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The Feds Strike Back By: John Leo
FrontPageMagazine.com | Monday, May 31, 1999

US News and Wold Report | May 31, 1999

NON-ASIAN MINORITIES tend to score lower on standardized tests used for college admissions than do Asian-Americans and whites. The obvious answer to this gap is better schools in minority neighborhoods and better study habits. But the Clinton Administration has a quicker fix: Let's just declare the tests invalid.

The draft of a new "resource guide" by the U.S. Department of Education's Office of Civil Rights says that "the use of any educational test which has a significant disparate impact on members of any particular race, national origin, or sex is discriminatory" unless the school using the test can prove otherwise. That makes almost all educational tests suspect. Specifically, the department is warning that the SAT and ACT tests are presumed to be invalid if they are a significant basis for college admissions and financial-aid decisions that fail to produce proportional representation by race and gender.

The department says the guide is merely a useful "synthesis of settled law," but it is surely one of the four or five most amazing positions taken by the Clinton Administration. As usual, the administration acted with a stunning lack of candor and straightforwardness: no public announcement, a ho-hum pretense that staking out a radical position is just business as usual, word casually passed to colleges that they have just four workdays to respond (lengthened until the end of the summer after protests).

The Chronicle of Higher Education website says that officials are "reeling" from the announcement. No wonder. It's an attempt to decapitate traditional assessments of merit at a single stroke and push the colleges to accept large numbers of applicants who are well below their standards. The department is in effect saying that colleges using standardized tests can expect to be called in for long and grueling interrogations that most of us would call harassment. Terry Pell of the Center for Individual Rights calls this "an extralegal form of bureaucratic terrorism."

War of attrition. Sample questions from the draft guidelines: Has the school developed its own evidence that the procedure is valid? What is the form of evidence? Who conducted the study and how recently was it done? For what use was the test or assessment procedure validated? Answer these and the department will offer dozens more to wear you down.

The intent seems to be to bully schools into dropping tests, or at least de-emphasizing them. That would be the only sure way to avoid the legal costs, the withering interrogations, and the threat of losing federal funding. Turning more and more to subjective admissions criteria—essays, extracurricular activities, "life experiences"—would allow more minorities to gain admission over higher-scoring Asians and whites. But only a dishonest use of subjective factors is likely to change the numbers a lot. And subjectivity would open the schools to more litigation and federal complaints over bias, not less. The education department would surely be back in the face of the colleges asking for an explanation of subjective standards that don't produce rough racial quotas.

The text is vague about how much impact a test must have to be regarded as suspect. All it must do is to "contribute to a disproportionate denial of an educational benefit or opportunity." People who intend to bully like to use vague and broad language so that the victim will surely be guilty of something.

Does the Administration really think this plan will fly? Maybe the idea is to provide cover for colleges to back away from standards and toward more affirmative action while saying that they are being forced to do so under federal pressure. Not all colleges are "reeling" at the prospect of more racial preferences.

Perhaps the real intent is to soften up the public and the courts for heavier doses of disparate-impact theory. The text opens the door to using the theory to rearrange every aspect of education, from professors' grades, final exams, and the racial makeup of faculty to the new standards being set for public schools in many states. All cutoffs of test scores would surely be depicted as grossly unfair: A college that requires a 1300 score would have to explain why a student with a 1290 score couldn't expect to succeed at the institution. Control of these matters would pass from schools and local governments to the courts and the federal bureaucracy.

Then again, the obvious is true: In Democratic administrations, the posts of civil-rights chief at the Education and Justice departments are the two key outposts of the cultural left in Washington. These jobs, currently held by Norma Cantú and Bill Lann Lee, are conceived as platforms to pursue (mostly behind the scenes) a heavy ideological agenda built around race and gender preferences and proportional representation. The President speaks like a moderate and plays to majority opinion, but the two appointees reliably head in a different direction, mostly unnoticed. In this case, it's important for the Republicans to wake up and hold congressional hearings on what the Clinton Administration really has in mind for our schools.


© 1999 USN&WR

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