The Supreme Court, Affirmative Action, Legacy Preference, and What Parents Need to Know

Disclaimer: This explainer is for informational purposes only and is not intended to provide individual advice or indicate a preferred Supreme Court ruling. Further, the content presented here should not be considered a substitute for professional, individualized advice. Every situation is unique, and you should consult directly with a college admissions expert to determine the best course of action for your specific circumstance.

CONTENTS (Below)

• TLDR SUMMARY

• WHAT IS AFFIRMATIVE ACTION?

• WHAT THE SUPREME COURT HAS ALREADY SAID ON RACE-CONSCIOUS ADMISSIONS

• DID ORAL ARGUMENTS REVEAL WHAT’S GOING TO HAPPEN?

• THE “25-YEAR TIME HORIZON”

• HOW TO HANDLE ADMISSIONS IN A POST-RACE-CONSCIOUS ADMISSIONS WORLD

• HOW EXACTLY WOULD THEY STRIKE DOWN AFFIRMATIVE ACTION?

• WHAT DOES AFFIRMATIVE ACTION HAVE TO DO WITH LEGACY ADMISSIONS?

• HOW DOES ALL OF THIS CHANGE HOW I SHOULD BE THINKING ABOUT COLLEGE ADMISSIONS FOR MY CHILD

TLDR SUMMARY

• Right now, the U.S. Supreme Court is considering two companion cases — Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. the University of North Carolina— that will decide the future of race-conscious admissions in America. 

• The Students for Fair Admissions (SFFA) plaintiff argues that the colleges’ use of race as part of a holistic review of applicants to create a diverse student body discriminates against applicants based on race. SFFA alleges that Harvard College violates Title VI of the Civil Rights Act by engaging in the racial balancing of its student population, overemphasizing race as an admissions factor, and rejecting workable race-neutral alternative criteria during the admissions process. It also alleges that the University of North Carolina violates the Equal Protection Clause of the Fourteenth Amendment by using a race-conscious admissions process when doing so is not necessary to achieve a diverse student body.

• Based on oral arguments, experts widely conclude that the court is expected to rule in late June that colleges and universities can no longer consider race in their admissions processes. 

• While the full scale of impacts will take years to become apparent, parents should expect that, if affirmative action is struck down, colleges and universities could begin changing how they factor race and legacies into their holistic admissions review as early as later this year.

• Precisely what those policy changes will look like will depend significantly on the wording of the majority and minority’s written opinions; they’ll outline parameters for how colleges and universities can use race in the admissions process. In other words, even if colleges and universities cannot explicitly use race as a factor in admissions, according to legal scholars, “there are a wide range of avenues for colleges and universities to consider the impact and role race has played in applicants’ lives, as well as each applicant’s individualized, racial experience.” 

• The decision could also have wide-ranging effects, including on K-12 admissions and consideration of “legacies” in the admissions process. While the ruling will not address them directly, educational experts agree that the likelihood, if affirmative action is struck down, is that schools will quickly move – or be pressured to – end legacy preference, given that studies show it predominantly favors white students from higher socioeconomic backgrounds. And it could happen quickly.

• No matter what the Supreme Court decides in June – or what schools and universities decide to do about legacy preference in admissions – parents should understand that eliminating either (or both) will not significantly increase OR decrease your child’s chances of acceptance into their dream school; these factors are just two in a long list of factors being evaluated by admissions officials during a holistic review of your child’s application.

• The safest and most strategic assumption to ensure that your student is accepted into the school of their dreams is to work to build a college list that prioritizes fit and spend high school years putting together an authentic, compelling narrative with the academics, extracurriculars, volunteer, and leadership experience that will make them stand out during the admissions process.

WHAT IS AFFIRMATIVE ACTION?

Affirmative action has a long and complex history in the United States. The policy first emerged in the 1960s to address the historical discrimination and underrepresentation of certain groups in education and employment, particularly Black Americans and other people of color. The original goal was to level the playing field and provide opportunities for those historically excluded or disadvantaged. In the early years of affirmative action, policies often took the form of quotas or numerical goals for hiring or admissions. 

