Breaking Thurgood Marshall's promise - declining minority enrollment in higher education

Black Issues in Higher Education, Feb 5, 1998 by A. Leon Higginbotham, Jr.

The dissenters wrote that the majority's opinion "goes out of its way to break ground that the Supreme Court itself has been careful to avoid and purports to overrule a Supreme Court decision." They added that "the radical implications of this opinion ... will literally change the face of public educational institutions throughout Texas, the other states of this circuit, and this nation."

The majority opinion in Hopwood stands in sharp contrast to the role that the Fifth Circuit has played in the civil rights era. In the 1950s and 1960s, many Southern officials, White citizens' councils, and vigilante groups urged total defiance of the federal courts' civil rights decrees. Despite the persistent hostility, virtually every Fifth Circuit judge -- all appointed by President Eisenhower -- repeatedly affirmed the constitutional rights of Black citizens, among them Rosa Parks and Martin Luther King Jr.

When President Reagan took office, he pledged to bring a "new breed of conservatism" to the judiciary. Under his and President Bush's administrations, the judiciary became not only far more conservative but also far more White than it had been. Of eighty-three appointments to the appeals courts, Reagan appointed only one African American. Bush appointed two, and one of those was Clarence Thomas. (Carter appointed nine African Americans and Clinton has appointed five.)

In 1983, during his less conservative days, Clarence Thomas said, "But for affirmative action laws, God only knows where I would be today." Now that he is on the Supreme Court, he repudiates affirmative action and has made it safe for people like Prof. Lino A. Graglia, of the University of Texas School of Law, to assert openly that "Blacks and Mexican Americans are not academically competitive with Whites in selective institutions" because "they have a culture that seems not to encourage achievement. Failure is not looked upon with disgrace." Thomas's skewed and hostile views have also paved the way for the ascent of anti-affirmative action crusaders like Ward Connerly, a driving force behind California's Proposition 209, the philosophy of which seems to be that anything expressly benefiting African Americans, no matter how benign, useful, or good, is inherently suspect and wrong.

Certainly, it is appropriate for a president to consider what he views as the mandate of the voters who elected him and t o nominate those who seem to share his judicial philosophy. Still, it's impossible to ignore the tragic impact of the Reagan and Bush appointments.

In a 1989 employment discrimination case, justice Harry Blackmun, a Nixon appointee, wondered whether a majority of the Supreme Court "still believes that ... race discrimination against non-Whites is a problem in our society, or even remembers that it ever was." This question reverberates today in the chilling legacy of the Hopwood decision. Hopwood has already had a pervasive impact on decreasing minority enrollment in many higher-ereducation institutions. The number of medical school applications from under-represented minorities has dropped by 11 percent nationally and 17 percent among students who live in Texas, Louisiana, and Mississippi, where the Fifth Circuit now has jurisdiction. The group that represented the plaintiffs in the Texas case recently filed suit to have the affirmative action program for undergraduates at the University of Michigan declared unconstitutional.