Can State colleges be sued on admissions related decisions?

Parents Forum
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<p>Cur is not an adcom–anywhere. And each college may look for different things in different years. So would a coach. One acquaintance of mine swears she got admitted to Radcliffe in the 1980s because she was willing to crew. Next year, perhaps there would be no need.</p>

<p>The basic criteria remain the same: GPA, SATs, recs, essays, ECs, in different order according to different colleges. For example, it is well known that Chicago downplays SATs and puts a lot of weight on essays. There is nothing hidden about it.
But what you are trying to get at is not how colleges go about admitting students but why they reject some applicants. And the answer is: there are more qualified applicants than can be admitted. Easy. Any judge and jury will buy it, if ever it gets to that stage. As others have said, there is no prima facie case for suing.</p>

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<p>“Higherlead, there is no equal protection claim unless you’re a member of a protected class”</p>

<p>So maybe you would like to explain CITY OF CLEBURNE, TEXAS v. CLEBURNE LIVING CENTER. There were not any protected classes involved.</p>

<p>“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”</p>

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<p>“But what you are trying to get at is not how colleges go about admitting students but why they reject some applicants.”</p>

<p>No marite cur’s position was that adcoms for a state university cannot and do not have to explain what standards they use in admission. His contention is that it is impossible to explain what goes in to a holistic decision or even what factors might be involved or what the goal is in the process.</p>

<p>We are in the discovery phase here. Way before you get to an actual trial in a civil case both sides sit down and go through a discovery process where they answer questions under oath. Part of the purpose of this phase is actually to keep the thing out of court. The thinking is if both sides sit down and get the facts on the table there might be an amicable solution that will save everybody a lot of time and trouble.</p>

<p>With no idea of how decisions are made I might be under the impression that cur tossed my app because I was short or fat or a fingernail biter. Now those are not protected classes under federal law like race but that does’t mean that adcom cur has a blanket grant from the state legislature to exercise any and all biases he might have in the admissions process.</p>

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<p>So to use Cleburne to further your equal protection cause of action, you would have to argue that there was an irrational (and thus impermissible) bias involved, even though you are not part of a protected class. What bias would that be in a college admission scenario?</p>

<p>(The original case had to do with a city who wouldn’t give a zoning permit to a home for the mentally ■■■■■■■■.)</p>

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<p>My understanding is that you the plaintiff have to build the case. The adcom does not have to do anything until the case goes to trial–if it does.
Cur is not suggesting that adcoms have the right to exercise any and all biases they may wish. But that plaintiffs have the onus of proving there was bias.</p>

<p>But suppose that an adcom interviewer did not like the appearance of an applicant. Unless the interviewer actually wrote: “the applicant has red hair; reject”
a plaintiff would not be able to prove cause; 2. the interviewer might not be self-aware enough to know that s/he did not like redheads; 3. would probably not be able to recall exactly why s/he was not very enthusiastic. </p>

<p>I’m assuming that in most cases, especially of qualified applicants, the write ups seldom mention rejection outright. Most likely, they contain a so-so rating and a lack of enthusiastic advocacy by the adcom readers and interviewers. So I doubt one could find a smoking gun. I was recently on a selection committee. We were asked to rate candidates 1-5 and were told if we were really serious about promoting candidates, we should give scores of 4 and above. A 3 would likely sink the candidate. When we reconvened, it was clear that some candidates had gotten 1s and 2s as well as 3s. And of course, my ratings in some cases differed significantly from the ratings of other committee members.<br>
Suppose the losing applicant got 3s from the adcom. How could that be used as evidence of bias?</p>

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<p>As higherlead said, the adcom will be deposed before trial–where they will have to answer questions under oath put to them by the plaintiff’s attorney. And they will have to answer questions put to them in writing and produce documents from their files that the plaintiff asks for. </p>

<p>So there is really a lot that an adcom would have to do before the trial date.</p>

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<p>Thanks for the clarification, LMNOP! I thought from what Cur and Dadthreetimes said that the whole burden was on the plaintiff.</p>

<p>Still, it seems to me that the defendant does not have to volunteer information, so the plaintiff’s lawyer would have to ask pointed questions. Not “Did you discriminate against applicant A” but “Did you discriminate against Applicant A because of her gender/appearance/manners…” Descriptions of criteria usually are vague enough to enable adcoms to evade challenges based on scores and GPAs alone and allow plenty of subjectivity (I just looked up our flaship university website).
Can the plaintiff asks to see confidential files? I remember reading about tenure cases where universities invoked confidentiality and refused to turn over documents pertaining to deliberations.</p>

