U.S. Commission on Civil Rights

Toward An Understanding of Percentage Plans in Higher Education:
Are They Effective Substitutes for Affirmative Action?

The United States Commission on Civil Rights is deeply concerned about the impact of Governor Jeb Bush's One Florida Plan ( Plan ) on remedying the state s history of legal discrimination in state contracting and achieving the goal of diversity and equal higher education opportunity in Florida. Unlike the election-mandated or court-ordered anti-affirmative action measures in California and Texas, Governor Bush self-compellingly issued Executive Order 99-281 on November 9, 1999,[1] ending race-conscious affirmative action in Florida one year before voters could face a ballot question instigated by Ward Connerly asking them to eliminate affirmative action in the state.

Bush s One Florida Plan includes a ban on the consideration of race and gender in state contracting and university admissions. Instead, Bush proposes increasing minority participation in state contracting by requiring the state procurement officers to try to find qualified minority businesses. In addition, the Plan guarantees state university admissions to high school seniors in the top 20 percent of their class, without regard to SAT or ACT scores. Bush would add $20 million to the student financial aid budget to pay the expenses.[2]

The development of specifics were left to a task force of education leaders who would make recommendations to the Board of Regents.[3] What the Regents and Bush's cabinet approved in higher education failed to include were the kinds of details that would make the Florida Plan at least as palatable as the Ten Percent Plan instituted in Texas.[4]

In Texas, the legislature, following the lead of African American and Latino legislators and education experts, adopted a Ten Percent Plan[5] ( Ten Percent Plan or Texas Plan ) in response to the appeals court decision in Hopwood v. Texas,[6] which outlawed race-conscious affirmative action programs in Texas higher education. The Texas Plan (House Bill No. 588), enacted in 1997, entitles the top 10 percent of the graduating class of each accredited high school in Texas to attend the University of Texas at Austin ( UT-Austin ), the university system's flagship campus, Texas A&M University ( Texas A&M ), or any other state university. Colleges and universities are permitted to require an essay, letters of recommendation, admissions and placement tests, fees, and an official high school transcript. Under the Ten Percent Plan, the students must take the ACT or SAT but only to determine the need for academic support and to track whether the scores can predict the success or failure of the students.[7]

In 1997, during the first post-Hopwood school year and prior to the passage of the Texas Plan, minority enrollment figures were down in the incoming freshman classes at UT-Austin and Texas A&M. At UT-Austin, freshman enrollment dropped by 4.3% for Hispanic students and by 33.8% for black students. At Texas A&M, freshman enrollment of Hispanic and black students dropped by 12.6% and 29% respectively. [8]

In 1998, the first year of the Ten Percent Plan, UT-Austin admitted a freshman class of students, some of whom came from low-income districts with inadequate schools. In a 1998 analysis of the first implementation of the Texas Plan, the UT-Austin admissions office reported, Though it is not possible to determine the precise impact of HB 588 on the University's freshman class one can see that when compared to the class entering in 1997, the class of 1998 is more diverse (34% minority compared to 32%) but not as diverse as the class that entered in 1996 which was 38% minority. [9]

During the second year of the Ten Percent Plan, the 1999 freshman class at UT-Austin was as diverse as the last class enrolled prior to the 1996 Hopwood decision.[10] This return to pre-Hopwood diversity figures is relative in that it disregards the fact that in 1999 the total applicant pool for blacks and Hispanics increased while the yield decreased in comparison to 1996 figures. In contrast, the yield for white students has remained the same as the number of white applicants increased (see table 2).

Table 1
The Effects of Hopwood on Minority Enrollment at UT-Austin

First-Time UT-Austin Freshmen, 1994 1999







White 3,893 4,081 4,159 4,730 4,399 4,447
64% 64.2% 64.7% 66.8% 65% 63%
Hispanic 880 935 932 892 891 976
14.5% 14.7% 14.5% 12.6% 13% 14%
Black 323 309 266 190 199 286
5.3% 4.9% 4.1% 2.7% 3% 4%
Total enrolled 6,086 6,352 6,430 7,085 6,744 7,040

Source: University of Texas at Austin, Office of Admissions, Implementation and Results of HB 588, Report 2 <www.utexas.edu/student/research/reports/>.

