John Edwards’ Inconsistency Regarding Privilege And Preferences

In a USA Today column today, John Edwards once again eloquently assails legacy preferences as virtually un-American.

In America, the kind of family you come from should never determine your destiny.


All children in America should have the same opportunities — wherever they come from or whatever their backgrounds….

Equal opportunity is the birthright of every American. Legacy preferences get in the way. It’s time for them to go.

In John Edwards’ America, however, it is apparently acceptable for race to “determine your destiny,” for students to have greater or lesser opportunities because of their race, and for the birthright of “equal opportunity” to co-exist comfortably with the practice of judging individuals of different races by different standards.

Overstated? I don’t think so. Edwards not only supports “diversity,” but along with some of the most liberal Senators (Daschle, Kennedy, Clinton, Corzine, Durbin, Kerry, Schumer, Lautenberg, Landrieu, Stabenow) he co-signed an amicus brief in Gratz supporting the University of Michigan’s policy of awarding 20 admission points (out of 150 needed) to minority applicants on the basis of their race alone. (That same policy awarded only 4 points to legacies.)

Someone should ask Edwards why legacy discrimination is offensive but racial discrimination is not.


I have often noted the irony of today’s preferentialists rejecting the argument of Reconstruction Radicals and thus echoing the argument of the Plessy majority when they reject Justice Harlan’s assertion that the Constitution is colorblind. Here is one example (“Do Preferentialists Prefer Plessy?”), and here’s another:

It has often been said that in America conservatives stand on the shoulders of dead revolutionaries, but it is no less true that today’s liberals depend on the success of dead racists. In that regard, I have often pointed to the irony of contemporary liberals celebrating the failure of Reconstruction radicals to write colorblindness into the 14th Amendment and hence their (the liberals’) rejection of Justice John Marshall Harlan’s dissenting view, in Plessy, that “our Constitution is colorblind.”

The amicus brief that Edwards and friends signed supporting racial bonus points provides a perfect example of today’s liberals echoing dead racists. Their brief, on page 5, asserts that neither the 14th Amendment nor Title VI of the Civil Rights Act bar all racial discrimination.

This is because the framers of the Fourteenth Amendment did not intend to foreclose government consideration of race per se. See Jed Rubenfeld, Affirmative Action, 107 YALE L.J., 427, 430-431 (1997) (collecting explicitly race-conscious statutes enacted by Reconstruction Congress; ANDREW KULL, THE COLOR-BLIND CONSTITUTION 67 (1992) (citing evidence that in drafting the Fourteenth Amendment, the Thirty-ninth Congress rejected proposed “color-blindness” language)…. [Emphasis in original]

True, but Edwards et al. do not mention what Kull demonstrates so convincingly — that the efforts of the Radicals to have the 14th Amendment bar all distinctions based on race failed precisely because their opponents wanted to preserve such things as segregated schools.

It is, or should be, one of the great embarrassments of modern liberalism that in order to justify racial preferences it has identified itself with the doctrinal holding of Plessy, which in turn was based on the failure of the Reconstruction Radicals to have the 14th Amendment bar all racial discrimination. Not to mention the additional irony of this being an interpretation that relies on original intent, an interpretive stance liberals usually reject.


The Chronicle of Higher Education has a long article today on the rising debate over legacies. (Link may require subscription.)

I’ll not summarize the article here, since by now these arguments are familiar to anyone who’s gotten this far in this blog, but I do want to mention a couple of interesting items.

• The University of North Carolina and the University of Virginia

offer little extra consideration to in-state applicants who are related to alumni. Doing so, officials there believe, would be unfair to state taxpayers. But those universities do give legacy applicants a substantial edge when weighing applicants from other states against each other.

John A. Blackburn, dean of admission at Virginia, notes that “we are down to just 9 percent of our budget coming from the state” and calls the legacy admissions policy “very important” to the university’s efforts to raise money from other sources. Students who are admitted as legacies, he says, are much more likely than non-legacy students to contribute to the university later in life. In Virginia’s last major fund-raising campaign, which ended four years ago, 65.4 percent of legacy alumni donated, giving an average of nearly $34,800 each, compared with just 41.1 percent of non-legacy alumni, giving an average of about $4,100 each.

Wow! I suspect UVa gets a smaller percentage of its budget from the commonwealth of Virginia than some private universities do from the feds. UVa’s numbers do indicate that legacy loyalty is not a figment of white racist imaginations; legacies really do give more money.

