HARVARD Latino LAW REVIEW
Mexican American Legal Defense and Educational Fund (MALDEF)
Americans for a Fair Chance,
a project of the Leadership Conference on Civil Rights Education Fund
Equal Justice Society
Society of American Law Teachers[*]
The Fifth Circuit’s Hopwood v. Texas ruling, repudiating the diversity rationale as a compelling interest for race-conscious admissions, dramatically restricted higher education opportunities for students of color in Texas. The recent Supreme Court decision in Grutter v. Bollinger overrules Hopwood and reaffirms that student body diversity is a compelling governmental interest that warrants the use of affirmative action at colleges and universities. Also, the Supreme Court ruling provides guidance about what is required to narrowly tailor affirmative action, so that race is one factor among many and so that all applicants are given the benefit of individualized review. In Blend It, Don’t End It, Mexican American Legal Defense and Educational Fund (MALDEF), Americans for a Fair Chance (a project of the Leadership Conference on Civil Rights Education Fund), the Equal Justice Society, and the Society of American Law Teachers, assess racial and ethnic diversity in Texas higher education at the flagship undergraduate campuses, law schools, and medical schools.
This report primarily focuses on opportunities for African Americans, Latinos, and American Indians. Asian Pacific Americans are also dis-
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cussed in some Sections, but the data are not as complete, which reflects the fact that admission figures are generally unavailable for the diverse ethnic/national subgroups within this umbrella category. Likewise, this report does not focus on the barriers women continue to face in higher education, especially as they relate to access to opportunities in underrepresented fields including the sciences, mathematics, engineering, and business.
Blend It, Don’t End It recommends that the benefits and lessons of the Texas Ten Percent Plan currently in place—which guarantees admission to any public university in Texas to Texas students ranked in the top tenth of their high school class—be woven together with the constitutionally permissible consideration of race in admissions. While the Ten Percent Plan has important benefits, our comprehensive review of the evidence confirms that the Ten Percent Plan and other race-neutral measures cannot wholly replace the affirmative action policies and programs needed to achieve racial diversity at the University of Texas at Austin, and particularly at Texas A&M University.
Blend It, Don’t End It also documents that the Ten Percent Plan contributed significantly to socioeconomic, geographic, and racial/ethnic diversity, particularly at UT-Austin. We therefore strongly oppose legislative proposals to repeal or cap the Ten Percent Plan, which would likely undermine the college aspirations of rural as well as low-income students from all racial and ethnic backgrounds. Others urge modifying the Ten Percent Plan so that it no longer guarantees admission to flagship campuses, but we conclude that such a proposal is ill-conceived because it would eliminate the key feature of the Ten Percent Plan and would diminish the flagship institutions’ accountability to all Texans.
Blend It, Don’t End It showcases seven ways that universities can affirm their support for student body diversity by implementing and/or maintaining legally permissible affirmative action, including: (1) looking beyond the numbers to holistically evaluate each applicant; (2) developing a diversity policy statement; (3) documenting the educational benefits of diversity and, if applicable, the institution’s prior record of discrimination; (4) developing broad diversity goals and maintaining sound criteria; (5) reviewing legacy policies and evaluating the potential disparate impact on students of color; (6) periodically reviewing whether there are workable race-neutral alternatives to affirmative action; and (7) eliminating other artificial barriers to inclusion.
Among the significant educational findings at the Texas flagship undergraduate universities, law schools, and medical schools are the following:
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At Texas A&M University at College Station, African Americans and Latinos constituted 18.8% of freshmen enrollments at A&M in 1995, shortly before Hopwood. This dropped to an average of 12.1% in the first six years of the Texas Ten Percent Plan (1998–2003). Moreover, the situation at Texas A&M has not improved since 2000. In 2003, the proportion of African Americans and Latinos (12.6%) was still one-third lower than in 1995 despite the fact the percentage of Texas high school graduates who are Black and Latino increased significantly over the same period. We conclude that Texas A&M was seriously mistaken when it recently concluded that it can significantly improve diversity without affirmative action, and we urge the institution to revisit this decision.
The situation at the University of Texas at Austin under the Ten Percent Plan is best characterized as “good but not good enough.” The proportion of African Americans and Latinos in 1995 (17.5%) increased slightly to an average of 17.8% under the Ten Percent Plan in the years 1998–2003. The trend, though somewhat uneven, is also in a positive direction. However, during the first five years of the Ten Percent Plan, there was a widening “opportunity gap” between the percentage of Black and Latino Texas high school graduates, and the percentage of Black and Latino freshmen at UT-Austin. Even in 2003, when Black/Latino enrollments rose to 20.6%, up significantly from the prior year, the opportunity gap nonetheless remained wider than it had been in 1995 with affirmative action.
Prior to Hopwood, the University of Texas Law School (UTLS) graduated more Mexican American and African American attorneys than just about any other non-minority law school in the country. African American enrollments at UTLS dropped from an average of 7.0% in 1990–95 to an average of 2.97% since Hopwood (1997–2003), nearly a three-fifths decline. For Mexican Americans, the corresponding figures declined from 10.9% to 7.8%. Hopwood initially precipitated stunning resegregation in 1997 (0.9% African Americans, 5.6% Mexican Americans), but enrollments gradually improved annually so that the 2002 entering class included 4% African Americans and 8% Mexican Americans. In 2003, enrollments for African American (6%) and Mexican Americans (13.9%) increased substantially from the previous year, but for reasons explained in this report, the 2003 yield rates for Mexican Americans and Blacks were historically high, so the 2003 figures do not suggest that UTLS can sustain a workable race-neutral program.
Overall, the law schools in Texas have low levels of diversity after Hopwood, though legislation such as Education Code § 51.842, aimed at
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reducing the misuse of standardized testing in graduate and professional school admissions, has had a positive impact at public institutions. African Americans are well represented at Texas Southern University’s Thurgood Marshall School of Law, a historically Black institution. But at the other eight Texas law schools, African Americans constituted a combined 3.7% of enrollments in 2002, well below the national average. This includes only 1.5% of enrollments at the University of Houston, 1.6% at Texas Tech, 2.5% at St. Mary’s, and 0.6% at Baylor. Across the nine Texas law schools, Latinos were about 11.8% of total enrollments in 2002, and only 8.9% when excluding St. Mary’s and Thurgood Marshall. Asian Pacific Americans were 5.0% of enrolled students in 2002 at the nine law schools in Texas, and American Indians were only 0.6%.
Only 3.3% of Texas medical degrees went to African Americans in 2001, less than half of the national average. Latinos received 11.5% of Texas medical degrees. African Americans, Latinos, and American Indians were 21.4% of first-year Texas medical school enrollments in 1995, which declined after Hopwood to an average of 17.2% in 1997–2002. Yet research shows that African American and Latino physicians care for a grossly disproportionate share of the Black and Latino communities, which have urgent needs for improved health care.
The Fifth Circuit’s Hopwood v. Texas ruling had a dramatic impact on higher education opportunities for students of color in Texas.[1] Now that the Hopwood panel’s repudiation of Regents of the University of California v. Bakke has been overruled by Grutter v. Bollinger,[2] MALDEF, Americans for a Fair Chance (a project of the Leadership Conference on Civil Rights Education Fund), the Equal Justice Society, and the Society of American Law Teachers provide this policy report to demonstrate why the reintroduction of race-conscious “plus” factor admissions is needed. Our comprehensive review of the evidence confirms that the Ten Percent Plan—which guarantees admission to any public university in Texas to Texas students ranked in the top tenth of their high school class—and other race-neutral measures are simply not sufficient to achieve racial diversity at the University of Texas at Austin, and particularly at Texas A&M University. Affirmative action is especially needed in law and medical schools, which were not aided by the Ten Percent Plan.
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In Grutter v. Bollinger, the Supreme Court applied strict scrutiny review to the affirmative action program at the University of Michigan Law School and held that student body diversity is a compelling governmental interest that allows for the consideration of race and ethnicity as a “plus” factor in the admissions process.[3] The Court found that the Law School program was narrowly tailored because it was flexible, holistic, and considered race as part of an individualized assessment of each applicant.[4] In Gratz v. Bollinger, the Court struck down the undergraduate affirmative action program at the University of Michigan on narrow tailoring grounds because applicants were automatically and inflexibly assigned a fixed number of points based on racial/ethnic background.[5]
In Grutter, the Court quoted from Brown v. Board of Education, and powerfully affirmed that the promotion of diversity and integration in higher education is compelling:
This Court has long recognized that “education . . . is the very foundation of good citizenship.” For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity.[6]
Since the modern civil rights era began a half-century ago with Brown v. Board of Education, and for Latinos with Hernández v. Texas,[7]
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America has struggled to live up to its ideals of equality. Education, because it is “perhaps the most important function of state and local governments”[8] and because it has a “fundamental role in maintaining the fabric of our society,”[9] will continue to play a unique role in the elimination of discrimination and the creation of genuine equality in America.
In Regents of the University of California v. Bakke, Justice Powell declared, “[T]he atmosphere of ‘speculation, experiment and creation’—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body.”[10] In Grutter, moreover, the Court was presented with a large body of social science research confirming the benefits of a diverse student body from the University of Michigan[11] and amici.[12] Grutter substantially strengthened Powell’s opinion, finding that the educational benefits of diversity are “substantial” and “are not theoretical but real.”[13]
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In Hopwood, two Fifth Circuit judges held that diversity is not a compelling interest under strict scrutiny review.[14] The Fifth Circuit rejected Justice Powell’s opinion in Bakke, instead relying on the Supreme Court’s subsequent rulings in the area of contracting.[15] Hopwood’s ill-advised prediction that diversity was not compelling in higher education[16] was rebuked in Grutter: “[W]e first wish to dispel the notion that the Law School’s argument has been foreclosed, either expressly or implicitly, by our affirmative-action cases decided since Bakke.”[17] The Court’s majority opinion authored by Justice O’Connor also declared, “Context matters when reviewing race-based governmental action under the Equal Protection Clause.”[18]
Grutter also acknowledged that strict scrutiny review in the context of higher education means “taking into account complex educational judgments in an area that lies primarily within the expertise of the university.”[19] The Court recognized that “universities occupy a special niche in our constitutional tradition.”[20] Thus, Grutter announced a presumption of “good faith” on the part of universities selecting their student bodies absent a showing to the contrary.[21]
The Hopwood court found that “the use of race to achieve diversity undercuts the ultimate goal of the Fourteenth Amendment . . . .”[22] This formulation, which turns a blind eye to the legislative intent of the Fourteenth Amendment,[23] contrasts with the Grutter decision, where the Court forcefully declared, “Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”[24]
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In Grutter, the Supreme Court held that the University of Michigan Law School’s affirmative action program “bears the hallmarks of a narrowly tailored plan.”[25] Grutter and Gratz are the first Supreme Court cases to clearly define the narrow tailoring prong of strict scrutiny review in the context of higher education admissions. The Court stated that the narrow tailoring test “must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education.”[26]
The narrow tailoring test applied in Grutter and Gratz raises five key points. First, the Court distinguished quotas, which were clearly impermissible under Bakke,[27] from Michigan’s use of a goal in the form of a target range. Michigan sought to enroll a “critical mass” of underrepresented minority students who otherwise would not have a “meaningful representation” at the Law School, and sought to have enough diversity so that such students “do not feel isolated or like spokespersons for their race.”[28] Grutter clearly differentiated quotas from goals:
Properly understood, a “quota” is a program in which a certain fixed number or proportion of opportunities are “reserved exclusively for certain minority groups.” Quotas “impose a fixed number or percentage which must be attained, or which cannot be exceeded,” and “insulate the individual from comparison with all other candidates for the available seats.” In contrast, “a permissible goal . . . require[s] only a good-faith effort . . . to come within a range demarcated by the goal itself,” and permits consideration of a “plus” factor in any given case while still ensuring that each candidate “compete[s] with all other qualified applicants.”[29]
As a practical matter, the University of Michigan Law School enrolled a range of 13.5% to 20% of African Americans, Latinos and American Indians combined between 1993 and 2000.[30] In Grutter, the Court, citing Justice Powell’s Bakke opinion, recognized that “‘some attention to numbers,’ without more, does not transform a flexible admissions system into a rigid quota.”[31] The Court also acknowledged, “[T]here is of
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course ‘some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.’”[32] Thus, it can be constitutionally permissible to establish affirmative action enrollment goals as long as the policy and/or practice does not establish a fixed number or percentage of admittees.
Second, narrowly tailored affirmative action plans must be sufficiently flexible so as to provide for individualized consideration of applicants from all racial and ethnic groups. As the Court explained in Grutter:
When using race as a “plus” factor in university admissions, a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount.[33]
In contrast to Grutter, in Gratz the Court found that Michigan’s undergraduate admissions program was not narrowly tailored because it automatically assigned a fixed number of points to all applicants from underrepresented groups.[34] The Court rejected Michigan’s argument in Gratz that the volume of applications it receives rendered individualized review impractical: “[T]he fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system.”[35]
Third, under Grutter narrowly tailored affirmative action does “require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”[36] However, “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative.”[37] In fact, the Supreme Court rejected Justice Scalia’s contention, shared by the district court, that the Law School should be forced to forego selective admission standards for everyone.[38]
Of course, in Texas, Hopwood has already forced institutions of higher learning to experiment with several race-neutral alternatives. In the latter portions of this report, we analyze the successes and shortcomings of many of these efforts. In Parts II through IV we will explain why affirmative action should be pursued at public and private institutions, and why
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it would be unwise to simply return to the pre-Hopwood status quo. For example, we agree with Professor Gerald Torres of the University of Texas Law School, who argued in an essay after the Grutter ruling:
Hopwood forced us to reexamine our goals with clarity and honesty. What does our responsibility as a flagship institution demand? The answer is in many ways consonant with the one expressed by Justice O’Connor—that education is unique in our society because it is “the path to leadership.” That is even truer where particular institutions served as historical gateways to state leadership. The flagship campuses in Texas have traditionally served that role. We had to be concerned about our capacity to serve every geographic region of the state of Texas, along with every community, every school district, and every socioeconomic level. By weaving considerations of race into our admissions policies without forgetting the lessons we have learned since 1996, we will be better able to serve the entire state as well as the students on campus.[39]
Regarding workable race-neutral alternatives, in Grutter and Gratz, the Government argued that the University of Michigan’s affirmative action programs were not narrowly tailored and were unconstitutional because there are ample race-neutral alternatives, with the Texas Ten Percent Plan being the most prominent example.[40] While the Court did find that Michigan’s undergraduate admissions program at issue in Gratz was not narrowly tailored to meet the goal of educational diversity, this holding was principally based on the Court’s finding that the automatic awarding of twenty points to every underrepresented minority applicant effectively made race the decisive factor in admission for virtually all minimally qualified beneficiaries of the plan.[41] In other words, Michigan’s policy in Gratz was struck down for reasons completely unrelated to the Texas Ten Percent Plan, and neither the majority nor concurring opinions in Gratz even mention the Ten Percent Plan.[42]
Moreover, in Grutter the Court criticized the Government for not “explain[ing] how such plans could work for graduate and professional schools.”[43] The Grutter majority opinion also includes dicta highlighting the tension between percentage plans and the individualized review nec-
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essary for constitutionally permissible affirmative action. The Court noted, “[E]ven assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university.”[44] We will address this issue in Parts II through IV of this report.
Fourth, the Court proclaimed that narrowly tailored affirmative action programs “must not ‘unduly burden individuals who are not members of the favored racial and ethnic groups.’”[45] The Court found that since the University of Michigan Law School employed a holistic, individualized review process, members of other groups were not unduly burdened: “Because the Law School considers ‘all pertinent elements of diversity,’ it can (and does) select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants.”[46] The Court’s finding in Grutter is instructive because both conservatives and liberals have made exaggerated claims about the extent to which affirmative action harms whites, including with respect to the University of Texas Law School.[47] Thus, it must be pointed out that at highly selective institutions the presence of affirmative action typically has a quite minimal effect on the admission rates for white applicants.[48]
Fifth, the Court in Grutter held, “In the context of higher education, the durational requirement [of narrow tailoring] can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.”[49] The Court also noted, “We expect that 25 years from now, the use of the racial preferences will no longer be necessary to further the interest approved today.”[50]
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It is important to emphasize that this last sentence should not be interpreted as imposing a twenty-five-year sunset clause on affirmative action, for, as Grutter makes clear, institutions may ensure that their affirmative action programs are narrowly tailored by periodically reviewing whether race-conscious admissions continue to be necessary to achieve diversity.[51] As many of our country’s preeminent constitutional scholars recently concluded in their analysis of Grutter, “This sentence [regarding twenty-five years] should be construed as the Court’s dictum expressing, by reference to the passage of time since the Bakke decision, its aspiration—and not its mandate—that there will be enough progress in equal educational opportunity that race-conscious policies will, at some point in the future, be unnecessary to ensure diversity.”[52]
As discussed in Part I, Grutter directs that in order for race-conscious admissions to be narrowly tailored a university must engage in “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”[53] Narrow tailoring “does not require exhaustion of every conceivable race-neutral alternative,”[54] but if a university’s previous experience already confirms that race-neutral methods produce sufficient student body diversity, then affirmative action would likely be constitutionally suspect. Thus, before affirmative action can be adopted, a threshold question is whether the Ten Percent Plan in combination with other programs in Texas produces enough diversity that race-conscious admissions is rendered unnecessary.
Texas House Bill No. 588, known as the Texas Ten Percent Plan, was enacted in 1997 and took effect in 1998.[55] Under the Ten Percent Plan, Texas students ranked in the top tenth of their high school class are guar-
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anteed admission to any public university in Texas, including the University of Texas at Austin [hereinafter “UT-Austin”] and Texas A&M University at College Station [hereinafter “Texas A&M”].
