What would Sandra Day O’Connor think about affirmative action for men?

Sandra Day O’Connor died last week, just months after the Supreme Court effectively overturned one of her landmark decisions, Grutter v. Bollinger, which upheld race-conscious affirmative action in college admissions. President Ronald Reagan nominated O’Connor in 1981 after promising to appoint “the most qualified woman I can find” as the first female judge. Perhaps the explicitly gendered consideration that led to her historic appointment influenced O’Connor’s endorsement, in Grutter, in 2003, of using affirmative action to achieve student diversity. But her famous expectation at the time “that in 25 years the use of racial preferences will no longer be necessary” inspires some sharp contemporary questions about gender in admissions.

When O’Connor graduated from Stanford College and Law School in the 1950s, it was perfectly legal for law firms to refuse to hire her as a lawyer because she was a woman. It took until 1964 for Congress to outlaw employment discrimination based on race or sex in the Civil Rights Act. But in the field of education, the law does not touch on sex. The oldest colleges and universities, including Harvard, Princeton and Yale, have excluded women for centuries. Some universities that were founded in the late nineteenth century, including Stanford, admitted both men and women, but soon found that women performed too well, prompting concern that women would take over or feminize the institutions. This led schools to place quotas on female enrollment to ensure that women would remain a minority in the class. Ivy League schools began admitting women in the late 1960s and early 1970s on the grounds that the presence of female students on campus was necessary to attract top male students. These institutions also strictly limited female enrollment or instituted higher admissions standards for women, for example, requiring women to have higher SAT scores than men to be admitted.

In 1972, Congress passed Title IX of the Education Amendments, prohibiting discrimination “on the basis of sex” in federally funded educational institutions. But Title IX also states that gender equality does not require numerical equality of men and women on campus, allowing schools to continue to enroll majority male student bodies. Moreover, Title IX makes clear that its prohibition of sex discrimination does not apply at all to admissions of students to private institutions. This important exception was the result of successful lobbying by powerful schools to Congress, arguing that admitting too many women would lower both academic standards and alumni giving. To date, private school undergraduate admissions practices are not regulated by federal sex discrimination law, although they are regulated by federal racial discrimination law. Thus, private colleges may use quotas to limit the enrollment of women or to impose higher admissions standards on women than on men.

Despite efforts to lower their admissions success rate, women have been the majority of students since 1980. Today, they make up nearly sixty percent of students enrolled in college nationwide, at private and public institutions. Freshmen at nearly all Ivy League schools are overwhelmingly female. Female applicants consistently had higher high school grades than males, completed more credits and more challenging courses, and completed more extracurricular activities. Male applicants reportedly have more trouble submitting their application materials (prompting Baylor to launch a “Men and Mothers Communication Campaign” to help male applicants on their way). Women also perform better than men in college, and are more likely to graduate with honors. Women outnumber men in college applications by more than a third, and there are more qualified women than men in the applicant pool.

This means that selective colleges that aim to create gender-balanced classes must admit women at lower rates than men. Brown University, for example, which had an applicant pool that was just under sixty-three percent female in the 2021-22 application cycle, accepted about seven percent of male applicants and about four percent of female applicants to admit class. which was roughly fifty-fifty. In contrast to private universities’ worries in the 1970s that women would lower their academic standards, many private schools now must admit men with lower grades and test scores than women if they are to have student bodies that are gender balanced. School officials explained that seeking gender balance is particularly important because neither male nor female prospective applicants prefer a campus with a large majority of women, thereby harming the school’s ability to recruit desirable students.

The exemption built into Title IX provided a free pass for private colleges and universities to discriminate on the basis of gender in admissions. Even intentionally different treatment, including quotas or imposing higher standards on women, is currently legal. Admission to public colleges and universities, however, is bound by the prohibition against discrimination in Title IX. In 2000, a federal court ruled that the University of Georgia violated Title IX by giving extra points to male applicants, and rejected the university’s argument that the increase in men was necessary to achieve diversity in the classroom. But it’s likely that many public schools have since engaged in other methods of elevating men, such as using gender as one of many factors — analogous to using race as one of many factors that was legally permissible until Students for Decision for a fair reception in June.

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