Winston & Strawn Aids UC Students In Test Score Case

By Rachel Rippetoe | June 20, 2021, 8:02 PM EDT

Kawika Smith was a plaintiff in Smith v. Regents of the University of California, the case that resulted in the University of California becoming the first public university system to stop using ACT and SAT test scores in its admissions process.

When Kawika Smith was a senior at Verbum Dei High School in South Central Los Angeles, he watched as his peers took $1,000 summer prep courses for the SAT, learned the tricks to scoring higher on the standardized test, and then aced it, knowing they had unlocked a key to nearly all the colleges in the University of California system.

He watched knowing this would never be his experience. As someone who didn't grow up with money and who had testing anxiety, Smith knew that his options were limited, even though he did well in school and was involved in local politics and community organizations.

"It kind of frustrated me, knowing that it wasn't reflective of what you were taught in your classroom at your particular school," he said. "Instead, it was based on how well you knew how to play the game. And I didn't want to play anyone's game."

He knew it wasn't fair, so he sought to change the system.

Last month, with the backing of a slew of organizations and a team of lawyers from Winston & Strawn LLP, Public Counsel, Equal Justice Society, Brown Goldstein & Levy LLP and Potomac Law Group PLLC, Smith succeeded.

After a settlement in Alameda Superior Court, the University of California Board of Regents agreed to stop considering SAT and ACT scores in the admissions process at all nine UC campuses.

Smith was among the plaintiffs in Smith v. Regents of the University of California, which was filed in December 2019 against the UC Board of Regents and UC President Janet Napolitano. The suit alleged that the university's use of SAT and ACT scores in determining admissions violated California's equal protection guarantee, its constitution and state laws prohibiting discrimination based on race and disability.

"The SAT and the ACT essentially acted as proxies for preexisting privilege, proxies for race and socioeconomic advantage and for lack of disability accommodation," said Katherine Farkas, one of the Winston & Strawn lawyers who represented the students. "These tests ended up becoming gatekeepers that prevented public education from serving its real purpose."

On May 14, because of the settlement, the University of California became the first public university system in the country to say it would stop considering SAT and ACT scores in admissions and in its scholarship and financial aid process. Farkas said she believes the case will be a beacon for other states to follow.

The Case

Smith, several other students and six nonprofit organizations sued the UC system after concluding that the Regents failed to appropriately address a letter they published condemning the SATs and ACTs as racist, ableist and elitist and demanding the schools stop using them.

Before the letter was published, UC had called on a faculty task force to review the standardized tests. The task force determined that consideration of SAT and ACT scores in admissions did contribute to the underrepresentation of students of color at UC schools.

But ultimately, in May 2020, the Board of Regents voted to phase out the tests slowly, allowing test scores to be submitted for another two years and permitting the scores to be used for scholarship and financial aid determinations for a further two years after that. During that time, UC schools could decide if they wanted to become "test optional," where students can submit test scores if they want to, or "test blind," where staff cannot know the test scores of applicants when making admissions decisions.

For the group fighting to have the test scores removed, this wasn't good enough.

"From a legal perspective, our view was you cannot acknowledge that the use of the test has discriminatory impact and continue to use it," Farkas said. "The approach seemed to resonate with the Brown v. Board of Education language about moving away from segregation 'with a deliberate speed.' We all learned a lesson from that. If you see injustice, you have to correct it right away."

The University of California told Law360 that it had conducted a two-year research-based evaluation of the value of standardized testing in UC admissions beginning in July 2018, which resulted in the university in April announcing that the testing would be optional for prospective freshmen in the fall of 2021, and later in May the university decided to stop considering the SAT and ACT  scores entirely for fall 2023 admissions.

While the university complied with an injunction that forced it to accelerate this timeline and not use the test scores when considering fall 2021 applicants, UC told Law360 that it "strongly disagreed with the court's decision and filed an appeal."

"At the same time, the University also explored the possibility of a settlement with the plaintiffs that would provide certainty for students and their families, counselors, and high schools," a spokesperson for the university said. "Those discussions were successful and the parties reached a settlement agreement, which the Board of Regents approved on May 13, 2021."

Farkas took on the case when she was a partner at Los Angeles boutique Scheper Kim & Harris LLP. She and two colleagues at the firm, Gregory Ellis and Michael Lavetter, helped draft the demand letter and eventually filed suit on behalf of the students and organizations in 2019.

When Scheper Kim was acquired by Winston & Strawn in February of this year, she said the firm "welcomed the case with open arms."

"It coordinated well with one of Winston's major pro bono initiatives to promote equal educational and vocational opportunity for communities of color," she said.

After the complaint, the UC Regents filed a demurrer, saying that many of the students and organizations named in the suit didn't have the standing to sue because many of the students weren't actually eligible to apply because they weren't yet seniors or weren't going to apply to any University of California schools that year.

The plaintiffs survived the motion, and in June 2020, they hit back, asking the judge to issue a preliminary injunction forcing the university to stop considering SAT and ACT scores in admissions right away while the case was pending.

The plaintiffs argued that the practice, particularly during the COVID-19 pandemic, violated California's Unruh Civil Rights Act and Disabled Persons Act. In his order granting the injunction on Aug. 21, 2020, Superior Court Judge Brad Seligman agreed, saying the ability to obtain disability accommodations for SAT or ACT tests during the pandemic "was almost nil."

