In a ruling last Friday (in Smith v. Regents of the University of California), state trial judge Brad Seligman issued a preliminary injunction barring the various University of California schools from considering the results of SAT or ACT tests in admissions and scholarship decisions.

When I first learned of this ruling, I wondered how a judge could reach such a result. On reading Seligman’s opinion, while I don’t find it persuasive, I also see that UC president Janet Napolitano and the UC Regents were complicit in their own defeat.

In February (as this article reports), “University of California faculty leaders [recommended] the continued use of the controversial SAT and ACT as an admission requirement for now, citing UC data showing the standardized tests may actually help boost enrollment of disadvantaged students.”  But in May, the UC Regents, in their dubious wisdom, overrode the faculty recommendation. They decided to eventually eliminate the use of SAT and ACT tests but allowed campuses to decide to use the tests as an optional part of the admissions process until 2022. Some campuses (e.g., Berkeley) decided to immediately abandon using the tests, but most (e.g., UCLA) opted for the optional option.

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Seligman determines that students with disabilities were likely to prevail on their claim that the test-optional policy “denies [them] meaningful access to the additional admission opportunity that test-submitters will enjoy, in large part because they have not taken these tests and will not be able to take them with appropriate accommodations during this Covid-19 pandemic.”

Seligman explicitly agrees with UC that “there is no data available to demonstrate” that the optional use of the tests “will have an adverse impact on admission rates of persons with disabilities,” but he objects that applicants with disabilities can’t “take advantage of the ‘plus factor’ or ‘second look’ available to test takers.”

On the question of relative harms, Seligman seems not to recognize that the lack of data that he has acknowledged makes it impossible for him to assess the magnitude of the harm to disabled applicants. In weighing the public interest, he deploys UC’s decision to abandon the tests against it:

The public interest in continuing the use of tests that [UC] has indicated that it will abandon is not clear, particularly where three UC campuses, including Berkeley, will immediately cease using test results in admissions. UC does not seriously argue that the test is a valid and effective means of determining admissions not does it deny that non-disabled, economically advantaged, and white test takers have an inherent advantage in the test process.