When critics question legacy admissions -- special preferences for the children of alumni -- they tend to focus on fairness, not legality. Politicians and others have periodically asked why colleges should give any assistance to those who are more likely to have other advantages anyway,  given that their parents were well educated.
But legal challenges have been few. In the 1980s, the U.S. Education Department considered complaints that legacy admissions systems discriminated against Asian American applicants, but ruled that this was not the case because, as more Asian Americans became graduates of elite colleges, their children would benefit much as the children of white alumni have benefited over time.
But this week -- for the second time this year -- a law journal is publishing a legal analysis that suggests that legacy preferences are illegal. The new issue of the Santa Clara Review features an article  -- whose lead writer would like to find plaintiffs to test his theory -- arguing that the 1866 Civil Rights Act bars legacy admissions at public and private institutions. An article earlier this year  in the Washington University Law Review argues that the "nobility clauses" of the U.S. Constitution ban legacy admissions at public institutions.
In both cases, the lawyers and legal scholars who wrote the articles say that the statutes they cite effectively bar hereditary advantages and that legacy admissions are such an advantage, even if the authors of the statutes weren't thinking about how one gets into Harvard.
Several advocates for colleges that use legacy admissions said that they hadn't heard of the latest arguments and so couldn't comment on them. But it would be an understatement to say that colleges with legacy preferences generally don't like to talk about them (except, perhaps, during reunion weekend).
Colleges say that legacy preferences help build cross-generational relationships with institutions and cement relationships with alumni donors. But educators tend to be much more comfortable defending other forms of affirmative action than the benefits that go to alumni children. Whether colleges have admissions policies that benefit minority applicants, athletes, tuba players, or residents of Wyoming, the theory is that those receiving the benefit either have valuable perspectives or faced disadvantage -- and that they will add something to the campus community. That's a harder argument to make when what sets apart the applicant is likely a form of advantage and socioeconomic status that matches the historically dominant groups on campus.
The latest article to challenge the legality of legacy admissions focuses on an 1866 civil rights law that was enacted as part of the Reconstruction era attempts by Congress to reform the South. The article notes that the primary point of the statute was that all citizens have the same rights and that heredity does not convey rights in the United States. The law was passed with the goal of preventing Southern aristocrats from exercising their traditional control over their local areas. The article goes on to cite numerous cases in which federal courts -- sometimes citing the 1866 law -- have rejected any discrimination based on ancestry or parentage.
The article acknowledges that courts permit potentially discriminatory distinctions for compelling reasons. But it goes on to analyze fund raising rates at colleges with and without legacy admissions -- and argues that there has been no diminished giving at colleges that dropped legacy admissions. Since that undercuts the idea that legacy preferences are needed for the societal good that theoretically comes with donations, the preferences should be all the more vulnerable legally, the article says.
The lead author of the piece is Steve D. Shadowen, a lawyer in Harrisburg, Pa. He said that he has been in touch with several other lawyers and that they believe they will find a good test case to challenge the legality of preferences. He said that the ideal plaintiff would be someone who was rejected by an institution that does not have affirmative action for minority applicants, but grants preferences for alumni. "I'm going to do whatever I can to make these things go away," he said of legacy admissions. Shadowen has not benefited from legacy preferences, either as a student or a parent.
The other paper is by Carlton F.W. Larson, who teaches law at the University of California at Davis and who also has never been a beneficiary of legacy admissions. Because his paper focuses on titles of nobility -- banned by the Constitution for use by federal or state governments -- his argument applies only to public colleges and universities. Lawson argues that the nobility clauses, largely understood to ban the awarding of titles like "duke" or "earl," actually ban any hereditary privilege.
"Legacy preferences are blatantly inconsistent" with the Constitution, Larson writes.
Asked in an interview if a college might defend legacy preferences by noting that they don't guarantee admission to any child of an alumnus, Larson said that wasn't a key distinction. He said that the nobility clauses would bar a state from granting an extra 50 votes, for example, in any election in which a candidate is descended from Thomas Jefferson. Such candidates wouldn't have an automatic win, but they would have a leg up, based on parentage, and that's what the nobility clauses ban, he said.
Larson said his ideal plaintiff to challenge preferences would be a recent immigrant whose parents were not educated in the United States. Such a person would have an automatic disadvantage compared to others whose parents attended the institution.
Sheldon E. Steinbach, a partner in the postsecondary education practice at Dow Lohnes, a Washington law firm, said he found the arguments being made against legacy preferences "novel," but suggested that they were not likely to sway judges. Where such arguments may have force, he said, is with public opinion.
"Any preferences can run against the grain of American society," he said, and be "socially divisive." And so colleges don't benefit from people raising the issue with new approaches to killing off the preferences. "I'm sure every school that grants some kind of legacy preference," he said, "would just as soon not have to discuss it publicly."