Today’s liberals not only tolerate but encourage colleges and universities to give preferences based on race (see affirmative action and the College Board’s new “adversity” score). Now they want to prohibit giving preferential admissions treatment based on … well, it’s not completely clear, but family wealth comes pretty close. As a result, many defenders of academic freedom — at least many occasional defenders of academic freedom — are forced to choose among inconsistency, hypocrisy, or embarrassing silence.
Responding to the recent bribery and cheating admissions scandal, last week, Senator Ron Wyden (D, OR) introduced the College Admissions Fairness Act. It would “cover situations where a child’s family makes large donations to the university the child attends. For donations to a university to be fully tax deductible, the institution must establish a policy that bars consideration of family members’ donations or ability to donate as a factor in admissions.”
Specifically, the legislation would in effect require colleges and universities to have a written policy that “prohibits as a factor in admissions decisions the consideration of direct or indirect donations from an applicant or family member of an applicant, and the financial ability of an applicant or family member of an applicant to make a donation.” [Emphasis added]
Note that this legislation would prohibit colleges from considering a family’s donations or even its ability to donate as one factor in admissions decisions. This is in marked contrast to the notorious insistence of affirmative action defenders (including Sen. Wyden) that it is perfectly legitimate for colleges to “consider” a family’s inability to donate to the college – especially if the benefit or burden includes race as “one factor among many” in their “holistic” reviews.
Other proposals go even further than Sen. Wyden’s. The Chronicle of Higher Education reports, “A group of California legislators has proposed reforms in the college-admissions process. Some of the bills would apply only to the state’s public university systems, while others would touch any college that accepts Cal Grants, a state student-aid program.” Thus, under the Wyden and California proposals, a “holistic” review would become considerably less holistic than it is now.
Assemblyman Phil Ting (D, SF), one of the primary sponsors, stated that “The college admissions process must be fair, with no student gaining an advantage over another because of their family’s wealth or social connections…. This is about fairness and equity,” he continued. “We raise our kids to believe that if they work hard, all opportunities will be open to them. But that’s just not true when it comes to college.”
The Associated Press reported that these bills would ban “preferential admissions for students who are related to the institutions donors or alumni,” thus making legacy preferences illegal, and it quoted Assemblyman Ting: “There are so many legal channels that people can (preferentially) get into schools, which is donate a building, buy a professorship, become a major donor. Most of these families have access that the 99 percent of folks don’t have. For every slot that’s going to bribe their way into school [sic], that means another honest kid who deserved to get in didn’t get in.”
Ting, of course, said nothing about whether “fairness and equity” also required a process where no students gained an advantage over others because of their race or ethnicity, nor did he explain the “bribery” involved in giving preferences to the children of alumni.
Legacy preferences are, or certainly have become, controversial. Reasonable people can — and many do — oppose them. If anyone asked me (no one has), my own preference is to regard them as legitimately within the discretion of colleges themselves. Much more interesting than my opinion, however, is that influential organizations that have vociferously opposed measures designed to prohibit racial preferences, attacking them as unjustified intrusions on the hallowed ground of academic freedom, are so far standing mute before these recent measures attempting to tell colleges how to manage their admissions process.
Inside Higher Ed reports, for example, that “Officials of the American Council on Education and the National Association for College Admission Counseling said that they were not taking a stand on the Wyden bill.” Compare their silence here to their indignant roar in their amicus brief (filed by the American Council on Education and 36 other higher education associations) in Students For Fair Admissions v. Harvard asserting that prohibiting colleges from awarding benefits and burdens based on race would be an unwarranted invasion of academic freedom.
- Amici believe that each institution should be able to exercise its academic judgment to determine within broad limits the diversity that will advance its own particular mission.
- Plaintiffs [ask] the Court to require fundamental changes to university admissions processes, and to mandate a more mechanical process in which educators’ ability to choose which academic and other criteria they wish to use, weigh, and apply play next to no role. That shift would undermine the recognized freedom of a university to assemble a class that, in the university’s judgment, will best advance that university’s particular mission.
- [Colleges and universities] are entitled to decide for themselves the characteristics of a class most conducive to the pursuit of their unique missions [Grutter] held that once “a university gives a ‘reasoned, principled explanation’ for its decision” to pursue diversity-related goals, “deference must be given” to that “academic judgment.”
- Fisher II—decided just two years ago—could not have put it more plainly: “Considerable deference is owed to a university in defining . . . intangible characteristics, like student body diversity that are central to its identity and educational mission.”
- Because universities protect the bedrock “freedoms of speech and thought,” courts have long refrained from second-guessing their educational judgments. That deference naturally extends to admissions criteria and decisions, which are paradigmatic academic judgments. See Bakke, 438 U.S. at 312 (explaining that one of the “‘four essential freedoms’ of a university” is “to determine for itself on academic grounds . . . who may be admitted to study”).
Senator Wyden’s bill, and especially the far-reaching California bills that would, among other things, prohibit legacy preferences, trample on the protected ground of academic freedom at least as much as requiring higher education institutions to refrain from racial discrimination.
A Modest Proposal
I offer the following suggestions, not as “modest proposals” as Jonathan Swift famously did, i.e., as satirical hyperbole, but as entirely reasonable and desirable measures that could and should be taken. Their only shortcoming, as far as I can see, is the dearth of any Republicans with the backbone to offer them:
- An amendment to Senator Wyden’s bill, or in the alternative a companion bill, with the same restrictions on tax-exempt donations to institutions that do not treat all applicants without regard to race or ethnicity.
- The same goal could be accomplished administratively even without legislation, based on the precedent established by the Bob Jones case.
I have discussed Bob Jones a number of times, such as here and here. Briefly, in response to the “segregation academies” that sprouted across the South after the Brown desegregation decision, the IRS launched a campaign to revoke the tax exemptions of discriminatory private schools. One obstacle was that many of these schools were so hostile to blacks that they didn’t need clear, and hence provable, discriminatory policies. At Bob Jones University, however (whose origins lay not in response to Brown but to the anti-fundamentalism stirred up by the Scopes trial in the 1920s), the clear policy against interracial dating seemed to present a tempting target. Revoking Bob Jones’s tax exemption, however, proved not to be so easy.
Back in the 1970s, the IRS ruled that BJU’s discriminatory dating policy was “against public policy,” and therefore the school could not be charitable and thus could not qualify for an exemption. The difficulty with this ruling lay in the fact that Section 501(c)(3) of the tax code provides exemptions for “religious, charitable, or educational” institutions, and BJU is and was both religious and educational. No problem said the IRS, which deconstructed the tax code so that “or” was read as “and,” and BJU’s exemption was revoked because it was deemed not charitable, even though it was clearly both religious and educational.
If President Trump really wanted to drain a significant reservoir of the swamp, he could thank Senator Wyden and the creative text construing of the IRS and instruct the IRS to prohibit all “charitable” deductions and exemptions related to institutions that refuse to treat all applicants for admission or hiring without regard to race, creed, or color.