Texas must choose between a court order and a Clinton edict

Rule of law

By Terence J. Pell

The Wall Street Journal, April 2, 1997

Three decades ago, Congress created the Department of Education’s Office for Civil Rights to enforce Title VI of the Civil Rights Act and to overcome the Southern states’ massive resistance to court orders mandating the desegregation of educational institutions.

Times change. Now, instead of forcing compliance with federal court orders, OCR is instructing a state to disobey them. Last week, Norma Cantu, the Clinton-appointed head of OCR and former regional counsel for the Mexican-American Legal Defense Fund, warned Texas officials that she might use OCR’s most potent enforcement tool to terminate some $500 million in federal education aid.

Her gripe? She wants state officials to continue to use the race-based affirmative action programs ruled unconstitutional last year by the Fifth Circuit Court of Appeals in Hopwood v. University of Texas. In July, the Supreme Court declined to upset this ruling, making Hopwood binding law in Texas, Louisiana and Mississippi.

Not since George Wallace blocked the schoolhouse door has an elected official so openly and willfully encouraged state officials to defy a federal court. Unless Ms. Cantu relents, Texas state officials will face the unpleasant choice of violating either the clear terms of a U.S. Court of Appeals decision — or the arbitrary edict of a Clinton appointee.

Ms. Cantu claims that Hopwood prohibits only the dual-track admissions program at the University of Texas Law School. This is like saying that Brown v. Board applied only to one elementary school in Topeka, Kan. In fact, the Hopwood court went to great lengths to explain the constitutional standard applicable to all racial preference programs, not just those at UT Law School.

Hopwood held that state institutions may consider race in admissions only to remedy specific acts of past discrimination. A state may not employ racial preferences to remedy the effects of societal discrimination or even discrimination by the state system of education as a whole. Nor may a state employ racial preferences to achieve a diversity of views or backgrounds among its students, however laudable that objective might otherwise be.

This decision is in line with Supreme Court decisions going back 10 years that have sharply restricted race-based affirmative action. According to the court, each and every affirmative action program must be closely tailored to the purpose — and only to the purpose — of remedying past discrimination.

Notwithstanding Hopwood, Ms. Cantu suggests that if her office finds “vestiges” of prior discrimination somewhere in the Texas higher education system, then Texas officials everywhere are legally obligated to employ racial preferences in admissions and financial aid. But the Fifth Circuit explicitly rejected this “system-wide” theory — holding, for instance, that discrimination in elementary and secondary schools, or even in some other part of the higher education system, would not provide the law school with a warrant to administer race-based “remedies.” OCR has no legal authority to order Texas officials to employ racial preferences except at a particular institution where discrimination occurred and where it continues to impede minority attendance.

Ms. Cantu, however, is contriving to salvage system-wide racial preferences without such an exhaustive investigation. The reason? There simply is no recent history of overtly sanctioned discrimination by any Texas institution of higher education that would explain the current underrepresentation of highly qualified minority applicants at the most demanding schools. For more than 25 years, the only official, race-based discrimination in Texas has favored minorities through aggressive preferences in admissions and scholarships.

Ms. Cantu is not the only Clinton appointee willfully ignoring federal civil rights decisions. Earlier this year, the Federal Transit Authority announced it would suspend all federal grants to the Houston transportation authority on the grounds that it lacked an affirmative action program that complied with federal regulations. A federal district court last April suspended the local authority’s affirmative action plan, concluding that it likely was unconstitutional. Although the issue has yet to be decided at trial, that didn’t stop the FTA from trying to force local officials to defy the court order in the meantime.

Like Ms. Cantu, the FTA thinks that the executive branch can order grant recipients to violate the Constitution as a condition of receiving federal funds. Ms. Cantu and her colleagues take their bearings from the Justice Department, which recently expressed the astonishing view that a federal agency need not defer to courts of appeal decisions “either generally or in matters arising in the particular circuit.” William Kanter, deputy director of the civil division’s appellate staff, told the Fourth Circuit that executive agencies comply with the federal courts only “as a matter of policy and comity.”

As for Ms. Cantu, it remains to be seen how effective her bullying will prove. The Hopwood court entrusted Texas officials with implementing its unequivocal decision in good faith — not without warning, however, that any official failing to do so would be personally liable for compensatory and punitive damages. Texas Sen. Phil Gramm has threatened to block Education Department funds unless Ms. Cantu relents, noting that she “has placed Texas colleges in a withering legal crossfire.” State Attorney General Dan Morales has instructed officials to follow Hopwood’s unmistakable mandate to dismantle preferences.

For his part, UT Law School Dean Michael Sharlot has shrugged off Ms. Cantu’s antics: He might be willing to follow her suggestion to preserve racial preferences, he was quoted as saying — so long as she would post a bond to indemnify him for the consequences.

Ms. Cantu’s call for open defiance of a federal court of appeals civil rights decision illustrates how far the pendulum has swung. Not so long ago, civil rights leaders and officials insisted on the meticulous observance even of ambiguous or questionable judicial precedents.

Now, the chief enforcer of Title VI tells us that a crystal-clear precedent is not controlling legal authority. And OCR, an agency created to break massive resistance to colorblind laws, instead encourages lawlessness.

Congress should follow Sen. Gramm’s lead and forcefully remind Ms. Cantu of her agency’s mission. Blocking the use of OCR funds for any further effort to defy federal court decisions might be a good way to start.