The river runs dry: When title vi trumps state Anti-affirmative action laws

University of Pennsylvania Law Review

Volumn 157, Issue 4, 2009, Pages 1075-1160

  West Faulcon, Kimberly ^a  

^a LOYOLA MARYMOUNT UNIVERSITY   (United States)

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EID: 66149087293     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (451)

1. U.S. COMM'N ON CIVIL RIGHTS, CLEARINGHOUSE PUBLICATION NO. 1, CIVIL RIGHTS UNDER FEDERAL PROGRAMS: AN ANALYSIS OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, at 5, available at http://www.law.umaryland. edu/marshall/usccr/documents/crl 101968.pdf. President Johnson's statement regards the rationale for Title VI of the Civil Rights Act of 1964.
2. Pamela Burdman, Lawsuit Against UC Berkeley Claims 'Color-Blind' Admissions Policy is Unjust, S.F. CHRON., Feb. 3, 1999, at A13. Berdahl made this statement on behalf of the University in response to the filing of a Title VI lawsuit (Rios v. Regents of the University of California/Castaneda v. Regents of the University of California) by rejected minority applicants after the University of California system ended affirmative action in admissions.
3. Beginning with the passage of the first state anti-affirmative action law in California, public universities in states with such laws have opted to eliminate their race-based affirmative action policies and adopt policies that explicitly prohibit the grant of positive admissions consideration to racial minorities. After making this dramatic policy shift to "affirmative action-less" admissions, the affirmative action-less universities not only admit fewer overall numbers of African Americans, Latinos, and other under-represented minorities, but the rates at which applicants from those racial groups are admitted have also declined significantly. The year after California enacted its antiaffirmative action law, admissions rates for African Americans, Latinos, and other underrepresented minorities applying to the most selective universities in California began an extended freefall. Admissions of applicants from those racial groups also declined at Washington's most selective university after that state's Initiative 200 took effect. Commentators have predicted that the elimination of affirmative action will have a similar negative impact on the admission of African Americans and Latinos applying to Michigan's most selective public universities.
4. See, e.g., Proposal 2: What Would it Mean to Public Colleges, DETROIT FREE PRESS, Oct. 29, 2006, at 15A ("The [U]niversity [of Michigan] estimates the combined enrollment of black, Hispanic and American Indian students would drop from 14% to about 4% to 6% without affirmative action.").
5. This Article uses "SAT" to refer to the SAT Reasoning Test, formerly named the SAT I: Reasoning Test. See College Board, Frequently Asked Questions, http://www.collegeboard.com/student/testing/sat/about/sat/FAQ. html (last visited Jan. 22, 2009). "SAT" was originally an abbreviation for the Scholastic Aptitude Test.
6. Id.
7. For the case of one professor who resigned from the admissions committee due to suspicion that UCLA was illegally admitting more black students, see, for example, Heather MacDonald, How UC Is Rigging the Admissions Process, L.A. TIMES, Sept. 7, 2008, at A34 ("Officials are perverting the law in a desperate attempt to increase black enrollment.");
8. Seema Mehta, UCLA Accused of Illegal Admitting Practices, L.A. TIMES, Aug. 30, 2008, at Bl;
9. Professor Protests over Black Admissions at U.C.L.A., N.Y. TIMES, Aug. 30, 2008, at A16.
10. See also JOHN MOORES, A PRELIMINARY REPORT ON THE UNIVERSITY OF CALIFORNIA, BERKELEY ADMISSIONS PROCESS FOR 2002, at 3, 183-214 (2003), available at http://www.universityofcalifornia.edu/news/ compreview/mooresreport.pdf (compiling newspaper articles regarding "the apparent uneven treatment afforded some applicants");
11. Richard Sander, Colleges Will Just Disguise Racial Quotas, L.A. TIMES, June 30, 2003, at B11 (arguing that academic programs are "rigging their admissions systems to admit underrepresented minorities ⋯ through the back door"). Multivariate regression analysis has also been used to measure the extent to which an applicant's race impacts her chance of admission. Correlations between the race of applicants, particularly African Americans and Latinos, and increased likelihood of admission are used to support claims that universities still "prefer" certain races in admissions. Opponents of affirmative action generally conclude, despite the fact that African Americans and Latinos are admitted at lower rates than other racial groups, that facially affirmative action-less admissions policies are still plagued by racial bias inconsistent with the requirements of state anti - affirmative action laws.
12. I use the term "top-ranked" to refer to institutions ranked in the highest tier of the U.S. News & World Report's list of the "Best National Universities."
13. See, e.g., Best National Universities, U.S. NEWS & WORLD REP., Sept. 1, 2008, at 76, 76-78.
14. See, e.g., Lani Guinier, Comment, Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 144-45 (2003) (discussing the importance of the U.S. News & World Report college rankings).
15. See infra Section II.A.
16. See infra Part II.
17. WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS, at xxi (1998) (detailing the long-term benefits of race-based affirmative action in higher-education admissions).
18. Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative. Action, 101 COLUM. L. REV. 928, 963 (2001) (critiquing the use of the diversity rationale to defend affirmative action).
19. For other uses of the river metaphor in this context, see Richard O. Lempert et al., Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & SOC. INQUIRY 395 (2000);
20. David B. Wilkins, Rollin' on the River: Race, Elite Schools, and the Equality Paradox, 25 LAW & SOC. INQUIRY 527 (2000).
21. Nebraska voters approved their state's new anti-affirmative action law on November 4, 2008. That state's flagship university - the University of Nebraska at Lincoln - is contemplating changes to its admissions policies. See Matthew Hansen, Affirmative Action: Minority Contracts No Longer Assured, OMAHA WORLD HERALD, Jan. 26, 2009;
22. Neb. Is Fourth State to Ban Affirmative Action, CMTY. COLLEGE TIMES, NOV. 25, 2008.
23. This Article uses the term "underrepresented minority" as some universities do - to refer to members of racial groups such as African Americans, Latinos, Filipinos, and Native Americans that are admitted to and attend colleges and universities in significandy lower proportions than their representation in the general and high-school populations. In the 1980s, undergraduate campuses in the University of California system began considering race as a factor in admissions to increase the admissions chances of applicants from these racial groups. See BOB LAIRD, THE CASE FOR AFFIRMATIVE ACTION IN UNIVERSITY ADMISSIONS 60 (2005) (describing the University of California, Berkeley's race-based affirmative action policies targeting "African American, Chicano, Filipino, Latino, and Native American students"). In the mid-1980s, the University of California, Berkeley phased out affirmative action for Filipinos.
24. Id. at 66;
25. see also William C. Kidder, Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught in the Crossfire, 11 MICH. J. RACE & L. 605, 623 n. 67 (2006) (noting that prior to Washington Initiative 200, the University of Washington Law School considered the race of Filipino applicants as an admissions plus factor);
26. cf. Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin's Defense of Affirmative Action, 31 HARV. C.R.-C.L. L. REV. 1, 3 (1996) (exploring how Ronald Dworkin's theoryjustifying affirmative action for certain minority groups can authorize "negative action" against Asian Americans, such as when a "university denies admission to an Asian American who would have been admitted had that person been White").
27. For an exemplary discussion, see Guinier, supra note 7, at 121, who criticizes "our failure as a society to grapple with the complexity and arbitrariness of our current normative conceptions of merit."
28. For examples of effective and poignant critiques of liberal theory and conventional criteria for assessing merit to participate in selective higher education, see Lawrence, supra note 11, at 948-58;
29. Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 85 CAL. L. RKV. 1449, 1473-81 (1997).
30. Cf. Lawrence, supra note 11, at 954.
31. Title VI regulations permit a federally funded university to use tests that have a racially discriminatory effect only if the institution can demonstrate that it must rely on the criterion to achieve a particular educational goal. The Title VI standard mirrors the Title VII standard. As an employer charged with violating Title VII may justify the use of selection criteria that have a racially discriminatory effect on minority job applicants by demonstrating that the use of such criteria is a "business necessity," universities may justify reliance on admissions criteria that have a racially discriminatory effect by demonstrating that the use of such criteria is "educationally necessary" to assess the future college performance ability of student applicants. See infra Section III.B.
32. Universities that use a specific numerical "cut score" for quantitative variables like SAT score and high school-grade point average (HSGPA) may be liable for violating Title VI even if race-based affirmative action results in a "bottom line" free of racially discriminatory impact. See Connecticut v. Teal, 457 U.S. 440, 450 (1982). Accordingly, the analysis in this Article is applicable to universities that are not bound by state anti - affirmative action laws and that use race-based affirmative action as part of a "multicomponent" admissions process that affords minority applicants the opportunity to compete equally with nonminority applicants.
33. See Id. (observing that the Court "has consistently focused on" selection criteria "that create a discriminatory bar to opportunities," instead of on the "bottom line" or "the overall number of minority or female applicants" actually selected).
34. No court has considered the important question of whether and under what circumstances a university may invoke the federal-funding exception to state anti-affirmative action laws.
35. See infra subsection IV.C.2.
36. I use this term to refer to the policies adopted by the California, Washington, and Michigan public university systems after their states' respective anti - affirmative action laws took effect.
37. Because the fall 2008 admissions cycle will be the first complete admissions cycle under Michigan's new affirmative action - less policy since Proposal 2 took effect on December 23, 2006, Part III does not include an analysis of Michigan admissions rates by race. See infra note 53.
38. See infra Section III.B.
39. 112Cal. Rptr. 2d 5, 39 (Ct. App. 2001) (citing CAL. CONST. art. I,§ 31 (e), (h)).
40. See infra Section I.A (detailing the political and legal campaign against state-sponsored affirmative action).
41. See infra note 52 and accompanying text. Universities in Nebraska may soon follow suit.
42. See supra note 12.
43. See infra Section I.C.
44. See id.
45. This Article does not include Florida's anti-affirmative action law because of the numerous ways in which the Florida law's substance and background differ from other state anti - affirmative action laws. On November 9, 1999, Florida Governor Jeb Bush issued Executive Order No. 99-281. Pursuant to Governor Bush's "One Florida" plan, the Florida State Board of Education amended the Florida state administrative code to prohibit racial preferences.
46. See FLA. ADMIN. CODE ANN. r. 6C-6.002(3) (c), (7) (2008). The Florida Administrative Code provision states the following: "Neither State University System nor individual university admissions criteria shall include preferences in the admissions process for applicants on the basis of race, national origin or sex."
47. Id. at r. 6C-6.002(7). Many have speculated that Governor Bush introduced the One Florida executive order to blunt plans by California businessman Ward Connerly to place the controversial, racially charged issue of affirmative action on the ballot at a time when it could have negatively impacted his brother's bid for president.
48. See, e.g., Rick Bragg, Affirmative Action Ban Meets a Wall in Florida: A Businessman's Campaign Is Unwelcome, N.Y. TIMES, June 7, 1999, at A16.
49. See LEE COKORINOS, THE ASSAULT ON DIVERSITY 31-57 (2003) (examining several campaigns against affirmative action).
50. See id. at 11 (noting that "the opponents of affirmative action have been able to deftly utilize the civil rights vocabulary");
51. Girardeau A. Spann, Proposition 209, 47 DUKE L.J. 187, 189 (1997) (noting that Proposition 209 was "[f]ormally denominated the 'California Civil Rights Initiative'").
