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. To comply with these new voter-approved anti–affirmative action laws, public universities have eliminated their affirmative action policies, and this has had a negative impact on minority admissions rates. At the same time, federal antidiscrimination law—Title VI of the Civil Rights Act of 1964 and its implementing regulations—prohibits these universities from using selection criteria that have the effect of discriminating against applicants on the basis of race. Legal scholars have largely ignored this tension between state anti–affirmative action laws and federal antidiscrimination law. Consequently, with seemingly little regard for federal civil rights laws, 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.

Critics of affirmative action keep the focus on universities’ compliance with state anti–affirmative action laws by pointing to the admission of minority students with scores on the SAT below the institution’s overall average SAT score as proof of illegal “under the table” affirmative action. This Article makes the point that racial disparities in admissions have been, on numerous occasions, large enough to constitute prima facie evidence that affirmative action–less institutions are violating federal law. The same universities that are regularly accused of violating state anti–affirmative action laws appear to admit so few racial minorities that the institutions are vulnerable to the polar opposite accusation—that they rely on admissions criteria like the SAT in a manner that unjustifiably decreases the admissions chances of minority applicants in violation of federal law. As this Article explains, the extent to which a university is vulnerable to losing Title VI federal funds depends in large part upon whether an institution can rebut the charge that it uses the SAT in a manner that unfairly diminishes the admissions chances of qualified racial minorities.