WASHINGTON — Harvard had a miserable summer in the nation’s capital.

In late June, the Supreme Court effectively struck down affirmative action in college admissions in a ruling against Harvard just two days before University President Claudine Gay assumed office.

In July, congressional Democrats reintroduced a bill to ban legacy admissions preferences, Senate Republicans threatened Harvard and other universities with congressional investigations if they seek to circumvent the Supreme Court’s ruling, and the Department of Education opened an inquiry into Harvard’s legacy admissions practices.

By August, at the end of Gay’s first month in office, it was clear that college admissions practices had emerged as the new battleground in the ongoing war over the future of higher education — familiar territory for a university that frequently sparred with the Trump administration and has faced nationwide scrutiny over its admissions practices for the last decade.

Now, Harvard is once again caught in the crossfire.

‘This Isn’t a Meritocracy’

U.S. President Joe Biden fired the first shot of the next battle over college admissions policies when he criticized legacy admissions preferences just hours after the Supreme Court declared Harvard’s race-conscious admissions policies unconstitutional on June 29.

“Today, I’m directing the Department of Education to analyze what practices help build a more inclusive and diverse student bodies and what practices hold that back, practices like legacy admissions and other systems that expand privilege instead of opportunity,” Biden said in remarks from the White House.

Less than one month later, the U.S. Department of Education put the President’s words into action.

The U.S. Department of Education's Office for Civil Rights opened an investigation into Harvard University's donor and legacy admissions preferences in July after the nonprofit Lawyers for Civil Rights filed a federal complaint. By Cam E. Kettles

After a federal complaint alleged that Harvard’s consideration of legacy and donor status violates the Civil Rights Act, the department officially opened an investigation into Harvard to examine “whether the University discriminates on the basis of race by using donor and legacy preferences in its undergraduate admissions process in violation of Title VI and its implementing regulations,” according to a letter from the Education Department announcing the investigation.

Sen. Edward J. Markey (D-Mass.) expressed support for the Education Department’s investigation in a written statement to The Crimson.

“Right now, ‘legacies’ and the children of donors are more likely to be admitted to top colleges and universities than Black and Latino students combined,” he added. “This isn’t a meritocracy — it’s classism and racism, and the Department of Education must act now to put an end to it.”

Meanwhile, Sen. Jeffrey A. Merkley (D-Ore.) and Rep. Jamaal A. Bowman (D-N.Y.) took action in Congress, reintroducing a bill that would prohibit colleges and universities from participating in federal student aid programs if they practice legacy and donor admissions preferences.

“Though the Supreme Court gutted race-conscious college admissions, make no mistake, affirmative action is still alive and well for children of alumni and major donors, and taxpayers shouldn’t be funding it,” Merkley wrote in a statement to The Crimson.

“We’ve seen momentum for ending legacy admissions build since the Supreme Court decision, and Congress should seize this moment to end unfair admissions advantages that overwhelmingly benefit students who are white and wealthy,” Merkley added.

The bill, titled the Fair College Admissions for Students Act, is co-sponsored by two Senate Democrats and 39 House Democrats, marking a significant increase in support for the legislation since it was first introduced in February 2022.

Bowman — who introduced the bill in the House — said in an interview with The Crimson that after the Supreme Court’s ruling on affirmative action, the time has come to end legacy and donor preferences and create a more level playing field in higher education admissions.

“It’s very disappointing that the Supreme Court banned the use of race-conscious admissions at the most prestigious universities but didn’t do anything about legacy admissions,” Bowman said. “When we’re talking about true equity in the education system, we can’t allow big donors and big money and legacy to control higher education in the same way it controls our politics here in Congress.”

Congress Democrats reintroduced the Fair College Admissions for Students Act, a bill which would prohibit universities that consider legacy and donor status in admissions from participating in federal student aid programs. By Julian J. Giordano

Harvard spokesperson Jason A. Newton declined to comment for this article.

Harvard announced in July that the University has undertaken an internal review of its admissions practices.

“Following the Supreme Court’s recent decision, we are in the process of reviewing aspects of our admissions policies to assure compliance with the law and to carry forward Harvard’s longstanding commitment to welcoming students of extraordinary talent and promise who come from a wide range of backgrounds, perspectives, and life experiences,” Harvard spokesperson Jonathan L. Swain wrote in a statement after the Education Department announced its investigation into the University’s use of legacy and donor admissions preferences.

In an interview with The Crimson, Sen. Elizabeth Warren (D-Mass.), a former Harvard Law School professor, stressed that the issue of legacy and donor admissions preferences “isn’t about a single college.”

