Legacy admissions face challenge after affirmative action ban

As US higher education confronts the Supreme Court’s rejection of race-based preferences in admissions, a coalition of advocacy groups is planning to test the seriousness of the top court’s suggestion that equity campaigners instead fight legacy admissions.

Several Massachusetts-based groups have filed a civil rights complaint with the US Department of Education asserting that Harvard University – arguably the biggest and most prominent user of legacy preferences – is clearly violating federal law through its admissions favouritism for relatives of donors and alumni.

Such preferences “systematically disadvantage students of colour”, the groups told the department’s Office for Civil Rights.

They directly quoted the Supreme Court ruling late last month overturning the court’s previous approvals of racial preferences in admissions, in which the new conservative majority of justices said “a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter”.

A fundamental challenge for the civil rights complaint, however, according to education experts at the global law firm Reed Smith, involves finding and hewing to the ambiguous line sketched out by the Supreme Court for permitting any policy actions that can be shown to have any race-based effects.

On the one hand, said higher education lawyer Cori Smith, the Supreme Court’s conservative majority clearly welcomed the possibility of college applicants revealing their racial identity by discussing in the admissions process how race had affected their lives. Yet on the other hand, she continued, the court talked of admissions being a zero-sum game, in which a benefit for members of one race could impermissibly harm members of another.

In fact, Ms Smith said, the line of argument in the civil rights case might even bolster the likely partisan challenges to other indirect strategies – such as regional recruitment efforts or considerations of socio-economic status – that US universities might rely on more heavily now in efforts to create racially balanced classes.

Other possible hurdles for the complaint – brought on behalf of the Chica Project, African Community Economic Development of New England, and the Greater Boston Latino Network – include the fact that some minority-serving institutions might not want it. Ruth Simmons – the first black president of an Ivy League institution, and later the head of a historically black institution – has already said that legacy preferences are an important part of the fundraising and recruitment strategy for minority-serving campuses.

The issue also might have limited political potency. Admissions preference already is a topic that involves only the small share of US higher education with enough student demand to engage in selective admissions, and those institutions that still retain legacy allotments represent an even smaller slice.

Harvard, from that perspective, is a highly unusual case. It has the world’s largest higher education endowment and feeds it, according to the civil rights complaint, through a system in which donor-related applicants are nearly seven times more likely than others to win admission, and family relations of alumni are nearly six times more likely.

The conservative majority on the US Supreme Court – both in oral arguments last November and in their written ruling – repeatedly chided Harvard for pleading for the right to make race-based decisions in admissions as a tool for equity without first abandoning those legacy preferences.

“We fully expect a favourable outcome,” said Iván Espinoza-Madrigal, executive director of the Boston-based group organising the new effort, Lawyers for Civil Rights, “to end not just donor and legacy preferences at Harvard, but also at other colleges and universities across the country.”

paul.basken@timeshighereducation.com