The Texas ten percent plan

Harvard Civil Rights-Civil Liberties Law Review

Volumn 34, Issue 1, 1999, Pages 244-278

  Holley, Danielle ^a,b   Spencer, Delia ^c,d  

^a YALE UNIVERSITY   (United States)

^b HARVARD LAW SCHOOL   (United States)

^c Southern District of Texas ^*  (United States)

^d GEORGETOWN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 7044269627     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (272)

1. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert, denied, 518 U.S. 1033 (1996).
2. See Hearings on H.R. 588 Before the House Higher Educ. Comm., 75th Legis. (Tex. 1997) [hereinafter Committee Hearings] (statement of Irma Rangel, state representative, House District 35).
3. See TEX. EDUC. CODE ANN. § 51.803(a) (West 1998). Although the universities require students to take either the SAT or the ACT and to report their scores to the university to which they are applying, the test scores are not considered when making admissions decisions; the scores are used for diagnostic purposes only. See Telephone Interview with Augustin Garza, Deputy Director of Admissions, University of Texas at Austin (Oct. 1997) [hereinafter October Garza Interview]; Telephone Interview with Ricardo Gonzales, Jr., Recruitment Coordinator for Texas A&M University (Oct. 1997). The bill provides that a university may require students identified as needing additional preparation for collegelevel work to attend enrichment courses before enrolling. See Tex. Educ. Code Ann. § 51.803(b) (West 1998). The Universities use the standardized test scores to determine which students will fall into this category. See October Garza Interview, supra; Telephone Interview with Ricardo Gonzales, Jr., supra. During the late 1980s, University of Texas at Austin implemented a plan which granted automatic admission to top ten percenters. See Telephone Interview with Augustin Garza, Deputy Director of Admissions, University of Texas at Austin (Dec. 3, 1998). In an effort to cut enrollment, which had reached 50,245 by 1989, UT-Austin abandoned the plan in the early 1990s. See id. Based on a seven-year average of top ten percenters' behavior patterns, UT-Austin administrators believe that the Ten Percent Plan will not immediately result in an overflow of applicants and enrollees. See id.
4. See TEX. EDUC. CODE ANN. § 51.803(a) (West 1998). Although the universities require students to take either the SAT or the ACT and to report their scores to the university to which they are applying, the test scores are not considered when making admissions decisions; the scores are used for diagnostic purposes only. See Telephone Interview with Augustin Garza, Deputy Director of Admissions, University of Texas at Austin (Oct. 1997) [hereinafter October Garza Interview]; Telephone Interview with Ricardo Gonzales, Jr., Recruitment Coordinator for Texas A&M University (Oct. 1997). The bill provides that a university may require students identified as needing additional preparation for collegelevel work to attend enrichment courses before enrolling. See Tex. Educ. Code Ann. § 51.803(b) (West 1998). The Universities use the standardized test scores to determine which students will fall into this category. See October Garza Interview, supra; Telephone Interview with Ricardo Gonzales, Jr., supra. During the late 1980s, University of Texas at Austin implemented a plan which granted automatic admission to top ten percenters. See Telephone Interview with Augustin Garza, Deputy Director of Admissions, University of Texas at Austin (Dec. 3, 1998). In an effort to cut enrollment, which had reached 50,245 by 1989, UT-Austin abandoned the plan in the early 1990s. See id. Based on a seven-year average of top ten percenters' behavior patterns, UT-Austin administrators believe that the Ten Percent Plan will not immediately result in an overflow of applicants and enrollees. See id.
5. See infra Part II.
6. See Committee Hearings, supra note 2 (statement of Irma Rangel, State Representative, House District 35).
7. See infra Part III. This Article reviews the first year of the Plan's implementation using data from only UT-Austin and A&M. A longitudinal study is necessary to determine the long-term effectiveness of the Plan.
8. Presently, the universities' main method of identifying top ten percenters is by tracking students who self identify on a standardized test. See October Garza Interview, supra note 3.
9. A&M and UT-Austin both adopted new recruitment measures during the Plan's first year, but the fact that minority enrollment did not change significantly indicates that additional recruitment policy development is necessary to inform minority students about the Plan's requirements.
10. See Hopwood v. Texas, 78 F.3d 922, 932 (5th Cir. 1996), cert, denied, 518 U.S. 1033 (1996).
11. See Hopwood v. Texas, 861 F. Supp. 551, 554 (W.D. Tex. 1994).
12. See id. at 563.
13. See DIVISION OF ADMIN. AND PUB. AFFAIRS, UNIVERSITY OF TEX. AT AUSTIN, FACTS 1996-1997, THE UNIVERSITY OF TEXAS AT AUSTIN (1997) [hereinafter FACTS 1996-1997]; Dave Montgomery, Proud Day in Aggieland; Bush Arrives to Dedicate His Presidential Library, FORT WORTH STAR-TELEGRAM, Nov. 6, 1997, at 1.
14. See DIVISION OF ADMIN. AND PUB. AFFAIRS, UNIVERSITY OF TEX. AT AUSTIN, FACTS 1996-1997, THE UNIVERSITY OF TEXAS AT AUSTIN (1997) [hereinafter FACTS 1996-1997]; Dave Montgomery, Proud Day in Aggieland; Bush Arrives to Dedicate His Presidential Library, FORT WORTH STAR-TELEGRAM, Nov. 6, 1997, at 1.
