Preserving a racial hierarchy: A legal analysis of the disparate racial impact of legacy preferences in university admissions

Michigan Law Review

Volumn 108, Issue 4, 2010, Pages 577-601

  Ladewski, Kathryn ^a  

^a NONE

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EID: 77949297843     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (84)

1. Sen. Hillary Rodham Clinton, Sen. Tom Carper & Gov. Tom Vilsack, Saving the American Dream, Blueprint Mag. (Democratic Leadership Council, Wash. D.C.), July 22, 2006, available at http://www.ndol.org/ndol_ci.cfm?kaid=137&subid=900111&contentid=25399.
2. See, e.g., Carlton F.W. Larson, Titles of Nobility, Hereditary Privilege, and the Unconstitutionality of Legacy Preferences in Public School Admissions, 84 Wash. U. L. Rev. 1375, 1381-82 (2006).
3. Marcia G. Synnott, The Admission and Assimilation of Minority Students at Harvard, Yale, and Princeton, 1900-1970, 19 Hist. Educ. Q. 285, 285 (1979).
4. Cameron Howell & Sarah E. Turner, Legacies in Black and White: The Racial Composition of the Legacy Pool, 45 Res. in Higher Educ. 325, 325-26 (2004).
5. See id. at 330-31.
6. John D. Lamb, The Real Affirmative Action Babies: Legacy Preferences at Harvard and Yale, 26 Colum. J.L. & Soc. Probs. 491, 508 (1993).
7. For a discussion of the history of legacy preferences, see infra Part I.
8. See infra notes 38-40 and accompanying text.
9. See infra Part II.
10. The Civil Rights Act of 1964 states, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d (2006); see also 34 C.F.R. § 100.3 (2009); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 591 (1983) (holding that disparate impact discrimination in the employment context is prohibited by the Title VII implementing regulations). Guardians was expressly extended beyond employment discrimination in Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir. 1985).
11. Marcia Graham Synnott, The Half-Opened Door: Discrimination and Admissions at Harvard, Yale, and Princeton, 1900-1970, at 154 (1979). This book contains an excellent discussion of the relationship between anti-Jewish sentiment and admissions restrictions at Yale and, more generally, other elite universities, as does Dan A. Oren, Joining the Club: A History of Jews and Yale 40 (2d ed. 2000). Restrictions on Jewish enrollment may be considered racial discrimination, which is the focus of this Note, if Jews were considered a separate race at the time the policy was implemented. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987) (under 42 U.S.C. § 1982 (2006)).
12. Synnott, supra note 11, at 13-14. "Nativism" refers to hostility toward immigrants and efforts to protect Americans from foreigners residing in the United States. See, e.g., Brian N. Fry, Nativism and Immigration: Regulating the American Dream 2 (2007).
13. Synnott, supra note 11, at 13-14.
14. See id. at 201 ("Before World War II, children of middle- and upper-class families, predominantly Anglo-Saxon Protestant, had found it relatively easy, if they possessed minimum academic qualifications, to be admitted to the elite colleges and professional schools."); Harold S. Wechsler, The Qualified Student 4 (1977).
15. Synnott, supra note 11, at 14.
16. Oren, supra note 11, at 21, 40.
17. Synnott, supra note 11, at 34-35.
18. Oren, supra note 11, at 42-44.
19. Synnott, supra note 11, at 16-19.
20. Harvard's President Lowell was determined to limit the number of Jewish students, either through an outright quota or explicitly higher academic standards for Jewish students. Despite having significant support among the faculty, Lowell's proposal was eventually defeated by a faculty vote. The situation generated enormous negative press and made it impossible for Harvard to adopt the less overtly discriminatory policies that were becoming commonplace in other elite Eastern universities. For a detailed discussion of Harvard's attempts to restrict the number of Jewish stu-dents, see Jerome Karabel, The Chosen 86-109 (2005). See also Oren, supra note 11, at 49-52.