In Part II, our analysis of racial/ethnic diversity and the Texas Ten Percent Plan is limited to the two flagship public universities in Texas: UT-Austin and Texas A&M. It is at these two large, competitive public universities where the Ten Percent Plan altered admissions, and admissions at the flagships are especially significant because the tradition of low in-state tuition makes them important gateways of opportunity.[56] Our analysis indicates that the Ten Percent Plan has a mixed record of promoting racial diversity, particularly at Texas A&M, and we conclude that affirmative action is still needed at UT-Austin and Texas A&M. Accordingly, we strongly support UT-Austin’s proposal to reintroduce affirmative action for the fall 2005 class.[57] On the other hand, we believe that Texas A&M’s decision not to take account of race in admissions will further roll back access for underrepresented students of color in Texas higher education.[58]
In this Part, as well as the law school and medical school Parts that follow, we primarily focus on opportunities for African Americans, Latinos, and American Indians. Asian Pacific Americans are also discussed in some Sections. The data is not as complete for Asian Pacific Americans, in part because of the unavailability of admission figures for the diverse ethnic/national subgroups included within such a broad category, but we acknowledge that it is important for future research to address the position of Asian Pacific Americans in Texas higher education. Likewise, this report does not focus on the barriers women continue to face in higher education, especially as they relate to access to opportunities in underrepresented fields including the sciences, mathematics, engineering, and business.
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In order to properly analyze the Texas Ten Percent Plan’s impact on racial and ethnic diversity, we begin by showing that Texas A&M and UT-Austin were hardly national models of racial diversity prior to Hopwood. This point is crucial because many argue that with the Texas Ten Percent Plan, African American and Latino enrollments now exceed pre-Hopwood levels. While that observation is accurate at UT-Austin in 1999 and from 2002 to 2003, when viewed in context, it does not follow from this fact that there is no need for narrowly tailored race-conscious affirmative action. As Professor Torres of UT-Austin explains, “There is no reason for the pre-Hopwood number . . . to be the baseline.”[59] In fact, for the reasons discussed later in this Section, the Texas Ten Percent Plan and affirmative action can and should go hand in hand.
Chart 1 (and Chart 4 in Part II.A.3), which uses 1995 as a benchmark for pre-Hopwood enrollment levels,[60] indicates that prior to the Fifth Circuit’s ban on affirmative action Texas A&M was modestly more diverse than UT-Austin. In 1995, African Americans were 4.5% of the freshman class at Texas A&M and 3.4% at UT-Austin; Latinos were 14.3% of freshman enrollments at A&M and 14.1% at UT-Austin.[61] Both A&M and UT-Austin were substantially less diverse than the average institution in the Texas public university system as a whole, where African Americans were 11.3% of freshman in 1995 and Latinos were 20.8%.[62]
Moreover, the low pre-Hopwood diversity levels at UT-Austin and Texas A&M were not simply an artifact of these two institutions being more selective than other public universities. For example, UC Berkeley and UCLA were both more selective than UT-Austin and Texas A&M,
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and California has a comparable Latino population and a smaller African American population (in addition to a substantially larger Asian Pacific American population). Yet the flagship UC campuses were noticeably more diverse than the Texas flagships. In 1995 with affirmative action, African Americans were 6.7% of freshmen at Berkeley and 7.4% at UCLA, while Latinos were 16.9% and 22.4%, respectively.[63]
Even though racial diversity was already relatively low prior to Hopwood, Chart 1 confirms that under the Texas Ten Percent Plan racial diversity remains substantially below pre-Hopwood levels at Texas A&M. African American freshman enrollments sunk from 4.5% in 1995 to an average of 2.6% in 1998–2003, a decline of more than two-fifths. Latino freshman enrollments also declined from 14.3% to 9.5% at Texas A&M under the Ten Percent Plan, a drop of one-third. Combined, African Americans and Latinos were 18.8% of freshmen enrollments at A&M in 1995, compared to an average of 12.1% under the first six years of the Texas Ten Percent Plan (1998–2003).
As for trends since the Ten Percent Plan went into effect, Chart 2 illustrates that there was a very small increase in the proportion of Texas
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A&M freshmen who were African American and Latino between the first year (1998) and the sixth year of the Plan (2003). This figure increased from 11.6% in 1998 to 12.6% in 2000. However, in the last four years (2000–2003), the percentage of Black and Latino A&M freshmen stayed flat at about 12.6%.
Moreover, even these meager gains under the first six years of the Ten Percent Plan should be evaluated in the larger context of the changing demographics of Texas. Chart 2 confirms that between 1998 and 2003 the “opportunity gap” actually widened. There was a growing divide between the percentage of Texas high school graduates who were black and Latino, and the percentage of Texas A&M freshmen who were black and Latino. This opportunity gap grew from 31.8 percentage points in 1998, to 32.4 points in 2000, and 34.7 points in 2003.
In light of these figures, we find it difficult to reconcile the recent decision by the Texas A&M Regents and President Robert Gates not to resume race-conscious admissions with Gates’s claim that his “top priority is increasing minority enrollment.”[66] Gates promises that increased
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financial aid and outreach will accomplish this goal.[67] Yet there is little in Texas A&M’s track record to suggest diversity will significantly improve in the near future. Thus, as our Blend It, Don’t End It title suggests, a more effective approach for Texas A&M is to blend Grutter-style affirmative action with the Ten Percent Plan.
The fact remains that since Hopwood banned affirmative action, Texas A&M has had seven years to experiment with “race neutral” scholarship assistance and outreach to low-income students, such as the Century Scholars Program initiated in 2002. Even so, Texas A&M’s efforts have been considerably less successful at maintaining diversity in comparison to UT-Austin.[68] Texas A&M also administers scholarships targeting minorities that are privately funded by alumni groups and corporations,[69] but this, too, has been insufficient to preserve diversity since Hopwood.
President Gates’s public statement reflects the position that encouraging students of color to apply and accept admission offers are the only keys to increasing diversity at A&M.[70] Yet Gates ignores the recommendation that Dr. Arekere and Professor Rice made in a major study commissioned by Texas A&M officials on how best to improve enrollments for students of color. In that study, Arekere and Rice acknowledged that increasing minority application volume, scholarship assistance, and outreach were important, but they also recommended, even prior to Grutter, that A&M should “[i]ncrease the offer rate to improve proportional minority student enrollment even if yield rate stays constant.”[71]
Moreover, Chart 3 demonstrates that despite the Ten Percent Plan, Texas A&M’s admission decisions, and not merely students’ decisions not to enroll, continue to be an obstacle to diversity. Chart 3 displays Texas A&M “admission ratios,” a measure of how likely students of color were to be offered admission relative to White applicants.[72] For example, in 2003, 59.0% of African Americans who applied to A&M were offered admission, compared to 68.9% of Whites. This means that African Americans were 85.6% as likely as Whites to be admitted to Texas A&M (100% means equal chances of admission). Chart 3, which includes all Texas A&M applicants as opposed to only those eligible under the Ten Percent Plan, indicates—with the sole exception of 2000—African Americans, Asian Pacific Americans, and Latinos have not yet reached parity with
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Whites at A&M. Moreover, there is little indication that the situation is improving even though there is now a better infrastructure of institutional relationships to reach out to Texas college-bound high school students, compared to when the Ten Percent Plan began.
Accordingly, we conclude that while increased scholarship aid and outreach are very important, it is unrealistic to think that these tools alone will substantially boost racial and ethnic diversity at Texas A&M in the absence of race-conscious admissions. As Ray Bowen, the past president of Texas A&M, recently concluded, “It was a real struggle to argue that the top-10-percent rule made any difference.”[74] Since Texas A&M has, for several years now, already engaged in what the Grutter Court calls “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks,”[75] we are mystified by A&M’s insistence that a diverse student body is just around the corner using race-neutral methods.
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At UT-Austin the main effect of the Texas Ten Percent Plan was to stem the tide of resegregation evident in the first post-Hopwood class of 1997, when African Americans were only 2.7% of the freshman class and Latinos were 12.6%.[76] Chart 4 indicates that during the first six years of the Ten Percent Plan, on average, UT-Austin has been able to slightly exceed pre-Hopwood levels of racial and ethnic diversity. For the reasons explained in this Section, we find that the Ten Percent Plan has had a positive effect on UT-Austin, but that enrollments are not yet sufficiently diverse so that race and ethnicity should be ignored in the admissions and financial aid process. For African Americans, enrollments at UT-Austin increased marginally, from 3.4% in 1995 to an average of 3.6% in the years 1998–2003. For Latinos, enrollments at UT-Austin went from 14.1% in 1995 to an average of 14.2% in the years 1998–2003.
Chart 5 takes a closer look at year-to-year trends since the Ten Percent Plan went into effect, showing that there was a small increase in the
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percentage of African American and Latino freshmen at UT-Austin between 1998 (16.2%) and 1999 (17.9%). There was no additional progress between 1999 and 2002 (17.9%). However, 2003 marked a significant increase in diversity, when African Americans and Latinos were 20.6% of UT-Austin freshmen. The reasons for this noticeable rise during year six of the Ten Percent Plan are unclear, so it is too soon to say whether this is a statistical anomaly or the beginning of a trend. Because UT-Austin curtailed the size of the freshmen class, there was a large increase in the proportion of the Texas-resident freshmen admitted under the Texas Ten Percent Plan, from 54% in 2002 to 70% in 2003.[78]
The year-to-year diversity figures at UT-Austin during the first six years of the Ten Percent Plan should be evaluated in the larger context of changing Texas demographics. Chart 5 confirms that during the first five years of the Ten Percent Plan (1998 to 2002), there was a growing divide between African Americans’ and Latinos’ percentage of Texas high school graduates versus UT-Austin freshmen enrollment levels. This opportunity gap grew from 27.2 percentage points in 1998, to 28.0 points in 2000, and 28.5 points in 2002. It was only in 2003 that the opportunity gap at UT-Austin dropped to 26.7 points. However, even in 2003 the opportunity gap was wider than in 1995 with affirmative action, when it was 23.5 points.[79]
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In summary, we strongly support UT-Austin’s proposal to resume narrowly tailored race-conscious admissions beginning with the 2005 class. As applied to UT-Austin, affirmative action remains necessary to reap the educational benefits of diversity that the Supreme Court, in Grutter, found are “substantial.”[81] UT-Austin’s recent analysis of its Fall 2002 undergraduate course enrollments confirms that there is not yet a “critical mass” necessary to foster a diverse learning environment.
UT-Austin found that a high proportion of 2002 classes had one or zero African Americans or Latinos.[82] In all classes of five or more students, 52% had no African Americans and 79% had one or zero African Americans.[83] In smaller UT-Austin classes (5–24 students), 65% had no African Americans and 90% had one or zero African Americans.[84] In addition, 30% of classes had one or zero Latinos (43% for small classes), and 33% had one or zero Asian Pacific Americans (46% for small classes).[85]
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We also conclude that the Ten Percent Plan is “good but not good enough” regarding racial/ethnic diversity because the percentage of African American and Latino graduates from the most competitive high schools in Texas are less likely to enroll in selective public universities in Texas than they were prior to Hopwood. For example, Professors Kain and O’Brien compared the fraction of students of color from these competitive high schools who enrolled at UT-Austin, Texas A&M, and UT-Dallas prior to Hopwood (1996) and under the Ten Percent Plan (1999–2001).[86] Kain and O’Brien found that under the Ten Percent Plan, African American enrollments at three campuses sunk by nearly half (from 12.6% to 6.5%) and Latino enrollments dropped by nearly a third (from 18.7% to 12.9%) within the pool of graduates from traditional feeder high schools.[87] With race-conscious affirmative action, UT-Austin and other public institutions will more effectively be able to attract and admit qualified African American and Latino students who attend integrated, middle-class high schools but who may not rank in the top ten percent of their class.
In conclusion, the admission and enrollment data reviewed in this report demonstrates the wisdom of a “blend it, don’t end it” approach to the Ten Percent Plan and affirmative action. The Texas Ten Percent Plan needs to be complemented by race-conscious “plus” factor admissions at both UT-Austin and Texas A&M. Combined, these two policies will allow the Texas flagships to realize the principle at the heart of Grutter that “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”[88]
MALDEF has been a strong supporter of the Texas Ten Percent Plan, and believes that the Plan has had a number of important educational benefits that are broader than the debate about race-conscious affirmative action. The authors of this report believe that higher education in Texas will be stronger if the Ten Percent Plan is combined with affirmative action. Each has particular strengths, which is why we recommend adopting a “blend it, don’t end it” approach. In other words, available data supports the conclusion that the Texas Ten Percent Plan has been an educational success on several fronts, but that the Plan is not a complete replacement for narrowly tailored affirmative action policies, or vice versa. We believe the authors of the Texas Ten Percent Plan best articulated this position when they argued in Gratz:
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As scholars, legislators, and attorneys who have actively fought for more inclusive admissions processes, we are dismayed by the Hopwood decision and other anti-affirmative action measures—including efforts to use percentage plans as a rationale for discarding affirmative action. As Texas has shown, properly designed and implemented percentage plans, coupled with a narrowly tailored plan of affirmative action, have inherent value beyond increased racial and geographic diversity. Percent plans can be used together with affirmative action, giving colleges and universities the considerable benefits of both strategies.[89]
First, the Texas Ten Percent Plan has had the effect of broadening the socioeconomic diversity of flagship campuses like UT-Austin. We are heartened by Professor David Montejano’s research indicating that the Texas Ten Percent Plan, in combination with scholarship assistance and other efforts, led to a more than one-quarter increase in the number of high schools sending students to UT-Austin between 1996 and 2000.[90] The Plan contributed to a substantial increase in students from both inner-city, largely minority schools in Dallas-Fort Worth, Houston, and San Antonio, as well as rural schools with large White, Black, and/or Latino populations in western, eastern, and southern Texas.[91] These concerns explain why the Ten Percent Plan had support from across the political spectrum.[92]
Prior to Hopwood and the Ten Percent Plan, a relatively small group of feeder high schools from affluent communities had the inside track on admission to campuses like UT-Austin. For example, the UT-Austin admissions office reports that historically one tenth of the state’s high schools accounted for half to three-quarters of each freshman class.[93] All too often, selective colleges and universities, like UT-Austin, took the easy route of admitting students who benefit from parental resources rather than working to find students who demonstrate the ability to succeed in the face of adversity. A recent study by the Century Foundation found that at 146 highly selective colleges and universities, 74% of students
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came from the top quarter of the socioeconomic status (SES) scale, whereas only 3% came from the bottom quarter.[94]
Because the Ten Percent Plan has contributed to socioeconomic, geographic, and racial/ethnic diversity, it would be unwise to return to the pre-Hopwood status quo. Accordingly, we strongly oppose efforts by Texas Governor Rick Perry, Texas State Senator Jeff Wentworth (R-San Antonio), and others to repeal the Ten Percent Plan.[95] Governor Perry ignores the fact that the Ten Percent Plan has made flagship public university campuses more accountable to the taxpayers of Texas[96] by significantly expanding the pool of high schools that send students to UT-Austin, for example.[97] Too many qualified students from disadvantaged backgrounds were excluded from the Texas flagships prior to the Ten Percent Plan, and it would be a grave mistake to return to the prior admissions system in which a relatively small number of affluent, largely White suburban high schools were grossly over-represented at UT-Austin.[98]
While some Ten Percent Plan critics express concern about the need for a “fair set of rules” that will encourage students to take a rigorous curriculum,[99] eliminating the Ten Percent Plan would in fact send the opposite message to thousands of disadvantaged high school students across Texas. Discontinuing the Texas Ten Percent Plan would diminish incentives for these students to do their best in school,[100] and it would effectively penalize students from modest economic backgrounds because they
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cannot afford SAT preparation classes and college application coaches, or attend high schools with fewer resources and opportunities, including Advanced Placement (AP) courses.[101]
In short, ending the Ten Percent Plan would create more unfairness than it would rectify. African American and Latino high school students in Texas already have lower college aspirations than White students, on average, due to socioeconomic barriers.[102] However, high school students’ knowledge of the Ten Percent Plan law has a positive effect on the extent to which students seek admission to four-year universities.[103] Thus, for students from modest socioeconomic backgrounds—who are often the first in their families to attend college, and who frequently lack access to networks of college-going peers found in affluent White communities—eliminating the Ten Percent Plan would likely undermine the college aspirations of those who are already the most vulnerable.
By contrast, the Ten Percent Plan sends an inclusive and hopeful “play by the rules” message to students from all backgrounds, as Professor Torres recently argued:
It is clear that the path the University of Texas has taken with the incentive of the Top 10% Plan has begun to transform the kind of promise that can be made to each child as they enter kindergarten: Keep your shoulder to the wheel and play by the rules and the public system will be open to you and your ambitions. It does not matter that politicians still squabble over how to achieve the state’s constitutionally mandated goal of equal investment in education across the state. We will not let their failures be visited on you. We will try not to let the circumstances of your birth or where your parents could buy a house determine your access to what the state can provide.[104]
In addition to broadening access for African Americans and Latinos from modest economic backgrounds, evidence indicates that the Texas Ten Percent Plan, in combination with a host of other changes, appears to have helped alleviate the slight preference for White applicants over Asian Pacific Americans with similar class rank and test scores at UT-Austin.[105] Asian Pacific Americans sometimes encounter “negative ac-
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tion” relative to Whites in university admissions,[106] and the data suggest that the Ten Percent Plan is a useful tool to ensure that Asian Pacific Americans are treated fairly.
