By Steve Shadowen, an attorney at Hangley Aronchick Segal & Pudlin. Shadowen has previously written about legacy preferences for the Santa Clara Law Review and the George Mason University Civil Rights Law Journal. He was also a participant at a recent panel discussion by The Century Foundation about its new book, Affirmative Action for the Rich: Legacy Preferences in College Admissions. Video of that panel discussion is available here.
A recently published book, Affirmative Action for the Rich, addresses the history, sociology, economics, and law related to legacy preferences in college admissions. Almost 85 percent of elite colleges and universities in the United States grant or withhold these preferences based on applicants' ancestry, i.e., on whether they are the children or grandchildren of the school's alumni. These "legacy preferences" are straightforward violations of the Equal Protection principle, articulated in Hirabayashi v. United States that "distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality."
Some lawyers anachronistically resist the idea that the forbidden "ancestry" classification includes family lineage as well as broader lineage-based categories such as "race" or "ethnicity." But as Justice Potter Stewart wrote, the Founders who overthrew the vestiges of feudalism and aristocracy understood equality to require precisely the elimination of "distinctions among white men on account of their birth," i.e., distinctions based on family lineage. [Fullilove v. Klutznick] For example, Jefferson understood the "natural equality of man" to include "particularly the denial of a preeminence by birth." [April 16, 1784 letter to George Washington] The colonists' victory over family-lineage distinctions was reflected in the Constitution's: (1) guarantee of a republican, as opposed to an aristocratic, form of government; (2) ban on granting titles of nobility; (3) "Corruption of Blood" Clauses, which prevent capital crimes from staining the perpetrator's family lineage; and (4) Attainder Clauses, which prohibit government from penalizing persons based on their identity or status rather than their conduct.
Justice Stewart noted, however, that the original Founders failed to extend this principle to protect African Americans, a task that fell to the framers of the Equal Protection Clause. That Clause, concluded Justice Stewart, codified and expanded the principle against hereditary distinctions and thus "promised to carry to its necessary conclusion a fundamental principle upon which this Nation had been founded - that the law would honor no preference based on lineage." For example, John Bingham believed that the Declaration had embodied the biblical prescription that the law, like God, is "no respecter of persons." [Debates on the 1866 Civil Rights Act] Bingham drafted the Equal Protection Clause to codify this principle against hereditary distinctions and broaden it to prohibit discrimination based on inherited race.
The rejection of family-lineage discrimination is also reflected in the Fourteenth Amendment's Citizenship Clause, which overturned the Dred Scott doctrine that native-born African Americans "from birth or parentage" inherited their parents' ineligibility for U.S. citizenship. The Republicans of the 39th Congress expressly rejected lineage-based citizenship and instead extended national citizenship and its guarantee of equality to all persons born in the United States "of whatever caste or lineage they be." [Debates on 1866 Civil Rights Act]
The Supreme Court consistently has said that discrimination based on "lineage" or "ancestry" (apart from any additional or concurrent discrimination based on racial or ethnic group) is inherently suspect. For example, Oyama v. California invalidated a statute that discriminated against an American child on the basis that his father was a Japanese national ineligible for U.S. citizenship. The statute was unlawful because "the father's deeds were visited on the son." Similarly, Plyler v. Doe struck down a statute that denied a public education to young children who could not prove they had been lawfully admitted into the United States. Heightened scrutiny applied because "the children who are plaintiffs in these cases ‘can affect neither their parents' conduct nor their own status.'" Discriminating against children based on the conduct of their parents erects an "unreasonable obstacle to advancement on the basis of individual merit." The Court has also held that strict scrutiny applies to race discrimination in part because it is a form of discrimination based on lineage or ancestry. [Rice v. Cayetano] And heightened scrutiny applies to distinctions based on the marital status of a child's parents because "no child is responsible for his birth" and the Equal Protection Clause "enable[s] us to strike down discriminatory laws relating to status of birth." [Webber v. Aetna Casualty & Surety Co.] This domestic law accords with customary international law reflected, for example, in Articles 2 and 26 of the Universal Declaration of Human Rights. Those Articles provide that all persons have a right to higher education without distinctions based on, inter alia, "birth," a requirement that the delegates specifically understood to preclude distinctions "in the sense of inherited privileges for the sons of noblemen, capitalists, party leaders and so on." [Mr. Mayhew of the United Kingdom] Indeed, Eleanor Roosevelt emphasized that Article 26's requirement that "higher education shall be equally accessible to all on the basis of merit" precludes admissions preferences based on "personal . . . favour."
Britain's Labour Party invoked these principles in the mid-twentieth century to end legacy preferences at Oxford and Cambridge. The President of Trinity College explained that in modern democratic society schools must deny special consideration even to the children of major donors: "Parentage, like patronage, no doubt conclusive in 18th-century Oxford admissions, is irrelevant in those of the 21st century."
Today the United States is the only nation in the world whose elite universities discriminate in admissions based on family lineage. Legacy preferences are anomaly within the world community and within our own traditions and law.