The U.S. Commission on Civil Rights has started an inquiry into the extent to which liberal arts colleges discriminate against female applicants in an attempt to minimize gender imbalances in the student body. On Friday, the commission agreed on a set of colleges -- primarily in the Washington area -- to investigate, but declined to release a full list.

The issue is an extremely sensitive one for liberal arts colleges, many of which in recent years have worried about their gender ratios reaching points (60 percent female is commonly cited) where they face difficulty in attracting both male and female applicants. Generally private undergraduate colleges have the legal right to consider gender in admissions. They were specifically exempted from the admissions provisions of Title IX of the Education Amendments of 1972.

But despite that legal right, many at liberal arts colleges are uncomfortable about either the extent of admissions favoritism some colleges may engage in, or are embarrassed about it receiving public attention. Further, the Civil Rights Commission's inquiry is based on concerns about another part of Title IX -- its requirement that colleges provide equitable athletic opportunities to male and female athletes. A theory behind the inquiry, outlined in the proposal used to launch the probe, is that colleges may be favoring men in admissions because they are worried about gender-neutral changes they might otherwise use to attract more male students. Foremost among such strategies would be adding more male athletic teams, a move some colleges may be reluctant to make out of fear of the expense of then being required to add more women's teams.

The U.S. Commission on Civil Rights has members with six-year terms appointed by the president and Congress, and its members -- due to the timing of appointments -- still include officials who are much more skeptical of affirmative action than one might see in appointees coming from the current administration and Congress. The commission doesn't have power to order colleges (or other entities) to change their policies, but the commission can draw attention to issues, and prompt action from groups that have more legal options.

Nationally, female enrollments have grown steadily; about 58 percent of bachelor's degrees are awarded to women, and gender gaps have become visible not only at liberal arts colleges, but at many larger institutions, including research universities. From an educational standpoint, many observers think that the falling educational aspirations of college-age men is a serious problem. But from the perspective of admissions officers, the issue is especially pressing at liberal arts colleges. Their relatively small student bodies make gender gaps particularly visible to potential applicants, and they are less likely than research universities to have educational programs -- such as engineering programs -- that may enroll more men than women and balance the overall population.

As a result of these concerns, some private liberal arts colleges have talked openly about making extra efforts to recruit male applicants -- and holding female applicants to higher standards in admissions. A 2006 op-ed in The New York Times by Kenyon College's dean of admissions brought the issue national attention, leading to considerable discussion about the ethics of favoring male applicants, and clarifications by the dean about her views. The Title IX exemption that allows liberal arts colleges to consider gender doesn't apply to public colleges or graduate and professional programs -- a fact not always known by all in higher education. When data in 2005 indicated that the University of North Carolina at Chapel Hill's freshman class was 58 percent female, some trustees suggested that the university consider some form of affirmative action for men. (The idea was rejected.)

The proposal that the civil rights commission is basing its probe on frames the issue this way: "Recently, accusations have been made that some selective private, coed, liberal arts schools are discriminating in admissions in to order to maintain what they regard as an appropriate gender balance. Specifically, the accusation is that women applicants are being discriminated against in order to prevent the schools from becoming 'too female.' Indeed, some commentators have called this an 'open secret' and suggested the same may be occurring at state schools too (where it would be illegal).... Privately at least, some college administrators argue that they must discriminate against women or the gender balance at their institutions will become so off-kilter that many of the women they want won’t be willing to attend. Colleges will then be unable to attract the female students they want most – or so they fear. Interestingly, this may be a bit of a collective action problem. Once a few lower-ranked liberal arts schools started giving preferential treatment to men, others feel they must follow suit, since the failure to do so will cause any hold-out school to have a gender ratio that is seriously off-kilter."

Nothing in the proposal suggests any interest in challenging the legal right of private colleges to consider gender in admissions, although the proposal expressed interest in documenting whether this discrimination is in fact widespread. Rather, the proposal seems focused on legal issues related to Title IX. This comes out of another issue the commission will examine -- how colleges could use gender-neutral ways to achieve gender balance. The proposal for the inquiry notes that colleges have attracted many groups of students by adding either academic or extracurricular programs believes to be of interest to various groups.

But in this case, the proposal speculates, colleges may be avoiding such a strategy -- which may be "preferable" to admissions discrimination -- to avoid running into Title IX issues in athletics.

"A small but significant part of the problem may lie in the enforcement policies of the Department of Education in connection with Title IX," the proposal says. "If a school seeks to make itself more attractive to men by adding more athletic opportunities for men, it must also make more athletic opportunities available to women essentially unless it can affirmatively show that added opportunities for women would not be taken advantage of. This makes it difficult. Since flat-out discrimination is a clear legal alternative, it is possible that what we are witnessing is Title IX 'backfire.' A law that was designed to prevent sex discrimination in higher education may be causing sex discrimination on account of the Department of Education’s emphasis on athletics in enforcement."

The proposal suggests as much interest in this question -- of whether Title IX is causing a problem -- as in the question of whether female applicants are getting unfair treatment in admissions.

While the commission's proposal suggests that fear of Title IX may be discouraging colleges from adding men's teams, at least some colleges have done so, linking their decisions to a desire to attract more applicants.