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

Opponents of affirmative action are waging a national battle over race‐conscious admissions through state ballot initiatives like California's Proposition 209, Washington's Initiative 200, Michigan's Proposal 2, and Nebraska's Initiative 424. With seemingly little regard for Title VI federal civil rights law, public universities have been prone to assume that “affirmative action–less” admissions policies and plunging minority admissions are the inevitable outcome of compliance with state anti–affirmative action laws. In The River Runs Dry, Professor Kimberly West‐Faulcon challenges this framing. She argues that 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 differences in SAT scores. She considers whether universities that completely abolish affirmative action to comply with state anti–affirmative action initiatives may actually be breaking the law with respect to Title VI. Using statistical tests for identifying Title VI disparate impact, she analyzes selective California and Washington public university admissions cycles after the enactment of anti–affirmative action laws and finds racial disparities in admissions to affirmative action–less universities of sufficient magnitude that, if unjustified, could establish that an institution has a compelling interest in considering race to comply with federal antidiscrimination law. Based on this analysis, she concludes that state anti–affirmative action laws may permit the consideration of race if undertaken to remedy federal “racial effect discrimination.”