OAKLAND — A judge has blocked the University of California system from using the SAT and ACT as part of its admissions process, finding a “test-optional policy” gives an unfair advantage to students who can access testing centers during the COVID-19 pandemic.
The UC Board of Regents voted to drop the standardized testing requirement for admissions in May, but gave campuses the option of considering SAT and ACT scores for admission in fall 2021 and 2022 as part of a “holistic” review of a student’s application.
While UC Berkeley, UC Santa Cruz, and UC Irvine have eliminated use of the test scores, other schools like UCLA, UC San Diego, and UC Riverside planned to adopt the test-optional policy.
But Alameda County Superior Court Judge Brad Seligman issued a preliminary injunction blocking the test systemwide after a lengthy videoconference hearing last week, where lawyers for students challenging the tests argued that disabled students unable to find open testing centers that can accommodate their needs are being denied “meaningful access” to the benefit the test option affords.
“Unlike their non-disabled peers, they do not have the option to submit test scores; even if they did, their chance of obtaining necessary test accommodations are virtually nonexistent,” he wrote.
A group of students and education reform advocates sued the UC system in December, claiming low-income and minority applicants are harmed by the use of SAT and ACT scores in admissions, in part because the tests include “culturally biased questions” that favor affluent students.
Considering the pandemic’s effect on testing site operations, Seligman was particularly concerned at last weeks’ hearing with whether disabled students have been able to take the test this year, calling it “an overlying factor in this whole case.”
Representing students and advocacy groups, attorney Abigail Graber with Brown Goldstein & Levy told Seligman at last weeks’ hearing that “essentially zero students with disabilities will be able to take the test in California,” as high school testing centers that offer accommodations have shut down due to COVID-19.
“It deters them from even applying if they can’t find a test site that will give them accommodations,” Graber said.
Arguing for the UC system, attorney Hailyn Chen said, “It’s a very unusual time and students, regardless of disability, have difficulty accessing the test. But there’s not a single plaintiff who has standing who has provided actual evidence that they have not been able to access a test center and are therefore irreparably harmed.”
Her Munger Tolles & Olsen colleague Bryan Heckenlively said the universities that consider test scores do so in conjunction with a number of other factors, including grades and extracurricular activities.
“Isn’t it correct though that the test cores can only be a plus factor?” Seligman asked him. “They’re never going to hurt you. The only time the test scores come into play is if it helps.”
Heckenlively said a high test score would be a plus factor, along with things like participation in sports, which also “are not equally available to students with disabilities.”
Using football as an analogy, Graber asked Seligman to imagine a field goal-optional game, where a team is banned from kicking field goals because its kicker has a disability. “That doesn’t mean there isn’t a possibility that they could win but no one would call that fair.” Yet scoring a field goal could be the thing that pushes a team over the edge to victory, she said.
“That’s the extra credit that disabled students don’t have access to,” Graber said in a phone interview Tuesday. “Judge Seligman really understood that the process was inequitable for students for disabilities and they are entitled to the same chance in the admissions process as other students when a test is not available to them.”
Seligman’s order only applies for the duration of the litigation, and the UC system plans to stop considering SAT and ACT scores altogether in 2023. Graber said it is unlikely that the universities will win a judgment in their favor before their test-optional policy sunsets in two years.
“Seligman found the plaintiffs are quite likely to succeed on the merits and I don’t see the facts on the ground changing,” she said.
Through a spokesperson, the UC system said it “respectfully disagrees” with Seligman’s ruling.
“An injunction may interfere with the university’s efforts to implement an appropriate and comprehensive admissions policies and its ability to attract and enroll students of diverse backgrounds and experiences,” the UC system said, adding, “The university is evaluating whether further legal actions are called for.”