While some opponents argue that the Ten Percent Plan leads to the admission of unqualified students,[107] the evidence suggests these claims are exaggerated. For example, in 2003, more than 99% of UT-Austin’s freshmen class, including 99% of those admitted under the Ten Percent Plan, satisfy the state-mandated Texas Academic Skills Program (TASP) criteria, which measure readiness for college-level coursework based on reading, mathematics and writing scores.[108] Over the last five years, a mere one percent of UT-Austin freshmen admitted through the Ten Percent Plan have needed remedial courses in accordance with TASP.[109]
Research also confirms the academic success of the students admitted under the Texas Ten Percent Plan. UT-Austin officials Gary Lavergne and Bruce Walker report that in each and every year the Plan has been in effect, UT-Austin students who were in the top 10% of their class consistently had higher freshman grades than non–top 10% students with significantly higher SAT scores.[110] In fact, UT-Austin President Larry Faulkner acknowledges that “top ten-percenters” outperform non–top ten percent students with “SAT scores that are 200 to 300 points higher.”[111] These findings reflect the fact that high school grades are a better predictor of freshmen grades at UT-Austin than standardized test scores,[112] a finding consistent with similar institutions like the University of Califor-
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nia.[113] These findings suggest not placing too great an emphasis in admissions on modest differences in standardized test scores, a topic we address at length in Part V of this report.
We are also concerned that other efforts to modify the Ten Percent Plan may end up doing more harm that good for underrepresented minority and working-class students. For example, the presidents of UT-Austin and Texas A&M recently testified before the Texas Senate on the need to cap admissions under the Ten Percent Plan in order to preserve the ability to admit students under different criteria.[114] It is true that in 1998 UT-Austin enrolled 37% of freshmen under the Ten Percent Plan, compared to 50% in 2002 and 65% in 2003.[115] However, it was UT-Austin’s choice, after several years of enrollment growth, to slash 1400 spots from the freshmen class in 2003,[116] which had the effect of significantly increasing the proportion of freshmen admitted through the Ten Percent Plan.
Those concerned that the Ten Percent Plan will take over the entire admissions process also ignore that there are other ways to preserve space for discretionary admissions. For example, the Enrollment Strategy Taskforce at UT-Austin is trying to enhance incentives for students to graduate in a timely manner, thus freeing up seats for more entering students.[117] The Taskforce is also attempting to funnel graduates who continue taking non-degree classes into its continuing education program. We support these steps as long as safeguards are in place to ensure that UT-Austin does not effectively penalize low-income students for taking longer to graduate due to interruptions caused by financial hardship.
Some scholars also advocate modifying the Ten Percent Plan so that it no longer guarantees admission to flagship campuses like UT-Austin and Texas A&M, but rather, like the percentage plans in California and Florida, only assures admission to the public university system.[118] We believe this amounts to “throwing the baby out with the bathwater” because it would eliminate one of the most important features of the Ten
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Percent Plan. Consistent with the Supreme Court’s language in Grutter about the link between affirmative action and “the path to leadership,” it is similarly crucial that flagship institutions like UT-Austin and Texas A&M remain accessible to students of all racial and socioeconomic backgrounds.[119]
This Section on the post-Hopwood resegregation of legal education begins with the University of Texas Law School (UTLS), where more than a half-century ago, the Supreme Court’s ruling in Sweatt v. Painter marked the beginning of the end of de jure segregation.[120] Prior to the adoption of affirmative action in the late 1960s, there were only about 37 African Americans enrolled at UTLS in its entire history.[121] Yet, despite its segregated and exclusionary past, with affirmative action approximately 650 African American attorneys and 1,300 Mexican American attorneys earned their law degrees at UTLS prior to Hopwood, making UTLS one of the top feeder law schools for Mexican Americans in the United States.[122] UTLS also graduated more African American attorneys than any non-minority law school in America.[123]
The prior affirmative action program at UTLS included Mexican Americans but not other Latinos.[124] Because Part III.A relies on data collected by the UTLS admissions office, it was not possible to provide comprehensive data on all Latinos combined at UTLS for the entire period in question.[125] Thus, the discussion of UTLS refers to Mexican Ameri-
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cans specifically whereas the rest of the report analyzes Latinos where such data is available.
Chart 6 confirms that compared to 1990–1995, the proportion of African Americans enrolled at UTLS in the first seven years after Hopwood (1997–2003) was nearly three-fifths lower, and the enrollment of Mexican Americans was more than one-quarter lower. In fact, shortly after Thurgood Marshall and the NAACP Legal Defense Fund successfully defeated UTLS’ Plessy-style “separate but equal” argument, Heman Marion Sweatt and the other African Americans in the first desegregated class in the fall of 1950 constituted 2.1% of the student body at UTLS.[126] African Americans made up an average of 2.97% of the entering students at UTLS in the six years since Hopwood, a figure not that dissimilar from the Sweatt era.[127] Moreover, the data in Chart 6 refutes the Department of Education, which claimed, even before the encouraging but atypical 2003 figures (discussed below) became available, that UTLS “continues to reflect significant levels of racial diversity.”[128]
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The UTLS data in Chart 6 actually understates the magnitude of the adverse impact of Hopwood, given that nationwide in 1990 there were 8.8 White applicants for every Black or Mexican American applicant, but only 5.2 White applicants for every Black or Mexican American applicant in 2003.[130] Thus, had UTLS been able to practice affirmative action prior to Grutter, its applicant pool would almost certainly have been more diverse in the past few years than it was in the early 1990s.
Chart 7 displays annual African American and Mexican American enrollment proportions at UTLS in the pre-Hopwood (1990–1995) and post-Hopwood (1997–2003) periods. At UTLS the general post-Hopwood trend has been one of increasing diversity. In 1997–1999, for example, African Americans were only 0.9% to 1.4% of first-year students at UTLS, compared to a range of 3.0% to 4.0% in the years 2000–2002. Likewise, Mexican American enrollment proportions gradually increased from 5.6% in 1997 to 7.1% in 2000 and 8.0% in 2002.
What is most notable in Chart 7 is the unusually high proportion of African American (6.0%) and Mexican American (13.9%) enrollment
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proportions at UTLS in 2003. Unlike 2003, the figures from the six prior post-Hopwood years (1997–2002) are all substantially below pre-Hopwood levels. Thus the key question for purposes of narrow tailoring under Grutter is the following: Does the 2003 admissions cycle demonstrate a workable race-neutral alternative to affirmative action, or is it a statistical anomaly that is not likely to be sustained in the future?
Available evidence suggests that 2003 at UTLS was in fact an anomaly related, in part, to the bad job market driving college graduates to apply to law school as an economic refuge.[131] As UTLS Professor Douglas Laycock notes, the yield rates for accepted African Americans and Mexican Americans in 2003 reached historic highs:
The 2003 yield for both blacks and Mexican-Americans exceed any level ever seen in the sixteen years for which the Law School has yield records; in the case of blacks, the 2003 yield exceeded the previous high by a large margin. These very high yields presumably reflect the economy; there is no reason to believe that either the application rate or the yield rate will continue at these high levels once the economy improves.[132]
Specifically, in 2003, 67% of admitted African Americans decided to enroll at UTLS, which is substantially higher than the average of 41% in 1997–2002.[133] Likewise, in 2003, 72% of admitted Mexican Americans decided to enroll at UTLS, far higher than the average of 56% in 1997–2002.[134] This occurred despite the fact that there was little movement in the Black and Mexican American admission rates at UTLS in 2003 compared to prior years.[135]
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The impact of Hopwood was widely reported in the media, and as word spread, UTLS experienced a precipitous drop in applications from African Americans and Mexican Americans, who constituted 18.3% of UTLS applicants in 1996, compared to 15.2% in 1997 and 11.9% in 1998.[137] Although the number of African American and Mexican American applications at UTLS has risen since then, overall applications have risen even faster. Consequently, despite many race-neutral efforts to boost applications from African Americans and Mexican Americans, they were still only 11.6% of UTLS applicants in 2002 and 11.8% in 2003.[138] Thus, the proportion of applications from African Americans and Mexican Americans in 2002–03 is still more than one-third below pre-Hopwood levels. This suggests that one important effect of reviving affirmative action may be, with wide publicity, to encourage qualified underrepresented minority applicants to apply to UTLS by shedding its post-Hopwood reputation as a place that lacks a critical mass of students of color.
Consistent with our analysis of undergraduate education, we recommend that UTLS not abandon geographic diversity-based recruitment
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strategies in south Texas simply because affirmative action is once again constitutionally permissible. Despite its obligation as the flagship public law school in Texas, prior to the last couple years UTLS had never recruited students from the University of Texas at Brownsville.[139] UTLS also funded pre-law programs in El Paso, Cameron, Hidalgo, and Starr counties, which are predominantly Latino.[140]
Overall, it is clear from the data that despite vigorous efforts by UTLS, including increased recruitment, funding Law School Admission Test (LSAT) preparation classes, partnering with organizations for privately funded scholarships, and offering free trips to Austin for admitted minority applicants,[141] UTLS has not been able to attain a critical mass of underrepresented minority students on a sustained basis, particularly African Americans. Without affirmative action, UTLS has been unable to follow the core principle of Sweatt, affirmed in Bakke and Grutter, that “[t]he law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts.”[142]
In addition to UTLS, other law schools in Texas have low levels of diversity after Hopwood.[143] At Houston and Texas Tech, admission rates for African Americans and Latinos are down since Hopwood.[144] Moreover, within the 2002 first-year class, African Americans were 1.5% of enrollments at Houston, 1.6% at Texas Tech, 2.5% at St. Mary’s University School of Law, and 0.6% at Baylor.[145] Among all law students enrolled at eight law schools in Texas in 2002 (excluding Texas Southern University’s Thurgood Marshall School of Law), African Americans were
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a combined 3.7% of the more than 7000 students.[146] By comparison, the average law school nationwide had 7.1% African Americans.[147]
The representation of Latinos is somewhat higher, but this must be evaluated in light of the fact that Latinos constitute 40% of the college-age population in Texas, compared to 12% for African Americans.[148] Across the nine Texas law schools, Latinos are about 11.8% of total enrollments.[149] However, Latinos are disproportionately clustered at St. Mary’s (31.5%) and Thurgood Marshall School of Law (20.2%).[150] Thus, at the other seven Texas law schools Latinos were only 8.9% of total enrollments in 2002.[151] Moreover, Latinos were only 6.7% of first-year law school enrollments in the latest class at Houston and 5.6% at Southern Methodist University.[152]
Asian Pacific Americans were 5.0% of enrolled students in 2002 at the nine law schools in Texas, higher than the proportion of college-age (18–24) Texans who are Asian Pacific American (3.2%).[153] The least diverse schools in terms of Asian Pacific Americans are Baylor (2.5%), St. Mary’s (2.6%) and Texas Tech (1.3%).[154] While the University of Michigan Law School plan at issue in Grutter did not include Asian Pacific Americans, at Michigan, they constituted 9.7% of entering law students in 2002.[155] Clearly many law schools in Texas are not as successful, and more needs to be done particularly for Asian Pacific American subgroups that are traditionally underrepresented in higher education.[156]
The absolute number of American Indians at each school is quite low and varies from year to year. American Indians constituted 0.6% of
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total enrollments at the nine Texas law schools in 2002, which is the same as their proportion of the college-age population in Texas.[157] Prior to Hopwood, American Indians were not included in the affirmative action program at UTLS.[158] However, the University of Michigan Law School recognized that it was important to include American Indian students in its affirmative action program that was upheld in Grutter.[159] The policy at Michigan was consistent with the amici and expert report filed in Grutter that specifically addressed the importance of affirmative action for American Indians in legal education.[160]
Thus, between 1995 and 2000, approximately 0.7%–1.1% of University of Michigan Law School applicants were American Indians, but 1.0–1.6% of admission offers at Michigan went to American Indians,[161] and the Court found that this was part of a program that was narrowly tailored to meet the compelling governmental interest of diversity. Grutter is an opportunity to rethink and improve affirmative action by including American Indians at law schools (and undergraduate and graduate programs) in Texas where they are otherwise likely to have a token presence.[162]
Graduate and professional school opportunities were positively affected when a bill sponsored by the late Irma Rangel, Texas State Representative, which was supported by MALDEF, was signed into law in June of 2001.[163] Codified at Section 51.842 of the Education Code, the law specifies several criteria that graduate and professional schools may consider in admissions, including applicants’ socioeconomic background and geographic diversity.[164] This law also states:
An applicant’s performance on a standardized test may not be used in the admissions or competitive scholarship process for a graduate or professional program as the sole criteria for consid-
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eration of the applicant or as the primary criterion to end consideration of the applicant.[165]
The entering law school class of 2002 was the first under § 51.842. For the three majority-White public law schools in Texas—UTLS, Houston, and Texas Tech—the entering class in 2002 included 18.6% students of color,[166] an improvement over 17.5% students of color in 2001.[167]
While race-neutral efforts like § 51.842 to reduce the misuse of standardized testing are laudable in their own right, it remains the case that there are no suitable substitutes for race-conscious admissions in legal education in Texas or elsewhere.[168] For example, the authors of the Texas Ten Percent Plan fully acknowledge that the Plan is not appropriate for the greater educational specialization at the graduate and professional school level.[169] As a matter of social policy, this is a good thing because it means that undergraduate campuses are not nearly as segregated as Texas high schools.[170]
Other ambitious efforts outside Texas have also been ineffective in producing a critical mass of racial diversity. At UCLA, the Law School’s class-based affirmative action program involves a sophisticated index that weighs several socioeconomic criteria.[171] Nonetheless, under this program UCLA’s 1999 entering class had 7.3% African Americans and Latinos combined, compared to an average of 22.8% with affirmative action in the period 1993–1996.[172] This example from UCLA is well below the University of Michigan Law School’s critical mass of underrepresented students of color, which the Court affirmed in Grutter. Moreover, Hopwood and its aftermath made all too clear that the concept of critical mass is not an amorphous “feel good” admissions policy, but rather reflects the demographic and pedagogical realities of legal education.[173]
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While diversity declined at UTLS and most other law schools in Texas after Hopwood, at the Thurgood Marshall School of Law, the pattern is the opposite, with African American admission rates climbing after Hopwood and White admission rates declining.[174] However, the desegregation mandate that undergirds Grutter forcefully applies to each and every law school in Texas:
Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.[175]
The post-Hopwood data reviewed in this Section demonstrates that without affirmative action, prospects for students of color to receive educational and leadership opportunities in Texas legal education will remain obstructed.
In Grutter, the Court also recognized that affirmative action is a way to “cultivate a set of leaders with legitimacy in the eyes of the citizenry.”[176] However, on this front there is much work that remains to be done in the Texas legal profession, particularly when comparing the current composition of the Texas bar with the population of potential lawyers and civic leaders that will guide Texas into the future. In 2002, only 5.1% of law firm partners in Texas were people of color, including 4.6% in Austin,
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4.1% in Houston, and 2.8% in Dallas.[177] As of 2003, 87.1% of Texas lawyers were White, with Latinos 6.4%, African Americans 3.8%, Asian Pacific Americans 1.4%, and American Indians 0.3%.[178] In terms of the future of Texas, the 2000 Census indicates that 52.8% of the college age (18–24) population in Texas is African American (12.1%), Latino (40.0%) or American Indian (0.6%).[179]
In summary, whereas Hopwood represented a step backward toward Jim Crow levels of educational inequality, Grutter now allows law schools to step affirmatively into the twenty-first century by creating a “path to leadership [that is] visibly open to talented and qualified individuals of every race and ethnicity.”[180] Without the tool of properly devised affirmative action plans, this pathway to democratic excellence will continue to be obstructed.
Narrowly tailored race-conscious affirmative action is urgently needed in the eight Texas medical schools.[181] The Texas Higher Education Coordinating Board (THECB) reports that of the 1225 medical degrees conferred by the seven public and one independent medical schools in Texas in 2001, only 3.3% went to African Americans and 11.5% went to Latinos.[182] By comparison, 6.9% of U.S. medical degrees were awarded to African Americans in 2001.[183] Chart 8 displays African American and Latino medical degrees between 1990–1991 and 2000–2001. Given that medical school graduation usually takes four years, and sometimes longer, the data reflects pre-Hopwood entry with the exception of 2001. For each and every year listed, the proportion of African Americans graduating from Texas medical schools was well below the national average for that year.[184]
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Chart 8 indicates that Texas medical schools, like the flagship undergraduate institutions, did not have a particularly impressive record of racial/ethnic diversity prior to Hopwood.
Nonetheless, Chart 9 shows that there still was a modest decline in diversity in first-year medical school enrollments after Hopwood. African Americans, Latinos, and American Indians were 21.4% of first-year enrollments in 1995, compared to an average of 17.2% in 1997–2002, a decline of one-fifth.
The importance of diversity and affirmative action in medical education is as great, if not greater, than in other educational settings. Dr. Jordan Cohen, president of the Association of American Medical Colleges (AAMC) studied the consequences of ending affirmative action in a recent Journal of the American Medical Association article.[187] Dr. Cohen found that percentage plans and other efforts could not replace affirmative action,[188] and he concluded:
For the foreseeable future, the use of race-conscious decision making in medical school admissions is the only way medicine can meet its obligations to everyone in our society. At this point in our history, only by reaching out affirmatively to [underrepresented minority] students who have not acquired competitive academic credentials, but who possess all of the qualities of mind and
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spirit required to succeed as medical students, can our profession achieve the diversity needed to (1) provide a quality education for all students; (2) supply a balanced cohort of practitioners, investigators, and health care managers for an increasingly diverse population; and (3) help fulfill our country’s ideals of fairness, justice, and equity.[189]
In fact, an impressive 90% of those underrepresented minority students graduated from medical school nationwide, which is only marginally different than the 96% rate for Whites, who on average had substantially higher MCAT scores.[190]
While the Court’s focus in Grutter was on legal education, the benefits of diversity in medical education are also well documented.[191] For example, Dean Whitla and his colleagues at Harvard surveyed students from all four years at Harvard Medical School and the University of California, San Francisco School of Medicine (UCSF).[192] The Harvard and UCSF students reported that they had less interracial contact in their formative years, but significantly more contact during college and especially medical school.[193] Moreover, medical students from all backgrounds overwhelmingly reported that racial and ethnic diversity enhanced their education: 86% of the medical students thought that racial diversity in the classroom was more likely to foster serious discussions of alternative viewpoints, and 77% reported that a greater understanding of medical conditions and treatments was more likely with a racially diverse student body.[194] Overall, 94% indicated that student body diversity was a positive element of their educational experience in medical school (78% clearly positive and 16% moderately positive).[195]
In addition to the substantial impact that diversity has on learning in higher education, there are other critical health-related considerations that weigh in favor of affirmative action in medical education specifically.
