A Reluctant Vote for Legacies

legacy.bmpLegacy preferences have come under increased scrutiny of late, as well they should. Most elite colleges and universities, including all the Ivies, grant legacy preferences, just as they all grant special consideration — and lowered admission standards — for recruited athletes, blacks, Latinos, and Native Americans. They also give huge boosts to the sons and daughters of wealthy donors and potential donors. Yes, it’s true — to some extent you can buy your way into an elite university if your parents are very wealthy. The sons and daughters of celebrities and powerful politicians, along with the offspring of professors and administrators, also come in for special treatment in admissions.
Objections to legacies gained ground with the publication and vigorous promotion of Richard Kahlenberg’s Affirmative Action for the Rich—a collection of essays by knowledgeable lawyers, scholars, and journalists, all of whom are critical of the widespread practice of granting college admissions preferences to the children of alumni and wealthy donors.
Before publication of this book, Kahlenberg, a former law school professor and graduate of both Harvard Law School and Harvard College (at the college he may have received legacy consideration himself as the son of a Harvard College alumnus) was best known for his earlier work, The Remedy, defending “class-based” rather than “race-based” preferences in education and entry-level employment.

Kahlenberg is a self-styled “progressive” but unlike many on the left he has a genuine appreciation for the ideal of meritocratic, color-blind selection processes in education and employment. Boosts or preferences in these areas, he believes, should be focused on the truly needy not the already-advantaged. Several authors in Kahlenberg’s Affirmative Action for the Rich call for the entire elimination of legacy preferences.
The legacy critics would also like to see them prohibited by federal or state legislation, but realize that this is unlikely to occur given the huge political influence of the elite universities and colleges, many of whose alumni occupy powerful positions in state and national legislatures. Kahlenberg, however, holds out some hope on the legislative scene, buoyed curiously enough by the current Tea Party populism and its suspiciousness of elites in the business world and elsewhere who have used artificial and unfair means to acquire great wealth and privilege.
In the “having your cake and eating it too” category, Kahlenberg claims that contrary to the almost universally shared view among college administrators, legacy preferences do not increase the amount of alumni giving. One essay in his book, looking at the 100 top research universities in the U.S. News and World Report rankings, finds only a slight, statistically insignificant difference in alumni giving at institutions that allow legacies
The Legal Challenge
Opponents of legacy preferences, including Kahlenberg, have devised what they believe are creative legal and constitutional challenges to such practices, at least when they are observed by public colleges or universities, or by private institutions receiving government aid (a category that includes almost all private institutions in the U.S.). Their legal challenge goes something like this:
The Civil War amendments to the U.S. Constitution (Amendments 13, 14, and 15), together with the 1866 Civil Rights Act, were intended to assure all people, including poor whites and the freed slaves, that they would be treated without regard to their ancestry, lineage, or previous condition of servitude. They reflected the Lincolnian and Radical Republican ideology of Free Labour, which held that men should be judged by their own merit and achievement, not by their race or ancestry. The concern with abolishing lineage or ancestry distinctions was not only a product of the Civil War era changes, but can be found in the original Constitution itself despite its regrettable compromise with slavery. In its ban on “corruptions of blood” (legal decrees that deprived a person’s descendants of legal entitlements), and its prohibition on the bestowal of titles of nobility, the original Constitution clearly struck out against the idea that anyone should enjoy special privileges — or suffer special burdens — based on ancestry, lineage, or heritage.
Although the actual words “ancestry,” “lineage,” and “heritage” do not appear in the original Constitution, its Amendments, or the 1866 Civil Rights Act, it is clear that distinctions based on such categories were part of what the framers and ratifiers of those legal instruments had in mind when they inserted such phrases and ideals as “the equal protection of the laws.” Legacy preferences in college admissions infringe these basic constitutional values. For this reason, they should be legally challenged and declared by the courts to be violative of the U.S. Constitution in both spirit and letter. They should also be declared violative of the 1866 Civil Rights Act. And since this act, unlike the 14th Amendment’s Equal Protection Clause, applies to private action not just state action, private colleges and universities as well as public ones would come under a court-declared legacy ban.
Defenders of Legacy Preferences Respond
