April 7, 2015

University of Texas law student calls out the Texas Ten Percent Plan

By Wen Fa Attorney

The Daily Texan, the student newspaper of the University of Texas at Austin, recently ran this op-ed by a UT law student advocating the repeal of the Texas Ten Percent Plan. The author called the Plan—which the University uses to admit around three-quarters of its freshman class—“racist” and “discriminatory.”

The Texas Legislature enacted the Plan in 1997, after the number of underrepresented minorities enrolling at the University of Texas plummeted following an unfavorable court decision temporarily prohibiting the University from granting racial preferences in admissions (but it may not be “temporary” much longer). The Legislature adopted the Plan to return minority enrollment at the University back to previous levels.

Today the Top Ten Percent Plan—which has changed to a Top Seven Percent Plan—grants any student graduating in the top seven percent of her high school class automatic admission to the University of Texas, regardless of the student’s scores on standardized tests or the quality of the student’s high school. At the same time, the University views standardized test scores and the quality of the student’s high school as important metrics for those who seek admission through the traditional process.

The Plan has generated some unexpected viewpoints. Justice Thomas, who has been the Supreme Court’s most vocal critic of affirmative action programs, has said that there is nothing discriminatory about the Top Ten Percent Plan. Justice Ginsburg, on the other hand, has stated that only an ostrich would claim that there is a difference between the Ten Percent Plan and affirmative action programs that the Court has repeatedly struck down as unconstitutional.

The legality of the Top Ten Percent Plan is an extremely interesting question. The Plan is different from the affirmative action programs that the Court has considered in the past. Those plans were presumptively unconstitutional because they contained explicit racial classifications: a sixteen-seat set-aside for minority students; a categorical twenty-point boost for every minority applicant; a “holistic” admissions system that openly considered the applicant’s race as one of many factors in the admissions process.

In each of those programs, applicants were asked to list their race, which the school then used to make its admissions decision. That an individual’s race determines her chances of gaining admissions to a university is particularly demeaning to individual dignity.

But what should one make of programs, such as the Top Ten Percent Plan, that do not specifically ask for race, but were adopted with an obvious racial goal in mind? Do they also offend the Constitution? Do they raise the same concerns with respect to individual dignity? I’ll be sharing my thoughts in the coming weeks.

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