Executive Summary
In 2023, the Supreme Court deemed race-conscious Affirmative Action unconstitutional in Students for Fair Admissions, Inc (SFFA) v Harvard and Students for Fair Admissions v UNC, leading to a potential decrease of racial-ethnic candidates being admitted to higher education institutions. This outcome can be mitigated via legislation that prohibits unfair admission practices that favor white, rich higher education applicants: legacy admissions. Recently, a legislative proposal to ban the legacy admissions process was introduced in the House and Senate. There are several stakeholders acting as supporters and opponents of banning legacy admissions. The following information will be a critical analysis of the stakeholders to understand focus on the feasibility of Congress implementing a policy that bans legacy admissions.
SCOTUS Decision Opens Question of Race in Higher Education
Race-conscious Affirmative Action increased the admission rates of underrepresented groups in higher education.  However, some opponents viewed it as a discriminatory practice. This led to the SFFA v Harvard and SFFA v UNC. In these two cases, the Supreme court ruled that race conscious Affirmative Action within the higher education admissions process violated the Equal Protection Clause of the 14th Amendment. These rulings create the danger of decreasing acceptance rates for racial-ethnic students in U.S. colleges and universities. In the past, states that banned race-conscious Affirmative Action experienced a decline in the number of admitted racial-ethnic students.[1]For example, from 1997-2017 universities in California have seen a 30-40 percent decrease in racial-ethnic studentsenrolling in higher education.[2]
One policy alternative to this problem is a socio-economic form of Affirmative Action to maintain diversity in higher education admissions.[3] However, a large flaw with utilizing this alternative is that it can potentially exclude middle class Black, Brown, Asian, and Native American applicants if these students do not meet a low socio-economic status.[4] To avoid this issue, Congress can enact Senate Bill 2524 and House Bill 6559, the Fair College Admissions Students Act (FCASA). Senator Jeff Merkley (D-OR) and Representative Jamaal Bowman introduced the FCASA to prohibit universities nationwide from utilizing legacy admissions.[5] This bill would ban the usage of legacy admissions on the grounds of denying higher education opportunities from students of color in favor of white, wealthy applicants.
Analysis of Policy Influencers: Banning Legacy Admissions in Higher Education
Supporters of Banning Legacy Admissions
Shortly after the Supreme Court’s rulings of SFFA v Harvard and SFFA several decision makers from the Congressional Black Caucus (CBC) spoke out about the unfair advantage legacy admissions provides those with wealth. On July 11th, 2023, the House of Representatives held a session to discuss the impact of the Supreme Court’s rulings. Congressman Jonathan Jackson (D-IL) argued that legacy applicants receive a significant advantage in the higher education admissions process. According to Forbes Magazine, Congressman Jackson stated that at Harvard University, approximately 42% of admitted students were donor-related applicants and 34% were legacy admissions.[6] Congresswoman Frederica Wilson, a ranking member of the Committee on Education and Workforce, along with other members from the CBC share the sentiment that unequal admissions of legacy students disproportionately reduce the opportunities of Black students accepted into higher education institutions. [7] The CBC would support the passage of FCASA as a policy proposal to build more diverse student admissions in higher education.
Several other members of Congress support the ban of legacy admissions at colleges and universities. Forty-three Democrats from both the House and Senate have signed to sponsor the bill. Powerful members in the Committee on Education and Workforce who could move this bill forward also signed as cosponsors[8]:
- Congressman Mark Takano, Chair of the Education Task Force
- Congresswoman Pramila Jayapal
- Congresswoman Alma Adams
Senator Tim Scott (R-SC) has publicly stated higher education institutions should ban the usage of legacy admissions procedures.[9] Senator Merkley is currently in conversation with Senator Scott to endorse FCASA.[10] Senator Scott’s support on the bill could swing other Republicans on the Senate to endorse FCASA.
Meanwhile one of the strongest active influencers is the organization Lawyers for Civil Rights. The organization’s advocacy efforts pressured the Department of Education to look deeper into the unfair admissions practices at Harvard. Michael A. Kippins, an attorney from Lawyers for Civil Rights, filed a complaint to the Department of Education’s Office for Civil Rights (OCR) about Harvard’s admission process.[11]The complaint challenged Harvard’s preferential treatment of legacy students and students from wealthy families.[12]In response, the OCR began investigating Harvard’s admission process for possible violations of Title VI of the Civil Rights Act. The legacy admission process that Harvard used can also be seen at the top colleges and universities across the country.[13] The investigation is ongoing, but it shows the Biden-Administration and officials from the Department of Education are top-tier latent influences (actively engaged in advocacy on your issue but could wield influence in the process in the future) that can support the movement to ban legacy admissions in higher education. It’s quite possible the Biden-Harris Administration will take a much closer look at the disproportionate admission rates of legacy students and fully support Congressional members in the passage of FCASA.
Potential Opponents
Chairwoman Virgina Foxx of the Committee on Education and Workforce in the House is a decision maker who could potentially oppose FCASA and sway the Republican majority in the committee from supporting it.[14] Although she has not made a public stance, Foxx yields significant power to stop the act’s progression in the House. Chairwoman Foxx may not lend her support due to it being a specifically Democratic-driven issue when FCASA was initially proposed. She has also been long known to decry liberal policies on college campuses.[15] She may not support FCASA passage because of the wave of diverse perspectives and life experiences racial-ethnic applicants could bring in higher education spaces.
The top universities themselves are opponents to banning legacy admissions process. Duke, Harvard, Yale, and Cornell are all schools that are active policy influencers promoting and benefiting from utilizing legacy admissions process to create a space of privilege in higher education. The benefit for these universities come in the form of massive donations from alumni to fund these institutions. These universities also have very powerful lobbyists that can influence Congress. Officials from both Harvard and Duke have defended the practice stating, “it can create a sense of belonging and build relationships with students and alumni.”[16] Among the top 100 universities, only 27 have ended the usage of legacy admissions.[17] While more universities are beginning to see the issues with using the legacy admissions process, there is still a majority that can persuade decision makers, many of whom may have benefited from the practice as alumni, to ensure the existence of legacy admissions.