Table 2
UT-Austin (Undergraduate) Admissions Statistics



Applied Admitted Yield Enrolled Applied Admitted Yield Enrolled
Black 809 461 57.0% 266 953 438 46.0% 286
Hispanic  2,492 1,617 64.9% 932 2,677 1,497 55.9% 976
White 10,584 6,571 62.1% 4,159 10,621 6,656 62.7% 4,441

Source: University of Texas at Austin, Office of Admissions, Implementation and Results of HB 588, Report 2 <www.utexas.edu/student/research/reports/>. See also University of Texas at Austin, Office of Admissions, Student Profile <www.utexas.edu>.

The Texas Plan at UT-Austin has resulted in increased diversity in 1999 among the freshmen students admitted under the program in comparison to 1998 (see table 3). This increase in enrollment can be credited to various efforts aimed to encourage minority high school students to attend UT-Austin. Some of the innovative recruitment and retention programs include alumni-sponsored minority scholarships and a new scholarship initiative that targets students in the top 10 percent. The state also enacted a law requiring posters at each high school informing students about the Texas Plan and telling them how to apply. Texas State Senators Rodney Ellis and Royce West initiated a partnership between UT-Austin and Bank of America entitled the Texas Longhorn PREP (Partners Responding to Educational Priority) program.[11] The program is available to all top 10 percent high school students in Houston and Dallas, and its goal is to assist in their academic success in college.[12]

Table 3
Top 10% of Students Admitted to UT-Austin by Ethnicity
1997 1998 1999
(before HB 588) (first year of HB 588) (second year of HB 588)
White 2,262 2,561 2,753
Black 118 143 268
Hispanic 613 734 911

Source: University of Texas at Austin, Office of Admissions, Implementation and Results of HB 588, Report 2 <www.utexas.edu/student/research/reports/>.

Despite these relative gains, a comparison of the admittance rates in tables 2 and 3 reveals that in 1999 only 170 black and 586 Hispanic high school students were admitted to UT-Austin under general admission standards. Thus, it is clear that the absence of an affirmative action program at UT-Austin has detrimentally affected the admission of black and Hispanic students not in the top 10 percent of their high school class who pre-Hopwood might have been admitted.

These results show that a color-blind law in a racially segregated primary and secondary public school environment can promote some diversity in undergraduate admissions. However, the adverse impact on the admission of black and Hispanic high school students not in the top 10 percent shows that UT-Austin's failure to increase the yield while implementing the Texas Plan creates an ineffective replacement program when compared with the university's previous affirmative action policy. Severe decreases in the number of minority students enrolled in UT-Austin's graduate and professional schools enforce the need for race-conscious affirmative action.[13]

Undoubtedly, the end of affirmative action has resulted in a significant decline in the overall enrollment of black and Hispanic students at UT-Austin. This decrease reveals the need for the university to increase the yield in black and Hispanic undergraduate admissions. In order to address UT-Austin's low minority enrollment in graduate and professional schools, the Texas Legislature should consider creating a percentage plan program that provides special consideration to the top 10 percent of Texas college seniors applying to state postgraduate programs.

Prior to Hopwood and the Texas Plan, race-conscious affirmative action programs did not bring nearly enough black and Hispanic students into the state s flagship universities.[14] It is doubtful that the Texas Plan will be able to achieve enrollment figures in undergraduate and graduate school similar to pre-Hopwood numbers. But at least, the Ten Percent Plan makes it possible for some students to attend UT-Austin who after Hopwood might have been excluded.

