Preserving a racial hierarchy: a legal analysis of the disparate racial impact of legacy preferences in university admissions.

• Author: Ladewski, Kathryn

Many public and private universities around the country employ legacy admissions preferences in order to give children of alumni special consideration in the admissions process. Such preferences disproportionately benefit white applicants at the cost of their nonwhite counterparts, because past generations of college students were less diverse than today's applicant pool. However, universities argue that their legacy preferences are justified because they assist in alumni fundraising efforts. This Note presents a statistical analysis to argue that legacy preferences are prohibited by the Civil Rights Act of 1964 because they have a discriminatory effect on minority college applicants and have not been shown to promote (and do not promote) any legitimate university purpose.

TABLE OF CONTENTS INTRODUCTION I. THE HISTORY OF LEGACY PREFERENCES II. THE RACIAL IMPACT OF LEGACY PREFERENCES III. STATISTICAL ANALYSIS OF UNIVERSITY FUNDRAISING DATA IV. LEGACY PREFERENCES AND THE CIVIL RIGHTS ACT OF 1964 CONCLUSION APPENDIX INTRODUCTION

"Of all the aspirations that make up the American Dream, perhaps the most important is the opportunity to go to college."

--Sen. Hillary Rodham Clinton, Sen. Tom Carper, and Gov. Tom Vilsack (1)

Social mobility is one of the hallmarks of American society. The American Dream is one in which people of all backgrounds, with hard work and a little bit of luck, can be successful. One component of this "dream" is intergenerational social mobility and the idea that the opportunities of future generations are not limited by the past. (2) Access to higher education is a key component of intergenerational social mobility, and historically it has been one way for vulnerable groups, such as immigrants and minorities, to achieve greater prosperity. (3) Legacy preferences, which give an admissions "boost" to university applicants whose parents or grandparents attended a particular institution, (4) run counter to intergenerational social mobility because they allow the composition of past generations of university students to influence the composition of future generations of students. (5) In addition, legacy preferences disproportionately benefit white university applicants, whose parents are more likely to have attended American universities. (6)

Legacy policies were first implemented in the 1920s as a mechanism for excluding Jewish students and other immigrants from university admission. (7) Since that time, legacy policies have become widespread at public and private universities across the United States. The justification for such legacy policies has changed over time--they are now intended to promote institutional loyalty and increase alumni volunteerism and donation rates, rather than to disadvantage certain groups of applicants. (8) Despite this changing purpose, legacy policies continue to have a negative effect on the admissions prospects of immigrant and minority applicants, whose parents are less likely to have attended college in the United States. (9)

This Note argues that legacy admissions policies are impermissible under the Civil Rights Act of 1964, which prohibits universities receiving federal funds from promulgating policies that have a racially disparate impact, unless those policies actually promote a legitimate purpose. (10) Part I presents a brief history of legacy admissions policies in American higher education. Part II describes the negative impact that legacy preferences have on minority applicants. Part III presents a statistical analysis of university fundraising data to show that legacy preferences do not have a positive effect on university fundraising. Part IV argues that because legacy preferences have a disparate racial impact and do not further a legitimate purpose, their use at universities receiving federal funds is impermissible under the Civil Rights Act of 1964.

1. THE HISTORY OF LEGACY PREFERENCES

   The first legacy preferences in the United States were put in place in the 1920s, (11) during an era of increasing selectivity at the university level and increasing nativism at the national level. (12) Many universities increased their selectivity at this time because they faced dramatically increasing enrollments as veterans returned from World War I. (13) Admissions policies at these universities were not equipped to limit the number of admitted students, because until this time even the most prestigious universities had admitted all students that possessed the requisite academic qualifications. (14)

   In response to rising enrollments, many universities decided to increase selectivity as a mechanism for limiting the size of each freshman class. This decision coincided with an increase in nativist sentiment at the national level, which was in part due to the social and political effects of World War I. (15) Anti-immigrant sentiment was often directed at Jews, many of whom were recent arrivals from Russia and Eastern Europe, (16) and this anti-Jewish sentiment was widespread on university campuses. (17)

