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Posted at 10:18 AM ET, 12/14/2009

Civil Rights Lawyer: Is ‘gender balance’ in college admissions illegal discrimination?

By Valerie Strauss

I recently wrote about gender in college admissions, and today my colleague Daniel DeVise tells us in a Post story that civil rights investigators will soon begin reviewing admissions data from some Washington region colleges to see if women are targets of discrimination.

The issue is this: Because there are so many more female applicants, some schools admit a smaller percentage of females applicants than male applicants in order to keep a relatively balanced student population. Some see this as discrimination.

One of the schools that openly discusses the differences in gender admissions is The College of William and Mary, which admitted 43 percent of male applicants and 29 percent of female applicants in fall 2008.

Admissions Dean Henry Broaddus explained the school’s reasoning in a post here. He argued--effectively, I thought--that schools have a legitimate interest in enrolling a class that is not disproportionately male or female.

Here is a post by controversial public interest lawyer John F. Banzhaf III, professor of public interest law at George Washington University’s Law School, who does not agree. Let me know what you think in the comments section or at theanswersheet@washpost.com.

By John F. Banzhaf III
As the public interest law professor who used legal action to prevent discrimination against women by dry cleaners and hair cutters, and whose legal complaint forced The Citadel to admit its first female undergraduate, I was dismayed to read that some universities may now be discriminating against female applicants, allegedly because of a need to maintain “gender balance.”

The argument that a need for “balance” justifies illegal discrimination goes back a century to the days when colleges limited the admission of Jews to maintain a “balance,” and is sometimes still heard today when Asian students may have a harder time being admitted (especially to science and engineering programs) so that classes will not be “unbalanced.”

Even though “schools give preference to varsity athletes, to children of alumni, [and] to exceptional musicians,” these policies are not at all analogous because -- with rare exceptions -- the law does not restrict them.

In contrast, virtually all gender discrimination, at least by public universities, is both illegal and unconstitutional. Because, as the U.S. Supreme Court held, public universities may discriminate on the basis of gender only where necessary to serve “important governmental objectives,” the Virginia Military Institute [VMI] could not discriminate against female applicants despite strong arguments based on the wishes of students and faculty, the need for male bonding, etc.

Similarly, the mere desire of some school today for a near 50%-50% male-female ratio would hardly justify discriminating against better candidates simply because of their genitalia.

Using gender as part of admission decisions is specifically prohibited by federal law at publicly supported colleges.

While federal law doesn’t directly prohibit gender discrimination in admission to undergraduate programs at private universities, such institutions might still be legally vulnerable in a tort action for deceit, rather than for discrimination itself, if they fail to disclose -- contrary to the reasonable expectations of applicants -- that they do discriminate against female applicants.

Here are three steps those concerned about gender discrimination can and should take:

1. Females seeking to apply to any coed university should ask the university to state in writing whether they have gender-blind admission policies. If not, the schools should let female applicants know about the additional hurtle, and that, if admitted, the women are likely to have classes (and socialize) with males having lower average academic qualifications. If an institution wrongfully denies have admission policies favoring males, it
would open itself even more clearly to legal action.

2. Females who believe they were passed over by any university in favor of less-qualified male applicants should complain to the U.S. Commission on Civil Rights, and even consider suing. Even if unsuccessful, plaintiffs would be entitled to documents and other pre-trial discovery about how the admissions process works -- something likely to embarrass many institutions of higher learning.

3. University faculty and staff involved in the admissions process who have reason to believe that their institution is discriminating against women should provide the information -- anonymously if necessary -- to the U.S. Commission on Civil Rights, with a copy to me and to Valerie Strauss at "The Answer Sheet" blog.

Follow Valerie’s blog all day, every day at http://washingtonpost.com/answersheet/

For all the Post’s Education coverage, please see http://washingtonpost.com/education



By Valerie Strauss  | December 14, 2009; 10:18 AM ET
Categories:  College Admissions  | Tags:  college admissions, gender discrimination  
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Comments

How do you square this with universities having openly lower academic standards for minority students?

Posted by: someguy100 | December 14, 2009 9:03 PM | Report abuse

It is interesting to note that the argument for AFFIRMATIVE ACTION was and remains the disproportionately low representation of "minorities and women" in certain favored groups such as those admitted to institutions of higher education.

This disproportionately low representation was held to require statutory redress because it was the result of past, now illegal, discrimination: admissions of "minorities and women" had to be increased.

Now we are told that increasing the admission of males to higher education on the basis that females are disproportionately represented is held by such as U.S Commission on Civil Rights commissioner Gail Heriot to be DISCRIMINATION and SHOULD BE INVESTIGATED.

The real point of this story is the existence of a cadre of bureaucrats, among whom Ms Heriot should recognize herself, whose unconstrained self-interest requires them to find discrimination wherever possible, even if belying their own argument.


Posted by: ashley31415 | December 14, 2009 10:34 PM | Report abuse

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