Transparency Is Key to Gauging the Legality of Admissions Practices
Roger Clegg And Neal Katyal, Chronicle of Higher Education, Apr. 9
When the U.S. Supreme Court ruled last June to uphold the affirmative-action policy of the University of Michigan Law School, college officials breathed a collective sigh of relief. For the court not only reaffirmed the legality of racial preferences in admissions, but it did so by stressing a deference to colleges and their academic autonomy to devise their own admissions policies. That right of autonomy was a limited one — the court on the same day declared Michigan’s undergraduate policy unconstitutional — but some administrators are now contemplating stretching it far beyond its appropriate reach. They are reading the court’s affirmative-action decisions as license to develop admissions practices in secrecy, and then, if challenged, to hide behind the mantle of academic freedom.
For some years, the authors of this article have been at loggerheads, frequently sparring in public debate. Roger Clegg has criticized and brought several legal challenges to college affirmative-action policies, while Neal Katyal has defended some of them. Yet we agree on this fundamental point: Keeping admissions data completely secret when colleges consider race is wrong.
In the past, before courts have deferred to an outside body — be it an agency, expert witness, or some other entity — assurances about the reliability and accountability of that entity have been required. Similarly, before colleges are granted deference in making their admissions decisions on the basis of race, there is a need for assurances about their internal processes. Without those assurances, deference to the entity can warp too easily into bad decision making.
Thus, the Supreme Court’s recognition of academic autonomy has an unstated corollary principle for colleges that consider race as a factor in admissions: Knowledge of a college’s admissions practices, and data about those practices, cannot be available only to institutional administrators. Yet at least some colleges keep their admissions data, and even the details about how they carry out their policies, so secret that they are not given even to faculty members. It is difficult to understand why academic autonomy should shield such practices from judicial review.
If a college wants to assert academic autonomy as part of its defense of an affirmative-action policy, then it must develop assurances about reliability and accountability. In particular, if the institution gives racial and ethnic preferences in admissions, then it should compile a breakdown, by race, of who applied and who was accepted. The college should also gather statistics that reveal how they treat other groups, like legacy applicants and students from different geographic regions. All of the data should be stripped of names, of course, and otherwise handled in ways to eliminate the privacy concerns of a specific applicant. But if the institution wants to claim with a straight face that its policies and decisions are made by accountable, reliable actors who possess particular expertise, its administrators can’t be the only people who review the information.
How can we ensure that colleges are more transparent about their admissions practices? One of us, Neal Katyal, would move slowly and would not use the power of law to require colleges to distribute admissions data broadly. He recommends instead that higher-education institutions apply to admissions practices a core concept of academic freedom: peer review.
In a typical academic-freedom case, a professor may claim that he has been denied tenure because of his political views. The device of peer review permits experts from outside the college to come in and examine the validity of the claim. Similarly, if we want to take academic autonomy seriously and credit the views of college experts with respect to admissions, then a national standing committee of academic experts should be created to review the admissions practices of institutions that seek to grant preferences on the basis of race or ethnicity. The committee would be subdivided by geographic region or by other methods as necessary, and would be staffed by professors who understand the trade-offs involved in the admissions process. Those experts should be charged with the task of making sure that a college’s affirmative-action policy serves the educational interests asserted by the institution and complies with the Constitution and laws of the United States (especially Title VI of the Civil Rights Act of 1964, which effectively requires many private colleges to follow what the court has mandated for public institutions).
One function of law-school-accreditation committees, such as the American Bar Association’s, is to ensure that the bar is able to govern its own affairs, largely free of government involvement. A similar promise exists for admissions-review committees. But if colleges are going to act and appear as responsible players in an increasingly multicultural environment, they must guarantee that their judgments in admissions are not being made with too rough a stroke, whether deliberate or unintentional.
Although it is possible that committee members might apply their own political preferences about affirmative action in lieu of their educational judgments, that risk occurs naturally for any decision maker, including a federal judge. And that concern can be reduced in the peer-review context. For example, committee members could be required to sign statements attesting to their commitment to apply the precepts of both Supreme Court decisions in the Michigan cases.
