Legacy Admissions: An Insidious Form of Racial Discrimination

About 10 to 15 percent of students at Ivy League universities are the children of alumni. [1] Commonly known as “legacies,” they are often favored in the application process to encourage alumni ties and donations. [2] Between 2014 and 2019, Harvard accepted legacies at a rate of 33 percent, more than five times its overall acceptance rate. [3] In addition, 70 percent of Harvard’s legacy applicants are white. [4] This is hardly surprising: historically, the alumni of selective American universities like Harvard have been disproportionately white. [5] Yet, this racial disparity reveals the discrimination underlying legacy admissions that preserves and perpetuates historical inequalities in higher education.

Although elite universities have long nurtured a culture of tradition, legacy officially became a factor in admissions only in the 1920s, when colleges adopted “holistic” admission policies to curb the increase in Jewish applicants. [6] Colleges worried that a growing population of Jewish students would cause a general decline in enrollment by discouraging upper-class white Protestants from attending. In addition to quotas (a practice first instituted by Columbia University and New York University) and evaluations of “character,” legacy admissions were another method to cap Jewish enrollment. [7]

Since the 1920s, racial discrimination has become much less tolerable, and no university would use the exclusion of certain racial or ethnic groups as justification for legacy admissions. Nevertheless, the long history of inequality in America continues to cause legacy preference to disproportionately favor white applicants. Until Brown v. Board of Education (1954) outlawed school segregation, colleges separated students by race, often relegating Black students to poorer facilities and educational opportunities. [8] Even after the Civil Rights Movement enabled more African Americans  to attend selective universities, the initial increase in Black students did not close the racial gap. [9] By 1995, of all living Ivy League alumni, 96 percent were white. [10] Such a racial imbalance of alumni means favoring legacies will inevitably disproportionately favor white applicants. In effect, legacy admissions reinforce a cycle of disparity, perpetuating a system that favors upper-class whites over minorities.

One of the difficulties of classifying legacy admissions as a form of racial discrimination is that schools may favor legacies without ever explicitly intending to favor white Americans. In other words, schools can use legacy admissions without a discriminatory intent. However, a lack of discriminatory intent does not automatically rule out a discriminatory effect. Title VI of the Civil Rights Act of 1964 outlaws racial discrimination in programs receiving federal funding. [11] While only explicitly addressing intentional discrimination, most federal agencies apply the prohibition to facially neutral practices with the effect of discrimination. [12] Guidelines released by the Department of Education acknowledge that Title VI regulations “prohibit actions that, while not intentionally discriminatory, have the effect of discriminating on the basis of race or national origin.” [13] Therefore, whether or not colleges currently and consciously intend to favor white students is irrelevant. Past policies that favored elite whites have already established an advantage for white applicants. As a result, while legacy preference in isolation from history might not be inherently discriminatory, it entrenches the effects of past policies that were. [14]

When considering discrimination cases, the federal court uses two possible analyses: disparate treatment and disparate impact. Disparate treatment requires proof of intentional discrimination on the basis of race. [15] In a defining case, Washington v. Davis (1976), Black applicants rejected from a police department claimed the recruiting procedure was racially discriminatory. Using disparate treatment analysis, the Supreme Court held that for a neutral policy, disproportionate impact alone cannot prove the presence of intentional discrimination. [16] Since legacy admissions do not explicitly classify applicants by race, and since most colleges claim non-racial motives for favoring legacies, a disparate treatment analysis would find no violation of Title VI. On the other hand, however, disparate impact analysis applies to seemingly neutral practices lacking overt discriminatory intent but with a disproportionate effect on protected groups. [17] In Griggs v. Duke Power Company (1971), Black employees sued their employer for requiring minimum aptitude test scores and a high school education to advance to higher-paying departments, a selection method that disproportionately excluded African Americans. Despite the employer’s denial of any discriminatory intent, the Supreme Court ruled that the use of practices that had a disparate effect on Black workers and were unrelated to job performance still constituted discrimination. [18] The Court ruled that under the Civil Rights Act of 1964, “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” [19] Therefore, prohibitions against discrimination cannot be construed as a vague, hypothetical equality of opportunity, but must be understood as outlawing practices that seem neutral but have a discriminatory effect. The Court’s application of disparate impact recognizes discrimination is more complicated than mere intent. Unintentional discrimination is still discrimination.

