No Distinctions Except Those Which Merit Originates: The Unlawfulness of Legacy Preferences in Public and Private Universities

Abstract

Legacy preferences in college admissions offend the fundamental values of a society founded on equality and committed to social mobility based on talent and merit. Amassing extensive legislative history of the Civil Rights Act of 1866 and the Joint Resolution that became the Fourteenth Amendment, this article shows that the 39th Congress enacted into positive law the principle against hereditary distinctions that the Founders had inscribed in the Declaration of Independence and the egalitarian provisions of the 1787 Constitution. The Republicans who dominated the 39th Congress understood the Declaration's statement that "all men are created equal" specifically to reject hereditary distinctions among white men. They codified this principle and extended it to proscribe discrimination based on inherited race.

Congress' rejection of lineage as a permissible basis for discrimination is confirmed in the 1866 Act's definition of a "citizen" as anyone (with limited exceptions) who was born in the United States. Congress expressly rejected the view - reflected in the Dred Scott decision and in southern State statutes - that citizenship should be determined by family lineage. Congress ultimately viewed even the 1866 Act as too status-based, so the Equal Protection Guarantee extends its protection to "all persons" rather than only citizens.

Although the caselaw is sparse, Supreme Court precedent confirms that strict scrutiny applies to hereditary distinctions under the Equal Protection Guarantee. The Court has also prohibited "race" and "ancestry" discrimination under the 1866 Act and has stated in dicta that this proscription applies to discrimination based on family lineage. Legacy preferences are therefore presumptively unlawful in both public and private universities.

The article also shows that legacy preferences cannot survive strict scrutiny because the universities' justification for legacy preferences - that they result in increased alumni donations - is not legally cognizable. And our analysis of extensive data from more than 100 elite universities suggests that in fact there is no correlation between legacy preferences and increased university revenues.

Keywords: legacy preferences, legacy, preferences, Civil Rights Act of 1866, Equal Protection Clause, Fourteenth Amendment, 42 U.S.C. 1981