The NCAA, which is appealing the decision, won't say that the tests are unfair, but notes that the 301 member schools that make up Division 1 use some kind of standardized test in the admissions process, and that they are just one factor in determining who is eligible to play. But unlike a growing number of colleges that are cutting down or even eliminating test scores in admissions, the NCAA still establishes a minimum score that every athlete in Division One must meet.
So are the tests discriminatory? Sure. "Any standardized test in a sense is," notes TIME law correspondent Adam Cohen. Different racial groups turn in different scores on virtually every standardized test. The question that nobody quite knows how to answer is this: Do blacks score lower than whites on the SAT because the test itself is badly designed, or because blacks on average don't have the same educational advantages as whites?
The second question, which is what the Judge Ronald Buckwalter based his decision on, is this: since the test has been shown to be in some sense discriminatory, is it still legitimate for the NCAA to use it to predict future success? Employment law generally holds that you can in fact give tests that are in some sense discriminatory if you can show a compelling reason why the job requires skills that are measured by that test. What the NCAA in essence argues is that the SAT is a good predictor of college skills, which translate as graduation rates.
The problem is that it's not. So far, the only correlation between good SAT scores and college success is that higher scorers tend to do better their freshman year. On that basis, Judge Buckwalter said that while you could use standardized tests, poor scores alone couldn't be used to keep students out.