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?

December 1997By Comments

Illustration by Brian Cronin

“I’m really not a very opinionated person,” said the most controversial law professor in America. Swiveling his chair ninety degrees, Lino Graglia leaned back almost to horizontal, his gaze fixed on a splendid photograph of Delicate Arch in southeastern Utah that hung on the wall of his office at the University of Texas School of Law. “I pride myself on my humility,” he said, invoking a word not normally associated with law professors (especially not this one). “I don’t claim to have the answer on difficult policy issues like abortion, school prayer, and restriction on pornography, except that these issues should not be resolved by judges. I do have a strong opinion that anything that is done dishonestly ought not to be done.”

What the 67-year-old constitutional law scholar thinks is especially dishonest is the use of racial preferences under the guise of helping the disadvantaged, who are seldom in fact the beneficiaries. “Race is not a proxy for disadvantage,” he says. His conviction that affirmative action is a euphemism for racial discrimination led him to say, at a September student forum—that blacks and Hispanics “are not academically competitive with whites,” and that they “have a culture that seems not to encourage achievement. Failure is not looked upon with disgrace.” In another time or place, these remarks might have passed unnoticed. Sprinkle a little sympathy, stir in some hedging words, and they are not so different from what many authorities on race in America are saying today. (Glenn Loury, a prominent black economist, wrote in a recent issue of New Republic: “Unless we candidly acknowledge that a pathological and debilitating subculture exists within our inner cities—a culture that robs its adherents of any chance to break away from their marginal status—we will be wasting our time.”) But Graglia’s comments came at the worst possible time for UT, the exact moment that the landmark 1996 case of Hopwood v. Texas took effect and the university became ground zero in the nationwide battle over affirmative action.

In that case, a three-judge panel of the U.S. Fifth Circuit Court of Appeals struck down the affirmative-action admissions policy at Graglia’s own law school. It ruled that Cheryl Hopwood, a white woman who was denied a place in the school’s entering class of 1992 despite having better grades and test scores than many minority students who were admitted, had been the victim of discrimination. Said the court: “The law school has presented no compelling justification … that allows it to continue to elevate some races over others, even for the wholesome purpose of correcting perceived racial imbalance in the student body,” The impact of Hopwood has been dramatic: This fall’s entering class has only 4 black students and 26 Hispanics, down from 31 and 42, respectively, a year earlier. The law school has spent much of the year doing damage control, trying, without much success, to convince minority politicians, alumni, and students that there wasn’t anything the school could do about it.

It turned out that there was one thing UT’s leaders could do about it, and that was vent their frustration upon Lino Graglia. The university’s critics could do the same. In the days that followed Graglia’s remarks, the Reverend Jesse Jackson flew in to address an anti-Graglia rally: “isolate him as a moral and social pariah … . We are not the problem. He is the problem.” UT leaders and faculty joined in a public shunning of the law professor. The chairman of the board of regents and the chancellor of the university called Graglia’s comments “abhorrent,” a Hispanic regent called for the suspension, both the main UT faculty and fifty member of the law school faculty adopted statements disavowing Graglia’s views, his own dean publicly rebuked him, and still the furor would not subside. Students attended teach-ins. The New Yorker magazine even dispatched a writer to the provinces to see what all the fuss was about.

What all the fuss is really about is not Lino Graglia but Hopwood and the threat that it will result in the resegregation of America’s elite universities. A similar lawsuit has been filed against the University of Michigan. California’s Proposition 209, which eliminated affirmative action in that state by prohibiting any form of racial discrimination, recently survived a challenge in the U.S. Supreme Court. (There is one black student in the first-year class at the law school at Berkeley.) Other states, including Texas, will no doubt be debating a version of Proposition 209 in their next legislative sessions. Doors are closing all across the country, and if the enrollment statistics at the UT law school are any indication, black America stands to lose 87 percent of its gains.

