“Top 10% Plans”: Diversity or Discrimination?

Yesterday I posted some remarks on Texas’s Top 10% Plan, which guarantees admission to Texas colleges, including flagship campuses, to all high school graduates in the top 10% of their class. This plan was adopted to preserve “diversity,” i.e., significant black and Hispanic access, after racial preferences were barred by the Fifth Circuit in Hopwood v. Texas. That posting elicited comments that are interesting enough, particularly one by Terry Pell of the Center for Individual Rights, that I decided to bring the discussion out of Comments and into full view. I do suggest, however, that you look at the comments under this post before proceeding.

Terry Pell argues, very powerfully, that Texas’s 10% plan is a thinly veiled pretext for granting racial preferences without appearing to do so. He is certainly right that the motivation behind the plan is to admit more minority students than would be admitted without it, and he may well be right in his stronger claim that it “was adopted and operated for the sole purpose of getting a certain racial mix of students.”

But the question is, does this purpose make the plan unconstitutional? That is, does adopting a policy that is race neutral on its face and in its implementation — awarding admission to the top 10% each graduating class at every school in the state — become invalid because it is “race conscious” in that purpose and effect is to admit more minorities than would otherwise be the case? Try this thought experiment: what if a state, claiming to be sincerely dedicated to the ideal of true diversity, decided to drop all admission requirements except a high school diploma, and accepted students by lottery. Since such a plan would admit more minorities than would otherwise be the case, should it be disallowed?

I think this is a hard question, and the answer does not seem to me as clear as it is to Pell, whose judgment and whose Center for Individual Rights I respect enormously. It is they, after all, who litigated the Hopwood case that put an end to racial preferences in the Fifth Circuit, and who is litigating the University of Michigan cases as well. I would like to think that I’m as committed to color-blindness and official neutrality as anyone, but I’m inclined to the view that it’s neither possible nor desirable to be totally unaware of the racial impact of various policies or, more to the point, I doubt that that sort of limited “race consciousness” invalidates every policy whose impact does not fall proportionately on each race.

If that were the case, no policy anywhere could pass muster. States could not pass a sales tax because such taxes hit poor people harder and more minorities are poor. Colleges couldn’t give basketball scholarships to the best players because more of them are black. There could be no luxury taxes because more whites than blacks own luxuries. Etc. To adopt such a view would be to embrace the very extreme kind of “disparate impact” theory (criticized here too often to link) that critics of racial preferences have so long and so persuasively attacked. I must be missing something, for it is hard for me to believe Terry Pell wants to do that.

In any event, as I’ve argued before in discussing disparate impact, intent would seem to be crucial here. In that regard this issue begins to resemble the redistricting debate, where the Supremes recently held that it is acceptable to redistrict on the basis of party affiliation even where it is known in advance that doing so will enhance the ability of blacks to elect black candidates while suggesting that if it could be proved that the racial motive was primary then such redistricting would be impermissible.

This is not to say that all such “Top X%” plans automatically are acceptable. Texas A&M, for example, at one point threatened to adopt a plan (did they adopt it? I haven’t checked) that would award preferences to the graduates of 250 selected high schools. Its argument was that those schools had not sent many students to A&M, a legitimate point, but its critics, especially the Center for Equal Opportunity, made a compelling case that those schools were selected primarily because of their heavy minority enrollment. If true, that plan should not pass muster.

It is also possible that the intent of even apparently safer percentage plans may be so overtly racial as to amount to intentional racial preference (which, of course, is precisely what Pell says about Texas). My favorite example of a state official stepping into this particular pile of … well, let’s say stepping into this particular trap comes from Jeb Bush’s Florida, which adopted a Top 20% plan (but with some preferences, such as minority scholarships, left in place). Since Florida’s plan would not produce the same number of minorities as affirmative action without some additional factors being taken into account, Brian Yablonski, a policy analyst in Gov. Bush’s office, stated that “[u]niversities will still have the option to use other criteria, and they will unintentionally correlate with race“! (“Fla. Minorities Plan: An Addition Challenge,” Washington Post, 12/22/1999, p. A3; emphasis added, but not as much as it deserves) This would seem to be stepping over the line.

In his Comment Terry Pell also argues that the Texas plan “admit[s] students at predominantly minority high schools according to a far less rigorous standard than is used for applicants from other schools.” Here is where I suspect I may be missing something, since I don’t know what he’s referring to. On its face the standard is the same for all students: graduating in the top 10% of their high school classes. Now it is certainly true that it is harder to be a top 10% student in some highly competitive, often heavily white suburban high schools than in less high-performing, inner city, heavily minority schools. As a result many white (and not a few minority) students with very high test scores will not receive automatic admission, while students from lower-achieving schools with lower test scores will be accepted. Thus the entering classes at the University of Texas at Austin may well be less academically qualified, i.e., have less academic “merit,” under the Top 10% plan, and in turn that may well mean that the plan is unappealing to all who favor academic merit over all other concerns. But being a bad idea does not mean it is unconstitutional.

But is this because of “a far less rigorous standard,” or the same standard leading to the acceptance of less qualified students from some schools, many of which are heavily minority, instead of more qualified students from other schools, many of which are heavily white? If there were some constitutional requirement for states to adopt only, or even primarily, academic merit as their admissions criteria then these 10% plans would fail. But is there such an obligation? I don’t think so, even though good sense and sound policy might seem to require it. (On this point, see the first comment to my other post, and my reply.)

Finally, let me say again, at the risk of being obsequious, how reluctant I am to disagree, even partially, with the views of someone so closely connected with the Center for Individual Rights. Moreover, I am in fact really not sure I’m persuaded by my own argument here. I can say that my wife just read it, and she’s not at all persuaded