Supporters of legacy preferences are not without their own arsenal of arguments and claims. Their first move is usually to establish all the good things that legacy preferences do, and this entails as a starter disputing the claim that legacy preferences do not enhance an institution’s financial health. Both common sense and the universal opinion of development officers and administrators with the best local knowledge weigh against such a claim, they say. Even legacy critics like Daniel Golden in The Price of Admissions acknowledge that some high-end universities — he singles out Duke — have greatly increased their endowment in recent years by aggressively targeting wealthy alumni and wealthy donors for contributions by extending substantial admissions preferences to their children and relatives. It is ridiculous to believe, preference supporters will argue, that a social scientist, far removed from the actual situation on the ground, can learn more about a particular institution’s best way to raise money than those institutions themselves.
John Lippincott, head of the Council for Advancement and Support of Education, has been particularly outspoken in defending preferences for alumni children. Such preferences, he argues, help to build a sense of community and continuity over the generations for institutions of higher learning, and substantially aid those institutions not only in raising critical funding, but recruiting volunteers to help with the interviewing of prospective students and advertising the merits of the institution to a wider circle of potential applicants.
Lippincott says the amount of money received directly or indirectly from an institution’s alumni base is often much greater than typically estimated because wealthy people often form foundations through which they donate to their alma mater. The money raised this way is generally listed as a foundation grant rather than an alumni gift. Much corporate giving is also alumni-related, Lippincott says, since corporations often direct their educational grants to colleges and universities that have been attended by their senior managers. The money received through cultivating alumni relationships, he says, goes to unquestionably good purposes, including increasing scholarship aid for needy students, hiring more and better teachers, and building up an institution’s endowment.
Some supporters of racial preferences in higher education have made a more curious argument on behalf of retaining legacy preferences. If such preferences are successfully challenged, they say, it will suggest that admission to competitive colleges and universities should be primarily based on academic merit. But such a view obviously calls into question the propriety of lowering standards to achieve racial diversity under an institution’s typical affirmative action plan. A major defense of such preferences has always been that since colleges breach the merit-principle when they let in the less qualified offspring of wealthy alumni and wealthy donors, affirmative action preferences for minorities cannot be too objectionable. To end legacy preferences will undermine this important ideological support for affirmative action, they say. University of New Mexico law professor Barbara Bergman, a long-time booster of racial preferences, has specifically raised objections along these lines.
Possible Responses to the Legal Challenge
Since no formal court proceedings to date have been introduced to challenge the constitutionality of legacy preferences, no formal defense has yet been tendered. But it is easy to tell what universities will say. We have a first amendment right to academic freedom, they will contend, echoing Lewis Powell’s declaration in the Bakke case. And that freedom involves our right to establish the kind of student culture we wish, subject only to certain restrictions such as the prohibition of racial discrimination.
Even if the courts are sympathetic to the claim that legacy preferences are akin to titles of nobility — surely a stretch — counsel for the colleges and universities are likely to contend that raising money and enhancing their endowments are “compelling interests” for private institutions dependent on tuition and donor money. It is not clear, they will probably continue, that there is much of a legal or moral difference between a) enrolling only students whose parents can pay the high tuition at a competitive private college (the general practice at many institutions that lack large scholarship funds), and b) giving a special boost to those students who have parents who are likely, because of their wealth and alumni status, not only to pay the high tuition but to add a further cash donation.
And the attorneys for the universities will surely argue that neither the U.S. Constitution and its Amendments, nor the 1866 Civil Rights Act, was ever intended to prohibit private academic institutions from granting special consideration to children of graduates. Indeed, many early colleges, including the precursors to Trinity College and Duke University, were originally financed by donors who intended the colleges to educate their offspring in religious values. No legislative history suggests the anti-legacy interpretation of the legal texts put forth by legacy opponents. Only by stretching, distorting, and gerrymandering the meaning of words in the texts to fit one’s pre-determined policy prescriptions can the legacy opponents reading of the laws make sense. .
Defensible Corruption
