Eric Langborgh

    Controversy erupted and continues to simmer over the Department of Education’s Office of Civil Rights’ (OCR) draft guidelines regarding the use of standardized tests for college admissions criteria. While the OCR maintains it is merely clarifying existing laws and recent judicial decisions, many in the academic community fear this may be the first step in an effort to eliminate usage of the SAT and the ACT.

    With the premature release of “a resource guide” on “Nondiscrimination in High-Stakes Testing” to coincide with the 45th anniversary of Brown vs. Board of Education, a firestorm broke out when universities and testing services around the nation were caught off guard by the pressing deadline and confusing language of the draft. 
Educators were initially given only four days to respond to the draft. That deadline was eventually extended amid the brewing controversy, with final guidelines reportedly to be released in December.

    Despite pleas to the contrary by the OCR, the guidelines were interpreted by many college administrators and conservatives as a frontal assault on standardized admissions tests, such as the SAT and ACT, and as an attempt to circumvent recent federal court and voter initiatives forbidding racial preferences in admissions.

    “If this document were really about, as some mistakenly suggest, the elimination of the SAT,” answered Arthur Coleman, Deputy Assistant Secretary for OCR, “you probably wouldn’t have the president of the ETS sitting down by my side before the Commission on Civil Rights saying ‘we support the effort of OCR.’”

    The Educational Testing Service (ETS) manufactures and administers the SAT, as well as several other standardized tests.

    Still, ETS had reason to be jittery. “We had lots of issues with the draft,” offered Anthony Carnevale, vice-president for public leadership at ETS.

    Among the issues ETS was concerned with was the emphasis on standardized tests rather than on other selection devices. “We thought they ought to spend more energy…on the fact that the alternatives [must] have the same statistical validity and…meet the same educational criteria” as the SAT does, Carnevale told Campus Report.

    “So if you are going to use another standard like recommendations from people’s closest friends, then you have to prove that that will predict success, as well.”

    Of particular concern to critics of the OCR draft was its emphasis on “disparate impact” of tests on certain racial and ethnic groups. “If the educational decisions based upon test scores reflect significant disparities in the kinds of educational benefits afforded to students based on race, national origin or gender,” explained Coleman in a June 18 public briefing, “then ask more probing questions about what’s going on to ensure non-discriminatory, educationally sound practices.”

    Campus Report has learned that a three-part process is intended by existing civil rights statutes to determine the validity of given admissions criteria: 1) Is there disparate impact? 2) If there is, does the criterion serve an educational purpose? 3) Is there a practical alternative?
In other words, a test such as the SAT, which shows discrepancies in scores between different races or ethnicities, is not necessarily invalid if it can be shown to serve a legitimate educational purpose. The burden is on the plaintiff to prove that a practical alternative exists with less disparate impact.

    Curiously, the third part of this test was de-emphasized in the OCR draft, while the first seemed to be highlighted. “It looked as though there was a serious editorial problem here,” offered Carnevale of ETS in OCR’s defense. “The document needs a writer.”

    However, many remain unconvinced this error was merely editing, and believe it may in fact betray a more sinister agenda. The OCR is “rolling out a red carpet for plaintiffs to stop standardized testing,” complained Abigail Thernstrom, who is a leading education policy scholar and a member of the Massachusetts State Board of Education. “They’re trying to intimidate schools. They really are.”

    In response to an increase in lawsuits against universities that use admissions tests, many schools have already begun de-emphasizing standardized tests and using alternative criteria in order to achieve greater diversity. Said Berkeley Chancellor Robert Berdahl, “Today, for example, we rely less on test scores than at any time since standardized tests were introduced into the admissions process.”

    “Our effort here is to try to capture in an important, contextual way the foundations to guide good decision making,” OCR’s Coleman professed to Campus Report. “We’re not about trying to direct or tell a particular…school…how to use a particular test.”

    Yet, two areas of the Resource Guide have attracted attention as potentially being in violation of the law. In a paper entitled “Legal Problems with Draft Guidelines on High-Stakes Testing” by Roger Clegg, vice-president and general council of the Center for Equal Opportunity (CEO), it is argued that the OCR may be breaking many of the civil rights laws it maintains to be clarifying. CEO is a Washington, D.C.-based research and educational organization.

