UT Case Could Force Another Look at Top Ten Percent

With oral arguments out of the way, the waiting game now begins as the U.S. Supreme Courts considers the Fisher v. the University of Texas at Austin case, which challenges the institution’s use of race in some admissions decisions. 

A ruling is not expected until sometime in the spring of 2013, which means the 83rd regular session of the Texas Legislature could be well underway before its effect on UT’s admissions policies are known.

Lawmakers may opt to tweak current laws in anticipation of the decision or to wait to find out if the ruling requires any response. Either way, there’s a growing sense that lawmakers might revisit the state’s “top 10 percent” rule — a 1997 law that allows automatic admissions to Texas residents who graduate in the top ten percent of their high school class.

The top ten percent law itself was a creative means to create diverse institutions of higher learning without the use of affirmative action, which at the time had just been disallowed by the Fifth Circuit Court of Appeals. In 2003, the court ruled that race could be used narrowly as a minor factor in admissions decisions in an effort to create a “critical mass” of minority populations on campus; whether UT has been doing this properly is what is currently at issue.

Since the implementation of the top ten percent rule, the demand for automatic admissions at UT has grown increasingly overwhelming. It was projected that by 2013, 100 percent of Texas residents admitted to UT would come from automatic admissions under the law, leaving no room for institutional discretion.

The university sought a legislative fix, and in 2009, the Legislature demonstrated its willingness to mess with the “top 10 percent.”

Under Senate Bill 175, authored by state Sen. Florence Shapiro, R-Plano, lawmakers allowed UT — and only UT — to limit its automatic admissions to 75 percent of the incoming class. The remaining 25 percent of the class is culled from a pool of applicants that are evaluated holistically in a process that includes race as a minor factor.

According to the bill author’s statement provided to the Senate Research Center at the time, lawmakers felt that “a university needs the flexibility to consider criteria other than high school rank, such as test scores, special talents, leadership ability, personal achievements, or other relevant aspects of what the student can offer the academic environment.”

But an amendment was attached requiring that, if a court decision or board of regents decided that race could not be considered among those factors, UT could no longer cap its automatic admissions. Former Rep. Veronica Gonzales, D-McAllen, who added the amendment, said it was intended to hold administrators to their word.

"I knew that the commitment of the University of Texas had been to be able to have a diverse campus. But administrations change and the laws change, we knew there was always that possibility that a court case could undo the good we believe has been done through diversity," she said, adding that she hopes the court will affirm UT's current policy.

With the very real possibility that such a decision is in the offing, lawmakers may need to reconsider their approach or risk ending up with exactly what they attempted to prevent: an entire UT class decided solely based on GPA.

After Wednesday’s arguments before the Supreme Court, UT President Bill Powers told reporters he intended to working with lawmakers to address automatic admissions, but he hedged on the influence of the impending ruling on that effort.

“Automatic admissions has been an issue in almost every legislative session,” he said. “Exactly how that ought to work, I would anticipate that will be an issue. The outcome of [the U.S. Supreme Court’s] decision may affect the nature of that law. So, I would intend to be working with legislative leaders whatever the outcome of this case is.”