52. See generally Tamar Lewin, Colleges Regroup After Voters Ban Race Preferences, N.Y. TIMES, Jan. 26, 2007, at Al (detailing the campaign to place anti-affirmative action initiatives on many state ballots). The ballot-pamphlet argument in favor of California Proposition 209 made explicit reference to "the historic Civil Rights Act" and said that the initiative was called the "California Civil Rights Initiative" because it "restates" the Civil Rights Act of 1964. PETE WILSON ET AL., ARGUMENT IN FAVOR OF PROPOSITION 209 (1996), available at http://vote96.sos.ca.gov/ BP/209yesarg.htm. The pro-Proposition 209 argument provided in the official state voter guide explicitly promised that the state law would not undermine federal antidiscrimination laws like Title VI: A generation ago, we did it right. We passed civil rights laws to prohibit discrimination ⋯ ⋯. Government must judge all people equally, without discrimination And, remember, Proposition 209 keeps in place all federal and state protections against discrimination! The only honest and effective way to address inequality of opportunity is by making sure that all California children are provided with the tools to compete in our society.
53. Id. The Rebuttal to Argument Against Proposition 209 in the official Proposition 209 ballot pamphlet is more explicit in its assertion that affirmative action remains permissible under the state anti - affirmative action law: "Affirmative action programs that don't discriminate or grant preferential treatment will be UNCHANGED⋯. It does NOTHING to any existing constitutional provisions⋯. Anyone opposed to Proposition 209 is opposed to the 1964 Civil Rights Act." DANIEL E. LUNGREN ET AL., REBUTTAL TO ARGUMENT AGAINST PROPOSITION 209 (1996), available at http://vote96.sos.ca.gov/ BP/209norbt.htm.
54. Similarly, the argument in favor of Washington Initiative 200 assured voters that the Washington anti-affirmative action law would not impact current antidiscrimination laws. The ballot pamphlet for voters stated that "Initiative 200 does not end all affirmative action programs" and that it "prohibits only those programs that use race or gender to select a less qualified applicant over a more deserving applicant for a public job, contract or admission to a state college or university." JOHN CARLSON ET AL., ARGUMENTS FOR INITIATOE 200 (1998), available at http://www.smartvoter.org/1998nov/wa/state/meas/i200/. Arguments made by the proponents of Michigan Proposal 2 also identified its central purpose as consistent with federal civil rights laws.
55. See The Michigan Civil Rights Initiative, http://www. michigancivilrights.org (last visited Feb. 15, 2009) ("Proposal 2 ⋯ [r]eflects the colorblind language of the 1964 Civil Rights Act - because equal treatment is the essence of civil rights."). Proponents of the Michigan anti - affirmative action law also directly linked Proposal 2 to the Civil Rights Act of 1964 in their arguments contained in the voter guide.
56. See Mich. Civil Rights Initiative Campaign, Official Ballot Language Proposal 06-02, in LEAGUE OF WOMEN VOTERS OF MICHIGAN, NONPARTISAN MICHIGAN VOTER GUIDE 2006, at 30, available at http://www.lwvmi.org/documents/ LWVGuide06.pdf ("This Initiative mirrors the landmark 1964 Civil Rights Act and advances civil rights by prohibiting discrimination and preferential treatment based on race, sex and color.").
57. First, University of California Board of Regents Resolution Special Policy 1 (SP-1) and, next, Proposition 209, made voluntary affirmative action programs illegal under California state law. The University of California Board of Regents adopted Special Policy 1 on July 20, 1995. SP-1 provided, in part, that "[e] ffective January 1, 1997, the University of California shall not use race, religion, sex, color, ethnicity, or national origin as criteria for admission to the University or to any program of study." The Regents of the University of California, Policy Ensuring Equal Treatment: Admissions (SP-1) § 2 (July 20, 1995) [hereinafter UC Regents, SP-1], available at http://www.universityofcalifornia.edu/news/compreview/spl.pdf. In 2001, the Board of Regents rescinded SP-1 but affirmed that University admissions remain subject to Proposition 209.
58. See The Regents of the University of California, Future Admissions, Employment, and Contracting Policies - Resolution Rescinding SP-1 and SP-2, RE-28 (May 16, 2001), available at http://www. universityofcalifornia.edu/regents/regmeet/may01/re28new.pdf.
59. Proposition 209 provides that "[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis or race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." CAL. CONST. art. I, § 31 (a). But cf. Spann, supra note 31, at 207 (noting several ambiguities in the language of Proposition 209).
60. Initiative 200 took effect in December 2006, shortly after its passage in November 2006.
61. See WASH. REV'. CODE ANN. § 49.60.400(2) (West 2008).
62. Compare id. § 49.60.400(1) (Initiative 200), with CAL. CONST. art. I, § 31 (a) (Proposition 209). Both provisions provide that "[t]he state shall not discriminate against, or grant preferential treatment to any individual or group on the basis of race ⋯ in the operation of public employment, public education or public contracting."
63. 539 U.S. 306 (2003).
64. See id. at 343-44 ("[T]he Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.").
65. When voters passed Nebraska Initiative 424 in November 2008, Nebraska became the fourth state to adopt a state anti - affirmative action law. Nebraska public universities are in the midst of assessing admissions policies compliance with the new state law.
66. See supra note 12.
67. See infra notes 44-45 and accompanying text.
68. See infra note 52.
69. Lewin, supra note 31 (reporting that both defenders and opponents of affirmative action agree that and - affirmative action ballot initiatives "can succeed almost anywhere").
70. Grutter v. Bollinger, 539 U.S. 306, 343 (2003).
71. See, e.g., id. at 351 (Thomas, J., dissenting) ("I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years.").
72. CAL. CONST. art. I, § 31;
73. MICH. CONST. art. I, § 26;
74. Neb. Const. art. I, § 30;
75. WASH. REV. CODE ANN. § 49.60.400 (West 2008).
76. CAL. CONST. art. I, § 31 (a);
77. MICH. CONST. art. I, § 26(2);
78. Neb. Const. art. I, § 30(1);
79. WASH. REV. CODE ANN. § 49.60.400(1). Michigan's anti-affirmative action law includes an additional clause with repetitive language explicitly directed at the state's public colleges and universities: "The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." MICH. CONST. art. 1, § 26(1).
80. Race-based affirmative action is arguably permissible under these provisions so long as it does not constitute "discrimination" or "preferential treatment." See MICH. CIVIL RIGHTS COMM'N, "ONE MICHIGAN" AT THE CROSSROADS: AN ASSESSMENT OF THE IMPACT OF PROPOSAL 06-02, at 16-17 (2007) (interpreting Proposal 2 to allow some forms of affirmative action programs);
81. Cheryl I. Harris, What the Supreme Court Did Not Hear in Grutter and Gratz, 51 DRAKE L. REV. 697, 711 (2003) (arguing that within the context of university admissions policies that rely on standardized tests of limited predictive ability, "taking race into account is equalizing treatment" and "a correction for the use of admissions criteria in which racial preferences are embedded").
82. CAL. CONST. art. I, § 31(e);
83. MICH. CONST. art. I, § 26(4);
84. Neb. Const. art. 1, § 30(5);
85. WASH. REV. CODE ANN. § 49.60.400(6).
86. In addition to the federal-funding exception, current state anti-affirmative action laws include exceptions for certain gender classifications, CAL. CONST. art. I, § 31(c);
87. MICH. CONST. art. I, § 26(5);
88. Neb. Const. art. I, § 30(3);
89. WASH. REV. CODE ANN. § 49.60.400(4), as well as for existing court orders and consent decrees, CAL. CONST. art. I, § 31 (d);
90. MICH. CONST. art. I, § 26(9);
91. Neb. Const. art. I, § 30(4);
92. WASH. REV. CODE ANN. § 49.60.400(5). All three state anti-affirmative action laws also expressly acknowledge the supremacy of federal law. Each contains a provision stating that if the law conflicts with federal law, the section shall be implemented "to the maximum extent" permissible by federal law and the United States Constitution. CAL. CONST. art. I, § 31(h);
93. MICH. CONST. art. I, § 26(7);
94. Neb. Const. art. I, § 30(8);
95. WASH. REV. CODE ANN. § 49.60.400(9).
96. MICH. CONST. art. I, § 26(4);
97. Neb. Const. art. I, § 30(5);
98. WASH. REV. CODE ANN. § 49.60.400(6). The California law is worded slightly differently but without any substantive distinction: "Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state." CAL. CONST. art. I, § 31(e).
99. See, e.g., C & C Constr., Inc. v. Sacramento Mun. Util. Dist., 18 Cal. Rptr. 3d 715, 730 (Ct. App. 2004) (holding that the Sacramento Municipal Utility District's affirmative action program did not qualify for the federal-funding exception and was thus unconstitutional).
100. The Michigan Civil Rights Commission has identified the federal-funding exception as a potential means of justifying the use of affirmative action after the passage of Proposal 2 in the employment context but it has made no mention of the exception's applicability to higher-education admissions.
101. See MICH. CIVIL RIGHTS COMM'N, supra note 46, at 27-29.
102. SP-1 eliminated race as an admissions criterion prior to the passage of California Proposition 209. See UC Regents, SP-1, supra note 32;
103. Open Letter from Mary Sue Coleman, President, Univ. of Mich., & Teresa A. Sullivan, Provost & Executive Vice President for Academic Affairs, Univ. of Mich., to the Univ. of Mich. Campus Cmty., Proposal 2 Next Steps (Jan. 10, 2007), available at http://www.umich.edu/pres/speeches/070110prop2. html (announcing the University of Michigan's decision to stop considering race when selecting applicants);
104. see also Zachary Gorchow, California, Washington Give Clues to Impact of Proposal 2, DETROIT FREE PRESS, Nov. 29, 2006, at 2B.
105. Proposal 2 took effect on December 23, 2006. The U.S. Court of Appeals for the Sixth Circuit lifted a stay granted by the district court to the University of Michigan, Michigan State University, and Wayne State University that would have permitted the institutions to delay compliance with the new law until mid-2007.
106. See Coal, to Defend Affirmative Action v. Granholm, 473 F.3d 237, 240 (6th Cir. 2006);
107. see also Audrey Williams June & Peter Schmidt, Court Tells Michigan Universities To Comply Immediately with Preference Ban, CHRON. HIGHER EDUC., Jan. 12, 2007, at A25.
108. The rate of admission for a particular racial group is the number of admits identified within that racial category divided by the number of applicants of the same race.
109. The reason that the University of California's decision to prohibit race-based affirmative action has had minimal impact on admissions to less selective and nonselective universities in that system is likely because affirmative action is typically only utilized at highly selective institutions. Cf. BOWEN & BOK, supra note 10, at xxvi ("Within the realm of higher education, we are concerned only with academically selective colleges and universities. The main reason is that the debate surrounding race-sensitive admissions is relevant primarily within these institutions.").
110. The term "Latino" in this Article refers to individuals identified as either "Latino" or "Chicano" by the University of California. Accordingly, all University of California data labeled "Latino" combines data reported separately by UC campuses as "Latino" and "Chicano."
111. UNIV. OF CAL. OFFICE OF THE PRESIDENT, UNIVERSHY OF CALIFORNIA APPLICATION, ADMISSIONS AND ENROLLMENT OF CALIFORNIA RESIDENT FRESHMEN FOR FALL 1995 THROUGH 2004, at 1, http://www.ucop.edu/news/factsheets/Flowfrc-9504. pdf (last visited Feb. 15, 2009). The trends were similar for other underrepresented racial minorities such as American Indians (the category used in the report), whose admissions numbers also dropped by half from fifty-nine to twenty-seven students.