15. Although the Hispanic population in Texas comprises mostly Mexican Americans and the debates concerning H.R. 588 indicate that the Plan was targeted at Mexican Americans and African Americans specifically, the term Hispanic will be used throughout the Article. Statistics from the universities' admissions offices refer to Hispanics and not Mexican Americans, indicating that their figures include other students of Latin descent.
16. See Memorandum from Marcos Portales, Department of English, Texas A&M University, to State Senator Gonzalo Barrientos, D-Austin-3 (Mar. 7, 1997) (on file with authors).
17. See Hopwood, 861 F. Supp. at 551, 555 (W.D. Tex. 1994).
18. Id. at 556. See also Victor Goode, The Texas Plan: Public Law School Education, Title VI, and the Settlement Monitoring Process, 12 S.U. L. Rev. 157, 171 (1986).
19. See Hopwood, 861 F.Supp. at 556.
20. Id.
21. See id.
22. See id.
23. See id.
24. See id. at 557.
25. Id.
26. See TEXAS PLAN ADVISORY COMM., TEXAS HIGHER EDUC. COORDINATING BD., ACCESS AND EQUITY 2000: THE TEXAS EDUCATIONAL OPPORTUNITY PLAN FOR PUBLIC HIGHER EDUCATION 2 (1994). In light of the Fifth Circuit's ruling concerning diversitybased affirmative action, the 1994 Texas Plan likely has no legal authority.
27. See id. at 1-3.
28. See Hopwood, 861 F.Supp. at 557.
29. See id. at 553.
30. See id.
31. See id. at 578, 583-84.
32. Id. at 861 F.Supp. at 572.
33. See id. at 578-79.
34. See Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert, denied, 518 U.S. 1033 (1996). There has been argument about whether Hopwood ended all affirmative action programs in Texas public universities. See, e.g., Courtney A. Hueser-Stubbs, Hopwood v. Texas: Ramifications and Options for University Affirmative Action Programs, 65 UMKC L. REV. 143, 151 (1996) (discussing flurry of different opinions about what Hopwood meant for Texas universities). Judge Wiener's concurrence argued that the only issue decided was the legality of the affirmative action program at the University of Texas Law School in 1992. See Hopwood, 78 F.3d at 967 (Wiener, J., concurring). However, the Fifth Circuit's decision clearly places any use of race under strict scrutiny and proclaims that diversity is not a compelling rationale. See id. at 944. Therefore, only affirmative action plans that are remedial in nature will be sanctioned by the Fifth Circuit. See id. at 952. See infra Part III for greater detail.
35. Hopwood, 78 F.3d at 944.
36. See id. at 950-51.
37. See Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989).
38. See Hopwood, 78 F.3d at 948.
39. See id. at 949.
40. See id. at 950 (citing Croson, 488 U.S. at 499).
41. See id.
42. See id. at 952.
43. See id.
44. See id. at 954.
45. See id.
46. See id.
47. See id. The Fifth Circuit cited Shaw v. Reno, 509 U.S. 630 (1993), in which the Supreme Court invalidated the method the state of North Carolina employed to comply with a desegregation order.
48. See Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989).
49. See Adarand Contractors v. Pena, 515 U.S. 200, 235 (1995).
50. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
51. See Hopwood, 78 F.3d at 944. The Fifth Circuit failed to acknowledge that some of the Justices, including Justice Brennan, did not accept the Bakke plurality opinion because they felt that programs containing benign racial classification should be subject to a lower level of scrutiny than that articulated in Justice Powell's opinion. See Bakke, 438 U.S. at 359 (Brennan, Blackmun, Marshall, & White, JJ., concurring in the judgment in part and dissenting in part).
52. See Sweatt v. Painter, 339 U.S. 629 (1950).
53. See Hopwood, 78 F.3d at 952.
54. See id. at 953.
55. Id. at 952.
56. See Sylvia Moreno, Adjusting Their Course: Ruling has Texas Schools Revising Policies, Programs Meant for Minorities, THE DALLAS MORNING NEWS, Aug. 7, 1997, at 1A.
57. See id.
58. See id.
59. The information in Table 1 comes from Office of Institutional Studies, University of Texas at Austin (1997) (on file with authors).
60. Although UT-Austin recorded 932 Hispanic first-time freshmen in 1996, some newspapers contended that the figure was actually 832. See Minority Enrollment Drops at UT, A&M: Anti-Affirmative Action Ruling May Figure in Decline, THE DALLAS MORNING NEWS, July 20, 1997, at 19A.
61. See Texas Legislature Online, Full History - HB 588 (last modified July 18, 1997) [hereinafter Texas Legislature Online]. Representative Rangel is from House District 35 in Corpus Christi, located in South Texas. She is the Chair of the House Higher Education Committee. Her district's per capita income is $6,455 (the state average is $12,904). Forty-four percent of her constituents live in poverty, and 78.3% speak a language other than English in the home. See House District 35, Income and Housing Profile (visited Dec. 9, 1998) (using 1990 Census data); House District 35, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data). Information about the state representatives and senators, and their respective district profiles, is included to aid the reader in understanding the coalition that participated in passing the Ten Percent Plan. This information could be used as a blueprint for similar legislative reform.