21. Oren, supra note 11, at 50.
22. Id. at 54-55. Yale President Angell wrote to his counterpart at Williams College that "our Harvard friends have been passing through a rather unpleasant experience as a result of their discussion of methods of discouraging Hebrew patronage." Id. at 54. Ensuring that their deliberations were conducted with secrecy and caution, administrators at Yale discussed limitations on Jewish enrollment through an English test, a reduced cap on scholarship aid, and the requirement of personal interviews for local applicants (because many of Yale's Jewish students were from the New Haven area). Id. at 48, 52-53. Yale's plan to address both its overpopulation and its Jewish enrollment took shape in 1923 in a policy called the "Limitation of Numbers." Id. at 55. According to the Yale admissions committee, "the fixing of a maximum number of Freshmen admitted seem[ed] a necessary basis for any restrictions which have to do with character rather than with scholarship." Id. at 56. The Dean of Freshmen agreed that a limitation on the number of freshmen "might give some ground for tackling the race question." Id. at 55. The plan promulgated in 1923 included a cap of 850 freshmen and a reduction in scholarship aid. Race itself would only be a factor in admitting "marginal" applicants, who would be required to pass a character test. It was widely assumed that Jewish applicants would fare worse on such character tests. Id. at 59. However, the first class at Yale admitted under the new policy did not show a significant drop in the number of Jewish students, so between 1924 and 1926, Yale implemented a series of more creative strategies, including legacy preferences, a cap on the number of transfer students (many of whom were Jewish), and an SAT requirement. Id. at 59-60. After implementation of these policies, the percentage of Jewish students at Yale began to drop, and continued to decline well into the 1930s as new admissions questions were periodically added to keep Jewish enrollment in check. Synnott, supra note 11, at 155-56.
23. Oren, supra note 11, at 59. The preference was explained as ensuring that the "limitation on numbers shall not operate to exclude any son of a Yale graduate who has satisfied all the requirements for admission." Id.
24. Hunter M. Breland et al., Challenges in College Admissions 72 (1995).
25. Daniel Golden, Family Ties: Preference for Alumni Children in College Admission Draws Fire, Wall St. J., Jan. 15, 2003, at A1; see also Cameron Howell, "Each Generation in the Track": Admissions Preferences for Children of Alumni, at 2-3 (Aug. 2004) (unpublished Ph.D. dissertation, University of Virginia) (on file with author). Today, many elite universities utilize leg-acy preferences, including Stanford University, Harvard University, Yale University, Princeton University, University of Pennsylvania, Dartmouth College, Brown University, University of Notre Dame, Columbia University, Georgetown University, University of Michigan, University of Virginia, University of North Carolina at Chapel Hill, and Middlebury College. Examples of universities that do not utilize legacy preferences include the California Institute of Technology (Caltech) and Texas A&M University, and all public universities in California and Georgia.
26. See Shikha Dalmia, Free Tuition is No Substitute for Dropping Legacy Admissions, S.F. Chron., Mar. 18, 2008, at B7, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/03/17/EDO3VLH14.DTL (Caltech);
27. Michael Dannenberg, Editorial, Opposing view: Ban legacy preferences, USA Today, Aug. 20, 2008, available at http://blogs.usatoday.com/oped/2008/08/opposing-view-b.html (Notre Dame, Harvard, Yale); Golden, supra (public universities in California and Georgia);
28. Alice Gomstyn, Top Colleges Mum on Legacy Admissions, ABC News, Apr. 11, 2008, http://abcnews.go.com/Business/IndustryInfo/story?id=4626882&page=1 (Harvard, Yale, Princeton, Stanford, Columbia, Georgetown, Dartmouth, Middlebury, University of Pennsylvania);
29. Alan Gordon & Bryan Chang, Privileging the Privileged, Coll. Hill Indep. (Providence, R.I.), Apr. 8, 2004, http://www.brown.edu/Students/INDY/alpha/article.php?id=21&issue_id=188 (Texas A&M, Brown);
30. Penn Alumni: Alumni Council on Admissions, http://www.alumni.upenn.edu/aca/legadm.html#whois (last visited July 18, 2009) (University of Pennsylvania);
31. Karl Stampfl, Admissions Nepotism, Mich. Daily (Ann Arbor, Mich.), Feb. 6, 2008, http://www.michigandaily.com/content/admissions-nepotism (University of Michigan); Univ. of Va. Alumni Ass'n, Frequently Asked Questions, http://www.alumni.virginia.edu/admission/liaison/faq/application.aspx (last visited July 18, 2009) (University of Virginia); UNC General Alumni Ass'n, Frequently Asked Questions, http://alumni.unc.edu/article.aspx?SID=1839 (last visited July 18, 2009) (University of North Carolina-Chapel Hill).
32. See Howell, supra note 25, at 10-11.
33. Jean H. Fetter, Questions and Admissions: Reflections on 100,000 Admissions Decisions at Stanford 75 (1995).
34. Jean H. Fetter, Questions and Admissions: Reflections on 100,000 Admissions Decisions at Stanford 75 (1995) at 74.
35. Lamb, supra note 6, at 503.
36. Lamb, supra note 6 at 505.
37. Howell, supra note 25, at 11-12 (citing James L. Shulman & William G. Bowen, The Game of Life: College Sports and Educational Values (2001)).
