Hopwood ruling follows Morales
Affirmative action edict may affect how wind blows in governor's race
By CLAY ROBISON
Feb. 2, 2002, 11:44PM
Copyright 2002 Houston Chronicle Austin Bureau
AUSTIN -- Five years later, universities are slowly recovering from the effects of the Hopwood decision, which effectively ended affirmative action in higher education admissions in Texas.
The jury is still out, however, on the long-term future of minority enrollments and on the short-term political future of the man who issued the controversial edict.
Then-Texas Attorney General Dan Morales angered minority leaders by ruling, in 1997, that a federal court order against one Texas law school prohibited all state universities from using race as a preference in admissions, scholarships and other student programs.
It may have deepened their ire that the opinion, which has the force of law, came from one of the first Hispanics ever to win election to a statewide office in Texas.
The political liability of Morales' decision went untested for several years because the attorney general didn't seek re-election in 1998. But it has emerged as an issue now that he is seeking a comeback in the Democratic race for governor.
Laredo businessman Tony Sanchez, Morales' main opponent for the Democratic nomination against Gov. Rick Perry, is fanning the flames.
"I don't like a fellow who gets to the top by affirmative action and then pulls up the ladder behind him," Sanchez said in a recent address to the Texas AFL-CIO convention.
Morales, a graduate of Trinity University and Harvard Law School, has insisted his academic success was based on his abilities, not special considerations for his ethnicity.
Refusing to yield on Hopwood, he accused Sanchez of resurrecting the controversy to try to "divide Texans by ethnicity or race."
"We're all Texans. We're all Americans. The majority of Texans want their leaders to emphasize the things we share," Morales said.
But Sanchez's campaign manager, Glenn Smith, said he still senses a "lot of antipathy" toward Morales over the Hopwood opinion, particularly from Hispanics, whose vote will be crucial in the Democratic primary.
"Hispanics seem to have felt more personally betrayed by Morales," he said.
State Sen. Royce West, D-Dallas, said black Democrats share those concerns. The National Association for the Advancement of Colored People recently organized a state Capitol news conference of minority legislators blasting the Hopwood decision.
"I was never satisfied as an attorney or a state senator that he (Morales) had to go as far as he did" in interpreting a federal court order, West said.
"It is an issue that I think voters should take into consideration."
Morales' opinion followed a decision by the 5th U.S. Circuit Court of Appeals -- and later upheld by the U.S. Supreme Court -- that a race-based admissions policy once used by the University of Texas School of Law was unconstitutional.
The policy had been challenged in a reverse discrimination lawsuit by Cheryl Hopwood and three other white students who had been denied admission to the law school.
Although the suit and the court's decision applied only to the UT law school, Morales held that it prohibited all state universities from using racial preferences in student programs.
He said at the time that university officials should use "race neutral" criteria -- including family income and educational history -- in admitting and offering financial aid to students.
"We must express to young Texans the reality that in this country one is capable of rising as high as his or her individual talents, ability and hard work will allow," he said then.
But critics of his ruling argued that minorities were underrepresented among Texas' college population.
Even before Hopwood, many universities didn't use race as a factor in admissions, but the two largest -- the University of Texas at Austin and Texas A&M University -- did.
The Texas Higher Education Coordinating Board, in a study ordered by the Legislature, reported in 1998 that the Hopwood decision -- including Morales' interpretation -- had had a "negative impact" on the number of blacks and Hispanics applying for and enrolling in Texas' most prestigious universities and professional schools.
And, the report noted, the ruling had come at a time when diversity in higher education was becoming more and more critical with the growth of minority populations in Texas.
The Legislature in 1997 partially addressed the problem by enacting a law that guarantees admittance to any state university to anyone who graduates in the top 10 percent of his or her high school class. The idea was to give the top graduates of the state's poorest schools -- many of which are in minority neighborhoods -- an opportunity to enroll in the state's best public universities.
In an op-ed article in the Houston Chronicle in October 2000, UT-Austin President Larry R. Faulkner said that the top 10 percent law had "enabled us to diversify enrollment at UT-Austin with talented students who succeed."
The minority enrollment numbers at the state's largest university are now comparable to what they were before Hopwood. In 1996, the last year before racial preferences were ended, blacks made up 4 percent and Hispanics 14 percent of the entering freshman class at UT-Austin. Last fall, blacks accounted for 3 percent and Hispanics for 14 percent of first-year students.
Minority enrollment at the UT law school also has been recovering.
The University of Texas System -- with Tony Sanchez on its governing board of regents -- spent several years and made two trips to the U.S. Supreme Court trying unsuccessfully to reverse Hopwood.
Texas Attorney General John Cornyn, Morales' Republican successor, ruled in 1999 that Morales had gone too far in his interpretation of the Hopwood court order. But he advised university officials to continue using race-neutral admission policies pending UT's appeal.
The Supreme Court's final refusal to hear the case came last June.
"I believe Mr. Sanchez is wrong, and I believe I am right on Hopwood," Morales said last week.
"When I am governor, Texas is going to help every young person who wants to go to a college or university."