October 3, 2009
"Testing" Affirmative Action: Saturday Evening ReviewThe relationship between the Equal Protection Clause and the 1964 Civil Rights Act (especially Titles VI and VII) was once an amicable one. Indeed, it was so amicable that one could conveniently ignore the Civil Rights Act when teaching equal protection doctrine; a student query about a reference to Title VI or Title VII could be answered summarily.
Contemporary equal protection doctrine, however, renders any racial classification subject to strict scrutiny, with the consequence that a state actor trying to comply with the 1964 Civil Rights Act and prevent racial disparities may be successfully sued for considering race. In his concurring opinion in Ricci v. DeStefano, Justice Scalia wrote
The Court's resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how- - - and on what terms - - - to make peace between them.
Another battleground in the affirmative action "war" (to use Scalia's term) is between state ballot initiatives (such as the post-Grutter Proposal 2 in Michigan) and the federal law. A useful intervention in that "war," although probably not on the side that Justice Scalia would favor, is Professor Kimberly West-Faulcon's article, The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws, 157 U. Pa. L. Rev. 1075 (2009). West-Faulcon's focus is the
tension between state anti-affirmative action laws and federal antidiscrimination law. Consequently, with seemingly little regard for Title VI federal civil rights law, public universities have been prone to assume that “affirmative action-less” admissions policies and plunging minority admissions are the inevitable outcome of compliance with state anti-affirmative action laws. At an affirmative action-less university, the river runs dry--the institution virtually stops admitting certain racial groups and presumes that state anti-affirmative action laws dictate such a result. This Article challenges this framing. Its point of departure is to explain how the prominent role of the SAT in selective college admissions, dictated in large measure by its importance in college-ranking and financial bond-rating systems, creates an incentive for universities to adopt “minority-deficiency” over “test-deficiency” explanations for racial differences in SAT scores.
Kimberly West-Faulcon (pictured right) notes that the "persistence of racial differences in SAT scores even when selecting among applicants with very strong academic credentials puts the SAT at the heart of the affirmative action debate" in the higher education context. She contends that "decades of analysis of SAT scores have shown a variety of group disparities when students are separated based on certain categories. Specifically, men score, on average, better than women; whites and some Asian groups score better than Latinos and African Americans; the rich score better than the poor; and city dwellers score better than students from rural communities." (footnotes omitted).
It is affirmative action admissions policies that can "counterbalance" these test outcomes. West-Faulcon's discussion, in footnote 122, provides the equal protection connection:
Interestingly, Justice Thomas, a staunch critic of race-based affirmative action, was the member of the Court in Grutter who most explicitly described the manner in which universities have traditionally used affirmative action as a corrective for the deficiencies in tests like the SAT:[N]o modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to “correct” for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body.... The [University of Michigan] Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test.
Grutter, 539 U.S. at 369-70 (Thomas, J., dissenting). Justice Thomas refused to condone race-conscious admissions because the University of Michigan Law School's need to use affirmative action was a “self-inflicted wound." Justice Powell, however, reached a very different conclusion in Bakke regarding the legal significance of test deficiency. He suggested that the need to use race as a corrective for deficiencies in a test's predictive ability may constitute a compelling state interest. See Bakke, 438 U.S. at 306 n.43 (suggesting that racial classification could offset “some cultural bias in grading or testing procedures”). Professor Tomiko Brown-Nagin has noted, “But for the University's heavy reliance upon discriminatory admissions criteria as a sorting mechanism, the aspirations for diversity and selectivity would not be in tension.” Tomiko Brown-Nagin, The Transformative Racial Politics of Justice Thomas?: The Grutter v. Bollinger Opinion, 7 U. Pa. J. Const. L. 787, 800 (2005).
West-Faulcon's article provides a useful counter-balance for the often unexamined proposition that standardized tests (whether they be the SAT, LSAT, the firefighters test in Ricci or the police officers test in Washington v. Davis) are truly "standardized" in a multicultural context.
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