Sanchez making an issue of Morales' handling of Hopwood

01/22/2002

By CHRISTY HOPPE / The Dallas Morning News

 

AUSTIN In the trickle of minorities at state universities and amid a torrent of accusations within the Democratic primary, the Hopwood decision ripples deep in the heart of Texas.

A 1997 opinion by Attorney General Dan Morales expanding on a 5th U.S. Circuit Court of Appeals decision in 1996 on a suit brought by Cheryl Hopwood and three other white students against the University of Texas School of Law effectively ended affirmative action at state colleges.

The decision has become a target for Mr. Morales' rival in the Democratic primary for governor.

"What he did was tragic. It set us back 50 years. And he didn't have to," candidate Tony Sanchez, a Laredo businessman, said last week.

He said Mr. Morales benefited from affirmative action and then "turned his back" on his own people.

Mr. Morales, who was attorney general from 1991-1999, rejected that and said he would issue the same opinion today because race should carry no weight in government decisions.

"I believe the time for race-based preferences has passed," he said.

Hopwood is also making waves in a Republican primary for the Supreme Court.

Republican Justice Xavier Rodriguez, a recent court appointee of Gov. Rick Perry, landed a last-minute primary challenge by Steven W. Smith, an Austin lawyer who initially filed the Hopwood suit against the University of Texas School of Law.

Mr. Smith said he is running against Justice Rodriguez in the March 12 GOP primary because he perceives him as too moderate.

He said he reached that conclusion after seeing an endorsement by Vinson & Elkins managing partner Harry Reasoner on Justice Rodriguez's campaign website.

Mr. Reasoner, who donated his services, was the lead defense attorney for the UT Law School's attempt to retain affirmative action in Hopwood.

Backers of the justice also say on the website that his "conservative philosophy will serve Texas well."

The Hopwood case followed UT School of Law's denial of admissions to the four students in 1992.

The 5th U.S. Circuit Court of Appeals ruled that past discrimination or an intent to diversify were insufficient reasons to use a racial bias. It found race cannot be a factor in the admissions process.

Ruling expanded

 

Soon thereafter, Mr. Morales took the most controversial move in his eight years as attorney general.

 

He issued an opinion that expanded the Hopwood decision to include all public universities. And he not only prohibited using race as a factor in school admissions, but also said it could not be used to target financial aid, scholarships, recruiting or tutoring programs.

As the attorney for two of the plaintiffs, Mr. Smith said he was surprised at the expansive opinion and to find that Mr. Morales felt that way. "But the real surprise was that he would take a stand that would be controversial in his own party," he said.

Most analysts say Mr. Morales' opposition to affirmative action could hurt him in the Democratic primary, especially among minority voters. They said it's not surprising that Mr. Sanchez chose Hopwood as the basis of his first attack.

But the two have been on opposite sides of Hopwood for a long time. Mr. Sanchez is a UT regent who has fought the decision for years.

"What the Hopwood/Morales decision says is this: You kids may not be welcome here; it's going to be hard to get in; it'll be hard to get financial aid, and you better go elsewhere," Mr. Sanchez said.

He said Texas should be looking for ways to help all children attain an education, but that closing its eyes to the hardships faced in particular by minority children sends the wrong message and only makes it harder to break the cycle of poverty.

In addition, Mr. Sanchez believes Mr. Morales, who was admitted to Harvard Law School in 1978 after graduating with honors from Trinity University in San Antonio, is showing hypocrisy.

"He got to Harvard through affirmative action, got to the head of his career, and he picked up the ladder behind him," Mr. Sanchez said.

Mr. Morales disputes that now, although in a 1997 interview, Mr. Morales conceded that Harvard's affirmative action program might have been a factor in his admission to its law school.

"Race is not a determinative factor at Trinity University or at Harvard. At UT law, they were making decisions based on race and ethnicity," he said last week.

Mr. Morales said that he believes in lending a helping hand to anyone who needs it, and the aid should be based on such things as economic need, family history, community volunteerism, and work ethics. Not race or ethnic background.

"My position from a policy standpoint is the state of Texas is obligated to help every young person who wants to get into college regardless or race," he said.

"I could say that I support affirmative action and that would be a true statement," he said.

Mr. Morales said that given the opportunity, he would issue the same Hopwood opinion again. But he said he would make a better effort at "communicating our motivation and the consequences that were involved."

Hopwood's effects

 

Soon after the Hopwood decision, minority enrollment plummeted at public universities, and at law and medical schools in particular. The numbers have only recently begun to recover, mostly through help from a new state law that provides automatic admission to all high school seniors who graduate in the top 10 percent of their class.

"Hopwood certainly slowed us down, and I'm not satisfied about where we were before Hopwood," said Bruce Walker, UT director of undergraduate admissions.

Currently, Dr. Walker said, these rules apply: "We can't identify a student based on their race. We can't use race in recruitment, scholarships and retention programs and, of course, admission decisions."

Before the Hopwood ruling, blacks made up 4 percent and Hispanics 14 percent of UT's entering freshman class. Last fall, blacks were 3 percent and Hispanics were still 14 percent of the freshmen.

In comparison, 11.5 percent of the state's population is black and 32 percent is Hispanic.

Although Republican Attorney General John Cornyn rescinded the Morales opinion in 1999, the original decision still carries legal weight, said UT law professor Douglas Laycock, who has worked extensively on the Hopwood case.

Most universities fear a new lawsuit, which would be bolstered by the Morales opinion, should the reinstate their old programs he said.