Progressive groups have filed a complaint against “legacy admissions” at Harvard University, challenging its practice of considering family ties to donors or alumni when deciding whether to admit students. They argue that legacy preferences have a racially disparate impact on non-white applicants, because white applicants are more likely to be descended from Harvard alumni than non-white applicants.
Racially disparate impact does not violate Title VI of the Civil Rights Act, which only bans “intentional discrimination” based on race, according to the Supreme Court, not “disparate impact.” But the Education Department’s Office for Civil Rights says disparate impact can violate an Education Department regulation designed to implement Title VI (34 CFR § 100.3(b)(2)). Under that regulation, the Office for Civil Rights says that a colorblind policy can be found racially discriminatory even absent any racist intent by a school, if it excludes significantly more minorities than whites, and is not “necessary to meet an important educational goal,” or if “there is a comparably effective alternative policy that would meet the schools’ stated educational goal with less of a burden of adverse impact on the disproportionately affected racial group.” Many people think legacy preferences are not necessary to meet an important educational goal.
This disparate-impact regulation may be invalid, as the Supreme Court hinted in its decision in Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001). The Supreme Court ruled in that case that Title VI only bans “intentional discrimination,” not disparate impact, and it called the government’s defense of federal Title VI disparate regulations “strange” in footnote 6 of its ruling. As the Supreme Court explained, “We cannot help observing, however, how strange it is to say that disparate-impact regulations” are valid applications of Title VI, when Title VI “permits the very behavior that the regulations forbid…..’If, as five Members of the Court concluded in Bakke, the purpose of Title VI is to proscribe only purposeful discrimination … , regulations that would proscribe conduct by the recipient having only a discriminatory effect … do not simply “further” the purpose of Title VI; they go well beyond that purpose.’”
Ironically, getting rid of legacy preferences may not do a huge amount for blacks, since blacks have been attending Harvard since 1847, and have attended Harvard in significant numbers for over 40 years. Legacy preferences probably reduce the admission rates of Hispanic and Asian applicants more than blacks.
Blacks received the largest racial preferences at Harvard under its admissions policy declared illegal by the Supreme Court on June 29. As the Supreme Court noted, “black applicants” were up to “ten times more likely to be admitted to Harvard than Asian applicants” with similar qualifications. But Hispanics also received racial preferences. As the Supreme Court noted, “in the Harvard admissions process,” “a significant percentage ‘of all admitted African American and Hispanic applicants’” are admitted because of their race.
In a complaint filed with the Education Department’s Office for Civil Rights on July 3, Lawyers for Civil Rights (LCR) called legacy admissions “discriminatory” because they give “a leg-up” to predominantly white applicants tied to wealthy donors and alumni.
The complaint was filed by LCR “on behalf of Chica Project, African Community Economic Development of New England, and the Greater Boston Latino Network.” Their complaint says, “A spot given to a legacy or donor-related applicant is a spot that becomes unavailable to an applicant who meets the admissions criteria based on his or her own merit.” If legacy and donor preferenced were removed, it says, “more students of color would be admitted to Harvard.”
“For the Class of 2019, about 28 percent of the class were legacies with a parent or other relative who went to Harvard,” LCR said in a statement. “Qualified and highly deserving applicants of color are harmed as a result, as admissions slots are given instead to the overwhelmingly white applicants who benefit from Harvard’s legacy and donor preferences.”
Critics of racial preferences have also argued that colleges should get rid of legacy preferences. They have said that failure to get rid of legacy preferences reflects a failure to pursue race-neutral means of seeking a diverse student body that renders any use of race illegal. Even when an institution has a potentially valid reason for using race under Supreme Court precedent — such as remedying its own past discrimination — it cannot use race as a factor, before considering race-neutral alternatives, such as getting rid of red tape that tends to weed out more minorities than whites. Generally, racial classifications are supposed to be used only as a “last resort.” So if legacy preferences weed out more minority applicants than whites, colleges may have to get rid of legacy preferences, before they can even consider using racial preferences. That is part of the “narrow-tailoring” requirement for using race under the “strict scrutiny” that courts apply to racial classifications.
As Justice Gorsuch noted in voting to strike down the race-conscious admissions policies of Harvard and the University of North Carolina in Students for Fair Admissions v. Harvard, “both Harvard and UNC could obtain significant racial diversity without resorting to race-based admissi ons practices. Many other universities across the country, SFFA points out, have sought to do just that by reducing legacy preferences.”
Under the Supreme Court’s June 29 decision in Students for Fair Admissions v. Harvard, colleges generally have no reason to use race at all, because the decision effectively ruled out considering race in admissions to promote racial diversity. But for the few colleges that may still have permissible reasons to use race — like military academies, which the Supreme Court suggested might have additional reasons to use race if they wish to do so — it would be stupid to keep legacy preferences, because failure to get rid of them will render their racial preferences in admissions not “narrowly-tailored,” under the strict scrutiny standard.
