The river runs dry: when Title VI trumps state anti-affirmative action laws.

• Author: West-Faulcon, Kimberly

INTRODUCTION I. RECKONING WITH THE END OF AFFIRMATIVE ACTION A. Genesis and Future of State Anti-Affirmative Action Laws B. The Structure of State Anti-Affirmative Action Laws C. Racial Impact on Selective Admissions 1. Declining Minority Admissions and Enrollment Numbers 2. Declining Rates of Minority Admissions D. Racial Disparity in Lieu of Racial Parity in Admissions II. EVALUATING THE ROLE OF THE SAT IN SELECTIVE ADMISSIONS A. University Ranking and Rating Based on Institutional Average SAT Score B. Debating Minority Deficiency Versus Test Deficiency 1. The Well-Meaning History and Intent of the SAT in College Admissions 2. Effectiveness of the SAT in Distinguishing Amongst Highly Qualified Applicants a. Predictive Ability of the SAT To Assess College Performance b. Ability of the SAT To Predict Academic Performance of Racial Minorities C. The Relationship Between Affirmative Action and the Racial Gap in SAT Scores III. ADMISSION DISPARITIES AS TITLE VI EFFECT DISCRIMINATION A. Rationale and Enforcement Mechanisms for the Title VI Effect-Discrimination Standard B. The Theory Underlying Title VI Racial Effect Discrimination C. Proving Title VI Effect Discrimination 1. UC Berkeley and UCLA 2. University of Washington IV. THE DUTY TO COMPLY WITH TITLE VI AS A REMEDIAL RATIONALE FOR AFFIRMATIVE ACTION A. Diversity as the Default Rationale for Affirmative Action in Higher-Education Admissions B. Title VI Liability as a Remedial Rationale Under Federal Law C. Permissibility of Remedial Affirmative Action Under State Anti-Affirmative Action Laws 1. Applying the Antipreference Provision to Test Deficiency 2. Interpreting the Federal-Funding Exception V. RESPONSIBILITY FOR RACIAL DISPARITY CONCLUSION INTRODUCTION

It is simple justice that all should share in programs financed by all, and directed by the government of all people.

President Lyndon B. Johnson (1)

We have demonstrated for decades a steadfast resolve to admit and educate students of all races and ethnicities.... Our resolve has not changed. But the laws tinder which we operate have changed.

Robert Berdahl, University of California, Berkeley, Chancellor, 1997-2004 (2)

Opponents of affirmative action are waging a national battle over race-conscious admissions through state ballot initiatives like California's Proposition 209, Washington's Initiative 200, Michigan's Proposal 2, and Nebraska's Initiative 424. To comply with these new voter-approved anti-affirmative action laws, public universities have eliminated their affirmative action policies, and this has had a negative impact on minority admissions rates. At the same time, federal antidiscrimination law--Title VI of the Civil Rights Act of 1964 and its implementing regulations--prohibits these universities from using selection criteria that have the effect of discriminating against applicants on the basis of race. Legal scholars have largely ignored this tension between state anti-affirmative action laws and federal antidiscrimination law. Consequently, with seemingly little regard for federal civil rights laws, 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. (3)

Critics of affirmative action keep the focus on universities' compliance with state anti-affirmative action laws by pointing to the admission of minority students with scores on the SAT (4) below the institution's overall average SAT score as proof of illegal "under the table" affirmative action. (5) This Article makes the point that racial disparities in admissions have been, on numerous occasions, large enough to constitute prima facie evidence that affirmative action-less institutions are violating federal law. The same universities that are regularly accused of violating state anti-affirmative action laws appear to admit so few racial minorities that the institutions are vulnerable to the polar opposite accusation--that they rely on admissions criteria like the SAT in a manner that unjustifiably decreases the admissions chances of minority applicants in violation of federal law. As this Article explains, the extent to which a university is vulnerable to losing Title VI federal funds depends in large part upon whether an institution can rebut the charge that it uses the SAT in a manner that unfairly diminishes the admissions chances of qualified racial minorities.

