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The River Runs Dry: When Title Vi Trumps State Anti–Affirmative Action Laws

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The River Runs Dry: When Title Vi Trumps State Anti–Affirmative Action Laws _________________ ARTICLE _________________ THE RIVER RUNS DRY: WHEN TITLE VI TRUMPS STATE ANTI–AFFIRMATIVE ACTION LAWS † KIMBERLY WEST-FAULCON Opponents of affirmative action are waging a national battle over race- conscious admissions through state ballot initiatives like California’s Proposi- tion 209, Washington’s Initiative 200, Michigan’s Proposal 2, and Ne- braska’s Initiative 424. To comply with these new voter-approved, anti– affirmative action laws, public universities have eliminated their affirmative action policies, and this has had a negative impact on minority admissions rates. At the same time, federal antidiscrimination law—Title VI of the Civil Rights Act of 1964 and its implementing regulations—prohibits these universi- ties from using selection criteria that have the effect of discriminating against applicants on the basis of their race. Legal scholars have largely ignored this † Associate Professor of Law, Loyola Law School, Los Angeles, at Loyola Mary- mount University; B.A., Duke University; J.D., Yale Law School. I wish to thank William Araiza, Tomiko Brown-Nagin, Devon Carbado, Robert Chang, Brietta Clark, Kimberle Crenshaw, Cheryl Harris, Allan Ides, Adrian LeBlanc, Alexandra Natapoff, Lee Pether- bridge, Samuel Pilsbury, Sean Scott, Marcy Strauss, Julie Su, Daniel Tokaji and Gary Williams for their encouragement and very insightful comments as well as the Chief Justice Earl Warren Institute on Race, Ethnicity, and Diversity at the University of Cali- fornia at Berkeley, Boalt Hall School of Law, Christopher Edley, and Goodwin Liu for inspiring and supporting an earlier draft of this paper. Special thanks to Shawn Chang and Elliot Henry for their superb research assistance and to NaShaun Neal and Bar- mak Nassirian for locating helpful research materials relevant to this project. This Ar- ticle also benefited from comments made by participants in the UCLA School of Law Faculty Colloquium, Loyola Law School Faculty Workshop, UCLA School of Law Criti- cal Race Studies Workshop, Southeast/Southwest People of Color Legal Scholarship Conference at Florida A&M University College of Law, and the Chief Justice Earl War- ren Institute symposium, Equal Opportunity in Higher Education: The Past and Future of Proposition 209 at the University of California, Berkeley. I also thank the editors of the University of Pennsylvania Law Review for their meticulous attention to detail. (1075) 1076 University of Pennsylvania Law Review [Vol. 157: 1075 tension between state anti–affirmative action laws and federal antidiscrimina- tion law. Consequently, with seemingly little regard for Title VI federal civil rights law, public universities have been prone to assume that “affirmative ac- tion–less” admissions policies and plunging minority admissions are the inevi- table outcome of compliance with state anti–affirmative action laws. At an af- firmative action–less university, the river runs dry—the institution virtually stops admitting certain racial groups and presumes that state anti–affirmative action laws dictate such a result. This Article challenges this framing. Its point of departure is to explain how the prominent role of the SAT in selective college admissions, dictated in large measure by its importance in college- ranking and financial bond-rating systems, creates an incentive for universities to adopt “minority-deficiency” over “test-deficiency” explanations for racial dif- ferences in SAT scores. The Article then endeavors to shift the focus from the state law anti-“preference” constraints placed on public universities to the fed- eral antidiscrimination constraints that Title VI imposes on the same institu- tions. It considers whether universities that completely abolish affirmative ac- tion to comply with state anti–affirmative action initiatives may actually be breaking the law with respect to Title VI. To demonstrate this point, this Article uses statistical tests for identifying Title VI disparate impact—“effect discrimi- nation”—to analyze selective California and Washington public university admissions cycles after the enactment of anti–affirmative action laws. It finds racial disparities in admissions to affirmative action–less universities of suffi- cient magnitude that, if unjustified, could establish that an institution has a compelling interest in considering race to comply with federal antidiscrimina- tion law. An important conclusion flows from this analysis. State anti– affirmative action laws may permit the consideration