38. U.S. Dep't of Educ. Office for Civil Rights, Statement of Findings, Compliance Review No. 01-88-6009, at 27-28 (1990) (on file with author) [hereinafter OCR Statement of Findings].
39. U.S. Dep't of Educ. Office for Civil Rights, Statement of Findings, Compliance Review No. 01-88-6009, at 27-28 (1990) (on file with author) [hereinafter OCR Statement of Findings] at 27.
40. U.S. Dep't of Educ. Office for Civil Rights, Statement of Findings, Compliance Review No. 01-88-6009, at 27-28 (1990) (on file with author) [hereinafter OCR Statement of Findings] at 28.
41. See supra notes 20-23 and accompanying text.
42. OCR Statement of Findings, supra note 32, at 40.
43. Fetter, supra note 27, at 77-78.
44. Howell & Turner, supra note 4, at 330.
45. For evidence that Yale's original legacy policy was intentionally discriminatory, see Oren, supra note 11, at 55-60.
46. Howell & Turner, supra note 4 at 346. In addition, legacy preferences continue to "work against any relative newcomers" and therefore disadvantage today's immigrant groups, just as they were intended to disadvantage Jewish immigrant applicants when they were originally implemented at Yale. See Oren, supra note 11, at 59 (discussing the first legacy preference's negative effect on immigrant populations). As such, legacy admissions preferences historically benefitted-and con-tinue to benefit-white, nonimmigrant applicants, because past generations of American university students have been disproportionately white. Although discrimination based on national origin is also prohibited under the Civil Rights Act, this Note focuses on race rather than national origin. Cf. 34 C.F.R. § 100.3(a) (2009) (prohibiting discrimination based on national origin).
47. OCR Statement of Findings, supra note 32, at 35.
48. Howell & Turner, supra note 4, at 340-42.
49. See supra note 25 for a nonexhaustive list of universities that use legacy preferences.
50. Howell & Turner, supra note 4, at 341.
51. Synnott, supra note 3, at 295.
52. The Progress of Admissions of Black Students at the Nation's Highest-Ranked Colleges and Universities, J. Blacks in Higher Educ., Autumn 1996, at 6. For information on the University of Pennsylvania's current legacy admissions policy, see Penn Alumni: Alumni Council on Admissions, supra note 25.
53. This assumes that alumni of different races tend to have the same number of children.
54. Howell & Turner, supra note 4, at 326.
55. See, e.g., OCR Statement of Findings, supra note 32, at 2 (noting Harvard's written statement that Asian Americans have lower admission rates despite higher academic qualifications).
56. e.g., OCR Statement of Findings, supra note 32, at 2 (noting Harvard's written statement that Asian Americans have lower admission rates despite higher academic qualifications).
57. e.g., OCR Statement of Findings, supra note 32, at 2 (noting Harvard's written statement that Asian Americans have lower admission rates despite higher academic qualifications) at 36.
58. e.g., OCR Statement of Findings, supra note 32, at 2 (noting Harvard's written statement that Asian Americans have lower admission rates despite higher academic qualifications) at 36-37.
59. These universities include six in the University of California system (Berkeley, Davis, Irvine, Los Angeles, Santa Barbara, and San Diego), all of which eliminated legacy preferences in 1999, as well as the University of Georgia and Texas A&M University, both of which eliminated legacy preferences in 2003.
60. The data are presented in two separate figures because the large variation in fundraising numbers between the schools makes presentation in a single chart impractical. The additional variables investigated in this study (total alumni donations and total number of alumni donors) are presented in graphical form only for the high-fundraising schools, although data for all of the schools are presented numerically in the Appendix.
61. Data for all eight universities can be found in numerical form in the Appendix.
62. A closely correlated and often quoted statistic is the percentage of alumni that donate. Because of the high correlation with total number of alumni donors, the percentage of alumni that donate is not presented here.
63. See supra note 10. Legacy policies implemented with a discriminatory purpose, such as the original legacy policy at Yale, would also be impermissible under the Civil Rights Act's prohibition on intentional discrimination. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 280 (2001). However, such policies could presumably be cleansed of their discriminatory purpose by repealing and reinstating them; therefore, this section focuses on the discriminatory effects of legacy preferences because those effects are not so easily eliminated.
