Federal Judge Affirms University of Texas Affirmative Action Plan

Article excerpt

Federal Judge Affirms University Of Texas Affirmative Action Plan.

by Debbie Graves

AUSTIN, TX -- In a ruling that could have implications for higher education institutions around the country, a federal district judge has ruled it was "legal and appropriate" for the University of Texas School of Law to use an affirmative action plan in its admission process.

"It is regrettable that affirmative action programs are still needed in our society. However, until society sufficiently overcomes the effects of its lengthy history of pervasive racism, affirmative action is a necessity," said U.S. District Judge Sam Sparks in an 84-page opinion.

Four white applicants, who had applied to UT law school in 1992 and were denied admission, sued the State of Texas and UT, claiming the admissions process was discriminatory and violated their 14th Amendment right to equal protection.

Sparks, a UT law school graduate, ruled that the admissions process -- which was changed this spring -- did deny the four Texans equal protection because applications from white candidates were screened separately from those of Black and Mexican American candidates.

But he said the four plaintiffs -- Cheryl Hopwood of University City, Doug Carvell of Dallas, and Ken Elliott and David Rogers, both of Austin -- didn't prove that they would have been admitted to the law school under a system in which all applicants were judged equally.

Sparks said the four could reapply to law school for admission in the 1995-96 school year -- a right available to anyone -- but would not have to pay the $50 filing fee. He also awarded to each of them $1 to be paid by UT-Austin and the law school for having denied them equal treatment.

'Removes Doubt'

"It kind of seems like a hollow victory." said Elliott, an employee with the Texas Department of Insurance.

Austin attorney Terral Smith, a former Republican state legislator who was the lead lawyer for the plaintiffs, said the ruling will probably be appealed to the 3rd Court of Appeals in New Orleans.

Barry Burgdorf, an Austin lawyer who represented UT, said, "We feel the opinion is a near 100 percent victory for the law school."

The ruling is a "resounding vindication of the affirmative action program," said Burgdorf, one of five lawyers with the Vinson & Elkins law firm who provided UT with pro bono legal representation on the case. The state attorney general and UT faculty also assisted in the defense.

UT President Robert Berdahl said, "Judge Sparks' ruling removes any shadow of a doubt about the legality of the affirmative action admissions policy of the UT law school. It enables the university to continue to recruit a diverse student body under our existing policy."

Still, NAACP Legal Defense and Educational Fund (LDF) lawyer Janell M. Byrd criticized Judge Sparks' refusal to permit Black law students to intervene. "They will be directly affected by the outcome, but the judge twice refused them permission to participate in the trial," Byrd said.

The students, members of the Thurgood Marshall Legal Society and Black Pre-Law Association at the University of Texas, are represented by the Legal Defense Fund and Texas lawyer Anthony Griffin.

Expert witnesses provided by the LDF did testify in the trial, Byrd said, detailing Texas higher education's history of discrimination and analyzing the Texas admissions program. Twice, however, Judge Sparks barred LDF lawyers from the trial and ruled "that the interests of the Black students were adequately represented by the state and the University of Texas, which have historically discriminated against African Americans."

Three Stacks of Applications

In 1992, the law school used an admission procedure in which applications were divided into three stacks. Those from African American applicants went into one pile. Those from Mexican American candidates went into another pile. Applications from all others, including white, Asian American and other Hispanics, went into the third stack. …