November 29, 2011

The Days of Legacy Admissions May Be Numbered

                                             By Richard D. Kahlenberg

StudentsCampusFall.jpgIn a recent essay in Minding the Campus, blogger John S. Rosenberg argued that I was too tough on legacy preferences and not tough enough on affirmative action in college admissions.  In my support for class-based affirmative action, he says, I'm not sufficiently outraged about racial preferences.  And in arguing that legacy preferences are illegal not only in public but also in private universities, he says, I make an "odd" set of arguments that "add up to less than nothing."

On the issue of racial preferences, I am, as Rosenberg suggests, somewhat ambivalent, as are many Americans.  Polls suggest that Americans want universities that produce our country's leadership class to be racially and ethnically diverse yet they don't like using race in admissions.  I agree with both sets of views and one of the reasons I have been attracted to writing about the issue over the years is that I see compelling arguments on both sides.

On the one hand, I am deeply troubled by the casual way in which many of my fellow liberals embrace the use of race in deciding who gets ahead in education and employment, ignoring the deep moral problems associated with judging people by skin color.  On the other hand, I think it is clear that our nation's horrendous history of slavery and Jim Crow segregation has left a legacy that helps explain why African Americans are today disproportionately poor and less educated - a situation that demands affirmative steps to counteract.  Ultimately, I back class-based rather than race-based preferences because I think they can indirectly address our history without resorting to the disease as cure.  I also support considering the socioeconomic obstacles overcome as an element of merit, because today those impediments are seven times as significant as racial barriers to doing well on the SAT.

While I see strong arguments on both sides of the affirmative action debate, I find the legacy issue much more straightforward.  Like racial preferences, legacy preferences base decisions on hereditary factors, which I find objectionable in a society devoted to equal opportunity.  But unlike affirmative action, preferences for alumni children offer none of the countervailing benefits:  legacies decrease, rather than increase, student body diversity, and they provide an extra advantage (on the order of 160 SAT points) to a group of students who are by any measure already highly advantaged.   Noting that in 2009, Princeton admitted 41.7 percent of legacies compared with 9.2 percent of students overall, a recent New Republic editorial asked, "What sort of institution devoted to meritocracy more than quadruples its admission rate for the children of the well-connected?"

It is commonly assumed that legacy preferences can be justified as a necessary inducement to increase alumni giving, but there is no research supporting this.  To the contrary, a recent study included in a volume I edited, entitled Affirmative Action for the Rich, found that the existence of preferences did not result in a statistically significant increase in alumni giving.  Researchers examined the 100 top universities in the US News & World Report rankings from 1998-2007, about three quarters of which used legacy preference and one quarter of which did not.  After controlling for appropriate factors, the authors found "no evidence that legacy preference policies themselves exert an influence on giving behavior."  They also found that seven universities, which dropped legacy preferences, saw no decrease in alumni generosity.

In the same volume, legal authorities advanced several arguments that legacy preferences are illegal at public institutions and at private colleges and universities as well.  In a recent blog post in the Chronicle of Higher Education, to which Rosenberg reacts, I summarized some of the legal arguments made with respect to private universities.

First, I made the broad point that private universities receiving federal subsidies do not have an unfettered right to admit students on whatever basis they want.  Under Title VI of the Civil Rights Act, universities and other entities receiving federal funding cannot discriminate based on race.  Rosenberg misconstrues my argument to mean that I see legacy preferences as a violation of Title VI.  I was not making that argument - I pointed to Title VI to knock down the contention that private institutions can admit whomever they want - although it is possible to make a "disparate impact" argument under Title VI that because legacy preferences disproportionately hurt minority students, they are illegal.  (On a side note, Rosenberg claims I mischaracterized Title VI as protecting only minority students, when Title VI's prohibition applies to everyone. The statute itself is of course universal in character, but since the 1978 Bakke case, the law has been read to permit discrimination in favor of under-represented minorities -- and therefore against whites -- as part of affirmative action programs.)

Second, I make the argument that legacy preferences, which universities justify as a way of inducing donations, likely run afoul of IRS regulations that forbid deductions for donations that "enrich the giver." Rosenberg calls this argument "fanciful," but as Peter Sacks has noted, IRS publication 526 provides, "If you receive or expect to receive a financial or economic benefit as a result of making a contribution to a qualified organization, you cannot deduct the part of the contribution that represents the value of the benefit you can receive."  Citing research, Sacks estimates the lifetime benefit of attending a more selective college at $315,000, a not inconsiderable sum for the family of alumni donors. 

Third, I argue that legacy preferences constitute a violation of the 1866 Civil Rights Act, which prohibits discrimination in private contracts (including those between students and private colleges).  Rosenberg claims this argument is "the most fanciful of all" pointing out that the language of the statute references discrimination on the basis of "race."  But as attorneys Steve Shadowen and Sozi Tulante have noted, in the 1987 case of St. Francis College v. Al-Khazraji, the U.S. Supreme Court, noting the broad 19th century concept of race, found that the act prohibited discrimination based on "ancestry," including "the lineage of a family."  This case law does not bode well for defenders of legacy preference.

