If UT-Austin Loses Case, It Could Face Another Top 10 Percent "Crisis"

With its day before the U.S. Supreme Court over, the University of Texas at Austin can only wait to learn how it will be allowed to use affirmative action to boost diversity among its students.

But lost in the debate over Fisher v. University of Texas at Austin is this: More than racial preferences in admissions are at stake. If the university failed to convince the high court that its practices are constitutional, the entire way it selects its incoming freshman classes could be at risk.

That’s because of a little-known provision in state law that, left unchanged, would dramatically increase the number of students who are automatically admitted into UT-Austin if it loses the case. 

Right now, the university caps the number of students who gain automatic admission through academic performance at 75 percent of incoming freshmen. With an adverse court ruling, that cap would be at risk of disappearing in two years.

The last time UT-Austin didn’t have such a cap was 2009, when university officials were panicked that automatically admitted students were crowding out everyone else who was applying. Now, the problem could be worse. UT-Austin regularly gets applications from more than 10,000 people who would automatically qualify if no cap were in place; in 2015, it only enrolled a total of 7,743 freshmen. 

The automatically admitted students are accepted under the state’s top 10 percent rule, which promises admission into any state school to anyone who graduates in the top 10 percent of his or her public high school class in Texas. The rule was approved in 1997, not long after a federal appeals court banned affirmative action at public universities in the state. 

The rule’s supporters say it has helped thousands of students get into Texas’ flagship school who might not have otherwise. And opponents of affirmative action tout it as a “race-neutral” way to increase college diversity. Texas’ public schools are de-facto segregated, they say, so taking the top students from each school creates a racially diverse student body. 

But UT-Austin has always had a testy relationship with the law. Since 1997, the university has had to accept more and more students. By 2008, 81 percent of incoming freshmen at UT-Austin were top 10 percenters. University leaders warned at the time that they soon wouldn’t be able to accept anyone outside the top 10 percent, making it hard to field a football team or attract any out-of-state students. Suburban legislators were also upset because the law made it nearly impossible for quality students from their competitive schools to get into UT-Austin if they weren't in the top 10 percent. 

“It has become a crisis for us,” Bill Powers, then UT-Austin’s president, told the Legislature in 2009. “We’re simply running out of space.” 

Since then, the Texas population has grown, so space would probably be even more limited. 

The cap was imposed in 2009 by a bill authored by then-Sen. Florence Shapiro, R-Plano. But some inner-city legislators opposed it, saying the top 10 percent rule was creating opportunities for minority students in their districts. In the end, the two sides reached a compromise. UT-Austin was allowed to cap top 10 percent students at 75 percent of each freshman class but had to continue considering race when it evaluated candidates for the other 25 percent. And if the university received a “final court order” preventing it from using race, the 75 percent cap would be repealed, according to the law. 

With the Supreme Court now considering the case, such a “final court order” seems possible. And it’s unclear how UT-Austin would respond. Standing outside the high court on Wednesday, UT-Austin President Greg Fenves said university officials hadn’t given much thought to how they would handle a loss.

“We haven’t done any planning,” he said. 

But other lawmakers appear willing to help. State Rep. John Zerwas, R-Richmond, chairman of the House Higher Education Committee, said he wasn’t aware of the provision tying the cap to racial considerations. But he said he would listen if UT-Austin asked to fix the law.

“It seems to create at least a little bit of a schizophrenic situation if the Supreme Court makes that decision,” he said. 

His counterpart in the Senate, Kel Seliger, R-Amarillo, sponsored a bill in 2013 that would have preserved the cap. That bill, which faced resistance from the NAACP and Mexican American Legal Defense and Educational Fund, kept the "final court order" provision in place, but it postponed the cap's automatic removal until after the admissions process for 2017-18 freshmen. 

That would buy lawmakers and UT-Austin officials one legislative session to adjust the law if UT-Austin loses. And it would probably revive a long-standing debate in the Legislature about the automatic admissions rule itself. Many lawmakers oppose the law, but they have never been able to repeal it. A forced change to the law by the Supreme Court could give them their chance. 

“Frankly, I’m not a fan of the top 10 percent rule, period,” Zerwas said. But, he added, “I haven’t heard of any big movement in trying to repeal it.”

Disclosure: The University of Texas at Austin is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.