However, in the decades since its inception, affirmative action has faced significant backlash and legal challenges. Opponents of affirmative action argue that it violates the principle of meritocracy by giving preference to certain groups based on their race or ethnicity rather than their qualifications or abilities. They also argue that affirmative action undermines the value of hard work and individual achievement, creating resentment and tension between racial and ethnic groups. In recent years, some opponents of affirmative action have also argued that the policy is no longer necessary, as the country has made significant progress in achieving racial and ethnic equality. They contend that affirmative action is a relic of the past and that it is time to move towards a genuinely color-blind society where race and ethnicity are not factors in hiring or admissions decisions. Despite these criticisms, many proponents of affirmative action continue to argue that the policy is necessary to promote diversity and address ongoing discrimination and inequality in society. They point to studies showing that diversity in higher education leads to better student outcomes and that affirmative action is essential for achieving that diversity.

The debate over affirmative action is contentious and ongoing, and the upcoming Supreme Court cases will likely reignite the controversy around this complex and controversial policy.

WHAT THE SUPREME COURT HAS ALREADY SAID ON RACE-CONSCIOUS ADMISSIONS

In 1978, the Supreme Court held in the University of California Regents v. Bakke that using race in admissions to achieve a diverse student body is constitutionally permissible. In 2003, the Court held in Grutter v. Bollinger that the University of Michigan Law School was permitted to consider race in its admissions process as part of its efforts to assemble a diverse student body. In 2013, the Court considered and affirmed the use of race-conscious processes in undergraduate admissions in Fisher v. University of Texas at Austin. 

DID ORAL ARGUMENTS REVEAL WHAT’S GOING TO HAPPEN?

Oral arguments, in this case, were heard on October 31, 2022. The Court explored many hypothetical situations, delved into legal complexities, and discussed a range f topics related to affirmative action in college admissions. Here are a few key points that deserve attention:

THE “25-YEAR TIME HORIZON”

One of the most discussed topics at the oral arguments was the 25-year time horizon outlined in the 2003 Grutter case. This case involved race-conscious admissions policies at the University of Michigan Law School. In her majority opinion, Justice O'Connor stated that the Court expected such policies would no longer be necessary in 25 years to achieve the diversity that universities were seeking. At the recent oral arguments, there were conflicting views on whether this meant that colleges and universities must use race-neutral or colorblind admissions systems by 2028 or whether the 25-year timeline was a projection of when race-conscious admissions would no longer be necessary to ensure diversity in higher education. The advocates arguing in favor of race-conscious admissions could not articulate an exact timeframe where race-conscious admissions would not be necessary to achieve a critical mass of diversity. This lack of specificity seemed to rankle several more conservative Justices, including Chief Justice Roberts and Justices Barrett and Kavanaugh.

HOW TO HANDLE ADMISSIONS IN A POST-RACE-CONSCIOUS ADMISSIONS WORLD

There were also a number of questions about how to handle higher education admissions in a post-race-conscious admissions world. This signaled that some of the Justices were leaning toward doing away with affirmative action in college admissions.

Justice Thomas, who was in the dissent in Grutter, expressed considerable skepticism of diversity as a legitimate rationale for colleges and universities. He stated that diversity is too ephemeral a concept and that it “seems to mean everything for everyone.” He also questioned the direct educational benefits of diversity, wondering whether a “diverse” classroom yields better chemists or physicists.

The three most liberal justices, Justices Kagan, Sotomayor, and Jackson, pushed back significantly on the position taken by the Students for Fair Admissions (SFFA), challenging Harvard's admissions policies. Justice Kagan spoke critically of the SFFA brief, which, in her words, takes the position that “it just doesn’t matter if our institutions look like America.” She spoke of the pathways to leadership presented by higher education and that if these pathways are not diverse, the leadership of the United States will not be either. Justice Sotomayor also criticized the simulations presented by SFFA in its briefs, citing that the District Court found them to be not workable. In each simulation, she noted, the enrollment of Black applicants dropped by a significant margin. Justice Jackson raised an interesting hypothesis regarding the potential inability of students to discuss their cultural experiences in admissions essays. SFFA contended that this would only be permissible if such essays weren’t used as a proxy for race. But Justice Jackson suggested that allowing one student to speak on their experiences – a white applicant speaking about their family history going back several hundred years, for example – but another being precluded from doing so because of race – a Black applicant being restricted from doing so because of the necessary mention of slavery – could be an equal protection violation. She discussed how striking down affirmative action would lead admissions committees to “value” such a white applicant’s history and culture without being presented with any information about a Black applicant’s history and culture.

HOW EXACTLY WOULD THEY STRIKE DOWN AFFIRMATIVE ACTION?

