Since 1998, Texas has guaranteed admission to its state universities to any student who graduates in the top 10% of her high-school class. The 10% plan was designed to ensure diversity on campus without resorting to affirmative action. It works: 18.7% of the students at UT-Austin are Hispanic and 5.6% are black. Less than 1% of the top 10% students need special help to get through the curriculum. (One of the main criticisms of affirmative action is the “mismatch” theory: students are underqualified and fail and drop out at disproportionate rates.)
Yet, Texas administrators want to rewrite the rules to include racially-sensitive admissions. Many of their complaints are standard for any admissions administrator these days: there is more competition to get into college; students game the system; and administrators turn away many qualified, promising applicants. Instead of trying to undo a successful programme, Texas should either realise that its problems are shared by every elite university in this country or should radically expand the size of its entering class to take all of the promising students.
The pachyderm also notes that plans to re-write the rules are predicated on Gratz/Grutter: that a public university can use race-conscious admission as a part of academic freedom, so long as it does not impose quotas or use a numeric formula. (The Court rejected other grounds for affirmative action, such as remediation of past wrongs and a desire to have lawyers who will serve underprivileged communities.)
Reliance on Grutter is misplaced: the pachyderm notes that Grutter was a 5-4 decision, with Rehnquist, Scalia, Thomas, and Kennedy dissenting. O’Connor wrote the majority opinion. Given that the case is only a few years old, stare decisis will not play a role in upholding it; the three surviving dissenters, plus Roberts and Alito, will write the majority opinion that overturns it.