Affirmative Action, Education / Schools, Law Schools

Are Legacy Admissions Unconstitutional?

Here’s seemingly every affirmative action conversation I’ve had since I started working at Above the Law:

PLEBES: Affirmative action is racist — reverse-racist. It lets an under-qualified minority get into a school I deserved to get into, just because of their skin color! And why? Because 100 years ago things were tough for blacks? Not fair! [Some quote from Justice Roberts I’ll care about the minute I care about what an aging white man thinks about racial harmony in America.]
ELIE: Actually, affirmative action can be justified by simply pointing out that diversity of thought and experience is essential when it comes to educating people.
PLEBES: It should be about merit! [Quotes standardized test statistics as if the LSAT is both objective and a standard of merit.] If you get a higher score on a test, you should get in over someone who gets a lower score. That’s merit!
ELIE: But we know that universities look at all sorts of things when considering applicants. They look at whether you have any other talents like sports or music. They look at legacy status…
PLEBES: [Foaming at the mouth now] Legacies are an ENTIRELY DIFFERENT THING. We’re talking about discrimination based on RACE. That’s ILLEGAL!

But maybe people shouldn’t be so quick to dismiss concerns about legacy admissions. According to Richard D. Kahlenberg, editor of a new book called Affirmative Action for the Rich: Legacy Preferences in College Admissions, legacy admissions are bad policy — and potentially unconstitutional…

The argument over legacy admissions isn’t novel; it’s just another example of a familiar drama playing itself out. White people try to protect their privilege, black people try to level the playing field, Clarence Thomas tries to make sure that nobody else can benefit from the same social programs that helped him, and Asians and Jews say “WTF? We’re minorities and we test well, shouldn’t we always get in everywhere?”

And the legacy issue, something that should be equally troubling to the “meritocracy” crowd and the “pro-AA” crowd gets lost in the shuffle.

Kahlenberg summarizes his argument against legacies in the Chronicle for Higher Education. He lists ten “myths” about legacy admissions, and then debunks them. The whole thing is a great and thought-provoking read, but here is the myth (and response) that deals with the legal standing of legacy admissions.

It’s a long response, but worth reading closely. The myth appears in bold, and the debunking in regular type:

Legacy preferences may be unfair, but they are not illegal. Unlike discrimination based on race, which is forbidden under the 14th Amendment, it is perfectly legal to discriminate based on legacy status, as the courts have held.

Remarkably, legacy preferences have been litigated only once in federal court, by an applicant to the University of North Carolina at Chapel Hill named Jane Cheryl Rosenstock, in the 1970s. A New York resident whose application was rejected, she claimed that her constitutional rights were violated by a variety of preferences, including those for in-state applicants, minorities, low-income students, athletes, and legacies. Rosenstock was not a particularly compelling candidate—her combined SAT score was about 850 on a 1600-point scale, substantially lower than most out-of-state applicants—and she was also a weak litigant. She never argued that, because legacy preferences are hereditary, they presented a “suspect” classification that should be judged by the “strict scrutiny” standard under the amendment’s equal-protection clause.

The district-court judge in the case, Rosenstock v. Board of Governors of the University of North Carolina, held that it was rational to believe that alumni preferences translate into additional revenue to universities, although absolutely no evidence was provided for that contention. The decision was never appealed. As Judge Boyce F. Martin Jr. of the U.S. Court of Appeals for the Sixth Circuit notes, the 1976 opinion upholding legacy preferences in Rosenstock addressed the issue “in a scant five sentences” and is “neither binding nor persuasive to future courts.”

A generation later, two new legal theories are available to challenge legacy preferences. First, Carlton Larson, a law professor at the University of California at Davis, lays out the case that legacy preferences at public universities violate a little-litigated constitutional provision that “no state shall … grant any Title of Nobility.” Examining the early history of the country, Larson makes a compelling case that this prohibition should not be interpreted narrowly as simply prohibiting the naming of individuals as dukes or earls, but more broadly, to prohibit “government-sponsored hereditary privileges”—including legacy preferences at public universities. Reviewing debates in the Revolutionary era, he concludes: “Legacy preferences at exclusive public universities were precisely the type of hereditary privilege that the Revolutionary generation sought to destroy forever.” The founders, Larson writes, would have resisted “with every fiber of their being” the idea of state-supported-university admissions based even in part on ancestry.

Second, the attorneys Steve Shadowen and Sozi Tulante argue that legacy preferences are a violation of the 14th Amendment’s equal-protection clause. While the amendment was aimed primarily at stamping out discrimination against black Americans, it also extends more broadly to what Justice Potter Stewart called “preference based on lineage.” Individuals are to be judged on their own merits, not by what their parents do, which is why the courts have applied heightened scrutiny to laws that punish children born out of wedlock, or whose parents came to this country illegally.

Shadowen and Tulante argue that legacy preferences at private universities, too, are illegal, under the Civil Rights Act of 1866. Unlike Title VI of the 1964 Civil Rights Act, which outlaws discrimination only on the basis of “race, color, or national origin,” the 1866 law prohibits discrimination on the basis of both “race” and “ancestry.”

A few thoughts, in no particular order:

  • The legacy issue hasn’t really been litigated, but there’s a new call for courts to review affirmative action seemingly every year. If the “meritocracy” people truly are motivated by a competing philosophy of education, as opposed to mere racial prejudice, why aren’t they calling for review of legacy admissions as aggressively?
  • The person who answers “Title of Nobility” when issue-spotting on a law school exam should get an immediate and irrevocable A.
  • How many policies, worldwide, started from a desire to f**k with the Jews? Honestly, I hope they are the chosen in the afterlife, because in real-time it’s non-stop ass rape.
  • Sometimes I think the Fourteenth Amendment is becoming Eric Cartman’s Trapper Keeper. It seems to merge with everything.
  • Note to first-year associates: anytime you’re looking at a law from 1866 to anchor your argument, you need to fire up SeamlessWeb, order some dinner, and continue working.

Look, I don’t know if legacy admissions rise to the level of a constitutional violation, but I know you can’t talk out of one side of your mouth about the evils of affirmative action and yet turn a blind eye to legacies.

Kahlenberg argues that legacy admissions are significantly different than affirmative action admissions — different, and much worse. Again, you can read the full argument here. I’m not sure I agree. Legacy students add diversity to the class as well. I take the Kermit the Frog view of diversity: “We need more dogs, and cats, and chickens, and things.” When you go to school with John Smith, Tyrone Washington, and Marion Coatsworth-Hay, everybody wins.

Except for the people who didn’t get in, but think they should have because of a standardized test. Those people have an unbelievable ax to grind.

Maybe we should just tell them their spots were “taken” by another white person who looks just like them and just scored better on their precious standardized test. There are a lot of those people still getting into top universities and doing just fine.

10 Myths About Legacy Preferences in College Admissions [Chronicle of Higher Education]

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