In Testing the Master Tools, Professor Kimberly West‐Faulcon responds to Professors Guy‐Uriel Charles and Girardeau Spann, who critiqued West‐Faulcon's article The River Runs Dry. The River Runs Dry attacked the assumption that compliance with state anti–affirmative action law has led to plunging minority admissions. West‐Faulcon reaffirms her argument that race‐conscious admissions and hiring practices are not foreclosed by state anti–affirmative action law where those actions are taken in order to comply with the disparate impact provisions of Title VI. Professor West‐Faulcon accepts that ideology and politics will inevitably influence the discussion, but goes on to argue that factual assumptions undergirding current doctrine need to be revisited. First, she notes that Title VI disparate impact analysis is influenced greatly by inaccurate perceptions of the ability of standardized tests to identify merit, particularly among the most qualified applicants. West‐Faulcon argues that the Supreme Court's analysis in the Ricci firefighter case supports her argument that the strong‐basis‐in‐evidence standard for reviewing affirmative action policies is appropriate, and that many affirmative action policies are justifiable under such a standard. Professor West‐Faulcon concludes by noting that as long as ideology continues to influence legal decisionmaking, the discourse on affirmative action must take place in both the doctrinal and ideological realms.
Volume 158 Issue 1 2010 Response