On April 9, 2013, the Texas Senate approved a bill allowing the University of Texas at Austin (UT-Austin) to maintain its cap on automatic admissions through at least 2017 no matter the U.S. Supreme Court’s decision in Fisher v. University of Texas, leaving room for consideration of factors other than grade point average (G.P.A.) in freshman admissions decisions. The bill was received by the House on April 10, 2013. It extends the current rule, which guarantees automatic admission to the top 10 percent of high school students to all Texas state universities, through the 2017-2018 academic year. The bill also maintains a 75 percent cap on the number of top 10 percenters who can enroll at UT-Austin. This will both allow admission of underrepresented students who are in the top 10 percent and leave room for non-top 10 percent applicants, who will continue to make up 25 percent of the freshman class.

Fisher was filed by Abigail Fisher and Rachel Michalewicz, who were denied admission to the UT-Austin in 2008. The case challenges the university’s consideration of race as a factor in admissions for students who are not automatically admitted under the state’s “Top 10 Percent” law. According to the lawsuit, the university admitted African-American and Hispanic applicants who received preferential consideration by admissions officers based on being underrepresented minorities. A district court upheld the legality of the admissions policy in 2009.

The case asks the U.S. Supreme Court to either declare the UT-Austin admissions policy to be inconsistent with Grutter v. Bollinger, 539 U.S. 306 (2003), in which the Court ruled that race could play a limited role in university admissions policies, or to overrule it. Following the U.S. Supreme Court’s decision in Grutter, Texas officials created a supplemental admissions program using race as one of several factors. It is the supplemental program that is challenged in Fisher. The question presented is whether the Equal Protection Clause of the Fourteenth Amendment permits consideration of race in undergraduate admissions decisions.

Back in Texas, the cap restricts automatic admissions at UT-Austin at 75 percent of the freshman class. It is currently set to expire in 2015, but if signed into law, Texas Senate Bill 1530 will allow the cap to continue after the Supreme Court’s decision and extend the cap at least through the end of the 2017-2018 academic year. Currently, the university is allowed to cap the percentage of students admitted automatically because they graduated in the top 10 percent of their class to 75 percent of the incoming freshman class. This has the effect of only making automatic admission available to students in about the top 7 percent of their high school class, rather than the top 10 percent.

Without the cap, UT-Austin argues that virtually its entire freshman class would be admitted automatically, eliminating its ability to consider other factors in admissions. In addition, the state’s current law provides that, if a judge or governing board decides that UT-Austin’s admissions office cannot consider race, it can no longer cap automatic admissions at the school. With this bill, the Texas General Assembly is moving forward to ensure that UT-Austin has flexibility to consider factors other than whether potential incoming freshman graduated in the top 10 percent in admissions decisions. Such factors include not only race and ethnicity, but extracurricular activities, high SAT scores, and leadership experience. The Texas bill’s text as of April 10, 2013, may be accessed here.

Texas’s top 10 percent law was passed in 1997 as a way to boost minority enrollment after a court ruling temporarily prohibited admissions officials from considering an applicant’s race. The U.S. Supreme Court later ruled in Grutter that public colleges and universities can use race as a factor in deciding which students to admit. If Grutter is reversed by Fisher, look for other states to adopt race-neutral top 10 percent (or similar) admission policies to achieve racial, economic, and geographic diversity at their public universities. California and Florida have already followed Texas’s example: Florida grants automatic admission to the University of Florida system to students in the top 20 percent of their high school class, and automatic admission to the University of California system is available to students in the top 4 percent of their class.


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Ogletree Deakins is an industry leader in higher education legal practice. Our attorneys have decades of experience advising and defending public and private, religious and secular colleges, universities, and vocational schools.

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