Florida, unlike Texas, failed to provide for adequate remediation given Governor Bush s acknowledgement of the poor quality of K 12 schools attended by many African American and Latino students. His announcement of the extension of existing mentoring programs and the establishment of a task force to deal with K 12 inequities may help in the long run.[15] But for now, as Florida A&M President Frederick Humphries and others point out, students who graduate from low-performing minority schools might not have the 19 precollege credits still required by the state university system because of inadequate curricular offerings at their high schools. Humphries has suggested that the state fix the schools so that any failure to take the courses would be their choice, not the system's choice. [16]

Unfortunately, rather than focusing primarily on improving Florida's failing public schools, which under the Florida Constitution have the responsibility to provide a quality education to the state's school-age children,[17] Governor Bush made the implementation of the Opportunity Scholarship Program the centerpiece of his first year in office. This voucher program provides students in failing Florida public schools with state funds in the form of vouchers, which may be applied toward tuition fees in private schools.[18] The problem with this voucher plan is that it does nothing to ameliorate the deplorable conditions of Florida public schools and simply allows a small number of students to flee failing public schools.[19]

The recognition that the voucher plan failed to meet the Florida constitutional mandate that the state provide a free education through a system of public schools came on March 14, 2000, when Leon County Circuit Judge L. Ralph Smith Jr. ruled the Opportunity Scholarship Program unconstitutional.[20] He wrote that by providing state funds for some students to obtain a K 12 education through private schools, as an alternative to the high quality education available through the system of free public schools, the legislature has violated the mandate of the Florida constitution, adopted by the electorate of Florida.[21] Although Bush plans to appeal the decision, for now Judge Smith has ruled that the Governor is enjoined from taking further measures to implement the private-school tuition program. [22]

Bush s overreliance on his voucher program and failure to adequately address the problems in Florida's K 12 educational system are only part of the problem. In addition to K 12 deficiencies, Bush's plan at the university level could also be improved. For example, Bush's program, unlike that in Texas, does not require the state's most prestigious flagship institutions to admit students in the top 20 percent, if they choose to attend.[23] The Plan also makes no provisions for students who are qualified for admission but who are not in the top 20 percent of their class.

The Plan is an unprovoked stealth acknowledgment and acceptance that the existing school and housing segregation will never change and that longstanding efforts to remedy the race discrimination that was legal in Florida have been abandoned.[24] The Plan also voluntarily abolishes affirmative action with nothing to replace it that will ensure inclusion for people of color in graduate and professional education.

The Florida Plan, approved by the Regents, failed as well, to clarify how students would be admitted, and what rights they have so that students would not have to pay multiple application fees to apply to every institution, hoping one or some will take them. The Governor's accountability measures include a commission established to evaluate whether the program is admitting minority students over the next three years and requests that the Chancellor include meeting diversity goals in the evaluation of university presidents, without specifying any goals.[25]

California s actions, since the Regents policy in 1995 abolished affirmative action,[26] have recently led to the announcement of a four percent plan.[27] The prestigious campuses of Berkeley and UCLA have yet to reverse the declines in enrollment of black and Hispanic students that occurred following the Regents policy that excluded affirmative action as a race-conscious remedy for the class beginning in 1998 at the undergraduate level and in 1997 at the graduate level.[28]

In March 1999, California announced a proposal to increase outreach efforts, and to ensure that the existing policy that students who rank in the top 4 percent of their junior-year class will be eligible for admission to the University of California starting in fall 2001.[29] The plan was developed to increase the system's overall eligibility pool to the top 12.5 percent of the state's high school seniors, a benchmark specified in the California Master Plan for Higher Education. During the past few years, the figure has slipped to 11.5 percent.[30]