Because disparate impact analysis does not require proof of a discriminatory intent, the Court acknowledges that institutions may have legitimate reasons for practices resulting in racial disparities. If there is no equally effective alternative to achieve the institution’s goal, the practice may be legal. Following this reasoning, many colleges claim that legacy admissions are crucial to maintaining alumni ties, particularly for alumni donations. An investigation in 1990 by the Department of Education’s Office for Civil Rights (OCR) concluded that Harvard’s use of legacy admissions were a permissible means of sustaining alumni donations. [20] However, an empirical study published by the Century Foundation in 2010 found no causal relationship between legacy preference and alumni donations. Furthermore, for the top 100 national universities ranked by the U.S. News and World Report in 2007, alumni donations comprised an average of only 5.1 percent of total expenditures. That is, ending legacy admissions would likely have no effect on alumni giving—and even if it did, universities would only lose a “relatively small fraction of expenditures.” [21] Another study published in the Michigan Law Review in 2010 analyzed alumni donations to universities that ended legacy admissions, including six University of California campuses, the University of Georgia, and Texas A&M University. Donations increased over time regardless of the elimination of legacy preferences. [22] Since legacy admissions seem to have no causal link to higher alumni donations, this cannot reasonably be accepted as a valid institutional goal.

Another complication arises from the nature of many admission processes. At most selective colleges, applicants are assessed “holistically,” weighing not only GPA, class rank, and test scores, but also extracurricular involvement, athletics, writing samples, and interviews. As a result, legacy becomes one more factor in a subjective analysis. Griggs dealt with an aptitude test and a high school diploma requirement—objective criteria that resulted in a consistent racial disparity. [23] Since a subjective selection process, such as one that includes an interview, relies on human assessments of candidates, many court decisions after Griggs applied disparate impact analysis only to objective criteria. The logic was that subjective selection processes could be dealt with through disparate treatment analysis by suing individual supervisors or interviewers for intentional discrimination. [24] Nevertheless, in Watson v. Fort Worth Bank & Trust (1988), the Supreme Court extended disparate impact analysis to subjective criteria. The petitioner, a Black employee at a bank, filed suit after she was rejected four times from promotions that were instead given to white applicants. The selection process depended on the input of white supervisors. [25] Despite the subjective nature of the promotion process, the Court ruled that disparate impact analysis should still apply. The basis of disparate impact analysis, that facially neutral practices without discriminatory intent may still be discriminatory in effect, “is in principle no less applicable to subjective employment criteria than to objective or standardized tests.” [26] , It would therefore be a mistake to limit legacy admissions to a disparate treatment analysis, even though holistic college admissions are subjective. For a subjective evaluation, the process as a whole can still be deemed discriminatory based on a resulting racial disparity.

Although many universities continue to favor legacies, the policy has faced more opposition as of late: both Amherst College and Johns Hopkins University ended legacy admissions within the last two years, and a bill introduced in the Senate in February 2022, if passed, would outlaw legacy preferences altogether. [27] In addition, a related practice dealing with holistic admissions, race, and discrimination will be challenged in the Supreme Court this year. Affirmative action—policies intended to increase diversity and remedy past discrimination, often by favoring underrepresented groups—could be prohibited in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. Univ. of North Carolina. [28] At the heart of both affirmative action and legacy admissions is a debate over fairness, meritocracy, and equality of opportunity. In the Court’s eyes, both may appear to subvert a merit-based system. Yet they are very different: affirmative action seeks to aid marginalized minority groups, while legacy preference disproportionately benefits the wealthy and white. A nuanced reading of the issue must acknowledge these differences. In the landmark Supreme Court case Regents of the University of California v. Bakke (1978), which ruled that colleges may use race as a factor in admissions, Justice Blackmun’s concurrence highlighted the irony of raising controversy over affirmative action while overlooking preferential treatment given “to the children of alumni, to the affluent who may bestow their largess on the institutions, and to those having connections with celebrities, the famous, and the powerful.” [29] While the Supreme Court’s upcoming ruling on affirmative action will likely influence the legal standing of legacy admissions, they should not be analyzed as the same issue.

Past college admissions, the racial disparity reinforced by legacy preference sheds light on its role in a cycle of discrimination reaching beyond education. Outdated policies such as legacy admissions can lead to the awarding of powerful positions by lineage instead of solely merit. White Americans are still overwhelmingly favored in the corporate world, holding 82.5 percent of Fortune 500 board seats in 2020. [30] While improving diversity broadly is not a single-solution problem, true equal opportunity often begins in education, and overturning larger cycles of discrimination can begin with ending legacy admissions.

Edited by Hannah Puelle

[1] “The Curse of Nepotism,” Economist, January 8, 2004, https://www.economist.com/united-states/2004/01/08/the-curse-of-nepotism.

[2] Joe Pinsker, “The Real Reasons Legacy Preferences Exist,” Atlantic, April 4, 2019, https://www.theatlantic.com/education/archive/2019/04/legacy-admissions-preferences-ivy/586465/.

[3] Tarun Timalsina, “Harvard Must Abolish Legacy Admissions,” Harvard Crimson, October 26, 2021, https://www.thecrimson.com/article/2021/10/26/timalsina-harvard-must-abolish-legacy-admissions/.

[4] Peter Arcidiacono, Josh Kinsler, and Tyler Ransom, “Legacy and Athlete Preferences at Harvard,” Journal of Labor Economics 40, no. 1 (January 2022): 4, https://doi.org/10.1086/713744.

