COLLEGE GIRLS GONE WILD. There's been some interesting news lately about how several percentage points more women are enrolling and graduating from American colleges than men. This has prompted John Rosenberg
to go on a pretty serious rant about how this means admissions programs are creating a disparate impact program against men.
Rosenberg argues that just like universities can lose federal funding if they don't achieve proportional gender representation in sports, they should lose federal funding if the male-female ratios in colleges isn't balanced. As Rosenberg would have it, it is time for "preferentialists" to reap what they have sown: there's a disparate impact against men, and therefore men
are being discriminated against.
Unfortunately for Rosenberg, he's mostly tilting at windmills. True, there are still some people who believe that "neutral" criteria -- for instance, giving civil service job preferences to veterans -- can sometimes have the effect of discriminating against women. In fact, I'm one of them. But despite what Rosenberg seems to believe, the sixties are over
, and the "preferentialists" he's so afraid of lost out long ago. Take the civil service job preferences to veterans, where way fewer women are veterans because of combat restrictions and the draft. In Feeney
, 442 U.S. 256 (1979), the Court held civil service preferences to veterans to be just fine. The current Court could not be more agreed with this conception of neutrality when it comes to Equal Protection issues (or indeed, certain religious issues, as we've seen in the vouchers case).
The majority of Rosenberg's argument is based on "disparate impact law":
The whole corpus of disparate impact law is based on the view that policies or practices that are neutral on their face and non-discriminatory in their intent can nevertheless be illegally discriminatory if they have a disparate impact on minorities. This is the sort of complaint, for example, that is frequently lodged against the SAT and other tests. Disparate impact law was legitimized by the Supremes back in 1971 when they held that Duke Power Company's policy of requiring all employees to have at least a high school diploma or pass an intelligence test violated the Civil Rights Act of 1964 (Griggs v. Duke Power Company, 401 U.S. 424).But the "whole corpus" is a corpse.
The fact that some cases may be lodged
against the SAT doesn't mean those cases will be won. Those suits against the SAT or against use of the SAT by state colleges are sure losers; use of scores on a test graded without knowledge of the test-taker's race or gender (in fact, graded by a machine) is never going to be challenged by the Rehnquist Court or any court which adheres to its precedents. Just take a look at Washington v. Davis
, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing Development Corp.
, 429 U.S. 252, (1977); Personnel Administrator of Mass. v. Feeney
, 442 U.S. 256 (1979); Hernandez v. New York
, 500 U.S. 352 (1991). Particularly relevant for the SAT case is Washington v. Davis
. In that case a test for government employment on which minorities always did far worse was upheld because facially neutral. Griggs
is a dead letter -- some lower courts have already recognized that it has been overruled sub silentio
, and they are 100% right. Facially neutral policies will almost always be upheld in the race area (with very rare exception when there are truly egregious disparate impacts, such as in Gomillion
, 364 U.S. 339 (1960), where after a 28-sided redistricting gerrymander, 400 blacks found themselves outside the city limits but oddly, no whites had been moved outside). In the gender area, where only intermediate scrutiny applies, facially neutral policies with disparate impacts will be upheld even more often, if that is possible.
Thus, all that's left of this part of Rosenberg's argument is the rather odd contention that if the discredited and unsuccessful legal theories of the "preferentialists" he ridicules were in play, it might be possible to help keep men from losing ground in the nation's public universities. A better argument of his is that because of Title IX, which prohibits gender discrimination in federally funded schools, this disparate impact needs to be remedied too. Gender differences in resources going to sports
are grounds for withholding federal funds, Rosenberg notes, so why shouldn't gender differences in admissions or graduation rates?
On first inspection, this looks like a pretty good point. But it's not quite the "gotcha"
Rosenberg thinks it is. Differences in funding and sports programs don't simply materialize through the application of neutral criteria; they are the result of specific choices by school sports administrators. School administrators choose
to have a football program, or a field hockey program, or to have JV women's basketball, or lightweight crew. They choose
to put money into sports recruiting. Any gender imbalance in sports is at least substantially attributable to conscious decisions by school officials. There's no gender-blind "Sports SAT" that students can be given for a school to pick out the top 200 athletes, and place them into an athletic program, and then after the test, the officials notice, "Hey, whaddaya know, we've got more male athletes than females." The very nature of sports -- an outstanding miler might make a terrible linebacker -- makes such an approach impossible, even within one gender.
On the other hand, we do have a gender-blind test for academics. We as a society seem to believe that high school grades and SAT scores, plus some extra factors like extracurriculars, are pretty good grounds to select students, regardless of race or gender. (I'm not sure I agree, but we'll just assume this is so for the sake of argument) Specific quotas for race -- and presumably for gender -- are in fact unconstitutional violations of Equal Protection, Regents of University of California v. Bakke
, 438 U.S. 265 (1978), so I have to say I'm not sure how Rosenberg would have schools correct the slight gender imbalance currently "favoring" women. A "Harvard-style" system where male applicants in ties got a bump or where their maleness was considered as one of many factors in a larger equation would probably be permissible, but quotas would not. Unlike sports, where funding choices are directly made by some administrator, admissions in general are in large part based on scores and grades, and are quite constrained by Bakke
, the case that struck down affirmative action quotas as discrimination against whites. In the end, Rosenberg ends up bumping his head into a case I'm confident he thinks was quite correct.
So there are my quibbles with Rosenberg's response to the new statistics on the gender breakdown in the nation's universities. I am glad to see, however, that he is taking disparate impact seriously. As a theory, it's pretty much fallen off the face of the legal world, and isn't really particularly relevant anymore, but if enough people keep complaining about "disparate impact law", who knows? -- maybe it might come back.
And one last note for those of you who like vouchers -- watch out. Rosenberg sagely points out that the government does have power (though I'll add not unlimited power) to condition grants of federal money on compliance with certain government goals if it wants to. I.e., Title IX. If religious schools become dependent on vouchers, they may open the door to increased federal intervention though conditional funding.