Many of the arguments before the Supreme Court Tuesday, on Michigan's ban on affirmative action, were not surprising. Justices aligned roughly where they are on affirmative action issues generally.
But there was an unexpected development when the lawyer defending Michigan's ban suggested that if the University of Michigan wants to attract more minority students, one of the ways to do so would be to eliminate an admissions preference for the children of alumni. When he did so, the justice who came to the defense of such preferences -- generally viewed as benefiting the wealthy and the white -- was Sonia Sotomayor, who regularly speaks up on the court about the experiences of those who are neither.
John Bursch, Michigan's solicitor general, raised the issue. In defending the ban, he questioned whether overturning it was necessary to attract more minority students, especially to the University of Michigan, which because of its highly competitive admissions tends to attract much of the attention with regard to affirmative action in Michigan.
"The first thing is that they could eliminate alumnae preferences," he said, according to the unofficial transcript  released Tuesday (which is likely to later replace "alumnae" with "alumni" since Michigan does not favor offspring of its female graduates only). "Other schools have done that. They have not. That's certainly one way that tilts the playing field away from underrepresented minorities."
Justice Sotomayor quickly interjected: "It's always wonderful for minorities that they finally get in, they finally have children and now you're going to do away for that preference for them. It seems that the game posts keeps changing every few years for minorities." Bursch disagreed with the idea that ending the preference would hurt minority enrollment. "Given the make-up of Michigan's alumnae right now, certainly that playing field would be tilted the other way."
The exchange was an unusually public discussion on the preferences colleges give to alumni children and the reality that these considerations -- perhaps best-known at private institutions -- extend to some publics as well.
The issue of alumni preferences is one that comes up periodically in higher education -- but that has never captured sustained attention. In 2004, Texas A&M University -- which had stated that it would consider only "merit" in admissions decisions -- abolished its legacy preferences.  The move upset some alumni, but followed criticism from minority legislators who said it was wrong to consider alumni connections but not race or ethnicity.
The University of Michigan website explaining admissions criteria  and the review process  does not mention any consideration of alumni status. But an FAQ on the website of Michigan's alumni association  does cover the topic. In answer to a question about the alumni status of parents, the site says: "The University of Michigan values the relationship it has with current and former students. These students and alumni are part of the Michigan community; they provide service and support to the larger university community. As such, application reviewers take into consideration applicants who have a direct relationship, or stepfamily relationship, with someone who has attended the University of Michigan-Ann Arbor as a degree-seeking student."
Via e-mail, a spokeswoman for the university said that "it's important to know that every application is carefully read at least twice. If someone has an alumni connection to the university it's just one factor among many that we look at when holistically considering applications for the entering class. There is no point system."