Legacy Admissions and Affirmative Action
In 2023, the Supreme Court decision in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina stated that colleges and universities cannot consider race as a factor in the admissions process. However, the Court left a grey area allowing universities to review an applicant's discussion of how race has affected their lives, as long as that discussion is clearly tied to a unique ability or character trait the student may contribute to the university. This ruling overturned nearly five decades of legal precedent. The Court found that the admissions programs at Harvard University and the University of North Carolina violated the Equal Protection Clause of the 14th Amendment. Since these decisions, there has been much debate and conversation about legacy admissions in higher education. Representative Alexandria Ocasio Cortez once called legacy admissions “affirmative action for the privileged.” Although mentioned as part of the admissions process at Harvard, legacy preference was excluded from the decision in this case. It has been argued that affirmative action initiatives and legacy preference admissions policies both violate the Equal Protection Clause of the 14th Amendment. If race-conscious admissions policies are held unconstitutional, legacy preference admissions should soon follow.
Legacy preference policies give a preferential advantage to children of alumni and donors in the admissions process. Legacy preference admissions began in the U.S. in the 1920s as an effort to prevent Catholic, Jewish, and Asian students from attending elite, Protestant colleges and universities. Currently, hundreds of U.S. colleges and universities have legacy preferences policies to some degree factored into the admissions process. Many institutions argue that legacy admissions create a more predictable and increased enrollment rate, as well as build a sense of community or familial loyalty. Furthermore, legacy admits are more likely to pay higher tuition rates, and are expected to become donors. Higher education institutions therefore have a powerful incentive to continue legacy admissions. Currently, Ivy League institutions report 10-15% of each incoming class as being legacy admissions, although legacy students constitute under 5% of the applicant pool.
Historically, higher education institutions have enjoyed many types of educational freedom, including admissions processes. Many universities contend that their admissions policies should not be dictated by the government and that legacy applicants must meet similar standards as their peers. Predictably, prior to the decision in SFFA v. Harvard, the dean of undergraduate admissions at Yale, Jeremiah Quinlan released a statement on legacy admissions citing Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) as precedent to implore the State of Connecticut against banning legacy admissions from public and private universities: “The freedom of a university to make its judgments as to education includes the selection of its student body.” He further argued that Yale uses both diversity and tradition to promote its educational goals. However, Peter Arcidiacono, an expert for the plaintiff SFFA stated that Harvard and the University of North Carolina could increase racial diversity if they ended their legacy preference admissions policies. One of his 2020 research studies on Harvard’s admissions found that a typical white applicant with a 10% chance of admission would see a fivefold increase in admissions likelihood if they were a legacy applicant. The study further found that Harvard’s Athletic, Legacy, Primary Relatives of Donors, and Children of Faculty and Staff (ALDC) preferences primarily benefited white applicants and that a shift away from legacy and student-athlete preferences would either increase or maintain current admissions of non-white racial groups.
The opinions in SFFA v. Harvard by Justices Gorsuch and Sotomayor found common ground in criticizing ALDC preferences in Harvard’s Admissions process. During oral arguments, conservative justices questioned if eliminating legacy preference admissions would be a race-neutral strategy to achieve higher racial diversity in the student body. This question stems from the decision in Fisher v. University of Texas, which set a precedent under Justice Kennedy’s decision that although narrow tailoring does not require exhaustion of every race-neutral alternative, it does require that a university demonstrate that race-neutral alternatives that are “available” and “workable” “do not suffice.” Furthermore, in questioning, Justice Thomas stated that simply eliminating legacy admissions could increase racial diversity because the school would likely be forced to admit a more socioeconomically diverse student body: “That would not have a constitutional problem if you did it socioeconomically.” However, the respondent's lawyer Seth Waxman argued that eliminating an advantage for legacy and donor applicants would not in reality increase the diversity of the student body and would instead decrease the number of admitted Black applicants. Richard Sander, a professor at the University of California Los Angeles Law School, filed an amicus brief arguing that if legacy is continued as a factor in admissions decisions then by definition, the university had not exhausted all other [race neutral] alternatives.
