Friends, 

Check out this excellent recap of many years of history on higher education admissions in Texas by Kate McGee with the Texas Tribune. We must fully advocate for this plan that despite its race neutrality, could get eliminated. 

It therefore behooves Black and Brown community advocates, leaders, and legislators in Texas to form coalitions with their respective rural counterparts on what should be a shared policy agenda in this arena. The reason is not because as Dr. Stella Flores says, it is a "silver bullet" for a diverse entering class, but rather because it has been relatively successful as a remedy, especially in combination with other recruitment tools and strategies.

 In principle, Texas' Top Ten Percent Plan is truly about giving all students in the state of Texas a stab at getting admitted into Texas' flagship institutions, most especially the University of Texas at Austin and Texas A & M University.

-Angela Valenzuela

With race-based admissions no longer an option, states may imitate Texas Top 10% Plan

Now that the U.S. Supreme Court has ruled the practice unconstitutional, admissions experts say other states could look to Texas’ Top 10% Plan as a way to diversify their student bodies.

BY KATE MCGEE JUNE 29, 2023UPDATED: 1 PM CENTRAL

The Texas flag flies on the south lawn of the University of Texas at Austin campus. After the U.S. Supreme Court on Thursday struck down the consideration of race in college admissions, some experts say Texas’ Top 10% Plan could become a new model for other states. Credit: Eddie Gaspar/The Texas Tribune

More than 20 years ago, when the 5th U.S. Circuit Court of Appeals banned the use of affirmative action in college admissions in its jurisdiction, those trying to diversify Texas public universities panicked, fearing that the ruling would undo years of modest progress they had made increasing the number of students of color at the state’s top public universities.

The impact of the law was immediate. At the University of Texas at Austin, Hispanic enrollment dropped by 15% in one year, while Black enrollment dropped by 25%.

To curb that decline, Texas lawmakers created a “race-neutral” program known as The Top 10% Plan, aimed at giving a broader group of Texas students opportunities to attend state universities by automatically admitting those who graduated in the top 10% of their high school classes.

Researchers found the plan never succeeded in regaining the racial diversity lost after the 1996 ban on race-conscious admissions at UT-Austin or Texas A&M University’s main campus in College Station, nor has it meaningfully changed which high schools are sending students to those schools. But supporters say it helps provide equal access to the state’s top schools, though they say it is not a standalone solution to increase diversity among the student bodies.

Now, two decades later, the U.S. Supreme Court ruled Thursday that the use of race in college admissions at two universities, Harvard University and the University of North Carolina at Chapel Hill, violates the 14th Amendment’s equal protection clause, effectively ending race-based considerations in college admissions nationwide.

Following that ruling, admissions experts say percentage plans, including Texas’, could get more attention from other states despite the questionable diversity gains by the Texas plan.

“[T]he effectiveness of percentage plans to make a large, aggregate change in enrollment demographics remains an unsettled issue,” according to an upcoming paper on how state policymakers can respond to the Supreme Court’s ruling. Its authors are James Murphy, deputy director of higher education policy at Education Reform Now, a national education nonprofit, and researcher Virginia Carr Schneider.

The policy exploited the existing racial and ethnic segregation of Texas public high schools, allowing universities to accept students from different areas of the state and a wider array of schools without explicitly considering students’ race. Ever since, the plan has faced criticism from suburban parents, state lawmakers and university leaders who believe it makes it harder for students in well-resourced schools to get admitted to the state’s flagship universities.

“However, percentage plans can have a significant impact on the opportunities of students of color, which, given the lack of evidence for negative effects of percentage plans, means they could still provide benefits, making their implementation worthwhile.”

A plan is born

Texas’ Top 10% Plan was developed in 1997 with the help of Hispanic activists and lawmakers after the 5th U.S. Circuit Court of Appeals ruling that banned the use of race in admissions in the three states within its jurisdiction, including Texas.

The late state Rep. Irma Rangel, a Democrat from Kingsville, filed a bill that required each public university in the state to automatically admit any students who graduated in the top 10% of their graduating classes.

