If I had a nickel for every time I heard the following, I could buy the University of Michigan: “There’s nothing wrong with a university giving applicants a preference for being black or Latino, because universities give preferences all the time to sons and daughters of alumni.”
The short answer to this argument is: “Don’t change the subject. Whether legacy preferences make sense is a completely different question from whether preferences on the basis of skin color and national origin make sense.”
Racial and ethnic discrimination is, after all, morally very different from legacy preferences, and the social costs — the resentment, stigmatization, troubling precedent being set, and so forth — are much higher. It is also true that legacy preferences are generally less heavily weighted than racial and ethnic preferences, and that, even if the former were objectionable, they are perfectly legal and so no one can sue over them. Racial discrimination, on the other hand, is at odds with the Constitution and civil-rights laws.
But having given the short answer, let me spin this out a bit further. For purposes of this discussion, I’m going to assume that legacy preferences have a disparate racial impact, but that they are not racially motivated. That’s a reasonable assumption. Their principal justification is economic — they encourage alumni to donate money to the school — and they also help create community and tradition for the school. That said, let me also say at the outset that my own inclination would be to get rid of alumni preferences for state schools, simply because it doesn’t seem fair to hold it against the child of the taxpayer who is supporting them that he didn’t go there.
The reply to my short answer might be that, while it is true so far as it goes, it ignores the kernel of a valid point in legacy/race equation: Neither is about academic ability, and since alumni are more likely to be white (or Asian) than black (or Latino), therefore it makes sense to counterbalance legacy preferences with preferences for blacks and Latinos. This is especially true since the disparity is in part a result of past discrimination (although this argument doesn’t work particularly well since preferences are given to Latinos relative to Asians, even though the past discrimination suffered by each was roughly comparable).
But the overwhelming majority of white and Asian applicants to any school are not children of alumni, so giving a preference to other groups simply results in double discrimination against most applicants, who are neither legacies nor the right skin color (it also would give a double preference to blacks and Latinos who happen to be legacies).
But, the objection continues, whites and Asians are more likely to have parents who are alumni from somewhere, and blacks and Latinos are more likely to have parents who are alumni from nowhere, so the net effect of legacy preferences is to help whites and Asians get in somewhere — assuming all schools have them — so why not counterbalance this?
But the logical counterbalance in this case would be a preference to all students for whom neither parent went to college. Why assume that all whites and Asians have a parent who is an alumnus, and that no blacks and Latinos do? Besides, a student may have strong and legitimate reasons for wanting to go to, say, the University of Michigan rather than his father’s alma mater at Mesa State in Colorado, and it’s not at all clear why the preference he might get at the latter — but doesn’t want — should justify racial discrimination against him at the former.
Just because a selection criterion has a disparate impact on the basis of race — even when the impact can arguably be traced in some way to past discrimination — doesn’t justify an overlay of racial preference on top of it. It makes more sense simply to modify the criterion in a race-neutral way, or to get rid of it altogether, than to add overt discrimination to it. (I’m not even comfortable with choosing facially neutral criteria with an eye on the racial and ethnic bottom line.) And to the extent that racial preferences are justified as a means of addressing America’s past history of discrimination, the Supreme Court has already rejected the argument, and it is not being advanced by the University of Michigan today.
Let’s get more fundamental. It is certainly true that a parent’s assets — wealth, status, connections, and so forth — can help pave the way for the child, to college and elsewhere in life. And there is no doubt that this results in some children getting more than they would be entitled to if they had to rely on their own merits and other children getting less.
The basic conservative answer to this is that we can’t remove all unfairness from life and, if we try to do so, we are likely to create worse unfairness due to a variety of unintended consequences. There is little to be done about the phenomenon of people wanting to make life pleasant for their children, and even if we could stop them, do we really want to?
But even if we do want to ameliorate the disparities in fortune among ourselves, it does not follow that we should use racial and ethnic discrimination to do so. There are more poor whites in this country than poor blacks, and most black people are not poor, so why use race as a proxy for status?
In the Wall Street Journal last week, Al Hunt complained bitterly that George W. Bush ignores “the affirmative action, as a legacy, that got him into Yale 38 years ago, and carried him through much of his life.” Hunt is not the first person to make this point and, no doubt about it, Dubya’s life chances weren’t hurt by having as his father the most powerful man in the world. But, believe it or not, relatively few whites can claim a president as father, and it makes little sense to punish all of them for the few who do.
— Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.