Legacy Preferences Under Fire Again

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Children of alumni have long enjoyed advantages in gaining admission to the most selective private colleges and universities in the United States–a practice rare in other nations and puzzling and unsavory to foreigners. If not as puzzling, legacy admissions are equally unsavory to many Americans, especially those who consider themselves “meritocrats” and those on the political left concerned with what they see as the undeserved privileges of wealth.

The latest entry into the anti-legacy literature is a Salon.com article by journalists Elizabeth Stoker and Matthew Bruenig (“The 1 Percent Ivy League Loophole,” September 9, 2013).  Stoker and Bruenig seem to be committed less to meritocracy than to leftism.  They object to the practice of giving preferences to legacies mainly because of the contribution it makes to intergenerational inequality and the passing on of economic privilege from the very rich to their offspring.  “For those looking to pass power and wealth down,” they complain, “legacy admission practices are a handy tool. … Legacy …is a sort of affirmative action for the wealthy.”

Stoker and Bruenig also attack legacy preferences on legal grounds. Donations to colleges and universities by alumni are tax deductible as charitable contributions, they write, but “they violate the most fundamental rule of charity, namely that it not enrich the giver.”  There is something of an informal quid pro quo, they correctly observe, when alumni give large amounts of money to their alma mater and expect in return that their children will be accepted for admission.  The tax-deductibility of donations under such circumstances, they claim, constitutes a tax subsidy for the rich and is a travesty of charitable giving.

Many Benefits to Givers 

A travesty of charitable giving such may be — and doubly so from a traditional Christian perspective (“When you give alms, sound no trumpet before you as the hypocrites do in the synagogues and in the street that they may be praised by men,” Matthew 6.1-2).  But Stoker and Bruenig fail to realize that many — probably most — large donations to charitable, educational, and scientific organizations in America have a variety of benefits-to-the-giver associated with them. If we were to adopt their legal critique of alumni giving, all of these would be rendered ineligible for favorable tax treatment. Other writers in recent years have come up with different legal and constitutional challenges to legacy preferences that seem to be percolating slowly through quarters of the academic left.  The most important piece of legal scholarship in this vein was a long article in the Santa Clara Law Review [49(2009):51-138] by Penn State law professor Steve Shadown and his colleagues titled “No Distinctions Except Those Which Merit Originates” (subtitled “The Unlawfulness of Legacy Preferences in Public and Private Universities”).   Shadown and his colleagues go over the history of the Constitution’s 14th Amendment and its Equal Protection Clause, as well as the 1866 Civil Rights Act, both of which, they claim, were intended to put an end to privileges or disadvantages based not only on race but on ancestry and lineage as well.

The Two ‘Nobility Clauses’ 

These two legal instruments, they say, embodied the Republican “free labor” ideology of “equality before the law” and merit-based understandings of how people are to get ahead in America.  While the Equal Protection Clause applied only to actions and activities undertaken by government entities — and hence in the education context only to state-run educational institutions — the 1866 law, they contend, outlawed racial and ancestry discrimination on the part of all educational institutions, public or private.  The preferential treatment of alumni children is in clear violation of these Civil War Era measures, they say, and a throwback to feudal times when one’s opportunities in life were artificially constrained by one’s genealogy and parentage.

Other writers have claimed that the two “Nobility Clauses” of the U.S. Constitution (Article I, Section 9, Clause 8; Article I, Section 10, Clause 1), which prohibit both national and state governments from granting “titles of nobility,” clearly imply a prohibition of government sanctioned privileges or restrictions based on one’s ancestry, lineage or parentage.  U.C. Davis law professor Carlton Larson has written the definitive defense of this claim in his 2006 Washington University Law Review article, “Titles of Nobility, Hereditary Privilege, and the Unconstitutionality of Legacy Preferences in Public School Admissions” [84(2006):1375-1440].  In his article Larson says that “although the fear of hereditary government power was a paradigmatic concern of the Nobility Clauses, there is no reason to construe the clauses so narrowly.”  Indeed, seen within their historical context as part of the revolt against English feudal traditions, the Nobility Clauses should be interpreted, Larson says, to prohibit “any form of [hereditary] privilege provided by government.”  A preference for the children of alumni at state institutions is clearly an instance of such government privilege, Larson claims, though because the Nobility Clauses apply only to actions by the state, legacy privileges at private institutions should not come under any constitutional ban, he says.

Most observers find Larson’s expansive readings of the Nobility Clauses to be quite a stretch from their original meaning, and his arguments seem to be persuasive only to those who have a powerful predisposition to accept them on other grounds.  The arguments of Shadown and his co-authors have found more resonance, though they too are subject to the charge that they expand the meaning of legal instruments — in this case laws and constitutional provisions intended to end racial discrimination — well beyond their original purpose or intent.