While the lawyers gathered anecdotal evidence and experts in an effort to prove their point that SATs and ACTs create an unequal playing field for college applicants, it was ultimately the results of Judge Seligman's injunction that made their case for them, Farkas said.

Attorneys and Public Counsel staff are shown with plaintiff Kawika Smith. Top row from left: William Lacker, Camille de la Vega, Amanda Mangaser Savage, Alisa Hartz and Mark Rosenbaum, all of Public Counsel, and Michael L. Lavetter of Winston & Strawn. Bottom row from left: Jessica Gomez of Public Counsel, plaintiff Kawika Smith, and Katherine B. Farkas and Gregory A. Ellis, both of Winston & Strawn.

In January, the University of California announced that a record number of high school students applied to the UC schools. The system received 203,700 applications to enter the freshman class for the 2021-22 school year, about 32,000 more than the previous year. The university also emphasized that significantly more Black and Latino students had applied.

"It turned out that when this lawsuit and the preliminary injunction forced them to correct [the standardized testing issue] right away, it worked," Farkas said. "Last year, they were absolutely able to admit students. The University of California has given statements about how important it was that students, without that barrier of the SAT and ACT, pursued their dream of attending the University of California. Their fear of change was unfounded."

An Unfair System

From now on, students applying to University of California schools don't have to worry about taking the ACT or the SAT, but for Smith, the relief came too late.

He is now a student at Morehouse College, a historically Black men's liberal arts college in Atlanta. Although he just completed his first year at the school, he says he is actually a rising junior because he took classes at a community college during high school.

Smith said he never ended up applying to any of the University of California schools. There was a chance that his SAT score of 1140 might have landed him a spot at the University of California, Berkeley or University of California, Los Angeles, two of his dream schools. But he knew that even if he did get in, the score wouldn't have been enough to get him the financial aid he would need to actually attend.

"It was actually too late to apply to the UCs by the time I got my score back anyway," Smith said. "I just chose not to, because I didn't have the mental capacity. The quest to make college affordable, being a first generation student, and simply being a Black person going to college is a whole other reality. All of these intersecting fresh realities, just bottling up and creating all of this pressure. And it took a toll. It definitely did take a toll."

Smith said that for him and many of his peers who come from low-income backgrounds, having to take the SAT in itself became a blow to their self-esteem. Knowing that he didn't get the same tools to take the test as some of his more affluent peers made the experience "traumatic," he said.

"When I took the test, it was one of the most traumatic experiences that I've had in my life," he said. "Just about everybody else in that classroom, when we went to break, we all were just depleted. You could look at our faces and just see how beat up we all felt because it made us question our intellect. It made us feel as though we weren't adequate or prepared enough, or even able or have the potential to succeed in college. It kind of felt like we were being pushed out even before we got in."

Knowing that the system was unfair, Smith sought to do something about it. At first, he said he reached out to his California state senator at the time, Holly Mitchell. Smith himself had experience in the political world — at the time, he was serving as the youth representative on the South Central Los Angeles Neighborhood Council.

As Smith was reaching out to Mitchell, he came in contact with Community Coalition, one of the organizations already working to remove the test scores from the university admissions process. Together, they reached out to Public Counsel, a Los Angeles-based national pro bono firm. And the case snowballed from there.

But as Smith pursued the groundbreaking case, he was also a high school student going through the grueling college admissions process. And he said his involvement with the case might have hurt him, instead of helped.

Smith said he had a conversation with a recruiter at a college where he planned to apply who said his involvement with the case could look bad on his record. "It was seen as trouble," Smith said.

This was a blow to his confidence, but Smith said he felt he was doing the right thing, even if he himself wouldn't reap the rewards.

"It furthered my drive to seek liberation, seek freedom, seek equity," he said. "It's fueled that fire and I mean, I thank the UCs for doing that. They literally helped push me into wanting to challenge even more systems to do what is right."

Smith said he is even considering applying to the UCLA School of Law in a few years.

Following Suit

In college, Smith said he is continuing to reach out to other universities, advocating for a "test-blind" admissions process. Shortly after he and the group of organizations published their demand letter, he said a high school student in Florida sent him a message on Instagram.

"She contacted me and told me that her class was studying the letter. And she thanked me for it because she knew that she's now benefiting from it," he said. "She's able to apply to a UC now."

The student also told Smith that she had been advocating for a test-blind system in Florida schools as well. Farkas said that this ripple effect was exactly what she hoped for when the settlement was reached.

"I think the more important precedent will actually be the University of California's successes in implementing a more equitable admission standard," Farkas said. "Even without legal challenges, I believe the University of California's experience will inspire other universities to move to test-free admissions."

Could this happen organically, without a string of lawsuits? Farkas said she is cautiously optimistic. According to the National Center for Fair and Open Testing, over 1,500 colleges and universities have announced that they will have test-optional admissions policies for students entering in 2022.

Although Smith and Farkas both argue that giving students an option to submit test scores still puts those who scored well at an unfair advantage, Farkas sees this as a step in the right direction.

And if students and organizations do want to sue their universities to stop using these scores in the admissions process, Smith v. Regents gives them the model to do it, she said.

"We were lucky to have good laws in California," she said. "But other states can do it. And they'll be able to do it even easier, once the University of California shows that it can be done."

--Editing by Jill Coffey.

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Update: This story has been updated to include comment from the University of California.

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