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First, people of color receive lower quality health care in the U.S. compared to Whites, even after controlling for access-related factors such as patients’ income and insurance status.[196] This is the troubling finding of the Institute of Medicine (IOM), a branch of the National Academy of Sciences that was charged by Congress with investigating this issue.[197] The IOM’s book-length report, Unequal Treatment, was based on their expert panel’s review of more than 600 health disparity studies, as well as public workshops, commissioned papers, and testimony.[198]
One of the IOM’s recommendations to eliminate racial/ethnic healthcare disparities is to increase the proportion of underrepresented minorities among health care professionals.[199] This recommendation is consistent with the finding that physicians of color are significantly more likely to serve communities of color, even after controlling for other factors such as patient income level and physician practice location.[200] A recent national survey found that while African Americans and Latinos were only 4 and 5% of U.S. physicians respectively, those doctors care for 25% of African American and 23% of Latino patients, respectively.[201] Other studies document that for a combination of linguistic and cultural reasons, people of color tend to choose, and be more satisfied with physicians who share their racial and ethnic background.[202]
In Grutter, the Court declared, “All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide [leadership] training.”[203] This argument about public confidence takes on added urgency in a doctor-patient context. Because minority patients’ confidence in their physicians influences the extent to which they seek preventive care, follow a physician’s recommendation, and continue with treatment, enrolling racially diverse classes of medical students can actually have important health conse-
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quences for minority populations.[204] Given, for example, that the African American mortality rate is 60% higher than that of Whites (the same as it was in 1950),[205] the diversity rationale may be blended with a “public health necessity” argument in the field of medical education.[206]
For the above reasons, we support the Texas A&M officials who are seeking regent approval for affirmative action in medical school programs.[207]
For undergraduate, graduate, and professional school admissions programs not governed by the Texas Ten Percent Plan, it is essential that all applications undergo individualized review. The same process is recommended for applicants to UT-Austin and Texas A&M who are not automatically eligible under the Ten Percent Plan. Individualized review refers to a holistic assessment of the applicant’s entire file, as well as a holistic evaluation of the candidate. An institution should consider all of the applicant’s qualities, including any “plus” factors that indicate the student would contribute to diversity, and judge those factors in totality. A decision to admit or deny the applicant should be based on this complete evaluation.
In Grutter, the Court explained, “As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way.”[208] Accordingly, no single factor should dominate the admissions process, including race. For example, an institution should not give an applicant’s race such undue weight that all other qualities of the applicant are subsumed under that single consideration. In practical terms, this means that an applicant’s race should not be the
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sole basis for admission, or preclude consideration of other factors or applicants. In addition, the size of the “plus” factor accorded to race should not be uniform, but should vary from applicant to applicant as schools also seriously consider a host of other “plus” factors like geographic diversity, socioeconomic background, athletic ability, special talents, and so forth. Thus, while race may effectively be an influential factor in some individual admission decisions, constitutionally sound affirmative action policies do not operate as a two-track program where underrepresented minorities are automatically admitted based on race.[209]
It is instructive to contrast Grutter (and Bakke) with the UTLS admissions policy of the early 1990s struck down in Hopwood.[210] The old admissions program at UTLS separated applicants into three categories based upon index scores derived from LSAT scores and undergraduate grade-point average (UGPA)—presumptive admits, discretionary zone, and presumptive denials—with different cut-offs for African Americans and Mexican Americans.[211] In contrast, while race was a substantial “plus” factor for a large number of applicants in the program upheld at the University of Michigan Law School, it was also true that the applicants admitted with the lowest UGPAs were frequently White.[212]
Not only would UTLS’s prior policy fail on narrow tailoring grounds, it would also go against the guidance of The Law School Admission Council (LSAC), which recommends: “Schools currently using the [presumptive admissions method] are encouraged to modify it because such methods may be using the LSAT score incorrectly.”[213]
Institutions must take measures to ensure that admissions programs are faithful to the narrow tailoring framework in Grutter, including “truly individualized consideration” which uses race in a “flexible, nonmechanical way.”[214] We believe that one important step in this process is not giving standardized tests unwarranted weight in admissions and financial aid. As Professor Michael A. Olivas, an expert in higher education law, cautions:
The heavy reliance on test scores and the near-magical properties accorded them inflate the narrow and modest use to which any standardized scores should be put. Accepted psychometric
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principles, testing-industry norms of good practice, and research on the efficacy of testing all suggest modest claims for test scores, whether standing alone or combined with other proxy measures.[215]
LSAC and other standardized test producers make similar cautionary statements.[216]
This suggestion is important on a practical level. In terms of the mechanics of the admissions process, institutions practicing affirmative action are much more vulnerable to legal challenge if they make admission decisions almost entirely on the basis of test scores or index formulas that combine tests and grades. In such a scenario, a court is more likely to find that the institution is not making a good faith effort at individualized review. If test scores and/or index scores truly dominate the admissions process, a court would be more likely to find that the institution’s use of affirmative action is not narrowly tailored, since race would then function as a substantial departure from “regular” admissions (i.e., race as the decisive factor). Framed more positively, the lesson of Grutter is that there is a deep connection between the goal of treating all applicants fairly by individualized review, and the goal of creating a racially and ethnically diverse class.
In addition to pragmatic concerns over the narrow tailoring of affirmative action, ensuring that standardized tests are not given undue weight also helps to minimize the adverse impact such tests tend to have on students of color. This is a point about which there is a solid consensus among the Texas Ten Percent Plan authors,[217] MALDEF,[218] and psy-
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chologists.[219] Disparate impact is a concern in part because racial and ethnic disparities on the SAT are larger than the gap in high school grades. Nationally, it is equally difficult for White college-bound seniors to rank in the top ten percent of their high school class as it is for them to obtain 600+ scores on the SAT Math or Verbal sections.[220] In contrast, for African Americans and Mexican Americans, obtaining a 600+ score on either section of the SAT is twice as difficult as ranking in the top tenth of the class.[221] Likewise, the students intervening in Grutter established that students of color are substantially disadvantaged on the LSAT even among law school applicants who earned equivalent grades in the same selective universities as whites.[222]
Standardized tests like the SAT and ACT also limit oppotunities for low-income students to a greater extent than other admission criteria.[223] For example, Crouse and Trusheim, in an extensive scholarly critique of the SAT, conclude, “[E]very measure of socioeconomic background is more strongly correlated with SAT scores than with high school class
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rank.”[224] More recently, the College Board studied a national sample of SAT test-takers and found that socioeconomic status correlated more strongly with SAT scores than did high school GPA or high school rank.[225] Moreover, while Texas high schools are certainly segregated, the suggestion that the existence of different grading standards between high schools explain the greater association between SAT scores and socioeconomic status (compared to high school grades) does not hold up to close scrutiny.[226]
Another policy reason for moving beyond sole reliance on test scores and grade-point averages is the need to evaluate students’ promise within the context of their opportunities, rather than cementing structural inequalities in K–12 education. For example, across all Texas high schools, 21.6% of Whites are enrolled in AP courses, compared to only 11.4% of African Americans and 12.4% of Latinos.[227] While the Edgewood litigation and the subsequent school finance legislation played a major role in making public school funding in Texas more equitable,[228] as it stands there is still a legally permissible gap between the funding per student in low-wealth and high-wealth school districts.[229]
The Texas Ten Percent Plan, which both supporters and critics agree is reliant on the fact that Texas high schools are staggeringly segregated by race and ethnicity,[230] addresses such inequality by focusing on rank within high schools rather than GPAs (with AP bonus points) across high schools.[231]
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These inequalities in K–12 educational opportunities are also reflected in SAT scores. Chart 10 displays College Board data on SAT performance by family income bracket. Among the nearly 72,000 college-bound seniors in Texas who reported their family income in 2003, with every $10,000 increase in family income, there is a corresponding increase in SAT scores. Texas college-bound seniors who come from families with under $10,000 in annual income average 808 points on the SAT. Students from families with $50,000 to $60,000 average 984 points on the SAT. Texas college-bound seniors from families with $100,000+ income average 1097 points on the SAT.
The College Board reports a similar relationship between SAT performance and parental education level. Among the nearly 90,000 college-bound seniors in Texas who reported parental education level in 2003, students whose parents did not obtain high school diplomas averaged 828 points on the SAT.[233] College-bound seniors for whom the highest level of parental education is graduating from high school average 917 points on
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the SAT.[234] Students whose parents graduated from college averaged 1043 points on the test, and those whose parents obtained graduate degrees averaged 1097 points on the SAT.[235] In addition, Texas seniors whose first language was English scored an average of 95 points higher than students who first learned another language.[236]
Texas Education Code § 51.842, passed in 2001, represented a positive step toward individualized review by limiting reliance on standardized tests at public graduate and professional level programs.[237] Likewise, the Texas A&M Medical School dropped reliance on the MCAT for students who successfully complete required premed courses.[238] However, admission data from the period just prior to Grutter suggests that law schools in Texas have further improvements to make to ensure that all applicants are given a good faith individualized assessment. We analyzed LSAT/UGPA grid data for the 2002 admissions cycle, paying careful attention to the cells with the highest applicant volume (i.e., most representative). The following examples, involving differences of five points on the LSAT, may suggest that a significant number of applications are only given cursory review rather than the good faith comprehensive review now required by Grutter:
• At the SMU Dedman School of Law, among applicants with 3.25–3.49 UGPAs, those with 160–164 LSATs are offered admission 94.7% of the time, whereas applicants with 155–159 LSATs are offered admission 14.8% of the time.[239]
• At Texas Tech, among those with 3.25–3.49 UGPAs, applicants with 150–154 LSAT scores are admitted 72.9% of the time, but applicants with the same UGPAs and 145–149 LSATs are admitted 11.9% of the time.[240]
• At UTLS, among applicants with a 3.75+ UGPA, those with 160–164 on the LSAT have a 56.9% chance of admission, but those with 155–159 LSAT scores have a 14.0% chance of admission.[241] Among UTLS applicants with 3.50–3.74 UGPAs, those with LSAT scores of 165–169 have a 74.0% chance of admission, but those with 160–164 LSATs have a 32.7% chance of admission.[242]
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• At the University of Houston Law Center, applicants with 3.25–3.49 UGPAs and 155–159 LSATs are offered admission 67.2% of the time, but applicants with the same grades and 150–154 LSATs are admitted 13.7% of the time.[243]
• At Baylor, among applicants with 3.75+ UGPAs, those with 155–159 LSATs are admitted 89.9% of the time, but those with equivalent grades and 150–154 LSATs are admitted 34.1% of the time.[244]
In Grutter, the University of Michigan Law School was able to thoroughly document the origins and development of its Admissions Policy Statement, which laid out the rationale for enrolling a “critical mass” of underrepresented minority students.[245] For example, in Grutter, the Court describes Michigan’s policy as follows:
The policy aspires to “achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.” The policy does not restrict the types of diversity contributions eligible for “substantial weight” in the admissions process, but instead recognizes “many possible bases for diversity admissions.” The policy does, however, reaffirm the Law School’s longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.” By enrolling a “‘critical mass’ of [underrepresented] minority students,” the Law School seeks to “ensur[e] their ability to make unique contributions to the character of the Law School.”[246]
We recommend that each institution’s formal admissions policy statement describe the goals and objectives of the admissions policy and be closely aligned with the overarching mission of the institution.[247] The
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policy statement should thoughtfully articulate how diversity plays a part in the admissions process. Specifically, the statement should explain how diversity furthers the educational goals of the institution and advances the mission of the school. Some examples of the benefits of diversity include:
• Helping students break down stereotypes by providing a range of experiences and viewpoints within a particular racial or ethnic group;
• Promoting cross-cultural understanding and helping students develop interpersonal skills for a multiracial world;
• Challenging students to consider multiple perspectives and to engage in higher-level thinking;
• Preparing students with the human relations and analytic skills needed for a racially diverse workplace;
• Training and educating a diverse group of leaders;
• Contributing to more effective decision-making on issues affecting a multicultural society;
• Creating a diverse group of civic and business leaders with legitimacy in the eyes of the public;
• Overcoming the chilling effect of students of color encountering isolation, tokenism, and a hostile campus climate.
In Grutter, the Court announced that institutions of higher learning should be afforded a presumption of “good faith” regarding the selection of their student bodies unless there is a showing to the contrary.[248] If the program at an institution is challenged, a well articulated diversity policy will help to overcome allegations of bad faith by assisting a judge and other individuals in understanding the goals of the program. In addition, a clearly articulated policy helps to harmonize and coordinate the admissions procedure for all admissions officers and the people reviewing applicant files.
As discussed throughout this report, in Grutter and Gratz, the University of Michigan, as well as many civil rights and educational groups, provided the Court with ample empirical evidence of the educational bene-
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fits of diversity. For example, a study of 1970–1996 alumni of the University of Michigan Law School found that minority graduates were equally successful in legal practice despite lower average LSAT/UGPA index scores, and that Michigan’s minority attorneys made greater civic service contributions, including time dedicated to pro bono cases and serving on the board of nonprofit organizations.[249] University of Michigan psychologist Patricia Gurin, a pivotal expert witness in Grutter and Gratz, also found, based on extensive research at Michigan and nationally:
Colleges that diversify their student bodies and institute policies that foster genuine interaction across race and ethnicity provide the first opportunity for many students to learn from peers with different cultures, values, and experiences. Genuine interaction goes far beyond mere contact and includes learning about difference in background, experience, and perspectives, as well as getting to know one another individually in an intimate enough way to discern common goals and personal qualities.[250]
In addition, researchers with the Civil Rights Project at Harvard University surveyed law students at the University of Michigan and at Harvard, and found that racial diversity had an impact on how students thought about legal issues in class. The research also showed that approximately 90% of students found racial diversity was a positive aspect of their law school experience.[251] These examples were merely the tip of the iceberg.
An institution seeking diversity should document that it has made a judgment similar to that of the University of Michigan, and that it has a clear concept of the meaning of diversity and of diversity’s essential role in its educational mission. It should expend the effort to understand what diversity is and how it improves the institution, and record what it has learned.
The studies referenced throughout this report are a good starting point but are far from exhaustive. Several leading American law firms recently released a detailed manual entitled Preserving Diversity in Higher Education, which has a much more extensive collection of relevant educational research.[252]
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While the diversity rationale is the focus of this policy report, the Supreme Court also recognizes that remedying the present effects of past discrimination can be a compelling interest for public entities sufficient to justify race-conscious affirmative action.[253] In order for a university to institute affirmative action based on a remedial justification, it must establish that it has a “strong basis in evidence for its conclusion that remedial action was necessary.”[254]
The Court has not delineated the precise contours of what qualifies as a “strong basis in evidence,” though in Croson, the Court suggested that it would be evidence “approaching a prima facie case of a constitutional or statutory violation.”[255] Establishing a strong basis in evidence is highly fact specific, so institutions committed to the remedial rationale for affirmative action are encouraged to make a vigorous effort to document past discrimination and its present day effects by means of direct evidence such as judicial findings.[256] In addition, indirect evidence should be documented, such as statistical disparities demonstrating that among enrolled students, minorities are underrepresented.[257] Although gross statistical disparities may be sufficient in some circumstances,[258] it is prudent to buttress statistical evidence with anecdotal evidence that will aid a court in making the inference that the statistical disparities were in fact caused by the past discrimination and its present effects.[259]
In Grutter, the Supreme Court held that setting goals for minority enrollment and making a “good faith effort” to reach those goals is distinguishable from a quota system. The Court explained:
Properly understood, a “quota” is a program in which a certain fixed number or proportion of opportunities are “reserved exclusively for certain minority groups.” Quotas “‘impose a fixed num-
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ber or percentage which must be attained, or which cannot be exceeded,’” and “insulate the individual from comparison with all other candidates for the available seats.” In contrast, “a permissible goal . . . require[s] only a good-faith effort . . . to come within a range demarcated by the goal itself,” and permits consideration of race as a “plus” factor in any given case while still ensuring that each candidate “compete[s] with all other qualified applicants.”[260]
The goal of admitting a “critical mass” of minority students is aspirational rather than guaranteed. In a quota system, the outcome is predetermined and admissions decisions are based on the desire to satisfy that outcome. In a “critical mass” system, however, there is a desired outcome, but there can be no prior certainty as to the final composition of a class. As a result, a school will not necessarily reach the desired outcome from year to year, and in some years a school may even exceed its targets.
In Grutter the Court did not define “critical mass,” though it did state that it would grant universities some deference in this area. Many institutions may wish to set their target goals for minority admissions based, in part, on the composition of the community from which they recruit (or hope to recruit) students. For example, large state institutions like UT-Austin and Texas A&M overwhelmingly admit Texas residents. Rice University, on the other hand enrolls about half of its freshmen class of 660 from outside Texas.[261] At the same time, it is important that the racial composition of a state or region not be presented in such an inflexible manner as to be vulnerable to accusations that such figures serve as de facto quotas.
Developing admissions criteria is an integral part of the admissions process, since the criteria assist in shaping the class of admitted students. Along with grades and test scores, other factors that may play a part in admissions are personal statements, essays, activities, recommendations, and interviews. In addition, certain characteristics may give an applicant a “plus,” including race, gender, socioeconomic background, geography, leadership qualities, athletic ability, unique talents, and the extent to which the applicant has utilized the opportunities available at her high school or undergraduate institution.
