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The Texas Book – Panel Discussion Videos - Douglas Laycock
Don Carleton:
If you looked at your invitation, you'll notice that the third member of our panel is not Betty Sue Flowers. Betty Sue, who contributed an article on campus life during the tumultuous 1960s finds herself in Amsterdam tonight. Instead, it is a very great pleasure to welcome back to campus, Doug Laycock, who is a distinguished former faculty member of the university's Law School. This fall Doug joined the faculty of the University Michigan School of Law after a twenty-five year career at the university. During his teaching career at Texas, Doug achieved a national reputation as an authority on freedom of religion. Doug also served as the Law School's associate dean for research. His publications include Modern American Remedies: Cases and Materials and the award-winning monograph, The Death of the Irreparable Injury Rule. Doug is also an elected fellow of the American Academy of Arts and Sciences. Another one of Doug's admirable accomplishments is that he married Terry Sullivan who is my former boss and who is now the provost of the University of Michigan. Terry is not with us tonight, regrettably, and I understand that tomorrow, her school is engaged in some sort of athletic spectacle with some other school in the mid-west. In addition to these many accomplishments, Doug played a key role in defending the university in the Hopwood v. Texas affirmative action case. His contribution to The Texas Book is titled "Desegregation, Affirmative Action, and the Ten-Percent Law." Welcome back to Austin, Doug. [applause]
Douglas Laycock:
Thank you. It's good to be back. Wish I could get back more often. Hope to get back as often as I can. The title is deliberate. "Desegregation, Affirmative Action, and the Ten-Percent Law," are one continuous story. The chapter concentrates mostly on the last twenty years which is the part that I know best, but it actually covers a span of nearly a century. It starts with Sweatt v. Painter which was the litigation that began in the 1940s, ended in a Supreme Court decision in 1950 ordering the university to admit Heman Sweatt to the Law School. He was the first African-American student at UT Austin. And it ends with a projection of what the population of the state's going to look like in 2040 and I'll come back to that.
Desegregation, of course, was initially massively resisted in Texas and elsewhere. Progress was very slow. But eventually the university decided, the faculty decided, the administration decided we've got to do this. It's the right thing to do. When you got the massive resistance out of the way, then it turned out that one of the greatest obstacles to desegregating the university was selective admissions standards. One of the ironies was that just about the time we said we're willing to admit Texans of all races was just the time the baby boom came to college and just the time that the rates of women attending college to quite small to substantially equal to the male rate. And just at the time that the male rate also took a big jump. And all of a sudden, what had been essentially open admissions in many of our programs became enormously competitive. And our minority population was for the most part coming out of schools that had been segregated, that often didn't work very well and the admissions standards became a substantial obstacle to desegregation.
Initially, the university, program by program, department by department, decided that some kind of affirmative action is the right thing to do. It took a long time to figure out how to do it right. There were times when we admitted minority students who had trouble succeeding here. We had to administer a preference that was just the right size—big enough to do some good and not so big that it caused other kinds of problems. Eventually, the federal government took the position—it is essential to desegregation that you engage in affirmative action. In 1983 the State of Texas was locked in negotiations with the federal government, with threatened litigation here and in the District of Columbia. The Department of Education Office of Civil Rights had thirty-seven demands that we had to satisfy or we were going to be sued. And the ultimate remedy in those lawsuits was that you lost all your federal money, so guess what, we signed on the dotted line for the thirty-seven demands which included numerical goals and timetables, changes in admission standards. And the Assistant Secretary of Education who led the charge, who pushed most aggressively for us to do more aggressive affirmative action is a fellow you may have heard of. His name is Clarence Thomas. Twenty years later on the Supreme Court, he was making fun of affirmative action as simply serving an aesthetic preference for what your classroom would look like. It's called the Texas Plan. We operated this Texas Plan for...actually it's still in effect, even through the Hopwood years. We got sued over the Law School's admission plan in Hopwood. That litigation dragged on for nine years, 1992 to 2001, with two trips to the Court of Appeals, two unsuccessful attempts to go to the Supreme Court. Even after Hopwood said no consideration of race of any kind, to any extent, it's as irrelevant as eye color which is what the judges said, the executive branch was still saying, we don't think you're done desegregating yet. You've got to do more. We still have not been certified so far as I'm aware. We haven't been certified by the federal government as having satisfied our desegregation obligation and yet obviously things have moved on into a new era.
The ten-percent law obviously was the response to Hopwood, to the end of affirmative action. What I try to do in this chapter…I think it's accessible. In some places, it might be a little tough going, but I think it's pretty accessible. I think this is the most honest explanation you're ever going to find if I do say so myself of how the admissions process actually works, what affirmative action does for it, what are the advantages, what are the costs, what the ten-percent law does for it, what are the advantages, what are the costs and what you mostly see is the spin from both sides making out their argument that it's the best of all possible programs or the worst of all possible programs and, not surprisingly, the truth is somewhere in between.