Since the 4 percent group would constitute only a small portion of overall admissions, the effects on diversity at UC as a whole would be minimal. Also, the applicants would not be guaranteed admission to the campus of their choice. In fact, the denial of admission to the University of California's premiere flagship university, UC Berkeley, to qualified Pilipino, African American, and Latino high school students has prompted the Mexican American Legal Defense and Education Fund, the NAACP Legal Defense and Educational Fund, Inc., and the Asian Pacific American Legal Center of Southern California, to file a lawsuit against the University of California, Berkeley in federal court.[31] The case is a class action suit which alleges that UC Berkeley's admissions policies, which comply with the University of California Regents adoption of Resolution SP-1 prohibiting the explicit use of race and ethnicity as criteria for admissions, violate federal antidiscrimination laws and the civil rights of African American, Chicano, Latino, and Pilipino American past and future applicants to the University of California at Berkeley, amounting to a denial of equal opportunity to compete for admission to undergraduate studies programs. The complaint alleges that UC Berkeley's current admissions process discriminates against Latino, African American, and Pilipino American applicants in several respects, including, but not limited to, the granting of unjustified preferential consideration to applicants who have taken certain courses that are less accessible in high schools attended largely by African American, Latino, and Pilipino American students ; as well as placing undue and unjustified reliance upon standardized test scores and to make judgements based on educationally insignificant differences in test scores. [32]

The complaint further alleges that [p]rior to its modification, the admissions process implemented by UC Berkeley considered race and ethnicity as criteria, among others, in a manner that mitigated, to some degree, the adverse impact of other components of the process that discriminated against minority applicants. In the absence of such mitigation, the current admissions process discriminates against African American, Latino, and Pilipino American applicants. Specifically, the complaint alleges that when comparing only applicants with a grade point average of 4.0 or higher, African American, Latino and Pilipino American students were denied admission at far higher rates than white students. For example, UC Berkeley admitted 48.2% of white applicants with GPAs of 4.0 or higher but only 31.6% of Pilipino American, 38.5% of African American, and 39.7% of Latino applicants with such GPAs. [33]

Additionally, the complaint alleges that [t]he current admissions process is inconsistent with UC Berkeley's educational mission. UC Berkeley has failed to demonstrate that the selection criteria utilized in its current admissions process are valid and necessary to achieve the university's educational mission. Although alternative criteria and admission methods exist that are consistent with the university's educational mission and that would have less disparate impact upon minority applicants, UC Berkeley has failed to adopt or to implement them. Therefore, Defendants adoption, implementation, and refusal to modify the current admissions process violates Title VI of the Civil Rights Act of 1964, the United States Department of Education regulations implementing Title VI (34 C.F.R. 100.1, et seq.), and the Fourteenth Amendment to the United States Constitution. [34]

In conclusion, the percentage plans may succeed as an effective public relations strategy. They could gain broad appeal because they focus on the goal that everyone should have an equal opportunity to learn in higher education. There is general American acceptance of the notion that hardworking students should not be deprived of an equal chance at the best public higher education opportunity because their schools did not offer them a chance to take certain courses.

Percentage plans are also a good public relations strategy because they fit into an educational history having nothing to do with race. States have long had policies that allowed graduates in the top percentage of a high school to attend the capstone public university. These policies existed well before the use of SATs and ACTs for admission decisions. Geographic diversification, without regard to the quality of the schools in different regions, ensured public support for the flagship institution. Because racial segregation dominates much of the American landscape, percentage plans necessarily afford undergraduate admission to some African American and Latino undergraduates in state college and university systems. They also permit poor whites from a state's poorer counties to benefit. The concept of geographical diversity retains populist appeal and will help to insulate the percentage plans from political attacks in the states. This is so, even though opponents of affirmative action may denounce them as just another pretext for discrimination against whites.

The major problem with the percentage plans is their inattention to law schools, medical schools, and other graduate and professional schools, where ending affirmative action is devastating.[35] At the law schools of the University of Texas at Austin, the University of California at Berkeley, and the University of California at Los Angeles, African American and Latino enrollment remain well below 1996 figures, which needed increasing not decreasing. Florida is proposing to voluntarily inflict this harm by ending affirmative action.

Florida should keep affirmative action unless forced to abandon it. California needs to address the steering of African American and Latino students to the less prestigious institutions in the system. Texas and California should, at the very least, address the need to admit more Latino and African American students to undergraduate, graduate, and professional programs.