“This is about how to rethink the rules around college admissions in light of the Supreme Court destroying one of the principal tools that schools have used to diversify their student body,” Warren said. “Both legacy admissions and country clubs sports admissions policies tilt against diversity — and Congress may want to look at that more closely.”

But Warren cautioned that some of her Republican colleagues may not support a congressional probe into legacy and donor admissions practices in higher education.

“The reason I say ‘may’ is there may be some people on the other side of the aisle who are just fine with that tilt built into the admissions process,” Warren said.

“We spend a lot of federal dollars in these schools and have a lot of other rules that the Education Department administers to create more fairness in our overall higher ed system,” she added. “This is now the issue that is ripe.”

While Merkley and Bowman’s bill does not have a single Republican co-sponsor — a sign it stands little chance of passing a GOP-controlled House and divided Senate — some conservatives have expressed general support for ending legacy and donor admissions preferences.

Sen. Elizabeth Warren (D-Mass.), pictured in 2020, said in an interview that some of her colleagues in Congress may not support a probe into legacy and donor preferences. By Camille G. Caldera

After the ruling against Harvard in June, Sen. Tim Scott (R-S.C.) — a candidate for the 2024 Republican presidential nomination — called on Harvard to end legacy preferences in an interview with Fox News.

“I think the question is, ‘How do you continue to create a culture where education is the goal for every single part of our community?’” Scott said. “One of the things that Harvard can do to make that even better is to eliminate any legacy programs where they have preferential treatment for legacy kids.”

Complying with the Court

Though some conservatives have joined efforts to limit legacy and donor preferences, far more have sought to continue the campaign against affirmative action — with the latest conflict over concerns that elite institutions of higher education will seek to sidestep the Court’s ruling.

The skepticism comes even after many universities — including Harvard — released public statements promising to respect the Supreme Court’s ruling, indicating that conservative attacks against elite institutions of higher education won’t subside anytime soon.

In an email to affiliates sent hours after the Court handed down its decision, Harvard’s top leadership reaffirmed the University’s commitment to diversity while promising to abide by the law.

“We will certainly comply with the Court’s decision,” wrote 18 top Harvard administrators, including outgoing President Lawrence S. Bacow and Gay, the incoming president.

“In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values,” the administrators added.

Still, some congressional Republicans were left unconvinced by assurances from Harvard and peer institutions that the universities would abide by the Court’s decision.

Sen. Ted Cruz (R-Texas) wrote in a statement to The Crimson that he has “no doubt that college admissions offices will continue to try every trick they can to work around the Supreme Court’s decision.”

“Fortunately, the public has caught on to what these officials were doing, and will likely be keeping a close eye on them in the future,” added Cruz, a Harvard Law graduate.

Sen. J.D. Vance (R-Ohio) went even further, accusing Harvard and nine other higher education institutions of “an intention to circumvent” the Supreme Court’s ruling in a July 6 letter. Vance also threatened to probe the institutions’ admissions policies and told the schools to “retain admissions documents in anticipation of future congressional investigations.”

Nearly every university named in Vance’s letter committed to abiding by the Supreme Court’s ruling — and none indicated that they would attempt to circumvent it.

Vance also expressed frustration with how Harvard and the nine other universities replied to his July 6 letter, saying in an interview that the institutions all wrote similar letters and accused them of responding in a “frankly collusive way” and in a manner that “suggests they have no real interest in following the law.”

“They don’t have to agree with the Supreme Court’s ruling — I’m sure a lot of Americans don’t,” Vance said. “But when the Supreme Court makes a ruling, it is not up to the Harvard or Yale or Princeton administrator to ignore it.”

But in a response to Vance, Harvard General Counsel Diane E. Lopez reiterated the University’s commitment to abide by the law, according to a July 20 letter obtained by The Crimson.

Harvard and a number of its peer universities issued statements promising compliance following the Supreme Court's June 29 ruling severely curtailing race-based affirmative action in higher education. By Julian J. Giordano

“Let me first unequivocally state that Harvard University will fully comply with the Court’s decision,” Lopez wrote. “I hope you had an opportunity to read the full statement issued by the University in which the University’s academic leadership and key senior officers jointly affirmed that they would do so.”

Vance, however, escalated his feud with the universities by asking Lina M. Khan, chair of the Federal Trade Commission, to investigate whether the schools might be in violation of antitrust laws because Vance claimed the universities coordinated their responses to his original letter.

“Schools that maintain regular communication and profess shared interests, including an interest in maintaining a ‘racially diverse’ student body, may be tempted to jointly adopt new and experimental policies, such as preferences for low-income students, assured in the knowledge that their competitors will not do otherwise,” Vance wrote in an Aug. 10 letter to Khan.

