Gail Heriot, a commissioner and law professor at the University of San Diego, proposed that the U.S. Commission on Civil Rights begin examining whether selective colleges are discriminating against women in undergraduate admissions. The commission voted at its August meeting to pursue the project. Here is the text of Ms. Heriot's proposal.
Draft—Statutory Report Proposal
August 6, 2009
Topic: Sex Discrimination in Liberal Arts College Admissions
Background: Title IX generally prohibits sex discrimination in higher education. It does not, however, prohibit sex discrimination in admissions by private, non-professional, undergraduate schools. Put differently, traditionally male and traditionally female liberal arts schools are legally free to discriminate in admissions. So are private, coed, liberal arts schools. But state liberal arts schools are not and neither are private graduate or private professional schools.
Recently, accusations have been made that some selective private, coed, liberal arts schools are discriminating in admissions in to order to maintain what they regard as an appropriate gender balance. Specifically, the accusation is that women applicants are being discriminated against in order to prevent the schools from becoming “too female.” Indeed, some commentators have called this an “open secret” and suggested the same may be occurring at state schools too (where it would be illegal).
Women dominate higher education generally. Approximately 58% of bachelor's degrees and 60% of master's degrees go to women. The dominance of women is particularly felt in community colleges and institutions that are non-selective or only somewhat selective. The reasons for this are complex and controversial, but no doubt part of the reason is that males who have recently graduated from high school are more likely than their female counterparts to prefer the opportunities available to them in the military or in the building trades. Incarceration rates are also higher for men than for women in this (or any) age group.
Privately at least, some college administrators argue that they must discriminate against women or the gender balance at their institutions will become so off-kilter that many of the women they want won't be willing to attend. Colleges will then be unable to attract the female students they want most -or so they fear. Interestingly, this may be a bit of a collective action problem. Once a few lower-ranked liberal arts schools starting giving preferential treatment to men, others feel they must follow suit, since the failure to do so will cause any hold-out school to have a gender ratio that is seriously off-kilter.
I have not heard a lot of talk about sex-neutral ways to increase male enrollment in these private, selective, coed liberal arts schools, but I suspect that some efforts are being made. For example, if such a school were to add certain fields of study, that might attract relatively more men without the need for admissions preferences. (I am uncertain if certain courses of study, such as engineering departments, would transform such a college into a professional school for the purposes of Title IX, but that would be a question worth investigating.) If such a department or school were part of a larger university, adding an entire school of information technology might do the trick, since campus-wide sex ratios are probably more important in the minds of applicants for admission than intra-school sex ratios. Other academic or extracurricular activities might be useful in attracting male applicants too. This seems to me to be preferable to flat-out discrimination against women, even if one accepts the notion that some action is “necessary” to maintain gender balance in order to ensure a school's continued attractiveness even to women.
A small but significant part of the problem may lie in the enforcement policies of the Department of Education in connection with Title IX. If a school seeks to make itself more attractive to men by adding more athletic opportunities for men, it must also make more athletic opportunities available to women essentially unless it can affirmatively show that added opportunities for women would not be taken advantage of. This makes it difficult. Since flat-out discrimination is a clear legal alternative, it is possible that what we are witnessing is Title IX “backfire.” A law that was designed to prevent sex discrimination in higher education may be causing sex discrimination on account of the Department of Education's emphasis on athletics in enforcement.
I should emphasize, however, that at this point, no one has nailed down the degree to which discrimination is actually practiced-or indeed whether it is practiced at all.
Questions: These are the questions that I believe the Commission could answer or at least contribute to an answer:
Question 1. Are private, coed, liberal arts schools with somewhat selective admissions discriminating against women? If so, how heavy a thumb is put on the scale against them?
Question 2. Are public liberal arts schools with somewhat selective admissions discriminating against women? If so, how heavy a thumb is put on the scale against them?
Additional Questions that May be Worth Exploring
Question 3.Are concerns about women shying away from schools that have “too many women” well-founded? Is it true, for example, that women who choose to attend schools like the University of Richmond (which has been singled out in newspapers as a school that discriminates against women applicants) would not attend if its gender ratio were to tilt more towards women than it does now?
Question 4. How can male students be recruited such that flat-out sex discrimination is unnecessary for schools that perceive a need to maintain a certain gender balance? Do male students put more stock in athletic extra-curricular activities than women students such that a school that increased its athletic offerings could attract more male students without resorting to sex discrimination in admissions?
Question 5: What kinds of sex-neutral efforts are being used by these schools (and by other schools) to ensure that sex ratios are to their liking? What kinds of sex-neutral efforts are not being used that should be?
(These are useful questions even if it turns out that schools are not discriminating. No one denies that, rightly or wrongly, many schools are concerned about having “too many women.”)
Question 6: To what extent, if any, do Department of Education enforcement policies contribute to the problem? Are schools shying away from adding additional men's athletic programs because they believe they would also have to add women's athletic programs and feel they cannot afford to do so?
Answering Questions 1 and 2: This is a question we should be able to definitively answer. The Commission should subpoena data from liberal arts colleges in order to determine whether the sex discrimination that some call an “open secret” is in fact occurring. I would propose that schools be selected from among highly and also moderately selective private colleges, HBCUs both public and private, moderately selective public, and moderately selective religious colleges. All must come from a state that does not go beyond Title IX in its prohibitions on sex discrimination.
Each school would be required/subpoenaed to supply the Commission with the following information for EACH student who applied for admission in 2009 (and possibly other years)
ii. SAT scores
iii. High School Grade Point Average
iv. Admitted, Waitlisted or Rejected
v. Offered Financial Aid or Not (Grants)
vi. Amount of Financial Aid Offered (Grants)
vii. Whether the Applicant Actually Enrolled
viii. Athletic Scholarship or not
ix. If enrolled, participates in intercollegiate sports or not.
If those who say that sex discrimination is an “open secret” are right, we will find discrimination. It is not clear, however, how much discrimination it will be.
Answering Questions 3 & 4. It's not easy to definitively answer such a question, but we can try to poll students. In devising the questions, I would like to consult with an expert in polling.
Ideally, I would like to persuade the folks who administer the SAT to ask a question on the so-called SAT Questionnaire aimed at this problem. Alternatively, we could administer the questionnaire in other ways.
Answering Questions 5 & 6: If it turns out that these institutions are discriminating (or even if it turns out they are not discriminating), we would then hold a briefing on the subject of gender-neutral methods of ensuring sex ratios that are to the schools' liking. The witnesses would be the Presidents, provosts or deans of these schools. The admissions directors would not be good substitutes, because they only deal with admissions. As they say, if a hammer is your only tool, the solution to every problem is a nail. We could also have witnesses from women's rights organizations-like the Independent Women's Forum and the National Women's Law Center-to discuss the issue.