Monday, December 7, 2015

Standardized Admissions Tests: Affirmative Action's Lurking Issue


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.

3 comments:

  1. Very interesting approach. You support your claim very well. I had never thought of
    this side of the issue of AA. So I'm glad I read your column To bad the justices will not be considering this issue in the oral argumet (although I haven't read the entire
    transcript yet. If I may say so, you have a lot of talent in this area . Do well!

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    1. I'm glad you liked the article. After reading the transcript from OA today, I was admittedly shocked to find that the one justice who really raised this issue in any way was Justice Alito. If you're interested, you can look at pages 71-72 of the transcript for what he said about it. He even seemed to raise the point that higher SAT scores aren't correlated with higher academic achievement at UT. Justice Sotomayor later referred to what Alito had said about the disparate test scores, but she didn't seem to really question their use. It will be interesting to see if the issue comes up in any of their opinions.

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