   Universities on the East Coast were particularly concerned about their increased Jewish enrollments. (18) Such universities addressed the dual "problems" of general overenrollment and objectionable levels of Jewish enrollment by increasing selectivity in their admissions processes and, within those processes, implementing mechanisms designed to exclude Jewish applicants in particular. (19) After an embarrassing incident at Harvard resulting from a proposal to explicitly discriminate against Jewish applicants, (20) administrators at Yale decided to restrict Jewish admissions in a more covert and politically acceptable manner. (21) Yale's plan to address both its overpopulation and its Jewish enrollment began to take shape in 1923; (22) this plan eventually included the promulgation of the nation's first legacy admissions preference in 1925. (23)

   Since Yale first introduced legacy preferences in 1925, such policies have become widespread in both public and private universities across the nation. In 1992, 16% of public institutions and 21% of private institutions employed some form of legacy preference. (24) As of 2003, legacies comprised 10-15% of the student body at Ivy League schools and up to 23% of the students at other major institutions. (25) Legacy applicants are said to receive a "nudge" in the admissions process, meaning that, all else equal, they are admitted over nonlegacy students. (26) A former Stanford dean of admissions explained that during her tenure at Stanford, applicants were placed into three categories, corresponding to deny, further consideration, and admit; legacy status effectively moved the applicant up one category. (27)

   Although not all universities provide such a concrete explanation of their legacy preferences, legacy status at many universities significantly affects an applicant's chances for admission. At Stanford, the legacy admit rate in 1990 was almost twice the 22.2% rate for applicants overall. (28) Similarly, at Harvard, the average legacy admit rate from 1985 to 1992 was 35.7%, over twice the 16.9% rate for applicants overall. (29) At Yale between 1986 and 1995, 42.5% of legacy applicants were admitted as opposed to 19.4% of total applicants. (30)

   Comparisons of admissions rates between legacy and nonlegacy applicants may be misleading, however, because legacy applicants are often more qualified than applicants overall. Even so, one study suggests that, after controlling for SAT scores, legacy status improved an applicant's chances of acceptance by 25% in 1999. (31) In fact, disparate admissions rates led the United States Department of Education Office for Civil Rights to conduct a study of Harvard's admissions policies in the early 1990s. (32) The results of this study indicated that legacy was a significant factor in the admissions process based on notes that admissions readers wrote in student application files. For example, one note read, "Without lineage, there would be little case. With it, we will keep looking." (33) Another read, "We'll need confirmation that dad is a legit, S&S [Alumni Schools and Scholarship Committee participant] because this is a 'luxury' case otherwise." (34) A third comment read, "Not a great profile but just strong enough #'s and grades to get the tip from lineage." (35) The Office for Civil Rights found that "being the son or daughter of an alumnus of Harvard/Radcliffe was the critical or decisive factor" in admitting certain applicants, and that applicants whose parents participate on the "Schools and Scholarship Committee" got a bigger "tip" in the admissions process. (36)

   Although the nation's first legacy preference was racially motivated, (37) universities today justify their legacy preferences based on nondiscriminatory reasons. In general, modern legacy preferences are employed as methods of encouraging alumni to donate and volunteer on behalf of the university. Harvard, for example, explained its rationale in terms of maintaining alumni ties with the university:

   Harvard alumni support the college by devoting immense amounts of time in recruiting and other volunteer activities, by contributing financially, and by informing other people, be they potential students, parents, donors, or community leaders, about the College. Those alumni are naturally, [sic] very interested in the college choices of their own children. If their children are rejected by Harvard, their affection for and interest in the college may decline; if their children are admitted, their involvement with the College is renewed. Having children share the parent's college affiliation stimulates those three aspects of contribution: of service, of money, and of community relations. (38) A former dean of admissions at Stanford explained legacy admissions as a kind of "mutual benefit" for applicants and universities, as "alumni children benefit from the connections of their parents; and colleges and universities...