When the Supreme Court gutted affirmative action, it may have inadvertently created an opening to spotlight another controversial college admissions program that’s been in use for about a century now: legacy admissions, aka “affirmative action for the wealthy.”
It’s been a common practice since the 1920s, with higher education institutions initially using it as a way to limit Jewish applicants and eventually Black students too. Legacy students made up 36 percent of the class of 2022, according to a Harvard Crimson survey. And documents from the Students for Fair Admissions v. Harvard College case revealed that nearly 70 percent of Harvard’s donor-related and legacy applicants are white.
Oren Sellstrom, litigation director at Lawyers for Civil Rights, has been eyeing legacy admissions for some time and believes that now is the moment to challenge it. He filed a complaint with the Department of Education over Harvard’s practice of legacy admissions, citing widespread violations of Title VI of the Civil Rights Act of 1964 on behalf of the Chica Project, the African Community Economic Development of New England, and the Greater Boston Latino Network.
He spoke with me about the timing of his complaint, why he thinks it will be successful, and the impact legacy admissions have on minority students. Here’s our conversation, which has been edited and condensed for clarity:
Shirin Ali: The Supreme Court recently ended affirmative action. How hopeful are you that the court will apply the same theory of fair admissions to your complaint on legacy admissions?
Oren Sellstrom: Our complaint stands on very firm legal footing. The issues that we’ve presented are clear both from a fairness perspective and from a legal perspective. Obviously, in light of the Supreme Court’s recent decision on affirmative action, it is even more critical to remove unfair and undeserved barriers that stand in the way of equal opportunity for students of color. Our complaint is based on long-standing federal anti-discrimination law that makes clear that if there are barriers that have a disproportionate impact on students of color, they need to be dismantled, unless the institution can provide an adequate justification for them.
In the case of Harvard, it’s clear that donor and legacy preferences have a significantly disproportionately harmful impact on applicants of color, and there is no educational necessity for them.
Harvard is not the only institution practicing legacy admissions—one report estimates that 787 colleges and universities reported using legacy preference in 2020—so why target the complaint against only one school?
Through the case that was just litigated up to the Supreme Court, we learned quite a bit about Harvard’s admissions system that had previously been hidden from view. So we, along with other groups, represented students and alumni of color that were supportive of the affirmative action program at Harvard, and in that litigation, a lot of evidence was uncovered that shed light on all of the ways in which Harvard’s admissions process works. We have been able to look statistically at how preferences for donors and legacy applicants have such a disproportionately advantageous effect for white applicants overwhelmingly. We have a lot of the data from the court case, and that is one of the reasons why we have started with asking the Department of Education to investigate Harvard.
Our hope is that once the Department of Education has investigated Harvard, that it will also turn its eye and turn the power of the federal government on to all other institutions of higher learning that receive federal funding, and that also have these unfair and undeserved preferences.
Legacy admissions have been criticized for a long time now—MIT, the University of California, Berkeley, Oxford, and Cambridge have even banned the practice. Why do you think it hasn’t been challenged or outlawed completely yet?
You’re exactly right that many colleges and institutions at this point have done away with legacy preferences and donor preferences or have never used them in the first place. Particularly over the past eight to 10 years, we have seen significant movement away from those unfair and undeserved preferences. The trend line is clear, and Harvard is on the wrong side of history. Unfortunately, sometimes what it takes in order to ensure that institutions move away from unfair practices is to turn to the legal system and to the power of the federal government to investigate and to insist that if institutions are receiving federal funds, as Harvard does, that they do not engage in discriminatory practices.
One of the purposes of bringing this complaint was to elevate the many ways in which white applicants receive preferences that are sometimes hidden from view. Affirmative action gets a lot of attention, but it is and was always just a very modest tool to consider race as one of many factors in admissions. Our point in bringing this complaint is to highlight the many preferences that go overwhelmingly to white students and to demand that they be dismantled in the name of equity.
To what extent are students of color harmed by legacy admissions?
It’s clear that students of color are significantly harmed by both preferences for children of wealthy donors and of alumni. Seventy percent of those admitted through those preferences are white, and the overwhelming majority who receive those preferences are white applicants. And because of the data that we have gleaned through the court case that went up to the Supreme Court, we can also run the counterfactual—in other words, run the data to see what would happen to the entering class if these unfair preferences were removed [with race-based admissions still in place]. And what researchers find is that the student body would become more diverse, that Black students’, Latino students’, Asian American students’ percentages in the entering class would all rise if those unfair preferences were dismantled. The evidence is clear that these preferences are not only unfair and undeserved, but they have a significant negative effect on applicants of color.
How confident are you that this complaint will successfully take down legacy admissions?
We are very confident in our complaint. This is an issue that cuts across the political spectrum. It’s been recognized as unfair by people who would identify as conservative and liberal alike. Everyone can see that your family’s last name and the size of your bank account have nothing to do with merit and should have no bearing on college admissions. This is an issue that is easy to understand, the unfairness of it, and again, it cuts across the political spectrum. Certainly from a legal point of view, the illegality of these preferences is also clear.
What would be ideal would be for Harvard to stand up, lead the way, and say, “We’ve examined our admissions process in light of the Supreme Court’s ruling, and we are today announcing that we will no longer give preferential treatment to children of wealthy donors and to children of alumni because those preferences are unfair and go overwhelmingly to white students.” If that does not happen, if Harvard does not do that voluntarily, then our hope is that the federal agencies will investigate expeditiously. President Biden, in the days after the Supreme Court’s ruling, urged his federal agencies to investigate unfair practices that stand in the way of opportunity for applicants of color. Certainly, donor preferences and legacy preferences have got to be at the top of that list. We are optimistic that if Harvard does not move voluntarily to dismantle these preferences, that federal agencies will investigate and order that that be accomplished, as the institutions are to continue receiving federal funds.
Update, July 20, 2023: This article has been updated to clarify the methodology used to project the impact of legacy preferences in the Students for Fair Admissions v. Harvard College case.