The Society of American Law Teachers (SALT), the nation’s largest membership organization of law professors, recently analyzed law school admissions and found, “Notwithstanding the claims in glossy law school
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catalogues that admissions is a ‘personalized,’ ‘holistic’ process, studies demonstrate that 70–80% of all admissions are determined strictly on the numbers.”[262] SALT concludes that this over-reliance on numerical indicators harms the legal profession by neglecting other vital criteria:
[L]aw schools . . . fail to give appropriate consideration to other attributes and skills that are important to success in law school and, ultimately, in the delivery of legal services. The LSAT does not measure motivation, perseverance, character, interpersonal skills, problem-solving skills, oral communication, empathy for clients, commitment to public service or the likelihood that the applicant will work with underserved communities. Law schools, by neglecting these important qualities, do a disservice to the legal profession and its clients, and they limit the legal profession’s ability to provide meaningful access to legal services to all segments of society.[263]
In order for individualized review to be a realistic outcome, more than an inspirational policy statement is needed. Formulating questions that will solicit important information will help an institution achieve its diversity goals. Since schools are evaluating the individual, it is important to know who the applicant is. Many schools discover more about the applicant by asking short essay questions. The information provided in essays may reveal qualities and attributes that the school feels will contribute highly to the diversity of its student body.
We recommend that colleges and universities that favor the relatives of alumni carefully review whether such policies have a disparate impact on applicants from communities historically excluded from higher learning. For example, legacy policies are one factor contributing to low diversity at Texas A&M both before and after Hopwood. Recently the Houston Chronicle estimated that that in 2002 and 2003 about 350 freshmen were ultimately admitted to A&M because their family members had attended that institution.[264] By comparison, A&M enrolled an average of 180 African Americans in the years 1998–2002 out of an average freshman class
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of about 6400.[265] Together, Latinos and African Americans constituted only 8.6% of the pool of 2002–2003 A&M legacy beneficiaries.[266]
We share University of Houston Professor Michael A. Olivas’s concern that legacy policies too often correlate with family wealth and racial/ethnic background.[267] For instance, since Texas A&M began decades ago essentially as a White, all-male military institution,[268] it is not surprising that its policy toward the children and siblings of A&M alumni largely benefited Whites. We suspect legacies partly explain why Asian Pacific Americans are at a disadvantage relative to Whites applying to Texas A&M even with equivalent credentials, in contrast to UT-Austin, which does not employ legacy policies.[269]
It was only in response to recent public criticism from politicians and civil rights groups, including MALDEF, the League of United Latin-American Citizens (LULAC), the Urban League, and the Texas Civil Rights Project, that Texas A&M president Robert Gates announced that legacy policies would be discontinued at the university.[270]
In accordance with Grutter, when race-conscious policies are no longer needed to further the interest of student diversity, the institution should stop considering race in the admissions process.[271] Grutter requires that universities engage in “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”[272] However, “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative.”[273]
In this report we presented our assessment of the efficacy of many race-neutral efforts. For example, in Part II we found that the Texas Ten
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Percent Plan in combination with other race-neutral efforts, while contributing a great deal, nonetheless was not effective in promoting racial diversity at UT-Austin, and particularly at Texas A&M. In Parts III and IV, we documented the troubling decline in diversity in legal and medical education in Texas, especially at flagship institutions like the UT Law School.
This policy report, however, is far from an exhaustive analysis of the myriad race-neutral programs in Texas. We applaud research efforts like that at UT-Austin to measure the racial and ethnic composition of each classroom in order to gauge whether race-conscious measures are necessary.[274]
There are also a vast number of undergraduate, graduate, and professional programs that, for reasons of time and space, were not assessed in this report, but nonetheless indicate that race-neutral efforts are inadequate. For example, in the arts, sciences, humanities, and social sciences graduate school programs at UT-Austin, the applicant pool for the fall 2003 class included a paltry 6.2% Latinos, African Americans, and American Indians combined.[275]
Grutter mandates that universities adopting race-conscious admissions programs periodically review their programs. On the other hand, the Court’s language about periodic review indicates that Grutter did not impose a twenty-five-year sunset clause on affirmative action in higher education. As long as Grutter remains the law of the land, institutions of higher learning will continue to have a compelling interest in a racially and ethnically diverse student body. Although the Court in Grutter was not specific about the frequency needed for periodic review, we recommend that it be conducted at least every few years.
In addition to evaluating race-neutral alternatives, there are other reasons an institution should undertake periodic review. Because so many different factors play a part in an individualized review of an applicant, reevaluating an admissions program will allow an institution to reassess its diversity goals and to tailor its admissions program to meet those goals. A school should seek to periodically reassess the different factors that will create a diverse student body, the criteria for admissions, and the different relative weights given to “plus” factors. An institution should also review its target goals for admitting minority students at the school. This type of periodic reevaluation will help an institution ensure that its diversity goals are advancing the educational mission of the school.
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In recent months the Center for Equal Opportunity, a conservative think tank, filed complaints with the U.S. Department of Education’s Office for Civil Rights (OCR) against Rice University, Texas Tech University, and threatened to do so against UT-Austin, all in an attempt to block the reintroduction of affirmative action.[276] Given these scare tactics, we are obliged to remind private and public colleges and universities of their obligations under the U.S. Department of Education’s disparate impact regulations promulgated pursuant to Title VI of the 1964 Civil Rights Act.[277]
OCR can enforce these regulations when a complaint prompts an OCR investigation.[278] In resolving claims under the disparate impact regulations, the educational institution has the burden of demonstrating the “educational necessity”[279] of the admissions practice at issue once disparate impact is established.[280]
The admissions program at UTLS that was struck down in Hopwood is a telling example of how certain admission practices can have an unwarranted disparate impact on low-income and minority students. Cheryl Hopwood’s 3.8 UGPA was downgraded, causing her to drop to the discretionary zone where she was eventually placed on the waitlist, because she graduated from California State University Sacramento and attended
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community college.[281] This is an area of concern because, as MALDEF pointed out in Grutter, a high proportion of Latinos attend less prestigious institutions or begin their higher education journey in community college.[282] A study by the Pew Hispanic Center reports among the college age population (18-24), 44% of Latinos attend community college, compared to less than 30% of Whites and African Americans.[283]
In Hopwood, UTLS Professor Wellborn provided an expert report and testimony indicating that at UTLS “even though the LSDAS [Law School Data Assembly Service] treats all GPAs alike for purposes of calculating the [Texas index] score, file reviewers customarily take cognizance of . . . the mean LSAT score for the applicant’s college . . . .”[284] Wellborn also assured the court that “comparing the colleges’ mean LSAT scores is the best way of evaluating the various colleges and universities in terms of the caliber of their respective student bodies.”[285]
Unfortunately, when the LSAT is used as a yardstick for evaluating the “caliber” of an undergraduate student body, schools that have a high proportion of Black, Latino, and low-income students tend to be downgraded and wealthy elite schools are boosted.[286] Thus, Sturm and Guinier persuasively argue, “Cheryl Hopwood may well be the victim of a class bias in the admissions process that mirrors the bias confronting applicants of color.”[287]
A law school would have a difficult time meeting its burden of establishing the educational necessity of UGPA adjustments. UTLS officials acknowledged that the LSAC did not adjust UGPAs in calculating LSAT/UGPA index scores on behalf of UTLS.[288] More importantly, LSAC has repeatedly studied the issue and found that UGPA adjustments do not improve prediction of law school grades.[289]
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As this example illustrates, at times colleges and universities use criteria and procedures, often with little forethought, that negatively impact admission opportunities for students of color. The more that the admissions office is cognizant of the effect such factors have on admissions, the more effectively it can take steps to counterbalance this adverse impact. Therefore, an admissions office should rigorously evaluate all factors used in its admissions program and determine what effect they may have on minority applicants. We recommend that institutions take care to avoid criteria that place an undue burden on students of color and applicants from disadvantaged backgrounds.
[*] The authors thank
the following scholars for their invaluable reviews of this policy report:
Jorge Chapa (University of Indiana-Bloomington, formerly UT-Austin), Catherine
Horn (Civil Rights Project at Harvard University), David Montejano (U.C. Berkeley,
formerly UT-Austin), Margaret Montoya (University of New Mexico School of Law),
Michael A. Olivas (University of Houston Law Center), Gerald Torres (UT Law
School), and Bruce Walker (UT-Austin).
We wish to thank the following institutions and individuals for their generous
support in making this policy report possible: Elizabeth Cabraser, Quinn Delaney
and Wayne Jordan, the Ford Foundation, the Wallace Alexander Gerbode Foundation,
Jack Londen, and the Open Society Institute.
This report is dedicated to the memory of Texas State Representative Irma Rangel
(1931–2003), who was the first Latina elected to the Texas Legislature
and was a tireless champion for expanding opportunities in higher education,
including through the Texas Ten Percent Plan.
[1] 78 F.3d 932 (5th Cir. 1996), rev’d
in part by Grutter v. Bollinger, 539 U.S. 306 (2003).
[2] 539 U.S. 306 (2003).
[3] Id. at 326–33.
[4] Id. at 333–44.
[5] 539 U.S. 244 (2003).
[6] 539 U.S. at 331 (quoting Brown
v. Board of Education, 347 U.S. 483, 493 (1954)).
[7] 347 U.S. 475 (1954). In Hernández,
decided in the same term as Brown, the Court held that Mexican Americans
constituted a cognizable minority class for purposes of equal protection under
the Fourteenth Amendment in areas where they were subject to local discrimination. See James
A. Ferg-Cadima, Black, White and Brown: Latino School Desegregation Efforts
in the Pre- and Post-Brown v. Board of Education Era 23 (May 2004), available
at http://www.maldef.org/pdf/LatinoDesegregation.pdf.
It must be acknowledged that both before and after the Supreme Court’s
ruling in Hernández, many school districts in Texas and throughout
the Southwest deployed specious arguments about migrant status, limited English
proficiency and other legally sanctioned loopholes to entrench segregation
practices against Mexican Americans. Ferg-Cadima, id. at 14, 36–38. See,
e.g., Independent School District v. Salvatierra, 33 S.W. 2d 790 (Tex.
Civ. App. 1930), appeal dismissed for w.o.j., & cert. denied, 284
U.S. 580 (1931) (allowing district to resort to the pretext that migrant children
should be segregated because they started school late, though the school district
only applied such a policy to Mexican Americans and not white migrant children);
Delgado v. Bastrop Indep. School Dist., Civ. No. 388 (W.D. Tex. June 15, 1948)
(while the court declared it illegal to segregate Mexican Americans in different
buildings, it allowed exceptions in the early grades where students did not
know English); United States v. Texas Educ. Agency, 600 F.2d 518, 521 (5th
Cir. 1979) (describing 1950s policy at the Lubbock Independent School District,
which segregated Mexican Americans at the Guadalupe School, formerly known
as the “Mexican School”); Hernandez v. Driscoll Consolidated Indep.
School Dist., 2 Race Rel. L. Rev. 329 (S.D. Tex. Jan. 11, 1957) (pursuant to
the Delgado case, the superintendent in Driscoll ordered that Mexican
Americans could only be segregated in the first grade, supposedly as a means
of combating language deficiency, whereupon the district simply kept Mexican
Americans in first grade for the first four years of their education). See
also U.S. v. Flager Co. School Dist. 457 F.2d 1402, 1402 n.3 (5th Cir.
1972) (describing the Driscoll case).
As MALDEF attorney Ferg-Cadima explains, “‘[T]oday we recognize
that ethnic discrimination is largely indistinguishable from racial discrimination’ but
in the 1950s localities believed ‘they could hide what was, in intent
and effect, racial discrimination, behind a façade of . . . ethnic discrimination’ and
assume that the courts would find it acceptable.” Ferg-Cadima, id.
at 23 (quoting Thomas A. Saenz, Vice President of MALDEF’s litigation
team). Thus, it was not until the Cisneros and Keyes cases in
the early 1970s—in which MALDEF filed pivotal friend-of-the-court briefs—that Brown
v. Board of Education began to apply to Mexican Americans in a meaningful
way. See Cisneros v. Corpus Christi Indep. School Dist., 324 F. Supp.
599 (S.D. Tex. 1970), aff’d 467 F.2d 142 (5th Cir. 1972); Keyes
v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 197–98 (1973). See
also Ferg-Cadima, id. at 31–33; Margaret E. Montoya, A
Brief History of Chicana/o School Segregation: One Rationale for Affirmative
Action, 12 Berkeley La Raza L.J. 159, 163, 169–70 (2001). The aforementioned
Mexican American segregation cases demonstrate that the Fifth Circuit was incorrect
in Hopwood when it declared, “There is no history . . . of de
jure discrimination against Mexican Americans in education at any level
in Texas . . . .” 78 F.3d at 955 n.50.
[8] Brown, 347 U.S. at 493.
[9] Plyler v. Doe, 457 U.S. 202,
221 (1982).
[10] 438 U.S. 265, 312 (1978) (citing
William G. Bowen, Admissions and the Relevance of Race, Princeton Alumni
Wkly., Sept. 26, 1977, at 7, 9).
[11] Regarding the University of
Michigan experts’ evidence on diversity, see, for example, Expert
Report of Patricia Gurin, reprinted in 5 Mich. J. Race & L.
363 (1999); Expert Report of William G. Bowen, reprinted in 5
Mich. J. Race
& L. 427 (1999); William G. Bowen & Derek Bok, The Shape of the River:
Long-Term Consequences of Considering Race in College and University Admissions
(1998).
[12] The Grutter majority,
539 U.S. at 330, was also persuaded by the Brief for the American Educational
Research Ass’n et al. as Amici Curiae (Feb. 15, 2003), available at http://www.umich.edu/~urel/admissions/legal/grutter/;
Diversity Challenged: Evidence on the Impact of Affirmative Action (Gary Orfield & M.
Kurlaender eds., 2001); Compelling Interest: Examining the Evidence on Racial
Dynamics in College and Universities (Mitchell Chang et al. eds., 2003).
[13] 539 U.S. at 330.
[14] 78 F.3d 932, 944 (5th Cir.
1996).
[15] Id. at 944–45
(citing Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995); City
of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989)). See also Gerald
Torres, Grutter v. Bollinger/Gratz v. Bollinger: View from a Limestone Ledge,
103 Colum. L. Rev. 1596, 1596 (2003) (“The Hopwood v. Texas decision
was breathtaking in its disdain for the Supreme Court’s educational equal
protection jurisprudence.”).
[16] See Rodríguez
de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (only
the Supreme Court retains “the prerogative of overruling its own decisions.”). See
also Hopwood, 78 F.3d at 963 (Weiner, J. specially concurring) (“[I]f Bakke is
to be declared dead, the Supreme Court, not a three-judge panel of a circuit
court, should make that pronouncement.”).
[17] 539 U.S. at 328.
[18] Id. at 327 (citing Gomillion
v. Lightfoot, 364 U.S. 339, 343–44 (1960)).
[19] Id. at 328.
[20] Id. at 329 (citations
omitted).
[21] Id.
[22] 78 F.3d at 947–48.
[23] See Eric Schnapper, Affirmative
Action and the Legislative History of the Fourteenth Amendment, 71 Va.
L. Rev. 753 (1985).
[24] 539 U.S. at 332.
[25] Id. at 334.
[26] Id.
[27] Id. (citing Bakke,
438 U.S. at 315–16 (opinion of Powell, J.)).
[28] Id. at 318–19
(quoting trial testimony of admissions director Erica Munzel and dean Jeffrey
Lehman).
[29] Id. at 335 (citations
omitted).
[30] Brief for Respondents at 41
n.67, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241), available
at http://www.umich.edu/~urel/admissions/legal/grutter/UM-Grutter.pdf.
[31] 539 U.S. at 336 (citing Bakke,
438 U.S. at 323 (opinion of Powell, J.)).
[32] Id.
[33] Id. at 336–37.
[34] 539 U.S. at 271–73.
[35] Id. at 275 (citations
omitted).
[36] 539 U.S. at 339.
[37] Id.
[38] Id. at 339–40.
[39] Torres, supra note 15, at 1608 (quoting Grutter, 539 U.S.
at 332).
[40] Briefs of Amicus Curiae United
States, Grutter v. Bollinger, 539 U.S. 309 (2003), Gratz v. Bollinger, 539
U.S. 244 (2003) (Nos. 02-241, 02-516) available at http://www.umich.edu/~urel/admissions/legal/amicus.html.
[41] 539 U.S. at 268–76.
[42] Id. (Rehnquist, C.J.,
writing for the majority); id. at 276–80 (O’Connor, J.,
concurring); id. at 281 (Thomas, J., concurring); id. at 281–82
(Breyer, J., concurring in the judgment).
[43] 539 U.S. at 340.
[44] Id.
[45] Id. at 341 (citing Metro
Broadcasting, Inc. v. FCC, 497 U.S. 547, 630 (1990) (O’Connor, J., dissenting)).
[46] Id. (citing Bakke,
438 U.S. at 317).
[47] See, e.g., Lino A. Graglia,
Hopwood v. Texas: Racial Preferences in Higher Education Upheld and Endorsed,
45 J. Legal Educ. 79, 87 (1995) (criticizing Justice Powell’s Bakke opinion: “Bakke
won, but no other of the thousands or millions of victims of
racial discrimination by institutions of higher education would ever win.”)
(emphasis added); Michael Lind, The Next American Nation 166 (1995) (In reference
to the University of Texas Law School, arguing: “[I]n order to accommodate
a few less-qualified black students” universities and law schools “must
turn down hundreds or thousands of academically superior white students every
year.”).
[48] Goodwin Liu, The Causation
Fallacy: Bakke and the Basic Arithmetic of Selective Admissions,
100 Mich. L. Rev. 1045 (2002).
[49] 539 U.S. at 342.
[50] Id. at 343. In dissent,
Justice Thomas joined by Justice Scalia, characterized this language as part
of the holding of the case. 539 U.S. at 351 (“I agree with the Court’s
holding that racial discrimination in higher education admissions will be illegal
in 25 years.”). But see 539 U.S. at 386–87 (Rehnquist, C.J.,
dissenting) (criticizing the majority’s “possible 25-year limitation” as “the
vaguest of assurances”).
