How the Supreme Court’s overturning of affirmative action could lead to the end of legacy admissions

In a much-dreaded outcome, the right-wing justices on the Supreme Court have finally decided to end the use of race-conscious affirmative action programs in college and university admissions. Not surprisingly, the same right-wing justices who were so outraged at race-conscious affirmative action showed little concern or similar contempt for donor and legacy admission programs which are a de facto way for unqualified and underqualified white students to buy or otherwise sneak their way into the country’s most prestigious institutions of higher learning.

The Lawyers for Civil Rights (LCR) is now pushing back against the Supreme Court’s decision to end affirmative action by filing a federal civil rights complaint against Harvard College “challenging its discriminatory practice of giving preferential treatment in the admissions process to applicants with familial ties to wealthy donors and alumni.” Per the law, Harvard will have to end legacy and donor preferences if it wants to continue to receive federal monies.

In an attempt to gain a better understanding of the Supreme Court’s decision against affirmative action and what comes next, I recently spoke with Oren Sellstrom, the litigation director of Lawyers for Civil Rights. Sellstrom oversees the organization’s litigation and advocacy work in all areas including education, economic justice, employment, police accountability, immigrants’ rights and voting rights.

In this wide-ranging conversation, Sellstrom details the basis of the LCR’s case against Harvard and how the recent Supreme Court decision(s) is part of a much larger right-wing backlash against the civil rights movement and racial progress that uses “original intent” to justify partisan right-wing outcomes that are contrary to the Constitution and the facts.

This interview has been lightly edited. 

What was your reaction to the recent series of Supreme Court decisions, especially the one against race-conscious affirmative action programs in college and university admissions?

Obviously, we were disappointed in a number of the Supreme Court’s rulings this term. But at the same time, the outcomes were not entirely unexpected. And there are important openings in the affirmative action decisions which will allow colleges to continue considering how race affects an individual applicant’s life. That means that the decisions are not going to be the last word. So we can be disappointed for a moment, but then, in this line of work, the job is always to look ahead and say, where does this take us next? How can we best represent our client communities, to take what the Supreme Court has said and move forward?

The right-wing justices’ decision to end affirmative action programs is part of a much larger agenda of retrenchment and white backlash against the gains of the civil rights movement and larger Black and Brown Freedom Struggle. Trumpism is central to this white backlash. Their next target is to end scholarships and other programs that are intended to improve access and opportunities for nonwhite students and members of other marginalized communities. Given that, how are balancing your hope and realism? This is all so very depressing and exhausting.

That is the key question for anyone in the civil rights struggle or any kind of social justice movement. On the one hand, we have to face reality.  But at the same time, we need a certain degree of optimism to continue pressing forward. At Lawyers for Civil Rights, that is our approach. Our clients depend on us to think strategically, and to be nimble and creative in advancing the law.  The struggle is ongoing, and giving up is not an option.

Language matters. We must define our terms. What is the reality of affirmative action vs how it has been distorted and misrepresented by the right-wing and other such actors?

Affirmative action is a very modest tool that schools and universities — and government and employers in some circumstances as well — have used to try and level the playing field. In the admissions context, race has been one of many factors that schools consider as they seek to assemble a diverse student body. That process has often been mischaracterized and caricatured by those on the right, in ways that are designed to sway the public against diversity efforts.

In that sense, affirmative action has never been well-defined or well understood in practice. The right wing has used that misunderstanding and ignorance to turn affirmative action into a wedge issue. But at base, affirmative action and other diversity initiatives are just based on a recognition that we are stronger when everyone is valued and lifted up.

How do you conceptualize the relationship between the law and positive social and political change work?

The law is one tool in a broader social justice movement. The law by itself is not the solution; it is part of an ongoing struggle to create more fairness and equity in society. In fact, the law is often a lagging indicator, one step behind where social movements have already advanced on the ground. But lawsuits can certainly elevate issues in the public consciousness, which is critical for creating positive change. And Court orders and other favorable legal outcomes help propel movements forward.

