Equality of Results

“Racial discrimination is wrong,” explained attorney Andre Dennis to a reporter from the Legal Times. Such a claim is scarcely controversial in principle. What is more so is how Dennis and others are attempting to define when racial discrimination occurs. Dennis is the plaintiff's lead counsel in a class action lawsuit brought last year against the National Collegiate Athletic Association. The suit charges that the minimum SAT scores the NCAA mandates of all freshman Division I athletes unlawfully discriminates against black players.

Proposition 16 requires first-year athletes to score a minimum of 820 on the SAT if they had an A average in high school, and a higher SAT score if their GPA was lower. The U.S. Court of Appeals for the Third Circuit is currently hearing oral arguments in the case, Cureton v. National Collegiate Athletic Association, filed on behalf of Tai Kwan Cureton, and three other plaintiffs denied freshman athletic eligibility under Prop 16.

A District Court Judge ruled last March that the NCAA's Prop 16 eligibility requirements were indeed discriminatory on the grounds they had a “disparate impact” on black athletes. The plaintiffs' lawyers insist that the cut-off scores are arbitrary—“pulled out of thin air”—and, because they disproportionately deny black students athletic eligibility, illegal under the Title VI of the Civil Rights Act of 1964.

Arthur Bryant of Trial Lawyers for Public Justice, an advocacy group assisting the plaintiffs in the case, says, “The NCAA's own documents show that it knew, before it adopted its arbitrary cut-off scores, that its approach would disproportionately impact African-American student-athletes. Indeed, the Educational Testing Service, which designed the SAT, told the NCAA that its proposed use of the SAT was improper and would disproportionately hurt blacks.” The Appellate Court is expected to rule on the case by December.

“It's either going to be a good Christmas for the Cureton plaintiffs or a good Christmas for the NCAA,” plaintiff counsel Adele Kimmel says.

ETS's assessment that Prop 16 would have an illegal “disparate impact” on minorities has been used to great effect in the courtroom by the Cureton lawyers. This is especially curious given that ETS is responsible for the SAT and insists the test is a reliable indicator of academic success. And by nearly all accounts the test is reliable. The problem is that all ethnic groups do not perform equally well in equal proportions on it.

Last May, however, ETS was forced to contravene its own position. The Department of Education's Office of Civil Rights released a set of draft guidelines called “Non-Discrimination in High-Stakes Testing: A Resource Guide” (see page 6). The Education Department's report employed the logic of “disparate impact” to assert that any test with different results among ethinicities is de facto discrimination and illegal as a primary admissions criterion for any institution that receives federal funds. With the “disparate impact” of the SAT well-documented and almost all private colleges the recipients of at least some government money, the Education Department is, in effect, declaring the SAT illegitimate as a basis for admissions.

ETS and most officials in higher education immediately decried the report, insisting that the SAT was not a tool of discrimination. Yet the Education Department's new guidelines represent the logical consequence of “disparate impact” litigation that ETS and other officials in higher education support.

The impetus behind the Education Department's new position is the growing tide of legal decisions and ballot initiatives nullifying affirmative action in college admissions. The use of the SAT in admissions may contribute to disproportionate numbers of certain minority groups in universities but preferences for those groups in the admissions process could negate those effects. In the wake of ballot initiatives banning affirmative action in California and Washington, as well as the Hopwood decision, however, colleges are increasingly forbidden from employing racial preferences in admissions.

The rollback of affirmative action in college admissions is welcome not merely because ignoring skin color is more fundamentally fair to all applicants. The loss of affirmative action can help focus attention on such things as an educational system that is fundamentally dysfunctional and one of the real barriers to the advancement of minorities.

The Ed Department's campaign against the SAT is unlikely to succeed. Even most supporters of affirmative action recoil from a college admissions process subject to continual head-counting by race. At the very least, however, it is an indication of how far opponents of standardized testing will take their position.

— The Editors