Fisher v. Texas and the Texas Ten Percent Plan Revisited

(Ilya Somin)

Joshua Thompson of the Pacific Legal Foundation has an interesting response to my post arguing that a victory for the plaintiffs in the Fisher v. Texas case could turn out to be a pyrrhic victory for opponents of racial preferences, if it is coupled with an endorsement of the Texas ten percent plan and other "facially neutral" efforts to extend racial preferences to certain minority groups without doing so openly.

In my last post and an earlier 2006 critique of the ten percent plan, I argued that measures like the ten percent plan are in many ways worse than traditional explicit affirmative action policies because they are less transparent and create more perverse incentives.

Thompson agrees with several of my points, but also takes issue with others. Here, I focus mostly on the areas of disagreement.

Thompson first argues that the ten percent plan actually is transparent because "finishing in the top ten percent of your high school class is an objective (race-neutral) criterion that can be judged on its face, and permits no obfuscation by university admissions officials." It is true that the ten percent plan is "objective" in the sense that finishing in the top ten percent in your high school class is a verifiable fact. What is not transparent, however, is the racial motivation behind the adoption of the ten percent plan in the first place. With traditional affirmative action, the racial goal is clear and unambiguous. With the ten percent plan, administrators can and do pretend that they aren't really doing anything racially motivated at all. In addition, it is difficult for the public to judge how much academic merit is being sacrificed by preferring people who graduated in the top ten percent at weak high schools over those who placed at lower percentiles at stronger ones.

Thompson also suggests that traditional affirmative action programs may sacrifice more academic merit than the ten percent plan does because "Preferences, definitionally, let in those who are less academically qualified. Under a preference regime, someone is getting in because of their skin color. Under the Top Ten Percent Law someone is getting in because of their grades." Actually, under traditional racial preferences, skin color is only one of several reasons why affirmative action beneficiaries get in. They also must have at least some academic qualifications, albeit lower than those required of other applicants. More importantly, this ignores the reason why the ten percent plan has a much greater negative impact on academic merit than traditional affirmative action: the former affects far more applicants. As I explained in my 2006 post:

[T]he ten percent plan affects a great many more admissions decisions than even the most rigid old-style affirmative action systems do. Rarely, if ever, do traditional affirmative action plans determine the admission of more than 15-20% of a school's student body. By contrast, at the University of Texas at Austin, over 70% of the student body was admitted under the ten percent plan. While some of these students would surely have gotten in anyway, it is highly likely that the ten percent plan leads to much larger sacrifices of academic merit than do racial preferences similar to those used at most other academic institutions.

Finally, Thompson partially rejects my point that facially neutral means of preferring some racial groups over others are just as unconstitutional as racially explicit ones. In response to my historic examples of facially neutral poll taxes and literacy tests that were used to exclude black voters in the Jim Crow south, he notes that "poll taxes and literacy tests were never ruled per se unconstitutional." This is true, but irrelevant. They are unconstitutional in cases where they were enacted for the deliberate purpose of excluding black voters (or voters of any other particular racial or ethnic group). Similarly, the ten percent plan would be constitutional if it were enacted for nonracial reasons. But if enacted for the purpose of advantaging African-American and Hispanic applicants over members of other racial and ethnic groups, it is unconstitutional. Ultimately, however, I am not sure that we disagree very much on this aspect of the issue, since Thompson also states that the ten percent plan may be unconstitutional because "[i]t was undoubtedly passed in order to increase racial diversity throughout the University of Texas."

Where we continue to differ is over the question of whether a world in which racial preferences are pursued through "facially neutral," nontransparent means is preferable to one where such preferences are in the open for all to see, and inflict less social harm. I fear that if the Supreme Court strikes down the present University of Texas affirmative action plan, but endorses the ten percent plan and other similar programs, we will end up with a worse situation than one where explicit affirmative action plans remain legal.