112. Id.
113. Id.
114. Id. African American enrollment also decreased.
115. Id. As a result, the African American percentage of overall UC Berkeley freshman student enrollment decreased from 7.8% to 3.7% and the Latino percentage dropped from 14.6% to 8.0%.
116. Id. White enrollment at Berkeley was virtually unchanged - 28.3% in 1997 and 28.2% in 1998 - while Asian enrollment (combining the UC categories of "Asian American" and "Filipino") increased slightly from 38.5% to 39.5%.
117. Id.
118. University of Washington Freshman Applications by Year, Ethnicity and Outcome 1 (2008) (on file with author) [hereinafter University of Washington Data]. This data is based on the latest information available to the University of Washington Office of Academic Record Management as of August 7, 2008. In this data, the term "Hispanic" is used rather than "Latino." Admissions and enrollment numbers for Native American and Pacific Islander students also declined. Id.
119. Id.
120. Id. Accordingly, the African American percentage of overall freshman enrollment declined from 3.0% to 1.9%.
121. Id. The University of Washington increased African American enrollment to 105 for the next admissions cycle in 2000. This increase was facilitated by the institution's decision to increase the freshman class by 902 students.
122. Id.
123. Id.
124. Id. That decline resulted in a decrease in the Latino percentage of overall freshman enrollment from 4.6% to 3.0%.
125. Id.
126. The Supreme Court has held that universities may consider the race of applicants in order to admit a "critical mass" of students from racial groups that make up very small percentages of the overall applicant pool. Grutter v. Bollinger, 539 U.S. 306, 335-36 (2003). Admitting a "critical mass" of racial minorities means admitting under-represented minorities in sufficiently "meaningful numbers" that they do not feel isolated and are thereby encouraged to participate in the classroom.
127. See id. at 318. The Court has interpreted the Fourteenth Amendment to permit (public) universities that have a compelling interest in "diversity" to use "narrowly tailored" race-conscious admissions policies that typically operate to admit underrepresented minorities like African Americans, Latinos, and Native Americans at higher rates than whites and some Asian racial groups.
128. See id. at 334.
129. Comparison of admissions rates by race - essentially disparate impact analysis - can be presented as evidence to prove violations of Title VI as well as other provisions of the Civil Rights Act of 1964. See, e.g., Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307 (1977) (" [S] tatistics can be an important source of proof in employment discrimination cases, since 'absent explanation, it is ordinarily to be expected that non-discriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired.'"
130. (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n. 20 (1977))). Title VI prohibits unjustified racial disparities resulting from race-based affirmative action policies designed to remedy past or current racial discrimination.
131. See infra Section III.A. Based on the assumption that all racial groups should have a fair opportunity to participate in federally funded programs, the fact that a university admits members of one racial group at lower rates than other races constitutes prima facie proof that the institution's selection criteria discriminate on the basis of race. Hazelwood, 433 U.S. at 307-08.
132. See supra note 57 and accompanying text.
133. Rates of admission for UC campuses were calculated by the author based on admissions and enrollment data made publicly available by the UC Office of the President. See UNIVERSITY OF CALIFORNIA OFFICE OF THE PRESIDENT, supra note 57, at 1.
134. Some Asian American racial groups were admitted at lower rates than African Americans and Latinos. For instance, the comparable Filipino admissions rate was 19.4%.
135. Id. Filipino Americans were considered officially underrepresented in the University of California system and Pacific Islanders are considered underrepresented minorities within the University of Washington system.
136. See, e.g., LAIRD, supra note 13, at 61 (describing Filipinos as an underrepresented group at Berkeley). It is also worth noting that the increases in admissions of whites and some Asian American racial groups do not translate into large increases in white and Asian enrollment relative to the size of the white and Asian applicant pool. Because African Americans and Latinos are a very small numerical minority as compared to Whites and Asians in the typical college applicant pool, ending affirmative action increases the admissions chances of whites and Asians only marginally.
137. See Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 MICH. L. REV. 1045, 1046-48 (2002) (concluding that racial preferences do not harm nonminorities as a group in the same proportion that they benefit minorities).
138. See Complaint at 3, Rios v. Regents of the Univ. of Cal., No. 99-0525 (N.D. Cal. Feb. 2, 1999), available at http://www.naacpldf.org/ content/pdf/u-berkley/Castenada-v.-UC-Regents.pdf, settled sub nom. Castaneda v. Regents of the Univ. of Cal. (N.D. Cal. June 9, 2003). For information on the settlement, see Press Release, NAACP Legal Defense Fund, Settlement Reached in Suit over Discriminatory Admissions Process at UC Berkeley (June 17, 2003), http://www.naacpldf.org/content.aspx?article=5. When this case was filed in 1999, I was a staff attorney at the NAACP Legal Defense and Educational Fund, Inc., and served as head counsel of the legal team
139. See, e.g., Evelyn Nieves, Civil Rights Groups Suing Berkeley over Admissions Policy, N.Y. TIMES, Feb. 3, 1999, at A9 (reporting on a press conference held by Rios plaintiffs and their attorneys from the NAACP Legal Defense and Educational Fund, Inc., the Asian Pacific American Legal Center of Southern California, the American Civil Liberties Union of Northern California, the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, and the Mexican American Legal Defense and Educational Fund);
140. see also Asian Law Caucus et al., Facts and Fantasies About UC Berkeley Admissions: A Critical Evaluation of Regent John Moores' Report, 2 HASTINGS RACE & POVERTY L.J. 53, 64-67 (2004) (discussing Castaneda's role in changing UC Berkeley's admissions policies);
141. William C. Kidder & Jay Rosner, How the SAT Creates "Built-in Headwinds": An Educational and Legal Analysis of Disparate Impact, 43 SANTA CLARA L. REV. 131, 187 (2002) (citing Castaneda as an example of disparate impact discrimination);
142. Lawrence, supra note 11, at 946-47 (observing that the Rios litigation "directly turns the upside down logic of 'reverse discrimination' right side up" and posits "a different view of what constitutes equality, a different remedy requested, and, ultimately, a different conception of justice");
143. Daria Roithmayr, Left over Rights, 22 CARDOZO L. REV. 1113, 1127-31 (2001) (identifying the Rios/Castaneda lawsuit as "a specific example of strategic rights in action");
144. Alan E. Schoenfeld, Challenging the Bounds of Education Litigation: Castaneda v. Regents and Daniel v. California, 10 MICH. J. RACE & L. 195, 210-15 (2004) ("[I]t is evident that Castaneda exerted extraordinary pressure on the higher education community and spurred them to substantive change.");
145. Burd-man, supra note 2.
146. Rates of admission for the University of Washington were calculated by the author based on admissions and enrollment data provided by the University of Washington. See supra note 60.
147. Id. Calculation of the admissions rate for "Hawaiian Pacific Islanders" based on the number of such applicants who applied and were admitted shows that Pacific Islanders were admitted to the University of Washington at a substantially lower rate than "Asian Americans."
148. See University of Washington Data, supra note 60.
149. See infra Section III.C.
150. The standard that federal courts apply to determine whether a racial disparity in admissions rates is of legal significance is discussed in Section III.C.
151. As explained in Section III.C, deviations from racial parity can be justified if there is a "valid necessity" to select based on criteria that result in the underrepresenta-tion of a particular racial group.
152. Again, state anti-affirmative action laws are modeled after Title VI.
153. Of course, Title VI standards apply to applicants of all races. White litigants frequently allege Title VI claims in federal lawsuits challenging affirmative action, as Barbara Grutter, Jennifer Gratz, and Allan Bakke have. See Grutter v. Bollinger, 539 U.S. 306, 317 (2003);
154. Gratz v. Bollinger, 539 U.S. 244, 250 (2003);
155. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 270 (1978). However, plaintiffs alleging "reverse discrimination" do not invoke the Title VI discriminatory effect theory. They would instead argue that the explicit consideration of race as part of an affirmative action policy constitutes purposeful racial discrimination in violation of Title VI under the discriminatory intent theory, identical to the standard for establishing a violation of the Fourteenth Amendment's Equal Protection Clause.
156. See Grutter, 539 U.S. at 326-27.
157. See, e.g., Grutter, 539 U.S. 306 (University of Michigan Law School);
158. Gratz, 539 U.S. 244 (University of Michigan undergraduate);
159. Bakke, 438 U.S. 265 (UC Davis Medical School);
160. Smith v. Univ. of Wash., 392 F.3d 367 (9th Cir. 2004), cert, denied, 546 U.S. 813 (2005) (University of Washington Law School);
161. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1254 (11th Cir. 2001) (University of Georgia);
162. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), vacated, 95 F.3d 53 (5th Cir. 1996) (University of Texas Law School). These plaintiffs also alleged violations of the Fourteenth Amendment's Equal Protection Clause.
163. After Alexander v. Sandoval, 532 U.S. 275, 293 (2001), that threat is the possibility that the United States Department of Justice may, either on its own or spurred by charges filed by rejected minority applicants, find that a publicly funded educational institution is violating Title VI.
164. See infra Section III.A.
165. The data points in Figure 1 are taken from the UCLA post-Proposition 209 admissions cycles. See UNIVERSITY OF CALIFORNIA OFFICE OF THE PRESIDENT, supra note 57, at 2. The data points in Figure 2 are taken from the University of Washington post - Initiative 200 admissions cycles.
166. See University of Washington Data, supra note 60, at 1. Years following the adoption of anti - affirmative action laws are labeled by how many affirmative action-less cycles have passed.
167. Washington's most selective public university is less selective than the California example - it rejects a smaller percentage of applicants. Two years before the end of affirmative action in Washington, 1997, African American (98.4% admissions rate), Latino (99.7% admissions rate), white (99.3% admissions rate), and non-Filipino Asian American (98.3% admissions rate) applicants were admitted at rates close to racial parity.
168. If included in Figure 1, Filipino admissions rates would be lower than or comparable to African American and Latino enrollment and admissions rates and, therefore, substantially lower than the "Asian American" admissions, enrollments and admissions rates depicted in the figures. See UNIV. OF CAL. OFFICE OF THE PRESIDENT, supra note 57, at 2 (listing admissions data by ethnicity for UCLA from 1995 to 2004). Similarly, if included in Figure 2, Pacific Islander admission, enrollment and admissions rates would be lower than the "Asian American" enrollment and admissions rates depicted in the figures.
169. See University of Washington Data, supra note 60 (listing admissions data by ethnicity for the University of Washington from 1998 to 2003).
170. Whether the magnitude of the racial disparity is sufficient to constitute evidence of Title VI discriminatory effect is a question of federal law. See infra Section III.C
171. Selecting applicants from one racial group at less than four-fifths of the selection rate for other racial groups may be used by plaintiffs to prove both purposeful racial discrimination and racially discriminatory effect under Title VI. See infra Section III.B.
172. In fact, courts have interpreted the Title VI discriminatory effect theory to permit a defendant university to rebut evidence of discriminatory effect by demonstrating that reliance on a particular selection criterion is "educationally necessary."
173. See infra Section III.B.
174. See infra Section IV.B.
175. Richard C. Atkinson, President, University of California, The 2001 Robert H. Atwell Distinguished Lecture at the 83rd Annual Meeting of the American Council on Education (Feb. 18, 2001), available at http://www.ucop.edu/ news/sat/speech.html.
