King’s Way
Full disclosure.


Peter Kirsanow

Students and their parents spend millions of dollars annually on college-application fees and the ancillary costs of applying to colleges and graduate schools without having the slightest idea of the particular student’s chances of admission or even how a given school evaluates applicants. Moreover, students and parents spend billions annually on college tuition completely ignorant of the students’ probabilities upon matriculation of graduating or getting jobs as a result of attending their respective colleges. Consumers arguably get more useful information about the effectiveness of a product from the back of a tube of toothpaste than from a college brochure.

Rep. Steven King (R., Iowa) introduced a bill a couple of months ago designed to change that. Entitled the “Racial and Ethnic Preference Disclosure Act.” The bill would require institutions of higher learning that receive federal dollars to disclose to the Office of Civil Rights in the Department of Education and the Civil Rights Division in the Department of Justice various items of information related to the use of race, color and national origin in the admissions process.

Specifically, the bill would require a school to reveal, among other things, (1) how much weight its admissions process gives to an applicant’s race, ethnicity, etc; (2) the probability that a student given preferred consideration on account of race or ethnicity will have to enroll in a remediation program; (3) graduation rates for preferred students vs. that of non-preferred students; and (4) the probability that preferred students will default on student loans.

The bill was defeated when first introduced. The opponents of the bill argued that it was unnecessary, asserting that institutions of higher learning would happily provide such information without a governmental mandate to do so.

That assertion is, to put it politely, wholly unsupported by the facts. The information required by the King bill is closely guarded by every institution that employs preferences. Shortly after the Supreme Court decided Grutter v. Bollinger and Gratz v. Bollinger my counsel sent a survey to 40 colleges requesting much of the same information required under the King bill. We received no responses whatsoever. The Center for Equal Opportunity and the National Association of Scholars also found that getting such information was about as easy as getting Jack Bauer to spill CTU access codes.

The information disclosed pursuant to the King bill could be enormously useful to students and their parents. Applicants could better assess their probabilities of admission to and graduation from specific schools. They could make more rational financial decisions also.

The information would be valuable to students regardless of race. Non-preferred students would know whether their chances of admission to particular schools approach futility. Preferred but underqualified students could gauge their probabilities of graduating.

As demonstrated by the testimony of UCLA law professor Richard Sander before the U.S. Commission on Civil Rights earlier this month, this could greatly improve the graduation rates of black law students in particular. Professor Sander identified a profound disconnect between the actual operation of law schools’ preferential admissions policies and how black law students perceive them. Whereas in reality, black law-school applicants are up to 100 times more likely to be admitted than their similarly situated white comparatives,

“blacks tend to assume that they are more qualified than their white classmates, because they are so assiduously courted by the schools that admit them. Data from the [Law School Admissions Council Bar Passage Study] shows clearly that blacks entering law school had higher expectations for their first year grades than did whites.” Testimony of Professor Richard Sander before the U.S. Commission Civil Rights, June 2006. (Emphasis added.)


These misconceptions have disastrous effects. They contribute to the tendency of many black students to enroll at schools at which they can’t compete. The result is that half of black law students are in the bottom 10 percent of their respective classes and are two and a half times as likely as whites never to graduate. Further, Professor David Bernstein of George Mason University Law School testified that more than 50 percent of black law-school matriculants never become lawyers. These figures signal not just lots of wasted tuition fees, but disrupted careers as well.

All of the witnesses at the hearing, regardless of ideology, supported greater disclosure by institutions of higher learning. Professor Sander points out that the King bill simply requires colleges do what financial institutions have been required to do for years under the Home Mortgage Disclosure Act and the Community Reinvestment Act. In fact, some witnesses advocated more expansive disclosure than even the King bill requires, adding, e.g., bar passage rates and correlations between bar passage and GPAs.

Mounting evidence shows that the racial-preference shell game hurts both the preferred and the non-preferred. Time for some transparency.

– Peter Kirsanow is a member of the National Labor relations Board. He is also a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the positions of either organization.


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