Supreme Court Ruling Could Spur Changes to Top 10 Percent Rule

With Thursday’s U.S. Supreme Court decision in Fisher v. University of Texas at Austin, an eight-year legal fight over affirmative action at UT-Austin has finally ended. But the battle over race and admissions at one of the state’s two flagship universities is just getting started.

That’s because for years, the diversity issue that has provoked the most passion among Texas parents and legislators has been the state’s Top 10 Percent Rule, not affirmative action. And a growing number of state lawmakers are expressing a desire to tweak or repeal the higher education admissions rule — designed to help black and Hispanic students at poor-performing inner-city high schools — during next year's legislative session.

“There is quite a bit of chatter about it” among legislators, said state Rep. John Zerwas, R-Richmond, the chairman of the House Higher Education Committee, who personally doesn’t like the rule. State Sen. Kel Seliger, Zerwas’ Senate counterpart, called the Top 10 Percent Rule a potential example of “big government.”

• Read More The Price of Admission: A Series on the Fight Over the Top 10 Percent Rule

The rule requires every public university in Texas to automatically admit those who graduate near the top of their high school senior class, aiming to give an advantage to students who attend minority-dominated inner city schools. Right now, most of UT-Austin’s freshman class is admitted under the rule; on Thursday, the Supreme Court upheld the race-conscious policy that is used to admit those outside the automatic threshold.

While minority lawmakers have fiercely defended the policy, suburban lawmakers and parents say it has become nearly impossible for many students at wealthy public high schools to get into one of the state’s most prestigious universities, UT-Austin — where students must graduate in the top 7 percent of their class to be eligible for automatic admission.

Statistics don’t necessarily back that complaint up; in fact, white and Asian applicants are far more likely to get into UT-Austin from outside the top 7 percent than black and Hispanic applicants, even though the school considers race in that admissions pool. But the opposition has been steadfast and growing. UT System Chancellor Bill McRaven called for a review of the Top 10 Percent Rule, as did Texas Gov. Greg Abbott.

And with Fisher v. University of Texas at Austin in the rearview mirror, the path became clearer for opponents to change or even repeal that rule. Zerwas said Thursday’s ruling strengthens the argument that UT-Austin can diversify its class “just fine” without the rule, by considering race in admissions.

Greg Vincent, vice president of diversity and community outreach for UT-Austin, called the rule “one very important strategy for us.” But, he added, “although it does improve our diversity, it does not get us to where we believe we need to be to promote the educational benefits of a diverse learning environment.” 

U.S. Supreme Court Justice Anthony Kennedy seemed to agree in his majority opinion issued Thursday. His support of UT-Austin’s race-conscious admissions policy was tepid — but he blasted the Top 10 Percent Rule multiple times in the 20-page ruling.

"At its center, the Top Ten Percent plan is a blunt instrument that may well compromise the University's own definition of the diversity it seeks," Kennedy wrote, adding the rule "would exclude the star athlete or musician ... [or] talented young biologist" who struggled in school.

UT leaders and their supporters, meanwhile, have another complaint. They say that the rule ignores applicants' SAT scores, and that as a result, UT-Austin's place in national rankings could be hurt.

Lawmakers who represent inner-city school districts will resist scaling back the Top 10 Percent Rule, but it’s unclear whether they have the numbers to block any proposed changes. There are far fewer Democrats in the Legislature now compared with 1997, when the rule became law.

• Read More At A&M, Diversity Increases Without Affirmative Action

The Top 10 Percent Rule was actually devised as a replacement for affirmative action. It was approved in response to a 1996 appeals court decision that banned UT-Austin and other schools in the state from considering the race of their applicants.

So far, lawmakers have been reluctant to repeal or significantly weaken the Top 10 Percent Rule. One reason might have to do with the Fisher case. Many of the opponents of the Top 10 Percent Rule are also opponents of affirmative action. So repealing the law before the case was resolved might have prevented the court from ending affirmative action nationwide.

Now that that hasn’t happened, there’s no strategic reason to hold off on a repeal. 

Lawmakers and higher education leaders have raised the idea of raising the class rank necessary to get in automatically — perhaps to the top 5 percent — or simply admitting fewer students automatically in order to create room for other applicants. While supporters haven’t rallied around one particular plan, they seem to agree that something needs to be done.

Zerwas said he supports such options, “short of getting rid of the rule completely, which in my world would be the best option.” Vincent, of UT-Austin, said that scaling back the scope of the rule has "certainly been our posture in the past." 

State Sen. Royce West, D-Dallas, a longtime supporter of the Top 10 Percent Rule, said it plays an important role in increasing geographic diversity and in boosting minority enrollment.

“Has it achieved the results I would like to see achieved? No, it hasn’t,” he said. Still, he said of the rule’s opponents, “Even though they had the upper hand politically, they should tread very carefully when we start talking about doing away with a race-neutral approach.”

In his fiery, 60-page dissent of the Supreme Court’s decision, Justice Samuel Alito offered a strongly-worded defense of the rule, mentioning the policy more than 40 times. Alito ripped UT-Austin's criticisms of the Top 10 Percent Rule, which the university has used as justification for the need to consider race when admitting students who aren't at the top of their class.

"Ultimately, UT’s intraracial diversity rationale relies on the baseless assumption that there is something wrong with African-American and Hispanic students admitted through the Top Ten Percent Plan, because they are 'from the lower-performing, racially identifiable schools,'" Alito wrote.

He continued, "How could UT determine that employing a race-based process would serve its goals better than, for instance, expanding the Top Ten Percent Plan?"

Read more about the history of the fight over boosting diversity at Texas universities.

The Texas Tribune collaborated with Reveal on a deeper look at the Top 10 Percent Rule and race in admissions at UT-Austin. Listen to our podcast here.

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.