176. Professor Lawrence explains the findings of the authors of Shape of the River as follows: [W]hile blacks as a group scored lower than whites as a group on standardized tests, the difference in these scores did not mean that blacks were unqualified for the education they received. Bowen and Bok say that the difference in scores between black and white applicants to these schools is better explained by the fact that white applicants are spectacularly well qualified than by the assumption that black applicants were not qualified. More than 75% of the black applicants in the study had higher math SAT scores, and more than 73% had higher verbal SAT scores, than the national average of white test-takers.
177. Lawrence, supra note 11, at 941 n. 48 (citing BOWEN & BOK, supra note 10, at 18-19).
178. STEPHEN THERNSTROM & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE, ch. 14 (Touchstone 1999) (1997).
179. See Richard H. Sander, A Systemic Analysts of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367, 408-10 (2004) (arguing that law schools either "'racetrack' admissions or add large boosts to black applications");
180. Vikram Amar & Richard H. Sander, A Mismatch Effect?, L.A. TIMES, Sept. 26, 2007, at A25 ("[A]ffirmative action ⋯ enables hundreds of minority law students to attend more elite institutions than their credentials alone would allow."). Subsumed within this analysis, there appears to be an assumption that the pool of African American applicants to these institutions is so utterly unqualified that the gap between the admissions rates for these institutions should reflect even lower rates of underrepresented minority admissions and even larger racial disparities in admissions rates.
181. Such policies do eliminate potential Title VI liability for unjustified exclusion of minorities based on SAT scores. Cf. Connecticut v. Teal, 457 U.S. 440, 442 (1982) (holding that "bottom-line" results neither preclude Title VII plaintiffs from establishing a prima facie case nor provide employers with a defense to disparate impact allegations).
182. See, e.g., Jacques Steinberg, Challenge Revives SAT Test Debate, N.Y. TIMES, NOV. 19, 2001, at A14 (describing former University of California President Richard Atkinson's later-revised recommendation that the University of California cease requiring the SAT).
183. Atkinson, supra note 87.
184. See Sigal Alon & Marta Tienda, Diversity, Opportunity, and the Shifting Meritocracy in Higher Education, 72 AM. SOC. REV. 487, 508 (2007) (concluding, based on a literature review, that a main factor leading to the increased reliance on standardized test scores in college admissions is "selective institutions' attempts to climb the pecking order in various college ranking systems, such as the U.S. News and World Report and Bar-ron 's, [which tip] the weights placed on student test scores");
185. Guinier, supra note 7, at 154-55 (explaining that "hard numbers" like SAT scores tend to dominate admissions decisions because selective colleges and universities "become committed to admitting mostly those students whose test scores protect the institution's own rankings").
186. See Elizabeth F. Farrell & Martin Van Der Werf, Playing the Rankings Game, CHRON. HIGHER EDUC., May 25, 2007, at Al 1, A14, A16 (describing the development of the rankings).
187. See id. (noting that "one year's figures should not be compared with previous years' because editors 'change the methodology every year'").
188. See, e.g., Nicholas Thompson, Playing With Numbers: How U.S. News Mismensures Higher Education and What We Can Do About It, WASH. MONTHLY, Sept. 2000, at 16, 16 (criticizing the rankings for "push [ing] schools to improve in tangential ways and fuel [ing] the increasingly prominent view that colleges are merely places in which to earn credentials").
189. See NAT'L OPINION RESEARCH CTR., A REVIEW OF THE METHODOLOGY FOR THE U.S. NEWS & WORID REPORT'S RANKINGS OF UNDERGRADUATE COLLEGES AND UNIVERSITIES (1997), available at http://www.washingtonmonthly.com/features/2000/norc.html (concluding that "the weights used to combine the various measures into an overall rating lack any defensible empirical or theoretical basis"). The National Opinion Research Center report also notes that many studies indicate that the U.S. News rankings are "sensitive to relatively small changes in the weighting scheme."
190. Id.;
191. see also Theodore P. Seto, Understanding the U.S. News Law School Rankings, 60 SMU L. REV. 493, 508-12 (2007) (demonstrating the unreliability of U.S. News rankings of law schools).
192. See Julie Rawe, The Rankings Revolt, TIME, Apr. 2, 2007, at 49, 50 (describing the "pernicious" practice of "ranksteering").
193. See, e.g., Thomas J. Webster, A Principal Component Analysis of the U.S. News & World Report Tier Rankings of Colleges and Universities, 20 ECON. EDUC. REV. 235, 243 (2001) ("The main finding of this study is that the actual contributions of the 11 ranking criteria examined differ explicitly from the explicit [U.S. News] weighting scheme because of the presence of severe and pervasive multicollinearity.").
194. See, e.g., Alon & Tienda, supra note 94, at 498 (stating that their findings about the weight of the test "may be an underestimation").
195. Farrell & Van Der Werf, supra note 95, at A14, A16, report that "[o]ver the last five years, the average SAT score of enrolling first-year students has risen 30 points, to 1219" at Baylor University - a university that moved up the rankings from the un-ranked third tier to rank 81st among national universities. Further, they noted that Chapman University improved its U.S. News ranking from 90th to 11th among its peer institutions by setting a minimum SAT score requirement of 740 and increasing the minimum score "another 10 or 20 points" each year so that the "minimum SAT score is now 1050."
196. Id.
197. See Alon & Tienda, supra note 94, at 498-99 (finding a temporal change in the weight placed on SAT scores as compared to class rank between 1982 and 1992 and describing the fact that "test-score weights exceed those for class rank at the more selective institutions, and this gap widened substantially over time" as depicting a "shifting meritocracy").
198. See J. Fredericks Volkwein & Kyle V. Sweitzer, Institutional Prestige and Reputation Among Research Universities and Liberal Arts Colleges, 47 RES. HIGHER EDUC. 129, 143 (2006) ("Among all 447 institutions, median SAT score and compensation for full professors, not adjusted for cost-of-living, appear as strong indicators of prestige.");
199. Webster, supra note 100, at 243 (finding that "when the effects of multicollinearity were explicitly considered," the institutional average SAT score ranked first as "the most significant ranking criterion," while "academic reputation, which is the most heavily weighted [U.S. News] ranking criterion[,] ⋯ ranked fourth").
200. Webster notes that: [t]he importance of [average SAT scores] in explaining the [U.S. News] tier stems not only from its direct effect on tier rankings but also from its indirect effect on seven of the remaining ten ranking criteria, including (in descending order) actual graduation rates, predicted graduation rates, retention rates, alumni contributions, academic reputation, the percentage of enrolled students who graduated in the top ten percent of their high school class, and the acceptance rate. Webster, supra note 100, at 243 (emphasis added).
201. See Lloyd Thacker, Editor's Stories I, in COLLEGE UNRANKED 55, 58 (Lloyd Thacker ed., 2005) ("The groundswell of interest in managing image by improving rank has also resulted in giving more weight to SAT scores when admitting students, since a college's average SAT scores are given significant consideration in determining its rank.").
202. See, e.g., STANDARD & POOR'S, PUBLIC FINANCE CRITERIA 176 (2007), available at http://www2.standardandpoors.com/spf/pdf/products/PF-Criteria-Book-2007.pdf (stating that standardized test scores can "enhance[] a school's ability to withstand a decline in demand");
203. Standard & Poor's, University of Washington; Lease; Public Coll/Univ - Unlimited Student Fees, RATINGS DIRECT, Apr. 15, 2008, at 2-3, available at http://www.washington.edu/admin/treasury/ pdfs/S&PReport2008GRB.pdf (assigning AA+ rating to the University of Washington's general revenue refunding bonds, series 2008, based on, among other factors, the fact that "[s]tudent quality is good, with average SAT scores for fall 2007 at 1196");
204. Press Release, Stevens Inst. of Tech., Stevens Receives "A"s from Standard & Poor's and Moody's Investor's Services with Bond Ratings' Upgrades (Aug. 12, 1998), available at http://www.stevens.edu/press/pr/ pro19.htm (citing Moody's report as stating that "S.A.T. scores of 1290 indicate student quality is high").
205. See Audrey Williams June, Under the Ratings Agency's Microscope, CHRON. HIGHER EDUC., Jan. 27, 2006, at A27 (noting the increasing use of bonds "to finance the apartment-style residence halls, gleaming fitness centers, and academic buildings that have cropped up on campuses").
206. See Bruce J. Poch, Sanity Check, in COLLEGE UNRANKED, supra note 106, at 52.
207. See, e.g., Atkinson, supra note 87 ("In many ways, we are caught up in the educational equivalent of a nuclear arms race. We know that this overemphasis on test scores hurts all involved, especially students. But we also know that anyone or any institution opting out of the competition does so at considerable risk.").
208. See Rawe, supra note 99, at 49 (noting college presidents' displeasure with the rankings system). In fact, university leaders have expressed concern that the K-12 educational system is increasingly focused on skills that correlate to success on the SAT and other standardized tests at the expense of teaching students the critical-thinking and analytical skills that they need to perform well in college and beyond.
209. See generally PETER SACKS, STANDARDIZED MINDS (1999).
210. See generally THE BLACK-WHITE TEST SCORE GAP (Christopher Jencks & Meredith Phillips eds., 1998) (collecting various essays that attempt to explain the racial gap in test scores).
211. This theory can be described more specifically as a theory of African American "cultural deficiency." See Meredith Phillips et al., Family Background, Parenting Practices, and the Black-White Test Score Gap, in THE BLACK-WHITE TEST SCORE GAP, supra note 112, at 103, 107-08 (discussing the impact of environmental conditions on test results).
212. See, e.g., Signithia Fordham & John U. Ogbu, Black Students' School Success: Coping with the "Burden of 'Acting White,'" 18 URB. REV. 176, 176 (1986) (using ethnographic data to argue that "the fear of being accused of 'acting white' causes a social and psychological situation which diminishes black students' academic effort and thus leads to underachievement").
213. But see James W. Ainsworth-Darnell & Douglas B. Downey, Assessing the Oppositional Culture Explanation for Racial/Ethnic Differences in School Performance, 63 AM. SOC. REV. 536, 536 (1998) (rejecting Fordham & Ogbu's oppositional culture theory based on analysis of the National Education Longitudinal Study's data of African American, Asian American, and non-Hispanic white high school sophomores).
214. See, e.g., Kidder & Rosner, supra note 70, at 147-57 (analyzing the disparate impact of the construction of SAT questions);
215. Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 AM. PSYCHOLOGIST 613, 613-15 (1997) (discussing how the stereotype threat influences the standardized-test performance of women and African Americans);
216. Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953, 957 (1996) (arguing that standardized tests are more predictive of parental socioeconomic status and "past opportunities" than of educational achievement).
217. See Steele, supra note 115, at 619-24. Steele's theory has been tested and supported by a vast array of empirical research on the impact of stereotype threat on performance.
218. See, e.g., Joshua Aronson et al., When White Men Can't Do Math: Necessary and Sufficient Factors in Stereotype Threat, 35 J. EXPERIMENTAL Soc. PSYCHOL. 29, 29 (1999) (finding that "stereotype-threatened white males performed worse on a difficult math test than a nonstereotype-threatened control group");
219. Catherine Good et al., Problems in the Pipeline: Stereotype Threat and Women's Achievement in High-Level Math Courses, 29 J. APPLIED DEVELOPMENTAL PSYCHOL. 17, 17 (2008) (proposing "that even among the most highly qualified and persistent women in college mathematics, stereotype threat suppresses test performance");
220. Jeff Stone et al., Threat Effects on Black and White Athletic Performance, 77 J. PERSONALITY & SOC. PSCYHOI. 1213 (1999) (demonstrating that the stereotype threat can negatively impact sports performance);
221. Nai Chi Jonathan Yeung & Courtney von Hippel, Stereotype 'Threat Increases the. Likelihood that Female Drivers in a Simulator Run over Jaywalkers, 40 ACCIDENT ANALYSIS & PREVENTION 667 (2008).
