The Virginia state legislature has passed a bill that bans public universities from giving preference to legacy students and donors’ relatives in admissions. The bill will become law, because it passed by a veto-proof margin, and Governor Glenn Youngkin has not expressed any opposition to it. Last year, the State of Colorado also banned legacy admissions at state universities.
Under the Virginia legislation, “No public institution of higher education shall provide any manner of preferential treatment in the admissions decision to any student applicant on the basis of such student’s legacy status or such student’s familial relationship to any donor to such institution.”
Last month, both the House of Delegates and state Senate unanimously passed the bill.
The bill defines “legacy status” as “the familial relationship of an individual applying for admission to an institution of higher education to an alumnus of such institution.”
Democratic State Sen. Schuyler VanValkenburg, who sponsored the bill, cited the Supreme Court’s decision striking down affirmative-action policies at Harvard and the University of North Carolina as the impetus for his bill.
“It’s about fairness. It’s about higher ed being available to everybody,” VanValkenburg said. Virginia Tech, the second largest university in the state, said in July that it would not longer consider legacy status as a factor in admissions.
In August, the University of Virginia removed a check box that asked applicants if they were legacy candidates.
The College of William & Mary, the second most prestigious state college, currently still considers legacy status in admissions, but will stop doing so when the legislation goes into effect.
Legacy status does not play a significant role in admissions the way race does. Some view the issue as a distraction.
“The issue of Legacy Admissions is a red herring — a diversion to distract from the far more serious pathologies afflicting American Higher Education – especially cost, content, and conformity,” said Teresa Manning, president of the Virginia chapter of the National Association of Scholars. “Far and away the most serious and urgent problem that policy makers must address is the pathetic politicization of course content and administrators on campus, whether called ‘DIE,’ ‘CRT,’ ‘anti-racism,’ or some other trendy moniker,” she says.
Manning views the bill as “a way of changing the subject,” saying that “These cases are not nearly as numerous as admissions based on race (racial preferences), ideology and even illegal immigration status.”
Gender also plays a role in admissions. The College of William and Mary, for example, gives boys a preference in admissions over girls, because it gets so many more female applicants with excellent grades than male applicants. This seems illegal under court rulings like Johnson v. University of Georgia.
Black and Hispanic groups have filed a complaint with the Department of Education 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 against 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.’”
A lawsuit has also been filed against Harvard University over its legacy preferences, which will fail, because lawsuits under Title VI — unlike administration complaints — have to show “intentional discrimination,” according to the Supreme Court’s decision in Alexander v. Sandoval (2001).
