The NAACP is filing a complaint with the U.S. Department of Education’s Office for Civil Rights, urging it to strike down the entrance exam used by selective New York City high schools. I’m sure that this will be a “disparate impact” complaint, meaning that it will argue that the test should be ruled discriminatory because of the fact that some racial groups are doing better on it than others — even though the test is neutral on its face, in its application, and in its intent. In my view, mere “disparate impact” is not illegal discrimination, but unfortunately the Obama administration is a big fan of this approach to civil-rights law. Here’s a general critique of the disparate-impact approach I wrote some years ago. Note that the first example I give there (pages 1–2) is the Clinton administration’s similar attack on the SAT.
There are basically three ways that the city can defend its use of the test. The first is to deny that there is a disparate impact, which I assume will be difficult in light of the numbers cited in the news story. The second is to argue that any disparate impact is justified because of the test’s predictive value of students’ high-school performance; that issue will likely be the focus of OCR’s investigation. But the third is to argue that the disparate-impact approach is inconsistent with the applicable federal statute here, Title VI of the 1964 Civil Rights Act. Here’s hoping that this defense is made aggressively and that somewhere down the line a federal court agrees (the Supreme Court has never resolved this issue, though it has rather pointedly noted it — see footnote six here).