    “OCR…places the burden of justifying [disparate] impact on the college,” wrote Clegg, “which is inconsistent with the law.” The law he referred to is in Rule 301 of the Federal Rules of Evidence, which states that the burden of proof for “all civil actions and proceedings” always rests with the plaintiff. The Supreme Court has upheld this principle for civil rights litigation in Wards Cove.

    Clegg noted that this burden, as the OCR draft defined it, consists in proving that the test is “educationally necessary” and  “valid.”

    Coleman defended OCR’s guidelines in a public briefing to the United States Commission on Civil Rights: “It is not our aim to establish standards or definitions of merit for educational institutions, as some have claimed.” 

    “The fundamental question every federal court is going to ask, and we would on any case that walks in the door, is ‘what are the educational interests of the test that is alleged to be discriminatory,’” Coleman told Campus Report. “And that can vary not only school by school…but test by test.”

    Further contention comes in the OCR’s extension into university admissions of employment law. “The disparate impact approach is dubious enough in employment law, and should not be extended to other areas, particularly education,” wrote Clegg.

    “It seems to put a novel twist on the current state of jurisprudence,” agreed Sheldon Steinbach, vice-president and general council for the American Council on Education (ACE). He said that other lawyers found the legal basis of the OCR draft “skimpy,” as well.
Coleman responded that federal judges have historically used employment discrimination law in determining anti-bias cases in education.

SAT biased?
    In putting together their Resource Guide, OCR has and continues to recruit input from a variety of sources. Among the groups involved are the National Governor’s Association, ETS, ACE, National Academy of Sciences, and the Association of State Legislatures. 

    They have also leaned heavily on groups like the National Center for Fair and Open Testing (FairTest), whose disdain for the SAT and support for racial preferences leaves many supporters of merit-based admissions nervous.

    “We do see lots of bias…in the construct of tests, and the tests reflect a differential in opportunities to learn,” claimed Monty Neil, the executive director for FairTest. Tests, he said, “give some students a leg up on other students.”

    This influence is noted in the guidelines. According to the OCR draft, if tests suggest an applicant “is probably going to be a poor student, a school cannot on that basis alone” deprive the candidate an “opportunity to improve and develop the academic skills necessary to success in our society.”
However, CUNY chairman Herman Badillo, an ardent advocate of strengthening education in high schools, has long maintained that universities should not be in the business of teaching remedial courses in math, writing, reading, and English.
Thern-strom concurred: “Removing the tests simply shoots the messenger and undermines the drives to raise academic standards.”

    ETS spokesman Carnevale cautioned that the SAT should not be used as the sole criterion for determining admissions policy. “The purpose of the SAT is, it is a proven instrument for measuring verbal and mathematical reasoning ability,” Carnevale told Campus Report. “That is, it is a merit based measure of academic talent. It doesn’t measure anything else.”

    But as a determinant for academic success, it is quite accurate. ETS has found that 65% of students who score 1000 or more on the combined verbal and math portions of the SAT graduate within five years. In contrast, only 35% of students who score less than 900 finish college.

    Claims by detractors that the SAT is “culturally biased” fail to hold up under careful scrutiny, too. As Dinesh D’Souza, bestselling author of The End of Racism and Illiberal Education has shown, discrepencies in group success in the SAT exist not only in the Verbal section—which could conceivably be vulnerable to cultural bias in its use of synonyms, antonyms, and reading comprehension—but in the Math section, as well.

    “I think…you will agree with me that equations are not racially biased and algebra is not rigged against Hispanics,” D’Souza told Campus Report. “The point is that even on the Math test, you see not the same, but bigger racial gaps than on the Verbal test.”

    OCR explained, though, that even valid tests may be misused, and that is why their Resource Guide—which they say is a “synthesis between existing federal legal statutes”—is needed.
“There are principles that are well-established in the testing community that educators are not aware,” Coleman said. 

    “We are going one step in the right direction.” 

    Where that direction is heading is a topic of heated debate. As Carnevale of ETS noted, “the proof will be in the pudding”  when the final draft is released later this year.