What Gives Texas A&M the Right?
[Editors' Note: During February the Texas Civil Rights Review uncovered documents from a specially appointed task force at Texas A&M that recommended strongly in favor of affirmative action on Aug. 29, 2003. That finding was over-ruled by the President and buried from public view. Following is the cover story that will appear for the next month at the Texas Civil Rights Review.]
During the Fall Semester of 2003, Texas A&M University President Robert Gates put the Civil Rights Act in his pocket and he left it there until people thought it was his. And when he refused to take it out of his pocket ever again, people said, okay, he can do that. But can he?
Can the President of a University pocket-veto the Civil Rights Act? Ultimately this is a question for the federal government to decide. It would make a fine question for our Presidential candidates. If elected president, Mr. Kerry or Mr. Edwards, will you enforce the Civil Rights Act in College Station, Texas?
It was because of the Civil Rights Act that the Office of Civil Rights visited Texas in 1978 to determine if de-segregation had been accomplished. But de-segregation had not been accomplished in the higher education system of Texas.
At that point the OCR had the power to make an adverse ruling against the state of Texas, which would have caused serious difficulties with federal funding. And so, once again, because of the Civil Rights Act, Texas was feeling some heat.
It is well documented in records kept by Texas A&M, and by analysis that was produced at the time, that Texas A&M University Regents adopted affirmative action as a way to show federal authorities that the Civil Rights Act has a meaning they were bound to respect.
It made plain sense in 1980 that affirmative action in admissions was one necessary means that a University under federal supervision for de-segregation should adopt. The state of Texas then entered into a series of agreements, under federal supervision, for de-segregation. These facts are plain as one can find. They are also plainly evaded.
In 1997, OCR returned to Texas, found de-segregation still a work in progress, and in the summer of 2000 received from Governor Bush assurances that all available means would be used to advance the de-segregation process. Then in the summer of 2003 the Supreme Court restored the Constitutionality of affirmative action in Texas with the Grutter ruling.
Where it is plainly agreed that a University should undertake every means necessary for de-segregation, where that same University has previously agreed that affirmative action serves as a baseline commitment of good faith toward de-segregation, and where affirmative action is clearly vindicated by the Supreme Court as a Constitutional means to de-segregation, there can be no plainer conclusion at hand as to what a University should be doing. But the conclusion is not at hand. It is in the pocket of President Gates.
Soon after the Grutter ruling, President Gates called together his best and brightest, and he asked them to consider what should be done. By the end of the summer, his own hand-picked committee strongly recommended a return to affirmative action.
Not only did President Gates put that report in his pocket, but he failed to consult with state regulators about his responsibilities under the Civil Rights Act. Folks he asked he ignored, folks he should have consulted, he did not.
If during this Black History Month we are going to share platitudes about the meaning of America, if during this traditional month of celebration for Lincoln’s birthday we are going to speak of one nation, and if the Civil Rights Act actually happened and is really law in America, and in Texas, too, then, we have to say: give back the Civil Rights Act President Gates, or step aside and give us a University President who respects the laws and Constitution of the United States.
There are perhaps a thousand ways to cut the argument for affirmative action in admissions. But given the peculiar circumstances in College Station, Texas, crucial considerations have not yet been addressed. What is the meaning of the Civil Rights Act? Is the federal Constitution still a framework that a Texas University President is bound to respect?