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Reopening a Can of Worms that Will Reinforce the Use of Standardized Tests to Sort and Select

August 3, 2017

Given the current administration in the White House, it is not surprising to learn that the the Justice Department plans to gut affirmative action programs. For decades women, African Americans, and minorities have strived to gain entry to higher education that was denied to them based on their gender, skin color, and/or nationality.Because institutions of higher learning had de facto and de jure obstacles to entry as well as “traditions” that blocked entry, the federal government established Affirmative Action guidelines to help women, African Americans and other minorities gain access to higher education. But, as Mark Walsh reports in an Education Week article all of that is about to go out the window:

Education advocates are reacting with dismay to a report that President Donald Trump’s administration is recruiting lawyers within the U.S. Department of Justice for an initiative to investigate and potentially sue colleges and universities over racial preferences in admissions that discriminate against white applicants.

“The Supreme Court has repeatedly affirmed that there is a compelling interest in higher education institutions having diverse student bodies,” said Anurima Bhargava, a former Justice Department civil rights official under President Barack Obama. “My sense of the way this [Trump initiative] is playing out, the idea is to instill fear and intimidation” among educational administrators, she said.

The article was written in response to a NYTimes report of an internal memo that was leaked indicating that the Justice Department was seeking attorneys interested in working on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions”. As Mr. Walsh reports:

The project would be run from the “front office” of the Justice Department’s civil rights division, the paper said, meaning it would be run largely by political appointees, rather than from the division’s educational opportunities section, which consists of career lawyers and employees who enforce civil rights laws in the educational context.

While the Education Week article did not say so, the practical reality of this will be an emphasis on the criteria used to admit students to these institutions of higher learning, particularly “objective” criteria like SAT, GRE, LSAT, and AP scores, and, to a lesser degree, class ranks. In most of the previous lawsuits against affirmative action the white applicants based the arguments for their wrongful rejection on the fact that some of those admitted to a college or graduate school had lower LSATs, GREs or lower GPAs in HS or college and that using race and/or gender in any fashion is “unfair” since it serves to allow “less qualified” applicants to enroll in college based solely on their race or gender. In effect, then, standardized tests become the yardstick for entry. In the coming days it will be interesting to see if colleges push back on this direction the Justice Department is taking. I would hope that the flagship state universities and “elite” colleges unite to rebut this direction.

One last irony: based on the analysis in this NYTimes article the beneficiary of any screening based solely on “objective criteria” may be Asian students.

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