HBA-KMH H.B. 1106 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1106 By: Rangel Higher Education 3/1/1999 Introduced BACKGROUND AND PURPOSE In Hopwood vs. The State of Texas, the Fifth Circuit Court of Appeals ruled that "for the admissions scheme to pass constitutional muster, the State of Texas, through its legislature, would have to find that past segregation has present effects; it would have to determine the magnitude of those present effects; and it would need to limit carefully the "plus" given to applicants to remedy that harm." Attorney General Dan Morales, in Letter Opinion No. 97-001, interpreted the decision thusly, "Hopwood proscribes the use of race or ethnicity, in the absence of a factual showing by an institution or the legislature which establishes: (1) either that the institution has discriminated in the not too distant past against the racial group benefited by the preference or that the institution has been a passive participant in acts of private discrimination by specific private actors against the benefited racial group; (2) that there exist present effects of the past discrimination that are not due to general societal discrimination; and, (3) that the scholarship is narrowly tailored to remedy those present effects. Unless or until these facts can be established, the consideration of race or ethnicity is expressly prohibited." H.B. 1106 sets forth legislative findings that past segregation by this state and its political subdivisions and public institutions has present effects, that those present effects are of sufficient magnitude to warrant remedial action, and that the remedies provided by this subchapter are narrowly tailored to eliminate the present effects of that past segregation. This bill also authorizes institutions of higher education offering graduate and professional programs, as well as general academic institutions, to use African-American race and Mexican-American national origin as a basis for admitting undergraduate students, granting scholarships, loans, and fellowships to undergraduate, graduate, and professional students (students), recruiting and retaining students, and administering private and governmental programs relating to students. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 51, Education Code, by adding Subchapter V, as follows: SUBCHAPTER V. POLICIES TO PROMOTE FULL PARTICIPATION IN HIGHER EDUCATION Sec. 51.821. PURPOSE. Sets forth the purpose of this subchapter. Sec. 51.822. DEFINITIONS. Defines "general academic teaching institution" and "institution of higher education" as assigned by Section 61.003. Sec. 51.823. LEGISLATIVE FINDING. Sets forth the legislative findings for this subchapter. Sec. 51.824. UNDERGRADUATE PROGRAMS. Authorizes each general academic teaching institution to consider African-American race and Mexican-American national origin as a factor in admitting undergraduate students, granting scholarships, loans, and fellowships to undergraduate students, recruiting and retaining undergraduate students, and administering private and governmental programs relating to undergraduate students. Sec. 51.825. GRADUATE AND PROFESSIONAL PROGRAMS. Authorizes each institution of higher education that offers a graduate or professional degree program to consider African-American race and Mexican-American national origin as a factor in admitting students to those programs, granting scholarships, loans, and fellowships to students enrolled in those programs, recruiting and retaining students in those programs, and administering private and governmental programs relating those programs. Sec. 51.826. ANNUAL REVIEW AND REPORTS. Requires each institution of higher education that uses race or national origin in accordance with this subchapter to apply the same criteria to all students, using the same committees and same waiting lists, and requires the graduate school to minimize harm to any third parties. Requires each institution of higher education to which this subchapter applies, to annually evaluate its programs developed under this subchapter to determine their effectiveness, the availability of equally or more effective alternatives, and the harm, if any, to third parties, and requires them to report on these matters to the governor, the lieutenant governor, the speaker of the house of representatives, the chair of the legislative committee of each house of the legislature with primary jurisdiction over higher education, and appropriate state agencies. SECTION 2. Emergency clause. Effective date: upon passage.