purely “objective” admission decisions are self-defeating and futile, and that racial background or other disadvantages, in an honest review, should become additional information for making an informed judgement of the student’s capabilities. “The truth is, we do not live in deracinated world. I don’t care how redacted the files are, I’m going to be able to tell you, as a professional who has read these things for years, a Mexican-American kid who comes from Pharr High School….I’ll know.” At U.T., Sanford Levinson defended the University’s response, making an analogy to the desegregation decisions of the 1950s. “A lawyer can say,” he argued, ‘Look, this decision only deals with admissions, it doesn’t deal with scholarships,’ just as a lawyer in the ’50s could say, ‘This deals with the Little Rock schools, it really doesn’t deal with the New Orleans schools.’ But everybody knew that the principle was much broader, and there was something disingenuous in waiting to be sued. “If the Supreme Court overturns Hopwood,” Levinson added, “and I think that they will, it’s to some extent a different ballgame. But right now I think what the university is really and quite properly worried about, is the Fifth Circuit. And as I say, the only way to describe that opinion is as a full-scale declaration of war.” If war has been declared upon affirmative action, who are the likely casualties? Before the Fifth Circuit granted its stay, the predictions were ominous. Since most admissions decisions had already been made for the 1996-97 academic year, it seemed at first that the immediate effects would be minimal. But when minority financial aid was also suspended, administrators and faculty members began to fear that the years of slow progress toward truly integrated classrooms would abruptly end. Michael Sharlot, Dean of the U.T. Law School, described the substantial progress made by the program \(“including all categories, last year’s class was twenty-eight newly-accepted applicants might go elsewhere, for real or perceived reasons. “I don’t know what minority students who have already received an offer will do…I fear that the place may be less attractive than it was last year, simply because African-American and Mexican-American students will anticipate that there will be a smaller number of their group present, and so psychologically it will be less comfortable than it was last year.” Sharlot’s colleague, Professor David Anderson, was more blunt. “It will be disastrous. I think we’re going to have an allwhite university, virtually, within a year or Sylvester Turner ALAN POGUE two, as far as blacks are concerned; I think it’s a little bit different with Hispanics, because of our geographical situation. “Here’s the reason it’s disastrous: if you say, ‘We can’t give minorities an advantage in the admissions shot,’ that means the only minorities we have a chance at getting are those that are also being courted by everybody else, because they’re the ones with high enough grades that they can go to Duke or Harvard or Chicago, or someplace like that. So how are going to get them? The way we’ve been doing it is we’ve been offering financial aid; and we’ve been extremely successful at it. “And it’s not just financial aid, it’s a whole recruiting package. It’s having a network of minority alumni and others who help with recruiting of these people, who are well qualified; it’s having continuity the recruit who had a friend in the previous year’s class at Texas, says ‘Well, I like it down there.’ So because we’re cutting off both scholarships and admissions, it pretty much kills all of that, so we end up with no momentum, and we end up with no recruiting program in place. So there really isn’t much reason for a bright black student in Chicago or New Yorkwhy would he or she want to come to the University of Texas right now?” Other faculty members echoed Anderson’s comments, particularly since the new policy technically applied only to in stitutions in the jurisdiction of the Fifth Circuit, and other schoolswith whom Texas schools compete for applicants could take the position that they remained free to recruit and offer aid to minority applicants. Not only the professional schools would be affected; Higher Education Commissioner Ashworth speculated that new minority enrollment at Texas colleges and universities might plunge as much as thirty percent, across the state. There was audible relief when the Fifth Circuit delayed implementation of its ruling. U.T. President Robert Berdahl said the stay would “help us a great deal in avoiding unintended consequences, in terms of hardships for students.” Less audible among Texas educators was any concerted planbeyond waiting hopefully for the Supreme Court to overturn Hopwoodto actively defend affirmative action. Discussing the case with U.T. students, Berdahl commented, “We will fight it as strenuously as we can the only place we can, and that’s in the courts.” The consensus is that the Supreme Court will certainly take the case, for a decision sometime in the spring of 1997; supporters of affirmative action, although concerned about the conservative direction of the Court, are generally convinced that it will support affirmative action in higher education. Douglas Laycock called .affirmative action “the least bad option of some very bad alternatives,” and believes that a majority of the Court still agrees, at least concerning education. “I don’t think that five of them are ready to shut down affirmative action around the country,” he said. “I do not count five votes to create a lily-white educational system at major state universities.” “My feeling,” said David Anderson, “is that five members of the Court are going to view [the Hopwood decision] as a radical repudiation of a widespread American consensus for affirmative action. If you look around, virtually every corporation in America is engaging in affirmative action voluntarily, because they think it’s the right thing to do. There has been this kind of ideological objection to it for a long time…But I still think there is an overwhelming consensus in responsible Americalabor unions, foundations, churches, universities, business, all throughout Americathat race relations in America requires some form of affirmative action. I can’t imagine that the Supreme Court is oblivious to that consensus.” IF THERE IS a silver lining in the Fifth Circuit’s “declaration of war,” it is that the ruling may galvanize currently complacent public support for minority rights. “I think we’re going to have an all-white university, virtually, within a year or two, as far as blacks are concerned.” David Anderson 6 MAY 3, 1996
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