• Ivy League legacies:

About 10 to 15 percent of the students on most Ivy League campuses are the children of alumni. Among such institutions, Harvard University accepts 40 percent of its undergraduate legacy applicants, compared with about 11 percent of its overall applicant pool. William R. Fitzsimmons, dean of admissions and financial aid, says that the average SAT score for Harvard’s legacy admittees is just two points below that of all of its students, and that the legacy policy helps raise funds that “make it possible for Harvard to admit many students from moderate or low-income backgrounds.”

The debate over the fairness of legacy preferences has been sparked, of course, by the ongoing debate over the fairness of racial preferences. We have a good deal of data on the extent of the preference involved in racial preferences but relatively little about the actual degree of preference given to legacies. This information strikes me as crucially necessary to an informed debate.

The fact that Harvard admits 40% of its legacy applicants compared to 11% of its non-legacy applicants, standing alone, says absolutely nothing about the nature and size of the boost given to legacies. Knowing, as we now do, that the average SAT score of legacy applicants there is only two points lower than the non-legacy average, however, suggests that the actual preference given to legacies, if any, is quite slight. At Middlebury College, as I discussed here, the legacy SAT average was 33 points higher than the non-legacy average.

Of course, insofar as legacy preferences are unfair even a tiny preference is unfair. But it’s still useful to know what we’re talking about.

Say What? (13)

  1. Tung Yin January 26, 2004 at 5:53 pm | | Reply

    Without getting into the rightness or wrongness of race-based preferences, isn’t the moral (as opposed to legal) argument against legacy and donor preferences stronger? After all, the race-based preference admittee may have come from an affluent family, but still may face some residual discrimination, etc. (I realize that you disagree with AA as the remedy, and you make powerful points.) But what has the legacy/donor preference admittee faced? Such persons have generally had significant advantages in life — why should they then get an extra advantage ahead of the middle class kids, many of whom are now doubly disadvantaged?

    If the goal of equality of opportunity, maybe both sets of preferences should ultimately be eliminated. But I don’t think it’s unreasonable to dismantle legacies and donor admissions first.

  2. John Rosenberg January 26, 2004 at 6:13 pm | | Reply

    Tung Yin,

    You make very good points. For what it’s worth, I think there are very good arguments agains legacy policies, and I certainly would not lament their being abolished. There are, of course, some reasonable arguments for them as well — that they increase loyalty, and contributions. I thus regard them as analogous to preferences for athletes: good arguments for, good arguments against. Unlike all those “discretionary” preferences (my term for what institutions should be allowed to practice if they choose), however, RACE preferences implicate fundamental Constitutional and legal issues, not simply issues of fairness.

    There is one thing, however, that race preferences and legacy preferences do have in common. Both of them in essence are justified on the basis of the benefits they provide to the granting institution, not the individuals who receive them. As I’ve argued a number of times, race preferences are justified (in part because of the Supremes’ barring compensatory arguments) on the basis of the need of majority students to be exposed to minority students. The minority students admitted because of preferences could receive the benefits of diversity at less selective institutions. Similarly, legacy preferences are not justified because the recipients deserve them but because the institution will be better off as a result (because of the addition contributions, etc.).

    So, I have no objection to eliminating legacy preference. What I object to is the Edwardsian rhetoric about it offending “equal opportunity” while racial preference does not.

  3. Tung Yin January 26, 2004 at 6:49 pm | | Reply

    I hear you. I’ve been following your blog and you’ve always presented a cogent attack on AA. I think it may be possible to articulate a position that supports some form of AA while attacking legacy/donor preferences as a matter of policy, but that would be a tricky position to maintain. I don’t think Justice O’Connor did a very good job of it in Grutter.

  4. stu January 26, 2004 at 11:39 pm | | Reply

    John, John, John-I am having a very hard time finding the silver lining.

    First, discriminating on the basis of race is against the law (see Civil Rights Act of 1964; see also the equal opportunity language in EVERY contract to which an entity of the federal, state or local government is a party). Discriminating in favor of the sons and daughters of alums is definitely NOT illegal.

    Second, on policy grounds, racial favoritism in admissions has clearly corrupted the academic environment at virtually all colleges and universities (e.g., ethnic studies majors). Legacy admissions have not required any such legerdemain.

    Third, racial discrimination is not in any way synonymous with equal opportunity. In the absence of racially-based admissions, would the sons and daughters of middle, upper middle and upper class African Americans be at some disadvantage in competing for college admissions with the children of a white subsistence farmer from Bath County, Virginia? Only if being African American is and of itself conclusive evidence of inferior ability and aptitude.