For the University of Texas, the stakes are high. University officials fear that the number of black and Hispanics on campus will fall below the critical mass necessary for the school to be perceived as a hospitable environment by prospective minority students. This likelihood is greater for blacks than Hispanics; there is a history of hostility to blacks that UT has never quite overcome. The prospect of a law school without black students raises the specter of Sweatt v. Painter, the 1950 Supreme Court case that overturned an attempt by the State of Texas to prevent Heman Sweatt, a black applicant, from enrolling at the law school. Instead, the state established an unaccredited law school at Texas Southern University in Houston. A unanimous court ordered Sweatt admitted to UT, but he left in 1951 after being subjected to racial slurs, tire slashings, and cross burnings. Not until recent years has UT made diversity—a polite synonym for racial preferences—a high priority, only to find the university prohibited by Hopwood from actively pursuing it. Ever hypersensitive to politics, UT officials fear that a drop in black and Hispanic enrollment will trigger a backlash by minority legislators that will cost the university political support, reduce its state funding, and erode its status as a flagship university. But the only way to open the door to more minority students is to broaden—that means reduce—the standards for admissions, an action that would also erode UT’s flagship status. If affirmative action is bad, then the alternative does not seem to be an improvement.

The Dean

IF I WERE A BUDDHIST,” MICHAEL SHARLOT told his wife at the height of the uproar over Lino Graglia, “I would know that I had been very wicked in a past life.” What could he have done, the 62-year-old dean of the UT law school has mused, to deserve the punishment of the Hopwood case? The media descended upon the school this fall when word got out about the drop in minority enrollment; no sooner had they left than Graglia’s statements brought them back. A letter Sharlot wrote inviting students to an open forum on Hopwood in late October gave an indication of what he has been going through: “The administration has been bombarded with communications from alumni and citizens on all sides of the issues, press inquiries, demands from University officials, and orders from legislators to meet, report, produce documents, make statements, and give testimony … we have been so distracted by dealing with these demands from outside the school that we have given too little attention to the concerns of our students.” One of the concerns, apparently, was heightened racial friction. “It should, especially in a law school, be possible to express opposition to affirmative action without being labeled a racist,” Sharlot wrote. “Support for affirmative action should not be dismissed as racism of a different stripe.”

On the day that I met with Sharlot, he was wearing a tie that featured a large, vividly colored sunflower (the symbol of the law school), as if he were searching for his own ray of sunshine. “The effects of Hopwood are tragic,” he said. “Perhaps more than any other school I know of, we had achieved the enrollment of highly qualified minorities who were competing academically at the same rate as other students, graduating at the same rate, and passing the bar exam at almost the same rate.”

The gap between affirmative-action students and regular students is not significant. The median college grade point average of black students admitted to the UT law school under affirmative action in 1996 was 3.37, compared with 3.59 for students who went through the regular admissions process—a difference of about one B instead of an A per semester. On the Law School Admissions Test (LSAT), the median score of UT’s affirmative-action students was 6 points lower than that of regular students, 157 to 163 (out of a possible 180). The problem for minority applicants is that the small gap in grades and test scores is filled by a huge number of people. On the LSAT, for example, a score of 163 registers at the eighty-ninth percentile of all students taking the test, while a 157 registers at the seventieth percentile. Without affirmative action, the problem is unsolvable. Although the Hopwood decision doesn’t preclude universities from discriminating on grounds other than race—it is okay, for example, to give preferences to the children of rich alumni—Sharlot says that no other criteria can effectively produce the level of diversity achieved with affirmative action. If, for example, the law school were to base affirmative action on low socioeconomic status, many more whites than blacks would become qualified for admission to law school because the lower you go on the economic ladder, the more applicable are Graglia’s comments about culture and educational achievement.

Even Sharlot does not say that the substance of Graglia’s comments was wrong. In his letter to students, he wrote, “His highly-publicized gross generalizations about the cultures and qualifications of minority students have hurt the Law School in the public eye and have personally hurt many of our students and alumni.” The next day Graglia, fully recovered from a brief period of contrition, answered Sharlot with a letter of his own: “Is Dean Sharlot’s objection that my statement did not contain the words ‘in general’ or ‘on the average’ and that it is their absence that has supposedly caused misunderstanding and damage? If so, the objection is nonsense. No one misunderstands the statement who does not have a need to misunderstand it, any more than anyone misunderstands the statement that men are taller than women… . The objection to my statement is not that it is a ‘gross generalization’ likely to be misunderstood, but simply that it clearly states an obvious fact that the objectors would prefer not to have stated.”

So often does any discussion of race in America get deflected into exactly this sort of stalemate—protests of hurt feelings on the one side and a disinclination to grant their legitimacy on the other. People end up shouting at one another. What made the shouting so unseemly in the case of Graglia’s initial remarks was its orchestration by the administration and faculty of the university. Once the precedent is established that the university leadership believes it appropriate to sit in public judgment on the individual opinions of its faculty members, the door is open to all sorts of mischief—such as regents and legislators demanding the firing of professors.

