The judge could surprise everyone, but it is no longer likely that the case of Hopwood, et al. v. Texas, et al., which concluded in Austin in late May, will change America by rewriting the law of affirmative action. For a while, the suit brought by four white applicants who were denied admission to the University of Texas School of Law seemed as if it might. Now the question is this: When the judge drew back from the full potential of the case, did he leave us on the right path or did he miss a chance to save the country?
For more than twenty years the UT law school, following a policy of affirmative action, has given blacks and Mexican Americans preferential treatment in admissions. Affirmative action, whatever its status in the rest of society, is an article of faith among graduate and professional schools everywhere in America. The more elite and prestigious the school, the more likely that it is fervent and aggressive in this policy. Schools have embraced affirmative action on their own, usually describing it euphemistically as “encouraging diversity,” but legally, they probably have no choice in the matter. The Office of Civil Rights in Washington, D.C., requires it for schools in the South receiving federal funds. Furthermore, a professional school that is all white might lose accreditation. The American Bar Association accreditation committee, for instance, “supports the use of admission standards and employment criteria which promote diversity in law schools.”
At UT the application for admission to the law school asks potential students to check one of six boxes labeled Black/African American, Mexican American, Asian American, Native American, Other Hispanic, and White. The application also says, “Race/ethnicity may be one factor in the admissions decision,” although in fact only blacks and Mexican Americans are given special treatment. For many years the minority students were less skilled academically than the whites and as a group were clustered in the bottom third of the class. But the law school engaged in a successful program of recruiting qualified minority students from around the country and raising scholarship money. The result is that the academic ability of minority students has improved. Their class rankings are no longer predictably low, and there are enough scholarships for almost every black student to have one, regardless of need. But one thing has not changed. The undergraduate grade point averages and the scores on the national Law School Admission Test (LSAT) of the black and Mexican American students who are admitted are still much lower than those of whites, a fact that is at the heart of the lawsuit.
Cheryl Hopwood, the plaintiff whose name is on the case, applied to the law school for the fall 1992 semester. Although her grades were good, her academic qualifications were regarded as suspect because she had attended several community colleges before graduating from California State University of Sacramento, which is not a highly ranked institution. Nevertheless, she had several qualities that made her a candidate worth consideration. She had worked hard to improve her lot in life. Raised by a single mother, Hopwood had supported herself since she was nineteen and, often working full-time while taking classes, had put herself through college. She had become a certified public accountant. She had a young child, who was severely handicapped by a rare muscular disease. She wanted to attend law school in Texas because her husband, who is in the military, had been posted here. Her grade point average was 3.8, and her LSAT score ranked her in the 83rd percentile. Still, competition for admission to the law school is intense, and she was turned down.
In recent years the law school has maintained a constant enrollment of 7 percent blacks and 11 percent Mexican Americans in each entering class. When Hopwood applied, blacks competed only against other black applicants for admission, Mexican Americans competed only against Mexican Americans, and everyone else competed only against each other. The school would admit enough of each minority to meet the 7 and 11 percent goals and the remainder of the spaces went to the most-qualified non-blacks and non-Mexican Americans. As recruiting efforts began to show results and the qualifications of the minority applicants began to rise, the law school debated whether to increase the percentage of minority students or keep it the same in order to close the gap in credentials between the minorities and the rest of the students. The school decided to keep the percentages the same. The gap has narrowed, but it is far from closed.
The law school combines the grade point average and the LSAT score of each applicant into a single number called the Texas Index (TI). TI’s above a certain score are called “presumptive admits”; those below a certain score are “presumptive denies.” Everyone in between is in the “discretionary zone.” In 1992 the presumptive admit score for whites was 199. Hopwood’s TI was 199, but her score was considered inflated because of the schools she had attended. The presumptive admit score for minorities was 189, ten points lower than that of whites. The presumptive deny score for whites — 192 — was three points higher than the presumptive admit score for minorities. In the whole country only 88 black and 52 Mexican American law school applicants that year had a TI of at least 199, the presumptive admit score for whites. Without affirmative action, few if any minorities would be admitted to law school at the University of Texas. Yet with affirmative action, some whites are excluded in favor of less-qualified minority candidates.
