The evidence adduced in SFFA v. Harvard, presently before the Supreme Court, shows that significant numbers of Asian-American applicants whose objective qualifications merit admission to Harvard are nonetheless rejected in favor of black and Hispanic applicants with markedly inferior qualifications. This phenomenon prevails not just at Harvard but at most schools. Asian and white students seeking admission to “elite” schools typically send out a multitude of applications to improve their odds of admission to at least one.
Although there’s a fairly good probability the Court will hold Harvard’s racially discriminatory admissions policy unlawful, it would be naïve to believe that will be the end of racially discriminatory admissions practices. The imperative to discriminate is profound, and colleges already are preparing for the admissions landscape post-SFFA. For example, to cloak their discrimination, schools increasingly are abandoning use of objective admissions qualifications such as the SAT and are making their admissions processes even more opaque.
Republican opponents of racial discrimination should also prepare in advance of the Court’s decision by requiring college-admissions criteria to be transparent and understandable. Students and 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.
Nearly two decades ago, Republicans introduced a bill designed to change that. Titled the “Racial and Ethnic Preference Disclosure Act,” the bill would’ve required institutions of higher learning that receive federal funds to disclose to the Office of Civil Rights of the Department of Education and the Civil Rights Division of the Department of Justice various items of information related to the use of race, color, and national origin in the admissions process.
Among the items to be disclosed were (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 the basis of race or ethnicity will need to enroll in a remediation program; (3) graduation rates for preferred students vs. those of non-preferred students; and (4) the probability that a preferred student will default on student loans.
The bill was, of course, defeated. The opponents of the bill argued that it was unnecessary, asserting that institutions of higher learning would happily provide such information without a government mandate to do so.
That assertion was, to put it politely, wholly unsupported by the facts. The information that would’ve been required by the Disclosure Act is closely guarded by every institution that employs preferences. Indeed, 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 that would’ve been required under the Disclosure Act. We received no responses whatsoever. Indeed, the general counsels of some of the institutions became apoplectic, contacting the Civil Rights Commission to excoriate my impertinence and ask for an exemption. The Center for Equal Opportunity and the National Association of Scholars also found that getting such information was about as easy as getting the New York Times to print a story about Hunter Biden’s laptop.
The information required to be disclosed would be valuable to students regardless of race. Non-preferred applicants would know whether their chances of admission at particular schools approach futility; preferred but underqualified applicants 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 in June 2006, this could greatly improve the graduation rates of black law students in particular. 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, Sander testified,
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] show clearly that blacks entering law school had higher expectations for their first-year grades than did whites. [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, for years, half of black law students have been in the bottom 10 percent of their respective classes and have been more than twice as likely as whites never to graduate. Additionally, evidence then adduced by the Civil Rights Commission showed that more than 50 percent of black law-school matriculants never become lawyers. Even if there’s been some improvement in these figures since the commission’s hearings, they nonetheless signal lots of wasted tuition fees and disrupted career paths.
Disclosure of racial preferences would simply require colleges to do what financial institutions have been required to do for years under provisions such as the Home Mortgage Disclosure Act. Law-school applicants would also benefit from knowing bar passage rates and correlations between bar passage rates and GPAs.
Obviously, there’s little chance that a Disclosure Act would pass during a Biden administration. But the ground should be prepped right now. Overwhelming evidence shows that the racial-preference shell game hurts the preferred and the non-preferred, not to mention society at large. Time for some transparency.