[5] Cameron Howell and Sarah E. Turner, “Legacies in Black and White: The Racial Composition of the Legacy Pool,” Research in Higher Education 45, no. 4 (June 2004): 330–31, https://doi.org/10.3386/w9448.

[6] Michael Bastedo, “Holistic Admissions as a Global Phenomenon,” in Higher Education in the Next Decade, ed. Heather Eggins, Anna Smolentseva, and Hans de Wit (Leiden: Koninklijke Brill NV, 2021), 93–94, https://doi.org/10.1163/9789004462717_006.

[7] Deborah L. Coe and James D. Davidson, “The Origins of Legacy Admissions: A Sociological Explanation,” Review of Religious Research 52, no. 3 (March 2011): 238–39, https://www.jstor.org/stable/23055549.

[8] Brown v. Board of Education, 347 U.S. 483 (1954).

[9] Jeremy Ashkenas, Haeyoun Park, and Adam Pearce, “Even with Affirmative Action, Blacks and Hispanics Are More Underrepresented at Top Colleges than 35 Years Ago,” New York Times, August 24, 2017, https://www.nytimes.com/interactive/2017/08/24/us/affirmative-action.html.

[10] Mark Megalli, “So Your Dad Went to Harvard: Now What About the Lower Board Scores of White Legacies?,” Journal of Blacks in Higher Education, no. 7 (Spring 1995): 72, https://doi.org/10.2307/2963435.

[11] Prohibition against Exclusion from Participation in, Denial of Benefits of, and Discrimination under Federally Assisted Programs on Ground of Race, Color, or National Origin, 42 U.S.C. § 2000d (2010).

[12] U.S. Department of Justice, “Title VI of the Civil Rights Act of 1964 42 U.S.C. § 2000d Et Seq.,” updated April 25, 2022, https://www.justice.gov/crt/fcs/TitleVI -Overview.

[13] U.S. Department of Education, “Nondiscrimination in Federally Assisted Programs; Title VI of the Civil Rights Act of 1964,” Federal Register 59, no. 36 (February 23, 1994): 8759, https://www.govinfo.gov/app/details/FR-1994-02-23.

[14] Annika Neklason, “Elite-College Admissions Were Built to Protect Privilege,” Atlantic, March 18, 2019, https://www.theatlantic.com/education/archive/2019/03/history-privilege-elite-college-admissions/585088/.

[15] Civil Rights Division, U.S. Department of Justice, Title VI Legal Manual § 6, https://www.justice.gov/crt/fcs/T6Manual6.

[16] Washington v. Davis, 426 U.S. 229 (1976).

[17] Title VI Legal Manual § 7, https://www.justice.gov/crt/fcs/T6Manual7.

[18] Griggs v. Duke Power Company, 401 U.S. 424 (1971).

[19] Griggs v. Duke Power Company, 401 U.S. 424, 430 (1971).

[20] Joshua W. Shenk, “Harvard Admissions Off the Hook (But What about Those Legacies?),” Harvard Crimson, June 6, 1991, https://www.thecrimson.com/article/1991/6/6/harvard-admissions-off-the-hook-but/.

[21] Chad Coffman, Tara O’Neil, and Brian Starr, “An Empirical Analysis of the Impact of Legacy Preferences on Alumni Giving at Top Universities,” in Affirmative Action for the Rich, ed. Richard D. Kahlenberg (New York: The Century Foundation Press, 2010), 116.

[22] Kathryn Ladewski, “Preserving a Racial Hierarchy: A Legal Analysis of the Disparate Racial Impact of Legacy Preferences in University Admissions,” Michigan Law Review 108, no. 4 (2010): 585–88, https://repository.law.umich.edu/mlr/vol108/iss4/3.

[23] Griggs v. Duke Power Company, 401 U.S. 424, 430 (1971).

[24] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 977–89 (1988).

[25] Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988).

[26] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 (1988).

[27] Collin Binkley, “From Campus to Congress, Colleges Urged to End Legacy Boost,” AP News, February 13, 2022, https://apnews.com/article/college-admissions-congress-lifestyle-race-and-ethnicity-racial-injustice-7e2589841fa08189854e393aff1d59fd; U.S. Congress, Senate, Fair College Admissions for Students Act, S. 3559, 117th Cong., 2nd sess., introduced in Senate February 2, 2022, https://www.congress.gov/bill/117th-congress/senate-bill/3559?overview=closed.

[28] Adam Liptak and Anemona Hartocollis, “Supreme Court Will Hear Challenge to Affirmative Action at Harvard and U.N.C.,” New York Times, January 24, 2022, https://www.nytimes.com/2022/01/24/us/politics/supreme-court-affirmative-action-harvard-unc.html.

[29] Regents of the University of California v. Bakke, 438 U.S. 265, 404 (1978).
[30] Alliance for Board Diversity, Missing Pieces Report: The Board Diversity Census (n.p.: Deloitte, 2021), 19.