On Wednesday,
the Supreme Court will hear oral arguments in
Fisher v.University of Texas at Austin for the second time, reviewing the constitutionality
of the school’s consideration of race in admissions. Although the question is
not explicitly before the Court, the case provides the justices a chance to
reconsider the constitutionality of race-conscious admissions more broadly.
In the
three higher education affirmative action cases in the past 12 years—
Gratz v. Bollinger (2003)
, Grutter v. Bollinger (2003), and
Fisher I (2013)—some justices and
advocates have called for an end to all race-conscious admissions programs, saying they violate the Fourteenth Amendment’s Equal Protection Clause. On the other
side, affirmative action supporters argue that such programs are needed to
ensure racial and ethnic diversity in colleges and universities. Each side
employs its own arguments and evidence to support their views, but the largest
unspoken issue in these cases has been colleges’ and universities’ use of
standardized admissions tests. These tests, like
the SAT,
theACT, and
the LSAT, result in significant differences in average scores between racial and
ethnic groups and contribute to racial disparities in college admissions,
whether race-conscious practices are used or not. In effect, these tests
operate as a serious advantage for white applicants.
Average 2012-2013 SAT Scores (on scale of 800)
|
|
Critical Reading
|
Math
|
White
|
527
|
534
|
African American
|
431
|
429
|
Mexican American
|
449
|
464
|
Source:
National Center for Education Statistics. Note: Latino/Hispanic test-takers are
disaggregated by nationality. “Mexican American” is the largest nationality
among Latino test-takers and similar to scores for other nationalities.
These tests
are supposed to be an objective measure of merit, but the source of the
disparities is disputed. Some argue that the disparities result from
test-takers environmental factors, like inadequate K12 education or
socioeconomic class. Few today attempt a biological explanation, though
historically,
intelligence testing—the precursor to standardized admissions tests—was tied to
a belief in eugenics and the biological superiority or inferiority of
particular racial and ethnic groups. Still others argue that the tests contain
a
culturalbias, that the tests are designed from the point of view of middle- to
upper-class white culture, and as a result, scores are tied closely to racial
and socioeconomic status.
One could
argue that even if there is a cultural bias in tests like the SAT, it only
reflects the culture of academia and so identifies which applicants would be
better suited for a particular school. That argument, however, fails to account
for the ever-increasing diversity of the country and whether such an important
institution as higher education, with the opportunities it bestows, should have
to change to reflect that cultural diversity. Whatever reason one chooses to
explain the racial and ethnic disparity in test scores, there is no disputing
that the disparities result in fewer people of color, particularly African
Americans and Latinos, being admitted to American colleges and universities.
While today
justices on the Supreme Court rarely remark upon the test score disparities and
the validity of the tests goes unquestioned, that was not always the case. In
the two higher education affirmative action cases of the 1970s,
DeFunis v. Odegaard (1974) and
Regents of the University of California v.Bakke (1978), multiple justices raised these issues, both during oral
arguments at the Court and in their opinions in the cases. The strongest views
came from Justice William O. Douglas in his dissent in
DeFunis. Because the plaintiff in
DeFunis had since been admitted to the law school he was suing and
was about to graduate at the time the Court heard the case, a majority of the
Court ruled the case was moot and did not address the constitutionality of
affirmative action. Justice Douglas, however,
wrote a dissent in which he reached the merits of the case. In his opinion, he
denounced the LSAT as culturally biased and called for its “abolition.” Citing
his experience as a law professor, he also argued that a single multiple-choice
test could never account for an applicant’s full abilities and stated that the
“melting pot is not designed to homogenize people.”
In
Bakke four years later, justices again
directly addressed test score disparities and the validity of test use, though
they disagreed about its relevance to the case. In these earlier cases, the
widespread adoption of standardized admissions tests was a development of
recent decades. In the early 1960s, for example, the University of California
had
originally rejected adoption of the SAT, determining it was unhelpful in predicting
an applicant’s abilities. Having not been subject to the tests themselves, these
justices may have been more likely to question their use and validity.
