[Cass Sunstein] Law should tread lightly on college admissions

US courts have long been reluctant to intervene in the admissions decisions of colleges and universities. In general, the law allows them to do whatever they want within this overarching framework:

- Racial discrimination is forbidden.

- An institution may not maintain a racial quota system, even if it is sincerely seeking to ensure the presence of adequate numbers of traditionally disadvantaged groups, including African-Americans.

- An institution may consider race as a “plus,” at least if it is seeking to create a diverse educational environment.

A recent discrimination suit brought by Asian-Americans, accusing Harvard University of favoring other racial and ethnic groups at their expense, raises fresh questions about this framework, involving both law and policy.

Because those questions involve disputed facts, and because Harvard is my home institution, I am going to avoid the Harvard case itself and instead offer three broader points about university admissions.

First: It is possible to support affirmative action programs while also rejecting discrimination against particular racial groups. In allowing universities to give a plus to African-American applicants, the Supreme Court did not mean to say that they could give a minus to Hispanic or Jewish applicants.

Sure, a plus for African-American candidates has the same effect as a minus for all other applicants. But under current law, that’s perfectly permissible so long as no particular racial group is being singled out for disadvantage.

This is an important point, and it’s easy to overlook. If Asian-Americans, Jews or Hispanics are complaining that an institution discriminates against them, you might think that they are saying that academic qualifications are all that matter.

Not so. When members of some group object to discrimination, they need not be taken as objecting to affirmative action programs as such. Courts can stop that form of discrimination without questioning affirmative action.

Second: The law does not forbid academic institutions from making admissions decisions on the basis of a wide assortment of factors, including athletic achievement, leadership potential, musical ability, social background, wealth and family connections.

In a provocative essay, the Harvard psychologist and linguist Steven Pinker argues in favor of admitting students on the basis of just one factor: Standardized test scores. In his view, “a simple, transparent, and objective formula” would be better than “intuitive judgments based on interviews and other subjective impressions.”

Pinker claims that if elite institutions focused on test scores, they would become meritocracies.

I disagree. Merit is not captured in SAT scores. Academic institutions should consider a number of factors, not just one.

As a matter of law, universities are free to pursue their own ideas of balance. If they wish, they can give a preference to all-state tennis players, rich kids with rich parents, poor kids with poor parents or kids from Utah or New Mexico.

In recent weeks, a lot of people have become agitated about the preferences that some universities give to the children of their own alumni. Such preferences might well seem unfair -- and in practice, they might turn out to favor white people.

Even so, they’re not against the law. And if universities believe that it’s in their economic interest to give such preferences, we should hesitate before objecting on grounds of fairness. Among other things, universities need to raise money, which can be used for all kinds of purposes -- including providing scholarships.

Third: Reasonable questions can be raised about the use of interviews in the admissions process, not least because of the risk that discrimination might play a role in overall evaluations.

In general, interviews tend to be overrated as a tool to predict performance. There is every reason to suspect that some college admissions offices are giving far too much weight to interviews. In addition, devaluation of people from certain racial or ethnic groups might infect interviewer evaluations, even when interviewers sincerely believe that they are free from prejudice. It is tough for the legal system to ferret out discrimination of this kind -- but the risk is there.

The US is blessed with the world’s greatest institutions of higher learning, and they are stunningly diverse -- in their cultures, their values and their demographic characteristics. Judges have been reluctant to second-guess their admissions decisions.

Hurray for that, not least because different institutions should be able to make different judgments -- some favoring SAT scores, some favoring sports, some favoring public-service activities and some favoring alumni connections. May a thousand flowers bloom.

What does need immediate attention is the possibility that interviews will mask various forms of discrimination -- and produce arbitrary decisions. As a first step, here’s a recommendation: Treat interviews largely as a recruitment opportunity -- while giving them little or no weight in admissions decisions.


Cass Sunstein
Cass Sunstein is a Bloomberg Opinion columnist. -- Ed.


(Bloomberg)