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Betty Ann Bowser reports on the impact of a federal court decision on affirmative action programs at the University of Texas.

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JIM LEHRER: Now the impact of a federal court decision on affirmative action programs at the University of Texas. Betty Ann Bowser reports.

OSCAR DE LA TORRE: Why is that African-Americans and Mexican-Americans need affirmative action?

BETTY ANN BOWSER: Oscar de la Torre never misses an opportunity to talk to Texas teenagers about affirmative action.

OSCAR DE LA TORRE: How many of you have heard of Martin Luther King?

BETTY ANN BOWSER: He's one of eight children from a poor Los Angeles family and the only one of his siblings to graduate from college.

OSCAR DE LA TORRE: I am a product of affirmative action, and I'm proud to say that. Affirmative action gave me the opportunity to go to the university.

BETTY ANN BOWSER: Like many of these youngsters, de la Torre did not do well on standardized tests in high school. But because of affirmative action he was able to get into college.

OSCAR DE LA TORRE: I'm a prime example of how affirmative action works. I was just allowed to come in and do my work but I had to do my work. It was sink or swim for me, and I think that I've been swimming up to now, and I continue to--I continue to do well in school--program--the program in place, affirmative action, has shown to be a benefit to people like me, people from my background.

BETTY ANN BOWSER: Today, de la Torre is a graduate student at the University of Texas and holds a prestigious Woodrow Wilson fellowship, but he's concerned now about the future of affirmative action programs because a federal court has ruled that race may no longer be used as a factor for admission to the law school at the University of Texas. In 1992, David Rodgers and three other white students sued the law school because they didn't get in.

DAVID RODGERS, Plaintiff: I was discriminated against because of the color of my skin, and that's not right.

BETTY ANN BOWSER: The case, Hopwood Versus Texas, was named for its only female litigant, Cheryl Hopwood. She and three other students claimed the law school was unfair because it allowed minorities to get in with lower test scores than whites. The 5th Circuit Court of Appeals agreed. Then the Texas attorney general made the Hopwood decision apply across the board to all state-funded colleges, and he said those schools could no longer award scholarships based on race either. Law Professor Lino Graglia, a fervent opponent of affirmative action, applauded the court's decision.

LINO GRAGLIA, Law Professor: We have to be frank and candid. We only have affirmative action in institutions of higher education because blacks and Mexican-Americans are not academically competitive with whites. That's the situation.

BETTY ANN BOWSER: Even before the Hopwood decision minority enrollment at the law school was low. Mexican-Americans accounted for only 4 percent of the school's 1400 students. African-Americans made up less than 3 percent. And campus-wide Mexican-Americans made up only 12 percent of the university's enrollment of 48,000 students in a state where the Mexican-American population is expected to exceed 50 percent by the year 2020. After the Hopwood decision, University President Robert Berdahl said he feared it would re-segregate the entire college population of Texas because he thought minority enrollment would nosedive.

ROBERT BERDAHL, University President: We know that in the competition for minority students. Universities have historically tried to offer incentives for them to come in the form of scholarships that were easier for minority students obtain. We now no longer can do that, and so we think we'll have fewer students who are able to come to the university because they've gotten better packages offered elsewhere.

BETTY ANN BOWSER: His fears became reality when the pool of applicants for admission was screened this spring by the staff of Dr. James Vick, vice president for student affairs.

JAMES VICK, University Vice President: We know that our minority applications have dropped substantially, approximately 25 percent from what they were last year, in spite of heavy recruitment and encouragement from our admissions staff and others who go into the community and encourage students to apply at the university.

BETTY ANN BOWSER: Drama student Michael Washington decided he wouldn't go to UT. Washington is graduating with honors from high school in Plano, Texas. His sister, Audrea, has been attending the university on a $25,000 scholarship that was awarded on race and merit, a scholarship the university can no longer offer because of Hopwood.

MICHAEL WASHINGTON: I was really interested in going because of their theater program, excellent training ground for teachers, but afterwards, it just didn't feel right. Something just didn't feel comfortable. It didn't feel safe. It didn't feel wanting or giving, and that's the kind of an environment I need to be in as an actor.