By
contrast, in the affirmative action cases of the past 12 years, the justices
have virtually ignored the racial and ethnic disparities in standardized
admissions test scores. This change reflects the change in approach toward
racial justice issues at the Court more generally. No justice in the 1970s set
forth a “colorblind” view of the Constitution, and even the counsel arguing
against the affirmative action program in
DeFunis
stated, “there
are plenty of affirmative action programs that can be undertaken to get more
minorities into the law schools, and we are in favor of that.” By the time the
Court heard
Fisher in 2012, four
justices believed that Equal Protection Clause forbids any overt consideration
of race by state actors, and a fifth justice is highly skeptical of such use of
racial categories. Among those same justices, practices that are race-neutral
on their face are permissible, even if they result in demonstrable and
significant racial and ethnic disparities. In her 2010 book
The New Jim Crow: Mass Incarceration in the Age of Colorblindness,
author Michelle Alexander details how this view of “colorblindness” led the
Court to condone serious racial disparities in criminal prosecutions and
sentencing, as long as the government officials never openly considered race. The
same logic would apply to standardized testing: as long as the tests do not
directly acknowledge racial or ethnic differences, their score gaps are
permissible.
Ironically,
some schools have cited test score disparities as a reason for needing
affirmative action, rather than reconsidering their use of the tests to help
further the goals of affirmative action. In an
amici curiae, or friend-of-the-court, brief filed in
Fisher I, a group of
“thirty-seven private, highly selective” colleges supporting race-conscious admissions
acknowledged “the expensive likelihood that differential admission rates in SAT
bands after such a decision [striking down affirmative action] would be
attacked as
prima facie evidence of unlawful discrimination, with colleges left
to prove that they did not exclude on the basis of race.” In other words, these
colleges argue that without the ability to consider race in admissions, they
could be sued for knowingly using tests that result in differences in average
test scores by race. Oddly, these schools, claiming to support the aims of
diversity, do not suggest ending their requirement of standardized admission
tests scores for applicants, even as they acknowledge that those scores produce
a discriminatory result.
This
reaches the crux of why standardized admissions tests have not been seriously
challenged in affirmative action cases: white applicants suing a university over
race-conscious admissions have little to gain by bringing up test disparities
that advantage them, and the school that is being sued would not do well to
acknowledge they are using a test with discriminatory results. The issue, then,
is ignored and because affirmative action in higher education has thus far been
upheld by the Court, the use of the tests remains undisturbed. One sitting
justice, though, has raised the issue directly. Justice Clarence Thomas wrote
in
his 2003 dissent in Grutter, a case involving law
school admissions, that “no modern law school can claim ignorance of the poor
performance of blacks, relatively speaking, on the Law School Admissions Test.”
He went on to raise the seemingly obvious assertion that nothing requires a
college or university to use standardized admissions tests and that this
“intractable approach toward admissions is striking.”
Of course,
Justice Thomas, the staunchest opponent of affirmative action on the Court, was
making that point to argue against race-conscious admissions. But even
affirmative action supporters could find common ground with his specific complaints
regarding the LSAT, and other standardized tests. Even if colleges and
universities were to stop using the tests, they would still have a need for race-conscious
admissions, because racial disparities plague other areas of the admissions
process as well. Yet, requiring standardized admissions tests scores is
probably the most obvious and easily documented problem when it comes to
ensuring equity in admissions. If the Supreme Court were to strike down, or
severely narrow, race-conscious admissions, in Fisher II, standardized admissions tests will likely become an area
of major contention for racial justice advocates. Minority enrollment would
inevitably decrease as a result of such a ruling against affirmative action,
and colleges and universities would have to justify their continued use of
those tests, whether in their own efforts to maintain diverse student bodies,
in response to outside pressure from activists, or in litigation that may
follow.
When the
Supreme Court again confronts race-conscious admissions in Fisher II this week, the racial disparities in standardized admissions
test scores and the very validity of the tests will likely go unexamined by the
justices and the advocates before the Court. But supporters of affirmative
action and racial justice activists ought to raise awareness of this these faulty
measures of “merit” and the inequity they produce in college admissions.
