Capitalizing on Segregation, Pretending Neutrality:College Admissions and the Texas Top 10% LawMarta TiendaSunny NiuPrinceton UniversityApproximate Word Count: 8,138This research was supported by grants from the Ford, Mellon and Hewlett Foundations.We gratefully acknowledge institutional support from the Office of Population Research.December, 2004

AbstractIn response to the judicial ban on the use of race-sensitive admissions, the 75th Texaslegislature passed H.B. 588, which guarantees admission to any Texas public college oruniversity for all seniors graduating in the top decile of their class. We show that highlevels of residential and school segregation facilitates minority enrollment at selectivepublic institutions under the uniform admission law because black and Hispanic studentswho rank at the top of their class disproportionately hail from minority-dominant schools.However, qualifying minority students’ lower likelihood of college enrollment at theflagships reflects concentrated disadvantage rather than segregation per se.

Capitalizing on Segregation, Pretending Neutrality:College Admissions and the Texas Top 10% LawI.IntroductionBefore the historic Brown decision,1 the legal and policy debate about race andethnic educational inequality revolved around the desirability and necessity ofintegration, but since has shifted to the socially acceptable methods for achievingintegration and setting institutional goals. Following the Civil Rights movement,affirmative action was proposed as a strategy that goes beyond the simple prohibition ofdisparate treatment until Allan Bakke challenged the use of race preferences as aviolation of the equal protection clause of the 14th Amendment.2 Although the SupremeCourt ruled in Bakke’s favor, the 1978 opinion includes language that permits institutionsof higher education to consider race and ethnicity in order to garner the educationalbenefits that derive from a diverse student body.This second landmark opinion set the stage for the contemporary debate about thelegality and desirability of race-sensitive criteria in college admissions. Until anotherspate of legal challenges beginning in the mid-1990s, selective colleges and universitiesacross the nation interpreted Bakke as legal license to consider race and ethnicity, amonga myriad of other factors, in their admissions decisions. Two major victories wereregistered in 1996 against affirmative action in college admissions: California voters1Brown v. Board of Education, 347 U.S. 483 (1954). Méndez v. Westminister School District, 161 F.2d774 9th Cir. (1947) decision actually predated the Brown decision and served as a testing ground for manyof the arguments and actors involved in the widely celebrated, historic Brown decision (Ferg-Cadima,2004.) “The precedent-setting Méndez case, which included work by Los Angeles attorney David Marcus,moved Earl Warren, as California’s governor in 1947, to push a broader repeal of segregation laws throughthe legislature after the ruling” (Jennings, 2004: 26). Several years later, Mr. Warren would write theBrown decision.2University of California Regents v. Bakke, 438 U.S. 265 (1978)1

passed Proposition 209, which outlawed use of race-sensitive college admissions and theHopwood decision achieved the same end in Texas.3 The following year, enrollment offirst-time minority freshmen plummeted at the University of Texas at Austin (UT) andTexas A&M University at College Station (A&M). Specifically, Hispanic freshmanenrollment at UT fell from 14.7 percent in 1995 to 12.6 percent in 1997, and blackenrollment fell from 4.9 to 2.7 percent of the freshman class. At the College StationA&M campus, Hispanic freshman enrollment dropped from 14.7 to 9.7 percent and blackrepresentation fell to under 3 percent, from 4.7 percent before the Hopwood decision.4These declines were attributed to the Hopwood decision, but uncertainty and confusionabout the implications of the ruling may have also contributed to the declines in minorityenrollment by deterring students from applying.5In response to the judicial ban on affirmative action, the 75th Texas legislaturepassed H.B. 588, popularly known as the “top ten percent law,” which guarantees collegeadmission to seniors who graduate in the top 10 percent of their class. Signed into law onMay 20, 1997, H.B. 588 has become as controversial as the practice of race-sensitiveadmissions it replaced. The judicial ban on affirmative action applied to both public andprivate post-secondary institutions, but the admission guarantee for top 10% graduatesonly applied to public institutions. Touted as a race-neutral alternative to affirmativeaction, the uniform admission system put in place by H.B.588 guarantees admission to all3Hopwood v. University of Texas, 78 F.3d 932 (1996).UT at Austin, Office of Institutional Research, Statistical Handbook, 2003-2004.Texas A&M University, Office of Institutional Studies & Planning, Enrollment Profile, 2003.5Although the Hopwood decision has been interpreted to apply to undergraduate and post-graduateadmissions, financial aid awards, and targeted retention programs, H.B. 588 only applies to undergraduateadmissions. The actual opinion never mentions financial aid, but then Attorney General Dan Moralesbroadened the interpretation of the opinion to include economic aid.42

