As court prepares affirmative-action decision, softer standards for men go unnoticed

The Supreme Court is poised to release its opinion on an affirmative-action case that could forever change the way public colleges and universities consider race in admissions. But even if, as some predict, the justices issue a broad ruling slapping down the use of race in admissions, an open secret in higher education—that many colleges lower their admissions standards for male applicants—remains unchallenged and largely unremarked upon.

For years, the percentage of men enrolled in college has been declining, with women making up nearly 57 percent of all undergrads at four-year colleges last year, according to the National Center for Education Statistics. While schools are prohibited under the federal Title IX law from discriminating based on gender, some admissions officials have admitted in recent years that male applicants get a leg up from colleges hoping to avoid gender imbalances on campus.

Jennifer Delahunty Britz, the dean of admissions at the private liberal arts school Kenyon College, was among the first to admit this when she wrote an op-ed titled "To All the Girls I've Rejected" in The New York Times in 2006.

"The reality is that because young men are rarer, they're more valued applicants," she wrote, adding that two-thirds of colleges report that more women than men apply for admission. "What messages are we sending young women that they must, nearly 25 years after the defeat of the Equal Rights Amendment, be even more accomplished than men to gain admission to the nation's top colleges?"

Delahunty Britz's acknowledgment opened the floodgates, and reporters began looking closely at schools that admitted a much higher percentage of male than female applicants.

Of course, these gaps don't necessarily mean that women are being discriminated against. It's possible that the male applicant pool is better qualified on average, though that's hard to ascertain when colleges generally resist releasing their admissions data.

The University of Richmond, a private liberal arts school, acknowledged in 2009 that it attempts to keep its gender balance at about 50-50, which meant women's admit rate was about 13 percentage points lower than men's over the previous 10 years. Admissions officer Marilyn Hesser told CBS that men and women had about the same standardized test scores, but that male applicants' GPA was lower on average. (The college's admission rate suddenly became more gender neutral the following year, in 2010-2011, when men's acceptance rate was only 3 percentage points higher than women's.)

The same year, the College of William and Mary, a public institution in Virginia, accepted 39.4 percent of its male applicants and 27.2 percent of female applicants. The school's admissions dean, Henry Broaddus, said men have slightly higher standardized test scores but lower GPAs than women, on average.

Broaddus defended the policy, insisting that William and Mary's female students want the college to to be gender-balanced and that colleges in general risk becoming less attractive to both men and women when the gender balance tips too far toward women.

"Even women who enroll ... expect to see men on campus," Broaddus said at the time. "It's not the College of Mary and Mary; it's the College of William and Mary."

In 2005, some trustees of the University of North Carolina at Chapel Hill reportedly wondered whether they should instate "affirmative action for men," to counteract the declining percentage of men on campus. (The school is more than 58 percent female.)

The stories prompted admissions consultants who charge $200 an hour to caution on their website that female applicants must try harder. "The best advice we can give female applicants is to follow the same advice we're giving everyone—only more strictly: start your college applications early, apply to an appropriate number and range of schools, and prepare each one of your applications carefully."

Interestingly, none of these revelations prompted a wave of lawsuits, or even much outrage, from feminist organizations or other groups. It's even more surprising because the issue is probably more clear-cut, legally speaking, than race-based affirmative action.

In Grutter v. Bollinger, the 2003 case that set current law around race-based affirmative action, the Supreme Court ruled that in order to achieve a "critical mass" of underrepresented minority groups, colleges can use race as a limited factor in admissions decisions. The court said at the time it believed affirmative action would no longer be necessary after 25 years, an argument the Supreme Court is now reconsidering with Fisher v. University of Texas, a case brought by a white student who was rejected by the university.

Many legal experts expect the court, which is more conservative now than it was in 2003, to rule against UT, which could mean public colleges could have to stop considering race in admissions as a way to increase on-campus diversity.

But with men, there's no "critical mass" argument to make. Men are outnumbered by women on campus, but not so vastly that they can be considered an underrepresented minority. The Constitution does allow for more discrimination based on gender than race. (The courts treat any classification based on race with strict scrutiny; gender-based classifications get a more relaxed degree of review.)

But Title IX pretty clearly forbids any admissions decision that discriminates based on gender, meaning Congress has already made gender-balancing admissions decisions effectively illegal. In the one known case on this issue, plaintiffs challenged the University of Georgia in 2000 for both race and gender admissions preferences, and a federal circuit court found that gender preferences were illegal and struck them down. The school declined to appeal.

Why haven't there been more lawsuits?

Gail Heriot, a conservative law professor at the University of San Diego and a member of the federal U.S. Commission on Civil Rights, said it's partly the murky politics of the issue. Liberal, feminist groups tend to support affirmative action for racial minorities and could be wary of attacking gender preferences for men lest it leads to attacking racial preferences.

Meanwhile, conservative groups that reject race-based affirmative action would rather draw attention to the "boy crisis" they believe harms men than seize the chance to deal a blow to both race and gender admissions preferences.

Heriot began a commission investigation into whether colleges were discriminating against female applicants in 2009, but the eight-member panel voted to end it at the suggestion of a Democratic appointee in 2011. Several schools had refused to hand over their admissions data to Heriot, which made the investigation difficult.

Heriot dismissed the argument that women would rather attend gender-balanced schools, even if it means they had to get better grades in high school than their male peers to get in.

"It strikes me as a very troubling argument to say, 'Gosh, women want to be discriminated against,'" she said. "You're going to have to prove that to me."

She still believes that a case against gender preferences at public schools could win.

"I'm a conservative so I tend to be on the other side of issues from Justice [Ruth Bader] Ginsburg. But I'd be happy to argue this one to her. I think I have a shot," Heriot said.

Meanwhile, admissions officers who do not want to give a leg up to men are left to find other means to attract men to campus. Brandeis University (57 percent female) tried offering free baseball caps to its first 500 male applicants, according to Heriot.

Eric Felix, an admissions officer for the University of San Diego, a small liberal arts school that is 45 percent male, says he tries to encourage qualified men to apply by tailoring applications materials to them, highlighting the school's engineering programs and sports teams instead of the beautiful campus shots sent to women. He also visits all-boys schools and ROTC programs to recruit.

Felix, who said he does not use gender preferences, said male applicants can often make up for their on average lower GPAs through "noncognitive" factors such as leadership roles in extracurriculars. "We're only going to admit students that we feel are successful," Felix said. "Once you get to the nonacademic pieces then men start to shine, because they put an emphasis on extracurriculars."

Felix said that although men might not be an oppressed minority, they are often discouraged from emphasizing academics because they are expected to get a part-time job or join the military. Felix also argued that gender is part of diversity on campus.

"Students need to be able to interact with a diverse population, and part of that diversity is gender," Felix said. "If there's a discussion about rape and sexual assault in court cases [in class] and there's not men to add a voice, that's a conversation that's really missing."