Experts agree that the Court could accomplish the end of race-conscious admissions policies one of two ways: the majority might overrule Grutter and other precedents mentioned above overtly or the Court might allow Grutter to “expire” in 2028 in accordance with the 25-year timeline set out in Justice O’Connor’s opinion.

But words here will matter – a lot. 

As one expert said, “Regardless of how it happens, the wording of the majority and minority’s written opinions will be critical in outlining the parameters for using race in the higher education admissions process moving forward. Although an explicit use of race as a factor in admissions will likely be unconstitutional after this ruling, there are a wide range of avenues for colleges and universities to consider the impact and role race has played in applicants’ lives and each applicant’s individualized racial experience. This is because colleges and universities will still be able to continue promoting a holistic and individualized evaluation of applicants.”

WHAT DOES AFFIRMATIVE ACTION HAVE TO DO WITH LEGACY ADMISSIONS? 

When it comes to any Supreme Court case that could make sweeping changes to the way colleges and universities evaluate applicants and make admissions decisions, the impacts will be deep – and in this particular case, legacy admissions, or the practice of giving a preference to the children of alumni, is implicated. In fact, when the U.S. Supreme Court heard arguments on affirmative action, justices on both sides of the debate discussed legacy admissions: 

Justice Ketanji Brown Jackson said, “A university can take into account and value all of the other background and personal characteristics of other applicants, but they can’t value race.” She said she worried “that that seems to me to have the potential of causing more of an equal protection problem than it’s actually solving.”

She offered a hypothetical example involving two applicants to the University of North Carolina at Chapel Hill. (Jackson recused herself from the Harvard University case.)

“The first applicant says, ‘I’m from North Carolina. My family has been in this area for generations, since before the Civil War, and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that, and given my family background, it’s important to me that I get to attend this university. I want to honor my family’s legacy by going to this school.’”

She continued, “The second applicant says, ‘I’m from North Carolina, my family’s been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity, and given my family—family background, it’s important to me to attend this university. I want to honor my family legacy by going to this school.’”

Jackson told a lawyer for Students for Fair Admissions, which sued UNC and Harvard over affirmative action, that “as I understand your no-race-conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count. The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn’t be able to because his story is in many ways bound up with his race and with the race of his ancestors.”

Her argument was essentially that legacy preferences, at least those that extend several generations, overwhelmingly favor white applicants.

The colleges and universities that continue legacy preferences are predominantly located on the East Cost. Most are private, but that’s not universally true – 80% of Virginia’s public colleges do. And what’s notable here is, as one educational policy analyst recently noted, many of the colleges that offer legacy admissions are also among the colleges where a ban on affirmative action would have the most impact. 

While the Supreme Court decision will not make a ruling on the issue of legacies, many education experts expect that if colleges and universities are no longer allowed to consider the race of an applicant in admissions decisions, many will have to – or be pressured to – do away with legacy preferences given their outsized benefit to predominantly white students and students of a higher socioeconomic class. For example, Harvard data reveals that the institution admits one-third of legacy applicants – with a 6% acceptance rate in 2014, which means family connections increase a student’s chance of being admitted by more than 500%. Robert J. Massa, principal and co-founder of Enrollment Intelligence Now, said, “Because it will be increasingly difficult to justify legacy admission at the 70 or so most selective institutions in the country, we are likely to see its elimination as standard practice systemwide.” 

How quickly it happens after a Supreme Court decision is anyone’s guess – but the safe assumption, according to experts, is that it will happen quickly. Since 2015, 100 universities have dropped the use of legacy admissions, including public institutions like the universities of Florida and Connecticut, as well as several notable private schools. 

HOW DOES ALL OF THIS CHANGE HOW I SHOULD BE THINKING ABOUT COLLEGE ADMISSIONS FOR MY CHILD

Every individual’s circumstances are different, so it’s impossible to make sweeping statements about how the end of affirmative action or legacy preference in college admissions might impact your child over the next several years. But, it’s important to understand that whether you’re talking about race or legacy preference, it's one factor that only some colleges use in their holistic review of students – and most report that those factors are only used when making decisions about similarly-qualified candidates. Eliminating either (or both) will not significantly increase or decrease your child’s chances of acceptance into their dream school.

The safest and most strategic assumption to ensure that your student is accepted into the school of their dreams is to work to build a college list that prioritizes fit and spending high school years putting together an authentic, compelling narrative with the academics, extracurriculars, volunteer, and leadership experience that will make them stand out during the admissions process.