of race if undertaken to remedy federal “racial effect discrimination.” INTRODUCTION....................................................................................1078 I. RECKONING WITH THE END OF AFFIRMATIVE ACTION .................1086 A. Genesis and Future of State Anti–Affirmative Action Laws ...1087 B. The Structure of State Anti–Affirmative Action Laws ...........1091 C. Racial Impact on Selective Admissions ...............................1092 1. Declining Minority Admissions and Enrollment Numbers.....................................1093 2. Declining Rates of Minority Admissions ..............1095 D. Racial Disparity in Lieu of Racial Parity in Admissions .......1098 II. EVALUATING THE ROLE OF THE SAT IN SELECTIVE ADMISSIONS ...........................................................1103 A. University Ranking and Rating Based on Institutional Average SAT Score........................................1105 B. Debating Minority Deficiency Versus Test Deficiency.............1109 2009] State Anti–Affirmative Action Laws and Title VI 1077 1. The Well-Meaning History and Intent of the SAT in College Admissions.......................1113 2. Effectiveness of the SAT in Distinguishing Amongst Highly Qualified Applicants .................1114 a. Predictive Ability of the SAT To Assess College Performance ........................................... 1116 b. Ability of the SAT To Predict Academic Performance of Racial Minorities........................ 1117 C. The Relationship Between Affirmative Action and the Racial Gap in SAT Scores.....................................1118 III. ADMISSION DISPARITIES AS TITLE VI EFFECT DISCRIMINATION ...1120 A. Rationale and Enforcement Mechanisms for the Title VI Effect-Discrimination Standard .............................1122 B. The Theory Underlying Title VI Racial Effect Discrimination.......................................................1124 C. Proving Title VI Effect Discrimination ...............................1128 1. UC Berkeley and UCLA........................................1131 2. University of Washington .....................................1142 IV. THE DUTY TO COMPLY WITH TITLE VI AS A REMEDIAL RATIONALE FOR AFFIRMATIVE ACTION ........................................1145 A. Diversity as the Default Rationale for Affirmative Action in Higher-Education Admissions.............................1146 B. Title VI Liability as a Remedial Rationale Under Federal Law..........................................................1148 C. Permissibility of Remedial Affirmative Action Under State Anti–Affirmative Action Laws ..................................1152 1. Applying the Antipreference Provision to Test Deficiency..................................................1153 2. Interpreting the Federal-Funding Exception ......1155 V. RESPONSIBILITY FOR RACIAL DISPARITY .......................................1158 CONCLUSION........................................................................................1159 1078 University of Pennsylvania Law Review [Vol. 157: 1075 INTRODUCTION It is simple justice that all should share in programs financed by all, and directed by the government of all people. 1 President Lyndon B. Johnson We have demonstrated for decades a steadfast resolve to admit and edu- cate students of all races and ethnicities. Our resolve has not changed. But the laws under which we operate have changed. Robert Berdahl, University of California, Berkeley, 2 Chancellor, 1997–2004 Opponents of affirmative action are waging a national battle over race-conscious admissions through state ballot initiatives like Califor- nia’s Proposition 209, Washington’s Initiative 200, Michigan’s Pro- posal 2, and Nebraska’s Initiative 424. To comply with these new voter-approved anti–affirmative action laws, public universities have eliminated their affirmative action policies, and this has had a nega- tive impact on minority admissions rates. At the same time, federal antidiscrimination law—Title VI of the Civil Rights Act of 1964 and its implementing regulations—prohibits these universities from using se- lection criteria that have the effect of discriminating against applicants on the basis of race. Legal scholars have largely ignored this tension between state anti–affirmative action laws and federal antidiscrimina- tion law. Consequently, with seemingly little regard for federal civil rights laws, public universities have been prone to assume that “af- firmative action–less” admissions policies and plunging minority ad- missions are the inevitable outcome of compliance with state anti– affirmative action laws.3 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/cr1101968.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,
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