students who graduate in the top ten percent of their class a spot at any public institutionof their choice. Qualifying students must complete the university’s application (includingessays) and a college entrance exam (either SAT or ACT), although test scores are notconsidered in the admission decision or course placement.6 In Texas class rank isreported by the students’ high schools, not by the University Systems, as in California.Eligible rank can be attained either at the end of the junior year, in the fall of the senioryear, or at the end of the senior year; moreover, the admission guarantee is good for twoyears following graduation provided students do not register at another college (Leichtand Sullivan, 2000).President Faulkner credited UT’s initial success in restoring institutional diversityto H.B.588. Ironically, the success of the top 10% law in restoring ethno-racial diversityat the Texas public flagships requires segregation, namely the pernicious arrangementsthat the historic Brown v. Board of Education ruling sought to dismantle in order toequalize educational opportunities (Frankenberg, Lee, & Orfield, 2003; Ferg-Cadima,2004). Although other studies (U.S. Commission on Civil Rights, 2002; Guinier, 2001;Tienda, 2001) have acknowledged that percent plans require segregation to proxy foraffirmative action, and although there is mounting evidence that Hispanic schoolsegregation is rising (Orfield and Lee, 2004; Reardon and Yun, 2003, 2001; Reardon, etal., 2000), no study has directly examined how much H.B.588 capitalized on segregationto restore ethno-racial diversity in college admissions and enrollment.As an alternative to affirmative action, H.B.588 raises practical questions thatbear on the potential of this allegedly race-neutral solution to diversify Texas public6SAT I and ACT tests are not used in course placement decisions, but SAT II and other tests may be soused. E-mail, Gary Lavergne, 16 January 2003.3

college campuses. First, how much does the uniform admission system requiresegregation in order to succeed in diversifying the applicant and enrollee pool? In otherwords, what is the likelihood that minorities who attend integrated schools—the idealsought by the Brown decision—graduate in the top decile of their class? Second, doeseligibility for automatic admission equalize the odds students from minority-dominanthigh schools actually enroll at the public institutions with competitive admissions?Answers to both questions are crucial for answering whether and under what conditions aseemingly race-neutral uniform admission system can diversify campuses of selectivecolleges and universities.In what follows, we address both questions using a unique survey designed togauge how the uniform admission system influenced college-going behavior ofunderrepresented groups. Section II describes changes in the ethno-racial composition ofhigh school graduates and characterizes the level of residential and high schoolsegregation in the state. To motivate the empirical analyses of race and ethnic differencesin college enrollment behavior, Section III considers how minority representation amongtop 10% graduates would differ if Texas high schools were less segregated. In Section IVwe estimate the likelihood of post-secondary enrollment for a cohort of Texas highschool seniors who attended predominantly minority versus integrated high schools.Although touted as a race-neutral admissions plan, empirical results indicate thatthe success of H.B.588 in restoring diversity to the public flagships resulted because ofpervasive race and ethnic segregation in Texas public high schools. We find that (1)black and Hispanic students who qualify for the automatic admission guaranteedisproportionately attend schools where minority students comprise the majority of the4

