Since the 1970s, colleges have used race-based affirmative action programs to increase admission of black and Hispanic students. Opponents of these controversial programs contend that they unconstitutionally discriminate. The Supreme Court has decided four cases concerning these programs. Eight states have banned them.
There’s a better way to cultivate a diverse student body: Simply adopt admissions policies like the Texas Top Ten Percent Law.
In 1996, a court decision required the University of Texas to end its race-based affirmative action program. In 1997, Texas enacted the Top Ten Percent Law. This Texas law entitled all Texas students whose grades ranked in the top ten percent of their graduating classes to admission to UT. In 1998, UT began admitting students under the Top Ten Percent Law and under a holistic, race-neutral process that gave preference to students from low-income families, from single-parent households, and from homes in which a language other than English was customarily spoken, without considering race.
The results were impressive. By 2004, the last year that UT admitted students under the combination of the Top Ten Percent Law and the holistic process, and without a race-based affirmative action program, UT’s entering class had higher percentages of black, Hispanic, and Asian-American students than it had in 1996, when it had used a race-based affirmative action program instead.
An admissions policy like the Texas Top Ten Percent Law thus provides a completely transparent way to increase diversity without making race-based admissions decisions.
Then in 2005, UT again changed its admissions process. It resumed the use of a race-based admissions program, while also continuing to admit students under the Top Ten Percent Law.
Shockingly, UT made this change because, in UT’s view, black and Hispanic students admitted under the Top Ten Percent Law are — and this was actually their rationale — disproportionately poor families and from high schools whose students are mostly black or Hispanic. In UT’s words, it needed a race-based admissions program to admit “[t]he African-American or Hispanic child of successful professionals in Dallas.”
The real lesson from UT’s argument here is that the Top Ten Percent Law did far more than a race-based admissions policy to achieve the original goal of affirmative action: to help disadvantaged students.
What’s more, the non-race based approach led to better educational outcomes at UT. Black and Hispanic students admitted under the Top Ten Percent Law achieved higher college grades than black and Hispanic students who had been admitted under the race-based admissions policy.
An admissions policy like the Top Ten Percent Law thus provides a way to increase the quality as well as the quantity of black and Hispanic students.
A race-based admissions policy requires a college to decide who is eligible for preferential treatment based on race. It raises a lot of thorny issues. Is a student with one black or Hispanic parent and one white parent entitled to the same preference as a student whose parents are both black or Hispanic? Should a black African immigrant student receive the same preferences as American-born black students?
These are questions that are normally asked only in a Jim Crow or apartheid society. They are repugnant to American values. And in addition to all of its other benefits, an admissions policy like the Top Ten Percent Law avoids all of these questions. And because of the transparency of this merit-based system, students also know that they and their peers have been admitted based on their achievements rather than based on their race.
In sum, there’s a better way to increase diversity in college admissions: Adopt admissions policies like the Texas Top Ten Percent Law.
David M. Simon is a lawyer in Chicago. The views expressed in this article are his own and not those of the law firm with which he is affiliated. For more, please see www.dmswritings.com.
