Affirmative Action and Legacy Admissions: Constitutional Paradoxes

In the realm of higher education, legacy admissions and affirmative action remain two controversial but distinct policies that schools employ in their admissions processes. While the constitutionality of affirmative action has been rigorously debated, legacy admissions have managed to navigate around constitutional scrutiny. This article delves into the reasons why legacy admissions may be deemed constitutional despite their seemingly discriminatory nature.

The Unconstitutionality of Affirmative Action

Affirmative action in admissions refers to policies aimed at increasing the representation of historically underrepresented groups, often based on race or ethnicity. However, this policy has faced significant legal challenges, leading some to argue that it may be unconstitutional. The U.S. Supreme Court has upheld affirmative action in several cases, but the debate over its constitutionality continues.

The Constitutional Absence of a Broad Anti-Discrimination Rule

While the argument about affirmative action highlights the Constitution's limitations in addressing discrimination based on race or ethnicity, there is another form of discrimination that is less contested: legacy admissions. The legality of legacy admissions is not regularly challenged precisely because the Constitution does not criminalize all forms of discrimination.

The Constitution and related state and federal laws do not prohibit all discrimination. Instead, they prevent discrimination based on protected classes such as race, ethnicity, and sometimes gender. This selective discrimination makes it significantly harder to claim that legacy admissions violate constitutional principles.

Selective Discrimination in University Admissions

Higher education institutions engage in various forms of selective discrimination in their admissions processes:

Academic Aptitude: Universities discriminate between promising students and those lacking clear academic aptitude. This is a form of discrimination that is widely accepted and understood. Extra-Curricular Activities: Many institutions favor students who excel in sports, music, and the arts. This type of discrimination is also considered acceptable and does not violate constitutional norms. Community Engagement: Community involvement is another factor considered during admissions. This is a form of discrimination that is seen as beneficial and is generally accepted. Wealth and Affordability: Universities also discriminate in favor of wealthy students who can afford to pay their tuition. This is a form of discrimination that, while criticized, is not considered unconstitutional.

These examples underscore that discrimination in the traditional sense is already prevalent in university admissions, and thus, legacy admissions are viewed through a similar lens.

Legal Distinction Between Legacy Admissions and Affirmative Action

Legacy admissions advantage the relatives of alumni, but this is fundamentally different from affirmative action. Here are the key distinctions:

Advantage for the Advantaged: Legacy admissions generally provide an advantage to individuals already benefiting from certain privileges. This fact often makes them unpopular among those without such connections. No Racial or Ethnic Basis: When an institution states “Junior gets an edge because his mother and grandfather attended,” it is not motivated by the need to increase diversity based on race or ethnicity. This is crucial in distinguishing legacy admissions from affirmative action. Protection of Admissions Practices: The legal system focuses on specific issues presented to the court. Absent a challenge, legacy admissions are unlikely to be ruled unconstitutional because they do not involve discriminatory practices based on protected classes.

Moreover, the Supreme Court's role is to address the specific cases and issues before it, not to make broad, sweeping pronouncements about hypothetical future cases. This means that even if legacy admissions are widely criticized, they remain constitutionally acceptable until challenged. Since they have not been systematically challenged, the legal protections for legacy admissions remain intact.

Conclusion

Legacy admissions and affirmative action represent different forms of discrimination in the context of college admissions. While affirmative action often faces strong legal and ethical opposition, legacy admissions continue to operate under the radar due to constitutional limitations. The legal principles at play here underscore the complex and nuanced nature of university admissions policies.