[51] Id. at 341–43.
[52] Joint Statement of Constitutional
Law Scholars, Reaffirming Diversity: A Legal Analysis of the University of
Michigan Affirmative Action Cases 11 (2003), available at http://www.civilrightsproject.harvard.edu/policy/legal_docs/Diversity%20Reaffirmed.pdf.
[53] 539 U.S. at 339.
[54] Id.
[55] Tex. Educ. Code § 51.803.
For a legislative and political history of the Texas Ten Percent Plan, see
Torres, supra note 15, at passim;
Michael A. Olivas, Higher Education Admissions and the Search for One Important
Thing, 21 U. Ark. Little Rock L. Rev. 993, 1004–08 (1999); Danielle
Holley & Delia Spencer, The Texas Ten Percent Plan, 34 Harv. C.R.-C.L.
L. Rev. 245, 252–59 (1999); David Montejano, Maintaining Diversity
at the University of Texas, in Race and Representation: Affirmative
Action 359 (Robert Post & Michael Rogin eds., 1998).
[56] See Jorge Chapa, Affirmative
Action, X Percent Plans, and Latino Access to Higher Education in the Twenty-first
Century, in Latinos: Remaking America 375, 381 (Marcelo M. Suárez-Orozco & Mariela
M. Páez eds., 2002); Marta Tienda et al., Closing the Gap?: Admissions & Enrollments
at the Texas Public Flagships Before and After Affirmative Action 4, 6
(Office of Population Research Princeton University, Working Paper 2003-01,
2003), available at http://opr.princeton.edu/papers/opr0301.pdf (study
of 240,000 in-state resident applicants comparing admissions at the two flagships
with affirmative action (1992–1996) and without affirmative action (1997–2000)).
Note that the Tienda post-Hopwood data combines one cycle without the
Texas Ten Percent Plan (1997) with three cycles during which the Plan was in
effect (1998–2000). For this reason, in Part II.A we rely upon independent
data sources to draw conclusions specifically about the impact of the Texas
Ten Percent Plan.
[57] Todd Ackerman, Texas at
Center of Debate over Race, Houston Chron., Dec. 14, 2003, at A1; Matt
Flores, UT Plans for Affirmative Action, San Antonio Express-News, Dec.
2, 2003, at B1.
[58] Ron Nissimov, A&M Regents
Approve Admissions Policy, Houston Chron., Dec. 6, 2003, at A35; David
Sedeno, A&M Won’t Use Race in Admissions, Dallas Morning News,
Dec. 5, 2003, at A1.
[59] Penda D. Hair, Louder Than
Words: Lawyers, Communities and the Struggle for Justice 18 (Rockefeller Foundation,
2001) (quoting Torres), available at http://www.rockfound.org/Documents/431/louderthanwords.pdf.
[60] Throughout this report, 1995
data is preferred as the benchmark for assessing the consequences of Hopwood,
because the Fifth Circuit’s March 1996 ruling did impact some admission
decisions in 1996 and public awareness of the ruling had a chilling effect
on yield rates as some admitted students of color were concerned they would
be attending institutions where they could become increasingly marginalized. See Susanna
Finnell, The Hopwood Chill: How the Court Derailed Diversity Efforts
at Texas A&M, in Chilling Admissions: The Affirmative Action
Crisis and the Search for Alternatives 71, 72–73 (Gary Orfield & Edward
Miller eds., 1998) (documenting the chilling effect of Hopwood at Texas
A&M in 1996 even before the ruling impacted the upcoming admissions cycle);
University of Texas Law School, Minority Enrollment for Entering First Year
Classes at the University of Texas School of Law, 1983–2002 (stating
that 1996 included affirmative action for only part of the admissions cycle), available
at http://tarlton.law.utexas.edu/hopwood/minority.html.
[61] Catherine L. Horn & Stella
M. Flores, Percent Plans in College Admissions: A Comparative Analysis of Three
States’ Experiences 49 tbl.28 (2003), available at http://www.civilrightsproject.harvard.edu/research/affirmativeaction/tristate.pdf .
[62] Id. at 47 tbl.25.
[63] Id. at 50 tbl.29.
[64] 1998 to 2002 data are from
the Texas Higher Education Coordinating Board, First-Time Undergraduate
Applicant, Acceptance, and Enrollment Information (1998–2002), available
at http://www.thecb.state.tx.us/ane/reports/top_10/default.htm,
and are based on a weighted average of 1998–2002 enrollments. 1995 data
is from Horn & Flores, supra note 61, at 49 tbl.28.
[65] Texas Education Agency, Student
Graduate Reports (1998–2003), available at http://www.tea.state.tx.us/adhocrpt/;
Texas Higher Education Coordinating Board, First-Time Undergraduate Applicant,
Acceptance, and Enrollment Information (1998–2003), available
at http://www.thecb.state.tx.us/ane/reports/top_10/default.htm.
[66] Todd Ackerman, Texas at
Center of Debate Over Race, Houston Chron., Dec. 14, 2003, at A1.
[67] Id.
[68] Torres, supra note 15, at 1604–07.
[69] Ron Nissimov, Detouring
Toward Diversity, Schools Push Limits of Hopwood Ruling, Houston
Chron., May 5, 2002, at A1.
[70] Cf. Ackerman, Texas
at Center of Debate over Race, supra note 66.
[71] Dhananjaya Arekere & Mitchell
F. Rice, Factors Influencing Minority Students’ Decision Not to Enroll
at Texas A&M University, J. Pub. Mgmt. & Soc. Pol’y (2002), available
at http://resi.tamu.edu (go to Journal
of Public Management & Social Policy).
[72] William C. Kidder, Silence,
Segregation, and Student Activism at Boalt Hall, 91 Cal. L. Rev. 1167,
1180 (2003) (explaining that the admission ratio of minority to White admits
makes
“year-to-year figures comparable despite fluctuations in selectivity.”).
[73] Analyzed from data collected
in Texas Higher Education Coordinating Board, First-Time Undergraduate Applicant,
Acceptance, and Enrollment Information (1998–2003), available
at http://www.thecb.state.tx.us/ane/reports/top_10/default.htm.
American Indians are excluded because of the statistically small sample (only
about 40–60 are admitted each year).
[74] Sara Hebel, “Percent
Plans”
Don’t Add Up, Chron. Higher Educ., Mar. 21, 2003, at A22.
[75] 539 U.S. at 339.
[76] Holley & Spencer, supra note 55,
at 252 tbl.1.
[77] 1998 to 2002 data are from
the Texas Higher Education Coordinating Board, available at http://www.thecb.state.tx.us/ane/reports/top_10/default.htm,
and are based on a weighted average of 1998–2002 enrollments. 1995 data
is from Horn & Flores, supra note 61, at 49 tbl.28.
[78] Gary M. Lavergne & Bruce
Walker, Implementation and Results of the Texas Automatic Admissions Law
(HB 588) at the University of Texas at Austin: Demographic Analysis, Fall 2003,
3 (2004), available at http://www.utexas.edu/student/admissions/research/HB588-Report6-part1.pdf.
[79] The link to the report of 1995
high school graduates at Texas Education Agency, Student Graduate Reports, available
at http://www.tea.state.tx.us/adhocrpt/,
is no longer active. Thus, here we compare the 1995 UT-Austin data in Chart
4 to the 1996 Texas high school graduation data reported in Horn & Flores, supra note
61, at 29 tbl.5. This estimate is conservative vis-à-vis our claim about
2003 versus 1995 (i.e., it slightly overstates the size of the 1995 “opportunity
gap”); the 1996 Black/Latino high school graduate percentage is likely
a bit higher than that for 1995.
[80] Texas Education Agency, Student
Graduate Reports (1998–2002), available at http://www.tea.state.tx.us/adhocrpt/;
Texas Higher Education Coordinating Board, First-Time Undergraduate Applicant,
Acceptance, and Enrollment Information (1998–2002), available
at http://www.thecb.state.tx.us/ane/reports/top_10/default.htm.
[81] 539 U.S. at 330.
[82] Press Release, University of
Texas at Austin, University of Texas at Austin Proposes Inclusion of Race as
a Factor in Admissions Process (Nov. 24, 2003), available at http://www.utexas.edu/opa/news/03newsreleases/nr_200311/nr_admission031124.html. See
also University of Texas at Austin Office of Admissions, Diversity Levels
of Undergraduate Classes at the University of Texas at Austin 1996–2002 (2003), available
at http://www.utexas.edu/student/admissions/research/ClassroomDiversity96-03.pdf.
[83] Id.
[84] Id.
[85] Id.
[86] John F. Kain & Daniel M.
O’Brien, Hopwood and the Top 10 Percent Law: How They Have Affected
the College Enrollment Decisions of Texas High School Graduates (2003), available
at http://www.utdallas.edu/research/tsp/pdfpapers/paper26.pdf.
[87] Id. at 8, tbl.3.
[88] 539 U.S. at 332.
[89] Brief of Amicus Curiae Authors
of the Texas Ten Percent Plan at 8, Gratz v. Bollinger, 539 U.S. 244 (2003)
(No. 02-516), available at http://www.umich.edu/~urel/admissions/legal/gra_amicus-ussc/um/10percent-gra.pdf.
[90] David Montejano, Access
to the University of Texas at Austin and the Ten Percent Plan: A Three-year
Assessment (2003), available at http://www.utexas.edu/student/research/reports/admissions/Montejanopaper.htm.
[91] Id. Regarding the obstacles
faced by students from rural backgrounds, see Debra Lyn Bassett, Ruralism,
88 Iowa L. Rev. 273 (2003).
[92] Torres, supra note 15, at 1602; Hair, supra note 59,
at 28–29.
[93] Torres, supra note 15, at 1601 (reporting data provided by Augustine
Garza, UT-Austin’s deputy director of admissions).
[94] Anthony P. Carnevale & Stephen
J. Rose, Socioeconomic Status, Race/Ethnicity, and Selective College Admissions 11
(2003), available at http://www.tcf.org/Publications/Education/carnevale_rose.pdf.
[95] See, e.g., Jonathan
D. Glater, Diversity Plan Shaped in Texas Is Under Attack, N.Y. Times,
June 13, 2004, at 1 (quoting Perry, “I really don’t see how [the
Ten Percent Plan] has worked the way people projected it would work . . . .
And I think, across the board, Texans see it as a problem.”); Darren
Meritz, Top 10% Plan has Improved Diversity at Top Texas Colleges, El
Paso Times, Jan. 23, 2004, at 1 (quoting Wentworth, “There are a lot
of problems with the Top 10 Percent rule, and it needs to be repealed.”);
Kent Fischer, Study: Top Students Not Hurt by Admissions Law, Dallas
Morning News, Jan. 20, 2004, at 3A (quoting Wentworth,
“This ‘entitlement’ is not fair, and it should be repealed.”).
[96] Lani Guinier, Admissions
Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals,
117 Harv. L. Rev. 113, 168 (2003) (“[T]he [Texas Ten Percent Plan] was
animated by the belief that distributing access to educational opportunity
broadly is consistent with the educational mission of higher education, necessary
to economic viability in the global economy, important for training a representative
group of citizens who will contribute to the public good, central to reconnecting
the university to the K–12 educational system, and indicative of greater
legitimacy within higher education.”).
[97] Montejano, supra note 90.
[98] Id.; see also Matt
Flores, Senator Wants College Rule Axed, San Antonio Express News, Sept.
26, 2003, at 1B (quoting Professor Michael A. Olivas as criticizing proposals
to terminate the Ten Percent Plan).
[99] Melissa Drosjack, House
OKs Tougher 10% Admission Rule, Houston Chron., May 27, 2003, at A1.
[100] William E. Forbath & Gerald
Torres, Merit and Diversity After Hopwood, 10 Stan. L. & Pol’y
Rev. 185, 186 (1999) (arguing Texans are better off with the Ten Percent Plan’s
incentive structure geared toward real learning as opposed to incentivizing
standardized test preparation).
[101] See Chapa, supra note 56,
at 378–79 (documenting substantial disparities in Texas between Whites
and Latinos regarding AP enrollments and SAT preparation courses).
[102] Marta Tienda et al., College
Attendance and the Texas 10 Percent Law: Permanent Contagion or Transitory
Promise? 9–11 (2003), available at http://www.texastop10.princeton.edu/publications/tienda101803.pdf.
[103] Id. at 12, 24–25
(based on a statistically representative 2002 survey of 19,976 sophomores and
13,803 seniors in Texas high schools).
[104] Torres, supra note 15, at 1608–09.
[105] Tienda et al., supra note 56,
at 17 tbls.4–6.
[106] See Brief of Amici
Curiae Nat’l Asian Pacific Am. Legal Consortium et al., Grutter v. Bollinger,
539 U.S. 306 (2003) & Gratz v. Bollinger, 539 U.S. 244 (2003), reprinted
in 10 Asian L.J. 295 (2003) (brief jointly filed by 27 APA civil rights
and public interest organizations supporting affirmative action and debunking
the
“model minority” myth that APAs no longer face discrimination in
American society); Gabriel J. Chin et al., Beyond Self-Interest: Asian Pacific
Americans Toward a Community of Justice, A Policy Analysis of Affirmative Action,
4 Asian Pac. Am. L.J. 129, 159–60 (1996) (“What APAs must understand
is that negative action against us does not result from affirmative action
for other minorities. In fact, in cases of proven racial disparities between
APA and White admission rates, the causes have been either stereotypical treatment
of APA applicants or other preference such as that for alumni children, who
tend to be predominantly White.”).
[107] See, e.g., Shelby
Steele, X-Percent Plans—After Preferences, More Race Games, Nat’l
Rev., Feb. 2000, at 22, available at http://articles.findarticles.com/p/articles/mi_m1282/is_2_52/ai_58836288.
[108] Lavergne & Walker, supra note 78,
at 3, 8.
[109] Id. at 8 tbl.5.
[110] Id. at 9 tbl.6; id. at
9 (“Indeed, at the mid-ranges where most students are located, top 10%
students performed as well as non–top 10% students scoring 200–300
points higher on the SAT scale.”).
[111] Montejano, supra note 90 (quoting President Faulkner).
[112] Bruce Walker et al., A
Review of the Use of Standardized Test Scores in the Undergraduate Admissions
Process at the University of Texas at Austin 5 (2002), available at http://www.utexas.edu/student/research/reports/admissions/TxTestingTaskForce2001.pdf.
Note that operation of the Texas Ten Percent Plan means that there is likely
to be greater “restriction of range” among the high school grades
of UT-Austin admits than among those same students’ SAT scores, so it
is all the more notable that high school grades continue to be a better predictor.
[113] Saul Geiser & Roger
Studley, UC and the SAT: Predictive Validity and Differential Impact of the
SAT I and SAT II at the University of California 3 tbl.1 (2001), available
at http://www.ucop.edu/sas/research/researchandplanning/pdf/sat_study.pdf.
[114] Texas Senate News, Presidents
of Texas A&M and UT Testify Before Senate Higher Education Sub-Committee (Apr.
29, 2004), available at http://www.senate.state.tx.us/75r/Senate/Archives/Arch04/p042904a.htm.
[115] Correspondence with Bruce
Walker, Vice Provost and Director of Admissions, UT-Austin (Oct. 3, 2003) (on
file with author).
[116] Id.
[117] See Sharon Jayson, Finding
Ways to Scale Down UT, Austin Am.-Statesman, Nov. 11, 2003, available
at http://www.uh.edu/ednews/2003/aas/200311/20031111earlygrad.html.
[118] Marta Tienda et al., Policy
Brief 2 (Nov. 2003) (quoting Professor Tienda, “[I]t may be prudent
to remove the provision allowing students to select their institution of choice
and allow the UT and A&M systems to determine where students are placed,
as done in California and Florida.”), available at http://www.texastop10.princeton.edu/publications/tienda101803-short.pdf.
[119] Torres, supra note 15, at 1608–09.
[120] Sweatt v. Painter, 339
U.S. 629 (1950). See also Jonathan L. Entin, Sweatt v. Painter, the
End of Segregation, and the Transformation of Education Law, 5 Rev. Litig.
3, 70 (1986) (“Sweatt converted the demise of Plessy from
a long-range dream to a substantial likelihood.”).
[121] Douglas L. Jones, The Sweatt Case
and the Development of Legal Education for Negroes in Texas, 47 Tex. L.
Rev. 677, 690 (1969).
[122] Charles R. Lawrence III, Two
Views of the River: A Critique of the Liberal Defense of Affirmative Action,
101 Colum. L. Rev. 928, 930 n.9 (2001); William C. Kidder, The Struggle
for Access from Sweatt to Grutter: A History of African American,
Latino, and American Indian Law School Admissions, 1950–2000,
19 Harv. BlackLetter L.J. 1, 31, 33 (2003).
[123] Torres, supra note 15, at 1597 (citing data compiled by former
UTLS Dean M. Michael Sharlot).
[124] Hopwood v. Texas, 78 F.3d
932, 934 (5th Cir. 1996).
[125] The UTLS Admissions Office
data includes a classification for Mexican Americans but other Latinos are
lumped into an “other minority” category that includes American
Indians as well, making it impossible to construct an accurate category for
Latinos. Alternatively, the data that UTLS reports to the American Bar Association
does make it possible to combine data into a Latino category, but this is only
true beginning in the late-1990s, which made it impossible to report pre-Hopwood 1990–1995
data for Latinos. Thus, the discussion of Hopwood and UTLS is restricted
to Mexican Americans.
[126] Thomas D. Russell, The
Shape of the Michigan River as Viewed from the Land of Sweatt v. Painter and Hopwood,
25 Law & Soc. Inquiry 507, 507 (2000) (Heman Sweatt’s class included
six African Americans out of 280 first-year students, or 2.1%).
