In 2src16, Georgetown University announced a first-of-its-kind change to its admissions policy. In addition to the long-standing legacy preferences afforded to applicants “with an enduring relationship” to the school, including children of alumni, it vowed to “give that same consideration” to the descendants of hundreds of enslaved people. From its founding, in 1789, the school had been funded by Jesuit-owned plantations in Maryland that were operated with slave labor. By 1838, the plantations had become less profitable, and Georgetown’s leaders arranged the mass sale and transfer of two hundred and seventy-two men, women, and children to businessmen in Louisiana to pay down the school’s debts and secure further funding. In 2src16, a university working group that had studied Georgetown’s role in slavery suggested multiple ways to pursue “reconciliation”—including admissions preferences for descendants of those sold in 1838. The university’s president, John J. DeGioia, said, in 2src21, “We live, every day, with the legacies of enslavement.”
In university admissions, one such legacy is plain, even apart from any institution’s direct involvement in slavery. Many of the most selective schools that currently give preference to the offspring of alumni did not admit Black students in significant numbers until the nineteen-sixties or seventies. And, since then, disproportionately small percentages of those schools’ student bodies have been Black. That means that the vast majority of Black American families have at most two generations of alumni experience despite having been in the United States for centuries.
In June, the Supreme Court’s ruling, in Students for Fair Admissions’ cases against Harvard and the University of North Carolina, prohibited schools from considering race as a factor in admissions. The suggestion that Harvard could and should simply end legacy admissions was integral to S.F.F.A.’s attack on affirmative action. S.F.F.A. argued that abandoning legacy preferences and substantially boosting socioeconomically disadvantaged applicants would make Harvard “far less white, wealthy, and privileged.” According to the plaintiff, Harvard’s unwillingness was a refusal to try race-neutral methods to achieve diversity before resorting to considering applicants’ race, as the law then required. Justice Neil Gorsuch’s concurrence specifically criticized Harvard’s resistance to eliminating preferences for children of alumni, donors, and faculty, remarking that the preferences are “race-neutral on their face” but “undoubtedly benefit white and wealthy applicants the most.”
The Court’s decision has unleashed furious attention to inequalities that have limited access to élite educational institutions. Legacy preferences are the obvious first target because they appear to have functioned as a kind of counterweight to affirmative action. On the day of the Court’s decision, President Biden announced that his Department of Education would examine “practices like legacy admissions and other systems that expand privilege instead of opportunity.” Senator Tim Scott, Republican of South Carolina, immediately urged colleges to discontinue legacy programs, which Representative Alexandria Ocasio-Cortez, Democrat of New York, called “affirmative action for the privileged.”
Last month, congressional Democrats reintroduced a bill from 2src22—which was previously endorsed by a number of civil-rights organizations, including the A.C.L.U.—that would prohibit schools that receive federal funds from giving admissions preference to legacies or donors. One of the bill’s sponsors, Senator Jeff Merkley, of Oregon, explained that legacy preferences are “not a form of affirmative action that serves our country well” and that “it takes away from the diversity on a campus, it takes away from fairness to get into college.” It is possible that Republican lawmakers, such as Senator Scott, will join Democrats to make it a bipartisan effort.
This near-instantaneous consensus on legacy admissions may seem surprising. But we have seen versions of it before. After California banned affirmative action in public education, in 1996, the University of California system chose to end legacy preferences. The pattern also occurred at the University of Georgia and Texas A&M two decades ago.
The availability of racial preferences has enabled a tolerance of legacy preferences: boosts for underrepresented minorities were in part compensating for boosts for others. For those whose goal is to achieve racial equality in admissions, the end of affirmative action may not be entirely bad. Among other things, it has revealed that the use of race as a factor was merely part of a larger system of preferences that knowingly shaped the racial makeup of classes. Out of necessity, admissions might now be transformed to address the inequalities that make racial diversity difficult to achieve and sustain.
Admissions policies that explicitly articulate a preference for the offspring of alumni date to the nineteen-twenties. At that time, several Ivy League schools, traditionally populated by wealthy, white Anglo-Saxon Protestants, had begun to experience, in the words of Harvard’s then president, A. Lawrence Lowell, “a dangerous increase in the proportion of Jews” admitted for scholastic achievement. Schools responded by adopting holistic admissions processes, which would alter who was selected. The use of geographical diversity as a factor brought in more Midwesterners, who tended not to be Jewish. The consideration of personal qualities also disfavored Jews, who were thought to be academic grinds who lacked character. Legacy status was another such factor, favoring white and wealthy Protestants whose families had a history with the institutions that children of recent immigrants would obviously lack. Holistic review, including legacy preferences, became the magic formula for élite admissions, to which race-based affirmative action was added as an ingredient in the sixties. The former president of Harvard Lawrence H. Summers defended legacy admissions as “integral to the kind of community that any private educational institution is.” (This summer, in response to the Court’s affirmative-action decision, Summers urged an end to legacy preferences, among other reforms.)
