More on Legacy Preferences

My most recent post on legacy preferences at state universities referred to an article by Professor Carlton Larson that argued that these admission preferences are unlawful. I asked in my post why we see no litigation challenging these preferences.  Below is Professor Larson’s response, which I am posting on his behalf:

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Thanks to Gerard for the reference to my article on legacy preferences.  He raises a great question – why, nearly ten years after publication, haven’t litigants and courts rushed to embrace my theory?  (A question that most law professors have about nearly all of their law review articles.)

In addition to my Titles of Nobility argument, attorney Steve Shadowen has argued that the original understanding of the Fourteenth Amendment is inconsistent with legacy preferences by state universities.

When our papers came out around the same time, both Steve and I were interested in finding litigants willing to push our theories.  Although we have had a few queries, nothing has panned out.

I think there are several reasons for this.  First, only a handful of public universities are sufficiently selective that admissions preferences are a genuine issue.  Moreover, of those, only a few employ legacy preferences.  So the universe of potential defendants is small, at least when compared to the affirmative action context.

Second, even challengers to affirmative action programs have trouble finding good litigants.  An ideal plaintiff would be someone who would have gotten in, but for the legacy preference.  Granted, the Supreme Court in affirmative action cases has been exceptionally generous in finding standing for challengers, but a challenger who can show real concrete harm is ideal.  That applicant, however, is likely to have gotten in somewhere else, where he or she is probably perfectly content.  So these cases are unlikely to be generated by individual litigants seeking out a lawyer.

To really push these cases, then, one needs significant institutional players who are willing to hunt up litigants in the same manner that anti-affirmative action groups have done.  So far, there has been no player or political movement willing to do so.

 

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6 Responses

  1. Paul Horwitz says:

    I am sure I’m not the only reader of the previous post who is grateful to Prof. Carlton for weighing in. But it seems to me that the last paragraph ends up just recapitulating the “why” question that motivated Gerard. I would add that on my reading, everything in this (interesting, informative) post is consistent with the answers offered by the commenters on the earlier post: that there is not enough conviction that these arguments are legally persuasive, and that many people, including affluent progressives, have no particular enthusiasm about eliminating one of their prerogatives (especially prerogatives involving their children).

  2. Paul Horwitz says:

    My apologies: Professor Larson.

  3. Orin Kerr says:

    Echoing Paul, I would think that the first reason challenges haven’t been brought is that there is no shared sense that a plausible argument exists that legacy preferences are unconstitutional.

  4. Gerard Magliocca says:

    Orin,

    You could, though, imagine litigation being brought to highlight the inequities of legacy preferences, even if you thought that the chances the constitutional claim would prevail are low. I, for one, think that the argument against their constitutionality is plausible, though I agree that a court would be unlikely to agree.

    • Curmudgeonly Ex-Clerk says:

      I’d venture that there also is less of a shared sense that legacy preferences are inequitable than is commonly thought. Their unfairness tends to assumed rather vigorously argued.

  5. Joe says:

    Interesting article. I think the reason it isn’t being raised is largely because the argument seems out there. Like making a Third Amendment argument. Racial preferences raises a familiar concern. Other things like gun rights had a strong support base. It still seems like it would pop up — there are singular claims all over the place, even there (e.g., claims dog licenses break the clause). Why not a few oddball claims here?

    It addressed a question I had — how do you differentiate benefits such as rules for intestacy. But, the rules set forth to me seemed a bit confusing. My rough line would be special hereditary privileges, not certain broad privileges that arise from parentage. They might be improper, but that is more of an equal protection argument.

    A title of “nobility” isn’t merely an equal protection bar that says that if every son or daughter get a benefit, it is a problem. It appears to reference a favored few. A “nobility.” This would include a few that are a part of a certain class, such as admissions to a college. The article provides examples of a few historical cases where the overall concern of the clause arose. It seems reasonable to apply here.