U.S. Commission on Civil Rights

Toward An Understanding of Percentage Plans in Higher Education:
Are They Effective Substitutes for Affirmative Action?

The United States Commission on Civil Rights is deeply concerned about the impact of Governor Jeb Bush's One Florida Plan ( Plan ) on remedying the state s history of legal discrimination in state contracting and achieving the goal of diversity and equal higher education opportunity in Florida. Unlike the election-mandated or court-ordered anti-affirmative action measures in California and Texas, Governor Bush self-compellingly issued Executive Order 99-281 on November 9, 1999,[1] ending race-conscious affirmative action in Florida one year before voters could face a ballot question instigated by Ward Connerly asking them to eliminate affirmative action in the state.

Bush s One Florida Plan includes a ban on the consideration of race and gender in state contracting and university admissions. Instead, Bush proposes increasing minority participation in state contracting by requiring the state procurement officers to try to find qualified minority businesses. In addition, the Plan guarantees state university admissions to high school seniors in the top 20 percent of their class, without regard to SAT or ACT scores. Bush would add $20 million to the student financial aid budget to pay the expenses.[2]

The development of specifics were left to a task force of education leaders who would make recommendations to the Board of Regents.[3] What the Regents and Bush's cabinet approved in higher education failed to include were the kinds of details that would make the Florida Plan at least as palatable as the Ten Percent Plan instituted in Texas.[4]

In Texas, the legislature, following the lead of African American and Latino legislators and education experts, adopted a Ten Percent Plan[5] ( Ten Percent Plan or Texas Plan ) in response to the appeals court decision in Hopwood v. Texas,[6] which outlawed race-conscious affirmative action programs in Texas higher education. The Texas Plan (House Bill No. 588), enacted in 1997, entitles the top 10 percent of the graduating class of each accredited high school in Texas to attend the University of Texas at Austin ( UT-Austin ), the university system's flagship campus, Texas A&M University ( Texas A&M ), or any other state university. Colleges and universities are permitted to require an essay, letters of recommendation, admissions and placement tests, fees, and an official high school transcript. Under the Ten Percent Plan, the students must take the ACT or SAT but only to determine the need for academic support and to track whether the scores can predict the success or failure of the students.[7]

In 1997, during the first post-Hopwood school year and prior to the passage of the Texas Plan, minority enrollment figures were down in the incoming freshman classes at UT-Austin and Texas A&M. At UT-Austin, freshman enrollment dropped by 4.3% for Hispanic students and by 33.8% for black students. At Texas A&M, freshman enrollment of Hispanic and black students dropped by 12.6% and 29% respectively. [8]

In 1998, the first year of the Ten Percent Plan, UT-Austin admitted a freshman class of students, some of whom came from low-income districts with inadequate schools. In a 1998 analysis of the first implementation of the Texas Plan, the UT-Austin admissions office reported, Though it is not possible to determine the precise impact of HB 588 on the University's freshman class one can see that when compared to the class entering in 1997, the class of 1998 is more diverse (34% minority compared to 32%) but not as diverse as the class that entered in 1996 which was 38% minority. [9]

During the second year of the Ten Percent Plan, the 1999 freshman class at UT-Austin was as diverse as the last class enrolled prior to the 1996 Hopwood decision.[10] This return to pre-Hopwood diversity figures is relative in that it disregards the fact that in 1999 the total applicant pool for blacks and Hispanics increased while the yield decreased in comparison to 1996 figures. In contrast, the yield for white students has remained the same as the number of white applicants increased (see table 2).