222. See Steele, supra note 115, at 614.
223. See generally Claude M. Steele & Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J. PERSONALITY & SOC. PSYCHOL. 797, 797 (1995) (suggesting that the stereotype threat itself "may interfere with the intellectual functioning of [African American] students").
224. See, e.g., Jairo N. Fuertes & William E. Sedlacek, Using Non-Cognitive Variables to Predict the Grades and Retention of Hispanic Students, C. STUDENT AFF. J., Spring 1995, at 30 (finding that Hispanic students' "ability to identify and combat perceived interpersonal and institutional racism" was predictive of their success in college);
225. Terence J. Tracey & William E. Sedlacek, A Comparison of White and Black Student Academic Success Using Noncognitive Variables: A LISREL Analysis, 27 RES. HIGHER EDUC. 333, 334 (1987) (arguing that certain "less intellectual" traits are "highly related to academic success").
226. Kidder & Rosner, supra note 70, at 153 (arguing that "facially-neutral SAT test construction will have a strong tendency to eliminate items ⋯ on which African Americans and Chicanos outperform Whites").
227. See Grutter v. Bollinger, 539 U.S. 306 (2003);
228. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978);
229. see also supra notes 36-37 and accompanying text.
230. This counterbalancing eliminated disparities in the racial composition of the applicants actually admitted. However, even universities using race-based affirmative action are vulnerable to Title VI charges that the use of a particular selection criteria has an unjustified racially discriminatory effect on applicants, regardless of whether affirmative action eliminates that impact on the "bottom-line" of admissions. See supra note 91 and accompanying text. Interestingly, Justice Thomas, a staunch critic of racebased affirmative action, was the member of the Court in Grutter who most explicitly described the manner in which universities have traditionally used affirmative action as a corrective for the deficiencies in tests like the SAT: [N]o modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to "correct" for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body⋯. The [University of Michigan] Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test. Grutter, 539 U.S. at 369-70 (Thomas, J., dissenting). Justice Thomas refused to condone race-conscious admissions because the University of Michigan Law School's need to use affirmative action was a "self-inflicted wound[]."
231. Id. at 350. Justice Powell, however, reached a very different conclusion in Bakke regarding the legal significance of test deficiency. He suggested that the need to use race as a corrective for deficiencies in a test's predictive ability may constitute a compelling state interest.
232. See Bakke, 438 U.S. at 306 n. 43 (suggesting that racial classification could offset "some cultural bias in grading or testing procedures"). Professor Tomiko Brown-Nagin has noted, "But for the University's heavy reliance upon discriminatory admissions criteria as a sorting mechanism, the aspirations for diversity and selectivity would not be in tension." Tomiko Brown-Nagin, The Transformative Racial Politics of Justice Thomas?: The Grutter v. Bollinger Opinion, 7 U. PA.J. CONST. L. 787, 800 (2005).
233. See, e.g., Harris, supra note 46, at 711 (arguing that, within the context of university admissions policies that rely on standardized tests of limited predictive ability, "taking race into account is equalizing treatment" and "a correction for the use of admissions criteria in which racial preferences are embedded");
234. Sturm & Guinier, supra note 115, at 957 (claiming that standardized tests such as the SAT and the LSAT have limited predictive ability).
235. See NICHOLAS LEMANN, THE BIG TEST: THE SECRET HISTORY OF THE AMERICAN MERITOCRACY 38 (1999) (describing Conant's move to give scholarships based on SAT scores due to his belief that the SAT measures natural intelligence);
236. see also Guinier, supra note 7, at 131-33 (explaining Conant's goal of providing elite institutions with merit-based selection criteria);
237. cf. Roithmayr, supra note 15, at 1488-92 (describing the "racist and nativist" origins of modern standardized tests and their connection to the eugenics movement).
238. For more on Roithmayr's claim, see JAMES CROUSE & DALE TRUSHEIM, THE CASE AGAINST THE SAT 21 (1988).
239. See LEMANN, supra note 124, at 52 (describing Conant's radical idea to provide merit-based access to joining the elite governing class).
240. See, e.g., JEROME KARABEL, THE CHOSEN: THE HIDDEN HISTORY OF ADMISSION AND EXCLUSION AT HARVARD, YALE, AND PRINCETON 26-39 (2005) (describing the long history and regularity of elite private boarding schools sending graduates to Harvard, Princeton, and Yale).
241. LEMANN, supra note 124, at 42-43.
242. Id. at 17.
243. Id. at 17-18.
244. Id. at 38.
245. See, e.g., ROBERT F. FULLINWIDER & JUDITH LICHTENBERG, LEVELING THE PLAYING FIELD 119 (2004).
246. See, e.g., BOWEN & BOK, supra note 10, at 29-30 (pointing out that competition for admission at selective schools has increased dramatically, with SAT scores for both white and African American applicants continuing upward).
247. Id.
248. The LSAT plays a similar role in law school admissions, with law schools typically placing even greater emphasis on composite scores (derived from LSAT scores and undergraduate grade point average) than undergraduate institutions. See Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. REV. 1, 2 (1997) (noting that undergraduate GPAs and LSAT scores are the criteria most heavily relied on in admissions decisions).
249. See, e.g., Saul Geiser & Maria Veronica Santelices, Validity of High School Grades in Predicting Student Success Beyond the Freshman Year: High School Record vs. Standardized Tests as Indicators of Four-Year College Outcomes (Ctr. for Studies in Higher Educ, Univ. of Cal., Berkeley, Research & Occasional Paper Series, CSHE.6.07, June 2007), http://cshe.berkeley.edu/publications/docs/ROPS.GEISER.-SAT-6.13.07.pdf (presenting study results showing that high-school grades are the best predictor of four-year college grades).
250. See COLLEGE UNRANKED, supra note 106, at 4.
251. See Sturm & Guinier, supra note 115, at 974 ("It is widely recognized that high school grades are more predictive of college freshman-year grades than the SAT. Perhaps even more significant is the extremely small increase in predictiveness gained by using the SAT in conjunction with high school grades.").
252. See Luke Charles Harris & Uma Narayan, Affirmative Action and the Myth of Preferential Treatment: A Transformative Critique of the Terms of the Affirmative Action Debate, 11 HARV. BLACK LETTER L.J. 1, 22 (1994) (examining the backlash against affirmative action policies and arguing that affirmative action is not "preferential treatment" but instead a means of providing "greater equality of opportunity in a social context marked by pervasive inequalities").
253. See REBECCA ZWICK, FAIR GAME?: THE USE OF STANDARDIZED ADMISSIONS TESTS IN HIGHER EDUCATION 116 tbl.5-2 (2002). Zwick reports the results of an ETS report that finds an overall correlation of SAT verbal and math with college GPA of 0.36 and an overall correlation of HSGPA with college GPA of 0.39. The percent of the variation in college GPA is calculated by squaring the SAT correlation of 0.36.
254. See Sturm & Guinier, supra note 115, at 971-74 ("Indeed, empirical and statistical evidence suggests that many of those who are excluded based on test results could perform comparably to those admitted."). The incremental increase in overall correlation from considering the SAT instead of relying on HSGPA alone is 0.09. ZWICK, supranote 139, 116 tbl.5-2.
255. See, e.g., Geiser & Santelices, supra note 135, 1 ("[HSGPA] is consistently the best predictor not only of freshman grades in college, ⋯ but of four-year college outcomes as well.").
256. See, e.g., John Cloud, Should SATs Matter?, TIME, Mar. 12, 2001 (reporting that Senator Paul Wellstone's combined SAT score was "under 800 Combined! Yet he went on to become a Phi Beta Kappa" and that Rhodes Scholar Bill Bradley had a verbal SAT score of 485).
257. See Sturm & Guinier, supra note 115, at 989 ("[T]he SAT is more strongly correlated with every measure of socio-economic background than is high school rank.").
258. SACKS, supra note 111, at 267.
259. See BOWEN & BOK, supra note 10, at 59-65 (demonstrating that the SAT is generally a poor indicator of African American graduation rates at selective schools).
260. See Gregg Thomson, Is the SAT a "Good Predictor" of Graduation Rates? The Failure of "Common Sense" and Conventional Expertise and a New Approach to the Question (Dec. 1998) (unpublished manuscript, on file with author).
261. Id.
262. Id.;
263. BOWEN & BOK, supra note 10, at 61.
264. See William Julius Wilson, The Role oj the Environment in the Black-White Test Score Gap, in THE BLACK-WHITE TEST SCORE GAP, supra note 112, at 434-40. Of course, many individual female, African American, Latino, economically disadvantaged, and rural test-takers do score extremely well on the SAT and, thus, have scores higher than the national SAT average.
265. See also BOWEN & BOK, supra note 10, at 26-31 (providing examples of minority students with exceptional SAT scores).
266. See Strum & Guinier, supra note 115, at 992 ("[R]eliance on [existing methods] for determining merit screens out a disproportionate number of⋯ people of color who apply for positions.").
267. A simple example of this would be the decision to consider an applicant's extraordinary talent as a poet or athlete as an admissions plus factor even if his or her SAT score fell below the institution's average SAT score for entering freshmen.
268. See generally COLLEGE UNRANKED, supra note 106.
269. Most universities have institutional priorities that prompt them to admit athletes, students with wealthy parents willing to donate large sums of money to the institution, children of alumni, students from rural as well as urban and suburban geographic areas, poor and middle-class students, male as well as female students, and racial minorities.
270. See generally id.
271. See, e.g., Sturm 8c Guinier, supra note 115, at 992 n. 169.
272. See, e.g., WAYNE J. CAMARA & AMY ELIZABETH SCHMIDT, C. BD. REP. NO. 99-5, GROUP DIFFERENCES IN STANDARDIZED TESTING AND SOCIAL STRATIFICATION 2 tbl.1 (1999).
273. See, e.g., lANI GUINIER & gERALD TORRES, tHE MINER'S CANARY: eNLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 71 (2002).
274. See, e.g., SAT Results: Suburbanites Outscore City, Country Dwellers, DAILY REP. CARD, Aug. 27, 1992.
275. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978) ("Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination."). Under strict scrutiny, a university still has the discretion to consider standardized admissions test scores to varying degrees depending upon the race of the applicant so long as it does so as part of a holistic, nonnumerical, nonquota-based admissions process.
276. See Grutter v. Bollinger, 539 U.S. 306, 336-37 (2003) ("[A] university's admissions program must remain flexible enough to ensure that each
277. See id. at 333 (discussing how governments are constrained in how they may draw racial distinctions). In fact, the Court has explicitly rejected the argument that equal protection requires institutions to adopt the race-neutral approach to increasing racial diversity - decreasing emphasis on standardized tests scores for all racial groups.
278. See Id. at 340 (rejecting the district court's suggestion of decreasing the emphasis for all applicants on undergraduate GPA and LSAT scores as a race-neutral means of increasing the admissions of underrepresented minorities because such an approach "would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both").
