(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.
Texas Civil Rights Review 