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<p>What if a state university decides they want to build a class of attractive & physically fit people and that the overweight and average-looking (or worse) aren’t a good “fit”? They ask for pictures of each applicant and weigh activities such as athletic & pageant participation heavily, but these aren’t expressed criteria for admission. For every overweight person that’s rejected, they just claim that their essays lacked “spark” or whatever. There are other state schools, though not as highly-ranked as this one, that will take the ugly and obese, so they’re not being denied admission in the state university system. If it were apparent that this pattern was occurring, even though the school never admits it, would it be unlikely that they could be successfully sued?</p>

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<p>higherlead, are you an attorney? Just curious, because my reading of City of Cleburne is different than yours. </p>

<p>My reading says that even though there may not be a “suspect class” requiring higher levels of scrutiny, there must indeed be a “class” in order to invoke equal protection arguments. In the Cleburne case, the class was that of mentally ■■■■■■■■ individuals. (Since this is a 1985 case, that was the term used and it is the term I will use in discussing it.) While the Court held that it was neither a “suspect” nor “quasi-suspect” classification requiring heightened scrutiny, it was still a “class” for purposes of deciding whether a zoning ordinance could apply to homes for the mentally ■■■■■■■■ when it did not apply to other types of multiple-residence dwellings.</p>

<p>This case would not apply in the situation posed by the OP - what “class” does her son belong to? Only 2 as the OP has posited the situation - the class of kids who went to her son’s high school, and the class of kids rejected by the state university. Neither is a “class” for equal protection purposes, and the OP has not posited any bias that could have applied to her son. She is simply stating that her son had higher stats and more ECs than the ones who were accepted. </p>

<p>In this case, the admissions counselors would most likely never be deposed, because the case would be dismissed on summary judgment: Even if everything that the plaintiff states is true, is there a reading of the law under which the plaintiff could prevail? Taking the OP’s rendition of the facts as absolutely true, the answer is likely no, and nothing that higherlead has set forth would change that conclusion. (Of course, I am qualifying my response, since I practiced long enough to know that nothing is absolutely certain in the law.)</p>

<p>anothervoice, if plaintiff could prove the scenario you put forward, it is possible that a plaintiff could prevail (and could at least survive summary judgment), as obese or overweight people could be considered a “class” for equal protection purposes.</p>

<p>However, equal protection is one of the most complex and contentious areas of constitutional law. Anything I’ve said here is my opinion only and is not intended to act as legal advice.</p>

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<p>My last thoughts on the subject.</p>

<p>Chedva is exactly right. There is no class here unless there is a discrimination claim which identifies a group which was discriminated against. It is not actionable discrimination to decide on admissions in ways which are not 100% numbers driven, unless doing so is merely a pretext for excluding a class (and, in all but the most extreme of cases, a suspect class). The burden of proof is squarely on plaintiff im such a case.</p>

<p>City of Cleburne also involves a very different factual situation from the one being kicked around here–the application of a written, governmental law. In that case, the United Supreme Court, for one of the rare times in its history, held that a law being considered under the extremely lax rational purpose standard, was so unrelated to any reasonable state purpose that it was unconstitutional under equal protection analysis. The situation in this thread does not involve a written policy or law–it involves a subjective decision. In that sense, it is akin to employment decisions involving employees who do not have a specific employment contract (“at will” employees in legal parlance), where the law is crystal clear that such decisions can be made for any reason whatsoever, or even no articulable reason, as long as it is not a made for a demonstrably improper reason such as improper discrimination, firing a “whistleblower”, etc.</p>

<p>I also agree with Chedva that this case would be tossed out before trial on the facts presented, but even if a court allowed discovery, as ellenmope suggests, that discovery would be limited and subject to a protective order. No trial court I have ever practiced before (and that includes a large number of state and federal trial courts) would allow a fishing expedition into the records of potentially thousands of admissions decisions based on the vague claim that discrimination must exist because some kids got in with lower measurables, nor even allow broad questioning regarding same without at least some preliminary in camera inspection of the records by the court so as to satisfy the court that there was a claim on which to proceed. There are too many privacy issues at stake, and too much risk of pretrial publicity tainting a jury pool in a case like this to allow open ended discovery. My gut tells me that a court would not allow plaintiff access to the records he/she would want in this case other than summary data (racial, sexual, other underrepresented minorities makeup, and admissions/rejections in these categories, average scores and grades in these classifications, etc.).</p>

<p>Finally, I agree with Chedva that nothing in the law is certain. However, as a lawyer who makes his living by litigating complex, civil cases, I would nonetheless actively discourage a potential client from bringing a claim based on the facts as presented by the OP. I think there is a greater likelihood that sanctions could/would be granted against plaintiff (and/or his/her attorney) than that he/she would prevail. One thing you learn early in the practice of law–not everything which seems unfair has a legal remedy. Pursuing one in this type of case, IMO, would be expensive, stressful, time consuming, and likely fruitless.</p>

