Complaint Challenging Legacy Admissions Faces Legal Problems

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Complaint Challenging Legacy Admissions Faces Legal Problems; Those Lacking Parental Links to Harvard Are Not a Protected Class

Ban On Racial Preferences In Admissions

WASHINGTON, D.C. (July 7, 2023) – In response to and relying upon the Supreme Court’s ruling that universities can no longer consider race as a factor in admission decisions, several organizations have filed a complaint with the federal Office For Civil Rights seeking a similar ban on giving preference to legacy applicants; e.g., applicants with a parent who graduated from Harvard.

Although it uses many of the same sound bites which were used to support the successful public opinion fight against Harvard’s race bias in admissions – e.g., the need for fairness, eliminating unreasonable preferences, creating a level playing field, a color-blind admissions policy – there are important differences between the legal actions which could defeat this new effort, says public interest law professor John Banzhaf, who has won over 100 legal actions against illegal discrimination.

These differences, and problems for the legacy complaint, include the very limited protections offered by the Constitution, the words of the civil rights statute under which the complaint was filed, a Supreme Court decision and several more recent ones in lower courts, and even common sense, says the activist law professor.

The plaintiffs in the Supreme Court case were able to successfully challenge any considerations of race in the admissions process because the Constitution expressly prohibits any use of race by state schools except under highly unusual and limited circumstances. However, the Constitution offers no similar protection against discrimination based upon legacy status.

In other words, children whose parents did not go to a university are not a protected class, as White and Asian children were in the successful lawsuit challenging Harvard’s preferences based upon race.

To illustrate this important difference, if a university decided to give preference in admission to applicants who played a musical instrument, or were proficient at chess, this would not be unconstitutional because people who are not proficient in music and/or at chess are not a protected class; i.e., they are not protected against discrimination based on these factors which are not even mentioned in the Constitution.

The Complaint Against Legacy Admissions

The complaint against legacy admissions is brought under Title VI of the Civil Rights Act of 1964 which states: “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.”

But of course no person is being discriminated against “on the ground of race, color, or national origin” since there are legacy applicants of all races, and there are many more applicants – successful or otherwise – also of all races. Indeed, those making admission decisions need only be told that the applicant is “a legacy,” without any mention of race, color, or national origin.

In other words, the discrimination is based upon parentage, not pigment.

In 1947 the Supreme Court rejected, in Kotch v. Board of River Port Pilot Comm’s, a claim that a practice which rewards only the children of prior recipients of a valued position violated the Constitution; here, children of local pilots licensed to guide vessels in harbors. In rejecting the argument that a legal preference – indeed, apparently almost a requirement of such parentage – was unconstitutional, the Supreme Court observed:

“A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the Fourteenth Amendment. Otherwise, effective regulation in the public interest could not be provided, however essential that regulation might be. . . .

This selective application of a regulation is discrimination in the broad sense, but it may or may not deny equal protection of the laws. Clearly, it might offend that constitutional safeguard if it rested on grounds wholly irrelevant to achievement of the regulation’s objectives. 

An example would be a law applied to deny a person a right to earn a living or hold any job because of hostility to his particular race, religion, beliefs, or because of any other reason having no rational relation to the regulated activities.”

That ruling has been cited and relied upon in many subsequent cases, including Parker v. Roth in which the court held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. It held that the constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective.

Then, only two years ago, in Bratcher v. State Farm Fire, the court said “as a general rule, a law is not violative of the Fourteenth Amendment, despite the existence of discrimination in the technical or broad sense, where the law at issue maintains some rational connection with a legitimate state interest.”

In the situation of legacy admissions, there are several legitimate interests in giving preference in admission to students who have a parent who attended the university:

  • The parent alumni are more likely to contribute, and to contribute far more generously to support the university’s education mission, if their children are given some preference in admission
  • Many studies show that students whose parents obtained a college degree more easily adjust, and do better especially without additional assistance, than those who are the first in their family to attend
  • Graduates of a particular university are in a better position to help incoming students prepare for the practices, customs, traditions, etc. of the school which they themselves attended

The Protections Afforded By Title VI

The three complainants seek to get around the limiting language of the protections afforded by Title VI by relying upon regulations which do not have have the force and effect of statutes and their express language. They argue:

“In light of Title VI, the Department of Education has promulgated regulations that prohibit policies that have a disparate impact on people of color, regardless of whether those policies are intentionally discriminatory. 

In other words, the Department’s regulations prohibit a recipient of federal funds from ‘utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.’”

But, notes Banzhaf, many decisions by university administrators, even in the absence of any discriminatory or other wrongful intent, can have “a disparate impact on people of color.” Indeed, in Harvard’s situation, it’s difficult to argue that Harvard adopted legacy admission policies to discriminate against students of color because it adopted and then fought so hard to retain programs to accord them racial preferences in admission.

For example, in deciding to have and maintain a very generously supported (male) NCAA football team, any university’s (including Harvard’s) preferential admission of team members, and especially the award of lucrative scholarships to them, may well have a adverse disparate impact on “people of color” such as Asians, and perhaps even Whites.

Few would argue that a university’s success on the gridiron is directly related or necessary to a university’s goals of educating its students – i.e., there’s probably no rationale basis – especially since a nearby university such as MIT, which is comparable in educational quality, has no such team.

Indeed, if MIT did decide to establish such a football team and recruit student players for it, this policy might also have a disparate impact on races such as Asians, and perhaps even Whites, since, as the Supreme Court noted, university admissions is a zero sum game.

Similarly, if a university suddenly decided to have a major program and department of Chinese studies, and decided quite logically to give preference in admission to students who spoke Mandarin, this likewise would almost certainly adversely affect Black applicants. Since, at the Supreme Court noted, university admissions is a zero sum game, this would have “a disparate impact on people of color.” But it likewise almost certainly would not be illegal.

So while the words of both the Constitution and of Title VI do not appear to support the complainants’ position, case law has often rejected it, and common sense would seem to undercut it, it is quite possible that Harvard and other universities might be required by public pressure for fairness, and to help boost the percentage of Blacks and Hispanics anticipated to shrink as a result of the decision banning racial preferences, to eliminate or at least to sharply restrict its current legacy admissions policy.