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Affirmative Action and Texas’ Ten Percent Solution: Improving Diversity and Quality

30 Pages Posted: 13 Mar 2012  

David Orentlicher

UNLV William S. Boyd School of Law

Date Written: March, 13 2012


As the federal courts become increasingly hostile to traditional affirmative action programs in higher education, it appears that racial diversity at colleges and universities will suffer. Indeed, in the wake of Hopwood v. Texas' in the U.S. Court of Appeals for the Fifth Circuit, minority enrollment at the University of Texas School of Law declined dramatically. Progress toward a more integrated society may not only be slowed but even reversed.

This conservative shift in public policy may have a surprisingly radical effect, however. As universities in Texas and other states search for legally acceptable alternatives to the rejected affirmative action programs, they may end up with approaches that are less effective at promoting racial diversity in the short run but that may prove equally effective in the long run. By generating unexpected benefits for another critical problem in the United States -- the poor quality of many primary and secondary public schools -- the alternative approaches may do as much as traditional affirmative action programs to overcome some of the causes for lower academic achievement by minorities.

In this article, I focus on one alternative approach that holds considerable promise. In 1997, the Texas legislature ordered each of the state's public undergraduate institutions to admit all applicants whose grade point averages were in the top ten percent of their high school's graduating class. This strategy has been touted for its ability to encourage minority enrollment from high schools that have an overwhelmingly minority student body. What has gone unnoticed is the fact that the approach may do much to improve the public primary and secondary schools by altering incentives for school quality. Current incentives encourage politically influential parents of school-age children to prefer a two-tiered educational system in which their children attend the stronger schools and the children of politically weak parents attend the poorer schools. Under the Texas approach, parents have less to gain from concentrating their children at stronger schools and more to gain from dispersing their children over a larger number of schools. Accordingly, Texas' ten percent policy may lead to a public school system with smaller disparities in quality from school to school.

Keywords: affirmative action, achievement gap

JEL Classification: I28, K19

Suggested Citation

Orentlicher, David, Affirmative Action and Texas’ Ten Percent Solution: Improving Diversity and Quality (March, 13 2012). Notre Dame Law Review, Vol. 74, p. 181, 1998. Available at SSRN:

David Orentlicher (Contact Author)

UNLV William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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