The Texas Plan at UT-Austin has resulted in increased diversity in 1999 among the freshmen students admitted under the program in comparison to 1998 (see table 3). This increase in enrollment can be credited to various efforts aimed to encourage minority high school students to attend UT-Austin. Some of the innovative recruitment and retention programs include alumni-sponsored minority scholarships and a new scholarship initiative that targets students in the top 10 percent. The state also enacted a law requiring posters at each high school informing students about the Texas Plan and telling them how to apply. Texas State Senators Rodney Ellis and Royce West initiated a partnership between UT-Austin and Bank of America entitled the Texas Longhorn PREP (Partners Responding to Educational Priority) program.[11] The program is available to all top 10 percent high school students in Houston and Dallas, and its goal is to assist in their academic success in college.[12]

Despite these relative gains, a comparison of the admittance rates in tables 2 and 3 reveals that in 1999 only 170 black and 586 Hispanic high school students were admitted to UT-Austin under general admission standards. Thus, it is clear that the absence of an affirmative action program at UT-Austin has detrimentally affected the admission of black and Hispanic students not in the top 10 percent of their high school class who pre-Hopwood might have been admitted.

These results show that a color-blind law in a racially segregated primary and secondary public school environment can promote some diversity in undergraduate admissions. However, the adverse impact on the admission of black and Hispanic high school students not in the top 10 percent shows that UT-Austin's failure to increase the yield while implementing the Texas Plan creates an ineffective replacement program when compared with the university's previous affirmative action policy. Severe decreases in the number of minority students enrolled in UT-Austin's graduate and professional schools enforce the need for race-conscious affirmative action.[13]

Undoubtedly, the end of affirmative action has resulted in a significant decline in the overall enrollment of black and Hispanic students at UT-Austin. This decrease reveals the need for the university to increase the yield in black and Hispanic undergraduate admissions. In order to address UT-Austin's low minority enrollment in graduate and professional schools, the Texas Legislature should consider creating a percentage plan program that provides special consideration to the top 10 percent of Texas college seniors applying to state postgraduate programs.

Prior to Hopwood and the Texas Plan, race-conscious affirmative action programs did not bring nearly enough black and Hispanic students into the state s flagship universities.[14] It is doubtful that the Texas Plan will be able to achieve enrollment figures in undergraduate and graduate school similar to pre-Hopwood numbers. But at least, the Ten Percent Plan makes it possible for some students to attend UT-Austin who after Hopwood might have been excluded.

Florida, unlike Texas, failed to provide for adequate remediation given Governor Bush s acknowledgement of the poor quality of K 12 schools attended by many African American and Latino students. His announcement of the extension of existing mentoring programs and the establishment of a task force to deal with K 12 inequities may help in the long run.[15] But for now, as Florida A&M President Frederick Humphries and others point out, students who graduate from low-performing minority schools might not have the 19 precollege credits still required by the state university system because of inadequate curricular offerings at their high schools. Humphries has suggested that the state fix the schools so that any failure to take the courses would be their choice, not the system's choice. [16]

Unfortunately, rather than focusing primarily on improving Florida's failing public schools, which under the Florida Constitution have the responsibility to provide a quality education to the state's school-age children,[17] Governor Bush made the implementation of the Opportunity Scholarship Program the centerpiece of his first year in office. This voucher program provides students in failing Florida public schools with state funds in the form of vouchers, which may be applied toward tuition fees in private schools.[18] The problem with this voucher plan is that it does nothing to ameliorate the deplorable conditions of Florida public schools and simply allows a small number of students to flee failing public schools.[19]

The recognition that the voucher plan failed to meet the Florida constitutional mandate that the state provide a free education through a system of public schools came on March 14, 2000, when Leon County Circuit Judge L. Ralph Smith Jr. ruled the Opportunity Scholarship Program unconstitutional.[20] He wrote that by providing state funds for some students to obtain a K 12 education through private schools, as an alternative to the high quality education available through the system of free public schools, the legislature has violated the mandate of the Florida constitution, adopted by the electorate of Florida.[21] Although Bush plans to appeal the decision, for now Judge Smith has ruled that the Governor is enjoined from taking further measures to implement the private-school tuition program. [22]

Bush s overreliance on his voucher program and failure to adequately address the problems in Florida's K 12 educational system are only part of the problem. In addition to K 12 deficiencies, Bush's plan at the university level could also be improved. For example, Bush's program, unlike that in Texas, does not require the state's most prestigious flagship institutions to admit students in the top 20 percent, if they choose to attend.[23] The Plan also makes no provisions for students who are qualified for admission but who are not in the top 20 percent of their class.

