Hopwood a Difference of Opinion in Texas
Smith, Susan E., Black Issues in Higher Education
Despite being at odds with his predecessor, Texas attorney general is urging the state s higher education institutions to follow previous guidelines
AUSTIN, Texas-The state's flagship public universities will not reinstate race as a criterion in scholarship, financial aid or recruitment decisions despite an about-face on affirmative action by the state, college officials say.
Texas Attorney General John Cornyn earlier this month rescinded a 2.5-year-old opinion by his predecessor that ended affirmative action at all Texas public colleges and universities.
But Cornyn, a Republican, cautioned state university officials not to revert to such policies until the matter is settled once and for all in court. Re-instituting the policies could invite lawsuits, he warns.
The University of Texas at Austin will continue to use race-neutral scholarship and financial aid policies, says Dr. Patricia Ohlendorf, vice president for administration and legal affairs at the 50,000-student university. That sentiment was echoed by officials at Texas A&M University.
"We're still studying the opinion. But we've seen nothing so far to convince us to change our policies," says Kathy Harris, director of communications for Texas A&M in College Station.
The previous opinion by former Texas Attorney General Dan Morales, a Democrat, jeopardized minority access to the state's flagship public universities in a state in which minorities are expected to be the majority of residents in the next decade.
State higher education leaders complain that it also resulted in a "brain drain" of the brightest minority students to out-of-state universities that still can offer race-based scholarships.
The state's biggest universities still are struggling to recruit and retain minority students since the ban on affirmative action, based on a court decision on reverse discrimination at the University of Texas.
Following the 1997 opinion, lawmakers and university administrators rushed to find new methods to increase minority enrollment at Texas A&M and the University of Texas, selective public universities that were hardest hit by the affirmative action ban. Attendance at the universities, with their influential alumni groups, often is a path to powerful public and private sector positions.
A state senator urged Cornyn, who was elected in November, to review Morales' opinion. And even though it has no immediate effect, university officials praised Cornyn's opinion.
"We deeply appreciate the attorney general's efforts on behalf of the University of Texas and all of Texas higher education," Dr. William Cunningham, chancellor of the University of Texas System told reporters at a news conference here earlier this month.
Cornyn's office has joined the University of Texas in an appeal of the so-called Hopwood case. The 1992 lawsuit is named for Cheryl Hopwood, one of four White students who alleged they were denied admission to the university's law school because of their race.
The 5th U.S. Circuit Court of Appeals ruled in the students' favor. Some constitutional and civil rights lawyers have argued that the Hopwood ruling applies only to higher education admissions.
But Morales' interpretation of the ruling was to ban consideration of race in admissions, scholarships, financial aid and recruitment decisions - a decision that since has been criticized as too broad. Cornyn agreed.
"Absent clear guidance from the [U.S. Supreme Court], we think it inadvisable to reach broad conclusions on what may or may not be permitted under Hopwood on matters other than admissions," Cornyn said in a written statement. "Because [Morales'] opinion on the subject... does just that, we withdraw it."
The opinion also states: "Only the United States Supreme Court can resolve these sensitive issues with any degree of certainty."
Lawyers for the University of Texas and the state have argued before the 5th Circuit that the Hopwood decision runs counter to the Supreme Court's 1978 Bakke decision, which allows affirmative action programs to correct past racial discrimination. …