Legacy Admissions and Eastern Airlines Flight 401

Within minutes of the New York Times breaking report that the Justice Department was going to investigate Affirmative Action in admissions to see if it discriminated against white people (not making this up), seven or eight people posted it in a Facebook group for college admissions people I moderate.  I’m not sure whether it was the topic, or the absurdity of the premise that caused people to respond so dramatically; my guess is that it was a little of both.

The Supreme Court has already ruled that using race or ethnicity in admissions as a single factor among many was constitutional, or in lawyer speak, that it was within the realms of “strict scrutiny,” meaning that the justification for instituting a policy had to serve a compelling interest, had to be narrowly tailored to effect only those outcomes, and had to be no more restrictive than necessary.  This is the same level of scrutiny applied any time a policy may, in some way, be interpreted as infringing on the civil rights of others.

In the SCOTUS ruling, Michigan’s undergraduate policy was shot down, as it awarded points in a review system to applicants who declared certain ethnicities; the law school policy of holistic review, where race was a factor among many was seen as appropriate. Much earlier, the court had shot down quota systems, in the Bakke decision.  But you probably already know this.

And you probably know the Justice Department has since said, “Hey, calm down, everyone.”

The response to this news, however, has renewed criticism of another type of affirmative action, namely, legacy admissions.  In case you don’t know, legacy admissions gives advantage to children of alumni in the admissions process.  It’s often called a “hook” by college counselors, who additionally cite athletes and children of wealthy donors (whether or not they are alumni) as having other “hooks” offering advantages.  (By wealthy donors, we’re talking about people who can build a new library or fund a faculty chair, not your typical, garden variety $500K a year executive.)  The reaction to people criticizing affirmative action is best characterized by this cartoon (credit).


You can argue all day whether these things are just, appropriate, or fair.  You can ask Congress to make them illegal. Just don’t ask the Justice Department to investigate whether they are constitutional.

I’m not a lawyer, of course (and that sound is the Internet saying, “No kidding.”) But I have attended several workshops on the topic, and I confirmed my theory with a professor of constitutional law before writing this, and he agreed.  Of course, there is at least some dissent from the legal community about this.

Unfortunately, I think, there are no narrowly-focused constitutional protections for someone who is the child of poor parents, or of parents who didn’t go to college, just as their is no protection for people who don’t have top 1% athletic skills.  Admitting wealthy kids or alumni kids or athletes violates no civil rights for the less advantaged.  It’s probably not in the purview of the Justice Department, unfortunately.

The longer I do this, the more I see that the whole system is designed to perpetuate advantage (and as much as I don’t like to agree with David Brooks, his first paragraph here is a powerful one); people who have it want to fight to hold it, as you would expect, and they don’t always play fair.

I wrote that the admissions office–even though filled with many people who have the best intentions–might be a part of the problem, and then, because 1000 words wasn’t enough, added 1000 more and ten charts to suggest why.

Among my core beliefs is that our system of education fails many, many deserving students, and collectively, our failure by them is ultimately a failure for the nation.  I think we should fight any and all of our attempts to to keep us from righting the ship, and mostly, I hope we don’t get distracted about the small percentage of students who get a chance at a very small percentage of the nation’s most selective institutions.  We risk the tragedy of Eastern Airlines Flight 401, where a plane full of people went down because three pilots were distracted by a malfunctioning warning light.

Let’s keep our eyes on the big issue, and let’s rely on the support of many like-minded people and organizations to help us do so.



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