Good-Faith Debates About Legacy Admissions

Not long ago, most of us had cheerful arguments with friends about important matters: Some liked the idea of charter schools, others didn’t; some favored gay marriage, others didn’t; some wanted abortion to be legal in non-exceptional circumstances, others didn’t. But these days, simply to question a frequently bizarre orthodoxy that is simultaneously merciless and ever-shifting can lead to a loss of friendship—and even life.

All the talk about legacy admissions in the wake of the Supreme Court ruling in the Students for Fair Admissions (SFFA) case has made me especially nostalgic for the civility and, often, banter with which so many spirited disagreements used to be conducted. After all, on the basis of what I know about their views otherwise, legacy admissions is an issue on which I can’t always predict where even my friends stand. Perhaps this is not too surprising when I’m not sure where I stand myself—and all the more reason, therefore, to want to know what others think. Shouldn’t everyone wish to hear the best arguments for both sides? It would be terrific to listen to the best high-school debaters in the country take this on—except, as James Fishback has described in sickening terms in two pieces in The Free Press, debate is not what it once was.

Since the matter has gone in a matter of weeks from a minor drumbeat in America’s symphony to a full-scale percussion ensemble, I take the opportunity to remind everyone that the best way forward is to express yourself openly and in good faith—and to assume, unless there is clear evidence to the contrary, that those who disagree with you are exhibiting good faith as well. Most Americans, regardless of political alignment, would be glad to see the end of legacy admissions, with many no longer shy about saying this publicly, so if you happen to have the opposite point of view, it is particularly important that you take what I have called the Heterodox Challenge and tell us all why.

At AEI, Rick Hess and my immediate boss, Yuval Levin, have come out strongly opposed to legacy admissions while Jonah Goldberg appears wishy-washy, as am I. (I haven’t noticed that anyone in the building is strongly in favor. If you are, please speak up!) The absence of a monoculture is a good thing: It would be odd if an organization with a wide ambit presented a unified institutional voice on every contentious matter.

May I recommend the ongoing “symposium on legacy admissions” sponsored by the National Association of Scholars, whose Board of Directors I am joining next year? The first five pieces, one of them by me, were published between July 26th and August 3rd, and I have enjoyed the personal touches and exuberance of Bruce Gilley, Neetu Arnold, David Randall, and Paul du Quenoy even when, as I see it, they sometimes overstate their respective cases for and against the practice.

The months ahead will be interesting. I doubt that the courts will be sympathetic to suits against private universities like the one that Lawyers for Civil Rights (LCR) has filed against Harvard; as for public ones, I am skeptical that legacy admissions will be deemed unconstitutional here, either, though Carlton F.W. Larson makes a fascinating case that giving advantages to applicants with family ties violates the Nobility Clauses, which prohibit hereditary privilege. If legacy admissions is to be abandoned, it will probably be because one or more of the most elite institutions gamble on following the lead of the more than one hundred colleges and universities that ditched the practice already before this past academic year. Alternatively, it could happen through legislative action. In any case, the justification is likely to be moral rather than constitutional.

Representative Jamaal Bowman (D–NY–16) and Senator Jeff Merkley (D–OR) have now reintroduced a bill from the 117th Congress, the Fair College Admissions for Students Act (H.R. 6559 and S. 3559), which would ban the use of at least some federal funds for most colleges that keep legacy admissions. That’s not unreasonable. However, LCR, Rep. Bowman, and others really should stop linking their desire to ban legacy admissions to the new ban on race-conscious admissions when there is no legal connection and arguably not much of an intellectual one.

It is disturbing that Rep. Bowman, in an interview with the Chronicle of Higher Education, not only claims that the SFFA decision is a “clear” example of racism but states, “For the Supreme Court to end affirmative action and not touch legacy admissions, and use the 14th Amendment to do so, is disingenuous and unacceptable.” Either Rep. Bowman doesn’t understand how our government works or he is taking his constituents for fools. Let’s by all means argue about legacy admissions—but in good faith.