In an interview with The Crimson in late July, Vance left open the possibility that he will request Gay testify before Congress about Harvard’s admissions practices.

Vance also took aim at higher education more broadly while promising to continue to press Harvard and other universities to comply with the Supreme Court’s ruling.

“I don’t like the system of higher education that we have in this country,” he said. “But given that we do have that system, you cannot create a racially discriminatory way of admitting people into our best colleges.”

“So yeah, we’re gonna follow this and try to create some actual equity in this country, not the fake equity that people are trying to put on the books,” Vance added.

A Reckoning for Higher Ed

While shaping the future of Harvard’s admissions policies will almost certainly define the beginning of her presidency, Gay — like her two immediate predecessors — will need to steer the University through a larger nationwide political fight over the future of higher education.

Paul Reville, a professor of educational policy and administration at the Harvard Graduate School of Education, said he believes “higher education has been under attack for some time.”

“Affirmative action is only one front in a battle being waged against the legitimacy of higher education,” Reville said.

Over the coming years, Reville expects to see the curricula and business models of higher education institutions to come under increased attack from both federal and state politicians — battles, he said, that will impact far more students than the current fight over admissions.

University President Claudine Gay's first challenge at the helm of Harvard will be handling scrutiny over the College's admissions policies. By Marina Qu

But Gay’s first major test as president will require navigating Harvard’s commitment to diversity in the aftermath of the Supreme Court ruling while contending with internal and external pressures around the University’s legacy and donor admissions preferences.

Former University President Lawrence H. Summers has called on elite universities to end legacy preferences and also encouraged the institutions to review other admissions policies, such as boosts for athletes.

“I would be somewhat surprised if five years from now the position of the U.S. elite higher education institutions on legacy admissions isn’t different than it is today,” Summers said in an interview in August. “And I hope it will evolve.”

Some newly elected members of the Harvard Board of Overseers — the University’s second-highest governing body — have also expressed support for ending legacy admissions.

Fiona Hill, who was elected to a six-year term to the Board of Overseers in May, made abolishing legacy admissions preferences a cornerstone issue of her campaign for a seat on the Board.

While leaders in Washington are also calling on Harvard to adapt its admissions policies, Summers suggested that Gay — as University president — might be more focused on the Harvard affiliates calling for an end to legacy and donor preferences.

“Presidents of Harvard have found it useful to be able to communicate with key figures in Congress and the executive branch,” Summers said. “But I don’t think those relationships are the most important relationships for a Harvard president compared with relationships with students, with faculty, with alumni, with local political leaders.”

But it’s not just a handful of politicians in Washington who have taken a keen interest in the status of legacy admissions in elite higher education institutions. As public scrutiny intensifies, Harvard’s bid to maintain an image of unrivaled commitment to diversity in education has also grown more challenging.

James S. Murphy — deputy director of higher education policy at nonpartisan think tank Education Reform Now — said he is “very confident” that many universities will drop legacy admissions this fall.

“This is the diversity test for colleges this summer, and it’s a basic one,” Murphy said. “If you don’t get rid of legacy, then all of the statements that were released the day of the decision were empty.”

The challenge for university presidents like Gay, Murphy said, is to have the courage to break with centuries of institutional practice.

“It was blindingly clear that part of the barrier here is this incredibly old guard who is so enmeshed in these traditions that it’s hard for them to see their way around it,” Murphy said.

Ivory A. Toldson — national director of Education Innovation and Research for the NAACP and a psychology professor at Howard University — predicted a more prolonged timeline, pointing to the importance of donor and legacy preferences in generating donations and other financial benefits for universities like Harvard.

“I don’t think they’re going to give up that funding without a fight,” Toldson said. Still, he said, Harvard may voluntarily do away with legacy preferential admissions if there is sufficient public pressure — that is, “if it gets to the point where it’s embarrassing for the institution.”

But for Toldson, the debate around legacy also comes down to the loss of race-conscious admissions, which served as a “neutralizing” force.

“It provided at least something that institutions could do to offset all of the preferences they’re giving in all of these other areas,” Toldson said. “You can’t say that legacy admissions won’t deny opportunities to underrepresented students. That’s just not true.”

“The only thing you can say is that it’s being offset by another practice or policy,” he said. “So what is that?”

—Staff writer Miles J. Herszenhorn can be reached at miles.herszenhorn@thecrimson.com. Follow him on X @mherszenhorn or on Threads @mileshersz.

—Staff writer Claire Yuan can be reached at claire.yuan@thecrimson.com. Follow her on X @claireyuan33.