Many of us are conflicted on the legacy issue. The case against legacy preferences presented by people like Kahlenberg, Golden, and Peter Sacks tugs at our meritocratic heart strings, but our pragmatic sense pulls in a different direction. There is something unseemly about lowering admissions standards to a highly competitive college because one’s parents attended the college or because you have a billionaire father likely to make a seven-figure donation if you are admitted. In much of the rest of the world the American practice of granting preferences to the children of alumni is seen as indistinguishable from bribery.
But in those same places, colleges and universities are usually state-funded and don’t have to go hat in hand looking for private money. Corrupt as the practice of legacy and wealthy donor preference clearly is, it may be one of those defensible corruptions that should be retained primarily because much good comes out of it and the alternatives, perhaps involving more state funding, are probably worse. As a parallel case I think of the requirement for contemporary radio hosts, including M.D. health advisers, Ph.D. relationship counselors, and even some radio clergy, that they become pitchmen and pitchwomen for the commercial products of their sponsors. It’s a sleazy business, but who would want to see our media environment less dominated by commercial advertisers and more in control of the government, the most common alternative?
Lippincott is almost surely correct in his list of the many benefits that accrue from legacy and donor preferences. And legacy critics, I believe, often grossly overstate legacy harms. This is particularly true in terms of assessing their effects on campus academic standards. The fact is that legacy preferences, as they are practiced in the elite universities today, pose much less of a dumbing-down problem than either athlete preferences or preferences for blacks and Latinos. In a study of three elite private research universities, sociologist Thomas Espenshade and his colleagues found that while being a legacy applicant greatly enhanced one’s chances of admission, legacy applicants averaged slightly higher SAT scores than non-legacy applicants (1350 vs. 1337, on a 1600 point scale). On an all-other-things-equal basis, the legacy-over-non-legacy admissions bonus (160 SAT points) was found to be considerably less than the athlete-over-non-athlete bonus (200 SAT points) and black-over-non-black bonus (230 SAT points). (Asians in the same study experienced a 50 SAT point admissions disadvantage over non-Asians). Moreover, the legacy bonus appears to be concentrated among high-scoring applicants. William Bowen and Derek Bok’s study of three elite schools found that “the ‘advantage’ enjoyed by legacies [over non-legacies] is concentrated at the upper end of the SAT range.”
As almost any teacher who has taught at an Ivy League institution or other top-tier college can attest, it is the recruited athletes and “affirmative action” students who lower the overall intellectual level of the student body. Having been a part-time lecturer in Princeton’s Politics Department for over 20 years, and an academic advisor to incoming freshmen for 10 of those years (where I was required to review in detail the high school records of all incoming advisees), I would estimate that at least three-quarters of those students with the lowest SAT scores and least academically impressive high school records were either 1) recruited athletes (by far the most numerous group), 2) African-Americans (the next most numerous group), or 3) Latinos (by the numbers a distant third).
Legacies, by contrast, were rarely found among the lowest SAT students (which at Princeton would mean those in the 550-600 SAT range compared to a university-wide average in the mid-700s) and were generally much better prepared, and often simply smarter, than the lower end of the athlete and affirmative action cohort. While admissions officers may reach down just as far for the son or daughter of a very wealthy donor (whether an alumnus or not) as they would for a top athletic recruit or “underrepresented minority,” the number of students who benefit from the wealthy donor hook is so small that they do not affect the overall campus intellectual environment. In the minds of most faculty and students whom I have known, academically weak students are almost synonymous with recruited athletes and affirmative action admits — though there is often less willingness to talk publicly about the latter group than the former. Legacy students are usually not viewed through the same stereotyping lens.
Princeton and Harvard in recent years have admitted approximately 40 percent of their legacy applicants – four times the admissions rate for non-legacies, but still much more competitive than even many upper-middle-level colleges and universities. Six in ten legacy applicants are rejected, and many of these rejected legacies are far better prepared than some of the recruited athletes and black students that Harvard and Princeton routinely admit.
So for me, legacy and donor preferences are a tolerable corruption. I know in the case of universities like Duke and Princeton (the two universities from which I hold degrees) they have been of great benefit. For the reasons Lippincott and others give, I cannot support the movement to eliminate them.

Russell K. Nieli

Russell K. Nieli

Russell K. Nieli is a Senior Preceptor in Princeton University's James Madison Program in American Ideals and Institutions, and a Lecturer in Princeton's Politics Department. He is the author of "Wounds That Will Not Heal: Affirmative Action and Our Continuing Racial Divide."

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