NRPLUS MEMBER ARTICLE T he Department of Education is declaring war on legacy preferences in college admissions. It has opened an investigation into Harvard for giving admissions preference to the children of alumni. The legal basis for doing so is dubious, and the apparent assumption of Democrats that this is a political wedge issue favoring their side is questionable. That being said, a significant rollback of legacy admissions preferences would be a good thing, and it’s broadly popular.
As a matter of policy, the case against legacy admissions is well known and persuasive. College admissions are a zero-sum competition, and their importance as a gateway or barrier to opportunity and a shaper of social class has grown enormously in recent decades. Given how much influence major colleges have on the hierarchy of American society, Americans rightly feel that colleges should dispense those opportunities fairly, on the basis of some form of merit.
Merit can come in different forms, of course; campus life is enriched by athletes, musicians, and others who bring something besides academics to the table. Race, of course, is not merit — which explains why so many Americans have resented the use of racial preferences in admissions. Simply being a child of alumni isn’t one of those types of merit, either.
Pros and Cons
The case against legacy preferences starts with that fundamental issue of fairness, and with the American tradition of republicanism, which resents any hereditary privilege. There is also the more specific criticism that legacy preferences not only privilege wealth, they also tend (at least in some colleges) to be given disproportionately to white students, and to disproportionately disadvantage newer immigrant groups such as Americans of East Asian, South Asian, and Latin American origin. For example:
In California, where state law requires schools to disclose the practice, USC reported that 14 percent of last year’s admitted students had family ties to alumni or donors. Stanford reported a similar rate. At Harvard, . . . legacy students were eight times more likely to be admitted, and nearly 70 percent were white, researchers found.
An Associated Press survey of the nation’s most selective colleges last year found that legacy students in the freshman class ranged from 4 percent to 23 percent. At four schools — Notre Dame, USC, Cornell, and Dartmouth — legacy students outnumbered Black students.
There are four basic arguments in favor of legacy admissions, but the benefits they provide accrue almost entirely to colleges and their alumni rather than to the student body or applicants. First, and the main reason why legacy preferences exist, alumni are likelier to donate money to their alma mater if they feel that it is a place that will look with favor on their children. Second, families sending multiple generations to the school builds a sense of community more generally among alumni. Third, from the admissions office’s perspective, legacy applicants are more predictably likely to attend if admitted — and that lends some certainty to the construction of an entering class. Fourth, legacy-admitted students are less likely to struggle to fit in on a campus.
The benefits of legacy admissions aren’t negligible, but they mostly boil down to the financial interest of the colleges in boosting donations. To my mind, that is why they have no place in state-run institutions or in lavishly endowed major research universities such as Harvard. Smaller, less financially robust colleges have a better argument for their need to cater to alumni — as well as to give direct preferences to children of donors. (Preferences for children of faculty and staff raise some distinct issues, as this is essentially a form of employee compensation.) But it would be no great tragedy if they were abolished altogether. Indeed, one suspects that some college administrators and admissions offices would love nothing more than to be able to tell alumni and donors, “Sorry, our hands are tied, we’re not allowed to do that.”
Preference Is Unpopular
Both forms of preference have long been widely unpopular. Racial preferences, for example, were banned by statewide initiative in California in 1996 — an initiative that passed with 55 percent of the vote — and the ban was upheld with 57 percent of the vote against a repeal effort in 2020.
A Washington Post review of the polling in 2022 found that 63 percent of Americans did not want race considered in admissions; black Americans were the only group with less than 60 percent opposed, and they were closely split 53 to 47 in support. And that was consistent with past polling:
In four polls from 2003 to 2016, Gallup found at least two-thirds of Americans saying college admissions should be “solely on the basis of merit.” In 2013, a Washington Post-ABC News poll found just over three-quarters of Americans opposed allowing universities to consider race. In 2019 and again this year, the Pew Research Center found more than 7 in 10 adults saying race or ethnicity should not be a factor in admissions.
Legacy admissions are even more widely unpopular. The Post poll found 75 percent disapproval for legacy admissions, with little difference in the result among racial and ethnic groups. An AP-NORC poll in May 2023 found that “just 9 percent say it should be very important that a family member attended and 18 percent say it should be somewhat important,” with similar approval numbers for consideration of whether a student’s family donated to the school. A 2019 College Pulse poll of college students broken down by partisan affiliation found that only 7 percent of Republicans and 4 percent of Democrats considered legacy admissions “very fair.” A July 2023 poll of college students and recent graduates done by Generation Lab found 75 percent disapproval of legacy admissions. In the same poll, 52 percent disapproved of considering race and ethnicity.
Whatabout That
Whatever the merits of legacy admissions, there is a strong odor of tantrum about the Democrats attacking them now. For a long time, as they defended outright race discrimination in college admissions, liberals and progressives raised “what about legacy admissions” as a defense. As California Democratic representative Barbara Lee said on Twitter: “Let’s be clear: affirmative action still exists for white people. It’s called legacy admissions.” The rhetorical focus against legacy admissions has been mainly about using them to justify racial preferences rather than about fairness or merit in a general sense. Indeed, the push to de-emphasize standardized testing and any other objective yardstick for measuring academic merit suggests that the real agenda remains about reallocating spots in college classes to favored constituencies.
In any event, with racial preferences now gone, Democrats are in a vindictive mood, hence the deployment of the Department of Education. But if they are expecting Republicans to form the vanguard of resistance, they may be surprised. The mood on the right is quite hostile these days to the administrations of elite colleges. Moreover, the shift in voting patterns in recent years suggests that the beneficiaries of legacy admissions — the graduates of highly selective colleges and their children — are likely to be a Democratic-leaning group.
Moreover, this isn’t the best time for Democrats to be having this argument heading into the next presidential election. Consider how Hunter Biden got into Yale Law School:
Dean Guido Calabresi got a call from the school’s most powerful alumnus, President Bill Clinton, who asked him to accept Hunter Biden, a recent Georgetown graduate. . . . Calabresi, who had walled off the dean’s office from the admissions process at Yale Law to avoid just such pressure, told Clinton that he would not intercede. The admissions office then rejected Hunter.
But Calabresi met with Hunter, encouraged him to go to a different law school and to then apply to Yale as a transfer student. Hunter Biden went to Georgetown University Law for a year, and was admitted to Yale in the summer of 1994. Clinton nominated Calabresi to a federal judgeship that same year. At the time, Sen. Joe Biden was chairman of the Judiciary Committee, the person in charge of shepherding Calabresi’s nomination.
Disparate Impact
Where things get complicated will be in any effort to litigate legacy admissions in court as a federal civil-rights violation. It will, of course, be humorous to see the very same people who just got done arguing that race discrimination doesn’t violate federal law now turn around and claim that race-neutral criteria such as being a child of alumni are illegal simply because they have a racially disproportionate effect.
Left-wing legal commentator Mike Sacks argues on Twitter that Biden may be doing this just to embarrass the conservative justices, who may be inclined to conclude that “disparate impact” isn’t really what Title VI of the Civil Rights Act bans, but might not want to do so in a challenge to legacy admissions:
I imagine Alito would join Thomas/Gorsuch. Roberts/Kavanaugh/Barrett? Surely none of them likes disparate impact liability. But would they want to do away with it in a case upholding rich kid affirmative action after striking down race-conscious admissions? Not a good look!
Trolling the Supreme Court seems like a bad reason to deploy federal investigative resources. It also seems like a risky bet to bank on the conservative justices being intimidated out of reading the law correctly.