions during 1981 civil rights negotiations with the US Department of Education. In 1978, the DOE’s Office for Civil Rights began an investigation of higher education in Texas, and their conclusions demanded some action.

Rather than face the prospect of being ordered to desegregate its colleges and universities, Texas promised to undertake its own plan of integration. Part of that plan included the promise to undertake affirmative action.

Since 1981, the state of Texas has remained under the supervision of OCR, and a total of four plans for desegregation have been negotiated and approved. Today, Texas is still one of the states under OCR supervision as evidenced by the following passage from the OCR annual report of 2002:

“In addition to Maryland and Virginia, OCR continues to monitor the implementation of its higher education agreements with five other states, including Florida, Kentucky, Ohio, Texas and Pennsylvania.”

To date, no public official or university administrator has addressed the question of the state’s obligations to the OCR. And neither the OCR Dallas office nor the Texas Higher Education Coordinating Board responded to voice mail questions yesterday.

News reports generally characterized the Texas governor as being aloof from the decision to suspend affirmative action in admissions. But how can the Governor keep a distance from a process that alters the state’s prior commitments to a federal office of civil rights?

One Texas A&M Regent, attorney Bill Jones of Austin, recently served as general counsel to the Governor of Texas. So it is difficult to believe that parties to the Texas A&M policy were not aware of the state’s civil rights obligations. In fact, one would have to presume that state authorities, including the general counsels of the Governor and the Chairman of the Board of Regents, were very much aware that civil rights laws were being tampered with.

Apparently, the university’s stress on terms of “diversity” also helped to portray the new policy as something that had nothing to do with Civil Rights. Several phone calls to state offices and legal activists yesterday revealed that there is generally a very low level of awareness in Texas, even among public officials, that affirmative action was adopted in Texas as a “civil right.”

Evidence to date suggests the following logical alternatives. Either (1) the state of Texas took no steps to re-negotiate its commitments with OCR prior to the Texas A&M decision or (2) re-negotiations between state and federal officials were conducted behind the usual screen of oblivion that characterizes the lawful management of civil rights in Texas.

Therefore, either the state willfully ignored, and thereby violated its prior promises to OCR or a deal was cut without any opportunity for democratic intervention by affected classes or elected public officials.

In light of the evidence that has so far been presented by public officials and university administrators, the Texas A&M decision and its justifications clearly disregard the state’s own promises, made in 1981, to pursue affirmative action as a civil right until such time as the vestiges of segregation have been eliminated.

Under cover of the rhetoric of “diversity” it appears that Texas A&M has become the first public institution of higher education under OCR supervision to set its own terms of civil rights compliance. Why this should pass for normal tells us something about the civil rights climate today.

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