BATON ROUGE, LA.
Public-university officials in Louisiana and Mississippi are living dangerously these days, working under stringent court orders that give conflicting directives on affirmative action. One wrong move and someone could be sued.
Take Lisa Harris, dean of undergraduate admissions at Louisiana State University and A&M College here. In one hand she has a 1995 court-approved settlement, in the college-desegregation case U.S. v. Louisiana, that permits the use of affirmative action in admissions for the purpose of racial integration. In the other, she has a 1996 court ruling, in Hopwood v. Texas, that bars Louisiana campuses from using affirmative action in admissions to enhance racial diversity.
Not surprisingly, Ms. Harris speaks carefully when describing the admissions process at L.S.U. An applicant’s race is not a factor (as Hopwood exhorts). But admissions criteria may be waived for hundreds of black students who don’t meet the standards (as Louisiana allows). When asked how many slots in the freshman class were given to such students last fall, Ms. Harris wouldn’t say. Days later, she volunteered the proportion of admissions exceptions given last year -- 12.5 per cent of the freshman class -- but did not have data on how many black students had benefited.
“I don’t want to say anything that pokes holes in our policies,” Ms. Harris says. “We think we’re supposed to follow this consent decree, but then there’s Hopwood, and are they in conflict? No one wants to test that.”
Two years after the U.S. Court of Appeals for the Fifth Circuit ruled, the Hopwood decision continues to cause consternation in Louisiana, Mississippi, and Texas, the three states to which it applies. But the impact of the ruling, and the reasons for the anxiety, are starkly different in the three states.
At the insistence of the state’s Attorney General, Texas public colleges complied with Hopwood by ending affirmative action in admissions and financial aid, enduring widely publicized losses in new minority enrollments as a result. In Louisiana and Mississippi, the effect of Hopwood has been less noticeable -- because almost nothing has changed.
Separate desegregation orders in Louisiana and Mississippi have created a cocoon protecting affirmative action at their public universities. Several race-based programs had been mandated by courts to remedy past discrimination. Others are voluntary efforts that are justified by college officials as in the “spirit” of desegregation.
“The assumption is that Louisiana is not bound by Hopwood because the state operates under the court decree,” says Franklyn G. Jenifer, president of the University of Texas at Dallas and a member of a panel that monitors Louisiana colleges’ compliance with the desegregation settlement. “But the different court orders make the terrain very difficult: In the three states, you have the Fifth Circuit saying race cannot be used, but in Louisiana, you have a court saying race must be used.”
According to several college officials, the intersection of Hopwood and the desegregation decrees creates a puzzle for Louisiana and Mississippi that probably cannot be solved without a lawsuit challenging race-conscious programs. At what point, college officials in the two states wonder, do permissible policies that promote racial desegregation cross over the Hopwood line to become illegal policies that promote racial diversity?
The University of Mississippi School of Law, for instance, has long given a free ride to all black state residents who enroll. For the 1997-98 academic year, 47 black students received tuition grants totaling about $110,000. No court mandates this specific policy, says the law school’s dean, Samuel Davis, but it helps “promote a diverse student body and remedy the effects of past discrimination.”
“The whole purpose of our consent decree was to increase minority enrollment,” Mr. Davis says, of a court order that dates to 1980. “What we do in furtherance of it is legally defensible, unless a court tells us otherwise.”
The consent decree has made integration -- or diversity -- a mandate for the law school. The school is under orders to admit up to five black Mississippians a year, regardless of their test scores or college grades, as long as they have completed a special legal-education program. In addition, the decree bars the school from setting a cutoff test score for admissions. The school’s admissions committee does not explicitly consider an applicant’s race, but Mr. Davis speculates that some of its members might take race into account when they vote on candidates.
The result: Black students regularly make up about 10 per cent of the law school’s enrollment. The numbers were down slightly last fall, however, because the school tried to raise entrance qualifications. “Most of our minority students are bunched around the bottom of the class,” Mr. Davis says, “but we also have minority students at the top and the middle.”
After Hopwood, college lawyers in Louisiana and Mississippi scrutinized the ruling in light of the desegregation orders already on the books. In general, their advice was: Keep race-conscious remedies that have been approved by courts to remedy prior racial discrimination, but change programs solely designed to foster diversity.
“Anything that’s outside of the settlement agreement, we have the legal obligation to change,” says W. Shelby McKenzie, a lawyer for Louisiana State. “L.S.U. understands that a scholarship that’s based purely on racial considerations, even if it’s grounded in a benign concept of desegregation, is no longer permissible.”
At L.S.U.'s flagship campus here, the graduate school is given $600,000 a year under the consent decree to spend on fellowships for doctoral students who are black. The fellowships, which cover four years of education, include an annual $14,000 stipend and payment of tuition and fees. The funds also pay for a four-week summer session for black graduate students to shore up their research and writing skills and work with faculty mentors.
“Hopefully the students are fully prepared for a doctoral program when they leave,” says Chad McGee, assistant dean of the L.S.U. graduate school.
That program is considered “safe,” even under Hopwood. But the legality of another scholarship program is less clear. About 60 black graduate students each semester receive tuition awards from a program that aims to enhance the “cultural and ethnic diversity” of the graduate school’s population. While the grants are not ordered by the court, Mr. McGee believes that they are legally defensible because they are “in the spirit” of the desegregation order.
Given the clash with Hopwood, foes of affirmative action say legal challenges to desegregation orders may be inevitable.
“These consent decrees aren’t written in stone -- they’re based on certain legal theories that may or may not be correct,” says Terry Pell, senior counsel at Washington’s Center for Individual Rights, a legal group that helped bring the Hopwood suit. “To the extent these decisions were based on remedying societal discrimination or achieving racial diversity, they are extremely vulnerable because of Hopwood.”
Robert A. Kronley, an expert on desegregation at the Southern Education Foundation, says that while the court rulings in Louisiana and Mississippi included something for all the litigants to dislike, few want to see the cases reappraised using the Hopwood standard. “People don’t want to sacrifice whatever gains have come out of these orders,” he says.
In both Louisiana and Mississippi, multiple desegregation orders have emphasized recruitment efforts, and included millions of dollars for new programs at historically black colleges and scholarships to attract black students to white colleges and white students to black colleges.
Mervin L. Trail, chancellor of the Louisiana State University Medical Center, hopes that recruitment will help turn around the 33-per-cent decline last year in the number of new black students enrolling at the New Orleans medical campus, which he blames on the anti-diversity stigma associated with Hopwood. No affirmative-action programs are stipulated in the consent decree for the medical center. But Dr. Trail says the school will aggressively recruit black students -- and consider race in admissions when applicants are otherwise equally qualified -- in order to produce more black doctors for Louisiana.
“We’re trying to look at race in a fair and impartial way,” Dr. Trail says. “We’re trying to establish a pattern of diversity.”
Some observers say Mississippi needs to do the same, too. The Southern Education Foundation is finishing a report, to be released in the next several weeks, that finds that the state has not done enough to promote opportunities for black students at its public universities. After all, Mr. Kronley says, the eight campuses enrolled only 2,750 black freshmen in 1996. Twenty years earlier, in 1976, there were 3,506.