62. See Texas Legislature Online, Full History - HB 588 (last modified July 18, 1997) [hereinafter Texas Legislature Online]. Representative Rangel is from House District 35 in Corpus Christi, located in South Texas. She is the Chair of the House Higher Education Committee. Her district's per capita income is $6,455 (the state average is $12,904). Forty-four percent of her constituents live in poverty, and 78.3% speak a language other than English in the home. See House District 35, Income and Housing Profile (visited Dec. 9, 1998) (using 1990 Census data); House District 35, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data). Information about the state representatives and senators, and their respective district profiles, is included to aid the reader in understanding the coalition that participated in passing the Ten Percent Plan. This information could be used as a blueprint for similar legislative reform.
63. See Texas Legislature Online, Full History - HB 588 (last modified July 18, 1997) [hereinafter Texas Legislature Online]. Representative Rangel is from House District 35 in Corpus Christi, located in South Texas. She is the Chair of the House Higher Education Committee. Her district's per capita income is $6,455 (the state average is $12,904). Forty-four percent of her constituents live in poverty, and 78.3% speak a language other than English in the home. See House District 35, Income and Housing Profile (visited Dec. 9, 1998) (using 1990 Census data); House District 35, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data). Information about the state representatives and senators, and their respective district profiles, is included to aid the reader in understanding the coalition that participated in passing the Ten Percent Plan. This information could be used as a blueprint for similar legislative reform.
64. See Texas Legislature Online, supra note 59.
65. See id.
66. See id. The Committee also heard an alternative bill focusing on admissions standards on March 18, 1997. Representative Tony Goolsby from House District 102 in Dallas presented H.R. 858, providing that all Texas universities with enrollment of over 30,000 admit 1% of their entering classes by a lottery system and that universities with enrollments of less than 30,000 admit 2% by lottery. See Committee Hearings, supra note 2 (statement of Tony Goolsby, state representative, House District 102). Representative Goolsby argued that his bill would provide opportunities for hard-working high school students who were not good test takers and would reserve spaces for "common folk" who did not have high grade point averages. See id. Once admitted to a state university under this program, students would be expected to comply with all of the university's standards, including the maintenance of minimum grade point averages. See id. A1 Kauffman, regional counsel for the Mexican American Legal Defense and Educational Fund ("MALDEF") in San Antonio, testified in favor of H.R. 858 and stated that it would give students who had not met the usual admission requirements the opportunity to demonstrate academic competitiveness. See Committee Hearings, supra note 2 (statement of A1 Kauffman, MALDEF Attorney). Michael Olivas, law professor from the University of Houston, also testified in favor of the bill but raised two concerns. See Committee Hearings, supra note 2 (statement of Michael Olivas, University of Houston Law Professor). First, he cautioned that awarding precious resources, such as college class slots, by lottery would appear "unseemly." Id. Professor Olivas also raised the possibility that if universities did not admit enough students under the lottery in a given year, those spaces would be held over to the subsequent year, potentially creating a 4% lottery at smaller schools. See id. After these comments, H.R. 858 was left pending in the committee. See id.
67. See id. (statement of Irma Rangel, state representative, House District 35).
68. See id.
69. See id. (statement of Michael Olivas, University of Houston law professor).
70. See Committee Hearings, supra note 2 (statement of Irma Rangel, state representative, House District 35).
71. See TEX. EDUC. CODE ANN. § 51.803(a) (West 1998). The bill applies only to firsttime freshmen, not to transfer students.
72. See Texas Legislature Online, supra note 59.
73. See TEX. EDUC. CODE ANN. § 51.803(b) (West 1998).
74. See id. The statutory language suggests that while every student must be evaluated to determine special needs, the university is not required to establish mandatory enrichment programs. See id. Despite this fact, some summer programs have been implemented. Texas State Senators Rodney Ellis and Royce West have joined with UT-Austin to found a program called the Texas PREP (Partners Responding to an Educational Priority) Program, designed to help top ten percent students in the Houston and Dallas Independent School Districts achieve academic success at college. See Telephone Interview with Rick Svatora, legislative aide to State Senator Rodney Ellis (Apr. 7, 1998). The program is open to all top ten percent students in these districts and should help the large number of minority students enrolled in these districts. See id. The Texas PREP Program was developed in response to a UT-Austin survey showing that while the top 5% of students from these districts had outstanding academic records, with grade point averages and English averages in the 90s, the top 6-10% of students, who were also eligible for automatic admission to UT-Austin under the Ten Percent Plan, had grade point averages and English averages in the low 80s and 70s. See Telephone Interview with Dr. Robert Galvan, Special Assistant, University Outreach Center, University of Texas (Apr. 12, 1998). Furthermore, approximately 80% of the top ten percenters in these districts would be the first members of their families to attend college, suggesting an additional need for orientation to collegiate culture. See id. The Texas PREP Program attempted to construct a bridge between high school instruction and the proficiency necessary for collegiate academic competitiveness. For example, UT-Austin English professors train high school teachers who then instruct top ten percenters in afternoon classes and weekend sessions on the skills needed for the successful completion of college English coursework. See id. UT-Austin officials hypothesize that this program will be beneficial for approximately half of the top ten percenters whom it has accepted from these school districts. See id. However, the Texas PREP Program is not mandatory, and, by the end of the Plan's first year, UT-Austin had not developed a mandatory summer program for students needing additional college preparatory work. See id. If the University does recommend an optional summer program, however, financial aid is available to help cover the cost. See Telephone Interview with a University of Texas admissions official (Jan. 5, 1998).
