TCS Daily

Mixing Apples and Oranges

By Pejman Yousefzadeh - February 24, 2003 12:00 AM

Editor's note: For another take on legacy admissions, "Harvard via eBay", click here.

With the Supreme Court's decision to hear a lawsuit against the University of Michigan School of Law's policy of race-based admissions, and with the Bush administration's decision to file an amicus brief that generally opposes that policy, another admissions' policy frequently used by colleges and universities - legacy admissions - has come under attack.

A legacy applicant to a college or university is someone who had relatives who went to that particular university as well - mostly parents, but sometimes brothers and sisters as well as other close relatives.

Many supporters of race-based admissions are using the issue of legacy admissions to set up an acid test for those who oppose race-based admissions.

The issue of such legacy admissions has become considered so germane by supporters of Michigan's race-based admissions policy that North Carolina Senator and Democratic presidential candidate John Edwards has even put forth a proposal that would do away with legacy admissions at colleges and universities.

Let's concede that there may indeed be aspects of legacy admissions that require amendment and change in the present day and age. And let's concede that in a true meritocracy legacy admissions would no longer be afforded any special status at colleges and universities.

Still, it would be misleading and misguided to raise the issue of legacy admissions as equivalent to the debate surrounding race-based admissions. The reason this is so can be demonstrated by the legal standards that would apply to the two admissions standards. For considered as a matter of current constitutional law and as a matter of public policy, there is a world of difference between race-based admissions and legacy admissions.

Beyond Bakke

Thus far, the seminal case for the issue of race-based admissions to institutions of higher learning is University of California Regents v. Bakke.

Bakke was a white male who applied to, and was rejected by the medical program at the University of California-Davis, which had a special admissions procedure that was designed to increase the representation of what the university called "disadvantaged" students.

The late Justice Lewis Powell's ruling in Bakke stated that, pursuant to the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, people who are discriminated against based on race are considered a "suspect class." Rejecting an argument from the Regents that the suspect classification does not apply to white males such as Bakke, Justice Powell stated that "[t]his rationale... has never been invoked in our decisions as a prerequisite to subjecting racial or ethnic distinctions to strict scrutiny ... Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination." (Emphasis mine.)

Assuming that the constitutional prerequisite is met of finding that a state actor is involved in the discriminating (and as a public institution, the University of Michigan School of Law is clearly a state actor), the state then has to shoulder the burden of meeting what is called the "strict scrutiny" standard. It must show that the proposed discrimination is "necessary to further a compelling state interest."

In other words, the state must defend its discrimination in a court of law by showing that the proposed discrimination is a necessary and required step to satisfy a policy or goal of the state that is of the highest constitutional magnitude and importance.

By contrast, those who might be discriminated against based on a policy that embraces legacy admissions are not considered a suspect class under the Equal Protection Clause of the Fourteenth Amendment. As such, in any case that they may bring to court seeking to overturn a legacy admissions policy as being unconstitutional, a different constitutional test will be applied. This test is called the "rational basis test." Under the rational basis test, the discriminated-against party must show that the proposed discrimination has no rational relationship to a legitimate government interest.

What of Persian Jews?

You need not be a lawyer to realize which test is more onerous for plaintiffs claiming discrimination. My own ethnic background is Persian and Jewish. If I had applied to the University of Michigan School of Law and was denied a place in the first-year class due to a race-based admissions scheme that affords no special consideration to Persian Jews, I could place the burden on the law school to demonstrate to the court that hears the case that its policy is necessary, to further a compelling state interest.

Thus, under a scenario in which I am afforded no additional positive consideration for my Persian Jewish background, the University of Michigan Law School, as the state actor in question, would have to overcome a higher and more stringent legal hurdle in order to demonstrate the constitutionality of its race-based admissions program.

The law school would have to demonstrate that the primacy of its interest outweighs my interest in not being discriminated against ethnically, and that it took the minimal actions necessary to satisfy its interests and goals (remember, the actions of the law school, as a state actor, must be necessary to further a compelling state interest. Merely being helpful towards the fulfillment of a state interest is not enough -- only actions that are necessary to further a compelling state interest can be considered indispensable to the fulfillment of that interest, and thus constitutionally permissible).

On the other hand, suppose we can show that I lost out on gaining admission to the University of Michigan School of Law because of the school's policy of affording legacy applicants additional positive consideration in their applications. If I brought a case to court arguing that legacy admissions are unconstitutional, it would be my burden to show that Michigan's policy is not even rationally related to further a legitimate state interest.

Arguing that a policy is not rationally related to an interest is much more difficult than showing that the policy is not necessary to further that interest, since a rational relationship can be more tangential and more removed than a necessary/ relationship.

And it would be fairly easy for Michigan to dispute and refute my argument. Why? Well, ask the question: Why are colleges and universities attracted to legacy applicants? The answer: Because their families serve as a consistent source of funding for collegiate and university endowments.

In an era of rising tuition costs and shrinking endowments for many institutions of higher learning, the families of legacy applicants have become an increasingly crucial monetary lifeline for colleges and universities. Colleges and universities thus make it a habit to cultivate good relationships with legacy families, and often make appeals to those families for alumni donations to the endowment of their alma mater.

All the university would have to do is to argue that legacy admissions are an excellent way for schools to keep up their endowments in these financially troubled times; that without the additional support given to collegiate and university endowments by legacy families, a school may be forced to either (a) cut back on admissions, (b) cut back on services, or (c) increase already heavy tuition costs to make up for the revenue shortfall.

The university thus could claim it surely possesses at least a legitimate interest in ensuring that it will not have to take any of these draconian steps to remain financially solvent, and legacy admissions are a rational way for a university to preserve its financial health.

Again, the university's policies in this scenario need not be indispensable and necessary prerequisites. All they have to be is rationally related - a relationship that is very easy to show constitutionally.

This does not mean that the policy of legacy admissions is more defensible than the policy of race-based admissions. It is surely an argumentative fallacy to claim that one particular policy is well founded merely because another policy looks bad comparatively.

And as I mentioned earlier, those who wish for admissions practices in colleges and universities to resemble a true meritocracy will find the concept of legacy admissions as inconsistent with that goal.

After all, if one wants a truly merit-based admissions policy, one will demand that a university only consider an applicant's grades, SAT and ACT scores, the level of difficulty and challenge afforded by the applicant's curriculum of study, and extracurricular activities that may have a bearing on the applicant's intellectual and personal qualifications for higher learning.

The fact that an applicant's parents or close relatives attended a university to which the applicant seeks admission will have - and should have - absolutely no bearing whatsoever in a truly merit-based admissions system.

These points certainly need to be considered in any debate over the desirability of legacy admissions policies at institutions of higher learning. But the financial benefits to a university's endowment brought by the continued cultivation of good relations with legacy families, and the deleterious potential consequences that may result in the absence of assistance from legacy families should be considered in such a debate as well.

And if they do in fact provide such financial benefit, then as a practical matter, they are making it possible for more disadvantaged students - including academically qualified minorities who otherwise couldn't afford to attend - to receive degrees at many top-ranked universities. In short, an unintended consequence of eliminating legacy admissions and the endowments that they generate could be fewer disadvantaged and minority students being able to attend top schools.

In any event, it must be remembered that there is no constitutional comparison between race-based academic admissions, on the one hand, and legacy admissions on the other. The former have a much more difficult constitutional burden to overcome before they can be considered legally sanctionable - a fact which courts and policymakers would do well to remember as they struggle over resolution of these issues.

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