The Texas flag flies on the south lawn of the University of Texas at Austin campus. After the U.S. Supreme Court on Thursday struck down the consideration of race in college admissions, some experts say Texas’ Top 10% Plan could become a new model for other states | Photo Credit:

Now that the U.S. Supreme Court has ruled the practice unconstitutional, admissions experts say other states could look to Texas’ Top 10% Plan as a way to diversify their student bodies.

By Kate McGee

More than 20 years ago, when the 5th U.S. Circuit Court of Appeals banned the use of affirmative action in college admissions in its jurisdiction, those trying to diversify Texas public universities panicked, fearing that the ruling would undo years of modest progress they had made increasing the number of students of color at the state’s top public universities.

The impact of the law was immediate. At the University of Texas at Austin, Hispanic enrollment dropped by 15% in one year, while Black enrollment dropped by 25%.

To curb that decline, Texas lawmakers created a “race-neutral” program known as The Top 10% Plan, aimed at giving a broader group of Texas students opportunities to attend state universities by automatically admitting those who graduated in the top 10% of their high school classes.

The policy exploited the existing racial and ethnic segregation of Texas public high schools, allowing universities to accept students from different areas of the state and a wider array of schools without explicitly considering students’ race. Ever since, the plan has faced criticism from suburban parents, state lawmakers and university leaders who believe it makes it harder for students in well-resourced schools to get admitted to the state’s flagship universities.

Researchers found the plan never succeeded in regaining the racial diversity lost after the 1996 ban on race-conscious admissions at UT-Austin or Texas A&M University’s main campus in College Station, nor has it meaningfully changed which high schools are sending students to those schools. But supporters say it helps provide equal access to the state’s top schools, though they say it is not a standalone solution to increase diversity among the student bodies.

Now, two decades later, the U.S. Supreme Court ruled Thursday that the use of race in college admissions at two universities, Harvard University and the University of North Carolina at Chapel Hill, violates the 14th Amendment’s equal protection clause, effectively ending race-based considerations in college admissions nationwide.

Following that ruling, admissions experts say percentage plans, including Texas’, could get more attention from other states despite the questionable diversity gains by the Texas plan.

“[T]he effectiveness of percentage plans to make a large, aggregate change in enrollment demographics remains an unsettled issue,” according to an upcoming paper on how state policymakers can respond to the Supreme Court’s ruling. Its authors are James Murphy, deputy director of higher education policy at Education Reform Now, a national education nonprofit, and researcher Virginia Carr Schneider.

“However, percentage plans can have a significant impact on the opportunities of students of color, which, given the lack of evidence for negative effects of percentage plans, means they could still provide benefits, making their implementation worthwhile.”

A plan is born

Texas’ Top 10% Plan was developed in 1997 with the help of Hispanic activists and lawmakers after the 5th U.S. Circuit Court of Appeals ruling that banned the use of race in admissions in the three states within its jurisdiction, including Texas.

The late state Rep. Irma Rangel, a Democrat from Kingsville, filed a bill that required each public university in the state to automatically admit any students who graduated in the top 10% of their graduating classes.

Critics, including many conservative lawmakers, thought the rule was unfair to white students from well-resourced high schools who might have a harder time reaching the top 10% of their classes. They were also concerned it would send more underprepared students to Texas universities, particularly the flagships, UT-Austin and Texas A&M.

Rangel pointed out that rural high schools struggled to send white students to UT-Austin, as well as students of color, which helped her cobble together a coalition of Black and Hispanic liberals and rural conservatives to narrowly pass the measure. Then-Gov. George W. Bush signed it into law.

While California and Florida also have percentage plans, Texas’ plan is unique because it allows students in the top 10% of their graduating class to choose which school to attend, rather than assigning them a school.

Six years later, in 2003, the U.S. Supreme Court nullified the 5th Circuit’s decision when it upheld the use of affirmative action in college admissions in a case involving the University of Michigan. That allowed Texas universities to consider race again, but The Top 10% Plan also remained.

Eventually, state lawmakers grew concerned that the plan created unintended consequences for UT-Austin, which was accepting more and more of its freshman class through The Top 10% Plan, which meant that there was less space for other students, including out-of-state students or student athletes.

