Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), was the first successful legal challenge to a university’s affirmative action policy in student admissions since Regents of the University of California v. Bakke, 438 U.S. 265 (1978). In Hopwood, four white plaintiffs who had been rejected from The University of Texas School of Law challenged the institution’s admissions policy on equal protection grounds and prevailed. After seven years as a precedent in the Fifth Circuit, the Hopwood decision was abrogated by the U.S. Supreme Court in 2003.

A proposal to scale back the state’s automatic admission law for public universities was tentatively approved Tuesday by the Texas Senate after several hours of debate.

The vote was 22-8. Senators are expected to grant final approval to the measure today. Then it would go to the House, where its prospects are uncertain.

The proposal, authored by Sen. Florence Shapiro, R-Plano, would modify a 1997 law that entitles any student graduating in the top 10 percent of a Texas high school to enroll at any of the state’s 35 public universities.

The University of Texas increasingly has been the school of choice, with 81 percent of its current crop of freshmen from Texas having enrolled under the law.

“A university needs the ability to consider criteria other than just class rank,” Shapiro said.

UT officials say the rising influx of top 10 percent students leaves too little discretion to admit students with artistic, musical, leadership and other skills who don’t rank that high. No other public university in the state enrolls such a large contingent of top 10 percent students or has called for limits on the law.

Shapiro’s measure, as amended on the Senate floor, would allow UT and any other public university to limit top 10 percent students to 60 percent of entering freshmen from Texas.

The first 50 percent would be filled out by accepting the top 1 percent, 2 percent and so forth. The additional 10 percent would be chosen from the pool of remaining top 10 percent students based on numerous factors in addition to class rank. A university would be free to choose from top 10 percent and non-top 10 percent students for the final 40 percent.

The proposal includes a provision that, subject to getting funding, would allow an undetermined number of top 10 percent students with financial need to receive grants of up to the full cost of tuition to attend any of the state’s public universities. Details would be left up to the Texas Higher Education Coordinating Board.

Sen. Steve Ogden, R-Bryan, who is chairman of the Senate Finance Committee, said he wants to set aside $56 million for such aid.

Shapiro’s measure includes a provision that would “sunset” the limitations on the top 10 percent law after eight years — meaning they would expire at that time unless the Legislature extends the limits. That is intended to pressure UT to use its additional discretion on admissions to boost enrollment of blacks and Hispanics, a primary purpose of the 1997 law.

The proposal could face a tough fight in the House, which rejected a nearly identical measure two years ago after approving similar bills in two previous legislative sessions.

Some House members and leaders of civil rights and minority organizations have vowed to fight any weakening of the law. It has become a touchstone of merit-based opportunity for its supporters even though enrollment of black and Hispanic students at UT has not increased dramatically since its passage.

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