Ever since 1996, when the anti-affirmative action measure became law in California, that state's public university system, the University of California, has been looking for ways to increase the diversity of the system's flagship universities without running afoul of the law. Unsuccessfully.
A recent University of Pennsylvania law review article should give Affirmative Action (AA) a new push.
Here's a link to the article's site where you will need to poke around a little if you want to read the full text.
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The article makes a compelling case that Title VI of the 1964 Civil Rights Act would override state laws (Ca., Washington, Michigan, and Nebraska) that ban affirmative action in college admissions if it can be shown that:
the laws had discriminatory impact upon underrepresented minorities (URM's) at publicly funded state universities such as Berkeley, UCLA, and the University of Washington and, (b) that the reason that URM's populations at those universities have declined is because the universities are using an inappropriate admissions yardstick (the SAT) that has poor predictive validity.
It's fairly easy to show that the anti-affirmative action laws have significantly negatively impacted URM's at both the flagship University of California campuses and the University of Washington. Admissions of URM's at those schools plummeted after the laws went into effect. (Data isn't yet available in Michigan and Nebraska). The author of the Penn law review article, Professor Kimberly West-Faulcon writes:
"To date, following the passage of a new state anti–affirmative action law,... the numbers of African American, Latino, and other underrepresented minority students admitted to these institutions dwindled, and the rate of African American and Latino admissio went from higher than average to lower than average." (p.45-46)
Disparate numbers of admits by race alone however, are not necessarily a sufficient justification for invoking Title VI protections for minorities. West-Faulcon writes:
"If a university's admissions criteria-such as the SAT-are fair and valid mechanisms for distinguishing amongst the pool of high-school students who apply to that institution, racial disparities in admissions are simply an accurate reflection of the lesser academic qualifications of African Americans and Latinos." (p. 29)
West-Faulcon suggests that the critical issue is "whether state anti–affirmative action laws permit universities to adopt race-conscious practices if remedial in nature-designed to compensate for admissions disparities that a university suspects result from invalid use or overuse of standardized test scores." (p.46) (Emphasis mine).
First, URM's score on average about 300 points lower than whites and Asians on the SAT, which leads to the exclusion of many members of those groups at the elite universities.
Second, the SAT does a poor job predicting how students will do once they get to college:
"The Educational Testing Service (ETS), the manufacturer of the SAT, reports that a high-school student's SAT score explains approximately thirteen percent of the variance in first-year college grades, less than would be explained if universities relied on high-school grades alone. SAT critics point to the ETS's own studies as well as institution-specific studies to support their view, ...that the SAT adds little predictive value to admissions decisions and is a weak predictor of graduation rates." (p.42)
The groups most interested in resurrecting AA are the public universities themselves, who feel handcuffed in states like California. The University of California recently abolished its requirement that students submit SAT Subject tests in addition to the SAT (or ACT). While that action will be unlikely to produce a great increase in diversity at UC, it is expected to be part of an admissions change packet that will increase the numbers of students eligible to be considered for admission to UC by about 30,000 students per year.
While public universities might directly reinstitute AA, by giving URM's admissions' breaks, that action would certainly end up in the courts. A more circuitous, but likely just as effective way to increase the numbers of URM's and probably avoid legal challenges, would be for colleges to eliminate the SAT requirement.
Richard Atkinson, who was President of the University of California from 1995–2003 formerly criticized the SAT. He said:
"Many universities, faced with the problem of having to choose from
among thousands of highly qualified applicants, have adopted practices
that give too much weight to the SAT."
"What Atkinson did not mention is the pressure that prestige rankings and financial-strength rating systems impose on universities to maximize their institutions' average SAT scores. In addition to serving as a tool for distinguishing among college applicants, educational-rating publications use SAT scores to compare colleges and universities. The fact that an institution's prestige ranking and bond rating are tied to its reliance on SAT scores means that institutions concerned about their rankings and ratings have a strong incentive to use SAT scores irrespective of whether the SAT has the capacity to identify meaningful distinctions between applicants with very strong non-SAT academic credentials." (p.31)
West-Faulcon also believes that "an institution that has lower-than-average minority admissions rates and is unable to justify the degree to which it relies on SAT scores is vulnerable to charges that its admissions policy violates Title VI disparate impact
Whether large university systems will begin to eliminate the SAT requirement is, of course, an open question. What is clearer is that universities interested in increasing diversity will certainly begin to consider a SAT-free admissions policy.