Texas Hunts for Ways to Foster Diversity

Cheryl Hopwood has worked since she was old enough to lug a bag of newspapers. She watched her single mother juggle three jobs. She put herself through college while struggling to pay for her handicapped daughter's expensive care.

America, in her eyes, is a meritocracy.

Ms. Hopwood had little doubt, then, that her high grades and test scores would earn her a spot in the at the University of Texas law school. It did not matter to her that she was white. Her accomplishments, she believed, spoke for themselves.

Today her name is on the lips of judges and lawmakers in Texas and across the US. After her application was denied in 1992, she became the lead plaintiff in a suit challenging the school's policy of giving preference to less qualified minorities.

Her case has become a central symbol of the wrenching debate on affirmative action and is changing the face of public higher education in Texas. Legislators have moved to tighten scholarship preferences and are scrambling to find other ways to foster diversity. Ultimately, Hopwood's case could provide the definitive answer to a fundamental American question: What role, if any, race should play in determining a person's access to taxpayer-funded privileges.

"We have learned in this country of the harm that racial discrimination does," Hopwood said in a rare public statement at the Claremont Institute in Claremont, Calif. "We changed our Constitution so that government may not select winners and losers on the basis of skin color. That is the law, and it is the only fair way for our government to deal with all of its citizens."

Legitimate goals

Although the US Supreme Court refused to hear Hopwood's case, it has issued a series of rulings in recent years which conclude the only legitimate goal of a preferential admissions policy is to redress past grievances toward specific groups, and not promote diversity for its own sake.

The last major Supreme Court ruling on the matter was the 1978 Bakke case which held that rigid quotas for minorities were unconstitutional, but that race could be used as one of many factors in offering admission to public universities and graduate schools.

Hopwood's suit, brought by Texas lawyer Steven Smith in conjunction with the Center for Individual Rights in Washington, alleged that in many cases, the University of Texas (UT) law school used race as the primary factor in granting admission and financial aid. Her lawyers argued that UT's practices of color-coding files by race, maintaining segregated waiting lists, and judging minorities by lower academic standards were discriminatory and unconstitutional.

Last year, a federal judge in the Fifth Circuit of appeals ruled in favor of Hopwood's suit, and a subsequent legal opinion by Texas Attorney General Dan Morales prohibits public universities here from considering race as a factor for either admission or aid.

The Hopwood decision applies only to the Fifth Circuit - which includes Texas, Louisiana, and Mississippi - but the suit placed Texas, along with California, at the forefront of the heated affirmative action debate.

California is the only other state to prohibit race as a factor in admissions, but similar bills were introduced last year in 30 other states, according to the National Conference of State Legislatures.

The Hopwood decision has already begun to change the character of UT's law school, and has sparked a wave of legislation that could alter the admissions process at every public college in the state. So far, the results have been less than encouraging.

The number of minorities applying to UT's law school fell last year, as did the number of admitted minorities who decided to attend. The only black student who enrolled recently withdrew, citing the negative publicity surrounding the Hopwood suit. In years past, as many as 60 blacks have earned spots in first-year classes.

The news has prompted some Texas lawmakers to look for ways to ensure diversity in higher education. Last month, legislators passed a new law requiring public colleges to offer admission to the top 10 percent high school students. Since many of these schools are predominantly black or Hispanic, theoretically this law might foster racial diversity.

Another bill, sponsored by two black representatives, would require scholarship athletes to meet the same minimum grade standards as the rest of the student body. According to the bill's authors, it's unfair to eliminate race-based scholarships for academically qualified minorities while admitting less qualified minorities on their athletic merits.

Texas Gov. George W. Bush (R) supports both measures.

Arbitrary policies?

Terry Pell, one of the lawyers who brought the Hopwood suit, says lawmakers here are substituting one arbitrary admissions philosophy for another. Admitting the top 10 percent of high school students is a "bureaucratic" approach, he says. "Admission officers have been very unserious and superficial about diversity," he adds. "They want to see a percentage of black faces in their classes. I think that's offensive to ... blacks and whites."

But according to Michael Sharlot, dean of the UT law school, the policy has left officials there with no choice but to place more emphasis on test scores and grades. Although personal factors like socioeconomic background can be taken into account, he says, numerical measures are still the best indicators of success in law school - even though they tend to work against minority applicants.

To Mr. Sharlot, the elimination of policies designed to attract minorities works against the best interests of a civil society - more so than they would if applied to engineering or chemistry.

"The law is the most public of professions," he says. "Law in a civil society depends overwhelmingly on the willingness of society to accept its judgment. It becomes harder to achieve that if we don't see members of all groups playing roles in the administration of justice."