Supreme Court Brief Shows Test Scores Do Not Equal Merit

University Testing

Among the dozens of amicus curiae briefs submitted to the U.S. Supreme Court in the University of Michigan affirmative action cases, only FairTest’s directly challenges the plaintiffs’ assertion that scores on standardized tests, such as the SAT and LSAT, should be a primary tool to rank candidates for admission.


FairTest’s core legal argument is straightforward: Michigan’s policies are justified to prevent unfair discrimination that would occur if admissions decisions were based primarily on test scores.


The amicus contends:
• “Standardized tests are not the neutral, objective measures of ‘merit’ that petitioner’s argument assumes;
• “Compensating for the biases of standardized tests and standardized testing 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;”
• Therefore, University of Michigan’s admissions policy “constitutes a necessary and constitutional remedy in this case.”


The FairTest amicus draws on expert testimony from the Federal District Court trials of the Michigan cases, peer-reviewed academic studies, FairTest fact sheets, and law review articles to demonstrate the biases, inaccuracies and other measurement errors built into the design of the SAT and LSAT. In addition, it cites substantial evidence demonstrating that the availability of high-quality test preparation courses further distorts exam results in favor of affluent, white applicants. Specific attention is also paid to the potential of “stereotype bias” to artificially depress the scores on high-stakes tests obtained by well-qualified members of groups that historically have suffered from discrimination. The latter argument has been most highly developed by Stanford University Psychology Professor Claude Steele (see Examiner, Fall/Winter 1995-96).


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 Lewis F. Powell Jr. 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 nonprofit 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.” Additional assistance was provided by several private sector attorneys who are expert in both testing policy and federal civil rights law.


The Supreme Court heard oral arguments on the Michigan cases on April 1. Written submissions are now under review by the justices and their clerks. Rulings are expected as soon as this June. The decisions are likely to have a profound, national impact on the use of test scores in both undergraduate and graduate admissions by public and private institutions.


The full text of the FairTest amicus, with a complete set of citations, is posted at