Legacy Preferences at State Universities

Here’s a question that I want to pose. There’s a pretty good argument that can be made against the constitutionality of legacy (i.e., children of alumni) admission preferences at state universities.  My friend Carlton Larson wrote a great article about this years ago.  Why, then, don’t we see any litigation challenging these preferences?

I guess the answer is that some people must feel that a successful challenge to these preferences would undermine the use of racial preferences in admissions.  I’m not sure that’s true–I think they can be distinguished. Moreover, ending legacy preferences might improve diversity, though one would need data on how legacy preferences work to know that. Are there any other explanations?

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18 Responses

  1. Orin Kerr says:

    I think legacy preference in university admissions are outrageous, but it hasn’t occurred to me that there is a non-frivolous argument that they are unconstitutional.

    Gerard doesn’t describe Larson’s argument, beyond characterizing it as “pretty good,” so I looked it up. Larson argues that the Nobility Clauses amount to a sort of shadow equal protection clause that prohibit legal inequality. Because the Nobility clauses prohibit inequality, and legacy preferences further inequality, they are unconstitutional. From the article:

    This Article argues that the prohibition on hereditary privilege under the Nobility Clauses should form an essential component of constitutional
    analysis. Such a view is anchored in the bedrock principle for which eighteenth-century Americans fought and died—the equality of all citizens
    before the law. As this Article will explain, revolutionary Americans repeatedly and consistently denounced hereditary privileges of all forms, and they viewed the Nobility Clauses as performing a vital role in their elimination.

    In light of this revolutionary heritage and the Constitution’s square prohibition of hereditary privileges through the Nobility Clauses, legacy
    preferences in public university admissions fail miserably. Indeed, so unusual are these preferences that it is hard to think of analogous situations in which access to state institutions is conditioned in part on the status of one’s ancestors. The closest analogues, in fact, are the notorious grandfather clauses created in the American South to evade the Fifteenth Amendment. Like grandfather clauses, legacy preferences entrench privilege based upon a time in which a particular group’s ancestors held almost all the power. What should be surprising is not that legacy admissions are unconstitutional, but that they have remained in place for so long without challenge.

  2. Gerard Magliocca says:

    I guess my way of putting it would be that legacy preferences are the only circumstance I can think of where someone gets a benefit from the state based on nothing other than who his or parent is. (If the legacy preference is restricted to parents.) Does that meet the rational basis standard? I can see ways of saying yes, but they are far from easy.

    • Brett Bellmore says:

      The most obvious explanation for why you’re not seeing this litigation, is that everybody who might undertake it stands to have their children benefit from the practice. It’s like asking why members of Congress don’t pass laws reducing the advantages of incumbents. Why would they? They’re the beneficiaries!

      Anyway, that “rational” in “rational basis” is a bit deceptive; It’s really more like “not gibbering insanity” basis, in practice. The basis isn’t actually required to be rational or factually based.

      • dht says:

        I would think that anyone put on a waiting list, or otherwise denied admission because someone with (arguably) worse credentials was admitted would have standing. So if one is an honor roll student from a good high school, but is denied admission in order to make room for a B-C student whose parent(s) attended the school would certainly have an interest is suing. I am not sure why this has not happened more frequently.

    • Joe says:

      ” someone gets a benefit from the state based on nothing other than who his or parent is”

      Not sure about the contours of “benefit” since family law, including wills, seems to favor children in various cases based on parentage. Also, if we rest on the Nobility Clause, not sure rational basis is good enough.

  3. Orin Kerr says:

    What about the actual bases for the preference, that it helps fund raising and builds community? I am not at all persuaded by these arguments, but I don’t see why these wouldn’t be a rational basis under that test.

  4. Gerard says:

    My daughter is home sick with me today, but I will try to respond tonight.

  5. Joe says:

    The Nobility Clause argument probably to many seems like a joker but unlike obtaining a law license on merit being a violation, here we are getting to a core concern of the clause — special benefits obtained from the state based on parentage. This would differentiate from various other preferences. There is some overall connection but some benefit arising from some personal characteristic is still not the same as a benefit from parentage alone. An overall class of persons are involved here, not a single family with an added class aspect.

    There shouldn’t be a problem to find someone to at least make the claim — the suggestion is made that people might have children who will benefit. This is a tad silly — you mean no one, including simply on principle, will join a lawsuit because twenty or more years later they might have children who benefit from legacy admissions?