The standing admissions committee not only could ferret out cases of illegal discrimination, but also could ensure that an institution’s admissions practices further the educational process that diversity serves. A peer-review solution, therefore, ultimately safeguards academic freedom by celebrating the college as the locus of decision making and reaffirming its superior institutional competence in resolving disputes. Before adopting more radical solutions to the admissions-data problem, Professor Katyal believes a peer-review solution should be implemented first.
Mr. Clegg would go further. His organization, the Center for Equal Opportunity, has drafted both federal and state legislation that would require colleges to state whether they weigh race in their admissions. If they do not, then no further information is required. But if they do, then they must also report publicly:
- The races for which membership is considered a plus factor or a minus factor, and how membership in a race is determined for individual students.
- How racial membership is considered, the weight given to such consideration, and whether targets, goals, or quotas are used.
- Why racial membership is considered (including, with respect to the diversity rationale, the determination of the critical-mass level and how racial membership relates to the institution’s educational mission).
- What consideration has been given to neutral alternatives as means for achieving the same goals.
- How often the need to consider racial membership is reassessed, and how that reassessment is conducted.
Colleges should also disclose the factors other than race that they used to determine whether to admit a student. Where those factors include grades, high-school rank, standardized-test scores, legacy status, state residency, or other quantifiable criteria, then all raw admissions data for applicants regarding those factors, along with the applicants’ race and the admissions decisions regarding those applicants, should accompany the report.
Taken together, Mr. Clegg’s recommendations would allow civil-rights-enforcement agencies or other interested people to determine, through statistical analysis, the weight being given to race relative to other factors. Such a legal approach, Mr. Clegg believes, would keep institutions from slipping into the mechanical use of race that the Supreme Court has warned against, and would make them much more likely to use race carefully and as only the means to the end of intellectual diversity. The outside scrutiny would also encourage colleges to reassess continually their race-sensitive admissions policies, as the court has also demanded. The federal government and private attorneys general representing individual plaintiffs that challenge discrimination would be better able to ensure that the law is being followed. Finally, it would be valuable to have the data needed to assess the effects of preferences, good and bad, on graduation rates, academic performance, and other educational goals.
What possible objection could there be to such transparency requirements? Mr. Clegg agrees that privacy is certainly an issue, and it would be important to exclude the names of specific students, but that is easily done. And it is true that, if it is revealed that racial preferences are being used, the “beneficiaries” will be stigmatized. But Mr. Clegg believes that that is already the case; people often stigmatize African-American or Latino students simply because, in the absence of hard data otherwise, they assume that those students have been admitted through racial preferences. If colleges aren’t using race, or are using it very little, in their admissions decisions, it would be better to document it than to let people assume the worst.
As for the claim that a college’s use of race is neither the public’s nor the government’s business — well, yes it is. Public institutions, and private institutions that accept federal money, have since the civil-rights era been required to heed our national consensus that racial discrimination is wrong. The real objection to transparency, Mr. Clegg believes, can be only that it might result in more attacks on racial preferences. That is probably true, since they are so unpopular among so many people. But how legitimate can a policy be if it has to be kept secret?
Although we differ about to whom the admissions processes should be made more transparent, we agree that what some colleges are doing is seriously problematic. Colleges cannot do whatever they want and plead autonomy when the lawyers arrive at the front door — as, indeed, the Supreme Court implicitly held by striking down one of the two policies at the University of Michigan. Academic freedom is a sacred concept, but, like most good things in life, it must be cherished and celebrated properly. Otherwise the case for its demise will become too strong. And as powerful a positive force as some believe affirmative action to be, the loss of academic autonomy for our nation’s colleges would be a terrible price to pay for it.
Roger Clegg is general counsel of the Center for Equal Opportunity, in Sterling, Va. Neal Katyal is a professor of law at the Georgetown University Law Center.