279. The number of applicants with wealthy parents and parents who attended the university, special talent admits, and socioeconomic and geographic diversity admits would likely decline in a similar fashion if the institutions relied heavily on SAT scores for applicants within those categories.
280. 401 U.S. 424, 436 (1971).
281. See Castaneda v. Partida, 430 U.S. 482, 496 n. 17 (1977) (observing that when expected results and actual results differ by more than two or three standard deviations, the statistical disparity in selection rates constitutes evidence of a Title VI dispa-rate impact). Courts have interpreted Title VI to require that the racial disparity exist not just within the overall applicant pool but also within the subpopulation of "qualified" applicants. In other words, there is proof of Title VI discriminatory effect if, considering only qualified applicants, the racial disparities are large enough to be statistically significant.
282. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977) ("Where gross statistical disparities can be shown, they alone may ⋯ constitute prima facie proof of a pattern or practice of discrimination.").
283. See 29 C.F.R. § 1607.4(D) (2008) (explaining the "four-fifths rule" for adverse impact).
284. It may have been possible to show statistically significant racial disparities caused by particular admissions criteria such as the SAT prior to the elimination of race-based affirmative action based on the Court's decision in Connecticut v. Teal, 457 U.S. 440 (1982). However, after eliminating affirmative action - a policy that ameliorates the statistical impact of using an admissions criterion that has a disproportionately negative impact on racial minorities - statistical evidence of Title VI discriminatory effect can be found through analysis of overall "bottom line" admissions outcomes.
285. See infra Part IV.
286. See U.S. COMM'N ON CIVIL RIGHTS, supra note 1, at 5 ("It is simple justice that all should share in programs financed by all, and directed by the government of all people.").
287. 42 U.S.C. § 2000d (2006).
288. Sidney D. Watson, Reinvigorating Title VI: Defending Health Care Discrimination - It Shouldn't Be So Easy, 58 FORDHAM L. REV. 939, 943-46 (1990). Watson explains that the primary purpose of Title VI was to provide a means for dismantling racial segregation in education using Congress's spending power,
289. id. (citing Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 599 (1983)), while Congress enacted Title VII pursuant to its commerce power,
290. id. (citing United Steelworkers of America v. Weber, 443 U.S. 193, 206 n. 6 (1979)).
291. Section 601 of Title VI, 42 U.S.C. § 2000d, provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Liability under Title VI itself is identical to the Federal Equal Protection Clause in its requirement that plaintiffs prove discriminatory intent.
292. See Washington v. Davis, 426 U.S. 229, 240 (1976) (discussing cases holding that challengers have to show discrimination).
293. 34 C.F.R. § 100.3(b) (2008) (italics omitted).
294. Id. § 100.3(b)(2).
295. See Alexander v. Choate, 469 U.S. 287, 293-95 & n. 11 (1985)
296. (explaining Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983)). In Guardians Ass'n v. Civil Service Commission, a majority of the Court held that a violation of Title VI required proof of discriminatory purpose, while a different majority held that proof of discriminatory effect suffices when the suit is brought to enforce regulations issued pursuant to Title VI. 463 U.S. at 608 n. 1 (Powell, J., concurring) (detailing the multiple holdings of the Court).
297. Recently, in Alexander v. Sandoval, the Court assumed that proof of discriminatory impact was sufficient to demonstrate a violation of the Title VI regulations. 532 U.S. 275, 281-82 (2001) ("[R]egulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups ⋯.").
298. See also Watson, supra note 167, at 949 ("The issue of whether Title VI and its implementing regulations proscribe unintentional discrimination with a disproportionate adverse impact has had a tortured history in the Supreme Court.").
299. Some members of the Court have been critical of this interpretation. They would limit the reach of Title VI regulations to intentional discrimination. See, e.g., Sandoval, 532 U.S. at 286 n. 6 (discussing disparate impact regulations and § 601);
300. see also Lawrence, supra note 11, at 948 n. 71 ("Given the bare majority in Guardians and the change in composition of the Court since the holding of that case, it remains to be seen whether the Court will continue to defer to the [Department of Education's] regulations for implementing Title VI.").
301. 532 U.S. at 293.
302. Id. at 300 (Stevens, J., dissenting) ("Litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference § 1983 to obtain relief⋯."). A plaintiff who sues under 42 U.S.C. § 1983 is alleging a constitutional tort of sorts because officials have violated her federal civil rights.
303. Id.
304. The rule established by the Court in Gonzaga v. Doe presents a considerable hurdle to plaintiffs seeking to enforce disparate impact regulations using § 1983. 536 U.S. 273, 287-88 (2002) (discussing only individual entitlements as being enforceable under § 1983). A number of circuits have rejected Justice Stevens's approach.
305. See, e.g., Johnson v. City of Detroit, 446 F.3d 614, 629 (6th Cir. 2006) (overruling Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994), and relying on a combined reading of the Court's decisions in Gonzaga and Sandoval to hold that a federal regulation such as the U.S. Housing Act cannot independently create an enforceable § 1983 right);
306. Save Our Valley v. Sound Transit, 335 F.3d 932, 944 (9th Cir. 2003) (holding that disparate impact regulations are unenforceable under § 1983);
307. S. Camden Citizens v. NJ. Dep't of Envtl. Prot., 274 F.3d 771, 774 (3d Cir. 2001) (same);
308. Harris v. James, 127 F.3d 993, 1010 (11th Cir. 1997) (same).
309. See U.S. DEP'T OF JUSTICE, I NVESTIGATION PROCEDURES MANUAL FOR THE INVESTIGATION AND RESOLUTION OF COMPLAINTS ALLEGING VIOLATIONS OF TITLE VI AND OTHER NONDISCRIMINATION STATUTES (1998), available at http://www.usdoj.gov/crt/cor/Pubs/manuals/complain.pdf;
310. U.S. DEP'T OF JUSTICE, TITLE VI LEGAL MANUAL 104-05 (2001), available at http://www.usdoj.gov/crt/ cor/coord/vimanual.pdf; U.S. Dep't of Justice, Educ. Opportunities Section, Frequently Asked Questions, http://www.usdoj.gov/crt/edo/faq.php (last visited Feb. 15, 2009). A class of "minorities and women qualified for graduate school admission" filed an OCR complaint accusing the University of California of violating Title VI and Title IX disparate impact regulations after eliminating race- and gender-based affirmative action pursuant to UC Regents Resolution SP-1. Letter from Cal. Women's Law Ctr., Equal Rights Advocates, Mexican Am. Legal Def. & Educ. Fund, and NAACP Legal Def. & Educ. Fund, Inc., to Stefan Rosenzweig, Regional Director, Office of Civil Rights, Region IX, U.S. Dep't of Educ. (Mar. 19, 1997) (on file with author).
311. See 34 C.F.R. § 100.3 (2008) (detailing prohibited discrimination).
312. 401 U.S. 424 (1971).
313. The intelligence-test requirement was added on the same day that Title VII of the Civil Rights Act of 1964, which required that employers cease race discrimination in employment, took effect.
314. Id. at 427.
315. Id. at 430-31.
316. Id. at 430.
317. Id. at 431.
318. Id. at 436.
319. The exact contours of educational necessity are not perfectly clear. Unlike the Title VII business necessity standard, courts have had fewer opportunities to develop what constitutes an educational necessity. To rebut statistical evidence of racial effect discrimination, a university will need to identify the goals of its admissions policy and demonstrate a manifest relationship between those goals and the selection criteria resulting in adverse impact. To present objective evidence that a nexus exists between the admissions criterion and a particular educational goal, it will be necessary for the university to explicitly identify the goal(s) of its admissions policy.
320. See Cureton v. NCAA, 37 F. Supp. 2d 687, 701 (E.D. Pa. 1999) (outlining the requirements of identified legitimate and substantive goals), rev'd on other grounds, 198 F.3d 107 (3d Cir. 1999).
321. See Griggs, 401 U.S. at 436 (allowing certain disadvantageous selection criteria if they are "demonstrably a reasonable measure of job performance").
322. This inquiry subsumes the issue of how college performance ability should be measured. Should it be based on freshman grades, overall college grade point average, graduation rates, postgraduation success, or some other outcome?
323. See supra subsection II.B.2.
324. In fact, a few universities have explicitly acknowledged that the goal of higher placement in college-ranking systems has created a new admissions need category-students with stratospherically high SAT scores. Admissions officials and universities admit that some of these students are admitted solely based on their SAT scores and that, absent the pressure on the institution to maintain a high average SAT score, many such students would not be selected based solely on meritocratic principles.
325. Cf. Allen v. City of Chicago, 351 F.3d 306, 316 (7th Cir. 2003) (applying the Title VII employment discrimination burden-shifting test by which the plaintiffs are "required to specify an alternative, prove that the alternative [is] equally valid and prove that the alternative [is] less discriminatory"). This is particularly true if rejected minority applicants demonstrate that the use of the SAT eliminates minority applicants with other academic qualifications that have been predictors of success of minority applicants in the past.
326. See BOWEN & BOK, supra note 10, at 61 (finding that the graduation rates of African Americans in the lower SAT score bands increased with the selectivity of the school that they attended);
327. see also Robin Nicole Johnson et al., Ralph J. Bunche Ctr. for Afr. Am. Stud., Gaming the System: Inflation, Privilege, and the Under-Representation of African American Students at the University of California, BUNCHE RES. REP., Jan. 2008, at 1, 6 ("For example, in the fall of 2007, the average high school GPA for entering African American freshmen was 4.08. By comparison, entering Asian and white freshmen posted average GPAs of 4.33 and 4.31, respectively. In other words, the typical black freshman presented a GPA that was less than three-tenths of a grade point lower than the one presented by the typical white or Asian freshman." (footnote and citations omitted)).
328. Cf. Atkinson, supra note 87 ("America's overemphasis on the SAT is compromising our educational system.").
329. See supra Section III.B.
330. See Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 593 (1983) ("Title VI reaches unintentional, disparate-impact discrimination ⋯.");
331. see also, e.g., Bd. of Educ. of N.Y. v. Harris, 444 U.S. 130, 151 (1979) (upholding the standard of discriminatory impact);
332. Cureton v. NCAA, 198 F.3d 107, 112 n. 4 (3d Cir. 1999) ("Many cases have applied [disparate impact] theory to educational institutions and practices.");
333. United States v. LULAC, 793 F.2d 636, 648-49 (5th Cir. 1986) (recognizing the disparate impact test for Title VI cases);
334. Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985) ("The plaintiff first must show by a preponderance of the evidence that a facially neutral practice has a racially disproportionate effect"), abrogated on other grounds, Pitts v. Freeman, 887 F.2d 1438 (11th Cir. 1989), rev'd on other grounds, 503 U.S. 467 (1992);
335. Larry P. ex rel. Lucille P. v. Riles, 793 F.2d 969, 982 (9th Cir. 1984) ("A prima facie case is demonstrated by showing that the tests have a discriminatory impact on black schoolchildren."). Next, the defendant university is given the opportunity to rebut the evidence of discriminatory effect by demonstrating that the selection criterion that resulted in the admission of disproportionately fewer racial minorities is required by educational necessity.
336. See Larry P., 793 F.2d at 981 n. 6 ("In a Title VI case, once a prima facie case has been established the burden is on the defendant to demonstrate that the criteria used are required by educational necessity."). If the defendant university successfully demonstrates that the racially disparate impact of its admissions policy is educationally justified, the institution is still liable for violating Title VI if the plaintiff presents a less discriminatory alternative to the challenged criterion.