Critics, including many conservative lawmakers, thought the rule was unfair to white students from well-resourced high schools who might have a harder time reaching the top 10% of their classes. They were also concerned it would send more underprepared students to Texas universities, particularly the flagships, UT-Austin and Texas A&M.

Rangel pointed out that rural high schools struggled to send white students to UT-Austin, as well as students of color, which helped her cobble together a coalition of Black and Hispanic liberals and rural conservatives to narrowly pass the measure. Then-Gov. George W. Bush signed it into law.

While California and Florida also have percentage plans, Texas’ plan is unique because it allows students in the top 10% of their graduating class to choose which school to attend, rather than assigning them a school.

Six years later, in 2003, the U.S. Supreme Court nullified the 5th Circuit’s decision when it upheld the use of affirmative action in college admissions in a case involving the University of Michigan. That allowed Texas universities to consider race again, but The Top 10% Plan also remained.

Eventually, state lawmakers grew concerned that the plan created unintended consequences for UT-Austin, which was accepting more and more of its freshman class through The Top 10% Plan, which meant that there was less space for other students, including out-of-state students or student athletes.

Ultimately, the state Legislature created a carve-out for UT-Austin in 2009, specifying that 75% of each freshman class must be admitted under The Top 10% Plan while the remaining 25% would be admitted through a holistic review process that considers factors such as grade point average, extracurriculars, personal essays and race. That change means the university had to shrink the number of students automatically admitted. Last year, UT-Austin automatically accepted students in the top 6% of their graduating class.

This year, state lawmakers removed a provision in state law that would have forced UT-Austin to admit all students under The Top 10% Plan if a court decision banned the use of race in college admissions. With Thursday’s ruling, UT-Austin can continue to enroll 75% of students through The Top 10% Plan, but it can no longer consider race when accepting the other 25% of the freshman class.

Results so far

When the Top 10% law initially went into effect, the results were positive. Students enrolled under the law had a higher freshman year grade point average than other students, and the number of Black students increased by 44% and the number of Hispanic students grew by nearly 10% at state universities.

But over time, as more data became available to review, researchers started to find that not much had changed in terms of who was enrolling at the state’s flagships.

In 2020, two researchers looked at 18 years of data to see whether the law increased access to Texas’ most selective public universities, UT-Austin and Texas A&M.

They found a slight increase in the number of non-suburban high schools that sent students to those schools, but ultimately determined The Top 10% Plan did not meaningfully change which high schools sent students to UT-Austin or Texas A&M prior to the law’s implementation. The researchers also found that there continued to be more high-achieving students from well-resourced high schools enrolling at the flagships compared with students from other high schools.

Still, supporters argue that scaling back or scrapping the plan would make it harder to create a more diverse student body. According to a data analysis by the Intercultural Development Research Association, the vast majority of Black, Hispanic and Asian students at UT-Austin are accepted through The Top 10% Plan, while the university’s holistic review process disproportionately favors white students.

Data from the Texas Higher Education Coordinating Board also shows The Top 10% Plan hasn’t helped UT-Austin or Texas A&M reflect the demographics of the state’s 18- to 22-year-olds.

In 2009, 51% of UT-Austin freshmen were white and 23% were Hispanic, while the state’s 18- to 22-year-old population was 41% white and 41% Hispanic. By 2020, that age group was 32% white and 48% Hispanic statewide; UT-Austin’s freshman class was 32% white and 31% Hispanic that year.

At Texas A&M, the gaps were even wider: 55% of the 2020 freshman class was white while 26% were Hispanic.

Meanwhile, Black students made up 7% of the freshman class at UT-Austin and 3% of Texas A&M’s freshman class in 2020 — significantly lower than their 13% share of the 18-22 population.

Stella Flores, a higher education and public policy expert at UT-Austin, said that Texas' percentage plan is not a silver bullet to achieving more diverse student bodies.

"But it doesn't mean it can't be amended or supported with more funding, better recruitment and better outreach so that it can work," she said.