Legacy families and donors of colleges and universities could pose a significant threat. The students of alumni from top universities benefit largely from legacy admissions as they take up 10-25 percent of available admission spots.[18] Alumni are driven to ensure their children attend these institutions to gain the networks and educational resources that lead to high paying jobs, as well as greater social capital and influence.[19] White, wealthy alumni could be a massive hurdle to overcome if they view the privilege their children are receiving in admissions process is being challenged.
Feasibility of Banning Legacy Admissions
FCASA can be enacted legislatively though proactive support from active decision-makers from both parties. There is bipartisan support that is gradually building. However, no Republican members of Congress who have co-signed the FCASA.[20] If the bill passes through the House and Senate, there will be opposition from the top universities and their alumni. However, powerful active influencers like the Lawyers for Civil Rights may be a crucial factor to push Congressional members to enact it. From this point, it is likely to be approved by President Biden since there is already an implication that the Biden-Administration is moving in the direction of banning legacy admissions.[21]
[1] “The Future of College Admissions without Affirmative Action.” Accessed October 11, 2023. https://www.urban.org/urban-wire/future-college-admissions-without-affirmative-action.
[2] “How Do Affirmative Action Bans Affect the Racial Composition of ….” Accessed October 11, 2023. https://journals.sagepub.com/doi/pdf/10.1177/0895904820961007.
[3] “The Future of College Admissions without Affirmative Action.” Accessed October 11, 2023. https://www.urban.org/urban-wire/future-college-admissions-without-affirmative-action.
[4] “The Supreme Court’s ban on affirmative action means colleges will ….” Accessed October 11, 2023. https://www.epi.org/blog/the-supreme-courts-ban-on-affirmative-action-means-colleges-will-struggle-to-meet-goals-of-diversity-and-equal-opportunity/.
[5] Congress.gov. “S.2524 – 118th Congress (2023-2024): Fair College Admissions for Students Act.” July 26, 2023. https://www.congress.gov/bill/118th-congress/senate-bill/2524.
[6] Congress.gov. “Congressional Record.” October 11, 2023. https://www.congress.gov/congressional-record/volume-169/issue-118/house-section/article/H3198-1.
[7] “HR 6559 (117 th ): Fair College Admissions for Students Act.” Accessed December 5, 2023. https://www.govtrack.us/congress/bills/117/hr6559/cosponsors.
[8] Congress.gov. “H.R.4900 – 118th Congress (2023-2024): Fair College Admissions for Students Act.” July 26, 2023. https://www.congress.gov/bill/118th-congress/house-bill/4900.
[9] “Tim Scott calls on universities to end legacy admissions – The Hill.” Accessed October 11, 2023. https://thehill.com/homenews/campaign/4074428-tim-scott-calls-on-universities-to-end-legacy-admissions/.
[10] “Democrats re-introduce legislation to end legacy admissions in ….” Accessed October 11, 2023. https://www.nbcnews.com/politics/congress/democrats-re-introduce-legislation-end-legacy-admissions-colleges-rcna96434.
[11] “Federal Civil Rights Complaint Challenges Harvard’s Legacy ….” Accessed October 11, 2023. http://lawyersforcivilrights.org/our-impact/education/federal-civil-rights-complaint-challenges-harvards-legacy-admissions/.
[12] “Complaint No. 01-23-2231 Harvard University.” Accessed October 11, 2023. http://lawyersforcivilrights.org/wp-content/uploads/2023/07/Harvard-Complaint-Case-01-23-2231.pdf.
[13] Moreno, Carlos. 2022. “How Ending Legacy Admissions Can Help Achieve Greater Education Equity | ACLU.” American Civil Liberties Union, April 12, 2022. https://www.aclu.org/news/racial-justice/how-ending-legacy-admissions-can-help-achieve-greater-education-equity.
[14] “Full Committee | Committee on Education & the Workforce.” Accessed October 11, 2023. https://edworkforce.house.gov/committee/fullcommittee.htm.
[15] Strauss, Valerie. 2023. “What Republicans really want from colleges.” The Washington Post. https://www.washingtonpost.com/education/2023/12/14/what-republicans-really-want-colleges/.
[16] “Legacy Admissions Debate Ignites After Affirmative Action Ruling.” Accessed October 11, 2023. https://www.insightintodiversity.com/legacy-admissions-debate-ignites-after-affirmative-action-ruling/.
[17] “How Ending Legacy Admissions Can Help Achieve Greater ….” Accessed October 11, 2023. https://www.aclu.org/news/racial-justice/how-ending-legacy-admissions-can-help-achieve-greater-education-equity.
[18] “How Ending Legacy Admissions Can Help Achieve Greater ….” Accessed October 11, 2023. https://www.aclu.org/news/racial-justice/how-ending-legacy-admissions-can-help-achieve-greater-education-equity.
[19] “The Future of College Admissions without Affirmative Action.” Accessed October 11, 2023. https://www.urban.org/urban-wire/future-college-admissions-without-affirmative-action.
[20] “Republicans Question Legacy Admissions At Top Colleges – HuffPost.” Accessed October 11, 2023. https://www.huffpost.com/entry/legacy-admissions-affirmative-action_n_64c181a9e4b08cd259de64f5.
[21] “Supreme Court, President Biden Take Aim at Legacy Admissions.” Accessed October 12, 2023.https://www.thecrimson.com/article/2023/6/30/legacy-scrutiny-sffa-harvard/.