The U.S. Department of Education has designed a way to sidestep the growing number of federal court decisions holding that affirmative action -- as intensively pursued by the department -- is unconstitutional.

News of this stratagem was first reported in the authoritative weekly the Chronicle of Higher Education: "Colleges would be in legal jeopardy if they use SAT (Scholastic Assessment Test) or ACT (American College Testing) scores as the primary basis for admissions and financial aid decisions, according to draft guidelines that the U.S. Education Department's Office for Civil Rights is circulating among college officials."

The coercive bureaucratic device to keep in mind is "disparate impact." The department's "Resource Guide: Non-Discrimination in High Stakes Testing" warns:

"The use of any educational test which has a significant disparate impact on members of any particular race, national origin or sex is discriminatory, and a violation of Title VI and/or Title IX . . . unless it is educationally necessary and there is no practicable alternative form of assessment which meets the educational institution's needs and would have less of a disparate impact."

A college will have to meet the high burden of proof that it is not discriminating when members of any of these particular groups score poorly on the SAT or the ACT.

The U.S. Department of Education -- an ardent advocate of "diversity" -- will be the arbiter of such gossamer terms as "educationally necessary" and a permissible "alternative."

A college failing the department's diversity test will lose federal funds and also will be subject to accusations of racism, sexism and other biases.

Yet, as the Chronicle of Higher Education notes: "Many college officials say standardized tests are an essential part of the admissions process because the wide variation in the rigor of high schools makes it difficult if not impossible to compare applicants on grades alone." An A average in one high school can be the equivalent of a C in a less competitive school.

It is true that overly rigid reliance on standardized tests is unfair to individual applicants of a race or gender who have shown the ability to overcome poverty or other obstacles -- even if their scores are not of the highest rank. But this individualized approach -- while used in some college admissions procedures to balance SAT or ACT scores -- is very far from universal.

And deploying the blunderbuss of "disparate impact" to judge whether a college violates anti-discrimination laws can result in the discrediting of any use of standardized admission exams.

Of course, these tests do have a disparate impact on youngsters who have been abandoned in dead-end elementary and secondary schools. I have been in many such schools in low-income white, black and Hispanic neighborhoods, where many students have been so badly prepared for higher education that their college admission scores indeed would show a disparate impact.

But if these new Department of Education insistent guidelines grow teeth and prevail, admission standards will become largely open-ended. The unintended consequences will be that markedly unprepared students will be admitted and will eventually flunk out. The unjust and inaccurate lesson to these twice-abandoned students will be that they inherently do not have the capacity to make the big leagues.

Arthur Coleman, an official at the Department of Education, assures me that these purportedly beneficent "guidelines" are only intended to clarify "settled legal and anti-discrimination principles."

However, over the years, Norma Cantu, who heads the department's Office of Civil Rights, has made it clear that she intends to expand "diversity" by just about any means necessary. And in a recent speech, Secretary of Education Richard Riley heartily endorsed these punitive guidelines for "Non-Discrimination in High Stakes Testing."

Colleges, he urged, should go beyond such measures of merit as test scores and grades. I agree they should do more -- on an individual basis -- than just look at scores. But his department would essentially so degrade scores as to ultimately exclude from higher education the very students it so wants to advance.