Patrick McGee

Texas colleges await affirmative-action ruling
By Patrick McGee
Fort Worth Star-Telegram
Monday, June 23, 2003

A decision by the U.S. Supreme Court could let public universities in Texas again use race as a factor in admissions or could turn the 10 percent rule into a model program for getting minorities into college.

The landmark affirmative-action case before the U.S. Supreme Court centers on college-admission policies in Michigan, but it will almost surely have important repercussions for Texas, experts said.

The decision, expected by Thursday, could free public universities in Texas from a 7-year-old appeals-court decision that has kept them from using race as a factor in admissions, or it could suddenly turn the state’s 10 percent rule into a model program for getting minorities into college.

The case before the Supreme Court challenges the University of Michigan’s practice of favorably considering minorities’ race among other factors in their application. The court’s decision will set the boundaries for public universities’ admission policies nationwide.

Since fall 1998, the 10 percent rule has guaranteed that Texas high school students graduating in the top 10 percent of their classes will be accepted at any Texas public university.

“If the Supreme Court writes an opinion like Hopwood, there’s going to be a lot of university administrators around the country coming to Austin to learn about what we’re doing,” said Doug Laycock, a law professor at the University of Texas at Austin.

Laycock was referring to Hopwood v. Texas, in which the 5th Circuit Court of Appeals in New Orleans ruled in 1996 that race may not be used as a factor in admissions. The U.S. Supreme Court declined to review the decision.

John Attanasio, the law dean and Atwell professor of constitutional law at Southern Methodist University in Dallas, said people who want a return of some form of affirmative action to college admissions in Texas will probably find something hopeful in the Supreme Court decision.

“It is difficult to see how it could be more stringent with regard to affirmative action than Hopwood is,” he said. “Supreme Court precedent in opinion areas suggests it will not be more stringent than Hopwood.”

Samuel Issacharoff, a law professor at Columbia University in New York, said university officials in Texas have opposed the 1996 decision partly because it puts them at a disadvantage relative to other institutions nationwide that can use race as a factor.

“They repeatedly took the position that there had to be a national resolution of this,” Issacharoff said. “There’s a playing-field problem.”

Wesley Cochran, a law professor and chairman of the admissions committee at Texas Tech University School of Law in Lubbock, said that even though admissions officials in Texas may not consider race, they try to use factors such as applicants’ ability to speak another language and their socioeconomic backgrounds to create diverse student bodies.

But he said Texas still struggles to compete with state universities that can consider race during admissions.

“They can actively recruit for a more racially and ethnically diverse class than we can,” Cochran said. “That’s the difference we have. Not all the state schools are playing by the same rules.”

UT-Austin President Larry Faulkner said he hopes the Supreme Court’s decision will clarify key issues.

“I could imagine a court ruling that would be only addressing admission and leaving financial aid [awarded by race] unresolved and up for debate for quite a while, and yet that is the most important question,” he said.

Faulkner said he believes that higher-education officials are getting minorities enrolled at the undergraduate level without considering race, but he wants a restoration of affirmative action in Texas to get more minorities into professional and graduate schools.

“The leadership of most universities in this country feels keenly the responsibility to educate the leadership of the future, and that leadership is going to be coming from all population sectors of the country,” he said. “It’s very important that we educate students from all sectors in a fairly representative way. That’s what’s at stake here.”

Texas A&M University System Chancellor Howard Graves said in a statement that he hopes “that the Supreme Court ruling would be definitive of the law so that Texas would be on equal basis with all of the other states.”

Even if the court’s decision does that, Seppy Basili said he believes that it could lead to more litigation.

“I think what you’re going to see is the next generation of lawsuits,” said Basili, vice president of Kaplan Inc., an education-service company best known for test-preparation programs.

He said he expects people to start challenging the 10 percent rule since they see it as using “race as a proxy” because so many high schools are, in effect, segregated.

Higher-education officials differ over whether Hopwood applies to private universities in Texas. Cochran and Ray Brown, the admissions dean at Texas Christian University in Fort Worth, said the decision does not apply to private institutions.

But others disagree.

“There’s not a good, clear answer,” said Carol McDonald, president of the Austin-based Independent Colleges and Universities of Texas. “Generally speaking, private institutions in Texas consider themselves to be bound by Hopwood.”

One of those is Rice University in Houston.

Terry Shepard, Rice’s vice president for public affairs, said Rice, widely seen as the most selective private university in Texas, used race as a factor before Hopwood and hopes the Supreme Court will allow its use again.

“We believe that diversity is important in several ways. We believe students learn from one another,” he said. “There are very few places in society where the races mix as completely as they do at colleges and universities.”

Hans Gatterdam, UT-Arlington admissions director, said the Supreme Court’s decision will not affect universities like his but only the flagships, UT-Austin and Texas A&M University in College Station, where admission is much more competitive than at other colleges in those systems.

“We have a very nice mix of students coming in our whole student body. It’s very close to the national breakouts of the national groups,” Gatterdam said. For example, UT-Arlington’s fall 2002 enrollment for African-Americans was 12.5 percent, and African-Americans make up 12.3 percent of the U.S. population.

Cassandra Berry, associate vice president for equity and diversity at the University of North Texas at Denton, said the Hopwood decision did not diminish UNT’s minority enrollment.

She said the university considered other factors, such as socioeconomic background, and recruited in high schools where applications to UNT were low.

“Regardless of what law is being utilized to make the decision, the institution has to have a strong commitment to diversity,” she said. “If the institution is sincere about the commitment, they will still have a diverse population.”