[127] See also Torres, supra note 15,
at 1597 (noting the effect of Hopwood at UTLS: “To the dismay
of many in our community, we were seeing the destruction of a legacy the Law
School had established since it was desegregated by Heman Sweatt . . . .”).
[128] U.S. Dept. of Education
Office for Civil Rights, Race-Neutral Alternatives in Postsecondary Education:
Innovative Approaches to Diversity (2003), http://www.ed.gov/about/offices/list/ocr/edlite-raceneutralreport.html#_ftnref82.
[129] University of Texas Law
School, Minority Enrollment for Entering First Year Classes at the University
of Texas School of Law, 1983–2002, supra note 60; University of Texas Law School, Statistics
on JD Entering Classes (unpublished memorandum available from Terry Barry,
Associate Director of Admissions at UTLS). The figures in the chart are based
on unweighted averages of 1990–1995 and 1997–2002 data since enrollment
counts were not listed.
[130] Law School Admission Council, National
Decision Profiles 1990–91 (1991); Law School Admission Council , National
Decision Profiles for Fall 2003 (2003).
[131] Douglas Laycock, The
Broader Case for Affirmative Action: Desegregation, Academic Excellence, and
Future Leadership, 78 Tul. L. Rev. 1767, 1834 (2004). Note that after a
couple years of the so-called “jobless recovery” over 99,000 applicants
applied to ABA-accredited law schools in 2003, a ten-year high. Law School
Admission Council, National Decision Profiles for Fall 2003 (2003).
Likewise, the 1991 recession produced a record high number of applications
to law school. Law School Admission Council, National Decision Profiles
1990–91 (1991).
[132] Id. Professor Laycock
has closely followed UTLS admissions since Hopwood, when he was part
of the legal team representing the University of Texas.
[133] University of Texas Law
School, Statistics on JD Entering Classes, supra note 129.
[134] Id. The yield rate
for Mexican Americans is generally higher at UTLS than that for African Americans
because a higher proportion of the former are Texas residents who therefore
have stronger tuition and community-related incentives for choosing UTLS.
[135] Id.
[136] University of Texas Law
School, Minority Enrollment for Entering First Year Classes at the University
of Texas School of Law, 1983–2002, supra note 60; University of Texas Law School, Statistics
on J.D. Entering Classes, supra note 129. The figures in the chart are based on
unweighted averages of 1990–1995 and 1997–2002 data since enrollment
counts were not listed.
[137] University of Texas Law
School, Statistics on JD Entering Classes, supra note 129.
[138] Id.
[139] Telephone Interview with
Steven Goode, Associate Dean, UTLS (May 24, 2004).
[140] Laycock, supra note 131.
[141] See, e.g., Press
Release, University of Texas Law School, UT Law Leads Nation in Private Initiatives
for Recruiting (June 21, 2001) (on file with author); Press Release, University
of Texas Law School, Time Magazine: UT Law #1 in Reaching Out to Students of
All Backgrounds (Oct. 16, 2001) (on file with author).
[142] Sweatt, 339 U.S.
at 634. See also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265,
313–14 (1978); Grutter, 539 U.S. at 332.
[143] In 1995, while the ABA
recorded national enrollments by racial and ethnic group regarding specific
law schools in Texas and elsewhere, it only reported the number of all minority
groups combined. See Am. Bar Ass’n, A Review of Legal Education
in the United States Fall 1995, 55–58 (1996). For this reason we were
unable to compare 1995 and post-Hopwood data across all Texas law schools,
as we did with UTLS earlier.
[144] U.S. Civil Rights Comm’n,
Toward an Understanding of Percentage Plans in Higher Education: Are They Effective
Substitutes for Affirmative Action? (2000), available at http://www.usccr.gov/pubs/pubsndx.htm.
[145] Am. Bar Ass’n & Law
Sch. Admission Council, Official Guide to ABA-Approved Law Schools 2004 Edition
126, 334, 602, 698 (2003). System-wide 2003 data for the Texas law schools
was not yet available when this report was being prepared.
[146] Id. at 33. This
figure includes Baylor, Houston, St. Mary’s, SMU, South Texas, University
of Texas, Texas Tech, and Texas Wesleyan. We excluded Thurgood Marshall School
of Law at Texas Southern University because its historical mission has focused
on the education of African Americans and its current enrollment of 57.4% African
Americans (id. at 33) in the overall average would give a false picture
of diversity at the other eight law schools.
[147] Ranking the Nation’s
Law Schools According to Percentage of Black Students, J. Blacks Higher
Educ., Autumn 2001, at 86, 87 (citing data from the 2002 edition of the Official
Guide to ABA-Approved Law Schools).
[148] Brief of Amicus Curiae
Am. Law Deans Ass’n at 13, Grutter v. Bollinger, 539 U.S. 306 (2003)
(No. 02-241), available at http://www.umich.edu/~urel/admissions/legal/gru_amicus-ussc/um/ALDA-gru.pdf.
[149] Am. Bar Ass’n & Law
Sch. Admission Council, supra note 145, at 33.
[150] Id.; University
of Texas Law School, Statistics on JD Entering Classes, supra note 129.
[151] Am. Bar Ass’n & Law
Sch. Admission Council, supra note 145,
at 33; University of Texas Law School, Statistics on JD Entering Classes, supra note 129.
[152] Am. Bar Ass’n & Law
Sch. Admission Council, supra note 145,
at 334, 634. Census data is available at http://factfinder.census.gov.
[153] Id. at 33.
[154] Id. at 33.
[155] Id. at 29.
[156] Frank H. Wu, Neither
Black nor White: Asian Americans and Affirmative Action, 15 B.C. Third
World L.J. 225, 245–46 (1995) (“Statistically, the socioeconomic
positions of Vietnamese and other Southeast Asian refugee groups resemble the
position of African Americans, rather than that of whites.”).
[157] Id. at 33; Brief
of Am. Law Deans Ass’n, supra note 148,
at 13.
[158] See Hopwood,
78 F.3d at 936 n.4.
[159] 539 U.S. 306 (2003).
[160] Brief of New Mexico Hispanic
Bar Ass’n et al. at 14, Grutter v. Bollinger, 539 U.S. 306 (2003) (No.
02-241), reprinted in 14 Berkeley La Raza L.J. 51 (2003); Brief of Bay
Mills Indian Community, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241), available
at http://www.umich.edu/~urel/admissions/legal/gru_amicus-ussc/um/Indians-gru.pdf;
Brief of Arizona State Univ. School of Law, Grutter v. Bollinger, 539 U.S.
306 (2003) (No. 02-241), available at http://www.umich.edu/~urel/admissions/legal/gru_amicus-ussc/um/ASU-gru.doc; Expert
Report of Faith Smith in Grutter v. Bollinger, reprinted in 12 Berkeley
La Raza L.J. 397 (2001). See also Christine Zuni Cruz, [On the] Road
Back In: Community Lawyering in Indigenous Communities, 5 Clinical L. Rev.
557 (1999); Gloria Valencia-Weber, Law School Training of American Indians
as Legal-Warriors, 20 Am. Indian L. Rev. 5 (1995–96).
[161] 539 U.S. at 384 tbl.3 (Rehnquist,
C.J., dissenting) (reproducing a table with 1995–2000 admission data).
[162] Garrick B. Pursley, Note, Thinking
Diversity, Rethinking Race: Toward a Transformative Concept of Diversity in
Higher Education, 82 Tex. L. Rev. 153, 191 (2003).
[163] Tex. Educ. Code § 51.842. See
also Dan Curry, Texas Law Limits Use of Standardized Tests in Graduate
Admissions, Chron. Higher Educ. July 13, 2001, at A23.
[164] Tex. Educ. Code § 51.842(a).
[165] Tex. Educ. Code § 51.842(b).
This subsection also directs that test scores be evaluated in the context of
the applicant’s performance relative to other students from similar socioeconomic
backgrounds, where that information can be determined. Id.
[166] Am. Bar Ass’n & Law
Sch. Admission Council, supra note 145,
at 334, 690, 698.
[167] Am. Bar Ass’n & Law
Sch. Admission Council, Official Guide to ABA-Approved Law Schools 2003 Edition
34 (2002).
[168] Deborah C. Malamud, Assessing
Class-Based Affirmative Action, 47 J. Legal Educ. 452 (1997); Linda F.
Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis
of the Consequences of Abandoning Race as a Factor in Law School Admission
Decisions, 72 N.Y.U. L. Rev. 1, 40–45 (1997).
[169] Brief of Amicus Curiae
Authors of the Texas Ten Percent Plan at 8–9, supra note 89 (No. 02-516).
[170] Brief of Amicus Curiae
Am. Law Deans Ass’n at 20, supra note 148 (“The dependence on segregated high
schools also means that percentage plans are useless for admission to law schools
or other graduate and professional programs. Because college attendance is
not based on residence, colleges are not nearly so segregated as high schools.”).
[171] See, e.g., Richard
H. Sander, Experimenting with Class-Based Affirmative Action, 47 J.
Legal Educ. 504 (1997).
[172] Kidder, supra note 122, at 32, 34.
[173] Torres, supra note 15, at 1597 (speaking as a member of the UTLS
faculty: “We knew, in other words, that the idea of critical mass that
the University of Michigan had been advancing was not a makeweight or a dodge,
but an important sociological fact that affected the learning environment.
It also determined whether the Law School would be a place members of underrepresented
communities might want to attend. We also knew that the kinds of drops in enrollment
that we were experiencing would seriously compromise our ability to perform
our mission as the flagship state law school.”). See also Lee
C. Bollinger, A Comment on Grutter and Gratz v. Bollinger, 103
Colum. L. Rev. 1589, 1591–92 (2003) (“The key point is that the
diversity-seeking admissions policy is not a simple form of social engineering
detached from basic educational purposes but rather rooted in the traditional
educational mission.”).
[174] U.S. Civil Rights Comm’n,
Beyond Percentage Plans, supra note 144,
at 43. Note the irony vis-à-vis Sweatt v. Painter, as the Thurgood
Marshall School of Law was originally established in 1947 as the Texas State
University for Negroes as part of Texas officials’ efforts to block the
integration of the University of Texas. Jones, supra note 121, at 683 (quoting the Chairman of the UT
Board of Regents that the bill creating Texas State was needed to prevent opening “every
school in Texas to children with Negro blood.”). For discussion of the
accomplishments of Thurgood Marshall School of Law and other historically black
law schools see John C. Brittain, Black History Month Tribute to
HBCU Law Schools, Nat’l Bar Ass’n Mag. 10, 12–13 (Jan./Feb.
2001).
[175] 539 U.S. at 332.
[176] Id.
[177] Nat’l Ass’n
for Law Placement, Women and Attorneys of Color at Law Firms—2002,
(2002), available at http://www.nalp.org/nalpresearch/mw02sum.htm.
[178] State Bar of Texas Dep’t
of Research & Analysis, Annual Report on the Status of Racial/Ethnic Minorities
in the State Bar of Texas 2002–2003, 1 (2003).
[179] Brief of Amicus Curiae
Am. Law Deans Ass’n at 13, supra note 148.
[180] 539 U.S. at 332.
[181] These medical schools include
UT-Galveston, UT-Houston, UT-San Antonio, Baylor, Texas A&M, Texas Tech,
Southwestern, and Texas College of Osteopathic Medicine.
[182] Texas Higher Education
Coordinating Board, Projecting the Need for Medical Education in Texas 6, 8
(2002), available at http://www.thecb.state.tx.us/reports/pdf/0494.pdf.
[183] Id. at 5.
[184] Id. at 6.
[185] Id.
[186] Id. at 5.
[187] Jordan J. Cohen, The
Consequences of Premature Abandonment of Affirmative Action in Medical School
Admissions, 289 J. Am. Med. Ass’n 1143 (2003).
[188] Id.
[189] Id. at 1149.
[190] Id. at 1147.
[191] See, e.g., Ass’n
of Am. Medical Colleges, Assessing Medical School Admissions Policies: Implications
of the U.S. Supreme Court’s Affirmative-Action Decisions App. B (2003), available
at http://www.aamc.org/publications/assessmedschooladmissions.pdf;
Brief of Amici Curiae Ass’n of American Medical Colleges et al. at 14
-15, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241), available at http://www.umich.edu/~urel/admissions/legal/gru_amicus-ussc/um.html.
[192] Dean K. Whitla et al., Educational
Benefits of Diversity in Medical School: A Survey of Students, 78 Acad.
Med. 460 (2003). This was a telephone survey conducted in 2000. 55% of students
could be located, but of those an impressive 97% responded to the survey (n
= 639). Also note that California’s Proposition 209, banning affirmative
action in California public universities, took effect for the entering Fall
1997 class, but that many of those surveyed at UCSF entered with affirmative
action.
[193] Id. at 462 tbl.1.
[194] Id. at 462.
[195] Id. at 463.
[196] See, e.g., Janice
Blanchard et al., Racial and Ethnic Disparities in Health: An Emergency
Medicine Perspective, 10 Acad. Emergency Med. 1289 (2003).
[197] Unequal Treatment: Confronting
Racial and Ethnic Disparities in Health Care (Brian D. Smedley et al. eds.,
2003).
[198] Id. at 30–31;
David C. Cone et al., Health Care Disparities in Emergency Medicine,
10 Acad. Emergency Med. 1176, 1177 (2003) (discussing the Institute of Medicine’s
Report).
[199] Smedley et al., supra note 197, at 14, 186 (discussing recommendation
5.3).
[200] See, e.g., Jordan
J. Cohen et al., The Case for Diversity in the Health Care Workforce,
21 Health Affairs 90, 93 (2002); Miriam Komaromy et al., The Role of Black
and Hispanic Physicians in Providing Health Care for Underserved Populations,
334 New Eng. J. Med. 1305 (1996).
Congress also recognizes that underrepresented minority doctors are more likely
to practice in underserved areas. See Brief of the Ass’n of American
Medical Colleges et al., as Amici Curiae in Support of Respondents in Grutter
v. Bollinger, supra note 191, at 9–10 (citing S. Rep. No. 105-220
at 20; 42 U.S.C. § 300-u6 note).
[201] Somnath Saha et al., Do
Patients Choose Physicians of Their Own Race?, 19 Health Affairs 76, 80
(2000).
[202] Somnath Saha et al., Patient-Physician
Racial Concordance and the Perceived Quality and Use of Health Care, 159
Archives Intern. Med. 997 (1999).
[203] 539 U.S. at 332.
[204] Saha et al., supra 202,
at 1000–03.
[205] H. Jack Geiger, Racial
and Ethnic Disparities in Diagnosis and Treatment: A Review of the Evidence
and a Consideration of Causes, in Smedley et al., supra note 197, at 417 (commissioned paper available
on the CD-ROM included with the print version of Unequal Treatment).
[206] Cf. Reynolds v.
City of Chicago, 296 F.3d 524, 529–31 (7th Cir. 2002) (compelling interest
in hiring more Latino police lieutenants when Latinos are a fifth of the Chicago
population and where evidence suggested Chicago Latinos responded more positively
to Latino police officers); Wittmer v. Peters, 87 F.3d 916, 920–21 (7th
Cir. 1996) (prison had a compelling justification for hiring African American
lieutenant where evidence showed that Black correctional officers were essential
for the prison boot camp program to be successful). Note that the Supreme Court
did not address such a public health necessity rationale in Bakke.
[207] Brett Nauman, Plan Would
Allow Use of Race in Admissions, Bryan-College Station Eagle, May 27, 2004, available
at http://www.theeagle.com/aandmnews/052704regents.php.
[208] 539 U.S. at 334.
[209] See Grutter, 539
U.S. at 334–36.
[210] Michael A. Olivas, Race,
Raza, and Ruins, 24 J.C. & U.L. 123, 126 (1997) (book review) (referencing
criticism of the “ham-handed” admissions process at UTLS with separate
admission tracks for blacks and Mexican Americans).
[211] Hopwood, 236 F.3d
at 265.
[212] Expert Report of David
M. White in Grutter v. Bollinger, reprinted in 12 Berkeley La Raza
L.J. 399, 403 (2001).
[213] Law Sch. Admission Council,
New Models to Assure Diversity, Fairness, and Appropriate Test Use in Law School
Admissions 21 (1999). See id. at 22 (“[I]t is important for all
applicants—including those at the top and the bottom—to be evaluated
on the basis of the criteria established by the school.”).
[214] 539 U.S. at 334.
[215] Michael A. Olivas, Legal
Norms in Law School Admissions: An Essay on Parallel Universes, 42 J. Legal
Educ. 103, 114 (1992). For example, standard error of measurement (the estimate
of reliability for an individual score) on the LSAT is +/- 5.2 points at a
95% confidence level, meaning that the “true score” of an applicant
who scores 160 is between 155 and 165. William C. Kidder, Portia Denied:
Unmasking Gender Bias on the LSAT and its Relationship to Racial Diversity
in Legal Education, 12 Yale J.L. & Feminism 1, 19 (2000); Olivas, supra note 55,
at 995 (reviewing the LSAT SEM at a 68% confi-dence level).
[216] Law Sch. Admission Council, LSAC
Statement of Good Admission and Financial Aid Practices 2 (1999) (“the
LSAT score should be used as only one of several criteria for evaluation and
should not be given undue weight.”). The LSAC also acknowledges,
“The LSAT is often overrelied on or used improperly relative to its appropriate
role in admissions.” Law Sch. Admission Council, New Models to Assure
Diversity, supra note 213, at
33.
[217] See, e.g., Brief
of Amicus Curiae Authors of the Texas Ten Percent Plan, supra note 89, at 8 (the Ten Percent Plan “tends
to neutralize the adverse impact these standardized test scores have upon African
American and Latino students, even when the effects of family income are controlled
for.”); Michael A. Olivas, Constitutional Criteria: The Social Science
and Common Law of Admissions Decisions in Higher Education, 68 U. Colo.