    As to “rational,” in practice, actually that has bite. Particularly when a compelling interest test has to be met. It simply is that so many things at least have a rational basis. The question is if it violates another constitutional rule.

    The Nobility Clause would be such a rule. The clause again however isn’t really taken too seriously — it is seen as a narrow thing involving something more directly like being a lord or something. And, there is the self-interest of power families. There is also the idea that family members provide a connection to the past and also fiscal benefits to the university. In a vacuum, this is reasonable, but if a greater constitutional rule is in place, questionable that it is enough.

    • Brett Bellmore says:

      “you mean no one, including simply on principle, will join a lawsuit because twenty or more years later they might have children who benefit from legacy admissions?”

      No, I mean that the lawyers they’d need to file the lawsuit would have such a conflict.

      • Joe says:

        Same deal. Out of all of the lawyers, and it’s quite possible to have the lawyer do it for his or her child, it is silly to think not a one will not have that concern. For instance, what of lawyers with no children? Or, whose children are grown? Or, whose children are not likely to go to college or will go in by non-legacy admission? etc.

        • Brett Bellmore says:

          OTOH, the universe is finite, and discrete. Which has the consequence that simply lowering the probability of an event is sufficient to keep it from happening *at all*.

          Add the fact that it’s a weak case to begin with, and the self-interest of most lawyers could be decisive.

  6. Gerard Magliocca says:

    Professor Larson will post here tomorrow to give his take.

  7. Sam says:

    To return to answering the question asked, here are a few:

    1) most people aren’t lawyers. Aside from not thinking/bothering to sue when denied admission, the Nobilitiy Claude is not likely foremost in the minds of those that do.

    2) proof of causation/standing problems. How do we know the claimant would be admitted w/o preferences, and that legacies wouldn’t?

    3) as alluded to in 1), why bother? If you’ve been denied admission, your time is likely best spent trying to get in somewhere or focusing on doing well where you did.

    • Joe says:

      There are enough affirmative action lawsuits to suggest #2 and #3 are sometimes met (if relatively rarely — see the new post) so there is #1. But, it’s a big country & people make longshot claims. Figure there would be a few challenges. Finally, the article cited shows you can find a lawyer to help your longshot claim in most cases.

  8. Curmudgeonly Ex-Clerk says:

    I cannot fathom this nobility clause argument. Legacies aren’t granted spots based on blood affinity or parentage; it’s based on the status of their parents as alums and on the basis of the financial or political benefits those alums can confer on the institution. It may be unseemly, but it has nothing to do with titles of nobility. And frankly it cuts both ways; my undergrad alma mater could afford to be generous with scholarship money with poorer students like me in part because of the largesse pumped into it by families who attended generation after generation.

  9. Joe says:

    The last comment can’t understand an argument where something “based on the status of their parents” meets the terms of something where “parentage” getting special benefits is a problem. The fact that the state offers a reason for granting a title of nobility doesn’t solve the problem, so that part of the response doesn’t help me too much. Titles of nobility were repeatedly given in response to people who gave money to the king or something to promote public good in some fashion. I’m left with the fact that parentage alone isn’t the test — it is that they are “alums” of the institution. But, specific alums are getting special benefits. The parents.

    At the very least, it is unclear why the argument seems so ridiculous. At least part of the problem is there, even if it isn’t the whole way.

  10. Paul Horwitz says:

    I think Orin and Brett’s first comments are sufficient to answer your question. But I would like to suggest, maybe mistakenly, that there seems to be an assumption that the reluctance to undermine AA policies by challenging legacy admissions is other-regarding or, if not altruistic, then moved by a sense of justice. As Derrick Bell, Adolph Reed, about a million other legal and non-legal writers, and basic class analysis would suggest, the reluctance to challenge either can be seen, at least for affluent, college-educated white members of my class cohort who might have the will and resources to pursue such actions, as self-regarding and self-interested in both cases.

  11. pauline cameron says:

    There are so many issues to discuss before the whole society to live in peace. This seemingly very small detail can cause severe problems for new students during the admission time. If they are overruled by someone who is preferred more, they will lose faith in the system and won’t see any sense in learning at university altogether. Luckily, online is the only place where everyone has a preference because you have some here to learn. I think that information resource should be available for all of the students regardless of their origin.