Jonathan Klick | More of a declaration than a constitution

Times are rough in West Philadelphia. Between the ouster of our president at Penn and billionaire donors taking their money elsewhere, I have never been so relieved that most of America can’t quite tell the difference between Penn and Penn State.  Although higher education seems to be in turmoil nationwide, the situation feels particularly dire here.  

If Ben Franklin (a current version, not some gout-riddled zombie Franklin) were to speak on campus today, I suspect he’d be shouted down as the lefties raged against his immigration views while the right-wingers decried a lack of reverence for the sainted founding fathers.  Penn undergrads will condemn the Warby Parker guys (all alumni of the Wharton School) for selling Franklin's bifocals. In response, the Trustees will interview sculptors about the feasibility of recasting dozens of Franklin statues throughout campus as someone less problematic, like the Nobel Peace Prize winner Yasser Arafat.  On Fox News, 1986 Perelman School of Medicine and Wharton graduate Mehmet Oz will ask why the statues weren’t being converted to honor the University’s most famous alumnus, 1968 Wharton graduate Donald Trump. 

In an attempt to redirect the University toward a focus on academics, some Penn faculty members have proposed a “constitution as the framework to guide the university forward” which states “Penn’s sole aim going forward will be to foster excellence in research and education.”  The framework focuses on committing the University to making hiring and admissions decisions on the basis of academic excellence as opposed to ideology or demographics.  

Such aspirations are great, but operationalizing them is the problem.  Excellence is surely in the eye of the beholder.  For example, do former Harvard President Claudine Gay’s 11 academic articles in her career make her a great scholar worthy of a world-class research institution, or are they evidence that one’s beliefs and demographic profile drive Ivy League careers?  Was former Harvard President Larry Summers’ removal despite writing more than the aggregate of most liberal arts faculties a sign of political correctness or an indication that judgment matters at least as much as smarts when running a college?  At Penn, should we bring back Rafael Robb because he’s a great game theorist, or should his conviction for killing his wife trump academic excellence? Reasonable people can differ (well, hopefully not about that last one), and it is in those spaces that mischief occurs.

Unfortunately, when it comes to hiring, aspirations may be the best we can do. People tell themselves all sorts of stories regarding why people who think like them are smart and those who differ lack academic rigor. They even believe these stories. There are always reasonable caveats about some journals not being as fancy as others, or claims that citation counts are misleading, except when they’re not. This is true even within a field with a shared methodology; across fields, forget about it. Non-academic considerations are bound to hold sway, and with liberal faculty members far outnumbering conservatives in virtually every field, it is inevitable that ideology will influence faculty hiring if professors are making the decisions. It would be hypocritical for conservatives to denounce affirmative action everywhere else but say it’s necessary when it comes to university hiring.

Student admissions, however, offer a more straightforward path to constraining the consideration of non-intellectual criteria.  The current approach of evaluating applicants holistically provides too many degrees of freedom for admissions committees, and replacing the university bureaucrats currently making those choices with faculty members hardly improves the situation.  When deciding whether serving as the quartermaster in the community gun club counts as much as being president of the high school LGBTQ alliance, there is no way to ensure ideology doesn’t affect decisions. Figuring out whether being the quarterback of the state champion football team or working weekends to help support a family better predicts college performance is sure to be shaded by one’s normative views about privilege and merit. The only way to avoid these predicaments is to stop considering them at all. Let interest rather than credentialism drive what a kid decides to do prior to applying to college and abandon the fiction that holistic evaluation is anything more than a way to hide discretion.

Grades are just as problematic. What counts as A work varies considerably from Lower Merion High School to Overbrook High School, despite both being public high schools just four miles apart, to say nothing of the heterogeneity across schools, public and private, nationwide.  Grades are inherently too variable to provide much reliable guidance, which means they’ll be used in ways that advance other unstated interests.  Likewise, deciding whether to count calculus as more predictive of college success than Latin IV or anatomy or whatever else invites value judgments that will just replicate the nominally disallowed ideological determinations.

Instead, Penn should set a standardized test score floor and then randomly choose its admittees from the pool of applicants meeting that requirement.  That’s it; that’s the application process.  Setting a floor helps make sure the matriculating class has the requisite cognitive ability to succeed but otherwise limits concerns about ideology being privileged over academic merit.  Random selection (as opposed to just taking the highest test scores) recognizes that standardized tests may be too blunt to make fine distinctions among students and generates a campus population that approximates the population of smart young adults along many more dimensions than we currently consider.

Franklin supposedly said that “by failing to prepare, you are preparing to fail.”  I fear that, despite the good intentions to reclaim Penn as a primarily academic, as opposed to ideological, institution, the proposed constitution does too little to constrain the predictable ways its aspirations will be subverted. I also predict when the current brouhaha (hopefully) subsides, we will return to our old ways.  Perhaps we should treat the proposed “constitution” more like the Declaration of Independence, a statement of grievances and aspirations.  A real constitution needs to provide actual protections against the naturally opportunistic inclinations of the petty tyrants we academics often turn out to be.   

JONATHAN KLICK is the Charles A. Heimbold Jr. Professor of Law at the University of Pennsylvania Carey Law School. His email address is jklick@law.upenn.edu.