The Plan is an unprovoked stealth acknowledgment and acceptance that the existing school and housing segregation will never change and that longstanding efforts to remedy the race discrimination that was legal in Florida have been abandoned.[24] The Plan also voluntarily abolishes affirmative action with nothing to replace it that will ensure inclusion for people of color in graduate and professional education.

The Florida Plan, approved by the Regents, failed as well, to clarify how students would be admitted, and what rights they have so that students would not have to pay multiple application fees to apply to every institution, hoping one or some will take them. The Governor's accountability measures include a commission established to evaluate whether the program is admitting minority students over the next three years and requests that the Chancellor include meeting diversity goals in the evaluation of university presidents, without specifying any goals.[25]

California s actions, since the Regents policy in 1995 abolished affirmative action,[26] have recently led to the announcement of a four percent plan.[27] The prestigious campuses of Berkeley and UCLA have yet to reverse the declines in enrollment of black and Hispanic students that occurred following the Regents policy that excluded affirmative action as a race-conscious remedy for the class beginning in 1998 at the undergraduate level and in 1997 at the graduate level.[28]

In March 1999, California announced a proposal to increase outreach efforts, and to ensure that the existing policy that students who rank in the top 4 percent of their junior-year class will be eligible for admission to the University of California starting in fall 2001.[29] The plan was developed to increase the system's overall eligibility pool to the top 12.5 percent of the state's high school seniors, a benchmark specified in the California Master Plan for Higher Education. During the past few years, the figure has slipped to 11.5 percent.[30]

Since the 4 percent group would constitute only a small portion of overall admissions, the effects on diversity at UC as a whole would be minimal. Also, the applicants would not be guaranteed admission to the campus of their choice. In fact, the denial of admission to the University of California's premiere flagship university, UC Berkeley, to qualified Pilipino, African American, and Latino high school students has prompted the Mexican American Legal Defense and Education Fund, the NAACP Legal Defense and Educational Fund, Inc., and the Asian Pacific American Legal Center of Southern California, to file a lawsuit against the University of California, Berkeley in federal court.[31] The case is a class action suit which alleges that UC Berkeley's admissions policies, which comply with the University of California Regents adoption of Resolution SP-1 prohibiting the explicit use of race and ethnicity as criteria for admissions, violate federal antidiscrimination laws and the civil rights of African American, Chicano, Latino, and Pilipino American past and future applicants to the University of California at Berkeley, amounting to a denial of equal opportunity to compete for admission to undergraduate studies programs. The complaint alleges that UC Berkeley's current admissions process discriminates against Latino, African American, and Pilipino American applicants in several respects, including, but not limited to, the granting of unjustified preferential consideration to applicants who have taken certain courses that are less accessible in high schools attended largely by African American, Latino, and Pilipino American students ; as well as placing undue and unjustified reliance upon standardized test scores and to make judgements based on educationally insignificant differences in test scores. [32]

The complaint further alleges that [p]rior to its modification, the admissions process implemented by UC Berkeley considered race and ethnicity as criteria, among others, in a manner that mitigated, to some degree, the adverse impact of other components of the process that discriminated against minority applicants. In the absence of such mitigation, the current admissions process discriminates against African American, Latino, and Pilipino American applicants. Specifically, the complaint alleges that when comparing only applicants with a grade point average of 4.0 or higher, African American, Latino and Pilipino American students were denied admission at far higher rates than white students. For example, UC Berkeley admitted 48.2% of white applicants with GPAs of 4.0 or higher but only 31.6% of Pilipino American, 38.5% of African American, and 39.7% of Latino applicants with such GPAs. [33]