Higher education policy experts say that for percentage plans to work, schools also must recruit students from underrepresented groups and create a welcoming environment for them. That could be more difficult in Texas after state lawmakers passed a bill this year banning diversity, equity and inclusion offices at public universities, said Dominique Baker, a higher education policy professor at Southern Methodist University.

"Some might say the exact office that is supposed to spearhead brainstorming about this and focusing on this has now been declared illegal in the state of Texas," Baker said.

Following the Supreme Court’s ruling, researchers also say the Texas model might not work in other states where racial segregation is not as extreme.

“Indeed, most evidence confirms that the amount of segregation in states that use Top X% Plans is not enough to produce the levels of racial and ethnic diversity achieved under race-based admissions policies,” researchers Kalena Cortes at Texas A&M and Daniel Klasik at the University of North Carolina at Chapel Hill wrote in a 2020 paper on The Top 10% Plan.

And some higher education policy experts say it’s likely The Top 10% Plan could be the next focus of debate in Texas college admissions. A 2017 bill that died in the Legislature, for example, would have let UT-Austin accept only 30% of its students through the plan rather than 70%.

“That’s coming,” said Murphy with EdReform. “The attacks will come for percentage plans, inevitably.”

Emily Berman, a constitutional law expert at the University of Houston Law Center, said it's possible that those against the use of race in admissions could file lawsuits accusing universities of using "race-neutral" policies for the specific purpose of creating racial diversity.

"It wouldn't surprise me if [opponents] come back and say, even race neutral mechanisms shouldn't be allowed if their purpose is to achieve more racially diverse student bodies," she said, adding that she thinks this argument could be made against Texas' Top 10% Plan.

Disclosure: Texas A&M University, the University of Houston and the University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

SCOTUS Decision on Affirmative Action Represents Their Own Racial Reckoning in U.S. Society

My colleague, Dr. Liliana Garces, hits the nail on the head in the recent, anti-affirmative action SCOTUS decision as per this Chronicle of Higher Education report: 

“We have moved away from thinking of higher education as a public good to more of an individualistic, how-I’m-going-to-get-ahead perspective,” Liliana M. Garces, a professor of higher education at the University of Texas at Austin, told The Chronicle in a recent interview. “But if we come back to the public mission of higher education and its role in advancing the democratic goals of a multiracial society, we understand that institutions trying to build a diverse student body is advancing interests that benefit all of us in a multiracial democracy, by building capacity for diverse students to become leaders. If you ground yourself in that public role and mission of higher education, college admissions is not a zero-sum game.”

Dr. Garces calls out these two competing views, namely, the attainment of higher education as a public good, beneficial to society as a whole. This is diametrically opposite from the neoliberal view of higher education "consumers" enjoying a "market of options." Ample research shows how racially and ethnically diverse classrooms are better than non-diverse ones. That is, they prepare our youth for diverse working environments. Moreover, in terms of fairness, we all pay taxes for education such that all groups should benefit equitably—not equally considering that not all students are equally privileged.

Southern Methodist University Associate Professor Dominique J. Baker's statement compliments that of Garces, expressing that “The majority’s opinion rejects the reality of structural racism," including the real-world notion of privilege as evidenced in legacy admissions.

What I would add is that it's frankly convenient for SCOTUS to eschew a public goods perspective because in doing so—as affirmative action does—this readily takes one down the path of remedying the wrongs of structural inequality by compensating for these through policy tools that take race/ethnicity and other factors like class, gender, and ability into account.

The U.S. Supreme court agreed with Students for Fair Admission that race-consciousness equals racial discrimination. The logics of this decision are so patently mystifying because race-consciousness is how and not whether one sees race. Why is this so? The answer is because we live in a society and world where access to the good life that higher education affords, is circumscribed by race and class—with significant overlap between the two. One doesn't go a single day in this country without news of some kind that are expressly about race. Next to guns, it's our national obsession such that one can only be willfully blind to race. Hence, it's next to impossible not to see race. 

