To begin Week Two of the legitimation crisis in civil rights that was precipitated by the Texas A&M Board of Regents, The Texas Civil Rights Review returns to the question of affirmative action as a civil right.
Summary: In 1980 the Texas A&M University Regents adopted affirmative action as a “good faith” commitment to civil rights. In 2000, Governor George W. Bush agreed that affirmative action would be pursued according to “controlling law.” With “controlling law” now back on the side of affirmative action in 2003, what gives the Regents the right to reverse their own “good faith” policy?
I have read with interest some of the weekend news reports that still fail to acknowledge certain basic facts, chief among them being that Texas is one of a few states that enjoys special status because the US Dept. of Education’s Office for Civil Rights has determined that the state exhibits vestiges of segregation.
This dimension of the question I am dismayed to see buried under language about “diversity” and “preferences.” In fact, crucial civil rights issues are being affected, and the people of Texas so far have not been given any explanation of the likely civil rights implications of the Texas A&M policy, from either the president, Board of Regents, Governor, or media reports.
To document the question more closely, here is a quote (copied and pasted) from the “Texas Commitment” to the Office of Civil Rights signed by Governor George W. Bush on May 11, 2000 and cited in the Fourth Texas Plan, p. 42 [a pdf version of the Fourth Texas Plan may be found at the following URL:
http://www.thecb.state.tx.us/reports/pdf/0313.pdf%5D
Here is what Governor George W. Bush promised:
“It is understood that 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.”
That is the verbatim clip.
After the overthrow of Hopwood, doesn’t “controlling law” indicate that affirmative action is a constitutional civil right, especially necessary under the textbook conditions presented by Texas A&M University?
In 1980, the Texas A&M Board of Regents voluntarily adopted a policy that included a “Commitment to Numerical Objectives.” Here’s what Texas A&M University System Chancellor said at the time:
“The adoption of this resolution by the Board will be the first official step taken by any governing board in Texas toward voluntary compliance; and, in my view, will go a long way toward excluding Texas from the list of states who are scheduled to receive letters of compliance from the Office of Civil Rights of the Department of Education. If we can adopt this resolution and begin its good faith implementation, in the company of other major colleges and universities in Texas, this action may well enable us to manage our own affairs in the carrying out of various desegregation activities”
Affirmative action, in other words, is the price that Texas A&M agreed to pay in order to maintain other freedoms in its so-called desegregation strategy. From where, suddenly, did the Texas A&M Board of Regents derive the freedom to de-segregate without affirmative action?
[For reference to the above document from Chancellor Frank Hubert please visit the html collection of the Texas Civil Rights review at: http://pages.prodigy.net/gmoses/tcrr/edudocs.htm#hubert80a%5D
It has not yet been made clear how the Texas A&M Board of Regents considered the special obligations that the school should respect as a party to commitments that it made in 1980 and that were recently renewed by the Governor in 2000.
So I restate the dilemma we face if we consider the decision by the Texas A&M Regents as a “civil rights” decision.
Either the Board of Regents did not consider the question of their civil rights obligations, and thereby disregarded their “good faith” civil rights commitment altogether, or the board acted with respect to some specific judgment, advice, or consent that has not been fully explained to the people of Texas.
Certainly, the statement issued by the Texas A&M President addresses many things, but it does not address the question of affirmative action as a commitment to “civil rights.”
In the absence of any discussion whatsoever about this crucial matter, it would seem that the Texas A&M Board of Regents, which once led the state into “Numerical Commitments” is now opening the gate the other way.
Who would have given their support to the Texas A&M initiative if they had known the likely implications for civil rights?
Under the Fordice ruling, which still stands as controlling law (even as Hopwood has fallen) it would be presumed that states finding themselves in predicaments such as Texas would be “expected” to administer a constitutional plan of affirmative action.
Is the Texas A&M decision changing the shape of “controlling law” in civil rights? Until the questions are fully addressed, I remain worried. It looks like the Texas A&M decision has civil rights implications larger than the College Station campus. Furthermore, it looks like the Board of Regents has not exemplified “excellence in leadership” when it comes to civil rights.
What it looks like is that the Texas A&M Board of Regents promised to undertake affirmative in “good faith” only so long as it could find no reason to break the promise. First chance it had to wiggle out, there it went, without any “civil rights” discussion. That’s what the evidence suggests so far.
Citizens of Texas deserve a full accounting from the Texas A&M Board of Regents as to how their decision provides “leadership excellence” in the struggle for civil rights in Texas.
Re: What Texas Promised in 2000
by Anonymous on Sunday, December 14 @ 23:47:29 EST
From what I understood of the recent Hopwood decision is that race can be allowed to be used in admissions decisions. It doesn’t address whether or not such admission policies are a fundamenal civil right. If it did suggest that such race based admission decisions were a civil right, then schools across the country wouldn’t have to announce that they were changing their policies. It would be assumed that they were changing their policies.
This isn’t to say that I think that race shouldn’t be a factor, because I think it should. I think that a policy that doesn’t take race into account ignores decades of historical racism that adversly affects minority group’s potentiality given equal liberty. I think that the potentiality is the true point of liberty. Liberty in and of itself is meaningless. It is only good because of what it implies…equality.
Texas Civil Rights Review 