The supposed meritocracy of elite academic admissions often blends into plain old aristocracy, but none are more overt or less defensible than legacy admissions.
The Supreme Court’s decision in the UNC and Harvard cases was received, as most news is these days, in two quite different ways on the two sides of our political aisle. But one theme seemed to resonate with both supporters and opponents of affirmative action: that in the spirit of ending unfair admissions practices, elite universities should move to end legacy admissions.
Republican senator and presidential candidate Tim Scott told an interviewer Thursday that he welcomed the Court’s decision, but he added that “one of the things that Harvard could do to make that even better is to eliminate any legacy programs where they have preferential treatment for legacy kids.”
Ed Blum, whose organization, Students for Fair Admissions, had brought the suits against Harvard and UNC, agreed in a statement after the decision:
For decades, our nation’s most elite universities have given preferences to the children of alumni, faculty and staff, athletes, and notably, substantial donors. These preferences have been vigorously defended by these exclusive schools even though court records revealed that they have diminished individualized student diversity at nearly every competitive school in the country. The elimination of these preferences is long overdue and SFFA hopes that these opinions will compel higher education institutions to end these practices.
A number of prominent critics of the Court’s opinions said the same. Representative Bobby Scott, Democrat of Virginia and the ranking Democrat on the House Education and the Workforce Committee, called on the Justice Department to start investigating colleges that offer legacy admissions, because of their disparate racial impact. Representative Alexandria Ocasio-Cortez argued the same, tweeting Thursday that “if SCOTUS was serious about their ludicrous ‘colorblindness’ claims, they would have abolished legacy admissions, aka affirmative action for the privileged.”
These different modes of criticism of legacy admissions reveal a lot about how the people involved think about the law, of course. Senator Scott said universities should choose to end legacy admissions, or should face public pressure to do so. He did not suggest that the Supreme Court should just pretend the law requires his preferred outcome, as Representatives Scott and Ocasio-Cortez did.
Title VI of the Civil Rights Act of 1964 reads:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
That language plainly prohibits the sorts of affirmative action practices that Harvard and UNC were shown to engage in, and the Court was plainly right to make them stop. But that language just does not describe legacy admissions. The 14th Amendment doesn’t either. And bringing disparate-impact analysis into this domain would do no one any favors in the long run.
But the underlying agreement about the need to end legacy admissions is nonetheless good to see. There are a lot of ways in which the supposed meritocracy of elite academic admissions blends into plain old aristocracy, but none are more overt or less defensible than legacy admissions. And that is all the more the case with the all-too-common practice of donation-backed legacy admissions. As my American Enterprise Institute colleague Rick Hess has noted, such practices are rampant at our nation’s leading universities, and the payoffs involved are even tax deductible. As Hess writes:
If a donor earns seven figures a year and lives in California, taxpayers can wind up subsidizing more than 52 cents of every dollar used to buy his child’s way into college. Even in states with less exorbitant tax rates, taxpayers routinely pick up more than 40% of the tab. That’s because these kinds of donations are wholly tax deductible: As long as there’s no explicit quid pro quo agreement, the IRS allows parents to write off their influence-peddling donations in full.
That much, at least, could change by law. And a bipartisan move to change it could be a good platform for a public appeal to pressure the elite universities into ending legacy admissions more generally.