A Symposium on Legacy Admissions: Adam Kissel

Don’t Expand Disparate Impact to Curtail Legacy Admissions

Adam Kissel

Editor’s Note: The National Association of Scholars has begun a symposium on legacy admissions. Legacy admissions has become a political issue in the wake of the SFFA v. Harvard decision. It has become so in good measure due to tactical polemic by supporters of race discrimination, who wrongly seek to create a moral equivalence between race discrimination and legacy admissions, and who equally wrongly seek to use legacy admissions to substantiate their claims that America and its colleges and universities are “systemically racist.” Yet even though legacy admissions is not racially discriminatory, it is subject to a variety of other critiques and defenses—where NAS members and staff appear to be split in their judgments about the value of legacy admissions.

Precisely because of this split, we thought it would be useful to publish a symposium on the subject during the coming months.

We encourage NAS members and staff—and, indeed, any interested reader—to contribute to this symposium. Please contact David Randall ([email protected]) and/or Neetu Arnold ([email protected]) if you would like to submit a contribution.

Our next essay is by Adam Kissel, visiting fellow for higher education reform at The Heritage Foundation.


Harvard lost in court on racial preferences, but it should win on legacy preferences. That’s not because legacy admissions is a good policy that all schools should use—indeed, most students don't support the practice. It’s because the U.S. Department of Education (ED) should not expand the “disparate impact” doctrine in antidiscrimination law to include policies that may inadvertently produce different results by race.

The theory of disparate impact is that a policy or practice violates equal protection principles in the law and the Constitution when its results differ disproportionately by race, even when a policy is race-neutral on its face and was implemented for race-neutral reasons. Disparate impact theory is a flawed analytical method.

Because a myriad of different life circumstances, economic and cultural factors, and educational opportunities disproportionately vary by race, it should be no surprise that the pool of qualified college applicants also disproportionately varies by race. No college is responsible for the composition of its applicant pool. That’s why no college should be punished when its neutral admissions policies result in admissions outcomes that reflect the actual qualifications of its applicant pool, even if they predictably result in different outcomes correlated by race.

Just as overall admissions numbers are not punishable in the absence of actual or intentional discrimination, a college’s neutral micro-preferences—such as privileging athletes, musicians, or the children of alumni or donors—are not punishable. Harvard and every other private institution that uses legacy admissions should not be sanctioned when their legacy or donor admissions outcomes differ disproportionately by race.

Nevertheless, ED has opened an investigation into Harvard’s legacy practices because they tend to result in fewer nonwhite admissions.

But whether or not you believe legacy preferences are good policy or lead to acceptable results, using the power of the federal government to ban them is flatly wrong. Using the convoluted doctrine of disparate impact is even worse.

The same is true for other kinds of preferences based on non-academic merit. When considering a college’s standards, many schools have wildly disproportionate outcomes by race when they recruit basketball and football players, or lacrosse and squash players.

Should basketball and lacrosse preferences be next on the chopping block because of their dramatic racial “imbalances”?

The same goes for arts preferences. If it turns out that preferences for the Harvard-Radcliffe Orchestra (which appears rather nonblack) have a disparate impact on admissions by race, should those merit-based preferences be declared unlawful too?

That’s the direction in which ED is going. In the absence of a genuine reason to investigate, it is distasteful to peer into individual admissions policies, divide up the successful and unsuccessful applicants by race, and tell a college how it may form its freshman class.

After all, like it or not, elite colleges are elite—academically, artistically, athletically, and so on. Privileges only for academic merit might be good policy, but choosing students based on their ability to overcome life obstacles, or their prowess in athletics or the arts, is not about unlawful “preferences” but meritocracy.

Colleges also have neutral reasons, like them or not, for privileging legacy applicants. It is a mistake to think that legacy preferences represent just a privileged class trying to stay privileged.

To the contrary, legacies are part of the diversity these colleges want. It seems valuable, for example, that the Gore and Saltonstall families have longstanding relationships with Harvard. The Saltonstall legacy is nearly 400 years running.

Indeed, conservatives appreciate the value of maintaining traditions and norms across the generations—that’s why they should think more carefully about legacy admissions. Is it unfair for families that are loyal to their alma maters to expect a degree of loyalty in return? Such preferences may trigger an initial concern about academic merit, but so long as we close our eyes to the complete set of cultural preferences (athletics, the arts, “grit,” and more) that pervade college admissions, this concern is inconsistent.

ED relied on a factual mistake, anyway. The organizations that filed the civil rights complaint leading to ED’s investigation claimed that legacy policies do not increase alumni giving. The research study they cite actually found that “prior to controlling for wealth … schools with legacy preference policies indeed have much higher alumni giving.”

The children of alumni also are more likely to know whether Harvard is right for them. They have a clearer understanding of whether Harvard’s unique qualities make a good fit.

Finally, private colleges have a First Amendment right to freedom of association. As an alumnus who has been disgusted by the political and social biases among Harvard’s staff, faculty, students, and policies, I still say that the federal government has limited authority to interfere.

A wide variety of colleges, public and private, employ legacy admissions. Historically black colleges and universities also do. If you don’t like these preferences, the right way to oppose them is to use the power of persuasion, not to expand “disparate impact” theory with perverse and unforeseen consequences.


Image: Adobe Stock

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