    There are any number of other examples which would merely belabor the point. The point being that even the least insidious aspect of racial discrimination is far worse than the most egregious moral, ethical or legal failing of a legacy policy.

  5. John Rosenberg January 27, 2004 at 12:13 am | | Reply

    Stu (Stu? Stu?), Have I said anything that led you to think I disagree with anything you’ve said here? I don’t think so.

    Tung Yin, Again, I have no problem with policy arguments against legacy prefs (or ethical/moral arguments for that matter, although in fact I don’t think those are terribly compelling. There are more pressing ethical/moral problems to deal with than another unearned, undeserved benefit to rich kids).

    As a matter of policy alone, I could respect (without accepting) a carefully constructed (for compensation not “diversity,” narrow, focused, time-limited, etc., etc.) AA policy. My problem, however, is that I believe it is impossible to limit a policy argument to policy. What I mean by that is that any defense of racial preference that goes beyond compensating actual victims must rely on arguments that inevitably undermine and corrode what I regard as the fundamental principle barring racial or religious discrimination. And as a matter of policy as well, that cost is far greater, in my view, than any benefits bestowed by racial favoritism. (Of course, compensating actual victims isn’t really a racial preference at all.)

    O’Connor did indeed do a lousy job, but as just stated I suspect it’s not possible to do a good job of justifying racial preference.

  6. Tung Yin January 27, 2004 at 12:33 am | | Reply

    John, since my intent is more to criticize legacy/donor preferences than to defend racial preferences, I don’t think we’re in much disagreement here. (As a general matter, I try not to get into substantive arguments regarding AA since it’s so hard to have rational discussions. It’s to your credit that you do a good job of discussing the matter without going berserk. Of course, it’s often your adversaries who go berserk.)

    Stu, I understand your argument; I’ll just note that the Supreme Court does not agree that AA is illegal. Maybe it should be, but it’s not right now.

    What I do find remarkable is the statement that even the least insidious aspect of racial discrimination is far worse than the most egregious moral, ethical or legal failing of a legacy policy. Keeping in mind that I limited my initial comment to a policy discussion, not a legal discussion, what I find remarkable is that you would think the tiniest bit of racial preference is worse than any amount of legacy/donor preference. If you consider it from a meritocratic perspective, both the race-based AA beneficiary and the legacy/donor preference beneficiary are cutting ahead in the line for reasons having nothing to do with merit. Again, remember that we are talking about policy, not constitutionality. Both are getting ahead of other “more deserving” applicants. Why then should the rich kid, who’s already gotten more advantages, get yet another one, ahead of the minority person?

    What bothers me about legacy/donor admissions is precisely that they are so anti-meritocratic.

    Mind you, I don’t mean to suggest that one should be pro-AA and anti-legacy. But I do think it’s more consistent to be against both if you’re against AA.

    Finally, I respect John’s position — he thinks race-based AA is more of a problem but sees the consistency in opposing legacy/donor preferences as well.

  7. John Rosenberg January 27, 2004 at 1:18 am | | Reply

    Tung Yin, Thanks for your generous comments. I do appreciate them.

    Re merit, if you’ve been reading here for a very long time you will have seen that for a while last year I commented frequently on what I termed the Invidious Ubiquitous Non-Sequitur (you can type “IUNS” into the search box and find a truckload of them) — the argument (which I note well that you haven’t made) that anyone who criticizes race preferences who doesn’t also criticize legacy preferences is a hypocrite, or worse.

    It is perfectly consistent, I’ve argued, to oppose racial discrimination without being logically or politically obligated to oppose every kind of discrimination. Subsidies to peanut but not tobacco growers discriminates against the latter, and is no doubt offensive to them, but discrimination in that arena simply doesn’t rise to the level of Constitutional concern.

    I have also said, however, that anyone who bases his anti-race preferences position on a commitment to merit must also object to legacy prefs as well. To oppose racial prefs because they offend the merit principle but not to oppose legacy prefs is indeed inconsistent.

    The reason, I suspect, that you and I don’t disagree very much, if at all, is that I also am quite partial to merit as a matter of policy, and my objections to race preference have absolutely nothing to do with merit. The fact that race prefs usually result in admitting less qualified applicants does offend a devotion to merit, but I believe universities have a right to make that choice if they choose. I don’t believe they have a right (or rather, post-Grutter, that they should have a right) to offend the (to me) far more fundamental principle barring racial or religious discrimination.

  8. Claire January 27, 2004 at 1:20 pm | | Reply

    I find it interesting that, once again, the liberals have effectively derailed the effort to label Affirmative Action in college admissions as the blatant racism that it is by throwing in a red herring – legacies.