“We felt that the eyes and ears of the state and nation were on us,” Sharlot said, “and we had to speak. His mode of expression was so inappropriate. We’re law professors. We abhor broad generalizations. We’re notorious for qualifying our statements. We’re always saying things like, ‘on the one hand’ and ‘you could argue.’ The reality was that we were aghast.” I asked Sharlot whether he thought that the shunning of Graglia had a chilling effect on speech. “Sure,” he said. “Any time your buddies say, ‘You’re wrong,’ that’s tough to take. The exercise of free speech is not without costs. Anyway, Lino is a hard guy to chill.”

That observation seemed to dampen his mood. “What is amazing,” Sharlot said, “is that Lino had just had his wildest dreams come true: A court had ended affirmative action at his law school. Then he gratuitously and clumsily reopened the whole issue.” Sharlot put his palms up to his temples. “And to what end?” he asked sadly. “To what end?”

The Professor

THOSE WHO SUDDENLY BECOME FAMOUS in America enter a world that they never knew existed, a world that seems to be populated entirely by media types and people who have nothing to do but write letters. Lino Graglia has debated Jesse Jackson on Court TV and appeared on Black Entertainment Television with talk show host Tavis Smiley. He has received a lengthy epistle from a man who signs himself “Christ the Crusher” and a plea from a self-described FBI informer, who saw in Graglia a fellow Italian who could get his brother out of prison. A correspondent in Seattle berated him for not discussing genetic inferiority. “Here’s something from the Pan African National Movement,” Graglia said, thrusting a letter across his desk at me. “They like me. They think I’ve advanced the cause of black separatism.” And there was a thick manuscript of poetry (“Ebonics and the Gospel of Black Theology”) that began with these lines:

if I am a racist,
then I do not speak the truth;
if I speak the truth,
then I am not a racist

“It’s pretty good, isn’t it?” Graglia said.

On every other subject except racial preferences, the constitutional law scholar was congenial and at times even charming. We had a lengthy discussion about national parks—he has been to every one except Great Basin in Nevada. But it is a different story when he turns to the subject of his life’s work: traces of sadness, flashes of anger, and a bitterness that keeps surfacing and submerging. (When I attended his class on the day he was dismembering a school busing case, Graglia lectured, “Judges can and will lie, more blatantly than anyone else, and that shouldn’t be surprising. What’s their training? They’re lawyers! And who is going to call them on it? I say it, but who cares?”) Long before Hopwood, he paid a high price for his views; after 31 years at the law school, he does not hold an endowed chair. His summary of his academic career to me was, “Someone who says the NAACP is wrong and busing is wrong is bucking the whole academic establishment. I lost the race long ago.” Nor did he get a rumored judicial or administrative appointment from the Reagan administration. “The NAACP said I was their worst possible choice,” he said, “and I think they were right.”

Just how much Graglia’s worldview is shaped by his opposition to racial preferences was evident when I asked about his reaction to the official criticism of his remarks. Many people, myself included, thought that the issue was one of free speech—but not Graglia. “I’m not all that strong on individual rights,” he said. “I’m stronger on what’s necessary to maintain a viable community. When you have government by the ACLU, which is what constitutional law is all about, you get the agenda of individual rights. This is not about free speech. It’s about affirmative action. If I had come out and said, ‘Affirmative action is necessary because of racism,’ I’d be right up there with all the good people. But it’s absolutely essential that somebody say otherwise.

“They say that what I said was painful and insulting,” Graglia said. “It’s racial preferences that are painful and insulting. They are absolutely destructive of a multiracial society.” He folded his arms across his chest as if to shield himself against further criticism. “Liberals are bad losers,” he said. “They aren’t used to losing.”

The Politician

I KNEW ALL ABOUT HEMAN SWEATT,” State Senator Rodney Ellis of Houston told me in between munches on a raw carrot. “I didn’t want to go to UT. I was afraid of it.” Instead, he went to Xavier, a black college in New Orleans, then to Texas Southern. In time, Ellis did find his way to Austin, first as a graduate student at the Lyndon B. Johnson School of Public Affairs, then as a UT law student. But the memory of Heman Sweatt lingers. “UT didn’t come up with its diversity program just because a bunch of professors watched Roots one night,” he said. “They knew they would be held accountable.”

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.

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