California recently prohibited its private colleges from using an applicant’s legacy status — that is, whether other family members attended the school — in admissions decisions. Maryland passed a similar law earlier this year, and other states ban the practice for public colleges. Other states are considering similar bans.
On the surface, this all sounds perfectly reasonable. Just about the only argument in favor of legacy admissions is that the practice draws increased donations by building alumni loyalty.
But these laws must be seen in the broader social context: as part of a new trend of attacks on universities’ independence coming from the right and left alike.
To be clear, I’m not defending legacy admissions in principle. There are good reasons why scores of U.S. colleges have voluntarily ended the practice since 2015. Most of the other 500-plus universities should probably follow suit if they can afford to, law or no law.
The problem with the California ban is that it is the mirror image of the lawsuits that gave the Supreme Court the opportunity to strike down diversity-based racial preferences in admissions. That effort, led by conservatives, represented a concerted push to limit how even private universities could choose their students. And such lawsuits are not finished — far from it. The organization that led the lawsuits, Students for Fair Admissions, has promised (or threatened, depending on your point of view) to keep litigating.
The threat of litigation matters because, as I write these words, private college admissions officers are trying to figure out how to comply with the Supreme Court’s ruling that they can’t consider race in pursuit of diversity while still admitting student bodies that in some way reflect national demographics.
The upshot is that we now have government beginning to tell private universities whom they can admit. That’s not the state’s business, any more than it can dictate what they teach. The First Amendment should protect both rights equally. Private universities nationwide should start thinking hard about the constitutional arguments they will have to make to defend their independence from the state.
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Consider: If a ban on legacy admissions is lawful, a legislature could pass a law saying that private colleges must admit based only on SAT scores and grades, not extracurricular activities, essays or geography. Or the law could say private colleges may not admit based on selective criteria at all but must admit everyone. A legislature could mandate that colleges admit the top 5% of the class from all public high schools in the state. Any of these restrictions would be an example of state overreach and would fundamentally disrupt schools’ educational mission, which is to educate the students they choose in the way they see fit.
To fight back, the universities can argue in court that they have a First Amendment right to expressive association with the students they choose to admit. Such a right would trump state legislation unless the state could show that it had a compelling interest in the law and had narrowly tailored the law to achieving that interest — a difficult standard to satisfy.
The doctrine of expressive association is why private clubs like the Boy Scouts, which won the right in a Supreme Court case, may choose whom they do or don’t want to have as members. To win on an expressive association claim, the organization burdened by the law must be prepared to say that its choice of whom to associate with affects its ability to express its values and its mission.
It might feel distasteful for colleges to say that associating with legacy students is part of how they express their educational ideals. If so, then California’s private colleges may choose not to challenge this new law. Such a decision, however, will contribute to the perception among legislatures that it’s open season to try to wrest control over private college admissions. The payoff in political gamesmanship may well be too appealing for state legislatures to hold back.
Short of a direct challenge on the constitutionality of the California law, what’s needed is a clear statement made collectively by private universities all over the country that admissions decisions are at the core of their expressive mission. Such a statement could be made without specifically defending legacy admissions.
No private college or university would tolerate a state or federal law that told them what to teach. That would be an obvious First Amendment violation. Whom to teach is comparably fundamental to the question of what to teach.
Banning legacy admissions has an instinctive appeal. But the underlying issue is the independence of universities from coercive state control. In a moment of intense political focus on university life, that independence could not be more important.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”