L. Rev. 1065, 1072 (1997) (“For minority students, moreover, studies
by several admissions scholars reveal small or no meaningful statistical relationships
between test scores and academic performance.”); Chapa, supra note 56,
at 380 (“I am among the many who believe that these test scores are very
often used inappropriately and perniciously . . . . I also believe that such
use wrongly discriminates against minorities.”).
[218] Press Release, MALDEF,
MALDEF Sues Cal Poly San Luis Obispo For Admissions Policies (Jan. 9, 2004)
(arguing that Cal Poly’s misuse of the SAT harms Latinos) available
at http://www.maldef.org/news/press.cfm?ID=201;
Plácido Gómez et al., The Texas Assessment of Academic Skills
Exit Test—“Driver of Equity” or “Ticket to Nowhere?”,
2 Scholar 187, 242 (2000) (quoting former MALDEF Regional Counsel for Texas
Albert Kauffman: “After twenty-five years of work involving Latino civil
rights, I am convinced that the misuse of standardized tests is an overarching
barrier to Latino progress in both education and employment.”).
[219] See, e.g., Expert
Report of Claude M. Steele in Grutter v. Bollinger and Gratz v.
Bollinger, reprinted in 5 Mich. J. Race & L. 439, 443 (1999) (Steele,
a Stanford psychologist, explains: “[E]ven large score differences on
the SAT do not translate into very large differences in the skills that underlie
grade performance. This is what is implied by the small relationship between
scores on the test and subsequent grades: that relatively few of the skills
critical to grades are measured by the tests.”).
[220] William C. Kidder & Jay
Rosner, How the SAT Creates ‘Built-In Headwinds’: An Educational
and Legal Analysis of Disparate Impact, 43 Santa Clara L. Rev. 131, 144
(2002).
[221] Id. at 144–45. See
also Roy O. Freedle, Correcting the SAT’s Ethnic and Social-Class
Bias: A Method of Reestimating SAT Scores, 73 Harv. Educ. Rev. 1 (2003);
Stephen R. Shalom, Dubious Data: The Thernstroms on Race in America,
1 Race &
Soc’y 125, 132 (1998); James Crouse & Dale Trusheim, The Case Against
the SAT 92, 94 (1988).
[222] Grutter v. Bollinger, 137
F.Supp.2d 821, 861 (E.D. Mich. 2001), rev’d 539 U.S. 306 (2003); Expert
Report of David M. White in Grutter v. Bollinger, reprinted in 12
Berkeley La Raza L.J. 399, 405–06 (2001). See also William C.
Kidder, Does the LSAT Mirror or Magnify Racial and Ethnic Differences in
Educational Attainment? A Study of Equally Achieving “Elite” College
Students, 89 Cal. L. Rev. 1055 (2001).
[223] Guinier, supra note 96, at 146–47 (“The correlation
between test scores and SES indicators is even stronger than the correlation
between test scores and future academic performance.”); Susan Sturm &
Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative
Ideal, 84 Cal. L. Rev. 953, 957 (1996) (“[W]e seek to highlight the
way that certain paper-and-pencil tests have been used as ‘wealth preferences’ or
poll taxes to determines who gets to participate as full citizens in our democracy.”).
Less reliance on standardized testing also neutralizes the well documented
and persistent disparate impact these tests have against women, and women of
color in particular. See, e.g., David K. Leonard & Jiming Jiang, Gender
Bias and the College Predictions of the SAT: A Cry of Despair, 40 Res.
Higher Educ. 375 (1999); Sturm & Guinier, id. at 992–97; Stephanie
M. Wildman, Affirmative Action: Necessary for Equality for All Women, Expert
Report in Grutter v. Bollinger, reprinted in 12 Berkeley La Raza
L.J. 429 (2001); Kidder, supra note 215, at passim.
[224] Crouse & Trusheim, supra note 221,
at 126.
[225] Lawrence J. Stricker et
al., Measuring Educational Disadvantage of SAT Candidates 10 tbl.9 (College
Board Research Report No. 2002-1, 2002). This report used a combination of
family income and parental education as its measure of socioeconomic status. Id.
at 3.
[226] Id. at 12.
[227] Chapa, supra note 56, at 378 tbl.19.1.
[228] Edgewood Indep. School
Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989); 804 S.W.2d 491 (Tex. 1991); 826
S.W.2d 489 (Tex. 1992); 917 S.W.2d 717 (Tex. 1995). See also J. Steven
Farr
& Mark Trachtenberg, The Edgewood Drama: An Epic Quest for Education
Equity, 17 Yale L. & Pol’y Rev. 607 (1999).
[229] Farr & Trachtenberg, supra note 228, at
703.
[230] See, e.g., Forbath &
Torres, supra note 100, at 185
(quoting H.B. 288 co-author David Montejano, “Texas is deeply segregated,
regionally and neighborhood-by-neighborhood in its major cities, so the majority
of our high schools are almost entirely white or black or brown. This law is
color-blind, but it used our bitter history of segregation to promote diversity.”);
Michelle Adams, Isn’t it Ironic? The Central Paradox at the Heart
of “Percentage Plans,” 62 Ohio St. L.J. 1729, 1733–34
(2001) (criticizing percentage plans and observing,
“[I]t is more accurate to describe percentage plans as a reflection of
current day educational apartheid.”); Holley & Spencer, supra note 55,
at 257 (citing H.B. 288 supporter Professor Michael A. Olivas’ testimony
that the bill would be effective in light of segregation patterns).
[231] This should remind us of
another lesson that applies to both the Texas Ten Percent Plan and to race-conscious
affirmative action: we must not take our attention away from other
“remedies for the core problem—the appalling inequities in the
state’s system, particularly gross underfunding of K-12 education at
many minority schools.” Hair, supra note 59, at 25. See also Guinier, supra note 96,
at 169 n.223 (noting that the argument that the Ten Percent Plan carries a
danger of not remedying segregation is one that applies equally to affirmative
action as well); Wade Henderson, Comments at Columbia Law School Symposium
on Affirmative Action, 30 Colum. Hum. Rts. L. Rev. 451, 458 (1999) (Mr.
Henderson, executive director of the Leadership Conference on Civil Rights,
argues, “The issues of affirmative action and improving the quality of
public education, K-12, are inextricably linked.”).
[232] College Board, 2003 College-Bound
Seniors Texas Report 7 tbl.4-2 (2003), available at http://www.collegeboard.com/prod_downloads/about/news_info/cbsenior/yr2003/pdf/2003_TEXAS.pdf.
[233] Id. at 7 tbl.4-2.
[234] Id.
[235] Id.
[236] Id.
[237] Infra Part II.
[238] Hair, supra note 59, at 34 n.69.
[239] Am. Bar Ass’n & Law
Sch. Admission Council, supra note 145,
at 637.
[240] Id. at 701.
[241] Id. at 693.
[242] Id.
[243] Id. at 337.
[244] Id. at 129.
[245] 539 U.S. at 312–20. See
also Dennis J. Shields, A View From the Files: Law School Admissions
and Affirmative Action, 51 Drake L. Rev. 731 (2003) (describing the Policy
Statement from the perspective of the University of Michigan Law School admissions
director).
[246] 539 U.S. at 315–16
(internal citations omitted).
[247] See Guinier, supra note 96,
at 125–36, for a discussion of higher education mission statements and
democratic values.
[248] 539 U.S. at 329.
[249] Richard O. Lempert et al., Michigan’s
Minority Graduates in Practice: The River Runs Through Law School, 25 Law & Soc.
Inquiry 395, 463–71 (2000). See also Lani Guinier, Confirmative
Action, 25 Law & Soc. Inquiry 565 (2000) (discussing implications of
the Michigan study).
[250] Patricia Gurin et al., Diversity
and Higher Education: Theory and Impact on Educational Outcomes, 72 Harv.
Educ. Rev. 330, 336 (2002).
[251] Gary Orfield & Dean
Whitla, Diversity and Legal Education: Student Experiences in Leading Law
Schools, in Diversity Challenged, supra note 12, at 156–63.
[252] Bingham McCutchen LLP et
al., Preserving Diversity in Higher Education: A Manual on Admissions Policies
and Procedures After the University of Michigan Decisions (2004), available
at http://www.equaljusticesociety.org/compliancemanual/Preserving_Diversity_In_Higher_Education.pdf.
[253] City of Richmond v. J.
A. Croson Co., 488 U.S. 469, 492, 503–04 (1989).
[254] Id. at 500 (quoting
Wygant v. Jackson Board of Educ., 476 U.S. 267, 277 (1985) (plurality opinion)).
[255] Id.
[256] Note that in Hopwood,
the Fifth Circuit rejected the argument that UTLS was obligated to keep affirmative
action in order to comply with the “Texas Plan” negotiated between
the state of Texas and the Office for Civil Rights in the 1980s, finding that
the Texas Plan did not specifically obligate UTLS. 78 F.3d at 954. The Hopwood panel
also found that the “state actor that had previously discriminated” was
limited to UTLS rather than the Texas public higher education system as a whole. Id.
at 953–54.
[257] Croson, 488 U.S.
at 501–02 (“[W]here special qualifications are necessary, the relevant
statistical pool for purposes of demonstrating discriminatory exclusion must
be the number of minorities qualified to undertake the particular task.”).
[258] Id. at 501 (“[W]here
gross statistical disparities can be shown, they alone in a proper case may
constitute prima facie proof of a pattern or practice of discrimination”)
(quoting Hazelwood School Dist. v. United States, 433 U.S. 299, 307–08
(1977)).
[259] Bingham McCutchen LLP et
al., supra note 252, at 74.
[260] 539 U.S. at 335 (internal
citations omitted).
[261] Brief of Amici Curiae Columbia
University et al. at 18, Gratz v. Bollinger, 539 U.S. 244 (2003) (Nos. 02-241,
02-516), available at http://www.umich.edu/~urel/admissions/legal/gru_amicus-ussc/um/Columbia-both.pdf.
[262] Society of American Law
Teachers, SALT on the LSAT 2 (Dec. 2003), available at http://www.saltlaw.org/StatementLSATBrochure.pdf.
[263] Id. at 3.
[264] Todd Ackerman, Legislators
Slam A&M over Legacy Admissions, Houston Chron., Jan. 4, 2004, available
at http://www.chron.com/cs/CDA/ssistory.mpl/politics/2332840.
Likewise, Texas A&M acknowledged a few years ago that 2000–3000 admits
a year benefit from legacy points, and that it is the decisive factor for about
200 students. Kenneth Ma, Texas Bill Would Bar Admissions Preferences,
Chron. Higher Educ. Feb. 5, 1999, at A38.
[265] Horn & Flores, supra note 61, at 49 tbl.28.
[266] Ackerman, supra note 264.
[267] Testimony of Michael A.
Olivas before the Texas House of Rep. Committee on Higher Educ. in Support
of H.B. 954 (Mar. 20, 2001) (on file with the authors). See also Michael
A. Olivas, Why Legacy Admissions are Bad Policy, Case Currents (Nov./Dec.
2003), available at http://www.case.org/Currents/ViewIssue.cfm?contentItemID=3589.
[268] Finnell, supra note 60, at 71.
[269] See Texas Higher
Education Coordinating Board, First-Time Undergraduate Applicant, Acceptance,
and Enrollment Information (1998–2002), available at http://www.thecb.state.tx.us/ane/reports/top_10/default.htm; see
also Tienda et al., supra note 56, at 17–18 (finding this to be true
in 1997–2000 for Texas resident applicants).
[270] Peter Schmidt, New Pressure
Put on Colleges to End Legacies in Admissions, Chron. Higher Educ., Jan.
30, 2004, at A1; Greg Winter, Texas A&M Ban on “Legacies’”
Fuels Debate on Admissions, N.Y. Times, Jan. 13, 2004, at A16; Todd Ackerman, End “Legacy” Program,
A&M Urged, Houston Chron., Jan. 8, 2004, available at http://www.chron.com/cs/CDA/ssistory.mpl/metropolitan/2341610.
[271] 539 U.S. at 343.
[272] Id. at 339.
[273] Id.
[274] Press Release, University
of Texas at Austin, The University of Texas at Austin Proposes Inclusion of
Race as a Factor in Admissions Process, supra note 82.
[275] Rick Cherwitz, To Diversity
. . . and Beyond, Fort-Worth Star-Telegram, Jan. 12, 2004, at 11.
[276] See Center for Equal
Opportunity, Recent Projects, available at http://www.ceousa.org/; see also Peter
Schmidt, Advocacy Groups Pressure Colleges to Disclose Affirmative-Action
Policies, Chron. Higher Educ., Apr. 2, 2004, at A26.
[277] 34 C.F.R. § 100.3(vii)(2)
(providing that recipients of federal funding “may not, directly or through
contractual or other arrangements, utilize criteria or methods of administration
which have the effect of subjecting individuals to discrimination because of
their race, color, or national origin . . . .”). For a synthesis of many
higher education cases addressing disparate impact, see Olivas, supra note 217,
at 1090–1114.
[278] Note, After Sandoval: Judicial
Challenges and Administrative Possibilities in Title VI Enforcement, 116
Harv. L. Rev. 1774, 1777 (2003).
[279] Board of Educ. v. Harris,
444 U.S. 130, 151 (1979); Debra P. v. Turlington, 644 F.2d 397, 407 (5th Cir.
1981). In GI Forum v. Texas Education Agency, 87 F. Supp. 2d 667, 675–78
(W.D. Tex. 2000), the Western District of Texas applied the lower
“reasonableness” standard, citing Wards Cove Packing Co. v. Atonio,
490 U.S. 642, 656–61 (1989). However, the Civil Rights Act of 1991 expressly
revived the “business necessity” standard and rejected this aspect
of Wards Cove. Pub. L. 102-166, § 105, 105 Stat. 1074 (codified
at 42 U.S.C. § 2000e-2(1991). Thus, GI Forum is questionable for
relying on Wards Cove and the other pre-1991 Civil Rights Act authority
on this point. See Elston v. Talladega County Bd. of Educ., 997 F.2d
1394, 1412 (11th Cir. 1993).
[280] This can be established
using the EEOC’s Four-Fifths Rule, or preferably, statistical techniques
such as the z-score statistic. Watson v. Fort Worth Bank and Trust, 487 U.S.
977, 995 n.3 (1988) (O’Connor, J., plurality opinion) (noting that the
Four-Fifths rule has “been criticized on technical grounds”); GI
Forum v. Texas Education Agency, 87 F. Supp. 2d 667, 675–78 (W.D. Tex.
2000); Groves v. Alabama State Bd. of Educ., 776 F. Supp. 1518, 1527 (M.D.
Ala. 1991); David H. Kaye & David A. Freedman, Reference Guide on Statistics, in Federal
Judicial Council, Reference Manual on Scientific Evidence 83, 109 (2000).
[281] Hopwood v. Texas, 236 F.3d
256, 266 (5th Cir. 2000).
[282] Brief of Amici Curiae Mexican
American Legal Defense and Educational Fund et al. at 14, Grutter v. Bollinger,
539 U.S. 306 (2003), reprinted in 14 Berkeley La Raza L.J. 1, 15 (2003).
[283] Richard Fry, Latinos in
Higher Education: Many Enroll, Too Few Graduate 6 (Sept. 2002), available
at http://www.pewhispanic.org/site/docs/pdf/latinosinhigher
education-sept5-02.pdf.
[284] 236 F.3d at 268.
[285] Id.
[286] Brief of Amici Curiae Mexican
American Legal Defense and Educational Fund et al. at 15, Grutter v. Bollinger,
539 U.S. 306 (2003), supra note 282 (“[R]egardless
of academic performance, Latinos may be further handicapped by the Law School’s
emphasis on automatically rewarding students who attended prestigious undergraduate
universities.”). See also Cheryl L. Harris, Critical Race Studies:
An Introduction, 49 UCLA L. Rev. 1215, 1224 n.19 (2002); William C. Kidder, The
Rise of the Testocracy: An Essay on the LSAT, Conventional Wisdom, and the
Dismantling of Diversity, 9 Tex. J. Women & L. 167, 176 (2000).
[287] Sturm & Guinier, supra note 223,
at 991.
[288] Hopwood, 236 F.3d
at 268. In fact, it appears that LSAC has not adjusted UGPAs on behalf of law
schools since the late-1970s. Allan Nairn & Associates, The Reign of ETS:
The Corporation that Makes Up Minds 247 (1980).
[289] Donald A. Rock & Franklin
R. Evans, The Effectiveness of Several Grade Adjustment Methods for Predicting
Law School Performance, in Law Sch. Admission Council, Reports of
LSAC Sponsored Research: Volume IV, 1978–1983 363, 444 (1984) (“The
relatively modest and unstable validity gains observed here, as well as the
desirability to treat all law school applicants fairly and equitably, argue
against the use of these types of grade adjustment techniques in the calculation
of prediction indices.”); Robert F. Boldt, Efficacy of Undergraduate
Grade Adjustment for Improving the Prediction of Law School Grades, in Law
Sch. Admission Council, Reports of LSAC Sponsored Research: Volume III, 1975–1977
(1978) (at best adjustments were only as good as not using them, and were often
worse than no adjustments); W. B. Schrader & Barbara Pitcher, Effect
of Differences in College Grading Standards on the Prediction of Law School
Grades, in Law Sch. Admission Council, Reports of LSAC Sponsored
Research: Volume II, 1970–1974, 433 (1976); Robert L. Linn, Grade
Adjustments for Prediction of Academic Performance, 3 J. Educ. Measurement
313 (1966); W. B. Schrader
& Barbara Pitcher, Adjusted Undergraduate Average Grades as Predictors
of Law School Performance, in Law Sch. Admission Council, Reports
of LSAC Sponsored Research: Volume I, 1949–1969 291 (1976). Significantly,
more recent studies were not conducted because LSAC basically gave up on this
line of research after it was consistently unfruitful.
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Harvard Latino Law Review - Volume 8, Spring 2005
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