The percentage plans are experimental responses to the attacks on affirmative action. But they are no substitute for strong race-conscious affirmative action in higher education.[36] What is required is a Supreme Court decision reaffirming Bakke and making affirmative action an imperative.[37]

Race-conscious affirmative action has not brought nearly enough black and Latino students into undergraduate, graduate, or professional higher education programs; the percentage plans will do no better and probably worse. While the battle rages in Florida, the Clinton Departments of Education and Justice need to leave the sidelines and enter the public debate to reinforce the President's support for affirmative action. In a February 7, 2000, letter to Commission Chairperson Mary Frances Berry, the Secretary of Education Richard Riley emphasized his agency s continued support of appropriately tailored affirmative action programs under the Constitution, Title VI of the 1964 Civil Rights Act and Title IX of the Education Amendments of 1972. [38]

The most positive aspect of the percentage proposals is that they shine a spotlight directly on the failure of the states to exercise their constitutional responsibility to ensure an equal opportunity to learn in K 12 for poor African American and Latino students.[39]

Civil rights activists need to insist that states fix K 12 education now instead of waiting for more task forces and partnerships to evolve. Governor Jeb Bush announced plans to increase need-based financial aid, provide equal access to Preliminary Standardized Achievement Tests (PSATs), expand access to more advanced placement courses, and to increase mentoring. If these plans actually come to fruition rather than remain rhetorical, then they should be welcomed. However, they will not improve the quality of K 12 education, nor will they substitute for affirmative action.

Civil rights activists must also insist that while we work to repair the pipeline, politicians not slam shut the doors for those who can do academic work now. To do so, would deprive all students of critically important opportunities, including the opportunity to learn from, and with, students who are different. This must be understood as an essential element of excellence in accordance with the mission of higher education institutions.

The goal is diversity, inclusion, opportunity, and a bright future for our nation in the world economy.

[1] Executive Order 99-281 was issued by Governor Jeb Bush on Nov. 9, 1999 <http://www.state.fl.us/eog/executive_orders
/1999/november/eo99-281.gtml>. See Attachment A.

On Thursday, Feb. 17, 2000, the Florida Board of Regents approved Governor Jeb Bush's One Florida Initiative. Atlanta Constitution, Feb. 18, 2000.

[2] See One Florida Initiative Remarks by Governor Bush: Announcement of the One Florida Initiative, Tallahassee, Florida, Nov. 9, 1999. WebCast of the One Florida Press Conference <http://www.state.fl.us/eog/one_florida/remarks_original. html> pp. 1 7.

[3] See Talented 20 task force named, Florida Board of Regents Web site at < http://www.borfl.org/releases/press/prs /talented%2020%20task%20force.asp>.

[4] TEX. EDUC. CODE ANN. 51.803(a) (West 1998).

[5] Id.

[6] Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996).

[7] University of Texas at Austin, Office of Admissions, Implementation and Results of HB 588, Report 1 <www.utexas.edu/ student/research/reports/>.

[8] Danielle Holley and Delia Spencer, The Texas Ten Percent Plan, 34 Harv. C.R.-C.L. L. Rev. 245, 251 (1999).

[9] University of Texas at Austin, Office of Admissions, Implementation and Results of HB 588, Report 1 <www. utexas.edu/student/research/reports/>.

[10] University of Texas at Austin, Office of Admissions, Implementation and Results of HB 588, Report 2 <www. utexas.edu/student/research/reports/>.

[11] Telephone interview with Rick Svatora, legislative aide to State Senator Rodney Ellis (Mar. 15, 2000).

[12] Ibid.

[13] Attachment B, The Effects of Hopwood on Minority Postgraduate Enrollment at UT-Austin, 1995 1999.

[14] Although blacks and Hispanics constitute 40 percent of Texas population, neither flagship university (UT-Austin or Texas A&M) has ever enrolled a student body composed of more than 15 percent minority students. See Harvard article, p. 247.

