Legal Expert Speaks Out on Supreme Court and Affirmative Action (Opinion)


Since December 2019, after retiring to my hometown of Santa Fe, NM, my wife and I have been hiding in plain sight. In the beautiful arid high desert, we were quarantined and I prepared for knee surgery. I have completed a book on immigration and I still have a contractual obligation for the fifth edition of my casebook Law and higher education. For this latest publication, I have recruited collaborators who will be able to continue working on future editions after the end of my involvement.

My co-authors and I have focused on new and evolving cases, sorting out canceled or obsolete cases, and incorporating many developments since the fourth edition. These developments include, to name a few: shifting emphasis on enforcement between federal jurisdictions; evolving financial aid and loan status issues; emerging immigration issues in a world of travel bans on Muslims and Chinese scientists working in American labs; and new legal challenges related to campus sexual assault, LBGTQ students, and intercollegiate sports in an upside-down world of names, images, and likenesses. There are literally hundreds of cases we review and laws we analyze to help our law and education students learn the basics. Our current edition is over 1,100 pages and we are at capacity. (Small print isn’t an option, although our editor has used thinner paper in the past. Honest.)

We the writers have recently reached a crossroads, with a long-planned meeting to come to Jesus next week in which we planned to make the tough choices and finish editing and storytelling. We were about to assemble our collective effort and publish my swan song in this area that I have loved and advocated and taught and spoken about, throughout my career of more than 40 years as an academic and professor of law, general counsel of the American Association of University Teachers, expert witness, attorney, reprimand, and college president. Over the decades, I helped draft policies that were enacted into state law, such as Hopwood-focused percentage plans that ensured promising students graduating at the top of their class were automatically admitted to Texas public universities. I also worked on residency rules to allow undocumented students to pay resident tuition, which spurred the growth of DACA (Deferred Action for Childhood Arrivals).

And then my worst fear surfaced yesterday, causing my phone to explode and my warning signals to go into overdrive: The US Supreme Court accepted the certificate for two college admissions cases in development , one at Harvard University and the other at the University of North Carolina. in Chapel Hill – challenging affirmative action.

I accepted an invitation from Inside Higher Education to gather and share thoughts on this news, while answering urgent questions and emails from many people across the country. I was asked to comment on the overall pitch and make my best guesses about the process and outcome. It’s the same reason I get calls in all my fields of study – disciplines that, like old friends, I continue to follow and write about, causing people to say I don’t have retired but doing all this for free. I’m not on a payroll for the first time since 1972, when I graduated from seminary college after eight years as a student for the Catholic priesthood and started teaching first grade composition. year at Ohio State University for $180 per month – increased by 10 percent in my first term to $198 per month. I supplemented my poverty by selling plasma, which I could do more often than selling blood.

Religious metaphors are appropriate in the trajectory of my career, as I shifted gears from American literature and a book on John Updike to another field: the developing discipline of higher education law, then in its nascent development as a field of study, leading to a doctorate in higher education and a law degree. I threw myself into these questions as I had devoted my studies of Latin, theology and philosophy to founding myself in the service of what I thought was my congregation.

And what a time that has been, with important issues of free speech, academic freedom and student rights, and the white whale of college admissions – affirmative action – filling my whole life as a teacher with right. I have lived and deeply engaged in the various cases that have unfolded before me: DeFunis, Bakke, Grutter, Hopwood and Fisher. Despite shifting majorities and favorable affirmative action rulings written by Republican Supreme Court appointees, I still held on to my deepest fears and existential sweats at 2 a.m., fearing that the day come again where the court would reconsider the matter. In these heartbreaking times, however, I never imagined a Supreme Court stacked by a President Trump, ready to act in an unprecedented and unprincipled way with the Senate to overturn Roe v. Wade – and now also maybe affirmative action.

To make matters worse, the court not only ignored its own long-standing abortion rights precedents, it allowed the rise of vigilante laws enacted by Texas to delegate individuals to undertake litigation that the state could not undertake by what remains of Roe. I fear affirmative action will suffer the same fate, as will my lifelong efforts to support suffrage and immigrant reform (facilitated by my membership on the board of directors of the Mexican Legal Defense and Defense Fund). ‘education).

The trade press, general news media, and the blogosphere are already gearing up, so I won’t analyze the ongoing Harvard and UNC Chapel Hill litigation here, and I certainly won’t help and reassurance to the other party at this early stage. Rather, I will use the appropriate tools of amicus briefs, legal defense and the public media, as I have done over the years, to uphold these principles. Supporting the decline in the use of high-stakes standardized exams is one such possible admissions tool; dropping these exams will require holistic admissions policies and increase minority enrollments.

And demographics are on my side, especially since overall college enrollment has declined. At the same time, sweeping changes have occurred that will upend this decision: heightened racial mistrust encouraged by candidate Trump’s hateful rhetoric aimed at immigrants, especially Mexicans disguised as “rapists and bad men”, as well as politicians of President Trump on white privilege, anti-Muslim immigration and civil rights, all in a whirlwind of Trump U, separation of children and families and anticritical election campaigns on race theory. But if stare decisis and its own precedent matter, this loaded topic will be upheld by the current court, and the issue of affirmative action won’t surface every few years.

As a Mexican-American, I felt singled out for these challenges, and my hate mail followed me to my native New Mexico, where the GOP’s “replacement theory” seems vindicated to haters, as if my parents and my wife’s parents (we are both from families of 10 children each) were deliberately trying to level the playing field against the Anglo-Saxon families. I know these may seem like unrelated phenomena to my readers and others, but I see the clear connections and roots in my silent fears and public opinions. Last year, I received a warning letter from “A TRUE AMERICAN PATRIOT” that my opinions were “un-American”, and if I “keep them and act on them”, I will “suffer the consequences”. Well, at least I’m not an election official or else I’d be worried. In this case, I have no other options, but I will continue to try to expand my world, increasing both my detractors and my supporters.

I have always tried to serve other congregations and leave the trails better than I found them. In my 70 years, I have done my best to identify and expose wrongs, to remedy them legally, and to use the tools of the masters as well as possible. In the years I have left to write and serve, I will continue on this path and trust that ultimately the arc of these efforts will bend toward justice.

I welcome engagement on this and other important public issues, and feel like I’m stepping back to my seminary days. In terms of my high school and college seminary calling, it turned out that I was much better at afflicting the comfortable than I ever was at comforting the afflicted.


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