In the summer of 1992, shortly after she was turned down by the law school, Cheryl Hopwood received a letter from Steven W. Smith, an attorney in Austin who was a graduate of the law school, soliciting plaintiffs in a lawsuit in federal court against the university. With a more conservative Supreme Court on the bench, he was hoping to make a case that might result in a ruling limiting or abolishing affirmative action, at least in school admissions. After obtaining admission records through the Open Records Act, he sent 31 letters to white applicants with good records who had been denied. He eventually found Hopwood and three other willing plaintiffs. Terral Smith, a former Republican member of the Texas Legislature from Austin and also a UT law school graduate, joined the case as lead attorney. He was assisted by Steven Smith, as well as by two lawyers associated with the Center for Individual Rights, a conservative legal action group in Washington D.C. The center also contributed money for legal expenses. The defense was led by Houston’s prestigious Vinson and Elkins, who accepted the case pro bono. The case was tried without a jury before federal district judge Sam Sparks, a conservative appointed by George Bush. Everything was in place for a major judicial statement on the use of racial privileges in university admissions. The Supreme Court has not wanted to confront the issue in the sixteen years since the controversial and confusing Bakke decision and apparently neither does Judge Sparks. On the second day of the trial he summarily dashed the plaintiffs’ hopes:
THE COURT: Is the point of the plaintiffs in this particular case that race ethnicity should not be a factor at all, period?
MR. T. SMITH: It is. And that race neutral things that may apply greater to…
THE COURT: I certainly would not emphasize your spending too much time on that point.
I can’t blame him. The arguments on both sides of the issue are persuasive. The law school, a public institution, is denying admission to qualified students of one race in favor of less-qualified students of a different race. The civil rights movement succeeded because it had moral force that derived from the belief that laws favoring one race over another were wrong. Yet Cheryl Hopwood was discriminated against, with the blessing of the law, because she is white. The UT law school likes to tell the stories of minority students who have overcome great obstacles in their lives as a justification for giving them preferential admission. If Cheryl Hopwood had been black, she would have been one of those stories: Despite a childhood of poverty in a single-parent home, she persevered to get a college degree and become a CPA, working full-time to put herself through school and then caring for her handicapped child while pursuing a professional career. Instead, not only her race but also her class was used against her. She was turned down because the schools she attended — the ones she could afford since she worked to pay her own way — weren’t considered good enough. The real costs of affirmative action do not often fall on privileged whites but on whites who have had to struggle.
Yet a society that is based on merit cannot perpetuate one group of people being generally less educated than another. As distasteful, as wrong as racial preferences are, they do serve a purpose in education when applied carefully. Society has a compelling interest in having an expanding minority professional class. Our schools, our public schools most of all, are clearly obliged to train those who can become part of that professional class. The experience of the law school demonstrates that affirmative action can help fulfill this obligation. The key is admitting only those minority students who, though not perhaps as well qualified on paper, are capable of doing the work the courses require. Rice University, the most demanding school in the state, also has a successful affirmative action program by, again, carefully selecting its students.
No premier school admits students strictly on a numerical ranking. By long tradition universities have given preference to children of alumni as well as preference and scholarships to the children of university professors and staff. These preferences come overwhelmingly to whites. No one claims they are unfair. Universities also frequently give regional preferences in order to have a diverse student body. Is there any difference, morally or practically, in giving a preference to a student based on where he lives as opposed to giving one based on his race? Each school wants to have a student body with as many different backgrounds, experiences, and interests as possible. To do that, the schools must look beyond the numbers and make subjective judgments about the applicant based on what they can tell of his or her life and character. In other words, schools give preferential treatment to some applicants simply because they are different from most of the other students. That is both a sensible policy and a form of affirmative action. It still seems sensible if the considerations for preference include race.
Judge Sparks may or may not admit the four plaintiffs to the law school. The school has changed its legally fuzzy admission procedures so that in the future the applicants will not be divided into separate groups competing only among themselves. UT’s commitment to minority admissions goals remains the same. I don’t see how it could be otherwise, but I have a terrible sense we are headed for disaster. Affirmative action particularly hurts those whites like Cheryl Hopwood who have neither money nor influential family or friends. It closes off avenues of upward mobility. As racial favoritism becomes either more common or better understood, a frustrated white person will someday check the Black/African American box on his law school application in order to have a better chance at entry and scholarships. If the perpetrator is challenged, his answer can simply be, “Prove that I am not black.” There is no legal definition, and to create one would be abhorrent. Those were the kind of laws passed in the days of Jim Crow, in Nazi Germany, and in South Africa. Yet the longer racial preferences last, the harder it will be to avoid such laws. The more we stray from the simple moral force of making no judgments based on race, the more certain we are to come someday to making decisions based on race alone.