The more persuasive arguments against legacy preferences seem to be based not on existing legal or constitutional provisions but on simple equity. A 2004 national telephone survey sponsored by the Chronicle of Higher Education found overwhelming opposition to the statement, “applicants to a college whose close relations attended the same college should be given extra consideration for admission.”  Three-quarters of respondents said they either disagreed or strongly disagreed with this statement.  There can be little doubt that legacy preferences violate widely shared American ideals of merit-selection, and for the left they bear the additional burden of benefiting the rich.  It is because of this widespread public disapproval that most colleges and universities employing legacy preferences are reluctant to talk about them or defend them in public debate.  In this, they react much the way they do when the issue of athletic preferences or racial preferences comes up — i.e. they speak in vague, obfuscating generalities, present no data, and hope that there are no further inquiries.  (When the late Senator Ted Kennedy proposed an amendment in 2004 to the Higher Education Act that would require colleges and universities receiving federal money to disclose information about the legacy admissions and preferences of their entering classes, the academic establishment reacted with horror.  Kennedy eventually withdrew his proposal in part because he was told by leading academics that such a disclosure requirement would embolden critics of affirmative action policy to demand similar disclosures of data on racial and ethnic preferences.)

Legacy Supporters Fight Back

When actually confronted by critics, supporters of legacy preferences can  sometimes be coaxed into defending them, and what they say cannot be entirely dismissed even by legacy critics who find them so unseemly.  Legacy supporters generally draw upon two basic arguments.  The first deals with simple finance.  It may be little more than legal bribery, their more candid defenders will admit, but giving preferences to the children or other relatives of alumni, especially wealthy alumni, is a way of greatly enhancing financial contributions to any college or university. In his book The Price of Admission, legacy-preference critic Daniel Golden describes how a number of universities, including most successfully Duke, have greatly enhanced their endowments and operating budgets through actively soliciting donations from wealthy alumni and other wealthy individuals by extending admission preferences to their children and other relatives.  Development officers at colleges and universities uniformly believe that there is a close connection between enhanced giving and the extension of legacy preferences to the offspring of their alumni.  In a careful study of one institution, economists Jonathan Meer and Harvey Rosen found that alumni giving tends to increase as the children of the alumni begin to approach their college years.

It is certainly possible for colleges and universities to raise money from alumni without extending admission preferences to their offspring, but common sense and common experience suggest that at least in some cases legacy preferences can make a big difference in decisions to donate.  Defenders of legacy preferences say that the actual benefit of cultivating alumni loyalty through legacy preferences and other alumni-friendly policies is greatly underestimated by legacy critics and others because wealthy alumni often give money to their alma maters through the private foundations they establish — money which is counted as foundation grants, not alumni contributions, in a college’s official statistics. They also point out that many of the huge corporate contributions to universities are often directed to institutions that were once attended by those companies’ senior executives.  Grateful alumni in high places can be a powerful financial asset.  Turning down a son or daughter who wants to follow in their parent’s footsteps can be a risky proposition for fundraisers especially if the parent is rich and powerful.  As the old Cabaret song has it, “money makes the world go around,” and legacy-preference supporters are quick to point out that the money raised from wealthy alumni is used for unquestionably worthy purposes including greater scholarship aid to poor students.

The second argument for legacy preferences concerns their efficacy in helping to create a vibrant institutional culture and tradition.  Legacy preferences, in addition to helping with finance, help to sustain an ongoing sense of institutional identity and intergenerational continuity, their supporters claim, and this can help further an institution’s sense of collective mission and community spirit.  A school like Notre Dame, which has an entering class of as many as one in four legacy students, is sometimes given as an example of this process: its “Fighting Irish” image and immigrant Catholic heritage are greatly enhanced and renewed each year by the legacy students it admits.  Without such a high proportion of legacies it’s not clear a school like Notre Dame — or many other schools with a distinct ethnic, religious, cultural, or regional history and identity — could sustain their revered traditions.  Or so legacy boosters contend.

Two Modest Proposals 

To this writer, a classical liberal and stalwart meritocrat on the issue of college admissions, the equity arguments of legacy-preference opponents and the “money and traditions” counter-arguments of their academic supporters both carry weight.  Sleazy as legacy and wealthy-donor preferences may be, there is at least a case to be made for them that pulls many of us in conflicting directions.  I won’t try to resolve this conflict but will make two modest suggestions. First, the issue of legacy preferences should be decided by colleges and universities — and insofar as they receive public funding, by elected legislative bodies.  The issue should not be decided by unelected judges invoking novel, strained, and highly contentious expansions in the traditional meaning of constitutional or other legal texts and terms.  We should have learned our lessons on this score from Roe.

My second proposal is a disclosure requirement.  Reviving — and expanding — upon Ted Kennedy’s original idea that institutions receiving state funding be required to publish data on their legacy admits, colleges and universities that receive government money should be required to publish extensive data not only on the standardized test scores, high school GPAs, and acceptance rates of their legacy applicants and admits, but on their other applicants and admits as well, broken down by the current “affirmative action categories” of race, ethnicity, and gender.   There would be nothing more salutary than a stiff dose of transparency and public disclosure in an area that for decades now has been marked by concealment, dissimulation, and outright lies.  As Supreme Court Justice Louis Brandeis famously remarked, “Publicity is justly commended as a remedy for social and industrial diseases.  Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”

Such sunlight and policemen are perhaps what we most need today to straighten out inequities in our current college admissions process.

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."

One thought on “Legacy Preferences Under Fire Again”

  1. Do the development offices of university inform admissions officers of which applicants have parents who are heavy donors? Do admissions officers have databases showing which alumni donated? That should stop, unless the university certifies those donations as non-tax-deductible.

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