From the Office of State Senator Royce West - District 23

For Immediate Release
CONTACT: Kelvin Bass
May 19, 2008

UT-Austin lawsuit could open Pandora's box of legal challenges

By Senator Royce West

The recent lawsuit contesting The University of Texas' use of race as a factor in school admissions policy adds yet another chapter to the book on Texas' Top 10 Percent Law. On April 7, the Washington, D.C. based Project on Fair Representation filed suit on behalf of a Texas high school senior who says the factoring of race in admissions decisions provides an advantage to some students that are not available to the plaintiff.

In 1997, the Texas Legislature created the Top 10 Percent Law that guarantees automatic admission to any state-supported college or university for students who graduate in the top 10 percent of their respective high school class. It sought a remedy to the 1996 court ruling that barred the use of race consideration in admissions policies.

The aftermath of the 1996 Hopwood Decision saw minority enrollment at Texas' universities plummet. The collateral damage witnessed numerous minority students become attracted to schools outside Texas where race could be considered when recruiting student candidates.

It took the Top 10 Percent Rule to get minority students back - particularly on the UT-Austin campus - to levels at least equal to pre-Hopwood figures. I am happy to report that the number of minority students now attending UT-Austin now exceeds those of pre-Hopwood.

In 2003, the U.S. Supreme Court opined that race could be used as a factor when determined that other means of obtaining diversity have proven unsuccessful. UT's revised policy using race as a factor in admissions was adopted before the ink dried on Grutter v. Bollinger.

Top 10 opponents were soon to say that with the reintroduction of race in admissions policies, the 1997 law was no longer needed. But if the present High Court's 2007 ruling in cases involving Seattle and Louisville public schools are any indication, it would not be a safe bet to use race when devising college admissions policies. But UT's current push to cap Top 10 admissions using a policy where race is a factor would do just that.

In every legislative session since 2003, there's been a flurry of bills to repeal or cap Top 10 admits. Last year's proposal would limit Top 10 admits to 50 percent. UT-Austin says ("sky is falling") that Top 10 admits will soon make up the entire incoming freshman class. They argue that by capping Top 10 admits, a more holistic review could help attract an even more diverse student body - including minorities and applicants with "special" attributes.

Meanwhile, the current policy that includes the use of race has not proven more effective than the policy prior to Grutter absent the use of race. So why risk certain future court challenges?

While capacity concerns are real, my sense of alarm does not match that of UT. I say - and UT figures agree - that the Top 10 Percent Law has produced the school's most ethnically and geographically diverse student body ever for several years running. Those Top 10 students have higher GPAs and graduate at rates higher than their non-Top 10 peers. So if student success is the desired objective, why put a cap on that success?

The current lawsuit does not knock the race-neutral Top 10 law. Rather, it says that the version of the Top 10 Percent Law used between 1998-2004 has produced as good or better results as the 2005 policy that uses race. I say that more such lawsuits could surface at any time. I also say that given the current court where justices John Roberts, Antonin Scalia, Samuel Alito and Clarence Thomas preside, it is not safe to gamble on how issues involving race will be treated in coming years.

Bottom line: using any available measure, the Top 10 Percent Law works. UT should stop tinkering with the lock on Pandora's box.