Harvard’s Donor and Legacy Preferences Come Under Fire at Supreme Court Oral Arguments

WASHINGTON — Though the Supreme Court convened on Monday to examine race-conscious admissions policies at Harvard and the University of North Carolina, the question of legacy applicant preferences took the spotlight for much of the day’s oral arguments.

During five hours of back-to-back hearings, the court’s conservative justices questioned whether eliminating legacy admissions could provide a race-neutral strategy to achieve racial diversity on college campuses.

Though the court has long upheld the constitutionality of race-conscious admissions, a 2016 ruling in the landmark Fisher v. University of Texas at Austin II case requires that schools exhaust all race-neutral alternatives before resorting to admissions policies that include race as a factor. Universities may only craft affirmative action programs if “available, workable race-neutral alternatives do not suffice,” the ruling states.

On Monday, the justices heard oral arguments for lawsuits against the race-conscious admissions policies at Harvard and UNC. Both schools have long argued that using race as a factor in admissions helps to ensure a racially diverse student body.

But Students for Fair Admissions, the anti-affirmative action group suing the schools, alleges that eliminating advantages for applicants who are children of alumni or donors could produce a similar level of diversity among students without the need to consider race.

“Harvard now refuses to eliminate its legacy preferences or boost its socioeconomic preferences, even though both changes would make Harvard far less white, wealthy, and privileged,” SFFA lawyer Cameron T. Norris argued in the Harvard case hearing.

Justice Neil M. Gorsuch asked Ryan Y. Park, the solicitor general of North Carolina who argued on behalf of UNC on Monday, whether the school should be required to revoke preferences for legacy students and “squash players” instead of considering race.

Gorsuch expressed uncertainty on whether a school that could otherwise achieve its goal of diversity by eliminating legacy applicant benefits can pass the “strict scrutiny” standard required to allow the use of race in admissions.

“Suppose a university — a wealthy university — could eliminate those preferences which tend to favor the children of wealthy, white parents and achieve diversity without race consciousness: Would strict scrutiny require it to do so?” Gorsuch asked.

Justice Clarence Thomas began the justices’ questioning in the Harvard case by asking the University’s lawyer Seth P. Waxman ’73 to address SFFA’s argument on legacy preferences.

“The petitioner argues that you do have available a race-neutral approach that would yield different but excellent results,” Thomas said.

He added that lowering the proportions of wealthy and legacy students at Harvard could achieve socioeconomic diversity at the school.

“I don't think it's arguable that Harvard is socioeconomically diverse — at least it doesn't appear that way,” Thomas said. “That would not have a constitutional problem if you did it socioeconomically.”

Waxman argued that trading the University’s current admissions program for one that provides no advantage to legacy and donor applicants would not substantially increase the school’s diversity, citing the lower court’s ruling in favor of Harvard’s consideration of race.

“If this were a case in which the evidence showed that eliminating a legacy preference made a substantial difference, the lower courts would have decided the case differently,” Waxman said.

He argued that eliminating advantages for students who are athletes, on the dean’s interest list, or children of alumni or faculty — a category of applicants known as ALDCs — would actually decrease the proportion of Black students.

“If you just stopped considering race, it would go from 14 to six percent,” Waxman told the court. “But if you also stopped considering ALDCs, it would go to five percent.”

Following the hearings, Richard Sander ’78, a professor at University of California Los Angeles School of Law who filed an amicus brief in support of SFFA, said that Harvard’s continued preference for legacy applicants may provide the court a justification for ruling against its race-conscious admissions.

“The court can say, ‘We allow you to use racial preferences when you can show that you exhausted all the other alternatives,’” Sander said. “And if you are using legacies, then by definition, you haven't exhausted the other alternatives.”

While legacy preference was not on trial at Monday’s hearing, Boston University School of Law associate professor Jonathan P. Feingold said that if race is eliminated as a factor in college admissions, advantages for ALDC applicants would soon follow.

“It will become politically untenable for Harvard to extend bonuses that, in everything but form, are racial and class preferences for white and wealthy applicants,” he said. “Practically, the end of affirmative action could entail the end of at least formal legacy preferences.”

—Staff writer Rahem D. Hamid can be reached at rahem.hamid@thecrimson.com.

—Staff writer Nia L. Orakwue can be reached at nia.orakwue@thecrimson.com.