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When you listen to the colorblind and merit-based arguments against affirmative action in college admissions, it’s all about fairness. Didn’t Martin Luther King Jr. tell us to judge people by the content of their character instead of the color of their skin? And if character content is a bit too hard to measure, we do have an objective scale — grades and standardized tests. They’re easy to judge: The higher the number, the better the kid (at least as far as college admissions are often concerned). If fewer black students study at America’s best schools, that’s the price we have to pay to move beyond prejudice. Pure objectivity — it sounds good. But play out the logic, and these arguments might actually lead American colleges and law schools to demand highergrades and test scores from blacks than from whites. That’s something to think about as the Supreme Court ponders the future of affirmative action in Gratz v. Bollingerand Grutter v. Bollinger, two cases from the University of Michigan being argued on April 1. The problem, in a word, is overprediction. People who spend their days analyzing how well grades and standardized test scores predict future scholastic performance (which is why we consider them in admissions decisions) have documented an uncomfortable fact: On average, blacks in college and law school get lowergrades than expected based on their earlier grades and test scores. Don’t just take my word for it. Here’s a study from August 2000, put out by the Law School Admission Council, the folks who administer the LSAT: “[T]here is an overall tendency for test scores and undergraduate grades to over-predict law school performance for nonwhite law school students. The over-prediction was greater when LSAT score was used alone than when it was used in combination with [undergraduate GPA].” The same thing happens with high school students applying to college. According to a 1999 report from the College Board, which administers the SAT and related tests, “Many studies over the years have found that the SAT I and other admission test scores of African Americans, Latinos, and Native Americans tend to ‘overpredict’ their grades at historically White colleges and universities. That is, underrepresented minority students have college grade-point averages that are significantly lower than those of Whites and Asians with similar SAT I scores.” A study by the Brookings Institution shows that the same thing happens when you base the predictions on SATs and high school GPAs together. And the predictive value of statistics doesn’t improve for African-Americans when you expand the criteria beyond the SAT I test to add the subject tests (previously called Achievement Tests, now known as SAT II), according to a College Board study from last year. Sadly, the problem doesn’t end there. It’s not merely that the numbers on average overpredict how blacks do. It’s also that, for those students with the best numbers, the overprediction is most pronounced. According to the Brookings study, that’s true at the undergraduate level (“[I]n selective colleges and universities, black students at the highest levels of SAT score are especially likely to underperform relative to white classmates with similar scores and characteristics.”). According to the Law School Admission Council, it’s also true in law school (“[W]hen used in combination, [LSAT and undergraduate GPA] tended to over-predict for nonwhite students with higher predicted [law school GPAs] to a greater extent than it over-predicted for those with lower predicted [grades].”). A NUMBERS GAME The jury is still out on why all this happens (although it seems unlikely that the tests themselves are biased in favor of blacks). But, as far as the legal challenges to affirmative action go, more important than the why is the what. That’s because, when it comes to gauging merit for admissions — and to criticizing those admissions programs that use affirmative action — the main reference point seems to be grade point averages (numbers) and test scores (more numbers). The University of Michigan created some grids — based on numbers — to assist admissions officers in deciding whom to accept and whom to reject. The plaintiffs in Gratzand Gruttertook numbers from the university and made up their own grids. The lower court judges who presided over the cases before they went to the Supreme Court battled over the numbers. The briefs to the Supreme Court from all the parties and interested organizations are spilling over with numbers. Even schools that have abandoned affirmative action tell applicants how important their numbers are for admissions. So maybe it’s true, as the College Board writes in its brief supporting the University of Michigan in Gratz, that “Petitioners and their amici assume that a student with higher SAT or other admission test scores is, ipso facto, better qualified.” But they might be excused for doing that, given the importance that the schools themselves place on numbers. As the Law School Admission Council wrote in its own brief supporting Michigan in Grutter, making a point that no doubt applies to all admissions offices, “Undergraduate grades and LSAT scores are the principal means by which law schools can screen and select” applicants. Sure, other things matter a lot, too, as the briefs make clear. But at the end of the day, everyone keeps coming back to the numbers. And there’s a reason for that. The numbers are fairly good predictors of how students will perform in school. According