Separate And Unequal

Separate And Unequal

Abstract: On May 11, 2019, the US federal government indicted 50 individuals, charging them with bribery and fraud in a widespread college admission scandal involving wealthy parents, coaches, administrators, and business executives, paying bribes to buy their children’s way into the nation’s elite schools. For weeks thereafter, the public discourse had become engaged primarily with the action of the individuals, secondarily with some schools’ administrators, but not with the role played by the State. I argue that the evidence unearthed for these cases point to a human rights violation because the State, through a plurality of systems and instruments, has actively participated in perpetuating inequality and economic disparity.

First, for clarity purposes, I shall define key terms and concepts. I use the word “State” to refer to the modern nation-state governing power, as a legal person that is in social contract with society, which authorizes (through a public mandate, electoral or otherwise) it to assume legal monopoly on the use of violence and taxation and the judicious use thereof. I also define human rights as claims by members of society against the State when the State abuses its powers or fails to treat citizens equitably and fairly. As such, human rights claims are above and beyond criminal and civil claims. With these definitions in mind, let’s consider the facts related to the so-called elite schools’ admissions and to the scandal that ensued and draw appropriate conclusions.

Federal charges against some wealthy parents, accusing them of buying their kids admission to prestigious universities brought to the forefront the broader discussion of the status of private universities and the role of governments in education. Given the role higher education plays in social mobility and wealth production, a serious look at admission and teaching practices by public and private institutions is necessary. Importantly, given the principles and norms enshrined in the treaties on social and economic rights, the role of private universities that receive government funds in creating inequality must be framed within the legal and moral imperatives of human rights norms to which the State must adhere. For clarity purposes, I frame human rights violations as claims by individuals and/or social groups against the State for discrimination or for actively contributing to the creation of conditions that perpetuate inequality and economic disparity, provided that such discrimination and causation of inequality are prohibited by the national constitution or treaties ratified by the State. Access to higher education in the US is hardly a US domestic problem. Given that countries from around the world, especially oil-wealthy Muslim countries in particular, send thousands of students to study in the United States and/or establish satellite campuses of these elite universities, problems in US educational institutions are universal problem, not just a national one.

To understand the role and the degree of the State complicity and/or responsibility, let’s examine some of the facts related to education at private institutions and the many ways local and federal governments preserve this engine of inequality and economic disparity.

Key data related to representative public universities (2015/16 academic year):

University of Washington-Seattle; 31,331 undergraduate enrollment, acceptance rate 53%; $2.529 billion market value of endowment.

University of Michigan; 29,821 undergraduate enrollment, acceptance rate 26%; $11 billion market value of endowment.

University of Illinois-UC; 33,955 undergraduate enrollment, acceptance rate 66%; $2.556 billion market value of endowment.

University of Texas-Austin; 40,492 undergraduate enrollment, acceptance rate 36%; $30 billion market value of endowment.

University of Wisconsin-Madison; 32,196 undergraduate enrollment, acceptance rate 58%; $2.746 billion market value of endowment.

University of Iowa; 24,503 undergraduate enrollment, acceptance rate 80%; $1.387 billion market value of endowment.

University of Minnesota; 35,433 undergraduate enrollment, acceptance rate 45%; $3.49 Billion

Key data related to representative private universities (2015/16 academic year):

Princeton University; 5,394 undergraduate enrollment, acceptance rate 7%; $22.29 billion market value of endowment.

Harvard University; 6,766 undergraduate enrollment, acceptance rate 6%; $37.62 billion market value of endowment.

Columbia University; 6,162 Undergraduate Enrollment, acceptance rate 6%; $9.64 billion market value of endowment.

Yale University; 5,746 undergraduate enrollment, acceptance rate 7%; $25.54 billion Market value of endowment.

Stanford University; 7,062 undergraduate enrollment, acceptance rate 5%; $22.223 billion market value of endowment.

As of the 2017-18 academic year, there were 4,298 degree-granting postsecondary institutions in the U.S.