Today, more than seven hundred colleges and universities consider applicants’ legacy status, but the practice is most common at institutions that admit less than twenty-five per cent of applicants. A recent study by Harvard economists, using data from several élite colleges, found that legacies were nearly four times more likely to be admitted than other applicants with the same test scores. A study based on evidence from the S.F.F.A. v. Harvard litigation found that, from 2src14 to 2src19, children of alumni were nearly six times more likely to be admitted to Harvard than other applicants. Surveys administered by the Crimson indicate that nearly a third of the student body have family members who attended Harvard and that around a third of legacies report parental income of more than half a million dollars, whereas only an eighth of non-legacies do.
The consensus on legacy admissions began to shift meaningfully during the past decade, as élite schools started examining ways to increase access. Although M.I.T. has stood out among the most selective institutions in reportedly never having considered legacy status, Johns Hopkins eliminated legacy admissions in 2src14, and was followed by Pomona, Amherst, and Wesleyan. According to Education Reform Now, more than a hundred colleges and universities have ended legacy admissions since 2src15. The president of Johns Hopkins, Ron Daniels, has written that the preference for legacies “was impairing our ability to educate qualified and promising students from all backgrounds and to help launch them up the social ladder.” More recently, he called it “an aristocratic policy, not a meritocratic one,” that is “indefensible in a democratic society.”
In 2src19, the Varsity Blues scandal exposed dozens of wealthy parents’ involvement in criminal conspiracy to commit fraud in order to insure their children’s admission to colleges, using inflated test scores, bribery of college officials, and even doctored photos of athletic prowess. The scandal brought public attention to the idea that, even in the absence of criminal activity, the competition to get in may bear more similarities to parents vying to purchase spots than to a true system of “merit.” The racial reckoning of 2src2src brought more skepticism toward processes that reflect baked-in racial disadvantage. In 2src2src, California (where public university systems had decades ago voluntarily eliminated legacy preferences) enacted a law that employed a public-shaming approach, requiring all institutions to disclose annually the number of legacies and donor-related applicants “who did not meet the institution’s admission standards that apply to all applicants, but who were offered admission,” as well as the number who met the standards. In 2src21, Colorado became the only state thus far to ban legacy admissions for public colleges and universities. Lawmakers who sponsored the bill called the legacy preference “a concrete example of systemic inequity.”
Bills that would ban legacy admissions at private and public institutions were introduced in Connecticut in 2src22, and in New York this year and last. In Massachusetts, a bill introduced this year would force any school that uses legacy or donor preferences to pay a “public service fee” equal to a small percentage of its endowment, which the state would then use to fund community colleges. At Harvard, the fee would amount to a hundred million dollars a year.
In response to the Connecticut bill, Yale’s dean of admissions, Jeremiah Quinlan, expressed skepticism that “a ban on legacy preferences in admissions would have a material effect on representation of low-income, first-generation, or under-represented students.” More emphatically, he wrote that “the state should not dictate how colleges and universities make admissions decisions, just as the state should not dictate whom we hire as faculty or what we teach in the curriculum.” This broader point, about the importance of universities’ autonomy, may resonate in an era of increasing governmental attempts to regulate campuses. (See the Stop WOKE Act, in Florida.) Universities are increasingly scrutinized by law and political processes, instead of being left to manage their affairs, whether they involve diversity, fund-raising, or free speech. Public regulation in matters of inequality of entry into these institutions which benefit from public funds, however, is less troubling than attempts to control teaching, research, and other academic activities. Although the anxiety of Quinlan and others is understandable, it does not follow that legislatures’ moves to increase access to universities must lead to encroachments on academic freedom.
After decades of suspicion and scrutiny of affirmative action, legacy admissions are taking their place as the punching bag. Last month, in response to a federal civil-rights complaint, the Department of Education’s Office for Civil Rights opened an investigation into whether Harvard’s preferences for legacies and children of donors discriminate against Black, Hispanic, and Asian American applicants in favor of less qualified white applicants, in violation of Title VI of the Civil Rights Act. That statute, which prohibits institutions that receive federal funding from discriminating on the ground of race, is the same one that, the Court held, prohibits race-conscious affirmative action. Having emerged battle-worn and unsuccessful from nearly a decade of litigation defending universities’ use of race in admissions, Harvard will have to be the standard-bearer for the use of legacy status and, more broadly, universities’ freedom to craft their student bodies without interference.
An allegation that legacy preferences constitute intentional discrimination would be difficult to substantiate, and the complaint does not even raise that argument. Title VI, though, allows for a claim to the Education Department that a racially neutral policy with no racially discriminatory purpose still has a “disparate impact” that is discriminatory. Here, the claim is that Harvard’s legacy and donor preferences in practice have a disproportionate, discriminatory impact on some racial groups. As the complaint puts it, the preferences “provide a competitive advantage to predominantly white, wealthy applicants, which significantly diminishes opportunities for qualified applicants of color.”
