Race, Legacy and Affirmative Action

By Gene Nichol

When the United States Supreme Court announced that it will review the Fisher case – challenging the affirmative action program at the University of Texas – it was, for the academy, unwelcome news. The Texas admissions scheme was adopted, with near precision, to mirror the Court’s ruling in Grutter, handed down only nine years ago.

Given changes in high court membership, and the reality that justices have little inclination to simply correct errors of application, most have assumed racial affirmative action is now on the chopping block. Admissions officers across the land rightly warn of a potent resulting segregation. Racial transgression has been the largest sin of American life, from our first day to this. Merely announcing we’re beyond it doesn’t make it so.

But as one who has been around the affirmative action wars for years, I remain baffled by what the decades-long cascade of lawsuits doesn’t challenge.

Over 90% of top American universities, and virtually all liberal arts colleges, employ pervasive and frequently outcome-determinative “legacy” preferences in admission. The children of alumni receive a decided and unembarrassed leg up in the famed battle for scarce entering slots.

Richard Kahlenberg calculates that legacy status offers, on average, a boost equivalent to 160 additional points on the SAT score (on a 1600 point scales). Ivy League schools, for example, admit alumni kids at 2-5 times the rate of other applicants. The scores of legacy admits are significantly lower and their eventual performance is significantly poorer than the rest of the class. Still, universities cling mightily to the practice.

Legacy programs also make racial affirmative action efforts look like small potatoes. Harvard enrolls more alumni children than black, Latino and Native American students combined. Alumni preference radically favors white and wealthy candidates. Before Texas A&M dropped its legacy plan a few years ago, in one season, it benefitted 321 whites, 25 Hispanics and 3 black students. Virginia’s early admission legacies, in one recent year, were 91% white, 1.6% black, and 0.5% Hispanic.

Alumni privilege is hardly a race-neutral principle. Institutions like my own didn’t even admit racial minorities until forced by court order a few decades ago. It’s tough to find multi-generational black, Latino and Native American Tar Heels. Our history is not uniformly congenial.

Besides, it’s hard to think of a more base rejection of egalitarian, merit-based decision-making than legacy preference – admission by bloodline. We don’t know everything about the framers, but we know they didn’t think much of hereditary privilege. American universities operate like dyed-in-the-wool Tories.

Legacy preferences also present no conflict between viable equality interests – balancing individual fairness with the need to remedy past subordination – like racial preferences do. In truth, it’s impossible to justify any admissions program that begins with the question: “Who is your daddy?”.

The fact that the pervasive use of legacy preference has lain unmolested for forty years as we’ve fought like jackals over the intricacies of racial affirmative action says much.

It says much about universities. Having worked for four publics, in varied positions, low and high, I can attest that pushing back against alumni preference is rough sledding. Alumni, unsurprisingly, dominate governing boards. And universities have ample and colorful histories of setting aside principle in the chase for real, or fancied, dollars. But can you imagine explaining to a North Carolina parent that of course his son had an equal right to compete for a place in the state’s flagship university, but, unfortunately, “someone else bought it.”

It says much about the Supreme Court. The Roberts majority seems poised to declare, across an array of fronts, that we’re done with racial remedies. Affirmative action, voting rights, hiring and employment, public school integration – the list is long. Trouble is, in many instances, the baseline from which the court readies to mandate “colorblindness” is so replete with pocketed discrimination and privilege that the newly declared virtue, to understate, rings hollow.

And the differing treatment of legacy and racial preference says much about the enthusiastic advocacy groups that have built an impressive cottage industry, for two generations, suing universities over affirmative action programs. Through decades of open records requests, discovery, depositions and lawsuits, they have learned everything there is to know about college admissions. They understand, chapter and verse, the insidious and equity-impairing nature of massive legacy programs. Yet, here, the commitment to individualized, merit-based determination wanes. No dollars, no energies, no resources are dedicated to this anti-egalitarian outrage.

It’s almost as if they concluded privilege favoring wealthy whites is natural and unobjectionable; while preference favoring racial minorities threatens the republic. That premise seemingly resides at the core of their life’s work. Much modern discrimination, to be sure, is subtle, indirect, systemic, and extraordinarily difficult to unpack. Not this. It’s old school.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law and director of the Center on Poverty, Work and Opportunity at the University of North Carolina and President Emeritus of College of William & Mary.

From The Progressive Populist, October 15, 2012