First They Came For Affirmative Action. Then They Came For Legacy Admissions. Good Riddance.
If you wanna get weird, let's get wild.
In a decision that should have only surprised the chronically uninformed, the Supreme Court ruled affirmative action for colleges and universities unconstitutional. Except for use in military academies, of course. Affirmative action is a blight on the reputation of students and the constitution at most schools, but key to national security at West Point — go figure. Two responses piqued interest. The first was Harvard’s promise to follow the cases’ outcome to a T that reads much like an up yours to the Supreme Court. The second, also implicating Harvard, is a lawsuit arguing against the constitutionality of legacy admission programs in higher ed. From CNN:
Three minority advocacy groups are suing Harvard University’s governing body, accusing the school of discrimination by giving preferential treatment to children of wealthy donors and alumni, and are citing the recent US Supreme Court ruling that gutted affirmative action to bolster their lawsuit.
Legacy admissions being a preferential program is very obvious. For example, Harvard began admitting (white) students in 1636. It admitted its first Black undergraduate in 1847. As one would expect, giving white students a 211-year head start on access to legacy admissions would be disproportionately beneficial to White folks, and this is before you factor in what looks like Harvard’s less than racially equitable “recruit to reject” scheme that makes it look like they’re doing an amazing job searching for Black talent while still keeping up their hard-t- enter reputation. Back to CNN:
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The lawsuit, filed by the Lawyers for Civil Rights group on behalf of the Chica Project, the African Community Economic Development of New England, and the Greater Boston Latino Network, alleges the students who receive that preferential treatment are “overwhelmingly White,” and make up as much as 15% of admitted students.
“This preferential treatment has nothing to do with an applicant’s merit. Instead, it is an unfair and unearned benefit that is conferred solely based on the family that the applicant is born into,” Lawyers for Civil Rights said in a news release. “This custom, pattern, and practice is exclusionary and discriminatory. It severely disadvantages and harms applicants of color.”
It is true that white applicants aren’t the only ones that benefit from legacy admissions. That said, it’s hard to not think of it as a white program when a whopping 70% of Harvard’s legacy admissions are white. Affirmative action is heavily thought of as a racial program associated with Black applicants and they aren’t even the largest benefactors — that honor goes to white women. And while the reasoning of the Harvard and North Carolina cases was framed as a conflict between unworthy Blacks being admitted instead of more worthy Asian applicants, it is going to be much harder for attorneys to pit minorities against each other a la Ilya Shapiro suggesting Sri Srinivasan over Ketanji Brown Jackson if and when the Court hears the case against legacy admissions. If, through disparate impact or some other line of argument attorneys can prove that legacy admissions are racial by proxy, the Harvard opinion will be ripe with opportunities to run palimpsest argumentation with Roberts’s reasoning in the affirmative action case. For example:
Respondents’ race-based admissions systems also fail to comply with the Equal Protection Clause’s twin commands that race may never be used as a “negative” and that it may not operate as a stereotype…College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.
It is difficult to read the zero sum claim and not see glaring similarities with legacy admissions. From ABC News:
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A 2019 National Bureau of Economic Research study of publicly released reports from Harvard University found that almost half of the university’s white students were recruited athletes, related to alumni, children of faculty and staff or were “of special importance to the dean of admissions.”
Less than 16% of African American, Asian American and Hispanic students at Harvard fall into these categories, according to the study.
Almost half?! So much for only looking at scholastic merit! Looking at the data, these white students need to be relieved of the burden of legacy admissions for their own sake, what with the demeaning assumptions that necessarily go in to race based selections. Again, from the opinion:
Respondents admissions programs are infirm for a second reason as well: They require stereotyping—the very thing Grutter foreswore. When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.” Miller v. Johnson, 515 U. S. 900, 911–912. Such stereotyping is contrary to the “core purpose” of the Equal Protection Clause. Palmore, 466 U. S., at 432. Pp. 26–29.
You could also apply Roberts’s reasoning against the indefinite character of affirmative action acceptances to legacy admissions. Surely admitting the descendants of prior white attendees lacks a “logical end point” as Grutter requires. Who, if not the Supreme Court, will save these applicants from the shame of knowing that nearly half of Harvard’s white student body is resting on their parents’ (or their parents’ parents’) laurels or extracurricular happenstance?
As the case moves up the court tiers, it will ultimately have to overcome the barrier of four justices voting to accept it. Staunch advocates of the 14th Amendment that they are, I look forward to both Thomas’s and Roberts’s votes to hear the case and their strongly worded opinions on how detrimental legacy admissions are to those poor white students who have never really known if they got in to Harvard on their own merit or because they share a last name with the dining hall.
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Lawsuit Alleges Harvard Gives Preferential Treatment To Legacy Admissions, Who Are ‘Overwhelmingly’ White [CNN]
Legacy College Admissions Under Scrutiny Following SCOTUS Ruling [ABC News]
Earlier: The Affirmative Action Cases Went About As Well As You’d Expect Them To. What Now?
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