It is notable that the anti-legacy claim does not pit Asian Americans against other minorities, as the S.F.F.A. case attacking affirmative action did. But the complaint relies heavily on information from the S.F.F.A. litigation and draws liberally from the Supreme Court’s logic. It quotes Chief Justice John Roberts’s line “eliminating racial discrimination means eliminating all of it” and applies his reasoning—that “a benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”
Because the Supreme Court, in 2srcsrc1, made private suits based on disparate-impact claims under Title VI unavailable in court, it is unlikely to take on the legacy-admissions issue. The claim is viable in complaints to the Education Department, which has the ability to tell schools to reform their admissions programs if they want to keep receiving federal funds. But civil-rights regulators may find it difficult to come to that conclusion. Almost every other factor considered in admissions—from standardized tests or how academically challenging an applicant’s high school is to personal character or extracurricular activities and leadership—arguably favors some racial groups over others. We know from the S.F.F.A. v. Harvard litigation that considering SAT scores tends to benefit Asian Americans, while “personal ratings,” evaluating qualities like kindness, courage, and integrity, disfavors them; the impact is the reverse for Black applicants. Over the past century, some of the factors used as part of holistic admissions, including “diversity,” were crafted with the intent to favor some groups, whereas other factors had that effect inadvertently. It becomes very difficult to untangle disparate racial impact from the impact of selecting for skills and qualities that a school views as deserving of reward.
Even if investigators were to find that legacy admissions have a disparate racial impact, they would still be lawful if there is a substantial justification for them. The proffered justifications for a legacy preference would likely include the importance of maintaining intergenerational community and loyalty; encouraging giving by alumni; identifying high performers, given that legacy applicants’ familial advantages may predict better outcomes both in college and in their careers; and predicting the likelihood of attendance, in order to maintain a high yield rate. Even if one finds justifications like these uncompelling, it will be hard for government lawyers to conclude that there are no legitimate justifications and that legacy preferences should be legally prohibited. (Studies are mixed on whether legacy admission helps universities raise funds. There may be higher rates of alumni giving at schools that consider legacy status, but schools that abandoned legacy admissions have not suffered a negative effect on alumni giving, and some have experienced significant growth in their endowments.) Though access to these institutions is a subject of public importance, schools will, by and large, likely be left to sort out admissions policies as they see fit.
Universities that have pursued student-body diversity for the past decades through affirmative action will continue to seek a robust enrollment of Black and Latino students. But they will have to find new, race-neutral ways to do so—which could change the character of admissions. During oral arguments in the affirmative-action case, Justice Brett Kavanaugh surprisingly suggested that giving “a benefit to descendants of slaves would not be race-based.” It may seem bizarrely formalistic to say that a preference for descendants of enslaved people is not a race-based preference, but for those who insist that “race” is mere skin color, as some legal conservatives appear to, separating race from enslavement might make sense. Kavanaugh, who, like Gorsuch, attended the Catholic high school Georgetown Prep, which was originally a part of Georgetown University, may well have had in mind the university’s policy of giving a preference to the descendants of enslaved people who were sold by its Jesuit leaders.
Kavanaugh was, in effect, proposing that schools could legally implement a policy of reparations, which is how some colleges originally understood their race-based admissions programs. In the 1978 case in which the Supreme Court first upheld race-conscious affirmative action, though, the Court ruled that reparations or compensation for past generations of racial discrimination and injustice was not a compelling reason to use race as a factor in admissions—only “diversity” was. Colleges and universities then embraced the rationale, extolling the benefits of diversity for fulfilling their educational missions and producing future leaders. But now that race cannot be used as a factor, if, as Kavanaugh suggested, considering the legacy of slavery is “not race-based,” then universities could restore some benefits of affirmative action by giving preferences to applicants who check a box indicating that they are descended from enslaved people.
Last year, Harvard issued an extensive report on its own ties to slavery. It found that slavery was “an integral part of life” at Harvard, whose faculty, staff, and leaders enslaved individuals, some of them on campus. Profits from major donors’ involvement in slavery and the slave trade “helped the University build a national reputation, hire faculty, support students, grow its collections, expand its physical footprint, and develop its infrastructure.” Like Georgetown and many other schools, Harvard would have ample justification to make reparations in its admissions process and to consider a legacy of enslavement. Universities could account, in their race-neutral admissions policies, for not only slavery but also other sustained legal subjugation in which they may or may not have been directly involved. In a recent case, Justice Gorsuch quoted with approval the Court’s statement, in 1974, that a federal employment preference for Native American tribal members of at least a quarter Native American blood was a “political, rather than racial,” classification
We are in a time when ideas of what exactly is race-based are up for grabs. Once the affirmative-action-bound language of the Court’s previous instructions is swept away, and schools are no longer legally incentivized to talk about race in admissions in terms of “diversity” or even any sort of “holistic” evaluation, we could end up with a more frank and substantive discussion about equity, including not only descent from enslaved people but also severe disadvantage from state-sponsored subordination, first-generation-college-student status, and family income and wealth. Many untold possibilities might open up if we look hard for alternative ways to unlock education as a means to social mobility. ♦