64. Campaign for Fiscal Equity, Inc. v. New York, 655 N.E.2d 661, 669 (N.Y. 1995).
65. Title VI disparate impact cases do not support a private cause of action. Instead, such a claim would be brought by the United States Department of Education Office for Civil Rights. See Alexander, 532 U.S. 275.
66. Campaign for Fiscal Equity, 655 N.E.2d at 670. Note that, in determining whether an admissions policy creates a disparate racial impact, that policy is evaluated on its own rather than in conjunction with other policies that arguably counterbalance the disparate racial impact. Therefore, the disparate racial impact of legacy preferences would be evaluated independently. See, e.g., Knight v. Alabama, 787 F. Supp. 1030, 1163-65 (N.D. Ala. 1991) (evaluating the use of the ACT in univer-sity admissions in the context of a Title VI disparate impact suit), aff'd in part, 14 F.3d 1534 (11th Cir. 1994).
67. N.E.2d at 670-71.
68. See supra Part II.
69. 655 N.E.2d at 670-71.
70. OCR Statement of Findings, supra note 32, at 40 ("Because of the disparate impact that these preferences have on Asian Americans, however, OCR proceeded to analyze the legitimacy of their use in the admissions process."). The Harvard investigation was triggered by complaints from the Asian American community that Asian American applicants were being admitted at lower rates than Caucasian applicants. The OCR eventually cleared Harvard of wrongdoing and closed its investigation. For further discussion of this investigation, see id.; and infra text accompanying notes 74, 79-80.
71. OCR Statement of Findings, supra note 32.
72. 159 F. Supp. 2d 873, 886 (D. Md. 2001) (rejecting a white medical school applicant's claim of racial discrimination in the affirmative action context).
73. Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (concerning the context of a student contesting expulsion from a university).
74. Rosenstock v. Bd. of Governors of the Univ. of N.C., 423 F. Supp. 1321, 1327 (M.D.N.C. 1976). In Rosenstock, the plaintiff did not assert that legacy preferences had a disparate racial impact. Id. at 1326.
75. OCR Statement of Findings, supra note 32, at 41.
76. OCR Statement of Findings, supra note 32 at 43.
77. 793 F.2d 969, 982 (9th Cir. 1984).
78. Id. at 982 n.10.
79. Id.; see also Young v. Montgomery County Bd. of Educ., 922 F. Supp. 544, 549 (M.D. Ala. 1996) (citing Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417-18 (11th Cir. 1985)) (noting that the burden of proof in Title VI cases mirrors the burden-shifting framework of Title VII, and stating that the burden of proof shifts to the defendant after the plaintiff has stated a prima facie case).
80. Scott Jaschik, Doubts are Raised About U.S. Inquiry on Harvard Policies, Chron. Higher Educ., Feb. 6, 1991, at A19 (discussing the OCR investigation into Harvard's admissions policies). It seems that no court has considered this question directly because no private right of action exists under Title VI. In Rosenstock v. Board of Governors of the University of North Caro-lina, the plaintiff alleged that legacy preferences violated due process and equal protection. 423 F. Supp. 1321, 1322-23 (M.D.N.C. 1976). The court found no suspect class or fundamental interest and concluded that the university's unrebutted affidavit stating that alumni donate to the university satisfied the rational basis test. Id. at 1325-27.
81. Jaschik, supra note 78.
82. Even deferring to the university at the second stage, legacy policies could be shown to be impermissible at the third stage, in which a plaintiff must propose an equally effective alternative policy. Here, because legacy preferences have no demonstrable impact on alumni donations, removing the legacy preferences altogether could be considered an "equally effective alternative proposal" under this third stage.
83. Fiscal year 1990 has been omitted due to incomplete data availability. Data on university enrollment and all fundraising statistics were provided by the Council for Aid to Education, Volun-tary Support of Education Survey. These data are available by subscription from the Council for Aid to Education, http://www.cae.org/content/pro_data_trends.htm (last visited Aug. 19, 2008). Data for the years 1990-1998 are not available online and were obtained through direct communication with the organization. Stock market data used in this analysis were obtained from Yahoo! Finance, http://finance.yahoo.com (last visited Aug. 19, 2008).
84. Legacy preference data are borrowed from Steve D. Shadowen et al., No Distinctions Except Those Which Merit Originates: The Unlawfulness of Legacy Preferences in Public and Private Universities, 49 Santa Clara L. Rev. 51 (2009). These data are available at http://law.scu.edu/lawreview/legacynationalcolleges.cfm (last visited Sept. 28, 2009). All fundraising statistics were provided by the Council for Aid to Education, Voluntary Support of Education Survey. See supra note 82.