student body; (2) that students who attend predominantly white schools are significantlymore likely, and those who attend predominantly minority schools are significantly lesslikely to enroll at selective postsecondary institutions; and (3) that the lower likelihood ofHispanic college enrollment among those who attend segregated schools derives fromtheir concentrated disadvantage rather than segregation per se.The final section considers the implications of these findings in light of thechanging demography of Texas’s school-age population, evidence that school segregationis on the rise in Texas and other key immigrant receiving states (e.g., California and NewYork) where non-Hispanic white youth are becoming a numerical minority, and thegrowing controversy about the viability of percent plans in general, and the viability ofpercent plans, and H.B.588 in particular, as “race-neutral” alternatives to affirmativeaction in college admissions.II. Demographic Diversity, School Segregation and College AccessFollowing the landmark 2003 Grutter decision,7 which permits narrowly tailoredconsideration of race and ethnicity in college admissions decisions in the context of fullfile review, the controversy over college admissions has escalated in Texas (see Arnone,2004; Watson & Levin, 2004; Glater, 2004; Martinez & Martinez, 2004).8 In part this isbecause the public flagships, especially UT, have been saturated with students admittedunder the admissions guarantee, and partly because demand for access to the mostcompetitive institutions has been rising (Cortes, et al., 2004). Even though institutions7Grutter v. Bollinger, 539 U.S. 306, 328 (2003).That President Faulkner announced that UT would resume consideration of race and Hispanic origin, aspermitted by law, in their admission decisions (University of Texas Office of Public Affairs, 2003), butPresident Gates indicated that A&M would not do so (Gates, 2003) dramatizes this controversy.85

can consider minority status in the context of full file review, H.B.588 remains in forceuntil rescinded.9The college admissions debate gains added significance against the populationdiversification of the state. Census 2000 showed that only 52 percent of the State’spopulation was Anglo (i.e., nonHispanic white), but among the college-age populationAnglos comprise only 44 percent of the total. Murdock and his associates (2003) projectthat if current trends continue, in this decade college-age Hispanics will outnumber theirAnglo counterparts. College admissibility presupposes completion of secondary school,which remains problematic for minority youth, and Hispanics in particular (Schneider, etal., 2004). Texas’ rapid demographic growth and associated changes in age structuretranslated to a 42 percent increase in the number of high school graduates during the1990’s (Cortes, et al., 2004).Paralleling the diversification of the State, the composition of high schoolgraduates changed. In 1992, one in four Texas high school graduates was Hispanic, butthis share rose to one in three a decade later (TEA, 1992; 2002). Concomitantly, the whiteshare of high school graduates fell from 57 to 50 percent of the total, while the black andAsian shares of high school graduates also inched up. That post-secondary enrollmentexpanded only 16 percent during this period signifies heightened competition for accessto higher education in Texas, particularly at the main campus of the UT and A&Msystems.9The legislation explicitly notes that a full year notice is required before any changes in admissionsguidelines go into effect. Therefore, if H.B.588 is rescinded or modified, the original law will remain inforce for a full year. As of this writing, and despite calls to rescind or modify the legislation, it remains inforce. In the interim, UT announced that it would resume consideration of race and ethnicity in admissiondecisions but A&M has explicitly refused to do so, instead focusing on intensified outreach and increasedscholarship support.6

Such profound demographic changes certainly can facilitate the diversification ofcollege campuses, but the success of H.B.588 as an alternative to use of race-sensitiveadmissions criteria depends on the likelihood that minority students graduate in the topdecile of their class. That class rank in Texas is determined by high schools rather thanpost-secondary institutions makes the issue of school segregation particularly salient forassessing the viability of the top 10% law to promote college campus diversity.10Although black and Hispanic students are more likely to graduate in the top decile oftheir class in minority-dominated high schools than in high schools where whitescomprise the majority or plurality, but there is no direct correspondence between agroups’ proportio