    This tactic continues to work over and over against logical-minded thinkers, which many conservatives and centrists tend to be. By addressing the arguments thrown out by liberals – in this case, the similar-yet-legally-different issues of legacies – you play right into the hands of the masters of doublethink.

    When logic attempts to debate emotion, emotion will win every time by default. Yet we all keep hoping that rational arguments and logic and common sense will somehow prevail. It’s disheartening…

  9. stu January 27, 2004 at 2:06 pm | | Reply

    Oops. My John, John, John, was based on a misreading of your first response to Tung Yin. Many apologies, O wise one.

    My comment which TY found so incomprehensible was based on, as noted, morals, ethics and the law. TY responds on a policy basis. Legacies may be bad policy overall, although I don’t see any strong evidence of it. To the contrary, it is unavoidable fact that the sons and daughters of Harvard and Yale graduates will tend on average to be more intelligent and accomplished than the norm. It is an advantage they are born with. Is it merit or heredity? And if it is the latter, is that more reprehensible than even the most benign policy which makes distinctions and doles out goodies based on skin color?

    What is most bothersome about TY’s comments is their implicit intolerance for the notion of something less than pure equality. Such equality exists only among the dead, although the Soviet Union came as close as any mortal effort has to achieving such a dubious goal.

    I have had a number of jobs in which certain executives were clearly deficient in both accomplishment and ability. Maybe they were friends of the boss or in the right place at the right time. Who knows? Their salary and status were completely untethered from merit.

    After I got a little older and wiser, I just accepted it as the rub of the green. Would we want to live in a world full of self-righteous types dedicated to rooting out such looseness at the margins? TY might want to, but I sure as heck don’t. There are some things far worse to far more people than the odd duck whose success in life is unrelated to merit.

  10. jack January 27, 2004 at 2:48 pm | | Reply

    So many argue against legacy preference without ever realizing what these preferences actually are.

    They’re rewards for ‘brand’ loyalty. They are a school, which has recieved money from a graduated student(at the very least in the form of tuition) saying that yes, thank you, we’ll be glad to take more of your money–here’s a little incentive to help you choose us.

    Supporters of racial preference decry them as examples of ‘affirmative action’ for whites–yet there is no racial component to legacy preferences at all. There may, in the past, have been an incidental one–since fewer blacks attended college, but that is not evidence of discrimination on the part of the school.

    But they are a sacrifice that will hurt few people. and therefore they will be offered on the all-too bloody altar of diversity as yet another offering to the insatiable maw of identity politics…

    How much time will this one buy us?

  11. Tung Yin January 27, 2004 at 3:23 pm | | Reply

    To the contrary, it is unavoidable fact that the sons and daughters of Harvard and Yale graduates will tend on average to be more intelligent and accomplished than the norm. It is an advantage they are born with. Is it merit or heredity? And if it is the latter, is that more reprehensible than even the most benign policy which makes distinctions and doles out goodies based on skin color?

    If it is the case that children of Harvard/Yale graduates are smarter than average, and due to the advantage of those “smart” genes, they get into Harvard and Yale “on the numbers,” so to speak, that’s the system working.

    But if they don’t measure up, despite having parents who graduated from H or Y, it strikes me as quite strange nevertheless to admit them over other more deserving applicants.

    It’s true that there’s some “brand” loyalty involved — from the standpoint of the school, no doubt legacies make sense. But from the standpoint of the schools, AA makes sense too — and right now the Supreme Court has allowed that.

    I don’t mean to suggest that two wrongs necessarily make a right. And as John points out, this isn’t always an issue of consistency. But to the extent that merit is involved, legacies are anti-meritocratic.

    Should we root out everything at the margin? Well, it seems to me that eliminating legacy and donor preferences is quite easily done, unlike the problems inherent in, say, the advantages that some kids have with “better” parents.

    I agree that legacy/donor admissions shouldn’t be used entirely as a smokescreen to cover legitimate debates and objections to race-based AA. But nor do I think that legacy/donor admissions should be ignored, particularly if one’s objection is merit-based.

  12. Laura January 27, 2004 at 7:35 pm | | Reply

    I don’t think legacy works for kids who are just flat-out unqualified.

    But why assume that legacy admits are rich white kids? It’s been many years now since schools, Ivy League and others, started actively recruiting minority students.

  13. Sandy P. January 27, 2004 at 8:59 pm | | Reply

    But if it weren’t for legacies, Flounder never would have gotten into the Delts, would he?

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