337. See id. at 983 (refusing to find that the disparate impact was caused by nondiscriminatory factors).
338. See Harris, 444 U.S. at 151 (declining to lay out a prima facie test for disparate impact);
339. Larry P., 793 F.2d at 982 (same).
340. See Connecticut v. Teal, 457 U.S. 440, 443 n. 4 (1982) (describing the Uniform Guidelines on Employment Selection Procedures adopted by the Equal Employment Opportunity Commission).
341. See 29 C.F.R. § 1607.4(D) (2008) (detailing the federal four-fifths standard for adverse impact).
342. See Cureton, 198 F.3d at 111 (analyzing the standard deviation from the mean of required SAT scores in a discrimination suit brought by African American athletes against the NCAA).
343. See, e.g., Harris, 444 U.S. at 151 (concluding that once disparate impact has been established, "the burden is on the party against whom the statistical case has been made" to rebut the presumption of discrimination).
344. See infra Tables 1-4.
345. See supra note 70.
346. See infra Table 4.
347. See infra Tables 5-6.
348. See infra Tables 1-6.
349. See infra Table 8.
350. See infra Table 7.
351. The analysis in this section is based upon data made publicly available by the University of California Office of the President. See UNIV. OF CAL. OFFICE OF THE PRESIDENT, supra note 57. The data for applicants with HSGPA of 4.0 and higher for the fall 1998 UC Berkeley admissions cycle is taken from the plaintiffs' press materials (on file with author) and the First Amended Complaint, Rios v. Regents of the University of California, (N.D. Cal. Mar. 24, 1999) (No. 99-0525).
352. Proving unlawful race discrimination under a disparate impact theory requires presenting statistical evidence that the questioned policy or practice affects persons of a particular race or ethnicity more harshly than persons of other races or ethnic backgrounds. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). While there is no rigid formula for establishing disparate impact, "statistical disparities must be sufficiently substantial."
353. Id. at 995.
354. Because there are disparities in admissions rates when specific Asian subgroups are compared (e.g., the admissions rate for Filipinos in 1998 is 19.4% whereas the admissions rate for the general category of Asian Americans is 31.8%), whites have been selected as the group with the highest selection rate.
355. For the four-year period from March 1999 to March 2003, UC Berkeley's undergraduate admissions policy was the subject of a federal lawsuit alleging that the institution's admissions policy rejected African American, Latino, and Filipino applicants in violation of Title VI and its disparate impact regulations. See Consent Decree, Castaneda v. Regents of the Univ. of Cal., No. 99-0525 (N.D. Cal. June 6, 2003), 2003 U.S. Dist. LEXIS 9743. The shaded areas in Table 1 are the rates that violate the four-fifths rule. The 1998 African American admissions rate of 20.3% and Latino rate of 20.8% are less than four-fifths of the 33.2% admissions rate of white applicants. The 2003 admissions rate of 19.3% for African American applicants is also less than four-fifths of the 26.4% 2003 white admissions rate. Likewise, the 2004 admissions rate of 15.4% for African Americans and 20.5% rate for Latinos, the 2005 admissions rate of 19.9% for African Americans and 23.4% rate for Latinos, the 2006 admissions rate of 17.4% for African Americans and the 2007 admissions rate of 16.9% for African Americans and 19.7% rate for Latinos are all less than four-fifths of the respective admissions rates for white applicants for those admissions cycles.
356. As discussed supra note 207, whites have been chosen as the group with the highest selection rate due to the disparities in admissions rates when specific Asian subgroups are compared (e.g., the admissions rate for Filipinos with HSGPAs of 4.0 or higher in 2002 is 16.5% whereas the admissions rate for the general category of Asian Americans is 29.9%). The shaded areas in Table 2 are the rates that violate the four-fifths rule. Examining the 1998 and 2000 admissions rates, African Americans were admitted at rates of 23.6% and 22.0%, respectively, while Latinos were admitted at rates of 24.5% and 25.2%; these figures were less than four-fifths of the white admissions rate of 35.6% and 31.7%. During the three admissions cycles of 2001 to 2003, the undergraduate admissions rates of African Americans (21.3%, 19.2% and 14.5%) to UCLA were consistently less than four-fifths of the white admissions rates (29.0%, 24.2%, and 24.1%). In 2004, the Latino admissions rate of 17.7% was well below the white admissions rate of 25.8%. The 2004 African American admissions rate far surpassed the standard necessary to constitute a violation of the traditional four-fifths rule. That year, the admissions rate for African Americans of 12.2% was less than 50% of the white admissions rate of 25.8%. In 2005, the African American admissions rate of 15.8% was almost 50% less than the white admissions rate of 28.9%, and the Latino rate of 21.1% was less than four-fifths the white rate. Likewise, the 2006 African American admissions rate of 11.5% and the Latino rate of 18.3% as well as the 2007 African American admissions rate of 17.1% and the Latino rate of 16.8% were all less than four-fifths of the white admissions rate for those years.
357. Thus, the period during which racial differences in UC Berkeley admissions rates were not statistically significant was the period during which the University was a defendant in a civil rights lawsuit alleging that the institution had discriminated against racial minorities in admissions.
358. The degrees of freedom (df) = 1 for all calculations; p-value refers to the two-tailed p-value, the probability that the variation between the actual and expected admissions rates for the racial groups happened due to chance alone. The superscripts indicate whether variation is statistically significant: † denotes a p-value ≤ 0.1, indicating "marginal statistical significance;" * denotes a p-value ≤ 0.05, indicating "statistical significance;" ** denotes a p-value ≤0.01, indicating "strong statistical significance;" and *** denotes a p-value < 0.001, indicating "very strong statistical significance." Many of the p-values described as "< 0.0001" in this Table are so small that there is a less than one chance in 1,000,000 that admissions are independent of race.
359. As explained supra note 207, whites were chosen as the comparison group rather than Asian Americans because the broad category of "Asian Americans" fails to distinguish between Asian American ethnic groups that may or may not fall within the category of underrepresented minorities.
360. For the three-year period from March 1999 to March 2003, UC Berkeley's undergraduate-admissions policy was the subject of the Rios/Castaneda federal lawsuit alleging that the institution's admissions policy rejected African American, Latino, and Filipino applicants in violation of Title VI and its disparate impact regulations.
361. See First Amended Complaint, supra note 205.
362. For an explanation of this statistical analysis, see supra note 211.
363. As discussed supra note 207, whites were chosen as the comparison group rather than Asian Americans because the broad category of Asian Americans fails to distinguish between Asian American ethnic groups.
364. This type of analysis is not designed to explain why admissions and race are dependent variables. Accordingly, after a prima facie case of Title VI effect discrimination has been established, the university has the opportunity to persuade the court that the selection criteria resulting in racially disparate impact is "educationally necessary" to identify which applicants have the requisite college performance ability to attend the institution. See supra text accompanying notes 184-190. In effect, the institution must demonstrate that African American and Latino high-school students applying to their institutions are disproportionately less likely to have the requisite college performance ability than white high-school applicants.
365. See, e.g., First Amended Complaint, supra note 205 at paras. 5-7.
366. Even if institutions like UC Berkeley and UCLA attempt to rebut statistical evidence of discriminatory effect on the ground that the overall applicant pool is not the relevant pool for Title VI analysis, courts may be persuaded that the vast majority of the applicants in the African American and Latino applicant pools to selective public universities, like the overall applicant pool to selective public universities, is overwhelmingly comprised of students who have the requisite college performance ability to attend those public universities. See BOWN & BOK, supra note 10, at 30 (observing that competition for admission to academically selective schools increased so dramatically between 1976 and 1989 that "even with race-sensitive admissions, the average SAT score for black matriculants in 1989 was slightly higher than the average SAT score for all matriculants in 1951"). In addition, like plaintiffs charging that a particular hiring criterion has the effect of discriminating against job applicants on the basis of gender, race, religion, or national origin, rejected minority applicants filing charges with the Office for Civil Rights might choose to present statistical analysis demonstrating that the use of the SAT as a selection criterion has a racially discriminatory impact on minority applicants with stellar academic credentials.
367. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977) (noting the relevance of statistics in Title VII cases).
368. Chi-square analysis of this disparity is in fact "very strongly statistically significant."
369. See infra Table 6, (showing a p-value of less than 0.0001).
370. As discussed, supra note 207, whites have been selected as the group with the highest selection rate because of significant admissions disparities among Asian subgroups (e.g., the admissions rate for Filipinos with GPAs of 4.0 or higher is 31.6% whereas the admissions rate for the general category of Asian American is 50.6%). Shaded boxes show disparities in admissions rates large enough to constitute discriminatory impact under the four-fifths rule.
371. Only fall 1998 data for applicants with 4.0 and higher HSGPAs is publicly available.
372. See supra note 211 (explaining the statistical significance values).
373. See supra note 207 (explaining the selection of whites, rather than Asian Americans, as the comparison group).
374. See, e.g., First Amended Complaint, supra note 205, at paras. 3-11.
375. See University of Washington Data, supra note 60.
376. See supra note 207 (explaining selection of whites as the group with the highest selection rate because of intragroup disparities within the Asian American population - e.g., the admissions rate for Filipinos in 1998 is 19.4%, whereas the admissions rate for the general category of Asian Americans is 31.8%). Shaded boxes show disparities in admissions rates large enough to constitute discriminatory impact under the four-fifths rule. There are no shaded Latino/Chicano boxes because none of the disparities in admissions rates is large enough to constitute discriminatory impact under the four-fifths rule.
377. See supra note 211 (explaining the statistical analysis).
378. See supra note 207 (explaining selection of the comparison group).
379. See Tables 3, 4, & 6 and accompanying text.
380. 160 F.3d 790, 819-20 (1st Cir. 1998) (Lipez, J., dissenting) (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 336 (1978) (Brennan, White, Marshall, & Blackmun, JJ., concurring in part));
381. see also Johnson v. Transp. Agency, 480 U.S. 616, 630 n. 8 (1987) (discussing the role of voluntary compliance in reaching the goals of Title VII).
382. It is also important to note that if, in the future, the Supreme Court rejects the diversity rationale for affirmative action, the remedial rationale may be the only justification for race-conscious admissions available to universities to justify affirmative action.
383. See, e.g., Paganucci v. City of New York, 785 F. Supp. 467, 477 (S.D.N.Y. 1992) ("A voluntary, race-conscious affirmative action plan does not violate constitutional standards if it is narrowly tailored to serve a compelling state interest. A public employer is justified in undertaking an affirmative action program if it does so to remedy a history of past discrimination." (citations omitted)).
384. The relevant Title VI regulations provide as follows: (i) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination. (ii) Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.
385. C.F.R. § 100.3(b)(6) (2008) (emphasis added).
386. Id.
387. In the Grutter decision and its companion case Gratz, the Court set forth the parameters for the diversity-justified use of affirmative action in higher-education admissions, noting that policies aiming to promote diversity must still meet the narrowly tailored requirement. See Gratz v. Bollinger, 539 U.S. 244, 273-75 (2003) (holding that the "points" system used in admissions decisions by the University of Michigan's College of Literature, Science, and the Arts was "not narrowly tailored to achieve [the] asserted compelling interest in diversity" because the plan failed to "offer applicants the [requisite] individualized selection process");
388. Grutter v. Bollinger, 539 U.S. 306, 334 (2003) (finding that the University of Michigan Law School's admissions scheme bore "the hallmarks of a narrowly tailored plan" as the admissions committee considered race or ethnicity "flexibly as a 'plus' factor in the context of individualized consideration of each and every applicant").
