As the Supreme Court’s term comes to a close — a term that, as Melissa Murray outlines in this week’s Note From Melissa, delivered conservative victories on guns, abortion, school prayer, and the environment — Court watchers are beginning to look ahead to next term. One of the major issues on the docket: affirmative action in college admissions.
There has been no shortage of predictions and analysis about whether the cases before the Court, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC, will spell the end of affirmative action. The overwhelming consensus, particularly after the Court’s unapologetically precedent-smashing recent term, is that they will.
Columbia University President Lee Bollinger, who is a named defendant in two of the Court’s decisions upholding the constitutionality of affirmative action, told Preet in a February episode of Stay Tuned that the impact of such a ruling would be disastrous for racial diversity on college campuses. “The presence of African Americans will fall precipitously just as has happened in California, at the University of California at Berkeley. And that will be a real tragedy in my view,” Bollinger said. “That’s the upshot.”
But an article this week by the New York Times’ Stephanie Saul highlighted another potential upshot of getting rid of affirmative action: the outlawing of legacy admissions. That’s because, in a world where admissions officers cannot take race into account, the practice of explicitly favoring the children of alumni — who tend to be white and higher-income — would be even harder to justify.
Opponents of affirmative action have long pointed out the oddity of preserving legacy admissions while simultaneously advocating for increased diversity. But they’ve also argued that, as a matter of constitutional law, legacy admissions are permissible while race-based affirmative action should be prohibited. In the landmark affirmative action case Grutter v. Bollinger (2003), Justice Clarence Thomas wrote, in a dissent, that the college admissions process is “poisoned” by legacy admissions. But, he wrote, “The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot.”
As a matter of policy, however, conservative groups like Students for Fair Admissions, the petitioner in the affirmative action cases currently before the Court, have used the existence of legacy admissions as a cudgel against affirmative action. And they have found strange bedfellows in progressives who also support getting rid of legacy admissions. In an op-ed published in April, the ACLU’s senior campaign strategist wrote that the practice is “rooted in racism and tantamount to systemic discrimination.” Earlier this year, progressive lawmakers Rep. Jamaal Bowman and Sen. Jeff Merkley introduced a bill that would ban donor and legacy admissions at all colleges and universities that participate in federal student aid programs.
Some elite schools, like Amherst College in Massachusetts, have already done away with the practice. “We want to be a leader among higher education institutions, in policies and programs that support access and equity,” Matthew L. McGann, Amherst’s Dean of Admissions, said when he made the announcement last year.
But other institutions have defended legacy admissions as essential to preserving a sense of community and culture. Martha Pollack, the president of Cornell University, said in a 2018 interview, “We’re trying to create a Cornell family that goes on for generations.” And Christina Paxson, the president of Brown University, told Bloomberg that legacy is just “one among many, many factors” that are considered during the admissions process, and that a “fair fraction” of legacy students are not high-income.
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