75. See TEX. EDUC. CODE ANN. § 51.804 (West 1998).
76. See id. § 51.805(a).
77. th Legis. (Tex. 1997) [hereinafter Debate] (statement of Frank J. Corte, Jr., state representative, House District 123).
78. TEX. EDUC. CODE ANN. § 51.805(b) (West 1998). These factors include: (1) academic background; (2) socioeconomic background, including the percentage by which the applicant's family was above or below the poverty line, household income, and the applicant's parents' level of education; (3) whether the applicant would be the first generation of his or her family to attend college; (4) bilingual proficiency; (5) financial status of the applicant's school district; (6) performance level of the applicant's school as determined by the criteria of the Texas Education Agency criteria; (7) extracurricular obligations, including employment, child-raising, or other similar factors; (8) applicant's residential region; (9) whether the applicant resided in a rural, suburban, urban, or central city area; (10) performance on standardized tests; (11) performance on standardized tests in comparison to students from similar socioeconomic backgrounds; (12) whether the applicant attended any school that was under a court-ordered desegregation plan; (13) involvement in community activities; (14) extracurricular activities; (15) commitment to a field of study; (16) personal interview; (17) admission to a comparable accredited out-of-state institution; and (18) any other considerations the institution thought necessary to make an admissions decision. See id.
79. See id. § 51.803(b). The language of the bill with respect to this issue is permissive, stating that any of the factors may be used. See id.
80. See Debate, supra note 73 (statements of Dr. William Cunningham, Chancellor of University of Texas system and of Dr. Leo Salavedra, Deputy Chancellor of Texas A&M University System).
81. See id.
82. See Committee Hearings, supra note 2 (statement of Dr. William Cunningham, Chancellor of University of Texas system).
83. See id.
84. See id.
85. See Committee Hearings, supra note 2 (statement of Leo Salavedra, Deputy Chancellor of Texas A&M University System).
86. See id.
87. See id.
88. See TEX. EDUC. CODE ANN. § 51.803(b) (West 1998).
89. See Committee Hearings, supra note 2 (statement of Dr. William Cunningham, Chancellor of University of Texas system).
90. See id. (statement of Michael Olivas, University of Houston Law Professor).
91. See id. (statement of A1 Kauffman, MALDEF Attorney).
92. See id.
93. See id.
94. See id. (statements of Michael Olivas, University of Houston Law Professor, and Gerald Torres, Associate Dean and Law Professor, University of Texas at Austin).
95. See id. (statement of Michael Olivas, University of Houston Law Professor).
96. See id. (statement of Gerald Torres, Associate Dean and Law Professor, University of Texas at Austin).
97. See id.
98. See Texas Legislature Online, supra note 59.
99. See id.
100. See Telephone Interview with Gerald Torres, Associate Dean and Law Professor, University of Texas at Austin (Apr. 7, 1998).
101. See id.
102. See id.
103. See id.
104. See Hearings on H.R. 588 Before the House of Representatives, 75th Legis. (Tex. 1997) [hereinafter House Hearings] (statement of Irma Rangel, state representative, House District 35).
105. See Texas Legislature Online, supra note 59.
106. Representative Frank J. Corte, Jr. represents House District 123, located in suburban San Antonio. His district's per capita income is $20,000. Seven and three-tenths percent of his constituents live in poverty, and more than 35% have an average annual household income of over $50,000 a year. See House District 123, Income and Housing Profile (visited Dec. 9, 1998) (using 1990 Census data); House District 123, Population and Household Profile (visited Dec. 9, 1998) (using 1990 Census data).
107. Representative Frank J. Corte, Jr. represents House District 123, located in suburban San Antonio. His district's per capita income is $20,000. Seven and three-tenths percent of his constituents live in poverty, and more than 35% have an average annual household income of over $50,000 a year. See House District 123, Income and Housing Profile (visited Dec. 9, 1998) (using 1990 Census data); House District 123, Population and Household Profile (visited Dec. 9, 1998) (using 1990 Census data).
108. Representative Charlie F. Howard is from House District 26, located in Sugarland, a suburb of Houston. His district's average per capita income is $20,265. Three and seventenths percent of his constituents live in poverty, and almost 60% have an average annual household income over $50,000. See House District 26, Income and Housing Profile, (visited Dec. 9, 1998) (using 1990 Census data); House District 26, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data).
109. Representative Charlie F. Howard is from House District 26, located in Sugarland, a suburb of Houston. His district's average per capita income is $20,265. Three and seventenths percent of his constituents live in poverty, and almost 60% have an average annual household income over $50,000. See House District 26, Income and Housing Profile, (visited Dec. 9, 1998) (using 1990 Census data); House District 26, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data).
