Category: Higher Education

(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.

But whatever the outcome of Texas A&M’s decision, Duke administrators say the children of

Blue Devils will continue to receive special consideration during the admissions process. [Chronicle of

Higher Education Onlline, by Cindy Yee, Jan. 22, 2004.]

A few more paragraphs clipped

below…
“As a broader educational or public policy issue, this is a fairly new subject,” [Duke

director of undergrad admissions Christoph] Guttentag said. “In the Texas A&M case, a tie was made

between legacy admissions and affirmative action. I’m not sure that they should be so closely tied,

but I think that the reason some people are paying greater attention to legacy admissions now is that

it has to do with a renewed interest in issues of affirmative action.”…

In fact,

[Provost Peter] Lange said, by establishing alumni loyalty through policies like the legacy admissions

policy, the University is able to fund other programs that actually increase diversity. “Among private

universities, the loyalty of alums is very important to a whole range of things we can offer, including

the kind of funding that makes Duke a great university and offers substantial amounts of money for

financial aid,” Lange said. “You can’t pull out one thread and ignore other ways of promoting

diversity. Need-blind financial aid is one of the biggest ways to achieve this

goal.”…

Even after Texas A&M announced its decision to abolish legacy admissions

preferences, some complained that taking this step to diversify the student body was like treating a

broken bone with a Band-Aid–the concept, they said, was admirable, but the decision will ultimately

have a negligible effect.

Here’s the direct quote from the Eagle’s Dec. 6 (2003) edition:

“There will be segregated money to use in scholarships to make one-on-one recruiting more plausible to

the success of the issue,” Mays said. “In addition, we’re going to give minorities access to other

scholarships.”

Note: Lowry Mays is Chairman of the Texas A&M University System Board of

Regents and Chairman and Chief Executive officer of Clear Channel Communications. Source:

theeagle.com
http://www.theeagle.com
/aandmnews/120603regentadmissionpolicy.htm

Texas A&M Regents Say Nothing in Writing
About Race or Affirmative

Action

Texas A&M Regents were widely reported as rejecting affirmative action in

admissions. However, an examination of the four sheets of paper considered by the Regents shows that

they said nothing in writing about affirmative action policy. By making no mention of affirmative

action, the Regents simply extended the Hopwood prohibition. But the Hopwood prohibition had once upon

a time interrupted their own ‘good faith’ policy of affirmative action.

If the Regents

adopted affirmative action as a sign of ‘good faith’ in 1980, and if it was revoked by outside forces

in the meanwhile, shouldn’t they resume the practice at their first opportunity, or offer a quite

serious explanation why not?

The Grutter decision of the Summer of 2003 had restored

affirmative action to the Regents, yet they met and voted unanimously to take no notice. This is not

‘good faith.’

By doing nothing to restore affirmative action in 2003, by simply

extending the Hopwood revocation, and by offering no written explanation, the Regents have effected a

kind of ‘pocket veto’ of the Supreme Court.

When a peculiar ‘civil rights’ path has

been chosen by administrative elites, deep in the heart of Texas, without any documentation whatsoever,

and having the effect of sustaining a dead law, one feels a shudder of recognition, that this is what

‘bad faith’ looks like up close.

Philosopher Lewis Gordon could not have been more

correct when he called racism ‘Bad Faith.’

By Greg Moses
Jan. 30, 2004

A Thursday guest column at a Conservative website, written by an anti-

affirmative-action activist, predicts that the Office for Civil Rights at the US Department of

Education will fight affirmative action in Texas colleges and universities.

The

report is remarkable for its well-embedded Republican-party sources. It was posted at USAGOP.Com and

written by a senior fellow from the Center for Equal Opportunity, Edward Blum.

The

report suggests a chilling answer to one of the mysteries in Texas higher education these days: Where

is the OCR and why are they saying nothing about Texas A&M’s announcement last month that it would

reject affirmative action in admissions at two of its predominately white campuses?

The

Blum column is shocking for its suggestion that OCR will speak out in opposition to affirmative action

plans at the University of Texas at Austin.

As Blum argues, “President Bush personally

–as governor and as president–and the rest of his administration have strongly supported the use of

race-neutral means to achieve diversity. Indeed, they have pointed to the system UT was using–and now

wants to reject–as a model approach.”

Blum’s report fails to mention that Bush made

written promises to OCR while he was Governor, that Texas higher education would augment where possible

its efforts to de-segregate predominantly white campuses, such as the University of Texas at Austin and

the Texas A&M University campuses at College Station and Galveston.

And Blum does not

address what OCR’s relationship might be to upholding the current context of constitutional

law.

When Bush was Governor, Texas was living under the influence of the Hopwood

decision, which was widely enforced as a prohibition against affirmative action in college admissions

for the state of Texas.

But Governor Bush was also party to an ongoing de-segregation

plan, and he made written promises, called the “Texas Commitment,” during the Summer of

2000.

Partly because of the Hopwood ruling, the implementation plan of the “Texas

Commitment” focused on rectifying long-standing neglect of historical black campuses in Texas, at

Prairie View and Texas Southern Universities.

Yet, the “Texas Commitment” by Gov. Bush

promised that Texas would operate within the complex context of constitutional case law and would

augment its efforts wherever possible to integrate predominantly white

campuses.

Meanwhile, the state’s top lawyer for Texas higher education has been

advising admissions officers about constitutional criteria for affirmative action that were created by

the Supreme Court in the Grutter ruling of Summer 2003.

Blum’s column raises questions

about the kind of civil rights logic that would be used to wield the power of OCR in opposition to

adoption of a constitutional affirmative-action program, especially in the context of a “Texas

Commitment” that was solicited by OCR in the first place.

But Blum’s column also

suggests that a larger political agenda might help explain Texas A&M’s announcement that it would not

take up the Grutter ruling as its guide.

I choose the term “announcement” rather than

“decision” because nothing about race or affirmative action was ratified in writing at the widely-

reported meeting of the Board of Regents last December. It came as a complete surprise to state

regulators, legislators, and civil rights organizations. And it is not yet clear how the policy was

percolated up through the decision-making structures at the College Station

campus.

Furthermore, Blum’s political analysis fails to note that the top ten percent

plan may have turned out to be even more contentious among Texas voters than affirmative

action.

In a recent comment to El Paso reporter Darren Meritz, Texas state Senator Jeff

Wentworth, a San Antonio REPUBLICAN, said, “There are a lot of problems with the Top 10 Percent rule,

and it needs to be repealed.” Sen. Wentworth, suggested that the restoration of affirmative action

would eliminate the need to impose the widely-studied race-neutral attempt to achieve racial diversity,

that was invented as an antidote to Hopwood.

Sen. Wentworth’s suggestion during an

election year may offer Democrats a chance to argue that affirmative action is actually less divisive

and more precise than the so-called race-neutral percentage plan.

Meanwhile today at the

University of Texas campus, a new report calls for some legislative relief from the percentage

plan.

And UT President Larry Faulkner surrounded himself today with diversity allies

from across the nation for a two-day diversity symposium. Please stay tuned to Texas, where the future

of civil rights is on the line.