A story published on Inside Higher Ed addresses a notice Missouri Attorney General Andrew Bailey sent to colleges and universities within Missouri after the recent Supreme Court ruling on race-based affirmative action at Harvard and University of North Carolina.
If anyone thought the ruling only pertained to ADMISSION decisions (or SHOULD only pertain to ADMISSION decisions), well, Andrew Bailey isn’t happy with stopping there. He wasted zero time after the ruling and sent a letter THE SAME DAY as the Supreme Court’s ruling on June 29, 2023 formally notifying institutions in the state of Missouri that — quoting that day’s ruling – “what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows.”
Here’s a link to the official Missouri Attorney General web site with Bailey’s letter:
Here is the key portion of Bailey’s new directive:
Institutions in Missouri must implement the Supreme Court’s decisions immediately. In today’s rulings, the Court held that there are no legitimate reliance interests created by past rulings that seemed to bless affirmative action. There is thus no justification for Missouri institutions to “grandfather” in existing programs that disfavor applicants based on race. All Missouri programs that make admitting decisions by disfavoring individuals based on race—not just college admissions, but also scholarships, employment, law reviews, etc.—must immediately adopt race-blind standards.
As the Inside Higher Ed story reported, the University of Missouri system with campuses around the state immediately stated it will comply with this new directive for new enrollment and aid decisions, though it clarified it will continue to honor prior financial aid commitments previously made to students which were legal under interpretations of the law at the time. For the UM system, scholarships with a race-based component totaled $16.2 million – 5.3 percent – of total aid statewide. Missouri State University (previously Southwest Missouri State in Springfield, MO) stated it has no race-based scholarships. Washington University stated it would be reviewing the new directive but had no further comment.
In a very real sense, admission decisions at elite (pronounced “astronomically expensive”) institutions cannot be separated from financial aid decisions. A school costing $49,000 per year can admit as many applicants on academic merits as it wants but if tuition is not “discounted” through aid or stipends, a large percentage of those “accepted” weren’t really accepted.
This lack of transparency in education pricing is a key market failure described in the prior post Universities, Market Failures and Courts. One of the more shocking facts that came out of writing that post was learning that tution – on paper – at Washington University was more expensive than at MIT. $59,420 per year at Washington University versus $57,590 for MIT. But what is the real cost of tuition at the two schools? For someone with no inside knowledge and limited financial resources, both might look completely beyond reach and reason. However, what if some students get scholarships and stipends worth sixty to seventy percent of those obscene “list prices?” Well, if only the absolute brightest get that deal, the school would still appear beyond reach and many less fortunate students might not even consider applying. It is impossible to rule that result out as a subliminal goal of inflated tuition prices – raise the price high enough and maybe the people not wanted won’t even apply. You can’t discriminate against someone who didn’t apply to get in, right?
Is there another rationale for grossly inflated list prices? Possibly.
Yer humble obedient scrivener, WTH actually attended Washington University in the latter 1980s and saw tuition rise from $9200 to $10,500 to $11,600 to $12,600 then $13,600 before escaping with two degrees. I noticed at the time that foreign students got virtually zero financial aid and didn’t appear to need it. None worked a job, most lived off campus in apartments and had a car and didn’t have to worry about working during the summer. In contrast, yer obedient scrivener had two pretty hefty scholarships, a yearly National Direct Student Loan and a work study job and worked full time all four summers between the five years of coursework for a BSEE, minor in Economics and an MBA. This wasn’t affirmative action at work. To a person, all of the foreign students I hung around with were sharper than I in core math and science coursework, though they did tend to struggle in advanced elective classes where design creativity was required. It occurred to me at the time that the ever-rising “list price” of tuition was partly a means to ensure some cash inflow from this portion of each new class. If fifteen to twenty percent of the class could afford to pay full freight no matter what the list price was, raising the list price every year was an easy way to balance the books with most of that burden focused on those most able to pay.
But back to current numbers and reality. What if something like sixty to seventy percent of the entire class gets those grants and stipends? Is the cost of tuition really $59,420 per year? Or is $20,797 a more accurate cost? This is the same pricing game played in a thousand car dealerships every day. If that new monster truck has a sticker price of $65,000 but the maker has a special $20,000 promotion underway that never goes away, is the truck really worth $65,000? Or is it at best a $45,000 truck that might not even be worth that?
One immediate change every public and private institution could institute immediately at almost zero cost to improve the fairness of college access would be to publish the average tuition actually PAID by students via cash and loans. Every potential applicant would be better able to separate the hype (“list price”) from actual likely outlays to better gauge how the school fits into their economic picture. This might go a long way to eliminating the “self-discrimination” applicants impose on themselves by not even testing the water due to the currently opaque pricing.
The directive from Missouri Attorney General Andrew Bailey is concerning for several reasons. One obvious concern… After such a momentous ruling from the US Supreme Court, one would imagine anyone in the legal profession would take a day or two to compose a subsequent legal communique to persons in their jurisdiction about the implications of such a ruling. Bailey not only issued his letter the same day, he quoted from the ruling. It’s almost like he had a draft of the result in advance to compose his letter firing his next legal salvo.
The more crucial concern is that Bailey and other conservative Attorneys General across the states are immediately injecting their interpretations of the recent ruling and their NEXT political priorities into EVERY aspect of educational institution administration. Schools administer significant donations from alumni and other outside parties who often not only wish to simply hand over funds to a school to spend at will but attach conditions and caveats. Some might want it spent on buildings, lab equipment, student recreation centers, a specific research project, etc. Others might want it to go towards scholarships for students engaging in their favored field. Again, your obedient scrivener WTH was granted funds for the “Allison Prize,” an award granted to an upperclass student majoring in both engineering and economics because the benefactor thought that having a few people educated in that combined discipline was something worthy of encouraging. I had no idea the “prize” existed at the time I applied and was accepted and didn’t even know of its existence until it was awarded to me – twice – in my “senior” and “senior + 1” years. Was that reward discriminatory? Against engineering students who didn’t like economics? Yes, but a) there were probably similar focused programs aimed at a variety of niche combinations of study all areas as an effort to make donors feel more connected with a beneficiary, which the school likely knows increases contributions, and b) a choice of major is not a protected class from anti-discrimination law.
Or could choice of major become a criteria for claiming discrimination? Where is militant “anti-discrimination” enforcement headed?
The plaintiff who filed the cases against Harvard and UNC, Edward Blum - head of Students for Fair Admissions - stated the following after the ruling:
Virtually all race-exclusive scholarships were already illegal as I understand the law. But whatever confusion there may have been before the SFFA ruling, it is correct that race-exclusive fellowships, scholarships, and general educational programs must end.
Does Blum think any existing school in the nation has a curriculum which is ONLY open to minorities? What does Race-based general educational programs must end mean? Are programs related to black studies race based? Are programs that research racism since Reconstruction and events like the Tulsa Riot of 1921 race-based? Programs that research self-reinforcing problems with poverty, drugs, crime and police violence in dense inner cities versus meth-based destruction in poor white rural areas like the Adirondacks? Programs that research racial biases in housing, hiring and health care access? If a donor who wishes these topics to be researched establishes a scholarship for students assisting with research in these areas or merely majoring in related curricula, is that scholarship discriminating under this new paradigm?
The plaintiff in this case and AGs like Andrew Bailey are making it clear their fight against race-based discrimination won’t stop with a win involving admissions and aid decisions. It will extend to educational CONTENT with suits being filed to stop publicly funded research into topics whose premises are not in sync with their values. Once again, the US Supreme Court has provided a win for its benefactors by drawing a line in the jurisprudence beach that only attracts more efforts to move it out to sea.