How an Attempt to Boost Diversity at Texas Colleges Could Kill Affirmative Action

By by Matthew Watkins and Neena Satija, Texas Tribune

On Dec. 9, a lawyer for Abigail Fisher stood before the U.S. Supreme Court ready to argue that the University of Texas at Austin was discriminating against white applicants.

He planned to make the case that his client was unfairly denied admission into the university because of her race. And affirmative action opponents hoped that Fisher v. University of Texas at Austin would bring an end to the use of race as a factor in college admissions.

But less than 90 seconds into his introduction, Fisher’s lawyer was interrupted by a question about Texas’ Top 10 Percent Rule. And for much of the next hour, the justices and attorneys argued over the intricacies of the state’s unusual college admissions law, which guarantees a spot in any state college to Texans who graduate near the top of their high school senior class.

Read the story here.

Univ. of Texas Chancellor Prefers Terminating Top 10 Percent Rule

By Matthew Watkins, Texas Tribune

University of Texas System Chancellor Bill McRaven argued in two separate public appearances this week that the state should consider scrapping its top 10 percent automatic admissions rule, saying it hurts the prestige of his flagship university.

Read the story here.

Related content:

• Affirmative action should replace top 10 percent rule, not the opposite (The Daily Texan)

Key Win for Affirmative Action

Inside Higher Ed
January 19, 2011

A federal appeals court ruled Tuesday that the University of Texas is not barred from considering race in admissions even though the use of a "10 percent" plan helps the university achieve some levels of diversity in its student body.
The decision -- while likely to be appealed -- is a significant victory for proponents of affirmative action in higher education because of the novel argument used, unsuccessfully, by the plaintiffs in the case. The plaintiffs focused on the requirement set by the U.S. Supreme Court that consideration of race in government programs must not only be justified but also must be "narrowly tailored." Since the University of Texas at Austin by all accounts has succeeded in attracting minority students through the 10 percent plan, the argument goes, it shouldn't need to consider race directly in admitting students who don't win slots through the 10 percent plan.

Full Story: http://www.insidehighered.com/news/2011/01/19/appeals_court_upholds_affirmative_action_plan_at_university_of_texas

Texas Limits '10%' Admissions

Inside Higher Ed
June 1, 2009

The "10 percent" plan in Texas has been one of the most successful experiments ever tried to get more minority students into top public universities with race-neutral criteria. It spawned similar (if less ambitious) programs in California and Florida and prompted numerous debates about equity in higher education admissions. At the behest of the University of Texas at Austin and suburban politicians, and following several years of debate, the Texas Legislature on Saturday agreed to a plan that will limit the use of the system so that Austin is required to fill only 75 percent of its freshman slots for Texans under the program.
Gov. Rick Perry, a Republican, has pushed for changes in the admissions system and is expected to sign the legislation.
"10 percent" refers to a law adopted in Texas in 1997 that requires all public colleges and universities to admit any Texas applicant who graduated from the top 10 percent of his or her high school class. The law was adopted in the wake of a federal appeals court ruling -- since superseded by a Supreme Court ruling in another case -- that barred public colleges from considering race and ethnicity in admissions decisions.
Texas has many high schools that are overwhelmingly Latino or black -- so the thinking of those who crafted the law was that 10 percent admissions would ensure that diversity would be maintained at competitive universities like UT-Austin, which would admit the top graduates of such high schools. As time has gone on, the system has worked as predicted, increasing minority enrollments at UT-Austin and also resulting in the admission of rural white students who attended high schools that previously didn't send many students to the flagship.
While the University of Texas at Austin now has the legal right to practice affirmative action in admissions (and does so), many advocates for minority students have viewed percent plans as a key tool for promoting diversity because these plans are race neutral and because they result in admissions decisions being based on class rank, not on the SAT or ACT, standardized tests on which black and Latino students score, on average, at lower levels than do white and Asian students.
The problem with percent admissions, according UT-Austin, is that it's too popular. "We were going to lose control over our class," William Powers Jr., president of the university, said in an interview Sunday. He called the Legislature's action "a very positive development."

Full Story: http://www.insidehighered.com/news/2009/06/01/texas

House poised to keep top 10 percent rule, with UT exception

The Dallas Morning News
12:00 AM CDT on Friday, May 22, 2009

By CHRISTY HOPPE / The Dallas Morning News choppe@dallasnews.com

AUSTIN – The House is poised to limit automatic admission to the University of Texas at Austin to the top 8 percent of graduating high school seniors but keep the current top 10 percent rule the same for all other public campuses.
Rep. Dan Branch, R-Dallas, said his bill aims to give schools such as the University of Texas at Austin and UT-Dallas the discretion they need over college admissions.
Dan Branch, R-Dallas, said his bill aims to give schools such as the University of Texas at Austin and UT-Dallas the discretion they need over college admissions.
That route, approved Thursday as House members debated how to structure automatic admissions to state universities, is dramatically different from what the Senate has approved, a cap that would allow a maximum of 60 percent of a freshman class to come from the top 10 percent law.
The decade-old law has been credited with adding diversity to campuses with more Hispanic, black and rural students.
But with 26,000 high school seniors winning automatic admission to colleges, some campuses are finding themselves inundated with must-take freshmen, and they have complained that they are losing discretion on who to admit.
UT, in particular, now has about 85 percent of its freshmen being dictated by the automatic admissions law.
While the House bill initially mirrored the Senate approach, an amendment that would handle UT separately won widespread support.
House members said that since most of the problems were with the surge of students at UT, the otherwise successful top 10 law should not be changed at other universities.