[15] Governor Bush concedes in a 15-page Web-published report entitled Governor Bush's One Florida Initiative: Governor Bush's Equity in Education Plan the existence of glaring disparities between the opportunities for African American and Hispanic students and the opportunities for white students, yet his plan does little to address such disparities.

For example, Florida public schools are ranked on the basis of performance on a scale ranging from A to F ; A being the best and F being the worst. The report also states that Florida schools, which are ranked as A or B schools, have dropout rates of only 1%, and 67% of students pass the reading component of the FCAT. This is not the case in Florida schools ranked at the D and F levels. Such schools have dropout rates of 5.6% annually, and only 27% of students pass the reading component of the FCAT.

Further, out of the 65 Florida schools ranked at the D and F levels, 72% of the enrolled students are African American and Hispanic, while 26% are white and 70 percent of enrolled students at those same D and F schools are poor or come from low socioeconomic backgrounds. Admittedly, the report states that [b]ased on these numbers, it is obvious that minority and poor students are more likely to feel the impact of this gap.

Bush also concedes that minorities are more likely to attend low-performing schools, where in many cases they have been assigned to less-qualified teachers, have had fewer curriculum opportunities, and have been expected to achieve less than students in higher-performing schools. Nevertheless, the 20 percent plan does little to immediately address such inequities. His plan includes a recommendation to make funding available to low-performing high schools to access an extremely limited number of online AP courses; a recommendation to target funds that are currently reserved for teacher training and for assistance to low-performing schools and directing them to provide teacher training and support for higher-level courses in low-performing high schools ; as well as a recommendation to require school districts to provide options for students to gain access to higher level college preparatory courses. However, there are no guidelines for how these suggestions are to be implemented, how long such recommendations would take to be implemented, and it does not include predictions on the likelihood of their success.

Further, Bush also admits to the disparities in advanced placement (AP courses): [N]ot all schools in Florida offer AP courses, or have the same rates of AP enrollment. . . . [S]tudents in Florida's A and B schools are four times more likely to enroll in AP English and five times more likely to enroll in AP math courses than students in D and F schools. Twenty-five counties offer no AP courses at all. See Governor Bush's One Florida Initiative: Governor Bush's Equity in Education Plan at Governor of Florida Jeb Bush's Web site at <www.flgov.com>. These concerns over accountability and equal opportunity were echoed by Beatrice Louissaint, head of the Black Business Association, and member of the accountability commission overseeing Governor Bush's One Florida Initiative, in a Sun-Sentinel article when she stated that she had not seen the teeth in this [One Florida Initiative] plan needed to ensure equal opportunity and equal access. Marcia Heroux Pounds, Black Leaders: We'll Hold Jeb's Feet to Fire Over This, Sun-Sentinel, Feb. 25, 2000.

[16] Karla Schuster, Regents Approve One Florida Plan: Controversial Proposal Ends Race-Based Preferences in Student Admissions to Colleges, Sun-Sentinel, Ft. Lauderdale, Feb. 18, 2000.

[17] FLA. Const. of 1885, art. IX, 1 (1968).

[18] Opportunity Scholarship Program. Florida Stat. 229.0537 (1999).

[19] Lesley Clark and Analisa Nazareno, Bush Suffers Legal Setback as Judge Decides Vouchers are Unconstitutional, Miami Herald, Mar. 15, 2000.

[20] Holmes v. Bush, No. CV 99-3370 (Fla. Cir. Ct., Leon County, Mar. 14, 2000).

[21] Id. at 2.

[22] Holmes v. Bush, No. CV 99-3370 at 17 (Fla. Cir. Ct., Leon County, Mar. 14, 2000). Cheryl Wetzstein, Voucher Plan in Florida is Ruled Illegal; Judge Says Scholarship Law Violates State Constitution, Washington Times, Mar. 15, 2000.