110. See House Hearings, supra note 100 (statements of Frank J. Corte, Jr., state representative, House District 123 and Charlie Howard, state representative. House District 26).
111. See id. (statement of Frank J. Corte, Jr., state representative, House District 123).
112. See id.
113. See id. (statement of Charlie Howard, state representative, House District 26).
114. Id.
115. See Texas Legislature Online, Bill Amendment Display - HB 588 (last modified July 18, 1997) .
116. See Texas Legislature Online, supra note 59.
117. See id.
118. See id.
119. See id. There was little debate about the bill in the Senate because it had been agreed upon through informal meetings amongst the senators. See Telephone Interview with Rick Svatora, supra note 70.
120. State Senator Gonzalo Barrientos is a member of the Senate Education Committee who represents Senate District 14, located in the Austin area. His district's per capita income is $14,348. Sixteen and seven-tenths percent of his constituents live in poverty, and 22% speak a language other than English in the home. See Senate District 14, Income and Housing Profile (visited Dec. 9, 1998) (using 1990 Census data); Senate District 14, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data).
121. State Senator Gonzalo Barrientos is a member of the Senate Education Committee who represents Senate District 14, located in the Austin area. His district's per capita income is $14,348. Sixteen and seven-tenths percent of his constituents live in poverty, and 22% speak a language other than English in the home. See Senate District 14, Income and Housing Profile (visited Dec. 9, 1998) (using 1990 Census data); Senate District 14, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data).
122. State Senator Teel Bivins is the Chair of the Senate Education Committee and represents Senate District 31, located in Amarillo. His district's per capita income is $12,595, slightly less than the state average. Sixteen and three-tenths percent of his constituents live in poverty, and 19% speak a language other than English in the home. See Senate District 31, Income and Housing Profile, (visited Dec. 9, 1998) (using 1990 Census data); Senate District 31, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data).
123. State Senator Teel Bivins is the Chair of the Senate Education Committee and represents Senate District 31, located in Amarillo. His district's per capita income is $12,595, slightly less than the state average. Sixteen and three-tenths percent of his constituents live in poverty, and 19% speak a language other than English in the home. See Senate District 31, Income and Housing Profile, (visited Dec. 9, 1998) (using 1990 Census data); Senate District 31, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data).
124. State Senator Carlos Truan is from Senate District 20, located in Corpus Christi. His district's per capita income is $9840. Twenty-six and six-tenths percent of his constituents live in poverty, and 53.2% speak a language other than English in the home. See Senate District 20, Income and Housing Profile, (visited Dec. 9, 1998) (using 1990 Census data); Senate District 20, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data).
125. State Senator Carlos Truan is from Senate District 20, located in Corpus Christi. His district's per capita income is $9840. Twenty-six and six-tenths percent of his constituents live in poverty, and 53.2% speak a language other than English in the home. See Senate District 20, Income and Housing Profile, (visited Dec. 9, 1998) (using 1990 Census data); Senate District 20, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data).
126. State Senator Royce West is an African American who represents Senate District 23, located in Dallas. His district's per capita income is $9797. Twenty-three and a half percent of his constituents live in poverty, and 24.2% speak a language other than English in the home. See Senate District 23, Income and Housing Profile, (visited Dec. 9, 1998) (using 1990 Census data); Senate District 23, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data).
127. State Senator Royce West is an African American who represents Senate District 23, located in Dallas. His district's per capita income is $9797. Twenty-three and a half percent of his constituents live in poverty, and 24.2% speak a language other than English in the home. See Senate District 23, Income and Housing Profile, (visited Dec. 9, 1998) (using 1990 Census data); Senate District 23, Population and Household Profile, (visited Dec. 9, 1998) (using 1990 Census data).
128. See Texas Legislature Online, supra, note 59.
129. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (holding that programs instituted by a governmental actor, including the federal government, will be subject to strict scrutiny where any race-based criteria are employed in decision-making); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (invalidating a local set-aside program for minority contractors); Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (striking down an affirmative action program that employed minority preferences in cutting teacher positions).
130. See TEX. EDUC. CODE ANN. § 51.803(a) (West 1998).
131. See id. § 51.803(b).
132. See Croson, 488 U.S. at 518 (Kennedy, J., concurring) ("The moral imperative of racial neutrality is the driving force of the Equal Protection Clause."). The authors disagree with the race-neutrality conception promoted by Justice Scalia and others. This "neutrality" often entails deference to the status quo - traditionally, the exclusion of racial minorities. Nevertheless, for the purpose of supporting legislation that conforms with the current doctrine on the use of racial factors, race-neutral statutes will be increasingly important in efforts to promote diversity at public universities.
133. See infra Part III.
134. See Lani Guinier & Susan Sturm, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953, 965 (1996) ("In fact, the dominance of standardized tests in selection is a relatively recent development. The civil rights revolution, and the introduction of affirmative action programs, occurred at the same time that society was formalizing a 'meritocracy' based on education and standardized testing.").
135. See id. at 957 ("When asked what predicts life success, college admissions officers at elite universities report that, above a minimum level of competence, 'initiative' or 'hunger' are the best predictors.").
