College Legacy Admission Preferences Called Into Question In New Challenge

• Published date: 11 July 2023
• Subject Matter: Corporate/Commercial Law, Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Diversity, Equity & Inclusion
• Law Firm: McGuireWoods LLP
• Author: Sarah K. Wake, Brian Barger, Farnaz F. Thompson, Jonathan Y. Ellis and Heidi E. Siegmund

On July 3, 2023, just days after the U.S. Supreme Court's landmark decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), a new challenge is arising related to collegiate admissions. Three advocacy groups for minorities filed a complaint with the U.S. Department of Education's Office for Civil Rights (OCR), alleging that Harvard's policy of favoring donor-related and legacy applicants unfairly advantages white applicants and, conversely, has a negative, disparate impact on applicants of color.

The complainants allege that, as a result of that policy, legacy applicants are nearly six times more likely to be admitted, compared to nonlegacy applicants, and similarly, that donor-related applicants are nearly seven times more likely to be admitted. They ask OCR to intervene based on the allegation that this preferential treatment violates implementing regulations under Title VI of the Civil Rights Act of 1964. Per OCR, those regulations prohibit policies that have a disparate impact on racial minorities, regardless of whether those policies are intentionally discriminatory.

The complainants also allege that, because the Supreme Court's SFFA decision "removed a tool that in certain circumstances provided a small boost to applicants of color when considered as one of many factors," OCR's intervention is necessary to "improve, or at least preserve, diversity and equity in the admissions process going forward." As of the date of this alert, OCR has not yet confirmed whether it will open an investigation.

The new complaint borrows heavily from the SFFA record in describing Harvard's admissions processes. Justice Gorsuch's concurrence in SFFA also may provide support for the complainants' claim that eliminating admissions preferences for children of donors, alumni and faculty advances diversity. He noted: "As part of its affirmative action case, SFFA also submitted evidence that Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices if it: (1) provided socioeconomically disadvantaged applicants just half of the tip it gives to recruited athletes; and (2) eliminated tips for the children of donors, alumni, and faculty."

Notably, the complainants have not requested damages for these claims in court ' and cannot do so under existing law. In Alexander v. Sandoval, the Supreme Court held that Title VI's implementing regulations are not enforceable through a...