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?
What’s Black and White And Red-faced All Over?
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

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