136. Ward Connerly has said, "We're not sending the same message to black and [Hispanic] students as we're sending to Asian students. I believe a lot of [what is behind the differential in levels of academic achievement] goes to the culture of Asian groups that place a higher priority on education than other groups." V. Dion Haynes, After Proposition 209 Fewer Minorities Get Into UCLA, Berkeley, CHI. TRIB., Apr. 1, 1998, at 1 (quoting Connerly).
137. STEPHEN L. CARTER, REFLECTIONS OF AN AFFIRMATIVE ACTION BABY 71 (1991).
138. Id. at 69. It should be noted that Professor Carter does not say that a feeling of inferiority stemming from affirmative action exists for all minorities, or even that this feeling is a justification in and of itself for ending affirmative action programs.
139. See Fax from Rep. Irma Rangel, Chairperson of the Texas Legislature Higher Education Committee (Oct. 26, 1998) (on file with authors).
140. See id.
141. See id.
142. See id.
143. See Spencer Byres et al., Hopwood and HB 588: Implications, Outcomes, Future Strategies, 14th Annual Access and Equity Recruitment and Retention Conference (April 17, 1998) (on file with authors) [hereinafter Recruitment Conference]. The Texas Education Agency ("TEA") has not yet inputted the actual numbers so "projected" numbers are used. See Interview with Rose Martinez, Assistant Director of Admissions, University of Texas at Austin, in Austin, Tex. (Mar. 1998). Based on the accurateness of prior "projected" TEA numbers, UT-Austin is confident in the reliability of these numbers. See id.
144. See Spencer Byres et al., Hopwood and HB 588: Implications, Outcomes, Future Strategies, 14th Annual Access and Equity Recruitment and Retention Conference (April 17, 1998) (on file with authors) [hereinafter Recruitment Conference]. The Texas Education Agency ("TEA") has not yet inputted the actual numbers so "projected" numbers are used. See Interview with Rose Martinez, Assistant Director of Admissions, University of Texas at Austin, in Austin, Tex. (Mar. 1998). Based on the accurateness of prior "projected" TEA numbers, UT-Austin is confident in the reliability of these numbers. See id.
145. This data was taken from the 1995-96 academic year, before the Plan's implementation. High school graduates in the top 10%, without a college-bound diploma are therefore unaccounted for, yet eligible for the Plan's benefits.
146. Note that these figures do not represent the number of students who have taken the ACT. Taking the ACT is an equally appropriate way to complete an application, but UT-Austin did not know the number of students who had taken this test.
147. Students do not have to self-report to be admitted under the Ten Percent Plan, but the universities have not yet developed an alternate means of identifying top ten percenters.
148. See Recruitment Conference, supra note 133.
149. See id.
150. See id.
151. See id.
152. See id.
153. See id.
154. See id. Similar information concerning A&M's applicant pool is not available due to the fact that the University does not track its top ten percent students. As of March 25, 1998, the total number of freshmen applications to A&M had decreased by 11% (1692) from 1997 to 1998. The number of student applications submitted decreased by 8% (861) for whites, by 17% (284) for Hispanics, and by 22% (135) for blacks. See Office of Admissions and Records, Texas A&M Univ., Texas A&M University New Freshman Admissions, Year to Year Comparisons (Mar. 25, 1998).
155. See Interview with Augustin Garza, Deputy Director of Admissions, University of Texas at Austin, in Austin, Tex. (Feb. 1998).
156. See Telephone Interview with Richard Hojeda, Admissions Counselor, University of Texas at Austin (Mar. 1998).
157. Id.
158. See Interview with Anne Anderson, Admissions Counselor, University of Texas at Austin, in Austin, Tex. (Mar. 1998).
159. See Telephone Interview with Richard Hojeda, supra note 145. UT-Austin instituted this new method for its 1998 recruiting season. See id.
160. See Interview with Rose Martinez, supra note 133.
161. See Interview with Anne Anderson, supra note 147. Admissions Officer Rose Martinez did not refer to the practice of sorting schools into tiers. See Interview with Rose Martinez, supra note 133. Instead, Martinez stated that the counselors receive a list of schools in their region and then determine which ones they will visit based on previous school practice information. See id. The Admissions Office provides each counselor with information outlining the number of student applicants from each school during the previous year, the number actually admitted, and the number that finally enrolled - data that the counselors can then use to identify "interested schools." Id. The Admissions Office gathers student trend information from TEA and the College Board Enrollment Planning Service. See id.
162. See Interview with Anne Anderson, supra note 147.
163. See id.
164. See id.
165. See Telephone Interview with Richard Hojeda, supra note 145.
166. See Interview with Anne Anderson, supra note 147.
167. See id.
168. See Telephone Interview with Richard Hojeda, supra note 145.
169. See University of Tex. at Austin, Undergraduate Admissions Source Analysis (Sept. 13, 1997) (containing information on which high schools are sending students to UT-Austin and in what numbers they are sending them) [hereinafter Source Analysis].
170. See id.
171. See generally Interview with Augustin Garza, supra note 144; Source Analysis, supra note 158. This last number is based on an estimate of a total number of 1700 Texas high schools. The offices of admissions at both A&M and UT-Austin were unable to give the exact number of high schools in Texas.