Several states have banned legacy preference admissions. For example, legacy admissions have been banned in the public University of California system since 1998. In 2024, the state additionally banned legacy preference admissions for private and nonprofit universities as well. The University of Colorado Boulder has reported that since banning legacy admissions in 2021, they have seen an increase in first-generation applicants. The firm Lawyers for Civil Rights has argued that legacy preference admissions violate Title VI of the Civil Rights Act of 1964 by predominantly benefiting wealthy white applicants at the expense of their peers. The firm's filing against Harvard found that approximately 70% of students who received preferential treatment solely due to familial ties were white. Legacy and donor-related applicants were approximately six to seven times more likely to be admitted than their peers. The Supreme Court found that race-conscious admissions policies violated the Equal Protection Clause of the 14th Amendment. The admissions race-conscious admissions policies at UNC and Harvard were found to be not properly narrowly tailored to a compelling government interest. The universities furthermore could not demonstrate an endpoint as to when race-based admissions would end. The Court also struck down the notion that race-conscious admissions are necessary to remedy historical wrongs because the cost may outweigh any benefits: “Permitting “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group.” Therefore, the racial groups historically disadvantaged in higher education lose an equalizing policy, while the most advantaged keep their legacy advantages. In placing the equal justice principle above diversity Justice Thomas wrote that the ruling in SFFA v. Harvard affirms “the letter and spirit of a constitutional provision whose central command is equality.” Although it was not necessarily the question at hand, this quote conflicts with legacy admissions policies giving preferential treatment to primarily wealthy, white students.
In her dissenting opinion in SFFA v. Harvard, Justice Sotomayor wrote, “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.” It can furthermore be argued that equality similarly requires acknowledgment of preferential advantage. With affirmative action initiatives in higher education being banned for contributing to racial inequality, it calls into question whether legacy admissions, an advantage for primarily white applicants, can continue. Justice Jackson, although officially recused from the Harvard decision, gave her unqualified agreement with Justice Sotomayor’s argument that neither the Constitution nor Title VI prohibits the use of race-conscious admissions policies to ensure racial diversity of admits to higher education institutions. Justice Jackson further stated that UNC’s admissions program aimed to address the “‘transgenerational transmission of inequality’ that still plagues our citizenry.” And the decision, in this case, stunts progress toward racial equality rather than promoting it, and is “without any basis in law, history, logic, or justice.” These opinions reflect the Justices’ profound concerns that the Court’s ruling undermines the progress achieved and efforts made toward addressing systemic racial inequalities in higher education. Legacy preference and other ALDC admissions policies find renewed criticism in light of these opinions.
Legacy admissions remain highly unpopular, with a Pew Research Center study finding that 75% of surveyed Americans disagree with legacy admissions. A 2021 Gallup study found that 62% of surveyed adult Americans support affirmative action initiatives in higher education admissions. Eliminating legacy admissions finds favor on both sides of political ideology. Democrats with equity concerns and Republicans with a focus on meritocracy find common ground. The Supreme Court holds that preferential treatment cannot constitutionally be given to members of those historically underprivileged in higher education due to race. This holding can be applied then to the most historically privileged applicants in the elimination of legacy preference admissions policies in higher education institutions.
References
Arcidiacono, Peter, et al. “Legacy and Athlete Preferences at Harvard.” National Bureau of Economic Research Working Paper Series, 2019, http://www.nber.org/papers/w26316. Accessed 2025.
“Chica Project, African Community Economic Development of New England, and Greater Boston Latino Network v. President and Fellows of Harvard College (Harvard Corporation) Complaint under Title VI of the Civil Rights Act of 1964.” Lawyers for Civil Rights, Harvard Law Review, 2024, lawyersforcivilrights.org/wp-content/uploads/2023/07/Federal-Civil-Rights-Complaint-Against-Harvard.pdf.
Gramlich, John. “Americans and Affirmative Action: How the Public Sees the Consideration of Race in College Admissions, Hiring.” Pew Research Center, Pew Research Center, 16 June 2023, www.pewresearch.org/short-reads/2023/06/16/americans-and-affirmative-action-how-the-public-sees-the-consideration-of-race-in-college-admissions-hiring/.
Hamid, Rahem, and Nia Orakwue. “Harvard’s Donor and Legacy Preferences Come Under Fire at Supreme Court Oral Arguments.” News | The Harvard Crimson, 22 Nov. 2022, www.thecrimson.com/article/2022/11/1/legacy-admissions-scotus/.
Knox, Liam. “State Bans on Legacy Preferences Gain Bipartisan Steam.” Inside Higher Ed | Higher Education News, Events and Jobs, 2024, www.insidehighered.com/news/admissions/traditional-age/2024/01/29/state-bans-legacy-preferences-gain-bipartisan-steam.
Phillip Levine, Sarah Reber, et al. “Who Uses Legacy Admissions?” Brookings, 13 Mar. 2024, www.brookings.edu/articles/how-widespread-is-the-practice-of-giving-special-consideration-to-relatives-of-alumni-in-admissions/.
Saul, Stephanie. “Elite Colleges’ Quiet Fight to Favor Alumni Children.” The New York Times, The New York Times, 13 July 2022, www.nytimes.com/2022/07/13/us/legacy-admissions-colleges-universities.html.
Supreme Court of the United States. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. 600 U.S. 181 (2023), pp. 20–1199.