  • Private non-profit: 1687 (with only 98 being 2-year colleges; 300 of these are Faith-connected)
  • Public: 1626 (with 876 being 2-year colleges)
  • Private for-profit: 985 (506 of them being 2-year colleges)
  • At any given year, about 20,000,000 students enroll in these universities and colleges.

Source: 2017 stats; National Center for Education Statistics (


The Real Cost of Elitism:

To understand the real engine behind inequity in society, one must look at the allocation of resources and the burden of educating the next generations:

50% of the endowment wealth dedicated to education is controlled by just 20 schools. Combined, these 20 schools enroll less than 5% of total number of students. Out of these 20 schools, 17 are private universities, and 8 of them, known as Ivy League universities. These eight Ivy League universities, alone, control 20% of the total US endowment wealth but responsible for just 1% of the students at any given year.

Understood in the context of economic and social inequality in American society, these figures define systemic discrimination and such discrimination is, at minimum, enabled by the State. Preserving an elite education system contribute more to inequity and less to education and learning.

Flawed standards and self-perpetuating reputation:

The metrics used for ranking schools are outcome-based measures that interest students, such as whether they will get good jobs, can avoid large student debt, or like their instructors. These outcome-oriented metrics do benefit from large endowment. Wealth can be used to limit class sizes, reduce student-instructor ratio, pay for tutors and other resources, provide scholarships instead of teaching assistantships, and lower the rate of admission. Such a metric does not measure if a student who attended a private university would exit more prepared than if the same student had attended a public university.

While endowment can be private donations, they are hardly used by these institutions for teaching and research activities. Research in private universities are generously funded by federal grants and contracts. In fact, more federal money goes to private schools than to public universities. In addition to federal grants and contracts money, private schools benefit from favorable tax policies and exemptions and unequal research funding and donor tax write-offs. The grants and policies increase disparity between rich, elite private schools and poor public institutions, which increase the gap between the poor and rich people in society at large.

Some people could argue that public schools do receive state money. While it is true that public schools receive government funds, state appropriations come with strings attached that limit public universities’ ability to increase tuition or become more selective in their admission practices in ways that would increase revenues. For instance, most states require public universities to guarantee admission to state residents who would meet minimum standards related to standardized testing scores and high school grades. Moreover, state contributions are dependent on the political and economic factors and, generally, some states’ appropriations to education has been in decline and it is projected to reach zero by the end of next decade.

Ivy League schools, on the other hand, do not need much resources since they are highly selective and students who are admitted to such schools are well prepared through elite education in private high schools or through private tutoring. Public universities, meanwhile, because they must admit more students who may not have gone to well-funded public high schools require more money and resources to meet the needs of a diverse student population. In reality, private universities in general and Ivy League institutions in particular, spend ten times per student than the average public university. For example, based on the 2016/17 data, Princeton University’s tax-exempt status produced about $100,000 per student per year in taxpayer subsidies, nearly ten times more than the $12,000 per student taxpayer subsidy at Rutgers University, the state flagship, and nearly fifty times more than the $2,400 per student at the nearby community college, Essex County College.

Private universities are having it both ways: they receive more research grants as well as other forms of public privileges like tax preferences, and research subsidies—all without government oversight.

All not-for-profit private universities are heavily supported, directly or indirectly, by governments. Federal student loans, tuition tax credits and Pell Grants allow them to raise fees. The tax-deductible treatment of private donations helps these universities fund new facilities, buildings, and resources. Private universities benefit from state and local (city and/or county) government exemption of facilities from property and, in some cases, sales taxes. In addition to research grants, the federal government often offers generous allowances for overhead expenses. Endowments themselves benefit from tax privileges. Despite all these tax-payers’ provided benefits, private universities are shielded from federal control by claiming that, as “private” universities, they are not subject to governmental interference. The same cannot be said about public universities, which are subject to government oversight.