172. see generally Source Analysis, supra note 158; Texas Education Agency, 1996-1997 AEIS Reports, (visited Sept. 13, 1997) (containing links to detailed information on Texas high schools) [hereinafter 1996-1997 AEIS Reports].
173. see generally Source Analysis, supra note 158; Texas Education Agency, 1996-1997 AEIS Reports, (visited Sept. 13, 1997) (containing links to detailed information on Texas high schools) [hereinafter 1996-1997 AEIS Reports].
174. See Texas Education Agency, 1996-1997 Campus Performance: Plano Senior High School (visited Sept. 13, 1997) .
175. See Texas Education Agency, 1996-1997 District Performance: Plano I.S.D. (visited Sept. 13, 1997) . In order to determine "wealth," TEA divides the district's total taxable property value (as certified by the Comptroller's Property Tax Division) by the total number of students. This per-pupil figure is referred to as "wealth." See Texas Education Agency, TEA Glossary of the Academic Excellence Indicator System, 1996-1997 Report (visited Sept. 13, 1997) [hereinafter TEA Glossary].
176. See Texas Education Agency, 1996-1997 District Performance: Plano I.S.D. (visited Sept. 13, 1997) . In order to determine "wealth," TEA divides the district's total taxable property value (as certified by the Comptroller's Property Tax Division) by the total number of students. This per-pupil figure is referred to as "wealth." See Texas Education Agency, TEA Glossary of the Academic Excellence Indicator System, 1996-1997 Report (visited Sept. 13, 1997) [hereinafter TEA Glossary].
177. See Texas Education Agency, 1996-1997 Campus Performance: Plano Senior High School, supra note 162. "The percent of economically disadvantaged students is measured by dividing the number of students eligible for free or reduced-price lunch or other public assistance, by the total number of students." TEA Glossary, supra note 163.
178. See Texas Education Agency, 1996-1997 Campus Performance: Plano Senior High School, supra note 162. "The percent of economically disadvantaged students is measured by dividing the number of students eligible for free or reduced-price lunch or other public assistance, by the total number of students." TEA Glossary, supra note 163.
179. See Texas Education Agency, 1996-1997 Campus Performance: Westlake High School (visited Sept. 13, 1997) ; Source Analysis, supra note 158.
180. See Texas Education Agency, 1996-1997 Campus Performance: Westlake High School (visited Sept. 13, 1997) ; Source Analysis, supra note 158.
181. See Texas Education Agency, 1996-1997 District Performance: Eanes I.S.D. (visited Sept. 13, 1997) .
182. See Texas Education Agency, 1996-1997 Campus Performance: Bellaire Senior High School (visited Sept. 13, 1997) .
183. University officials maintain that this skewed resource allocation is justified by the large populations of the feeder schools. However, this does not justify ignoring schools that lack the infrastructure like alumni contacts that the feeder schools already have.
184. See October Garza Interview, supra note 3; see also H.R. 588 Implementation: Hearing on H.R. 588 Before the House Committee on Higher Education, 75th Legis. (Tex. 1997) [hereinafter Implementation Hearings] (statement of Bruce Walker, Director of Admissions and Associate Vice-President for Student Affairs at University of Texas at Austin).
185. See October Garza Interview, supra note 3.
186. See Implementation Hearings, supra note 169 (statement of Bruce Walker, Director of Admissions and Associate Vice-President for Student Affairs at University of Texas at Austin).
187. See October Garza Interview, supra note 3.
188. See Implementation Hearings, supra note 169 (statement of Bruce Walker, Director of Admissions and Associate Vice-President for Student Affairs at University of Texas at Austin).
189. See October Garza Interview, supra note 3.
190. See id.
191. See Interview with Rose Martinez, supra note 133.
192. See Implementation Hearings, supra note 169 (statement of Bruce Walker, Director of Admissions and Associate Vice-President for Student Affairs at University of Texas at Austin).
193. See id.
194. Id.
195. See infra Part IV.
196. See Implementation Hearings, supra note 169 (statement of Bruce Walker, Director of Admissions and Associate Vice-President for Student Affairs at University of Texas at Austin).
197. Id.
198. See Interview with Rose Martinez, supra note 133; Freshman Admissions Center, University of Tex. at Austin, Goals and Objectives (Jan. 12, 1998).
199. See Interview with Rose Martinez, supra note 133; Freshman Admissions Center, University of Tex. at Austin, supra note 183.
200. See Interview with Rose Martinez, supra note 133; Freshman Admissions Center, University of Tex. at Austin, supra note 183.
201. See Interview with Rose Martinez, supra note 133; Freshman Admissions Center, University of Tex. at Austin, supra note 183.
202. See Interview with Rose Martinez, supra note 133.
203. See id.
204. See Freshman Admissions Center, University of Tex. at Austin, supra note 183.
205. See Interview with Rose Martinez, supra note 133.
206. Implementation Hearings, supra note 169 (statement of Ed Sharp, Vice-President for Administration in office of Public Affairs at University of Texas at Austin).
