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Q & A with Gail Heriot

University of San Diego law professor Gail Heriot, as a member of the U.S. Commission on Civil Rights, persuaded the commission to undertake an investigation of college admissions bias favoring men. And she fought to keep the investigation alive when investigators argued to abandon the probe, saying they were dealing with apples and oranges data.

Heriot agreed to an online interview with me:

1. The admissions bias at private colleges seems obvious to me from the data. Plus, many admissions directors openly discuss it. Is there any question as to whether it actually happens?

Several schools, including a few public colleges and universities, have indeed admitted that they discriminate in favor of male applicants. What we don't know is how strong the preferential treatment is or how widespread. Elite schools frequently maintain that they do not give preferences to men. But then again many elite schools stated in the past that they did not give preferences to members of racial minorities, and that turned out to be false. In fact, those schools were giving very strong preferential treatment on the basis of race. We don't know for sure what is happening at elite schools (or at science-oriented, elite schools, which need to be looked at separately) with regard to gender. And now that the Commission's new majority has cancelled the investigation, we won't be finding out soon.

2. Isn't this discrimination against young women?

You bet. A school cannot discriminate in favor of one gender without discriminating against the other. This is especially troubling for the public schools that are discriminating, since Title IX clearly prohibits gender discrimination in admissions by public schools.

Title IX does not always prohibit gender discrimination in admissions by private schools. Nevertheless, when a private school that holds itself out as a co-ed institution is quietly discriminating against women, that should make everyone at least uncomfortable.

3. Why don't we see groups such as NOW, the ACLU or AAUW protesting this discrimination?

It does seem strange--especially for women's advocacy groups like NOW and the AAUW--to be so uninterested in discrimination against women in admissions. You would think that at least they would want to find out the facts. But when USNews contacted Lisa Maatz, director of public policy at the AAUW, for comment on the Commisssion's investigation, she made it clear that she considered the investigation misguided and argued instead for expanding socio-economic diversity on campus. It quoted her: "'We need to help impoverished boys and girls to improve educational outcomes and have equal opportunity.'"

Some leaders of women's groups apparently think of themselves as progressive activists first and advocates for women second. They strongly support racial preferences in colleges and universities, and fear that if more people knew of the discrimination against women in admissions, it would lessen the public's already-thin support for racial preferences.

Another piece of the puzzle may be athletics. Weirdly, women's groups' lobbying efforts in connection with Title IX and athletics, though well-meaning, may be contributing somewhat to the problem. Unsurprisingly, nobody wants to admit that their efforts may have hurt women more than they helped.

For decades, women's groups lobbied for an interpretation of Title IX that as a practical matter requires parity in spending on athletics. And they've gotten what they asked for. A school cannot allocate more funds to men's sports just because fewer women there express interest in sports. Instead, the school ends up beating the bushes to find women who are willing to play. (Indeed, a result of this emphasis, many people have come to think of Title IX as a law specifically about athletics, when in fact it prohibits gender discrimination in education generally and makes no special mention of athletics.)

Years ago, a school that had what it regarded as "too many women" might have chosen to beef up its athletic program to attract more men. And it can still do that if it is willing to increase its spending on women's athletics proportionately. But particularly for a school that is already disproportionately female, this can be an expensive proposition. For example, a school that is 2 to 1 female would have to spend $3 for every $1 it spends on men's athletics. For budget-conscious schools, it's cheaper just to discriminate against women at the point of admissions. So many of them do.

Requiring schools to spend proportionately the same amount on athletics for women and men would make perfect sense if there were reason to believe that as many women at that school want to participate as men. But schools end up begging women to participate while cancelling popular men's programs--all in the name of equality. Meanwhile, extracurricular activities that women disproportionately appreciate--like chorus and drama club--have strained budgets.

The Bush Administration made an effort to establish a more realistic burden of proof on schools to show that they have met all the demand for women's athletic programs. That way schools could free up more resources for men's athletics and for non-athletic extracurricular activities that might be more in demand by women (or by men and women alike). The Obama Administration, however, reversed that decision. It is not at all clear that this has made women better off. Indeed, the opposite seems more likely.

4. Do colleges have valid reasons for this policy?

I think the right strategy is to establish the facts first. How much of a preference are we talking about? What kinds of schools are discriminating? Then we can worry about what, if anything, should be done about it.

The exception is public schools. When public schools discriminate, it's illegal, and should be dealt with accordingly.

The rest depends on the facts. If it turns out the the level of preference is very small and that the problem is mainly at selective, but non-elite liberal arts colleges, one possible response would be to encourage these schools to compete for more male students by offering more a male-friendly curriculum (electrical engineering anyone?) and more male-friendly extracurricular activities. I believe very minor modifications of the guidelines applicable to athletics under Title IX can help make that possible without disadvantaging those women who want to engage in athletics relative to their male counterparts. I further believe that such a modification would be to women's advantage both in admissions and in the funding of non-athletic extracurricular activities that many women (as well as many men) prefer.

On the other hand, if it turns out that the level of preference is very high and that preferences are very widespread, stronger alternatives should probably be considered. It's important to note that the problem of the relatively low overall rate of college attendance by men, if it is a problem, is not remedied by preferences. Preferences simply change which school a particular male student will attend (and they create very troubling gaps between the academic credentials and men and women on any particular campus). Once a significant number of schools engage in strong preferential treatment, it becomes necessary for all schools to do so if they want to attract men, even if they would much prefer not to. You get what economists like to call a collective action problem. All schools (other than schools that specialize in the education of a particular gender) could find that they are better off if they their power to discriminate is limited.

But at this point, the evidence we have is limited: Some schools, including some public schools are discriminating against women, and women's advocacy groups as well as the Commission on Civil Rights are remarkably unconcerned about it.

I should add that the one argument I don't have much sympathy for is that preferences are necessary because boys are being shortchanged at the K through 12 level. This is not to say that I have no sympathy for the argument that boys are not flourishing in K through 12. To the contrary, I am quite open to that argument. But if it's true, it has to be attacked head on, not papered over with preferential treatment at the college level. That will only make things worse.

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