Future Forum: Guilt, Innocence, and the Death Penalty 
What’s Black and White And Red-faced All Over?
The University of Texas at Austin, embarrassed by law professor Lino Graglia’s comments about race and bound by the Hopwood decision striking down its affirmative-action program. Is this the first step in the resegregation of American universities?
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One of the legislators who hold them accountable is 43-year-old Ellis, whose own career offers a strong justification for affirmative action. The son of a yardman and a maid, Ellis was a promising enough student in junior high to be eligible for a scholarship to attend a prep school. But the application process, including a test, cost $100, and his father said no. (“He told me that there wasn’t any test that cost one hundred dollars, and the principal was just going to pocket the money,” Ellis recalled.) After college he got into law school with the help of affirmative action. “For some reason I didn’t score well on tests,” Ellis said. “Maybe I was just nervous. There’s a lot of pressure on you, knowing that if you fail, you fail your race. I knew I had the intelligence to succeed if I got the chance. Now I’ve got the fourth-largest black-owned investment banking business in the country, and I think I can hold my own with anybody out there on the Senate floor.”
Others might regard Ellis as symbolizing one of the shortcomings of affirmative action: Its benefits often go to people who already have advantages. A former Houston city councilman, Ellis now does business with the city, benefiting from contracts that were earmarked for minority-owned firms—a circumstance about which he is open and without apology. “Contracts go to businesspeople who are connected,” he told me. “I grew up thinking that I had to be a preacher, a doctor, or a lawyer to be a success in life. Those were the avenues that were open to blacks. Not business, because you had to have connections. Where was I going to get connections?” Given the chance by affirmative action, Ellis proved to have a knack for networking—an aptitude no test could measure. Last fall a PBS political documentary showed him at work in the Senate, wired for sound without the knowledge of his colleagues, wheedling, coaxing, cajoling, flattering, ingratiating, inveigling, and good-old-boying—all to win the vote of a single Republican senator, who, Ellis later confided to a PBS interviewer, was no match for himself in IQ. It was great TV, but his colleagues found it not so entertaining; even so, they couldn’t stay mad at him. He is just too likable, with his open face and disarming manner, cherubic cheeks that no raw vegetable diet will ever be able to trim, and live, expressive eyes that amplify his emotion of the moment.
While other minority legislators were calling for Graglia’s head, Ellis did not, and he was criticized for not doing so. “There’s a little thing called free speech,” he told me. “I have a hard time getting past that. Anyway, it’s not the worst thing he’s said. But it was the worst time to say it.” He leaned forward, bent his head down, and raised those eyes at me, as if to let me in on a secret. “In politics, you always need a catalyst,” he said. “We’ve been saying that Hopwood was doomsday, but no one paid any attention. No matter how many press releases I put out about Hopwood, it doesn’t do any good unless there’s a spark. Graglia was our Molotov cocktail.”
The peril that Hopwood poses to UT is that the anger of minority leaders does not fall on Graglia alone but on the university as well. It doesn’t matter that UT tried (unsuccessfully) to appeal Hopwood to the Supreme Court; it doesn’t matter that its leaders rushed to distance themselves from Graglia; it only matters that the law school is on its way to being all-white again. “I’m not saying that the Legislature should punish UT,” Ellis said sweetly. “I’m saying that we don’t appropriate money based on high academic rankings. I’m saying, ‘Let the money go where the people are.’ If that means community colleges, so be it.
“If Hopwood applied to Harvard,” Ellis added, “they would change the definition of excellence to include diversity. UT doesn’t feel that they can buck the system. They don’t want to risk their prestige. I think they care about their rankings more than they care about diversity.”
The Courts
SOMETIMES THE WORLD CHANGES ON NOTHING more than the luck of the draw. Two 3-judge panels were assigned to hear appeals when the Hopwood case came up in the Fifth Circuit. UT, which had won the case in the trial court, drew a hostile panel in the west courtroom and was, as lawyers say, poured out. In the east courtroom, UT almost certainly would have prevailed: Two of the three judges on that panel would later side with UT’s unsuccessful effort to get the full Fifth Circuit to reconsider the Hopwood decision.
What made UT vulnerable was that the law school’s method for selecting minority students at the time that Cheryl Hopwood applied for admission was flawed—it too closely resembled a quota system. The method had since been changed, but the lever was there for any judges who wanted to pry open the entire issue of affirmative action. And two of the Hopwood judges did. In a decision of breathtaking breadth, they decided that the famous Bakke case, long thought to be the legal basis for affirmative action, wasn’t a valid precedent after all. Why? Because only one of the nine Supreme Court justices had mentioned that diversity in higher education was a valid reason for using racial preferences. “Justice Powell’s argument in Bakke garnered only his own vote,” the Hopwood majority said, “and has never represented the view of a majority of the Court in Bakke or any other case.”
It was an ingenious argument, but in our judicial system, only the Supreme Court ought to be allowed to make it. The third judge on the Hopwood panel got it right. Declining to go along with his colleagues, he wrote, “We judge best when we judge least, particularly in controversial matters of high public interest. In this and every other appeal, we should decide only the case before us, and should do so on the narrowest possible basis.” In other words, the panel should have said that UT’s 1992 system was invalid, decided whether Cheryl Hopwood and other plaintiffs should be admitted to the law school, and otherwise minded its own business. The scolding did not end there: “[I]f Bakke is to be declared dead,” it continued, “the Supreme Court, not a three-judge panel of a circuit court, should make that pronouncement.”
Everything that has happened since has validated this argument. The University of Texas and every other school in the state with selective admissions policies have been placed in judicial limbo by the Hopwood case. They can’t do what most other universities can—for example, award a scholarship based upon race to a student who otherwise qualifies for admission without racial preferences. The result could be a brain drain of highly qualified black and Hispanic students to other states, where such scholarships are permitted. Moreover, as long as there are two policies on diversity, one for Texas and one for everybody else, the issue here will continue to fester and foment. The Fifth Circuit has done Texas a terrible wrong, and the Supreme Court compounded it by ducking the case.
But the Supreme Court may not have the last word in determining the ultimate impact of Hopwood. Political and moral pressure will only intensify if America’s top colleges face resegregation. The schools themselves will not stand for it; they will lower their standards first. Indeed, the UT law school already has. Applications for the entering class of 1998 require an essay about the personal challenges or disadvantages students have faced. (One UT law professor told me that whites would quickly learn to play the victim; he anticipates tales of devastating divorces and the untimely deaths of grandmothers.) Other factors include whether the applicant is the first in the family to attend college and whether English is the primary language spoken at home. One problem with all of this is that applicants can be as creative as they like. Another problem is that once the admissions process becomes subjective, the ability of politicians, influential alumni, and powerful lawyers to influence the process in favor of less-qualified applicants is greatly enhanced. The reason why universities use standardized tests is that they are fairer than the highly subjective system that the tests replaced. Hopwood is a case that tries to make the world safe for individual merit, but it may have the opposite effect. Those who cherish the idea of merit may find that affirmative action was not such a bad bargain—except for Cheryl Hopwood.
My Library
