Okay, What About Legacy Admissions?

Hi,

Well, I’m back from my limerick-writing workshop in Nantucket. But we can talk about that later. 

I was kind of unplugged for the last few days, but one thing that was hard to miss in the wake of the Supreme Court’s affirmative action ruling is that there’s this sudden and very intense consensus on the left and right about getting rid of “legacy admissions” in elite universities. 

Of course, Yuval Levin noticed it too. He also came out in favor, albeit with Yuvalian restraint and nuance, of eliminating legacy admissions. 

Now, Yuval is not a hop-on-the-political bandwagon kind of guy, so his position is a bit of a problem for me, because I’m not wholly persuaded by this. And usually when Yuval and I disagree, my default assumption is that I must be wrong.

So let me just think this through with you for a second. 

Let’s start with the fact that I’m not a big fan of sudden bipartisan consensuses. Such moments make me uncomfortable. Many of our worst public policies were the result of rushed bipartisan agreements, in part because the poltergeist of “Just do something!” is at its most mischievous when the incentive for partisan skepticism is missing.  When Nixon interrupted Bonanza to announce his plan to impose wage and price controls, it was very popular, with support from 75 percent of the public. One can only imagine how much more popular it would have been if he preempted The Partridge Family instead. The race to deinstitutionalize the mentally ill—an understandable desire given popular outrage over the sorry state of such institutions—was very bipartisan. Rent control was imposed during World War II as a temporary effort, it was very popular, and it remains a kind of economic herpes—impossible to fully eradicate. 

I’m not saying that sudden ideological and political agreement is always wrong—declaring war on Japan after Pearl Harbor still seems like the right decision nearly a century later—but it’s a form of groupthink that should always elicit a few deep breaths and some devil’s advocacy. 

The whataboutist frenzy.

Then there’s the way the opposition to legacy admissions emerged. For a lot of people, it’s essentially a whataboutist argument. In a great many cases, it’s literally a whataboutist argument. I searched Twitter for “what about” and “legacy admissions” and the results are mostly what you’d expect. 

Whataboutism is not an inherently illegitimate argument. It often illuminates the double standards of partisans, parents, bosses, and, well, humans generally. I think it’s perfectly valid to ask, “What about the liberal Supreme Court justices?” amid this relentless effort to claim that only the conservative justices have conflicts of interest or the appearance of conflicts of interest. I don’t even necessarily mind whataboutist arguments about Donald Trump’s corruption or Hillary Clinton’s mishandling of classified documents. I just don’t think they do what the whatabouters think they do most of the time. 

If you want to say the media or even the Department of Justice has a partisan double standard on this or that, I’ll often agree. But even when whataboutism reveals hypocrisy or inconsistency, the whatabouters often tend to be hypocritical or inconsistent themselves. Someone will say, “Hillary Clinton should have been prosecuted! What she did was terrible! I said so at the time!” Okay, so if Trump did something just as bad—or worse—should he be prosecuted? “Of course not!”

There’s another problem with whataboutist arguments. Sometimes they’re just wrong because they confuse or conflate different things. And that’s what I struggle with the most when it comes to legacy admissions. 

Not all discrimination is racist.

“Let’s be clear: affirmative action still exists for white people,” Rep. Barbara Lee declared on Twitter. “It’s called legacy admissions.” I’ll get to why this is not true in a moment. But first just think for a second. Do we honestly believe that these ideologically left-wing schools that are desperate to keep racial preferences for non-whites think of legacy admissions as a tool to provide affirmative action for white people?

Here’s a tweet from Alexandria Ocasio-Cortez:

Okay, so here’s the first problem. That 70 percent number is actually an argument for the racial fairness of legacy admissions. America is between 71 and 75 percent white. That means whites are slightly underrepresented in legacy admissions, at least at Harvard. Now, I think this is a stupid way to think about it, but I’m not the one introducing this standard. 

Also, if we’re going to insinuate that the court is beholden to the white power structure and the justices’ interest in it, it’s worth noting that Justices Ketanji Brown Jackson and Elena Kagan appear far more “compromised” by their ties to elite universities, specifically Harvard, than their conservative counterparts. Kagan was the dean of Harvard Law School. Jackson attended Harvard and Harvard Law. She recused herself from the Harvard portion of the case because immediately prior to joining the court, she was on Harvard’s Board of Overseers, and her daughter is currently a Harvard student. I have no idea if she was on the legacy list, but it seems likely. I’m not questioning anyone’s motives here. I’m just using the standard the critics introduced.

It’s also weird to suggest that the court failed to do this lawless thing out of service to its “patrons” when Harvard and other universities want to keep legacy admissions, too. If the court, including the liberals, got rid of legacy admissions, Harvard would be well and truly pissed at Kagan and Jackson. 

Even more relevant: No one sued Harvard over legacy admissions. Even if there were a legal or constitutional principle violated by legacy admissions—there isn’t as far as I can tell—it wasn’t brought before the court. And the idea that the court should have just decided to ban them anyway because they’re icky or somehow “racist” is an argument for lawlessness and judicial activism. That’s a weird position for people claiming that this court is lawless and activist for following the law. 