Full Story: http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DN-top10_22tex.ART.State.Edition1.50e7d8c.html

Texas Senate tentatively approves limits on top 10 percent college admission law

The Dallas Morning News
06:31 AM CDT on Wednesday, March 25, 2009

By TERRENCE STUTZ / The Dallas Morning News
tstutz@dallasnews.com
AUSTIN – Texas’ top 10 percent law for automatic college admission would be limited to 60 percent of the incoming freshmen class at state universities under legislation tentatively approved Tuesday by the Senate.
The measure – pushed for by University of Texas officials – was approved despite warnings from some senators that it could depress minority enrollment at the University of Texas at Austin and other top schools.
But Sen. Florence Shapiro, R-Plano, author of the bill, rejected that argument, saying that UT and other universities will be watched closely to make sure that the percentage of minority students does not decline. If it does, she said, lawmakers could take corrective action.
The measure was tentatively approved on a 22-8 vote, with most of the no votes cast by Democrats.
In asking for support of the bill, Shapiro said UT-Austin is the only state institution now affected by the law, but in the next few years it is also expected to restrict student admissions at Texas A&M University and UT-Dallas.
The senator said 81 percent of incoming freshmen at UT-Austin last fall were admitted under the top 10 percent requirement, shutting out large numbers of other qualified students – many with higher SAT scores than those who were accepted.

Full Story: http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/032509dntextop10percentlaw.69b1cd3c.html

The 10% Fight Is Back

Inside Higher Ed
January 12, 2009

Location. Location. Location.
That’s the theory in real estate, and new research suggests that the same theory may apply to graduation rates, too. Attend a more selective institution and you are more likely to graduate. That may not seem shocking, if you assume that better students attend more competitive institutions. But the new study focuses on the impact of the “10 percent” admissions system in Texas and was done in a way that challenges the theory of “minority mismatch,” in which some critics of affirmative action say that graduation rates for minority students would be better if they attended institutions they could enroll at without any special admissions system in place.
The key finding is that minority students in Texas are significantly more likely to graduate if they enroll at a competitive institution through the 10 percent plan than if they enroll at a less competitive, and theoretically easier, institution. In fact the only minority students who don’t appear to benefit from 10 percent are those who are below the top decile of their high school classes and who might have previously won admission to a highly competitive institution, but now frequently lose their spots and end up at other institutions. These students see a decline in graduation rates.
The percent plan idea originated as a law in Texas to respond to court rulings against affirmative action, but has been used elsewhere with different cutoffs. In Texas, those in the top 10 percent of their high school classes are assured admission to the public university of their choice — regardless of standardized test scores.
The idea behind the percentage plans is that black and Latino students, on average, don’t do as well on standardized tests as do white and Asian students. In addition, Texas is a state with many high schools that are overwhelmingly Latino or overwhelmingly black. Since every high school has a top 10 percent, eliminating the testing requirement meant that these largely minority high schools were going to end up producing good numbers of Latino and black students who would be admitted — without consideration of race in ways that might offend courts or critics of affirmative action — to such competitive institutions as the University of Texas at Austin and Texas A&M at College Station.
In many respects, the plan has been a major success in Texas, helping the flagship institutions to admit more minority students than they would have been able to otherwise — at least while the state was under a court order not to use affirmative action. But ever since the U.S. Supreme Court ruled in 2003 that public colleges could consider race in admissions, University of Texas officials have been pushing to get rid of 10 percent and to instead rely on other admissions strategies (including affirmative action). In the 2007 legislative session, the university was expected to win its fight, but at the last minute, the 10 percent system survived.

Full Story: http://www.insidehighered.com/news/2009/01/12/tenpercent

Judge Refuses to Force U. of Texas to Reconsider 2 Rejected White Applicants

Chronicle of Higher Education
May 29, 2008
Peter Schmidt

A federal judge has refused to order the University of Texas at Austin to re-evaluate, without any consideration of race or ethnicity, the applications of two white students who have sued the institution, challenging its admissions policies as discriminatory. The lawsuit is continuing.
In a ruling issued late today, Judge Sam Sparks of the U.S. District Court in Austin said the lawyers for the two applicants had failed to show that there was a substantial likelihood the students would have been admitted had the university not considered some applicants’ race. The judge also said the lawyers had failed to show that the students would be irreparably harmed if their applications were not re-evaluated in a race-neutral manner while their lawsuit was pending.
The judge said he did not yet have reason to believe there was a strong likelihood the plaintiffs would prevail because the case had not progressed far enough for him to pass judgment on the university’s assertions that it needed to give some consideration to race and ethnicity to enroll a “critical mass” of black and Hispanic students. He said he did not think the potential harm to the two students justified the burden that would be placed on the university if he issued a preliminary order, possibly opening the door for hundreds or thousands of other students to appeal recent admissions decisions. [To read the entire article, go to: http://chronicle.com/news/article/4578/judge-refuses-to-force-u-of-texas-to-reconsider-2-rejected-white-applicants ] Subscription required

