FairTest Supreme Court Amicus Brief Demonstrates "Test Scores Do Not Equal 'Merit'"

for further information:
Robert Schaeffer, FairTest (239) 395-6773
Mark Savage, Public Advocates (415) 431-7430

for immediate release Tuesday, February 25, 2003

Among the dozens of Amicus Curiae Briefs submitted to the U.S. Supreme Court for consideration in its deliberation of the University of Michigan affirmative action cases, only one directly takes on the plaintiffs’ core argument that scores on standardized tests, such as the SAT and LSAT, should be a primary tool to rank candidates for admission.

Instead, the National Center for Fair & Open Testing (FairTest) argues, “Compensating for the biases of standardized tests . . . requires admissions offices to consider race as one factor in order to ensure equal treatment to students of color and to assess equally their true promise for admissions.” The FairTest brief draws on expert testimony from the Michigan cases, peer-reviewed academic studies, and law review articles to demonstrate the biases and other errors built into the design of the SAT and LSAT. In addition it provides evidence that the availability of high quality test preparation courses primarily to affluent, white applicants further distorts exam results.

FairTest Public Education Director Robert Schaeffer explained, “The argument here is simple. Michigan’s admissions policies are justified to prevent unfair discrimination which would occur if decisions were based primarily on test scores, as well as for the reasons other amicus briefs argue.”

In two previous, major cases in which the Supreme Court considered affirmative action in higher education admissions, Bakke and DeFunis, a Justice indicated that test bias might be a sufficient reason to justify considering race. For example, in Bakke, Justice Powell observed, “To the extent that race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that there is no ‘preference’ at all.”

Public Advocates, Inc., a non-profit law firm in San Francisco, prepared the Amicus brief. Public Advocates attorney Mark Savage explained why his colleagues donated their time to draft the document for FairTest: “This case is not only about the Supreme Court’s decision in Bakke, upholding the importance of diversity in higher education. Fundamentally, this case is about the core value of equal educational opportunity mandated by Brown v Board of Education.”

The Supreme Court plans to hear oral arguments on the Michigan cases on April 1.
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– The Amicus Brief is posted at http://www.fairtest.org and http://www.publicadvocates.org/.
– Fact sheets and other materials on SAT and LSAT bias are available at http://www.fairtest.org/.