The lawsuit challenging affirmative action in higher education would not have been filed, at least not by Abigail Fisher, if she'd graduated in the top 10 percent of her high school class. She just missed.
Fisher sued the University of Texas at Austin after it denied her admission. UT used a formula that included race as one factor. Fisher, who is white and a graduate of a Texas high school, says that any consideration of race in a university admission policy is unconstitutionally discriminatory.
There's a way that a Texas high school graduate can be admitted to the highly selective University of Texas, or Texas A&M, or any other Texas public university, regardless of race. In 1997, the Texas legislature adopted a "10 percent rule," saying that anyone in the top 10 percent of his or her Texas high school graduating class must be admitted. The law was enacted as a way to achieve diversity in the universities without mentioning race, gender, ethnicity, or other controversial and contestable factors. Because high schools in Texas, as in Arkansas, tend to be racially homogeneous, the law assures that a substantial number of black and Latino students will be admitted to the universities. It also assures that some highly regarded students will be rejected in favor of the 10 percenters. (The University of Arkansas happily enrolls a large number of gifted students who were shut out in Texas because of the 10 percent rule.)
Some UT administrators don't like the 10 percent rule, saying that it accounts for too many — three-fourths or more — of their entering freshmen. Under the 10 percent rule, a student who met only the minimal academic requirements at a substandard high school, and who did not excel otherwise, must be admitted ahead of a student who took the hardest courses and was a leader in extracurricular activities, but who was in only the top 12 percent at a school with tougher requirements. Proposals that the 10 percenters be capped at half of a university's entering class, or that 10 percent be changed to 7 percent, have been made but not yet approved.