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Since December 2019, after retiring to my Santa Fe, N.M., hometown, my wife and I have been hiding in plain sight. In the beautiful, arid high desert, we’ve quarantined, and I’ve been readying myself for knee surgery. I have finished a book on immigration and have one remaining contractual obligation for the fifth edition of my casebook The Law and Higher Education. For the latter publication, I have recruited collaborators who can continue to work on future editions after I end my involvement.
My co-authors and I have been homing in on new and evolving cases, winnowing out cases countermanded or rendered obsolete, and incorporating many developments since the fourth edition. Those developments include, to name just a few: shifting enforcement emphases between federal administrations; evolving financial aid and loan status matters; emerging immigration issues in a world of Muslim travel bans and Chinese scientists working in United States labs; and new legal challenges related to sexual assault on campuses, LBGTQ students and intercollegiate sports in a topsy-turvy world of names, images and likenesses. There are literally hundreds of cases we are considering and laws we are parsing to help our law and education students learn the basics. Our current edition is more than 1,100 pages, and we are at capacity. (Smaller print is not an option, although our publisher already resorted to thinner paper. Honest.)
We authors recently reached a crossroads, with a long-scheduled come-to-Jesus meeting next week in which we planned to make the hard choices and complete the editing and narrative. We were about to stitch together our collective effort and publish my swan song in this field that I have loved and litigated, and taught and opined over, throughout my more than 40-year career as an academic and law professor, general counsel of the American Association of University Professors, expert witness, advocate, scold and college president. Over the decades, I assisted in drafting policies that were enacted into state law, such as Hopwood-driven percentage plans ensuring promising students who graduated at the top of their class were automatically admitted to Texas public universities. I also worked on resident rules to enable undocumented college students to pay resident tuition, spurring 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 U.S. Supreme Court accepted cert to a pair of developing college admissions cases—one at Harvard University and the other at the University of North Carolina at Chapel Hill—challenging affirmative action.
I accepted an invitation from Inside Higher Ed to put together and share thoughts about this news, all the while fielding questions and urgent emails from numerous people around the country. I was asked to comment on the overall terrain and to make my best guess on the process and outcome. It is the same reason I get calls about all my areas of scholarship—disciplines that, like old friends, I still follow and write about, causing people to say I haven’t retired but just do all this for free. I am not on a payroll for the first time since 1972, when I graduated from my college seminary after eight years as a student for the Catholic priesthood and began teaching freshman composition at Ohio State University for $180 a month—raised by 10 percent in my first quarter 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 switched 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 Ph.D. in higher education and a law degree. I threw myself into these issues the way I had dedicated my studies in Latin, theology and philosophy to ground myself in service to what I thought would be my congregation.
And what a time it has been, with important free speech, academic freedom and student rights issues, and the white whale of college admissions—affirmative action—filling up my entire life as a law professor. I lived through and deeply engaged in the various cases that unfurled before me: DeFunis, Bakke, Grutter, Hopwood and Fisher. Despite changing majorities and pro–affirmative action decisions penned by Republican Supreme Court appointees, I always retained my deepest fears and 2 a.m. existential sweats, worried the day could again come when the court would revisit the issue. In those soul-searing moments, however, I never imagined a Supreme Court stacked by a President Trump, willing to act in an unprecedented and unprincipled way with the Senate to reverse Roe v. Wade—and now also perhaps affirmative action.
To make matters worse, not only has the court ignored its own long-standing precedents in abortion rights, it has enabled the rise of vigilante laws enacted by Texas to deputize individuals to undertake litigation the state could not undertake by what remains of Roe. I fear affirmative action may suffer a similar fate, as will my lifelong efforts to support voting rights and immigrant reform (enabled by my membership on the Mexican American Legal Defense and Educational Fund board).
The trade press, the general news media and the blogosphere are already gearing up, so I will not parse the pending Harvard and UNC Chapel Hill litigation here, and I certainly will not give aid and comfort to the other side at this early stage. Rather, I will use the appropriate tools of amicus briefs, legal advocacy and public media, as I have over the years, to defend these principles. Supporting the declining use of standardized high-stakes exams is one such possible admissions tool; dumping such exams will necessitate holistic admissions policies and increase minority enrollments.
And demography is on my side, especially as overall college enrollments have declined. At the same time, sea changes have occurred that will roil this decision: heightened racial distrust encouraged by candidate Trump’s hateful rhetoric aimed at immigrants, especially Mexicans guised as “rapists and bad hombres,” along with President Trump’s policies on white privilege, anti-Muslim immigration and civil rights—all in a swirl of Trump U, child and family separation, and anti–critical race theory electioneering. But if stare decisis and its own precedents matter, this freighted subject will be upheld by the current court, and the affirmative action question will no longer surface every few years.
As a Mexican American, I have felt singled out for these challenges, and my hate mail has followed me to my native New Mexico, where GOP “replacement theory” seems justified to haters, as if my parents and my wife’s parents (we are both from families with 10 children each) were purposefully trying to even the odds against Anglo families. I know these may seem like unrelated phenomena to my readers and others, but I see the clear connections and the roots in my quiet fears and public views. Last year, I received a mail warning from “A TRUE AMERICAN PATRIOT” that my views were “anti-American,” and if I “kept them and acted on them,” I would “suffer the consequences.” Well, at least I am not a voting official, or I would worry. As it happens, I have no other options, but I will keep trying to widen my world, increasing both my detractors and supporters.
I have always tried to serve other congregations and to leave the trails better than I found them. In my 70 years, I have tried my best to identify and call out wrongs, to address them in lawful ways and to use the tools of the masters as well I could. In the years I have left to write and serve, I will continue on this path and will trust that, at the end of the day, the arc of these efforts will bend toward justice.
I welcome engagement on this and other important public issues, and it feels like I am circling back to my seminary days. As for my high school and college seminary vocation, it turned out I was much better at afflicting the comfortable than I ever was at comforting the afflicted.