to the College Board’s brief in Gratz, “Data collected by the College Board and others have consistently found that SAT scores work well as a predictor of college grades, . . . including both early and later college performance, as well as of retention and graduation.” Same goes for the LSAT. The executive director of the Law School Admission Council wrote in 1997 that “[t]he LSAT is used to address two, separate probability issues: (1) the probability that a student will be academically successful in law school; and (2) the probability that one student will do better than another in the first year of law school.” ADDING UP That’s where the danger kicks in. GPAs, SATs, and LSATs do indeed predict how well students will perform if admitted. But we know that they’re better predictors for some students than others. Specifically, we know that GPAs and test scores tend to overpredict along racial lines. (According to the Brookings study, for instance, the overprediction for black undergraduates is about one-third of a point on a five-point scale. That’s about the difference between a B-plus and an A-minus.) So if we use measures whose purpose is to predict certain results, and they fail to predict those results in an identifiable and systematic way, what do we do? The solution should be obvious: Reinterpret the measures so that they will be better predictors. The solution is to require black applicants to have highernumbers than white students to gain university admission. (There is another option — abandoning grades and test scores altogether. But even raising that possibility shows how preposterous it is. What, exactly, would admissions officers poring over thousands of applications have left to guide them?) Before anyone pooh-poohs my little solution, there’s another way to think of the issue that reveals why the anti-affirmative action crowd should care. Grades and standardized tests suggest that black applicants on average will perform better in college and law school than they do. If they’re admitted on the basis of those numbers, and the people relying on those numbers know about the predictive pattern — which they do — then minority students are getting a break. An admissions system that relies — in any proportion — on GPAs and test scores is one that by definition gives an advantage to blacks. Such a system, inherently, incorporates a form of affirmative action. Put still another way, admissions systems relying on standardized tests and GPAs discriminate against whites. And eliminating such discrimination is at the core of the fight against affirmative action. So doesn’t logic compel affirmative action abolitionists to demand that schools require higher scores for blacks than for white students? BACK TO REALITY There is, of course, one little problem with doing this: It pretty much defines exactly the sort of explicit, race-based discrimination harmful to blacks that the civil rights movement rose up against. Make it harderfor blacks than whites to get into college? That should strike everyone — conservative and liberal alike — as exactly the sort of racism that America has prided itself on moving beyond. So, I agree, let’s not implement my proposal. But, for a moment, look at it as a tool to evaluate the anti-affirmative action argument. Opponents of affirmative action say that they are being both colorblind and meritocratic. They oppose affirmative action because they don’t want to give extra points to blacks just because they are black. And, presumably, they would oppose my solution on the same principle — they don’t want to take points away from blacks just because they’re black, either. The GPA and test score numbers, they probably would say, might be the best indicator that we have in a flawed world. So let’s look at the numbers, and not anyone’s skin color, to get as close as we can to each applicant’s individual merit. Sounds nice. But they are still embracing the use of numbers that they know to have nonmeritocratic, noncolorblind results. And what about my little nonstarter of a solution? How does it register on the colorblind and meritocratic scales? At first glance, it’s neither. It penalizes all blacks based on a group’s average past statistical performance, rather than taking each person as an individual. But why does it do that? Because statistical performance has some truth in it. So readjusting (lowering) a race-based group on the basis of past experience can be an efficient way of getting closer to individual merit and better grade prediction. All of which makes the idea of purely merit-based and truly colorblind admissions seem a lot more confusing — and less compelling — than the affirmative action abolitionists might like. For what it’s worth, I’m guessing that the anti-affirmative action crowd won’t want to adopt my solution (any more than those who support affirmative action would). After all, the benefit of overprediction to blacks is trivial. So few whites and Asians are hurt that it’s not worth fighting over. The harm to higher education in changing the system would be greater than the benefit to it. If this is what it takes to vindicate a principle, the cost is simply too high for society to bear. These are good arguments. And they’re familiar ones, too. What they sound like, in fact, are solid reasons for supporting affirmative action in the first place. Evan P. Schultz is associate opinion editor atLegal Times . “Controversies & Cases” appears every other week. He can be reached at [email protected].

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