California scraps SAT and ACT tests. Is it legal?

In a move that will favor Black applicants for admission, the University of California has agreed to no longer consider SAT or ACT scores when making admissions and scholarship decisions. Most colleges and universities are confident they can discriminate against White and Asian applicants without ditching these tests. They believe they can, in effect, award free points (hundreds of them in the case of the SAT) to Black applicants to make up for the poor scores these students achieve as a group.

But in the California state system, that move, however well disguised, would be highly problematic, given the state’s ban on racial preferences — a ban California voters upheld by a goodly margin last November. Ditching the tests seems to solve the problem.

But does it? It’s unlawful intentional discrimination for an entity to adopt a selection device for the purpose of favoring one racial group over another. (Think back to the literacy tests for voting used to exclude Blacks in the Jim Crow south of 100 years ago.) By the same token, isn’t it unlawful intentional discrimination for an entity to discard a selection device for the purpose of favoring one racial group over another?

That appears to be what California is doing with regard to the SAT and ACT. It looks like the test is being discarded so that a racial group that performs poorly on it will no longer be disadvantaged.

There’s a twist, though. California’s decision arises from litigation. The tests are being abandoned pursuant to a settlement of a 2019 lawsuit filed on behalf of low-income students “of color” and students with disabilities.

The plaintiffs claim that “colored” low-income students are at a disadvantage because standardized test questions supposedly contain inherent biases that more “privileged” children are better equipped to answer. They also point out that wealthier students often take expensive prep course to boost scores, and they argue that students with disabilities can’t easily travel to exams and class sites.

California’s regents had already agreed to stop requiring either exam. However, they stipulated that applicants for fall 2021 and 2022 could submit scores voluntarily, after which the system would stop accepting the scores.

That wasn’t good enough, though, for an Alameda County Superior Court judge who, in his wisdom, issued an injunction barring even voluntary use of the tests.

The pressure of litigation, actual or anticipated, on an employer or a university is not a defense to charges of racial discrimination. In Ricci v. DiStefano, the New Haven fire department had developed and administered a test for promotion. When no Blacks passed the test, the chief decided not to use it because he feared a lawsuit alleging disparate impact discrimination.

The Supreme Court ruled in favor of the firefighters who had performed well on the test but been denied promotion. The department’s fear of litigation wasn’t a defense. It needed a sound evidentiary basis for believing the test in question could not be defended as a valid selection device under the applicable legal standard.

Could California have defended its (limited) use of the SAT/ACT under applicable law? Not to the satisfaction of the liberal Alameda County Superior Court judge, obviously.

However, a fair-minded judge might see things differently. There may be something to the claim that the tests in question favor the well-to-do (of any race) because they have access to better prep courses. There may even be something to the claim that applicants with disabilities have a harder time getting to prep courses and test sites.

But the notion that “privilege” makes it easier for non-Black students to answer questions seems far-fetched. Indeed, it seems like a poor, jargon-based, excuse for failure.

Thus, the case that the tests must be abandoned entirely, lest California discriminate against “people of color” is questionable. It seems to me, on first glance anyway, that a fair-minded judge might reject the settlement agreement, or demand modifications, or at least raise serious questions, because the agreement mistreats Whites and Asians (including low-income ones) who have scored, or will score, well and who are not party to the litigation.

The settlement agreement will probably sail through. But maybe it shouldn’t.

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