Additionally, the complaint alleges that [t]he current admissions process is inconsistent with UC Berkeley's educational mission. UC Berkeley has failed to demonstrate that the selection criteria utilized in its current admissions process are valid and necessary to achieve the university's educational mission. Although alternative criteria and admission methods exist that are consistent with the university's educational mission and that would have less disparate impact upon minority applicants, UC Berkeley has failed to adopt or to implement them. Therefore, Defendants adoption, implementation, and refusal to modify the current admissions process violates Title VI of the Civil Rights Act of 1964, the United States Department of Education regulations implementing Title VI (34 C.F.R. 100.1, et seq.), and the Fourteenth Amendment to the United States Constitution. [34]

In conclusion, the percentage plans may succeed as an effective public relations strategy. They could gain broad appeal because they focus on the goal that everyone should have an equal opportunity to learn in higher education. There is general American acceptance of the notion that hardworking students should not be deprived of an equal chance at the best public higher education opportunity because their schools did not offer them a chance to take certain courses.

Percentage plans are also a good public relations strategy because they fit into an educational history having nothing to do with race. States have long had policies that allowed graduates in the top percentage of a high school to attend the capstone public university. These policies existed well before the use of SATs and ACTs for admission decisions. Geographic diversification, without regard to the quality of the schools in different regions, ensured public support for the flagship institution. Because racial segregation dominates much of the American landscape, percentage plans necessarily afford undergraduate admission to some African American and Latino undergraduates in state college and university systems. They also permit poor whites from a state's poorer counties to benefit. The concept of geographical diversity retains populist appeal and will help to insulate the percentage plans from political attacks in the states. This is so, even though opponents of affirmative action may denounce them as just another pretext for discrimination against whites.

The major problem with the percentage plans is their inattention to law schools, medical schools, and other graduate and professional schools, where ending affirmative action is devastating.[35] At the law schools of the University of Texas at Austin, the University of California at Berkeley, and the University of California at Los Angeles, African American and Latino enrollment remain well below 1996 figures, which needed increasing not decreasing. Florida is proposing to voluntarily inflict this harm by ending affirmative action.

Florida should keep affirmative action unless forced to abandon it. California needs to address the steering of African American and Latino students to the less prestigious institutions in the system. Texas and California should, at the very least, address the need to admit more Latino and African American students to undergraduate, graduate, and professional programs.

The percentage plans are experimental responses to the attacks on affirmative action. But they are no substitute for strong race-conscious affirmative action in higher education.[36] What is required is a Supreme Court decision reaffirming Bakke and making affirmative action an imperative.[37]

Race-conscious affirmative action has not brought nearly enough black and Latino students into undergraduate, graduate, or professional higher education programs; the percentage plans will do no better and probably worse. While the battle rages in Florida, the Clinton Departments of Education and Justice need to leave the sidelines and enter the public debate to reinforce the President's support for affirmative action. In a February 7, 2000, letter to Commission Chairperson Mary Frances Berry, the Secretary of Education Richard Riley emphasized his agency s continued support of appropriately tailored affirmative action programs under the Constitution, Title VI of the 1964 Civil Rights Act and Title IX of the Education Amendments of 1972. [38]

The most positive aspect of the percentage proposals is that they shine a spotlight directly on the failure of the states to exercise their constitutional responsibility to ensure an equal opportunity to learn in K 12 for poor African American and Latino students.[39]

Civil rights activists need to insist that states fix K 12 education now instead of waiting for more task forces and partnerships to evolve. Governor Jeb Bush announced plans to increase need-based financial aid, provide equal access to Preliminary Standardized Achievement Tests (PSATs), expand access to more advanced placement courses, and to increase mentoring. If these plans actually come to fruition rather than remain rhetorical, then they should be welcomed. However, they will not improve the quality of K 12 education, nor will they substitute for affirmative action.

Civil rights activists must also insist that while we work to repair the pipeline, politicians not slam shut the doors for those who can do academic work now. To do so, would deprive all students of critically important opportunities, including the opportunity to learn from, and with, students who are different. This must be understood as an essential element of excellence in accordance with the mission of higher education institutions.

The goal is diversity, inclusion, opportunity, and a bright future for our nation in the world economy.