Desegregation For Blacks Only
In Texas, de-segregation is for blacks only. This is the plain and peculiar principle that is guiding policy at the state level today. It is the principle that prevents state regulators from publicly objecting to Texas A&M University's decision to reject affirmative action.
A remedy to this situation only requires that the Texas Governor plainly say, "de-segregation in Texas is not for blacks only."
But how did this peculiar principle come to have such force in Texas, and why is it considered tenable on its face in a post-Grutter legal environment? (Not to mention post-Brown.) The answer has lots to do with the peculiar legal bubble known as the Hopwood ruling. And although that bubble has been burst, its effects have not yet been set aside.
Let's begin our inquiry by turning to the Summer of 2000, when then-Governor George W. Bush formally declared a "Texas Commitment" to de-segregation. The commitment was addressed to the Office for Civil Rights at the US Department of Education.
Beginning with a 1978 investigation of Texas higher education, OCR had been closely monitoring de-segregation of the state's colleges and universities. Governor Bush's commitments from the Summer of 2000 signaled the fourth round of "Texas Plans," developed under federal supervision.
The strategy of "Texas Plans" allowed Texas to propose and implement its own de-segregation, thereby forestalling any official rulings that Texas was not in compliance with civil rights standards. This process calls upon Texas to act in "good faith."
As attorney Ronald Vera once reported, "By instigating these voluntary measures, Texas would still be eligible to receive federal funds for higher education and would not run the risk of losing its federal funding in a court hearing."
In fact, it was the context of federal civil rights enforcement that prompted the Texas A&M University System Board of Regents to "voluntarily" adopt affirmative action on Dec. 5, 1980 as a "good faith" signal to OCR that the state could be trusted to undertake its own plan of desegregation. Until the process of de-segregation is completed, shouldn't Texas A&M continue to show its "good faith"?
In 1997, as Texas was implementing de-segregation plan number three, the OCR sent a team of investigators who found that the state had not yet eliminated its vestiges of segregation. It was time to think about Plan Four. And that's why Governor Bush was writing up a "Texas Commitment" in the Summer of 2000.
The Bush commitment began with a general promise that, "the State has taken the initiative to address other related issues affecting access to higher education in Texas in order to ensure a comprehensive and integrated plan for Texas higher education." We shall return to the meaning of this commitment.
But the Bush commitment also made five specific and numbered promises. The first four items focused attention on the state's need to redress the relative neglect suffered by the historical black campuses. For this reason, the Fourth Texas Plan was entitled, "Priority Plan to Strengthen Education at Prairie View A&M University and at Texas Southern University."
We will want to revisit the meaning of the term "priority" a little later. Does a Texas "priority" plan for black colleges translate into a de-segregation plan that pertains to black campuses "only"?
The fifth Texas commitment made by Gov. Bush in Summer 2000, says that the state will: "Improve the recruitment, retention, and participation rates of African-American and Hispanic students at the State's historically white institutions." It is not listed among the top four priorities, to be sure, but the plain language of the Bush document promises that the state will not neglect its responsibilities to de-segregate the white campuses, too.
Furthermore, in italic type, the Bush commitment promises that, "The State and its institutions are committed to the continuing support, implementation, and, where possible, the augmentation of these efforts to improve recruitment, retention, and success of other race students, faculty, and staff."
Note the clearly stated legal commitment to "augmentation" of de-segregation efforts "where possible," both for the state, "and its institutions," including historically white institutions such as Texas A&M University at College Station and Galveston.
However, the document was submitted under the bubble of Hopwood and it was at the time "legally impossible" to promise or pursue affirmative action in Texas. So when it came time to formulate concrete steps under the plan, it is true that regulators and state officials focused their "priorities" on getting some badly needed support for Prairie View and Texas Southern Universities.
In the wake of the Supreme Court's Grutter ruling of the Summer of 2003, however, Texas officials have made absolutely no adjustment in the interpretation of their specific responsibilities under the Fourth Texas Plan.
What began as a "priority plan" to strengthen the black colleges has therefore since become a de-facto "exclusive plan," as if the lifting of the Hopwood bubble should have no effect on the meaning of the state's promise to augment where possible the tools of inclusion available to the administrations of historically white institutions such as Texas A&M University at College Station and Galveston.
State regulators have all the plain language they need to insist that, in a post-Hopwood legal climate the state's own promises should be enough to compel adoption of affirmative action "where possible." And yet, they seem to be saying in unison: If OCR can't make us do it, then we'd rather not get involved in affirmative action at Texas A&M.
In fact, the top lawyer for higher education in Texas has been showing a powerpoint summary of Grutter that clearly demonstrates affirmative action as an "augmentation" that is possible for Texas universities to adopt.
As early as November 2000, the prestigious journal, "Black Issues in Higher Education," raised its eyebrows at the structure of the Fourth Texas Plan. "Ironically, supporters of the Texas idea aren't sure if it's even legal," reported the journal. How can a plan that is supposed to lift vestiges of segregation claim to apply only on black campuses? How can de-segregation apply to blacks only?
Even in the absence of pressure from a Bush-run OCR, Texas officials still have an opportunity to include white campuses within the scope of their own good faith promises.
Even if desegregation of white campuses was priority five of five, it is a priority nevertheless, according to the Governor's own promise.
And even if Hopwood prevented more affirmative action in the year 2000, the Grutter decision of 2003 now makes it possible to augment, as promised, the effort to de-segregate the state's white campuses, including Texas A&M University at College Station and Galveston.
"Desegregation for blacks only," is therefore a principle that deserves early retirement in Texas. And the Governor could do it tomorrow if he wanted to. All he has to do is announce to the people of Texas that he is pleased to keep the promises made by Gov. Bush to augment de-segregation wherever and whenever it is possible, whether on black campuses or white.
The Governor's power in this regard is augmented by the fact that the Texas A&M University Board of Regents, at their meeting of Dec. 5, 2003, made absolutely no reference to race or affirmative action in their published agenda.
Either the Regents are witholding crucial documents or they in fact made no written policy with respect to race or affirmative action. Surely it is easy to change a decision that was never made in writing.