389. Professor Charles Lawrence has explained the difference between the remedial and diversity rationales for affirmative action: Arguments that focus on past and continuing discrimination against minorities, women and other groups are often called "backward-looking." They argue for affirmative action to make amends for or to rectify the effects of past injustices. By contrast, "forward-looking" arguments for affirmative action make sparing reference to past or current wrongdoing, and instead defend affirmative action as a means to some desirable future goal. The liberal or "diversity" defense [for affirmative action] articulates its purpose as "forward-looking" ⋯. Lawrence, supra note 11, at 952-53 (footnote omitted).
390. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 311-13 (1978). Justice Powell reasoned that the First Amendment afforded universities a unique academic freedom to create a diverse student body so long as race was one of multiple components of "diversity."
391. Id. at 312. Universities often rely exclusively on the diversity rationale to defend the constitutionality of their race-based admissions policies. See Grutter, 539 U.S. at 334 (upholding an individualized admissions plan);
392. Gratz, 539 U.S. at 275 (striking down a point-based admissions scheme);
393. Smith v. Univ. of Wash., Law Sch., 392 F.3d 367, 375-76 (9th Cir. 2004) (upholding an individualized plan);
394. Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1254 (11th Cir. 2001) (striking down a "mechanical" plan);
395. Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996) (noting that while the defendant law school invoked a remedial rationale, its arguments relied more heavily on the diversity rationale), vacated, 95 F.3d 53, 53 (5th Cir. 1996).
396. More recently, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court applied the highest level of scrutiny to the consideration of race in individual K-12 student assignments. 127 S. Ct. 2738, 2751-54 (2007). Justice Kennedy's concurring opinion invokes diversity to justify race-conscious policies (but not race-specific individualistic decisions) taking into account the racial composition of schools and neighborhoods in elementary and secondary education on grounds of the school board's interest in creating a racially diverse educational environment.
397. Id. at 2797 (Kennedy, J., concurring in part and concurring in the judgment). Justice Kennedy argues that race should be a component of diversity but that other demographic factors should be considered as well.
398. Id.
399. See, e.g., Lawrence, supra note 11, at 956 ("Perhaps the University's rejection of the remedial defense can be explained by its concern that by admitting its own discriminatory practices it would expose itself to liability ⋯.").
400. In order to admit a "critical mass" of underrepresented minorities - students from groups that make up a relatively small proportion of the student population - diversity-justified affirmative action policies typically admit such minorities at higher-than-average rates.
401. 515 U.S. 200 (1995).
402. 488 U.S. 469 (1989).
403. Id. at 492;
404. see also Adarand, 515 U.S. at 237 ("The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it.");
405. Lawrence, supra note 11, at 955 (using the example of the University of Michigan's proposed strategy in Grutter of admitting and documenting its own historical and contemporary discrimination);
406. Roithmayr, supra note 15, at 1498 (positing that critical history could be used to show that the current law school admission system is structurally discriminatory and that affirmative action is necessary to remedy it).
407. 476 U.S. 267 (1986) (O'Connor, J., concurring in part and concurring in the judgment).
408. Wessmann v. Gittens, 160 F.3d 790, 820 (1st Cir. 1998) (Lipez, J., dissenting). In his dissent, Judge Lipez applied the Adarand and Croson analysis to the selective admissions context. However, he rejected the claims of the plaintiffs and the Boston School Committee that, absent proof of discriminatory intent, statistical disparities in admissions rates to the selective Boston Latin Examination High School constituted a compellingjustification for use of race-based affirmative action.
409. Id. at 817.
410. See Wygant, 476 U.S. at 290 (O'Connor, J., concurring in part and concurring in the judgment) (arguing that it should not be necessary for public employers to prove their own discriminatory behavior in order to take remedial action and that forcing public employers to make findings of past discrimination would be contrary to the expressed desire of the Supreme Court and Congress to encourage voluntary efforts);
411. see also Daniel P. Tokaji & Mark D. Rosenbaum, Promoting Equality by Protecting Local Power: A Neo-Federalist Challenge to State Affirmative Action Bans, 10 STAN. L. & POL'Y REV. 129, 140 (1999) ("Supreme Court doctrine allows the political
412. Wygant, 476 U.S. at 290 (O'Connor, J., concurring in part and concurring in the judgment).
413. See id. at 291 (arguing that a public employer need not make findings of contemporaneous discrimination before taking affirmative action under the remedial rationale).
414. Id.
415. Id.
416. See id. at 277 (majority opinion) ("[T]he trial court must make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary.").
417. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 501 (1989)
418. (alteration in original) (quoting Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977)).
419. See Wygant, 476 U.S. at 282-84 (finding that employer failed to establish legal and factual predicate for race-conscious decision making in layoffs);
420. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 314-20 (1978) (finding that the consideration of race in medical school admissions violated the Equal Protection Clause despite the institution's asserted interest in diversity).
421. Because it is likely that more states will adopt anti-affirmative action laws and because it is possible that the current Supreme Court is prepared to reject the diversity rationale for affirmative action, the answers to both questions are salient.
422. As a practical matter, educational institutions may, like employers and government entities, conduct disparity studies to justify remedial affirmative action. After conducting the studies, affirmative action-less universities like UC Berkeley and UCLA could readopt a limited form of race-conscious admissions without running afoul of anti-affirmative action law. The institutions may point to the studies as proof that the consideration of race does not confer a preference but instead ensures that college performance ability is assessed fairly and adequately.
423. See, e.g., Connerly v. State Pers. Bd., 112 Cal. Rptr. 2d 5 (Ct. App. 2001) (invalidating a state affirmative action statutory scheme applicable to the state lottery and the sale of government bonds based on equal protection concerns).
424. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist., No. 1, 72 P.3d 151, 164 (Wash. 2003). The California Supreme Court has come close to doing the former while the Washington Supreme Court's interpretation reflects the latter approach.
425. See id. at 165 ("Given th[e] language [of the 1-200 voters pamphlet], an average voter would have understood that 1-200 does not ban all affirmative action programs, and would only prohibit the type of affirmative action we have described as 'reverse discrimination' or 'stacked deck' programs.").
426. See, e.g., CAL. CONST, art. I, § 31 (a).
427. This is the federal-funding exception. See, e.g., CAL. CONST, art. I, § 31 (e);
428. see-also supra: Section I.B. State anti-affirmative action laws also include an exception for bona fide qualifications based on gender and for existing court orders and consent decrees.
429. See, e.g., CAL. CONST, art. I, § 31 (c)-(d).
430. See, e.g., Coral Constr. Inc. v. City & County of San Fransisco, 57 Cal. Rptr. 3d 781, 803 (Ct. App. 2007), appeal docketed, No. S152934 (Cal. Aug. 22, 2007) ("If a city or other political subdivision were found to have engaged in intentional discrimination such that some type of race-based remedial program was necessary under the federal Constitution, the supremacy clause as well as section 31 [of the California Constitution (Proposition 209)] dictate that federal law prevails ⋯.").
431. Harris, supra note 46, at 711. Harris argues that, within the context of university admissions policies that rely on standardized tests of limited predictive ability, affirmative action is "a correction for the use of admissions criteria in which racial preferences are embedded."
432. Id.
433. Kimberle Crenshaw, Essay, Playing Race Cards: Constructing a Pro-Active Defense of Affirmative Action, 16 NAT'L BLACK L.J. 196, 212 (1999). Crenshaw argues that educational officials are incorrect to assume that they must eliminate their affirmative action programs following the passage of Proposition 209.
434. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 306 n. 43 (1978). In the context of the Bakke decision, Justice Powell's observation had very significant implications. Justice Powell's opinion suggests a willingness to apply something less stringent than strict scrutiny to the use of race to compensate for the predictive limitations of standardized tests like the SAT. Cf. Harris, supra note 46, at 710 (agreeing with Powell's opinion in Bakke and stating that "what we call a preference depends on where we mark a baseline").
435. Professor Cheryl Harris has observed that "the consideration of race is only an unfair preference if the underlying system is fair and does not enact a set of preferences for particular groups." Harris, supra note 46, at 710;
436. see also Crenshaw, supra note 262, at 212 ("Indeed, Prop. 209 explicitly prohibits discrimination, and institutions are obligated to take measures to eliminate that discrimination.").
437. This might be true of African American and Latino applicants with HSGPAs of 4.0 and higher. See supra subpart III.C. 1.
438. MICH. CONST, art. I, §26(4);
439. WASH. REV. CODE ANN. §49.60.400(6) (West 2008). The California law is worded slightly differently, without any substantive difference: "Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State." CAL. CONST, art. I, § 31 (e).
440. See, e.g., Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 251 (6th Cir. 2006) ("What Title VI requires, in other words, Proposal 2 expressly allows - eliminating any conflict between the two laws."). Proposal 2 by its terms eliminates any conflict between it and federal-funding statutes like Title VI. "This section," the proposal says, "does not prohibit action that must be taken to establish or maintain eligi-bility for any federal program, if ineligibility would result in a loss of federal funds to the state." MICH. CONST, art I, § 26(4). Title VI in turn says that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d (2006). State anti-affirmative action laws have withstood federal preemption challenges to their constitutionality based in large part on the text of the federal-funding exception. The federal constitutionality of current state anti-affirmative action laws is contingent upon holdings by federal courts that the provisions of state anti-affirmative action laws do not impede a state's ability to comply with Title VI.
441. Granholm, 473 F.3d at 251
442. (quoting Title VI, Pub. L. No. 88-352, 78 Stat. 241 (1964)) (first alteration in original).
443. See id. at 251-52 ("Proposal 2 reinforces [the] goal [of Title VI] by prohibiting state universities from discriminating, or granting preferential treatment, on the basis of race.")
444. See Eugene Volokh, The California Civil Rights Initiative: An Interpretive Guide, 44 UCLA L. REV. 1335, 1387 (1997). Professor Volokh did not consider any specific federal programs in interpreting the federal-funding exception: I don't know how many federal programs really require race or sex discrimination; the clause wasn't added with any particular program in mind. It was simply meant to foreclose any possible campaign argument that "[t]he CCRI would cost California voters $X million in federal money," based on some program that opponents might have unearthed.
445. Id. (italics added) (alteration in original);
446. see also Stephen R. McCutcheon, Jr. & Travis J. Lindsey, The Last Refuge of Official Discrimination: The Federal Funding Exception to California's Proposition 209, 44 SANTA CLARA L. REV. 457, 458 (2004) ("[T]he proper interpretation of [the federal-funding] exception will be the most heated battleground over the initiative's enforcement.").
447. Volokh, supra note 270, at 1387.
448. See supra note 48.
449. Franklin D. Gilliam Jr., Pride and Shame at the School of a Black Hero, L.A. TIMES, May 22, 2004, at B19. Gilliam wondered, in light of the steady post-Proposition 209 decline in the number of African American - and particularly African American male - students, "How long will it be before [a bust of deceased UCLA alumnus] Ralph Bunche is the last black person at UCLA?"
450. Id.
451. TIM GROSECLOSE, REPORT ON SUSPECTED MALFEASANCE IN UCIA ADMISSIONS AND THE ACCOMPANYING COVERZ-UP 1 (2008).