Greg Moses
1997
Texas Backlash
Presented at SSC
DRAFT
[txback.doc]
Back to Prepub Dir for Dr. Greg Moses

Texas Backlash:
Dismantling Affirmative Action with All Deliberate Speed

On Feb. 5, 1997, just in time for Black History Month, Texas Attorney General Dan Morales rendered an official opinion to University of Houston Chancellor William P. Hobby concerning the effect of the Hopwood ruling on various scholarship programs. In summary, Morales concluded that the Hopwood ruling proscribes the use of race or ethnicity for "all internal institutional policies, including admissions, financial aid, scholarships, fellowships, recruitment and retention, among others" unless some very strict guidelines were followed. If the Texas Attorney General is correct in his interpretation of Hopwood, then I think we have reason to be worried about recent trends in legal logic, because it appears that any attempt to integrate historically white institutions will be outlawed by court opinion. In short, it looks like Hopwood signals a new era in civil rights history where integration will be outlawed by the courts.

Over the years, as an institutional activist and scholar, I have developed a model for an ethics of integration which I think is not uncommon in progressive theory. Such a model assumes that we live in a nation that continues to suffer the deleterious effects of racism. In order to ameliorate our exclusionary habits of culture, economics, and politics, predominately white institutions should undertake systematic efforts to diversify along many dimensions, especially with respect to classes protected by affirmative action--women, African Americans, Hispanics, Asian Americans and Native Americans. Recently some have added the disabled. And there is the possibility of also considering sexuality as well. But to focus the issue of this paper, I think I share a model of ethics with many progressive people that would call for systematic racial integration at all levels of institutional life. But this model of ethics, what I call the ethics of integration, is now under serious legal threat. According to Hopwood, such an ethic, if practiced in public, would be declared unconstitutional.

One may conclude that the Hopwood decision will have limited impact, since it only applies to Texas, Louisiana, and Mississippi, the three states under jurisdiction of the Fifth Circuit Court. And I am told that the Texas Attorney General may have interpreted the case too broadly. But the plodding direction of Supreme Court decisions has been increasingly intolerant of race based programs, even when those programs are designed for the purposes of integrating historically white institutions. So it is possible, though by no means certain, that when the Supreme Court declined to review the Hopwood decision, it was in some sense experimenting with a new, post-integration age. Of course, it is also possible to understand the Hopwood decision as isolated, ill advised, ideological activism on the part of two West Texas Circuit Court Judges who come from an area notorious for its historical whiteness, and that the decision will join some infamous list of bad examples that were also short lived. But I think we have good reason to be concerned that this West Texas revolution will do more damage before it is over with.

So what are the conditions under which institutions may practice integration legally according to the Hopwood decision? There are three factual findings which must be made either by the institution or the state legislature: 1) that the institution has "discriminated in the not distant past" or "has been a passive participant in acts of private discrimination by specific private actors"; 2) "that there exist present effects of the past discrimination that are not due to general societal discrimination"; and 3) that the programs of integration be "narrowly tailored to remedy those present effects" (Morales 14). "Unless or until these facts can be established, the consideration of race or ethnicity is expressly prohibited" (Morales 14). In other words, integration is not be undertaken except under the most strictly controlled circumstances. And this is where the winding path of legal logic is leading us--where, if we are not careful, we might be found guilty of intent to integrate with malice aforethought.

Implicit in the three criteria outlined by the West Texas Judges, one finds a very restrictive model for what counts as relevant racism. To begin with, relevant racism is limited to fairly recent acts of discrimination that have been undertaken blatantly with official assent. Unless evidence of this kind can be mustered, institutions may not deliberately seek integration. Most troublesome here is the declaration that institutions may not act out of a generalized obligation to participate in the amelioration of "general societal discrimination," but may only integrate in strict punishment for some specific act of explicit or passive discrimination in the not too distant past. In other words, integration may only be undertaken as a kind of punitive measure to correct the narrowly specifiable effects of some overt and offensive discrimination from the recent past. The court thus makes it illegal to undertake integration as a pro-active ethic of justice. And this is where the logic of strict construction meets its ultimate destiny--by declaring an ethic of integration illegal.

