The debate over affirmative action in college admissions has taken a new twist: The Justice Department is seeking lawyers for investigations and possible lawsuits against universities to prohibit what they deem is “intentional race-based discrimination.”

Last year, the Supreme Court ruled in a University of Texas case that school officials can consider race in making admissions decisions, upholding the value of having a racially diverse student body. But affirmative action critics say there is still legal room to challenge such policies, and there are cases now pending at the University of North Carolina and Harvard University, both accusing the school of discrimination against Asian Americans.

This piece looks at one of those lawsuits and about a basic problem with the way merit in admissions is determined in the first place. It was written by  Julia Sass Rubin, an associate professor at the Edward J. Bloustein School of Planning and Public Policy at Rutgers University and a visiting associate professor at the Woodrow Wilson School of Public and International Affairs at Princeton University. She has advised a number of organizations, including the Small Business Administration; the John D. and Catherine T. MacArthur Foundation; the Appalachian Regional Commission; the Overseas Private Investment Corporation; and the New Jersey Redevelopment Authority. She earned her doctorate from Harvard University and an MBA with distinction from Harvard Business School.

By Julia Sass Rubin

The Trump administration’s Justice Department indicated last week that it intends to go after affirmative action in higher education by investigating and possibly taking legal action against universities over “intentional race-based discrimination” in admissions. My alma mater Harvard University appears to be in the administration’s crosshairs as the result of a lawsuit accusing the university of discriminating against Asians in admissions.

Harvard actually accepts a disproportionately large percentage of Asian students, who make up approximately 6 percent of the U.S. population but will comprise more than 22 percent of Harvard’s incoming class. The claims of anti-Asian bias in Harvard admissions are based, in large part, on the number of Asian applicants with high standardized test scores relative to the number admitted.

Ironically, Harvard has contributed to its current legal challenges by requiring standardized tests as part of its admission process. This helps legitimize standardized tests as an objective means of evaluating applicants. In reality, the tests favor students from families with greater wealth and educational attachment.

Data released by the College Board in 2013 illustrates this bias. A 400-point difference separated the cumulative SAT scores of students whose annual family income was above $200,000 from those whose family income was below $20,000. Not surprising given the correlation between family educational attainment and income, students from families with greater educational attainment also scored substantially higher on the SAT — a 300-point difference for those who had a parent with a graduate degree as opposed to those with a parent who only completed high school.

Standardized test scores are also impacted by test preparation, and students who have taken the test previously score higher than those who are taking it for the first time. This further skews test results in favor of wealthier students, whose families can afford expensive test preparation services and multiple rounds of test taking.

The strong correlation between income, education and race/ethnicity translates the economic and educational bias of standardized tests into a racial one, giving an advantage to Asians and whites. Although substantial poverty exists among both groups, on average, Asians and whites in the United States are much wealthier and have significantly higher educational attainment than blacks and Hispanics.

A January 2016 report released by the Harvard Graduate School of Education and signed by more than 80 admissions officers, including those from all eight Ivy League schools, urged universities to move toward test-optional admission policies. To date, more than 950 universities and colleges have adopted such policies or eliminated standardized tests entirely from their admission process. Unfortunately, that group does not include a single Ivy League university.

This is a missed opportunity. By eliminating the use of standardized tests, Harvard and the other Ivy League schools could help end the myth of test-based meritocracy and highlight that our country’s persistent and growing inequality of opportunity requires universities to consider applicants’ race, ethnicity, gender and family income if they hope to achieve meritocratic outcomes.