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Hypocrisy, Social Capital, and the Shadow Process

The admissions cycle is in full swing. Applicants are waiting with bated breath as committees pore over files and dole out hope and despair in the form of decision letters. Going on behind the scenes is an elaborate ritual of lobbying, cajoling, and even some borderline bribery. Admissions officers are inundated with phone calls, emails, and letters from people seeking to influence the process in favor of specific applicants. This shadow process is another example of the structural advantages that the privileged enjoy in selective admissions. It also highlights the misguided, if not hypocritical, nature of opposition to race-conscious affirmative action.

I spent almost 10 years in law school admissions, and it did not take long to notice a couple pervasive themes about the shadow process. For starters, the process was almost always undertaken on behalf of applicants who came from relatively affluent backgrounds. Calls from lawyers advocating on behalf of their friends’ kids were common. There was often a comical absurdity to their pitches. Most of these people knew little about the applicants whose admission they were supporting; a couple did not even know the applicant’s name. Most commonly, the basis of their urging was not the applicant’s accomplishments, but the accomplishments of the applicant’s family or social group. As a judge once told me in touting an applicant, “He comes from good genes.”

Absurdity aside, I noticed a second theme that added a distressing element. Just like poor applicants were rarely the focus of the shadow process, neither were the strongest applicants. In other words, it was the weakest and most privileged applicants whose candidacy elicited the most concerted outreach efforts. These were applicants whose credentials belied their backgrounds, applicants whom I considered to be the least remarkable of the entire pool. This theme might seem counterintuitive, but it makes perfect sense. The strongest applicants do not need any shadow urging; their credentials speak for them. And poor unremarkable applicants lack the social capital to wage a shadow campaign. So while narrow conceptions of merit ensured that privileged applicants possessed obvious advantages, the mediocre among them stood to benefit from the shadow process as well.

I was able to mostly resist pressure applied through the shadow process. But many admissions officers are not afforded the institutional support I enjoyed. In 2009, the University of Illinois was embroiled in a shadow process controversy that led to several high-level resignations. But this type of fallout is unusual. Most people ignore the preferential effects of social capital in the admissions process. While race conscious affirmative action inspires passionate debate, we give scant attention to the role other preferences play in making the consideration of race necessary. Fortunately, not everyone is oblivious.

A divided Sixth Circuit recently struck down Michigan’s ban on race-conscious affirmative action. The court reasoned that the ban placed an unconstitutional burden on applicants of color in securing admissions preferences. The majority opinion illustrated this point by explaining how applicants seeking legacy preferences had four potential options. These options included three shadow tactics—lobbying the admissions committee, the university’s leadership, or the board of trustees. If those efforts failed, these applicants could undertake the process of getting a preference written into the state constitution. On the other hand, applicants of color with no legacy or other influential connection only had one option for securing a racial preference: the expensive and difficult constitutional option.

The court concluded that the ban ran afoul of the Equal Protection Clause’s prohibition against majority groups manipulating political processes in ways uniquely burden minority groups. The decision was a refreshing acknowledgement of both the power of the shadow process and the hypocrisy of cherry-picking preferences to demonize. But the real power rested in what the opinion did not do. The majority eschewed the tone-deafness that has come to typify equal protection jurisprudence. It considered vital context in concluding that banning racial preferences while allowing the continued use of preferences that benefit the wealthy and well-connected would further disadvantage people of color, especially Blacks, who because of unlawful discrimination lack extensive wealth and social capital. The decision acknowledges the inconvenient truth that while we have equality in principle, equality in fact remains fleeting. It is unclear what effect the decision will have. The court’s mandate has been stayed pending a potential review by the U.S. Supreme Court.

The selective admissions process inherently favors applicants from privileged backgrounds. Its narrow contours render wealth a proxy for merit. Privileged applicants who are able to leverage their advantages into high test scores and good grades reap the biggest rewards. But those who fritter their advantages should not despair; the shadow process provides an alternative path—one that would be unconstitutional if race were the premise, even though it essentially is.

The author is a professor at Saint Louis University School of Law. You can follow him on Twitter at @TheEdLawProf.

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