Since 1978, when Justice Powell rendered his decision in the Bakke case, it has been generally assumed that institutions of higher education at least could seek diversity in their student populations so long as strict quota systems were not employed. But the Hopwood decision discounts Powell's opinion as isolated and unrepresentative. To quote the court of the West Texas Circuit: "Justice Powell's view in Bakke is not binding precedent on the issue. While he announced the judgment, no other Justice joined in that part of the opinion discussing the diversity rationale" (Appeal 10). Furthermore, claim the judges, "No case since Bakke has accepted diversity as a compelling state interest under a strict scrutiny analysis" (Appeal 10). This opinion on the part of two Circuit Judges in West Texas has certainly caught the nation by surprise. If the logic of Hopwood stands up, then college admissions offices will have to retreat from whatever limited efforts they now make to provide racial diversity. As the West Texas judges declare: "The use of race, in and of itself, to choose students simply achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants. Thus," continue the judges, " the Supreme Court has long held that governmental actors cannot justify their decisions solely because of race" (Appeal 11). In overturning the Bakke standard, our West Texas Judges insist that they are following Supreme Court precedent and the spirit of the Fourteenth Amendment, too!

The West Texas Judges also prevent the Law School from giving special consideration to racial minorities in order to remedy "the present effects of past discrimination in Texas's primary and secondary schools" (Appeal 12). In other words, discrimination by some institutions in society--even when the effects are well-known and widely felt--cannot be used by other institutions as a reason to remedy the racial disparities that may have resulted. According to Hopwood, affirmative action at the Law School can only be used to remedy past discrimination that occurred at the Law School itself. But, says the West Texas Court, in "recent history, there is no evidence of overt officially sanctioned discrimination" at the Law School. Or as the Attorney General says, "Any other discrimination by the law school ended in the 1960's" (Morales 8). The West Texas Judges do agree that Texas has a, "well-documented history of discrimination in education and . . . that its effects continue today at the law school, both in the level of educational attainment of the average minority applicant and in the school's reputation" (Appeal 12). Nevertheless, the Hopwood judges tell us that it would be unconstitutional for the Law School to undertake affirmative action to remedy such effects.

Several procedural issues bear brief mention as we ponder the arrival of Hopwood into our legal world. First, the University of Texas Law School in the early years of the 1990s was operating an admissions program which was in such obvious violation of Bakke that the school quickly changed its procedures when the matter was brought to light. Thus the Hopwood case entered the courts because a Texas Law School was in flagrant violation of the law as established by the Bakke precedent. Yet in ruling against the Law School, the Hopwood judges announced to everyone's surprise that the Bakke precedent no longer stands as law. At that point in the legal process, it would be usual procedure to seek "en banc" review of the ruling by the full panel of Fifth District Judges. But this step was curiously not sought by either party to the suit and was subsequently declined by a majority vote of judges in the Fifth District.

Yet seven judges complained. Said the dissenting judges: "The radical implications of this opinion, with its sweeping dicta, will literally change the face of public educational institutions throughout Texas, the other states of this circuit, and this nation. A case of such monumental import demands that attention of more than a divided [three judge] panel.. It should have the attention of every judge on this court" (Dissent 1). Calling the Hopwood case, "a textbook example of judicial activism," the seven dissenting judges of the Fifth Circuit accuse the West Texas panel of "tenuously stringing together pieces and shards of recent Supreme Court opinions" in order to create "a gossamer chain which it proffers as a justification for overruling Bakke" (Dissent 1). When the case reached the Supreme Court, it was declined for hearing and thus became law in three states. This is how an obviously illegal quota system, clearly outlawed by Bakke, was nevertheless flagrantly practiced by a Texas law school until it caught the attention of four white plaintiffs who were good enough to pursue the case until it overturned the Bakke precedent altogether.

