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Correspondence on Hopwood v. Texas

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The 1996 ruling in a closely watched affirmative action case triggered an unusual series of federal letters. In the first, Cantu outlines her view of the decision's impact. A month later, a high-ranking U.S. Department of Justice official writes to Cantu's agency about apparent "confusion" about the case's impact. One day later, Cantu fires off another missive in line with the Justice Department statement. Critics said the second letter took a more conservative legal tone and represented Cantu's attempt to save face.

To: Honorable Al Edwards, House of Representatives
From: Norma V. Cantu, Assistant Secretary, Office for Civil Rights
18 March 1997

We believe that the Hopwood decision is limited to its facts, as the Department of Justice recently explained, on behalf of the United States. ...

That brief pointed out to the United States District Court that the Hopwood decision by the Court of Appeals for the Fifth Circuit concerned the University of Texas Law School's affirmative action program, and should not be used to invalidate the affirmative action admission program used by the University of Texas' College of Education to assist in creating a diverse student enrollment for educational purposes. We believe that Justice Powell's landmark decision in the Bakke case allows both public and private universities to seek other educational benefits that may result from enrolling students of many backgrounds. This conclusion applied under the Constitution, which applies to all public and private higher education institution in Texas that receive Federal funds. ...

To: Judith A. Winston, General Counsel, United States Department of Education
From: Walter Dellinger, Acting Solicitor General
10 April 1997

It appears that some confusion has arisen about the position of the United States with respect to the effect of the Fifth Circuit's decision in Hopwood v. Texas.

In the absence of such further judicial developments, it necessarily remains the position of the United States, as stated in our submission to the Supreme Court, that the Hopwood panel decision is binding in the Fifth Circuit. ...

To: Honorable Rodney Ellis, Texas Senate
From: Norma V. Cantu, Assistant Secretary, Office for Civil Rights
11 April 1997

.p.. Second, if at the end of its review OCR [the Office for Civil Rights] finds that there are current effects of past discrimination in the Texas higher education system in violation of Title VI, and if it is determined that the discrimination cannot be remedied through race-neutral means, then Texas would be required to take narrowly tailored affirmative action measures to eliminate the vestiges of its discrimination. Such measures would be consistent with the Fifth Circuit's ruling in Hopwood, which recognizes that affirmative action by an institution may be warranted in such circumstances in offer to eliminate vestiges of that institution's own discrimination. ..

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