Affirmative Action Challenged Anew

Inside Higher Education
April 8, 2008

When Texas and a few other states responded to bans on affirmative action with “percent plans,” which guarantee admission to public colleges to those who graduate in some designated top percentile of their high school classes, some critics of affirmative action were troubled. The plans were adopted in states like Texas where many high schools are largely segregated (by housing patterns, not law), so offering automatic admission for the top 10 percent of graduates assures a measure of diversity at public universities. Some critics viewed the plans as an end run around the bans on affirmative action since the plans were designed with the idea of getting more black and Latino students into top universities — but in a way that couldn’t be legally challenged.
Now a new lawsuit against the University of Texas at Austin from critics of affirmative action argues that because of the success of a percent plan, the institution should not be permitted to consider race in admissions. The suit doesn’t seek to reverse the Supreme Court’s rulings that, in certain circumstances, allowed the use of affirmative action in college admissions. Rather, the suit says that — if the Supreme Court’s directives were being carefully followed — colleges would have to eliminate or change many admissions policies that consider race and ethnicity. Critics of affirmative action think they may have a new legal strategy for use in some states, and even some defenders of affirmative action — while dubious of the argument — say it is novel and may attract new thinking to such litigation.
The lawsuit was filed in federal court Monday on behalf of a white high school senior, Abigail Noel Fisher, who was rejected from UT Austin. Like other challenges to affirmative action, the suit charges that Fisher would have otherwise been admitted — but for affirmative action as practiced by the university. Where the argument differs is that it is based on a portion of the 2003 Supreme Court decision, Grutter v. Bollinger, that upheld the right of the University of Michigan’s law school to consider race in admissions decisions. The decision noted the obligation of public universities to consider race-neutral alternatives to the explicit consideration of race and ethnicity. That obligation is typical of court decisions upholding affirmative action, and most colleges have argued that race neutral measures alone — such as affirmative action based on class, for example — would not produce a diverse class of students.
This is where things could get tricky for the University of Texas, the plaintiffs hope, because they are pointing to numerous statements from university officials praising the 10 percent plan for helping to admit classes of students with as much or more diversity than the university had before a ban on affirmative action. For example, this statement from the university — cited in the court filings — says that “the law is helping us to create a more representative student body and enroll students who perform well academically.”
The Project on Fair Representation, which is handling the suit against the university, is not attacking the legality of affirmative action or of the 10 percent law, said Edward Blum, who is involved in the case and has worked for several efforts against affirmative action. “The court in Grutter very distinctly said that you’ve got to try race-neutral means before you use affirmative action, and the University of Texas is not,” he said. “One of the results of this lawsuit may be that other colleges and universities may be put on notice that they must use race-neutral means.”
One irony of the suit is that the University of Texas has been pushing hard since 2003 to have the state repeal the 10 percent law. At the time the law was adopted, a federal appeals court decision banning affirmative action was in place in Texas. But when the Supreme Court upheld affirmative action’s legality, the university resumed consideration of race. University officials have said that they now have enough tools available to assure a diverse class that they don’t need the top 10 percent law and fear it deprives them of flexibility. Last year, it looked like the Texas Legislature was poised to repeal the law, but at the last minute, the repeal effort failed — with many advocates for minority students saying that the 10 percent plan was still needed.
Blum said that if Texas does repeal the law, it would not change the suit. Texas can decide whether or not it wants to keep the law, he said. But it can’t consider race in admissions when the success of the law has demonstrated the ability to obtain diversity in a student body without using race-specific policies.
Patti Ohlendorf, vice president for legal affairs at Austin, issued a statement noting that the university has just received a copy of the suit and hasn’t had time to study it. “We will review the complaint, which challenges the university’s admissions procedures on Constitutional grounds, with the UT System Office of General Counsel and the Office of the Attorney General,” she said. “Each year we are very fortunate to receive applications from thousands of very able high school seniors, but as with many universities around the country, we are limited in the number of applicants we can admit. We believe that our undergraduate admissions policies are well administered and in compliance with Supreme Court precedent and all other applicable law.”
Shirley Wilcher, executive director of the American Association for Affirmative Action, said she had not seen the suit. She said that if the plaintiffs prevailed, it could limit the ability of Texas colleges to diversify. “I have never been under the impression that the percentage plans were a ceiling above which you can’t go,” she said. “There’s nothing that says that if you don’t get the level of diversity you want, you can’t go beyond that.”
She also noted that the Supreme Court hasn’t required colleges — or other entities engaged in affirmative action — to undertake every single possible alternative to the consideration of race. She questioned whether the suit may be “a ploy” to attack affirmative action in new ways. [To read the entire story, go to: http://www.insidehighered.com/news/2008/04/08/affirm ]