The ten-percent law is a terrible way to select a freshman class, except that it turns out to have one advantage that no one anticipated. It is a great recruiting tool and a great motivator in low-achieving high schools that have not been sending as many students. And when our admissions people go into an inner-city high school or a South Texas high school or a rural high school in West Texas, while a lot of these kids haven't been thinking about going to college, where they don't trust us to be fair, they think we discriminate against kids like them, we can say, "You don't have to trust us. It's the law. We've got to admit 10 percent of you. And you're not competing with the rich white kids in the suburbs. You're competing with each other right here in this room. Ten percent of you are guaranteed admission to the University of Texas at Austin if you just fill out the paperwork, if you graduate from high school, fill out the paperwork, and apply. And we've got financial aid." Sometimes that story takes and sometimes it doesn't. But where it takes, we've gotten huge increases in applications from the schools. On the whole, we've got some retention programs. Some of them need help, but on the whole, they've done pretty well. We don't want to give up that recruiting tool. On the other hand, with up to 75 percent of the freshmen class guaranteed seats, and in the early days, when you heard complaints from suburban high schools, well we can't get our strong students in the second 10 percent, it mostly wasn't true. They were doing fine. But it's becoming true. And as the population increases, the freshman class can't get any bigger. The population in Texas keeps getting bigger. It's going to become more and more true that strong students who took tough courses, have high test scores, and are in the second and third 10 percent are going to get squeezed out including some of the strongest minority students. The ten-percent law targets minority students in segregated high schools. Affirmative action plans (they target lots of minority students) but for the most part, they're most effective with the children of the minority middle class who may be in a suburban high school and in the second 10 percent, right? And they are being squeezed out by the ten-percent law. So, there's got to be a cap, some sort of limit, but I don't think we want to get rid of the whole thing.
Well in 2003, the Supreme Court came down with its decisions in the Michigan cases allowing us to reinstitute affirmative action. We've done that to some extent. At the undergraduate level it doesn't do much good, because the ten-percent law takes up so many of the seats. The remaining few seats are so competitive that affirmative action doesn't make a whole lot of difference. It has made a difference in graduate programs and professional programs.
In the Supreme Court's opinion, gave a new set of reasons for affirmative action. They weren't new to the debate or the discussion but they were new to the legal justifications. And you didn't hear much about that because the press kind of missed that because Justice O'Connor used the same word Justice Powell had used twenty-five years before. It's all about diversity. But by the time she got done explaining diversity, it was a completely different concept. It referred not just to diversity in the classroom which is important to the educational experience, but as O'Connor went on to explain diversity, it was not just about bringing different ideas into the classroom, it was about learning to work together and get along together with a racially mixed work force. It was about opening up the opportunities of leadership. It was about the military brief that you may have heard from, heard about where a retired general said, "we learned in Viet Nam, never again can we fight a war with an all white officer corps and a half minority enlisted corps. We have to have an officer corps that is both diverse and excellent. To get that, we must be graduating minority students from the best universities.
And finally, she says, it's essential to the legitimacy of our governmental system that the pathways to leadership be visibly open and that parents and children of all races see the system as open to their children. And that's why we have to do it, to somehow get students into these programs, for leadership for the next generation and keep the pathway to leadership visibly open.
There's one other piece of this that she didn't get that's the most important part. Affirmative action is often criticized as lowering admissions standards. In fact, it has been absolutely essential to preserving admissions standards. Because what happens is, when affirmative action is taken away, it is not a politically acceptable outcome that suddenly the university is all white and Asian again and minorities, black and Hispanic students are not being admitted. And so we immediately get this intense pressure to change the admission standards. We got legislation in the wake of Hopwood that said you can't count test scores anymore. We got bills to do much more dramatic things than that. The voters in Michigan just passed a referendum banning affirmative action and already within a week, there are proposals to not require the SAT tests anymore. The SAT test isn't perfect, but it's a lot better than most of its alternatives. It does indeed predict academic success in a competitive university. So affirmative action is the one tool that has allowed selective schools both to maintain their high admission standards and to achieve some diversity and to select the very best minority students as evaluated with the same criteria that are applied to other students, principally academic criteria and get those students in.
Well, finally, I said this piece ends with a projection of, not my projection of course, but the state's demographer's projection, the population of Texas in 2040—59% Hispanic, 24% Anglo, 9% Black, 8% other. That's the mid-range projection. It could be higher or lower. Anglos could be 35% instead of 24%. They could be 15% instead of 24%, neither which changes the big picture. This will be a Hispanic state. The future of the Hispanic population of Texas is the future of Texas and if that population remains under-educated, unskilled, lower income, if that population remains poor, the state will remain poor. They will be our future political leadership. They will be the bulk of our work force. Their productivity will be the state's productivity. And the University of Texas in the second half of the twenty-first century almost certainly will be a pre-dominantly Hispanic university. And if it aspires still to be a university of the first class, the Hispanic population has to step up and run a university of the first class. And we've got to get from here to there. We've got to get from where we are today with all the inherited problems of the past and the continued flow of immigration, we've got to get to a position where that Hispanic population leads the state with the same levels of excellence that we've aspired to in the past.
We're not going to get there passing bills that say that children of illegal immigrants can't get a driver's license and can't go to school. This bill was actually introduced in the legislature earlier this week. Affirmative action is only one small part of the solution. We need to do a whole lot of other things, but it's the university's part. It's what we can contribute and that's the reason that I and a lot of other people around the campus invested so much effort in this litigation, these negotiations over the years. And that history is all laid out in this chapter. [applause]