By Richard D. Kahlenberg
In 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.