- The Washington Times - Friday, November 15, 2002

The supporters of the Texas Ten Percent Plan have missed something in their celebration of the plan's success at diversifying Texas universities: If Supreme Court precedent means anything, then the plan is as illegal as the explicit racial preferences it replaced.

The plan was born of frustrated attempts by the University of Texas to illegally discriminate on the basis of race. After years of admitting black and Hispanic applicants with academic credentials far below those of rejected whites, a federal appeals court in 1996 ordered the university to stop considering race in admissions. When the number of blacks and Hispanics admitted dropped, Texas legislators decided to do something about it. The plan they hit upon is revolutionary: All high school students in the state are automatically admitted to the public university of their choice including the flagship institution at Austin so long as they finish in the top 10 percent of their high school class. For these students, there is no consideration of SAT scores, extracurricular activities, or teacher recommendations, nor even consideration of the quality of their high school or the difficulty of their choice of courses.

Everyone knows why Texas decided to make class rank the only admissions criterion for what turns out to be half of each year's freshman class at the University of Texas at Austin. The Texas legislature was quite explicit about its purposes. It enacted the plan not because it thought this approach would yield the smartest students, nor because it thought this was the most administratively feasible way to admit students. It enacted the plan because it wanted to bring the number of blacks and Hispanics admitted back to the level it had achieved during the good old days of its illegal discrimination. Little was left to chance; the legislature relied on studies showing that the plan would increase black and Hispanic representation at the University of Texas at Austin to almost exactly the same level it had been at before.

This raises a legal question that has been largely ignored: If it is illegal to admit applicants based on race in order to boost black and Hispanic representation, is it also illegal to admit applicants based on some other criterion, where the reason that criterion was selected over others was to boost black and Hispanic representation? The answer to this question must be yes. Otherwise, anti-discrimination law would be all form and no substance. For example, if a law against age discrimination only prohibited an employer from firing employees over a certain age, then it would not stop the employer from seeking to achieve the same result by firing those with gray hair. If anti-discrimination laws prohibited only form and not substance, they would be very hollow protections indeed.

It is therefore unsurprising that the Supreme Court has repeatedly ruled that anti-discrimination law is about substance as well as form. These precedents expose the plan for what it is only one in a long line of unsuccessful attempts by state and local governments to evade court rulings against racial discrimination.

For example, in its 1974 decision in Keyes vs. School District No. 1, the Supreme Court held that, just as it was illegal to require blacks to attend one school and whites to attend another school, so it was illegal to require students from one geographic zone to attend one school and students from another geographic zone to attend another school, where the geographic zones were drawn to ensure that most blacks would be in one zone and most whites would be in another zone.

Similarly, in its 1985 decision in Hunter vs. Underwood, the Supreme Court held that, just as it was illegal to deny the franchise to blacks, so it was illegal to deny the franchise to persons convicted of crimes of moral turpitude, where the turn-of-the-century Alabama legislature that chose to disenfranchise them did so because ten times as many blacks as whites had been convicted of these crimes.

What Texas has done is no different. Deciding to admit students on the basis of class rank alone because it will increase the representation of blacks and Hispanics in universities is no different than deciding to send students on one side of town to a certain high school because it will decrease the representation of blacks at other high schools, or deciding to disenfranchise citizens who commit certain crimes because it will decrease the representation of blacks in the electorate.

The plan will inevitably meet a legal challenge, and, when it does, it will be struck down. The Supreme Court has repeatedly stopped subterfuges of this sort, always to the benefit of racial minorities. Now the shoe is on the other foot. And I have every confidence the Supreme Court will use it to stay one step ahead of the discriminators yet again.


Brian Fitzpatrick is an attorney with a Washington law firm and a former law clerk to Justice Antonin Scalia.


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