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<p>Marite, you have never been deposed, I’m guessing! Plaintiff’s lawyers wouldn’t ask pointed questions. They would go through everything with a fine tooth comb, starting with “So you were born in a log cabin?” and ending with “So what did you have for breakfast this morning?” (An exaggeration, but still…)</p>

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<p>Before anyone got anywhere near a deposition, the complaint would have to survive a motion to dismiss. Unless there is a colorable case of something like gender or race discrimination, it wouldn’t.</p>

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<p>LMNOP:</p>

<p>No, I haven’t. I’m on jury duty next week, though.</p>

<p>But what you say confirm my statement that the defendant does not have to volunteer information. So the plaintiff’s lawyer would have to fish, and pose questions such as “Did you wake up in a bad mood on the day you read the application?” I wonder whether replying yes would bolster the discrimination argument. ")<br>
This leads me to think, OT, of ice-skating judging. Commentators routinely observe that competitors who go early are judged more harshly as the judges want to leave themselves room for giving higher scores to the better known ones who have a better chance at medalling. One could say that the early competitors are discriminated against, and through an openly acknowledged practice. But so far, I’ve not read of any of them suing.</p>

<p>Still, I had been persuaded by Chedva and Dadtimesthree that the suit would be tossed out so early that it would not reach the deposition stage. And that the university could invoke privacy and confidentiality laws as has been done in tenure cases.</p>

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<p>“My understanding is that you the plaintiff have to build the case. The adcom does not have to do anything until the case goes to trial–if it does.
Cur is not suggesting that adcoms c But that plaintiffs have the onus of proving there was bias.”</p>

<p>There is a discovery process well before a case goes to trial where both sides have to answer questions under oath, and actually cur was saying that adcoms have the right to exercise any and all biases they may have. </p>

<p>“The only thing the denied applicant is entitled to know is they didn’t fit in this year’s quilt. They have no right to a specific reason. And certainly not a quantifiable one to a process that by its very nature is not quantifiable, and not intended to be. Try again.” curmudgeon</p>

<p>I asked him what the quilt looked like? Why did they want that particular quilt? How did the quilt they got compare with the one they wanted? Why they wanted that particular kind of quilt in the first place?</p>

<p>Maybe the quilt doesn’t include any veterans or children of veterans. May the quilt doesn’t include short people. Maybe the quilt doesn’t include moveon.com members. We would never know would we? That may me fine if the university were a sorority or a country or Reed College but it is not. It is a publicly funded and chartered state university and there ought to be a higher level of scrutiny whenever public monies are involved.</p>

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<p>“This case would not apply in the situation posed by the OP - what “class” does her son belong to?”</p>

<p>I don’t kow. Maybe the class of Paris Hilton fans or the class of high gpa, high class rank, high test score kids that pushed a Gay adcoms button by mentioning he was an Eagle Scout. Remember we can’t even find out what they are looking for let alone what they are definitely looking to reject.</p>

<p>The point is an equal protection suit can sometimes be brought even when the plaintif is not a member of a protected class. In this specific case the unprotected class would be those the admissions department harboured personal biases against.</p>

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<p>"One thing you learn early in the practice of law–not everything which seems unfair has a legal remedy. "</p>

<p>dadtimethree I don’t disgree with that in the least which is why I suggested a campaign contribution to a state legislator and a quit request to have him write a letter or ask a few questions. I suspect you would get an answer quickly and a lot cheaper though it still wouldn’t be guaranteed to be the one you want.</p>

<p>Justice in this country is pretty dependent on how deep your pockets are and who you know.</p>

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<p>So you think injustice has been done in this case?</p>

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<p>“I had been persuaded by Chedva and Dadtimesthree”</p>

<p>marite - of course those two lawyers had you convinced yesterday that it was impossible to bring an equaly protection suit if you were not a URM or member of another protected class. That is what lawyers do - sound very convincing by only giving one side of the arguement. That is why they call it an adversarial process. Heck the lawyers for Phillip Morris could convince anyone that smoking was good for you if there wasn’t a lawyer on the other side. That is why they get the big bucks.</p>

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<p>“So you think injustice has been done in this case?”</p>

<p>I don’t know marite but whenever there is a lack of transparency and accountability in a process it is suspect to me. Let me turn the question on you. Do you think fraternity and sorority and country club admissions are free of petty biases and outright prejudice? If you don’t why would you want to champion a system with all the same flaws in the distribution of state services?</p>

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<p>higherlead: You keep talking about “lack of transparency” here; as stated before, most all universities–and certainly including public ones–state clearly what they look for in prospective students, and it’s usually written somewhere as well. So all that information is there, if people bother to listen and/or read. You might not like what you hear, but they’re usually pretty clear about it.
Again, though, in the OP’s case, I got the impression that he (nor his son) had yet to approach and question anyone in the the admissions office in the unnamed school here.</p>