In public universities, faculty members and administrators are mindful of constitutional rights and limitations. Faculty members in public universities honor the First Amendment, adhere to the terms of the Establishment Clause, and obey state and federal laws relevant to access, discrimination, violence, harassment, and civil rights. Private universities often ignore many of these limitations. In fact, elitist private universities, because they sidestepped government oversight, often engage in discretionary practices, violate human rights, and flout constitutional norms. Admission standards in most private, elite universities, discriminate when they give preference to legacy admissions–children and grandchildren of alumni. Many of the private institutions that receive public funding and privileges are also faith-based and they engage in theological discourses, clergy training, and religious activities.

Ivy League institutions were the first to rely on standardized testing, which contributed to the exclusion of racial and ethnic marginalized social groups. Numerous studies have established that, since the adoption of standardized testing, students of color, especially those from low-income families, have been negatively impacted. Settled research data from the last fifty years demonstrate that students who are African-American, Native American, Asian, and other marginalized social groups have struggled with discriminatory bias from standardized tests. The legal cases related to admission added new data that support the finding that Ivy League metrics, which rely heavily on GPA and standardized testing scores, favor the rich and discriminate against the poor. From expensive prep classes to expensive private schools, these indicators are now revealed as function of wealth and means, not indicative of personal, natural aptitudes.

Education, evidently, is directly connected to economic and social conditions and the reverse is true. As such education is a human right and the State is responsible for providing equal access to education as required by treaties it had ratified and pertinent national laws. Furthermore, since discrimination is illegal, State-enabled discrimination in education is, therefore, a human rights violation. The many affirmative action measures adopted by federal and state governments support a proposition whereby the State’s function includes leveling the playing field for historically disadvantaged social groups, allocating resources on need base, and addressing systemic discrimination and conditions that contribute to undue economic disparity. Therefore, the State is responsible for making education accessible, affordable, and fair. When education through private universities is used as an instrument for perpetuating inequality and when the State funds such an instrument of inequality, the State, then, violates human rights.

It might be true that, in free market economy, private entities and civil society institutions are not responsible for narrowing the wealth gap or for solving problems of social and economic inequality. However, when such entities receive public funds, such institutions, notwithstanding their status as private enterprises, must be subjected to government oversight to ensure equal and fair treatment of all students, a critical charge of governments. And when the State fails to undertake oversight over institutions it funds through public moneys, the State is liable for all and any practices and policies that violate equal access and equal treatment undertaken by these institutions.

One could argue that the fraud indictments against 50 persons proves that the government has undertaken action when evidence for abuse became available and therefore the State should not be accused of human rights violation for failure to act. Such an argument is flawed for a number of reasons. First, the State participated preserving a system that invited criminal abuse. Second, charging these and even future individuals with fraud will not fix a system that perpetuates inequality. Third, the charges are purely criminal; they do not address the more important issue of access to education and problem of discrimination practiced by private schools. Fourth, the State took no legal action against private institutions that receive public moneys and that discriminate in their admission practices and perpetuate economic disparity.

A human rights claim against the State does not absolve these wealthy individuals of their criminal activities and for abusing policy intended to help persons with disability and members of historically disadvantaged social groups. Indeed, persons who defraud the system are not only committing crimes, they are also contributing to inequity and economic disparity. Furthermore, those who choose to send their children to private universities over public universities are contributing to inequity as well. But that is a moral position, different from the State’s active funding of a system that demonstrably and measurably perpetuates inequity and economic disparity. Moreover, criminal charges against individuals committing fraud to buy a seat for their children in elite universities will not stop these elite universities from creating economic disparity through arbitrarily, highly selective systems that allow only the select few to benefit from the vast resources they hoard. Such an endeavor might be legitimate for private enterprises. But when such institutions receive disproportionate amounts of moneys and services from governments, then their actions become discriminatory, not merely selective, and such discrimination is thus enabled by the State, making it a human rights violation.

Prof. SOUAIAIA is a member of the faculty at the University of Iowa with joint appointment in International Studies, Religious Studies, History, and College of Law. Opinions are the author’s, speaking on matters of public interest; not speaking for the university or any other organization with which he might be affiliated.

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