America is in a struggle over the basic meaning of democracy and freedom. Central to this struggle are competing and often divergent understandings of “fairness” and “equity”. What do those concepts mean to you?

At Lawyers for Civil Rights, our conception of “fairness” and “equity” runs deep. We envision a world free of racism, with justice, dignity, and lived equality for all. One of the most frustrating aspects about the affirmative action debate has been seeing this very modest tool held up as a paragon of inequity — when in fact the true inequity lies in all of the preferences and manifestations of white privilege in American society.

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White privilege is so baked into the country’s institutions that many people don’t even recognize it until we force it to be obvious. Those racial inequities impact communities of color — and especially Black and Latino communities — in profoundly unfair ways. Any vision of “equity” has to start with rooting out those practices.

As a human being, how does it feel to argue a case, as we have seen repeatedly with this Supreme Court, where the “conservative” justices have already made up their minds based on ideology and not the law and/or facts? How do you navigate a situation where defeat seems inevitable?

As an advocate, you are always looking for the openings that exist. There are times when the fight feels like a losing battle. But even then, the key is to look for windows of opportunity. Often we are creating possibilities and openings for justice far off in the future. We advance in incremental steps that lead to greater and more profound changes down the road, through the law or through the political process. At this moment, we often find ourselves up against a right-wing judiciary that is not always receptive to civil rights claims. Yet by presenting the best legal argument and humanizing the issues we can often reach a positive outcome. Now that may not happen immediately, but progress is made step by step.

How does this Supreme Court see issues of racial justice?

There are diametrically opposed conceptions of racial justice represented on today’s Supreme Court. The concurring opinion by Justice Thomas in the recent affirmative action cases versus the dissenting opinion by Justice Jackson are like reading two different languages and descriptions of reality. Justice Thomas essentially adopts what he would call a colorblind view. Meanwhile, Justice Jackson demonstrates quite eloquently, both at oral argument and in her dissent, how ludicrous it is to talk about America as being a colorblind country. She describes the panoply of ways that race continues to matter, both for our country as a whole and for individuals.

What legal tradition do the right-wing justices represent and adhere to? What is their theory of the law and society?

Many of the conservative justices adhere — or at least purport to adhere — to what they describe as an “originalist” jurisprudence, which means looking to when the Constitution or its amendments were enacted in order to understand the meaning of the law. What many of the more liberal justices have done quite effectively over the past several years is to point out how that “originalism” is very selective on the part of the conservative justices. Justice Sotomayor, for example, has made the point that you cannot adopt an originalist viewpoint of the 14th Amendment and say that it is colorblind. Such a claim is historically inaccurate and factually incorrect. It ignores laws like the Freedmen’s Bureau Act, enacted at the same time as the 14th Amendment in an intentionally race-conscious way.

The so-called originalist viewpoint that abandons facts and history when it is convenient ultimately starts to look less like a consistent jurisprudence and more like just a partisan political opinion.

The right-wing justices who ruled against affirmative action claim to be concerned about merit and fairness. Yet, they do not appear to care too much, if at all, about donors or legacy admissions which by their very nature are contrary to those principles. How do they rationalize that obvious double standard? Or are they just intellectually dishonest partisan actors and there is no need for rationalization on their part?

All of the other forms of preferential treatment that go overwhelmingly to white applicants, while not directly part of the affirmative action cases, were very much at play in those cases. Justices on both sides of the spectrum pointed that out. Justice Gorsuch, who is traditionally seen as part of the conservative bloc, raised the issue of unfair legacy preferences in his concurring opinion, and of course, the dissenting justices did as well. As civil rights advocates, that presents a window of opportunity to move the conversation forward, by focusing on the inherent unfairness of continuing to allow legacy and donor admissions that overwhelmingly advantage white applicants.