What worries me about Hopwood--aside from the peculiar, musty-smelling, Southern procedures that brought it into law--is the development of a rigid legal framework that actually makes it unconstitutional to practice an institutional ethic of integration. Let's examine the background assumptions of such logic:

We must assume, say the courts:

  1. That discrimination ended in the 1960s.
  2. That subsequent discrimination by any institution in society, even when well known, cannot be grounds for the practice of integration at another institution.
  3. That the lingering effects of more general societal discrimination, even when well known, cannot be grounds for the practice of integration at any institution.
  4. That institutional discrimination can only be acknowledged when it is overt, officially sanctioned, and in the not too distant past.

These assumptions provide a foundation for law that enshrines debatable sociological doctrines about the nature and effects of racism in the USA. Added together, they prevent the state from recognizing racism as a problem that is caused by an ongoing and complex heritage of intergroup injustice. These assumptions furthermore require the state to be more wary of intentional integration than of unintentional racism. Finally, these assumptions clearly prevent the development of an institutional ethic that acknowledges the effects of ongoing discrimination as a pervasive social friction which should be proactively addressed at all levels of institutional life.

We might read these injudicious developments in light of the recent scholarship offered by John David Skrentny in his book, The Ironies of Affirmative Action. Skrentny argues that the strategy of affirmative action arises out of administrative need to produce effective mechanisms of integration. What these agencies discovered in a very practical fashion is that integration cannot be measured or vigorously pursued from a color-blind perspective. Administrative agencies charged with transforming segregated institutions into integrated ones quickly discovered that some form of color consciousness would be necessary. The need first of all epistemological. In order to know if an institution is pursuing integration, one has to know the trends in racial distribution within that institution. And one cannot know anything about racial distribution from a color-blind perspective.

The second lesson from Skrentny tells us that the administrative agencies were well aware of the ineffectiveness of defining discrimination in terms of overt, actionable offenses. In the experience of such agencies, it was very difficult to fight discrimination on a case-by-case basis. Effective enforcement of integration required a theory of "disparate impact" that relied on statistical models and consequential calculations. Skrentny points out that the discovery of "disparate impact" reasoning arose from a very practical, non-ideological perspective. Given the goal of integration, it was simply more effective to concentrate on patterns of racial distribution than on case-by-case determinations of discriminatory actions. Not only did the case files pile up quicker than they could be handled, but the process involved too much risk to expect that offended parties would be very likely to report the actual discrimination that they encountered. Thus the method of affirmative action was born: survey racial diversity, set goals and timetables for change, and undertake multifarious experiments to produce measurable results.

Keeping in mind the terms that Skrentny investigates, we can say that the recent trend in legal logic attempts to reverse the experiment of affirmative action and return to the color blind model that early administrators found so frustrating in the first place. In a zeal to block affirmative action, the courts have completely lost sight of the goal of integration. In other words, the attack on affirmative action has gone so far that intentional integration is now in danger of being ruled unconstitutional.

In order for an institution to adopt an ethic of integration, it must undertake a burden of proof that is difficult and demeaning. It must prove that overt or official discrimination has occurred in the recent past, and it must act only to ameliorate the specifiable damage that has resulted, but not the damage that might spill over from other institutional or societal forces. In other words, for affirmative action to pass judicial muster, the institution must be prepared to take the blame. But this is one requirement that the ethic of integration seeks to minimize. Whoever may be to blame for the "disparate impacts" of racism, the ethic of integration seeks responsibility for the cure. To use an analogy, the court is saying that it would be illegal for a Good Samaritan to stop and render aid unless he is first willing to affirm that he mugged the victim himself. Not only is this model too constricted to represent racism as we know it, but the administrative approach has been proven to be comparatively ineffective--and that's why affirmative action was invented in the first place.

An ethic of integration, on the other hand, argues that we have sufficient evidence to presume that societal racism exists, that we should work to make a better world through intentional integration, and that it is an unwise state that would interfere more vigorously with integration than it ever could with racism on a case-by-case basis.

But more than all the above, an ethic of integration stands incredulous at the thought that American citizens are now in danger of being found guilty for attempted integration with malice aforethought.


Back to Prepub Dir for Dr. Greg Moses