In addition to being vulnerable to simultaneous allegations of improperly favoring and disfavoring the former beneficiaries of affirmative action, public universities in states with anti-affirmative action laws are under intense pressure to use admissions criteria that improve their prestige ranking and financial bond rating. Like high-school students who need high SAT scores to gain admission to top-ranked colleges or universities, (6) colleges and universities need high average SAT scores to place well in college-rankings systems like U.S. News & World Report's "America's Best Colleges" (7) and to be rated highly by bond-rating systems like Moody's and Standard & Poor's. (8) Because universities with higher overall SAT score averages fare better in both systems, (9) reducing the focus on applicant SAT scores may have the unwelcome consequence of lowering a top-ranked university's prestige standing and financial-strength rating. Thus, this Article considers whether universities could be reluctant to decrease emphasis on SAT scores even if they are aware that consideration of such scores is not essential to assessing applicants' future college performance.

Many other projects that articulate perspectives on the use of race in higher-education admissions invoke the metaphor of the river. The image of the river has been used to represent "the flow of talent--particularly of talented black men and women--through the country's system of higher education and on into the marketplace and the larger society." (10) The metaphor has also been adopted to describe racial minorities as a "transformative" river that challenges "structural and symbolic subordination." (11) In this Article, the river is the group of African American, Latino, and other minority students who would have been considered eligible to attend their state's most selective university under the policies in place prior to the passage of state anti-affirmative action laws. Before the passage of state anti-affirmative action laws, the most selective universities in California, Washington, and Michigan (12) gave positive admissions consideration to African Americans, Latinos, and other "underrepresented minority" (13) applicants. The elimination of affirmative action to comply with state anti-affirmative action laws dams the river of such students. This Article considers whether affirmative action-less universities are potentially liable under Title VI when the river runs dry.

This Article does not take a position in the important but seemingly intractable normative debate as to the propriety of admitting students to elite colleges and universities based primarily on quantitative variables like high-school grades and SAT scores. (14) In assessing the legal implications of the significant declines in the rates of minority admissions since the passage of state anti-affirmative action laws, this Article does not address whether principles of "substantive equality" require compensation to members of subordinated groups for structural and societal discrimination against them. (15) Likewise, this Article does not challenge "the fairness or rationality" of admitting applicants based on predictions of their freshman grade point average--the conventional approach to selective-university admissions. (16) Instead, it analyzes whether large disparities in the admissions rates of different racial groups under affirmative action-less policies expose universities to liability under Title VI federal civil rights regulations promulgated to ensure that institutions receiving federal funding do not discriminate on the basis of race.

This Article has two central conclusions. First, it concludes that state anti-affirmative action laws do not prohibit race-conscious policies used for the purpose of remedying unjustified racial disparities in admissions. Second, the Article establishes that whether such racial disparities in admissions are legally justifiable under Title VI hinges on a normative assessment--whether SAT scores accurately reflect the college performance ability of minority applicants who apply to selective public universities. A major implication of these conclusions is that, although frequently accused of illegally favoring minorities using "under the table" affirmative action, affirmative action-less universities are admitting so few minorities that the racial disparities in admissions to those institutions establishes a rebuttable legal presumption of a Title VI disparate impact violation.

Additionally, this Article explains how college-ranking and bond-rating systems may drive top-ranked public universities to rely on "educationally insignificant" (17) differences in SAT scores in order to boost their institution's overall SAT score average. It then articulates the importance of considering whether universities that select from an applicant pool with highly competitive non-SAT academic credentials--the strongest candidates in the state and, in some cases, the nation--are vulnerable to Title VI challenges because rejected minority applicants may allege that such institutions rely on the SAT for its prestige-enhancing capacity, not its capacity to weed out unqualified applicants.

The major focus of this Article is to make plain that, irrespective of the prestige enhancement or financial value of using any particular admissions criterion, universities subject to state anti-affirmative action laws are not exempt from the requirements of Title VI and that...