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With All Deliberate Speed? Fifth Circuitand TexasDeclare Temporary Truce in the War Against Affirmative Action BY MICHAEL KING university administrators individually li poses, and then to “white-out” the offend able, including punitive damages for any ing distinctions before passing the files on thing that the panel perceives is a violation to admissions committees. of this decision.” Should the decision In the days following the March 19 deci stand, the current plaintiffs or some future sion, similar actions were taken at most “Hopwood” could sue the school and its major Texas universities. Significantly, the admissions committees, and try to collect change in policy was not confined to addamages not only from the university, but missions decisions. Under the theory that from the individual faculty members. the court’s ruling might also apply to mi “This is an extraordinary opinion,” said nority scholarships, financial-aid programs U.T. Professor of Law Douglas Laycock. designed for minority students at the vari ous universities were also quickly discontinued. The most far-reaching action was taken by Commissioner of Higher Education, Kenneth Ashworth, who suspended the statewide program of financial aid to minority students, insti tuted in 1982 following a fed eral order that Texas desegre gate its college and university system. \(Ashworth’s policy was modified April 18 by the Coordinating Board, which allowed aid to continue on a broadly defined, non-racial “educationally disadvantaged” basis; a day later the Court issued its stay, and the mi The delay granted by the judges put a temporary end to the higher education ad ministrators’ rush to dismantle all affirma tive action programs. Professor Laycock thinks the officials had little choice, saying, “[the decision] relies heavily on a scholar ship opinion in the Fourth Circuit, so it plainly thinks that the principle it an nounces applies to scholarships. It’s easy to say that the people who run the univer sity should have stuck their necks out further, and maybe they would have gotten away with it. But it’s also easy to understand why they made the decision they did.” But not everyone affected was con vinced that the haste was either seemly or necessary. Al Kauffman, attorney for the Mexican-American Legal Defense Fund, told the Hous ton Chronicle that he thought that Ashworth in particular had gone “overboard,” and that the Fifth Circuit ruling applied only to the U.T. Law HOW LONG WOULD IT TAKE to resegregate Texas universities? That was the question confronting educators, lawmakers, and citizens last month, in the wake of the quickly notorious Hopwood decision by the U.S. Court of Appeals for the Fifth Circuit. Until the effect of the decision was delayed by the court on April 19, university administrators had been racing to abandon affirmativeaction programs designed to reverse the effects of segregation and the historic under-representation of minority students in Texas schools. The University of Texas, Texas A&M University, and the University of Houston had each announced the suspension of the use of all racial criteria in admissions evaluations, as had the private schools Rice and Baylor University. Shortly thereafterin what one faculty member described as “a race to the bottom”the schools also stopped financial aid programs aimed at minority students, and the Texas Higher Education Coordinating Board suspended its statewide minority aid program. Now, in the wake of the stay granted by the Fifth Circuit Court \(affecting Texas, ministrators are reinstating the schools’ affirmative action programs, at least until such time as the Supreme Court has an opportunity to rule on the state’s appeal of the controversial Fifth Circuit decision. In the meantime, more than one university observer has been asking, “What was the big rush?” AS REPORTED in the April 5 Observer, the Fifth Circuit ruled unconstitutional the affirmative action, race-based admissions program of the University of Texas Law School, forbidding any use of racial preferences, either to remedy past discrimination or to promote educational diversity. Summarizing the decision, U.T. Professor of Law Sanford Levinson said, “The majority of the panel has declared full-scale war on affirmative action. They made that very clear in their opiniontheir willingness to hold “A generation ago, when the decisions were going the other way [in favor of integration], they didn’t threaten George Wallace with punitive damages…. This is an opinion that goes out of its way to threaten the university and its employees.” University officials were quick to take the hint. The University of Texas, defendants in the Hopwood case, briefly suspended all admissions decisions, and all departments were instructed to end immediately all recruitment or recruitment-related activities which might include racial criteria. A dean’s memorandum distributed to the College of Natural Sciences, for example, warned, “Unfortunately this applies to all of our graduate programs. We should also hold any advertisements or solicitations for minority-based special programs. It is very important that everyone abide by this prohibition since personal liability may be involved in failing to do so.” The determination to immediately eliminate all vestige of racial distinctions went to extreme, even comical forms. Faculty members reported that secretaries were told to take note of racial categories on student applications for statistical pur “When the decisions were going the other way, they didn’t threaten George Wallace with punitive damages….This is an opinion that goes out of its way to threaten the university and its employees.” 4 MAY 3, 1996