We also have lots of public opinion data that shows widespread public disapproval of donor and legacy preferences. The size of your bank account and your family’s last name have nothing to do with merit. Yet, the same people who go after race-conscious affirmative action programs with such fervor do not seem to have the same level of concern about real injustices like donor and legacy special admissions. Why not?  Partly it’s hypocrisy and bias.  And there is also politics at work. 

Politicians have long used race as a wedge issue, often very effectively, to stoke fear and resentment. Attacks on affirmative action, attacks on voting rights, and so forth, can all be seen as part of that unfortunate reality.

Your organization has now filed a complaint against Harvard University for its policy of privileging legacies and the family members of donors in its admissions process. Can you elaborate?

The Supreme Court did not do away with all preferential treatment in its recent decisions against affirmative action. What it did is to curtail programs that don’t benefit white people. The much more substantial and deep-seeded systems that overwhelmingly benefit white students continue to exist. The public needs to be made aware of that unfairness. Our complaint against Harvard is designed to elevate that issue in the public consciousness.

What do we know about Harvard’s policies in this regard?

Much of this evidence comes from the recent case about affirmative action at Harvard that made its way up to the Supreme Court. Through the evidence that came out in that case, we know that the children of wealthy donors are given preferential treatment throughout the admissions process. This does not just happen once; it happens at multiple points. They are flagged at the beginning of the process. They’re flagged again at the interview stage, and are much more likely to receive interviews from admissions officers.

When final decisions are made, children of donors and legacies are flagged again. As a result of all that preferential treatment, being a donor-related applicant or being a legacy applicant increases the chance of admission by an order of six to seven times.

We also know that nearly 70% of the students who get donor and legacy preferences are white. If those preferences were removed from Harvard’s admission process, there would be significantly more black students admitted and significantly more Latino students admitted and significantly more Asian American students admitted. All of that evidence is quite clear from the Harvard case. It is also very consistent with studies that have been done of other colleges and universities that use donor preferences and legacy preferences.

How does this play into notions of “merit”?

The size of your bank account, or the fact that you share a last name with the science building, has nothing to do with your individual merit. If merit is to be the basis of how students are admitted to colleges and universities, then the use of donor preferences and legacy preferences is indefensible. That leads to a much wider discussion of how we measure merit more generally. For example, is merit to be determined just by how a person happens to perform on a standardized test on a particular day? Or should we be looking at the range of lived experiences that people bring to the table? What about a prospective student’s potential? Those are all factors that traditional affirmative action programs have looked at with the goal of assembling a class of highly qualified students who can learn from each other in a diverse environment.

What is the legal basis for your complaint?

In our complaint against Harvard for donor and legacy preferences, we do not need to prove that Harvard is intentionally attempting to reward white applicants and harm applicants of color. It’s enough to show that there is a racially disparate impact that has no legitimate justification. Federal law says that if you receive federal funding, and you have a process in place that systematically harms communities of color, and you cannot justify that outcome, then that process cannot be allowed to continue. Or, if you want to continue that discriminatory practice, you have to give up federal funding. Federal antidiscrimination law is quite clear on these questions.

In terms of framing these questions of access and opportunity at America’s colleges and universities — and across society — how do we balance questions of race and class? For example, in the case of the donor and legacy admissions, is it a more powerful frame to emphasize that those policies hurt working class and poor people — and middle-class people too — on both sides of the color line — or should be emphasize the specific way such policies are de facto tools for maintaining white privilege and other forms of unearned white advantage?

It’s important to do both, and to recognize that socioeconomics and race are often intertwined. On the other hand, we should not mistake one for the other. There are many people over the years who have said that affirmative action should be replaced by programs that emphasize socioeconomic diversity. Certainly, socioeconomic diversity is important. But at the same time, it’s different from racial diversity. To focus on socioeconomic diversity as a substitute for confronting the country’s deep legacy of racial inequality would be a mistake.