Perpetually in jeopardy, the use of racial preferences in college admissions is under greater threat than ever.
President Donald Trump has scrapped Obama-era guidelines that encouraged universities to consider race as a factor. He has proposed replacing Justice Anthony Kennedy, who wrote the majority opinion in a 2016 case upholding affirmative action by one vote, with the more conservative Brett Kavanaugh. Meanwhile, a lawsuit challenging Harvard University's preferences for Hispanics and African Americans has uncovered the university's dubious pattern of rejecting academically outstanding Asian-American candidates—who don't qualify for a race-related boost—by giving them low marks for personality. Either the Harvard case, or a similar lawsuit against the University of North Carolina–Chapel Hill, could put an end to affirmative action.
If it is abolished, though, there will undoubtedly be increased pressure to also eliminate admissions criteria that favor a very different demographic—children of alumni and donors. Colleges are reluctant to drop these preferences of privilege for fear of hurting fundraising. But the political price of clinging to them could be significant.
The fates of affirmative action and what is sometimes called "white affirmative action" have long been intertwined. After the University of California, the University of Georgia, and Texas A&M stopped using racial preferences, they discontinued preferences for alumni children as well. Although it's generally regarded as legal for admissions offices to favor relatives of their graduates and benefactors, these advantages skew white. At Harvard, according to a filing in the current case against the university, alumni children—known as legacies—comprise 21.5 percent of accepted white applicants, compared to 7 percent of Hispanic admits, 6.6 percent of Asian Americans, and 4.8 percent of African Americans. Thus it can be difficult for universities to justify keeping these preferences in the absence of countervailing boosts for under-represented minorities.
Already, student groups at a dozen elite campuses are mobilizing opposition to legacy preferences. Brown University students voted overwhelmingly in March to establish a committee to re-examine the use of legacy status in admissions. These organizations support affirmative action and its demise would further energize them—and likely help them enlist liberal Ivy League alumni, especially those without teenage children. Legacy preference is widely unpopular; 52 percent of respondents to a 2016 Gallup poll said colleges should not consider whether an applicant's parent is a graduate and only 11 percent said it should be a major factor. Moreover, without affirmative action, universities would likely look for other ways to sustain minority and low-income enrollment. Eliminating admissions edges for wealthy whites would be a logical start.
Data surfacing in the Harvard case could also incite anti-legacy fervor. Harvard and other elite universities typically justify legacy preference, when they talk about it at all, as a legitimate reward for alumni loyalty and volunteer work. They portray it as merely a tiebreaker between applicants of equal merit. Court filings, including Harvard's internal reports, show otherwise. The university's Office of Institutional Research found in 2013 that alumni parentage bestows an admissions boost equivalent to that for African Americans, and larger than those for Hispanics, Native Americans, and low-income students. Among applicants given the two highest academic rankings, Harvard accepted 55 percent of legacies, compared with 15 percent of non-legacies. Overall, across six years, Harvard accepted 33.6 percent of legacy applicants, versus 5.9 percent of non-legacies, according to Duke University economist Peter Arcidiacono, an expert witness for Students for Fair Admissions, the plaintiff challenging Harvard's affirmative action policies.
Legacy preference isn't Harvard's only boost for affluent white families. Court documents show that Harvard maintains a list of candidates of special interest to the admissions dean, and accepted 42.2 percent of them. The dean's interest list includes "all applicants who the Dean of Admissions wishes to keep track of during the admissions process, whether they be children of donors, or an applicant the Dean met at some point in their high school career and wished to keep an eye on," said Harvard spokeswoman Rachael Dane. "Putting aside the tracking of this list, all applicants to Harvard go through the same rigorous admissions process."
One child of a donor was Jared Kushner, now Trump's son-in-law and senior adviser. As I reported in my 2006 book, The Price of Admission, Harvard accepted Kushner despite an undistinguished high school record after his father, who was not an alumnus, pledged a $2.5 million gift.
Overlapping with the dean's interest list is what's known as Harvard's "Z-List" of applicants who are initially waitlisted and then accepted on condition that they defer enrolling for a year. A filing by the plaintiffs cites my book and supports what I described anecdotally in it: The Z-list is Harvard's way of quietly ushering in well-connected applicants who may not measure up academically. Of the nearly 60 students per year who Harvard Z-lists, 46.5 percent were legacies and 58.8 percent were on the dean's interest list. Almost 70 percent were white; 14.3 percent were Asian; 4.4 percent were Hispanic, and 2 percent were black. Only 1.8 percent were the first generation in their families to go to college. Harvard admissions officials have described the Z-list as an effort to encourage students to take a year off before college to relax and mature, as well as to accommodate candidates whom Harvard would like to pluck from the waiting list but can't find beds for.
Two other significant preferences—for children of faculty and staff, and for recruited athletes—also disproportionately benefit whites. Harvard accepted 46.7 percent of faculty and staff children, who enjoy a larger boost than Hispanics and low-income students, though not as much as legacies, Arcidiacono found. Recruited athletes get the biggest edge of all, with an 86 percent acceptance rate. They comprise 16.3 percent of white students who are admitted to Harvard, as against 8.9 percent of blacks, 4.2 percent of Hispanics, and 4.1 percent of Asian Americans. This racial disparity, which may surprise Americans who see minorities playing college football or basketball on television, reflects that Harvard, like other universities, fields teams in numerous prep-school sports like crew, sailing, fencing, and squash.
Harvard's court filings don't dispute the scope of these patrician preferences. While the university normally downplays them to avoid the appearance of catering to the rich, in this lawsuit, it's embracing them—for legal reasons. When Harvard's treatment of Asian-American applicants came under scrutiny in 1990, the United States Department of Education's Office for Civil Rights let the university off the hook. It documented that Harvard admitted Asian-American applicants at a significantly lower rate than white applicants despite slightly stronger SAT scores and grades, but it attributed the higher bar to the university's boosts for alumni children and athletes, rather than racial discrimination. Harvard is making the same defense now. In the ultimate irony, it's trying to preserve affirmative action by acknowledging that its admissions process favors wealthy whites. As University of California–Berkeley economist David Card, an expert witness for Harvard, put it in his December 2017 report, "When exploring whether there is bias against Asian American applicants, it is important to account for the fact that Harvard's admissions process gives special consideration ... to children of Harvard or Radcliffe alumnae or alumni ... applicants recruited to play a varsity sport at Harvard, and children of Harvard faculty or staff members."
Indeed, the best protection for affirmative action may be the threat that its elimination would pose to legacy preference. "Were this court to have the courage to forbid the use of racial discrimination in admissions, legacy preferences (and similar practices) might quickly become less popular—a possibility not lost, I am certain, on the elites" supporting affirmative action, Justice Clarence Thomas—not a fan of either race-based or legacy preferences—observed in 2003.
Justices Sandra Day O'Connor and Kennedy—the two moderate justices who provided the key swing votes to preserve affirmative action in 2003 and 2016, respectively—had experienced the blessings of legacy preference in their own families. The son of a Stanford University alumna, Kennedy went to Stanford, as did his two sons and one daughter. O'Connor, her husband, and two of their three sons attended Stanford. Delivering its commencement address in 1982, O'Connor assured the graduates that "there is no greater, more foresighted office in this land of ours than the Admissions Office of Stanford University," and expressed the wish that "you will all be lucky enough to have your children attend this paradise on earth that we love and that we call Stanford." Don't be surprised if affirmative action supporters ask Kavanaugh at his confirmation hearing whether the Yale University double alum (college and law school) hopes that his two daughters will one day attend his alma mater.