01/22/2002
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
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
"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.