The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Case for Abolishing Legacy Preferences in College Admissions
They probably aren't illegal under current law. But they are nonetheless wrong for many of the same reasons as racial preferences.
The Supreme Court's recent ruling against racial preferences in higher education admissions has heightened longstanding controversy over "legacy" preferences that benefit children of alumni. Figures as varied as President Biden and GOP Senator and presidential candidate Tim Scott have called for their abolition.
Today, Lawyers for Civil Rights, together with several other groups, filed a complaint against Harvard with the Department of Education Office of Civil Rights, arguing that OCR should force Harvard to stop the practice because it disproportionately benefits white applicants at the expense of other groups, and thereby violates Title VI of the Civil Rights Act of 1964 (which forbids racial discrimination in education programs receiving federal funds). On Twitter, prominent left-wing Democratic Rep. Alexandra Ocasio-Cortez opined that "[i]f SCOTUS was serious about their ludicrous 'colorblindness' claims, they would have abolished legacy admissions, aka affirmative action for the privileged."
I am skeptical that LCR's complaint will prevail, unless they can prove that Harvard's legacy preferences were adopted or maintained for the purpose of benefiting whites (or keeping out non-whites). Title VI (and other current federal laws) do not ban legacy preferences as such. And courts are unlikely to invalidate them merely because they disproportionately help white applicants relative to those from other groups. As for AOC, the issue of legacy preferences was not before the Supreme Court in the cases it heard, and there was nothing the justices could have done to abolish that policy.
That said, legacy preferences are indeed a kind of "affirmative action for the privileged," just as AOC says. And they are unjust for much the same reasons as racial and ethnic preferences are. In both cases, some applicants are rewarded and others punished for arbitrary circumstances of ancestry that they have no control over, and that have no connection to academic or other skills that might make them better students or better members of the university community. The fact that your parents were black, white, or Latino says nothing about how good an applicant you are. And the same goes for the fact that mommy or daddy went to Harvard (or didn't).
Like race, legacy status may sometimes be correlated with academic or other skills. But university admissions offices need not rely on such crude and dubious proxies when they can simply rely on direct measures of the academic and other skills that interest them.
The usual rationale for legacy preferences is that they increase alumni donations to colleges. This might be a defensible argument for profit-making institutions whose primary goal is to make money for owners and investors. But most universities are public or non-profit institutions that - at least in principle - are supposed to prioritize other objectives, such as promoting education and research. Legacy preferences are pretty obviously inimical to those goals.
Moreover, it isn't even clear that legacy preferences really do increase donations significantly. A number of elite schools, such as Johns Hopkins, MIT, and my undergrad alma mater Amherst College, have recently abolished legacy preferences with few if any ill effects.
I know many elite college alumni from my own generation (the one now in its peak giving years). Very few support legacy preferences, and fewer still (if any) are likely to reduce their giving if their alma mater drops that policy. Polls indicate 75% of Americans oppose legacy preferences, a figure comparable to the level of opposition to racial preferences. I doubt the opposition among elite-college graduates is significantly lower than that in the general public. In my experience, it may well be higher.
As always, it's dangerous to generalize about public opinion from personal experience. Perhaps I know an unrepresentative set of elite-school alums. Maybe I'm too much of a commoner for the aristocratic types who like legacy preferences to condescend to associate with me! My point here is not that alumni donations definitely won't decline significantly if schools abolish legacy preferences, but that the claim they will should be viewed with some skepticism.
It's potentially possible to defend some form of legacy preferences on a different ground. When I applied to college in 1990, I (as a first-generation immigrant) was the first in my family to do so in the United States. Thus, I could not benefit from legacy preferences, and indeed was disadvantaged by having to compete with applicants eligible for them. My wife, though a native-born citizen, was also the first in her family to attend a national elite college (Dartmouth). If not for legacy preferences, perhaps my (then-future) wife and I would have attended higher-ranked schools or secured other benefits.
Today, my wife and I have undergraduate and graduate degrees from a number of elite colleges and universities. If legacy preferences are abolished at all these schools, our kids won't have the opportunity to benefit from them. Thus, the Somin family will never be compensated for the unfair disadvantages we faced in earlier years.
On this theory, children of first-generation elite college graduates should be offered legacy preferences to offset the disadvantages their parents faced. Note the parallel with arguments that past discrimination in admissions against blacks and other minority groups justifies compensatory discrimination in favor of them today.
Obviously, however, the harm done to past generations by legacy preferences is modest compared to that of slavery and segregation. And in both cases, we can't genuinely remedy historic wrongs through preferential policies today. Among other things, the people who benefit from today's compensatory preferences probably would not even exist in the first place if not for the wrongs of the past.
Although legacy preferences likely do not violate current antidiscrimination laws, legal scholar Carlton Larson has plausibly argued that those at public universities violate the Constitution's prohibition on titles of nobility, which - he contends - should be interpreted as banning state-granted hereditary privileges more generally. I am no expert on the Titles of Nobility Clause, and therefore not able to fully evaluate his argument. But it deserves serious consideration.
Larson's theory aside, legacy preferences probably aren't illegal under current law. But nothing prevents us from getting rid of them. State governments would do well to ban them at their public universities. And private schools would do well to voluntarily follow the example of Amherst, Johns Hopkins, and MIT.