207. See id.
208. See id.
209. See id.
210. Id.
211. See Implementation Hearings, supra note 169 (statement of Ricardo Gonzalez, Jr., Recruitment Coordinator for Texas A&M University).
212. See Interview with Andres Perez, Texas A&M University Admissions Counselor, in College Station, Tex. (Mar. 1998); Implementation Hearings, supra note 169.
213. See Interview with Andres Perez, supra note 197; Implementation Hearings, supra note 169. The tele-counseling position entails calling between 8000 and 10,000 students each month to encourage them to apply to A&M, answering any student questions, and notifying students of upcoming events. See Interview with Andres Perez, supra note 197; Implementation Hearings, supra note 169.
214. See Interview with Andres Perez, supra note 197; Implementation Hearings, supra note 169. The tele-counseling position entails calling between 8000 and 10,000 students each month to encourage them to apply to A&M, answering any student questions, and notifying students of upcoming events. See Interview with Andres Perez, supra note 197; Implementation Hearings, supra note 169.
215. See Interview with Andres Ferez, supra note 197.
216. See id.
217. See Telephone Interview with Ricardo Gonzales, Jr., supra note 3.
218. See Interview with Andres Perez, supra note 197.
219. See id.
220. See id.
221. See Interview with Ricardo Gonzalez, Jr., Recruitment Coordinator for Texas A&M University, in College Station, Tex. (Mar. 1998).
222. See id.
223. See id.; Admissions Counseling, Texas A&M Univ., 1997-1998 Recruitment Plan (July 1997) (unpublisheddraft).
224. See Admissions Counseling, Texas A&M Univ., supra note 207.
225. See id.
226. OFFICE OF ADMISSIONS AND RECORDS, TEXAS A&M UNIV., HIGH SCHOOL GROUPINGS 1997-1998 TABLE (1998) (on file with the A&M Office of Admissions).
227. Id.
228. See id.
229. See id.
230. Id.
231. Id.
232. See id.
233. See id.
234. id.
235. See Interview with Ricardo Gonzalez, Jr., supra note 205.
236. See id.
237. See id.
238. See id.
239. See id.
240. See Interview with Andres Perez, supra note 197; Telephone Interview with Ricardo Gonzales, Jr., supra note 3.
241. See Interview with Andres Perez, supra note 197.
242. See id.
243. See OFFICE OF ADMISSIONS AND RECORDS, TEXAS A&M UNIV., TEXAS A&M UNIVERSITY PROFILE OF ENROLLMENT & ADMISSION: A FIVE YEAR COMPARISON 1996 & 1992 (1996).
244. See Texas A&M Univ., New Freshmen High Schools (Sept. 16, 1997) [hereinafter New Freshmen 1997].
245. See id.
246. See id.
247. See New Freshmen 1997, supra note 228; Texas A&M Univ., New Freshmen High Schools (Sept. 23, 1996); Texas A&M Univ., New Freshmen High Schools (July 27, 1995); Texas A&M Univ., New Freshmen High Schools (Sept. 26, 1994).
248. See 1996-1997 AEIS Reports, supra note 161.
249. Compare Source Analysis, supra note 158 with New Freshmen 1997, supra note 228.
250. See 1996-1997 AEIS Reports, supra note 161.
251. See id.
252. See Interview with Ricardo Gonzales, Jr., supra note 205.
253. See Texas Education Agency, 1996-1997 Campus Performance: Bryan High School (visited Sept. 13, 1997) .
254. See Texas Education Agency, 1996-1997 Campus Performance: A&M Consolidated High School (visited Sept. 13, 1997) .
255. See Texas Education Agency, 1996-1997 Campus Performance: Plano Senior High School, supra note 162.
256. See Texas Education Agency, 1996-1997 Campus Performance: Kingwood High School (visited Sept. 13, 1997) .
257. See generally 1996-1997 AEIS Reports, supra note 161.
258. See id.
259. See id.
260. See implementation Hearings, supra note 169 (statement of Ray Bowen, President of Texas A&M University). The A&M Admissions Office conducted 11 such workshops in 1997 and 50 in 1998.
261. See Implementation Hearings, supra note 169 (statement of Ricardo Gonzales, Jr., Recruitment Coordinator for Texas A&M University).
262. See id.
263. See id.
264. See id.
265. See id.
266. See David Montejano, On Hopwood: The Continuing Challenge, in REFLEXIONES 1997: NEW DIRECTIONS IN MEXICAN-AMERICAN STUDIES 133 (Neil Foley, ed., 1997).
267. See Recruitment Conference, supra note 133. Note that these numbers do not include top ten percenters who have either not taken the SAT or have not obtained a college bound diploma.
268. The authors made phone calls to guidance counselors, school teachers, and school adminstrators at predominantly minority schools in Houston and the South Texas area in November and December of 1997. Most of the people interviewed either said that they did not know about the Plan themselves, or that students at their high schools had not been informed.
269. See TEX. EDUC. CODE ANN. § 51.801-.807 (West 1998).
270. See id. § 51.805 ("Not later than one year before the date that applications for admission are first considered under this section, each general academic teaching institution shall publish in the institution's catalog a description of the factors considered by the institution in making admissions decisions.").
271. See id. § 51.806.
272. Id. § 51.807.