(NAME-MCE) Looking to the Past to Ban Legacy Admissions

[Anselmo Villanueva]

Looking to the Past to Ban Legacy Admissions


For second time this year, law review articles suggest that — if you go back
far enough — a legal case can be made that preferences for alumni children
are illegal.

Story below.  For related articles, go to:

http://www.insidehighered.com/news/2008/11/20/legacy

November 20, 2008

Looking to the Past to Ban Legacy Admissions

When critics question legacy admissions — special preferences for the
children of alumni — they tend to focus on fairness, not legality.
Politicians and others have periodically asked why colleges should give any
assistance to those who are more likely to have other advantages anyway,
given that their parents were well educated.

But legal challenges have been few. In the 1980s, the U.S. Education
Department considered complaints that legacy admissions systems
discriminated against Asian American applicants, but ruled that this was not
the case because, as more Asian Americans became graduates of elite
colleges, their children would benefit much as the children of white alumni
have benefited over time.

But this week — for the second time this year — a law journal is publishing
a legal analysis that suggests that legacy preferences are illegal. The new
issue of the Santa Clara Review features an article — whose lead writer
would like to find plaintiffs to test his theory — arguing that the 1866
Civil Rights Act bars legacy admissions at public and private institutions.
An article earlier this year in the Washington University Law Review argues
that the "nobility clauses" of the U.S. Constitution ban legacy admissions
at public institutions.

In both cases, the lawyers and legal scholars who wrote the articles say
that the statutes they cite effectively bar hereditary advantages and that
legacy admissions are such an advantage, even if the authors of the statutes
weren't thinking about how one gets into Harvard.

Several advocates for colleges that use legacy admissions said that they
hadn't heard of the latest arguments and so couldn't comment on them. But it
would be an understatement to say that colleges with legacy preferences
generally don't like to talk about them (except, perhaps during reunion
weekend).

Colleges say that legacy preferences help build cross-generational
relationships with institutions and cement relationships with alumni donors.
But educators tend to be much more comfortable defending other forms of
affirmative action than the benefits that go to alumni children. Whether
colleges have admissions policies that benefit minority applicants,
athletes, tuba players, or residents of Wyoming, the theory is that those
receiving the benefit either have valuable perspectives or faced
disadvantage — and that they will add something to the campus community.
That's a harder argument to make when what sets apart the applicant is
likely a form of advantage and socioeconomic status that matches the
historically dominant groups on campus.

The latest article to challenge the legality of legacy admissions focuses on
an 1866 civil rights law that was enacted as part of the Reconstruction era
attempts by Congress to reform the South. The article notes that the primary
point of the statute was that all citizens have the same rights and that
heredity does not convey rights in the United States. The law was passed
with the goal of preventing Southern aristocrats from exercising their
traditional control over their local areas. The article goes on to cite
numerous cases in which federal courts — sometimes citing the 1866 law —
have rejected any discrimination based on ancestry or parentage.

The article acknowledges that courts permit potentially discriminatory
distinctions for compelling reasons. But it goes on to analyze fund raising
rates at colleges with and without legacy admissions — and argues that there
has been no diminished giving at colleges that dropped legacy admissions.
Since that undercuts the idea that legacy preferences are needed for the
societal good that theoretically comes with donations, the preferences
should be all the more vulnerable legally, the article says.

The lead author of the piece is Steve D. Shadowen, a lawyer in Harrisburg,
Pa. He said that he has been in touch with several other lawyers and that
they believe they will find a good test case to challenge the legality of
preferences. He said that the ideal plaintiff would be someone who was
rejected by an institution that does not have affirmative action for
minority applicants, but grants preferences for alumni. "I'm going to do
whatever I can to make these things go away," he said of legacy admissions.
Shadowen has not benefited from legacy preferences, either as a student or a
parent.

The other paper is by Carlton F.W. Lawson, who teaches law at the University
of California at Davis and who also has never been a beneficiary of legacy
admissions. Because his paper focuses on titles of nobility — banned by the
Constitution for use by federal or state governments — his argument applies
only to public colleges and universities. Lawson argues that the nobility
clauses, largely understood to ban the awarding of titles like "duke" or
"earl," actually ban any hereditary privilege. He notes that this ban was
part of the legal assault on Jim Crow laws, some of which barred black
people from voting by limiting such rights to those whose grandfathers had
voting rights (effectively making it impossible for black people to vote).

"Legacy preferences are blatantly inconsistent" with the Constitution,
Lawson writes.

Asked in an interview if a college might defend legacy preferences by noting
that they don't guarantee admission to any child of an alumnus, Lawson said
that wasn't a key distinction. He said that the nobility clauses would bar a
state from granting an extra 50 votes, for example, in any election in which
a candidate is descended from Thomas Jefferson. Such candidates wouldn't
have an automatic win, but they would have a leg up, based on parentage, and
that's what the nobility clauses ban, he said.

Lawson said his ideal plaintiff to challenge preferences would be a recent
immigrant whose parents were not educated in the United States. Such a
person would have an automatic disadvantage compared to others whose parents
attended the institution.

Sheldon E. Steinbach, a partner in the postsecondary education practice at
Dow Lohnes, a Washington law firm, said he found the arguments being made
against legacy preferences "novel," but suggested that they were not likely
to sway judges. Where such arguments may have force, he said, is with public
opinion.

"Any preferences can run against the grain of American society," he said,
and be "socially divisive." And so colleges don't benefit from people
raising the issue with new approaches to killing off the preferences. "I'm
sure every school that grants some kind of legacy preference," he said,
"would just as soon not have to discuss it publicly."

— Scott Jaschik