[23] Although the Governor's office states that minority enrollment at Florida flagship universities, the University of Florida and Florida State University, will not decline, there is no offering of evidence to the contrary. The statements contained in the article Florida Initiative-One Florida Myths and Truths paint an overly optimistic picture of the 20 percent plan's implementation. See Florida Initiative-One Florida Myths and Truths at Governor of Florida, Jeb Bush's Web site at <www.state.fl.us/eog/one_florida/myths.html>. In fact, even the University of Florida admissions director Bill Kolb admits that the effect of the 20 percent plan on minority admissions is difficult to predict. Mary MacDonald, Panel Suggests Other Admissions Factors, Florida Times-Union, Jacksonville, Dec. 4, 1999.

[24] University of Florida Regents estimate that . . . [the 20 percent plan] not only would maintain diversity but also might bring 400 more minority students to enroll this fall. This is an almost irrelevant increase, however, to a system that admitted some 27,000 freshman last year. Of the 220,000 total students in the system, 32 percent are minorities, records show. But the numbers are skewed by Florida A&M University, the historically black university that in 1998 claimed a 99 percent minority student body. In contrast, the state's oldest and most selective college, the University of Florida, is only 5.5 percent black and 9 percent Hispanic. Grace Frank, Regents Likely to OK One Florida, Tampa Tribune, Feb. 2, 2000.

[25] See One Florida The Next Step Forward, Remarks of Governor Jeb Bush, Feb. 16, 2000 <www.state.fl.us/eog/one_ florida/remarks_original.html>.

[26] On July 20, 1995, the Regents of the University of California approved an admissions policy called SP-1 which prohibited all schools in the University of California system from using race, religion, sex, color, ethnicity, or national origin as criteria for admission to the University or to any program of study. The Regents of the University of California Web site at <ucop.edu/regents/policies/sp1.html>. See Attachment C.

[27] University of California Regents Item 303. Endorsement of the Recommendation of the Academic Senate of the University of California to Establish U.C. Freshman Eligibility in the Local Context. Mar. 18, 1999.

[28] Since the UC Board of Regents policy first took affect in 1998, the numbers of enrolled American Indian, African American, Chicano, Latino, and Pilipino students have decreased significantly. In fact, the numbers of first-time California resident freshman American Indian students in the University of California system have gone from 183 in 1997 to 168 in 1998 to 140 in 1999. This amounted to a 15.7 percent decrease from 1997 (the year preceding the implementation of SP-1) to 1999 in American Indian enrollment alone. University of California Office of the President, Student Academic Services, Application Flow Reports, 1999. See Attachment E.

Total enrollment for American Indians at UCLA has also been on a steady decline since 1997. In 1997, UCLA had 203 American Indian students enrolled, in 1998 177, and in 1999 147. Even after controlling for fluctuations in total student population, the Native American population has decreased at UCLA by at least 10 percent each year since SP-1 took effect. See Attachment F.

At UCLA, freshman enrollment during the period of 1997 to 1999 dropped for African Americans from 5.6 percent in 1997 to 3.8 percent in 1999. For Chicanos, the drop for the same period went from 11.9 percent to 9.4 percent. Similarly, at UC Berkeley, African American first-year enrollment dropped from 7.8 percent in 1997 to 3.8 percent in 1999. For Chicanos at Berkeley, enrollment went from 12 percent in 1997 to 6.8 percent in 1999. See University of California Office of Admissions, 1999. See Barbara Whitaker, Minority Rolls Rebound at University of California; But Disparity Persists at Main Campuses, New York Times, Apr. 5, 2000.

Most drastic, however, are the effects that UC Regents decision SP-1 and Proposition 209 have had on graduate enrollment. See Attachment G. In 1996 African American enrollment of first-year law students at UCLA was 6.2 percent. In 1999 that figure dropped to less than 1 percent. At UC Berkeley s law school, African American first-year enrollment went from 7.6 percent in 1996 to 2.6 percent in 1999. Similarly, Hispanic and Native Americans also saw their numbers decrease at the law school level in the years following SP-1 and Proposition 209. In 1996 Hispanic enrollment at UCLA School of Law for first-year students was 14.8 percent. In 1999 that figure was 6.2 percent. Hispanic enrollment at UC Berkeley's law school was at 10.6 percent in 1996 and dropped to 5.9 percent in 1999. Native American students at UCLA School of Law and UC Berkeley's law school dropped from approximately 1.5 percent in 1996 to less than 1 percent in 1999 (UC Admissions Office).