Ultimately, the state Legislature created a carve-out for UT-Austin in 2009, specifying that 75% of each freshman class must be admitted under The Top 10% Plan while the remaining 25% would be admitted through a holistic review process that considers factors such as grade point average, extracurriculars, personal essays and race. That change means the university had to shrink the number of students automatically admitted. Last year, UT-Austin automatically accepted students in the top 6% of their graduating class.

This year, state lawmakers removed a provision in state law that would have forced UT-Austin to admit all students under The Top 10% Plan if a court decision banned the use of race in college admissions. With Thursday’s ruling, UT-Austin can continue to enroll 75% of students through The Top 10% Plan, but it can no longer consider race when accepting the other 25% of the freshman class.

Results so far

When the Top 10% law initially went into effect, the results were positive. Students enrolled under the law had a higher freshman year grade point average than other students, and the number of Black students increased by 44% and the number of Hispanic students grew by nearly 10% at state universities.

But over time, as more data became available to review, researchers started to find that not much had changed in terms of who was enrolling at the state’s flagships.

In 2020, two researchers looked at 18 years of data to see whether the law increased access to Texas’ most selective public universities, UT-Austin and Texas A&M.

They found a slight increase in the number of non-suburban high schools that sent students to those schools, but ultimately determined The Top 10% Plan did not meaningfully change which high schools sent students to UT-Austin or Texas A&M prior to the law’s implementation. The researchers also found that there continued to be more high-achieving students from well-resourced high schools enrolling at the flagships compared with students from other high schools.

Still, supporters argue that scaling back or scrapping the plan would make it harder to create a more diverse student body. According to a data analysis by the Intercultural Development Research Association, the vast majority of Black, Hispanic and Asian students at UT-Austin are accepted through The Top 10% Plan, while the university’s holistic review process disproportionately favors white students.

Data from the Texas Higher Education Coordinating Board also shows The Top 10% Plan hasn’t helped UT-Austin or Texas A&M reflect the demographics of the state’s 18- to 22-year-olds.

In 2009, 51% of UT-Austin freshmen were white and 23% were Hispanic, while the state’s 18- to 22-year-old population was 41% white and 41% Hispanic. By 2020, that age group was 32% white and 48% Hispanic statewide; UT-Austin’s freshman class was 32% white and 31% Hispanic that year.

At Texas A&M, the gaps were even wider: 55% of the 2020 freshman class was white while 26% were Hispanic.

Meanwhile, Black students made up 7% of the freshman class at UT-Austin and 3% of Texas A&M’s freshman class in 2020 — significantly lower than their 13% share of the 18-22 population.

Stella Flores, a higher education and public policy expert at UT-Austin, said that Texas’ percentage plan is not a silver bullet to achieving more diverse student bodies.

“But it doesn’t mean it can’t be amended or supported with more funding, better recruitment and better outreach so that it can work,” she said.

Higher education policy experts say that for percentage plans to work, schools also must recruit students from underrepresented groups and create a welcoming environment for them. That could be more difficult in Texas after state lawmakers passed a bill this year banning diversity, equity and inclusion offices at public universities, said Dominique Baker, a higher education policy professor at Southern Methodist University.

“Some might say the exact office that is supposed to spearhead brainstorming about this and focusing on this has now been declared illegal in the state of Texas,” Baker said.

Following the Supreme Court’s ruling, researchers also say the Texas model might not work in other states where racial segregation is not as extreme.

“Indeed, most evidence confirms that the amount of segregation in states that use Top X% Plans is not enough to produce the levels of racial and ethnic diversity achieved under race-based admissions policies,” researchers Kalena Cortes at Texas A&M and Daniel Klasik at the University of North Carolina at Chapel Hill wrote in a 2020 paper on The Top 10% Plan.

And some higher education policy experts say it’s likely The Top 10% Plan could be the next focus of debate in Texas college admissions. A 2017 bill that died in the Legislature, for example, would have let UT-Austin accept only 30% of its students through the plan rather than 70%.

“That’s coming,” said Murphy with EdReform. “The attacks will come for percentage plans, inevitably.”

Emily Berman, a constitutional law expert at the University of Houston Law Center, said it’s possible that those against the use of race in admissions could file lawsuits accusing universities of using “race-neutral” policies for the specific purpose of creating racial diversity.

“It wouldn’t surprise me if [opponents] come back and say, even race neutral mechanisms shouldn’t be allowed if their purpose is to achieve more racially diverse student bodies,” she said, adding that she thinks this argument could be made against Texas’ Top 10% Plan.