BETTY ANN BOWSER: Most of the Mexican-American high school students in the group Oscar de la Torre addressed felt the same way. Cheerleader Gabriella Morena has a 3.7 grade point average but feels she still needs affirmative action to get into college.

GABRIELLA MORENA: It's not a handout. It's just like getting your foot in the door. It's an opportunity. It's definitely not a handout.

BETTY ANN BOWSER: So you're not even going to apply?

GABRIELLA MORENA: No, I don't really--I see UT in a different way basically, yes.

BETTY ANN BOWSER: And Peter Baez will be going to a private college on scholarship.

PETER BAEZ: I have an older sister who's in college and I have a twin brother who's going to college, so that plays an important role, plus with my dad trying to support us all, and that plays a big role, scholarship money.

BETTY ANN BOWSER: Dean Vick says the university is doing all it can to encourage minority applications.

JAMES VICK: We will make every effort to recruit them. They somehow have the feeling that this decision is something the university has done in spite of the fact that the university opposed it in very strong terms, and we just have to overcome some of the perceptions that we are encountering.

BETTY ANN BOWSER: But UT law professor Graglia has said that aggressive recruitment cannot overcome the disparity that exists in test scores between whites and minority applicants.

LINO GRAGLIA: What we're talking about are very large gaps if you apply the standards that you apply to whites to black and Mexican-Americans, very few of them would get into any selected institutions of higher education because very few of them are academically competitive.

BETTY ANN BOWSER: Senator Gonzalo Barrientos is leading a movement in the Texas legislature to increase minority enrollment and restore scholarship.

GONZALO BARRIENTOS, State Senator: 54 percent of the children in Texas elementary schools are minorities already. In ten to twenty years the majority of people in the state will be minorities. Those Texans have to be educated. Those Texans have to have jobs and pay taxes. Otherwise, we're not going to be able to compete with other states, with other countries.

BETTY ANN BOWSER: Earlier this month the legislature passed a race neutral bill that guarantees admission to any student in the top 10 percent of their high school graduating class. Rep. Frank Corte fought hard to defeat the 10 percent legislation in the House.

FRANK CORTE, State Representative: I think that what we're doing is we're telling students that, you know, don't worry about academic excellence, don't worry about doing well, because we're going to get you into school anyhow for whatever other reasons, and I think that's the wrong thing to do. I think that whether you're minority, Hispanic, you know, African-American, you know, abilities to get into college should be based on academic excellence.

BETTY ANN BOWSER: Even supporters of the 10 percent legislation don't know if it will increase the number of minority students to pre-Hopwood levels. Sam Issacharoff, who defends the university in the Hopwood case, doubts that it will.

SAM ISSACHAROFF, Law Professor: If you want to have racial diversity in education, it's very difficult to achieve that without considering race. Take, for example, any other area of civil rights remedies, whether it's education, employment, housing, it's inconceivable that in any of those areas you would try to remedy a history of past exclusion without taking race into account.

BETTY ANN BOWSER: But Barrientos says that the hostile attitude toward affirmative action made the 10 percent legislation the only possible solution.

GONZALO BARRIENTOS: Under the circumstances it appears to be that way. The majority of my colleagues in the Senate appear to have the thinking that they want to help kind of, and I would have some great bills but, frankly, they would vote against them.

BETTY ANN BOWSER: So this is the best you can do?

GONZALO BARRIENTOS: At this point in time.

BETTY ANN BOWSER: And the university's Dean Vick says the 10 percent solution poses other problems.

JAMES VICK: Our freshman class is 6,000. That's what it has been approximately, maybe a little smaller than that, over the last few years, and we feel like that's the size that we can handle and that we can provide a very solid education for that student population. The top 10 percent of high school graduates in the state of Texas would be 17,000 students. We would not be able to contain the size of our class if all of those students decided to come to the University of Texas.

BETTY ANN BOWSER: Texas is not the only state seeing a significant drop in minority enrollment to public universities. In California, where the Board of Regents eliminated affirmative action on all the state's college campuses, the number of black students admitted to two of the state's biggest law schools dropped, at Berkeley, by 83 percent.

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