If the U.S. Supreme Court takes on the issue of racial preferences in a challenge to the University of Texas this term, as many legal observers expect, the use of race will be probably be curtailed substantially.  Precisely because the issue of affirmative action raises complicated issues, I expect that the swing vote on the Court - Justice Anthony Kennedy -- will not go as far as Rosenberg would like, and instead will push universities toward using race-neutral alternatives (like class) to produce diversity with race employed only as a very last resort.  That requirement would impose a very important shift in college admissions, given evidence that selective universities today do the opposite, relying heavily on race, and lightly on socioeconomic status.  Once racial preferences are dealt a major setback, it will be very difficult - politically and legally - for institutions to continue to defend a different type of ancestry preference that disproportionately benefits some of America's most advantaged students.

Richard D. Kahlenberg, a senior fellow at The Century Foundation, is author of The Remedy: Class, Race and Affirmative Action (1996), and the editor of Rewarding Strivers: Helping Low-Income Students Succeed in College (2010), and Affirmative Action for the Rich: Legacy Preferences in College Admission (2010).

Legacy Admissions, Round Two

                     By John S. Rosenberg

In his reply to my recent discussion of his arguments that legacies preferences are illegal Richard D. Kahlenberg simply repeats, with one exception, the arguments that I criticized. His restatement is no more persuasive than his original statements, and I shall not repeat my criticisms here. The exception is that he abundantly confirms my deepest criticism -- his consistent, repeated refusals to demand the elimination of preferences based on race.

True, Kahlenberg confesses to being "somewhat ambivalent" about racial preferences. He claims to be "deeply troubled by the casual way in which many of my fellow liberals embrace the use of race in deciding who gets ahead in education and employment," and he acknowledges "the deep moral problems associated with judging people by skin color." In the absence of any argument from him that preferences based on race violate civil rights laws and the Constitution and should be eliminated, however, his self-proclaimed moral qualms, even though no doubt sincere, amount to little more than lip service.

Kahlenberg objects to my calling his arguments "fanciful," but that actually seems rather mild. After claiming that he does not argue that the 1964 Civil Rights Act bars legacy preferences, he repeats the argument that they run afoul of the 1866 Civil Rights Act's supposed prohibition of contracts that discriminate on the basis of "ancestry," a word that does not appear in the Act. What is truly odd here is that he argues that a statute clearly both intended and written to bar discrimination based on race can be stretched by the "ancestry" construal to prohibit legacy preferences even though he refuses to say that it prohibits the "ancestry" discrimination that is the very essence of discrimination based on race.

Perhaps Kahlenberg does not see this convoluted construal as a "casual" acceptance of the use of race, but it is clearly something less than coherent. And he's not so "deeply troubled" by the pervasive prevalence of racial preference that he is willing to call forthrightly for its elimination or even to condemn it with the same fervor that he condemns whatever discrimination he sees in the relatively trivial problem of legacy preference.

I not only appreciate but share Kahlenberg's commendable desire to overcome the effects of slavery and discrimination, but I neither share nor appreciate his willingness in pursuing that goal to go along with his liberal fellow travelers in jettisoning the principle that Americans should be treated by their governments without regard to race.

It may well be that Kahlenberg harbors more reservations about racial preferences than he believes he can express without having his liberal credentials revoked. But whether that is true or not, his refusal to call for their elimination combined with the, yes, 'fanciful" effort to construe legacy preference as a civil rights violation is not an idiosyncratic oddity. It reflects the deep incoherence about the nature of discrimination that characterizes contemporary liberalism.

John Rosenberg is a lapsed historian blogging at Discriminations.

Comments (3)

Mr. Kahlenberg states the argument in favor or racial preferences this way: "I think it is clear that our nation's horrendous history of slavery and Jim Crow segregation has left a legacy that helps explain why African Americans are today disproportionately poor and less educated - a situation that demands affirmative steps to counteract." As a matter of law, this is a complete nonstarter: The Supreme Court has rejected the argument that our general history of societal discrimination justifies racial preferences. And rightly so. As a policy matter, why use race as a proxy for being "poor and less educated"? There are plenty of African Americans who cannot be described this way (and they are overwhelming the ones likely to get preferential admissions treatment at selective schools), and there are plenty of whites and Asians who can be described that way. Mr. Kahlenberg is right to conclude that racial preferences should end; it's too bad he reaches this conclusion so grudgingly.

In the post I just sent, the eighth word ("or") should be "of" -- sorry about that.

George Leef:

It seems that Mr. Kahlenberg's stretching of the word "ancestry" to mean that it's illegal to prefer a student because his family history includes one or more individuals who attended the same college would apply with equal force against his hobby horse argument that colleges should give preferences based on being descended from people who have low socio-economic status. If it's illegal discrimination to say, "Billy's dad went here, so Billy gets in" how is it not illegal to say, "Billy's dad is a poor laborer, so Billy gets in"?

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