And this gets to my biggest peeve with the sudden fad for getting rid of legacy admissions. They’re just different from racial quotas. Here’s the relevant text of the 1964 Civil Rights Act: 

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.

“That language plainly prohibits the sorts of affirmative action practices that Harvard and UNC were shown to engage in, and the Court was plainly right to make them stop,” Yuval writes. “But that language just does not describe legacy admissions. The 14th Amendment doesn’t either. And bringing disparate-impact analysis into this domain would do no one any favors in the long run.”

Race is different. We fought a civil war in large part to eradicate slavery. We amended the Constitution a few times to deal with the unique problems of race. The civil rights movement led to the Civil Rights Acts to further clean up the mess of racism in America. We didn’t have an agonizing national struggle with legacy admissions. 

If I discriminate against job applicants because of the way they dress or because of their Satanic face tattoos or because they don’t speak English, that may or may not be wrong, but it’s not racism. If an admissions officer accepts an unqualified student because their parents went to the school or because they donated a library wing, that is arguably very bad, but it’s not a racist decision. 

You might respond, “Yes, it is! Because that spot would have gone to a qualified racial minority.” I get it, but that sort of thinking means that every non-racist decision is still racist. 

I understand that Ibram X. Kendi would say, “Exactly!” But I think Kendi’s schtick is pernicious nonsense. Moreover, the crux of this debate over affirmative action is about turning away more qualified Asians because of their race. They would not have had a case if Harvard could demonstrate that the Asian applicants weren’t being penalized for their race or that blacks weren’t getting benefits based on theirs. 

That’s one reason why it’s so outrageous that so many defenders of racial quotas aren’t seeing this horrible predicament as an indictment of the K-12 educational pipeline. The reason more blacks aren’t getting into elite universities isn’t because of a lack of demand—Harvard’s whole argument rested on its intense desire for more black students—it’s because there’s a lack of supply.   

Okay, so what about the actual practice of legacy admissions? For starters let me just say I have no “patrons” on this issue, as AOC might put it. My kid didn’t go to my alma mater, and I didn’t go to my parents’—because I couldn’t get in. I think Ilya Somin makes a very good case for getting rid of them. Apparently, they’re not as essential to fundraising as some think, though I’m still a little skeptical about that. But Somin is obviously right that legacy admissions are contrary to the stated missions of these schools. They all talk a big game about how diversity or DEI are their highest priorities. They often even make faculty and staff sign loyalty oaths to these goals and ideals. If they really believe this stuff, they should get rid of legacy preferences. 

Or, you know what else they could do? They could just be honest. Diversity and inclusion are priorities in tension with other priorities. And that’s where I feel compelled to be a bit of a devil’s advocate for legacy admissions. Those other priorities are defensible. Giving preferences to members of your community—i.e. alumni and donors—is not altogether unreasonable. Institutions, as Yuval often notes, are created to do certain things, and one of the things they do is provide benefits to people within those institutions. 

You can take that too far, and I think many schools probably do. But let’s not kid ourselves and suggest that elite schools are the only institution that operates this way. You want to know a really good way to get hired by a big city fire or police department? Have a father who is—or was—a cop or a fireman. Favoritism for kin in unions is a very old story in America (and everywhere else!) and is remarkably hard to eradicate. 

Of course, union favoritism for “legacies” doesn’t arouse the same kind of ire in part because unions are a vital part of the Democratic coalition, but also because elite universities are seen as gateways to status and wealth in ways longshoreman unions aren’t. Even though some California dock workers make a good deal more than some Harvard graduates. 

I suspect that one of the key internal constituencies for keeping legacy preferences are actually university faculty and administrators, who understand where this argument goes. I know people who stayed in academia or at specific institutions precisely because they knew their “fac brat” kids would get a break in admissions, tuition, or both. I don’t think that’s sinister. It’s just human self-interest. And if I were on the board of a school, I’d want to know what it would do to faculty and staff retention to take away that perk.

Personally, I think the preferences for athletes—particularly in boutique, high-cost sports—should go. Families who can afford sailing lessons for their kids aren’t a big priority by my lights. Then again I also think Division I football and basketball should be replaced with minor leagues. I know that’s a very unpopular view, and it will never happen. But the objections are instructive. Popular sports are central to a lot of university communities—and great for fundraising. The schools think, understandably, that whatever trade-offs there are—for academic excellence, potential for corruption, etc.—are worth making. 

In other words, I think institutions should have a lot of latitude to create the kinds of culture and community they want. I’m happy to disagree with the decisions they make and point out their hypocrisy on their own standards. But, particularly when public dollars are involved, I draw a line at race. Why? Because I think race is different. 

If you want to get rid of legacy admissions, that’s fine with me. But it’s a big decision and big decisions should usually be made slowly and deliberately, not in a panicked response to an explosion of anger and groupthink.