The issue is rather how one sees race. Does one see it as a basis for inclusion or exclusion, as a means to uplift or derogate? In contrast, so-called "racial discrimination" is an expression of individualist privilege and entitlement that ironically benefits white people, i.e., a racial group, in U.S. society.

Hakeem Jefferson and Victor Ray (2022) also recently nailed it when they anticipated even more consequential repercussions following the January 6 attack on U.S. Capitol that reveals rioters' own racial reckoning as a "white backlash to a perceived loss of power and status."

In the meantime, people of color are ascendant demographically, and to a certain extent socially, because of just policies like affirmative action and diversity, equity and inclusion—even if vast inequities in places like higher education remain (Ellsworth, Harding, Law & Pinder, 2022). 

Universities are tasked with creating pipeline programs and recruiting students of color to apply. We should continue along the trajectory, as well, of limiting the use of standardized tests for admissions purposes. In Texas, we should also double-down on percent plans in higher admissions. This brings not just our black and brown communities and coalitions into conversation, but white rural communities, as well. As with vouchers, there is a shared interest and natural constituency for a way forward.

In general, young people and the broader public need to grasp for themselves that higher education is a public good and join the struggle wherever you are for educational justice. Yes, this is a symbolic blow to the goals of diversity, equity and inclusion, but this is not the end, but rather still the beginning of this struggle.

-Angela Valenzuela

References

Jefferson, H. & Ray, V. (2022, Jan. 6) "White Backlash Is A Type Of Racial Reckoning, Too," By Hakeem Jefferson and Victor Ray | FiveThirtyEight

Ellsworth, D., Harding, E., Law, J. & Pinder, D. (2022, July 18). Racial and ethnic Equity in U.S. Higher Education, McKinsey Report. Retrieved: https://www.mckinsey.com/industries/education/our-insights/racial-and-ethnic-equity-in-us-higher-education

The Supreme Court’s Decision Reveals a Gulf Between Two Views of Race and Merit
By Eric Hoover
JUNE 29, 2023

ILLUSTRATION BY THE CHRONICLE; PHOTOS BY TOM WILLIAMS, CQ-ROLL CALL, INC.,
GETTY IMAGES; ISTOCKChief Justice John G. Roberts Jr. of the U.S. Supreme Court.

The U.S. Supreme Court looked behind the curtain. Then it knocked over the table and chairs. Now, colleges are left with one big mess and a slew of questions that will define a new era for college admissions in a nation riven by racial disparities.

In its long-awaited decision on Thursday, the court held that the way Harvard College and the University of North Carolina at Chapel Hill had considered applicants’ race violated the 14th Amendment’s Equal Protection Clause. The ruling, split along the court’s ideological lines, essentially struck down four and a half decades of legal precedent allowing institutions to consider race as one of many factors in their evaluations. The decision, every bit as drastic as many college officials had long feared, will shift the way many admissions offices assess students. And it will very likely change, perhaps dramatically, the racial and ethnic makeup of many campuses.

The ruling was a resounding victory for Students for Fair Admissions, known as SFFA, which sued Harvard and UNC, in 2014. For all the complexities contained within the two cases, SFFA’s argument in each boiled down to this: Race-consciousness is no different than racial discrimination. And in the end, the court agreed.

Writing for the majority, Chief Justice John G. Roberts Jr. forcefully rejected Harvard and UNC’s race-conscious admissions practices. Anyone who reads the opinion closely will detect the same apparent impatience with colleges, the same mistrust of their methods, that he and other conservative justices expressed during oral arguments last fall. The court concluded that Harvard and UNC’s stated goals were too elusive, too difficult to measure, to withstand strict scrutiny.

Above all, the court agreed with SFFA’s contention that the Constitution requires colorblindness in all federal laws, a notion that derives from a particular reading of the 14th Amendment, which guarantees “the equal protection of the laws” to all U.S. citizens. An applicant, Roberts wrote, “must be treated based on his or her experiences as an individual — not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”