OPEN UNIVERSITY MAY 29, 2007
by Sanford Levinson
Much has been written over the past decade about "10%plans" as an alternative to the use of self-conscious racial- and ethnic-preferences. The term largely derives from a Texas law, passed in the aftermath of the Hopwood decision by the Fifth Circuit Court of Appeals that struck down UT's affirmative action program. Crucial in this regard was the interpretation by then-Texas Attorney General Dan Morales that the case really did require complete "color-blindness" by the university its admissions process, a quite different reading from that adopted by officials in Louisiana and Mississippi, the other two states in the Circuit. In any event, the Texas Legislature, with the strong encouragement of UT officials, adopted a program whereby the top 10% of graduates from each and every public high school in Texas would be guaranteed admission to any Texas public university of their choice, including UT-Austin, the "flagship" of the UT system. Because Texas schools are still quite segregated in big cities (and Texas has three of the ten largest cities in the U.S.--Dallas, Houston, and San Antonio), it was believed that this would provide a suitable number of minority students through a formally color-blind system. (Two things should be obvious, incidentally: a) Though the program was formally color-blind, the motivation behind it was certainly to maintain a minority presence at UT, which some purists would regard as itself a violation of the 14th Amendment; b) such a plan has literally no application at the UT Law School, where I teach, since we don't admit students out of high school!)
It's now been ten years, and the Texas House of Representatives, which has just finished its regular biennial session, ultimately rejected a bill that had sailed through the Senate to cap the number of "10%" admits to UT. There is a very illuminating story in today's Austin American Statesman about this. The most relevant paragraphs follow:
... Senate Bill 101 would have allowed a school to limit top 10 percent students to 60 percent of its freshmen from Texas high schools. The Senate passed the measure 28-2 Sunday, but the House rejected it on a 75-64 vote.... [Students would still have had automatic admission to other Texas public universities, simply not UT once the 60% limit had been reached.]
The House vote was unexpected. The chamber voted 77-67 last week to approve an earlier version of the measure. And House members approved similar proposals during two previous legislative sessions.
"The difference between this session and last session may be that rural Republicans seem to have heard from their districts that the top 10 percent rule is helping them," said Rep. Mark Strama, D-Austin, who voted for limiting the law.
UT has sought limits for the past few years, arguing that too large a portion of its undergraduate enrollment is being determined by a single factor, squeezing out students with leadership skills, musical talent and other qualities who don't happen to rank high.
The university's fall 2006 freshman class had a larger portion, 71 percent, of students from Texas high schools admitted under the law than any previous class. That worked out to 66 percent of all UT freshmen. The automatic-admission law does not apply to students from other states.
UT is the only school among 35 public colleges and universities that sought relief from the 1997 law. But any school whose capacity is strained in the future could opt to restrict admission of top 10 percent students under the measure.
House rejection of the bill is a major defeat for UT President William Powers Jr., who spent considerable time testifying at legislative hearings and meeting with lawmakers this year. He argued that giving the university more flexibility in deciding whom to admit would allow it to recruit more Hispanic and black students.
Minority enrollment at UT has not changed significantly since 1997. Blacks went from 3.7 percent of undergraduates that year to 4.2 percent in 2006, according to university records. Hispanics made up 14.2 percent of the student body in 1997 and 17.1 percent in 2006.
... Some lawmakers, especially members of minority groups to whom top 10 percent is a touchstone of merit-based equal opportunity, wanted no changes. Others, including some representing highly competitive suburban schools whose students increasingly felt shut out of UT, favored repeal. [All emphases are added.]
I find several things interesting about this latest development:
1) The plan has been an unanticipated boon for white students from largely rural areas of Texas, a marvelous illustration of unanticipated consequences. True "diversity" buffs should find this good news inasmuch as such students were probably "underrepresented" at UT. But the point is that these rural Republican legislators, who probably view themselves as opponents of "affirmative action," are more than happy to support a program that assures the admission to the University of their constituents who, by stipulation, could not get in by "pure merit" (whatever that might mean) in the absence of the free entry given the top 10%.
2) Major losers in this program have included minority students whose parents made a decision to move to integrated school districts. Students who finish in, say, the 85-89 percentile of very good suburban schools are out of luck, with regard to automatic admission. This is why Bill Powers, my former Dean at UT who is now the President of UT, is almost certainly correct when he says that the 10% plan operates to limit the overall number of minority students, including some of the most able, even as many Anglo parents from suburban systems are unhappy that their children are being denied admission to UT because they, too, fall outside the top 10%.
It would be good to know exactly what the answer is. Overall, I suspect it's been a good program inasmuch as it has indeed led to the enrollment and graduation of student who in the past would not have attended UT. But it's also clearly the case that it would be truly disastrous if UT in the future became basically 100% a "top 10%" school, for some of the reasons suggested in the story. Enrollment caps strike me as a good idea. For better and worse, the Texas legislature does not have its next regularly scheduled session until 2009. I have no doubt that the issue isn't going to go away.