Page 15


became aware of how her mother had to juggle two jobs just to pay the rent and get dinner on the table, Cheryl wanted to be a lawyer. “I just figured that as a lawyer,” she says, “no matter what life threw me, I could afford to ride it out.” In December 1990, after having worked for two years as a certified public accountant, Cheryl took the LSAT. When early the following year the Hopwoods learned that the Air Force was transferring Eric to Brooks Air Force Base, in San Antonio, Cheryl searched her law-school guidebook for nearby schools. There were two: St. Mary’s University, a little-known, costly private school in San Antonio, and the highly-regarded and relatively inexpensive U.T.-Austin, some eighty-five miles up Interstate Highway 35 from the base. “I was told by people whose opinions I valued,” she says, “that if I wanted a law school that matched my abilities, I should go to U.T.” In October 1991, the Hopwoods moved into a new house in a new subdivision of a faceless suburb, Universal City, on the north side of San Antonio. Living there meant a thirty-minute commute for Eric, but it would also lessen Cheryl’s drive to Austin from ninety minutes to barely over an hour. Two months earlier, their daughter, Tara, had been born. Being a new mother is daunting enough, but caring for a severely disabled newborn, coupled with the prospect of a long commute and the grinding life of a first-year law student was overwhelming. “Can I really do this?” Cheryl asked herself and her husband over and over during their first fall and winter in Texas. They finally settled on a compromise. She would apply for admission to the entering class of 1992, providing that the school would allow her to begin with a reduced course load. Then she was thrown another curve: U.T. said no. But the rejection letter gave Cheryl three weeks to reply if she wished to be placed on a waiting list. “I brooded over it for a day or two, and then called the school,” she says. “I told them I needed two to three months’ notice because Tara is constantly in and out of doctors’ offices and hospitals. She has CAT scans, MRIs, EEGs, upper GIs several times a year, hearing tests, eye tests. Those are the normal appointments. That doesn’t count when something goes wrong: the surgeries, the gastroenterologists….” The Hopwoods also needed time to get the money together. In addition to the costs of law school, about thirty-seven-hundred dollars for tuition and books, the couple was facing seven thousand dollars in medical bills for Tara as well as the cost of her day care. Because the admissions office could not guarantee when or if Cheryl might be accepted, she declined a spot on the waiting list. “I didn’t know what else to do,” she says. “I couldn’t change the schools I went to or my GPA, and my LSAT was already pretty good. I figured I gave it my best shot, and I needed to move on.” Then came the letter from Steve Smith. After some preliminary correspondence, Cheryl agreed to become Smith’s lead plaintiff. On September 29, 1992, Smith filed suit in U.S. district court in Austin on behalf of Cheryl and another woman, who later dropped her complaint and was replaced, ultimately, by three white male plaintiffs. All alleged that U.T. had discriminated against them on account of race and thus denied them the opportunity to attend the state’s flagship law school. The plaintiffs asked the court to declare U.T.’s admissions policy unconstitutional because it violated their Fourteenth Amendment right to equal protection under the law. Further, the suit asked that the plaintiffs be admitted to the law school and that unspecified compensatory damages be awarded. As Smith said at the time, “We’re saying that anyone who gets federal funds can’t discriminate on the basis of race.” CIVIL RIGHTS ACTIVISTS believe the Hopwood case is a smokescreen for a larger conservative agenda. Samuel Issacharoff, a U.T. law professor who helped defend the school, calls Cheryl and her fellow plaintiffs “cannon fodder” in an “ideological assault on higher education.” And law professor and activist Derrick Bell frames the lawsuit as a response to the perceived threat to advantages whites have historically enjoyed in the job market. Bell, an African American, left the Harvard School of Law in 1990 in protest of the school’s failure to grant tenure to minority female professors. “It seems to me,” he says, “that when you look at the overall admissions program and at the minority-admissions program, that it has as much justification and perhaps more than some other criteria. No school, particularly a prestigious law school like Texas, admits people simply on the basis of grades and test scores. Schools give weight to whether an applicant is a child of an alumnus, or of a faculty member or a contributor. But [Hopwood] doesn’t complain about that. So the legitimacy of her claim and other such claims across the country are undermined by the fact that no school admits strictly on the basis of scores.” Even supporters concede there are specific programs in need of revision or discarding. But because of long-standing economic and cultural inequities, blacks and Latinos still consistently score lower on standardized tests. Thus, any admissions or hiring based purely on the numbers will turn up few successful minority candidates. So while advocates do acknowledge that inequities occur, that individuals such as Cheryl Hopwood end up bearing a bit more of the burden than others, the overall good for societyof having minority and female political leaders, doctors, lawyers, police officers and firefightersoutweighs the negatives. Harry M. Reasoner, the lead trial lawyer for U.T. in Hopwood, calls Steven Smith and his colleagues “ideologues who think in mechanical terms about a colorblind world and about individual merit. But the question they never came to grips with is, `Is it acceptable for us to have a selection system which results in a lily-white law school?’ You take their logic, you wind up with apartheid.” It would be nearly two years before the suit that Smith initiated in 1992 came to trial. In the meantime, both sides recruited some of the heaviest legal hitters in Texas. The plaintiffs, who had styled the case in the Texas press as “David v. Goliath,” enlisted as lead trial counsel Terral Smith, an influential former Republican state legislator from Austin, as well as the financial and legal backing of a Washington-based conservative foundation called the Center for Individual Rights. In April 1994, four weeks before opening arguments, the law school blinked: it abolished the minority admissions subcommittee and the presumptive-admit and -deny categories. “We did that, frankly, because the judge had expressed concern about those aspects of the plan,” says Reasoner. Reasoner is a U.T. law alumnus and the managing partner of Vinson & Elkins, a five-hundred-lawyer firm based in Houston, which provided its services without charge to the state. Cheryl and her fellow plaintiffs won that preliminary round, but they did not fare well in the next. U.S. District Judge Sam Sparks, also a U.T. law alumnus \(he and Reasoner served together on the law remer dual-committee admissions procedure was unconstitutional, as he did the use of “different presumptive-admission lines.” But the judge, whom President George Bush appointed to the bench, upheld the remedial purpose of the school’s affirmativeaction program as “a compelling governmental objective.” “It is regrettable that affirmative action programs are still needed in our society,” wrote Sparks in an eighty-two-page opinion released in August 1994. “However, until society sufficiently overcomes the effects of its lengthy history of pervasive racism, affirmative action is a necessity.” Judge Sparks refused to order U.T. to admit the plaintiffs. He awarded each but one dollar in damages and the right to reapply without paying the standard fifty-dollar fee. “Basically, he agreed my civil rights 6 APRIL 5, 1996