[29] The University of California Board of Regents Friday (Mar. 19) approved changes in freshman eligibility that will make the top 4 percent of students from all California public high schools University of California eligible. Board of Regents Adopts New Eligibility Plan, University of California Office of the President Press Release. Mar. 19, 1999. See Web site at <www.ucop.edu/ucophome/commserv/fourpcsol.html>. See Attachment D.

[30] Renda Rutmanis, University of California System Adjusts Admissions Policies Through Time, Daily Californian, Mar. 15, 2000.

[31] Rios et al. v. Regents of Univ. Cal., No. C 99-0525 SI (N.D. Cal. filed Mar. 24, 1998).

[32] Id. at 1.

[33] Id. at 3.

[34] Id.

[35] Since the ending of affirmative action in California the numbers of students enrolled in graduate programs have significantly decreased for Native Americans, African Americans, Chicanos, Latinos, and Pilipinos at the flagship University of California institutions at Los Angeles and Berkeley. See Attachment F. The Florida plan could potentially cause the same disaster in the future if efforts are not made to ensure that diversity is maintained.

[36] Many state and national black leaders have condemned Governor Bush's plan. The Florida branches of the National Association for the Advancement of Colored People (NAACP) has appealed the Governor's plan to end affirmative action in state university admissions by filing a petition with the state Division of Administrative Hearings, contesting votes taken . . . [on the approval of the elimination of affirmative action] by the state Board of Regents and Bush and the Cabinet, sitting as the state Board of Education. In the petition the NAACP characterizes the Governor's plan as arbitrary and capricious, and asks that an administrative hearing judge be allowed to decide whether the proposed rules are irrational in that they simultaneously purport to commit to increasing diversity and equal educational opportunities while prohibiting consideration of the facts that establish diversity and contribute to the need for equal educational opportunity . Orlando Sentinel, Feb. 26, 2000.

[37] Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

[38] Richard W. Riley, U.S. Department of Education, letter to Mary Frances Berry, Chairperson, U.S. Commission on Civil Rights, Feb. 7, 2000, p. 1.

[39] The state of public K 12 education for poor Latino and African American students has become a national problem. In California, for example, University of California admissions officials, in the wake of the approval of UC Regents decision SP-1 and Proposition 209, no longer take race into consideration in their admissions decisions. Instead, they have increasingly relied on high school grades and test scores. In July of 1999, the American Civil Liberties Union (ACLU) filed a class action law suit against the California Department of Education on behalf of four students attending Inglewood High School in Los Angeles, California. The complaint alleges that the lack of advanced placement (AP) courses which are offered at some California public high schools and not others constitutes a violation of students state constitutional guarantee of equal educational opportunities for all.

These inequities are demonstrated by the fact that according to State Education Department data, 129 California public high schools, with 80,000 students, do not offer any AP classes. Louis Sahagun and Kenneth R. Weiss, Bias Suit Targets Schools Without Advanced Classes, Los Angeles Times, July 28, 1999.

Further, Inglewood High School, which has a student body that is 97 percent Latino and African American, offers only three AP courses. Whereas, Beverly Hills High School, which has a student body that is 8 percent people of color, offers 14 AP courses. Torri Minton, Ahead but Already Behind, San Francisco Chronicle, Aug. 22, 1999.

In California, blacks and Latinos make up 45 percent of the high school population but only 13 percent of the advanced-placement test takers. The shortfall of advanced placement courses has been found to afflict rural areas as well, placing low-income whites at a competitive disadvantage when they apply to college. As a class-action suit, the ACLU complaint covers similarly situated persons, which includes these rural whites. Brent Staples, California Schools, After Affirmative Action, New York Times, Aug. 23, 1999.