Donor, Legacy, and Athlete Preferences in Higher Education Admissions: Art Museum and Squash Edition

 by Michael C. Dorf

During the oral arguments in the University of North Carolina and Harvard affirmative action cases, various of the conservative Justices pushed the programs' defenders on what race-neutral steps the colleges had been taking to achieve greater student-body diversity (in particular to boost enrollment of African American, Latinx, and Native American students). These Justices appeared to accept the argument by the lawyers for Students for Fair Admissions (SFA) that the Constitution and Title VI contain a kind of exhaustion requirement: before colleges may use race as a plus-factor in admissions, they must exhaust race-neutral means of achieving racial diversity.

Much of the discussion on this point focused on admissions preferences for varsity athletes (A), legacies (L), children of large donors (D), and children of current university faculty and staff (C), collectively abbreviated as ALDC preferences. The record with respect to ALDC preferences was stronger for SFA in the Harvard case than in the UNC case, so I'll focus on Harvard. In so doing, however, I should note that the record is hardly strong for ALDC, even in the Harvard case. Defending Harvard, attorney Seth Waxman noted that simply eliminating affirmative action would lead African American enrollment at Harvard to decline from 14 to 6 percent, while also eliminating ALDC preferences would lead to a further decline to 5 percent. So the attack on ALDCs looks like a non sequitur.

Why would elimination of ALDCs cause African American enrollment to decline? Reflecting perceptions of sports like basketball and football, readers might think that African American students are overrepresented among recruited athletes, but that turns out not to be true over the range of sports. At Harvard, African American students comprise a slightly smaller percentage of recruited athletes than they do of the overall student body. In recent years, white students have comprised between 73% and 83% of recruited athletes. Why? Presumably because Harvard gives recruited-athlete preferences across a range of sports, including many that are stereotypically and in fact largely the province of white students. Justice Gorsuch emphasized this point in oral argument by referring repeatedly to preferences for squash players. That's not exactly fair to squash. The world's best players typically come from Egypt and Pakistan; and the current Harvard varsity men's squash team looks a bit less white than the 73-83% range. Still, there are currently no African Americans on the men's squash team--reflecting Justice Gorsuch's broader point that Harvard engages in some admissions practices that affirmatively harm the racial diversity it seeks to foster.

That leaves us with the question why eliminating ALDCs would decrease African American enrollment even further beyond simply going to race-neutral admissions. I'm sure the district court record contains the answer. My best guess is that it reflects the composition of Harvard staff, because I have a hard time imagining that Harvard's legacy, donor-children, or faculty-children admits are disproportionately African American. In any event, I want to bracket the actual facts and focus on the facts as they might exist at another college or university that grants ALDC preferences or, if you prefer, a hypothetical version of Harvard.

Suppose that elimination of ALDC preferences would increase enrollment of underrepresented minorities. There would still be the question of whether it would increase it sufficiently to render express consideration of race impermissible as not necessary. In both oral arguments, there was considerable discussion of what the threshold is for achieving the benefits of diversity--which was a bit of a trap for the defenders of the affirmative action program. If they identified a numerical threshold, they would be accused of having an illegal quota system; but when they gave qualitative answers, they were accused of dodging the question and trying to continue their affirmative action programs indefinitely.

In any event, let's put the threshold question aside. We can imagine the Court saying something like this: Even if race-neutral means such as eliminating ALDC preferences wouldn't get you all the racial diversity that you're legally entitled to pursue, if you don't pursue race-neutral means with full vigor--including by eliminating ALDCs--you are not permitted to use any race-based means. Again, this assumes that, contrary to the factual record in the actual Harvard case, eliminating ALDC preferences would do at least a little to increase enrollment of underrepresented minorities. With that counterfactual assumption, do colleges have a basis for continuing ALDCs?

If so, the answer surely is not the one that Justice Gorsuch put in the mouth of a hypothetical defender of Harvard. He ventriloquized: "among the diverse things that we need to have in our class are children of large donors -- there's evidence about that museum we talked about earlier -- children of legacies and -- and the squash team. I'm not making it up. It's in the record."

With due respect, Justice Gorsuch was in fact making that up. Harvard and other colleges that give legacy and donor preferences do not do so because they think that children of alumni or donors add to the diversity of the student body. They do so for the money--exclusively with respect to donors and in substantial measure with respect to legacies.

I'll return to legacies as well as athletes and children of faculty and staff momentarily, but I'll focus on donor children, because the point is the most obvious with respect to them. No reasonable person would think that an otherwise marginal applicant whose parents gave the college a multi-million-dollar gift adds to the class overall. Rather, in giving such preferences, the college brings in more money--which it can use for a variety of purposes, including funding scholarships for highly qualified and underrepresented students who might not otherwise be able to afford tuition, room, and board. As I noted in a Verdict column discussing proposed legislation earlier this year, "Jared Kushner’s father gave Harvard $2.5 million in 1998, which is about $4.3 million in inflation-adjusted 2022 dollars." Assuming Jared wouldn't have been admitted absent his daddy's largesse, admitting him nonetheless could be justified if it enabled a large number of other students (the column estimated 25 such students) to attend.

Two objections to this line of reasoning come immediately to mind. First, Harvard doesn't need the money.  It has an endowment of $53 billion, the country's largest (though only fifth-largest on a per-student basis). That might or might not be true. Judging by the dunning letters, emails, and phone calls I receive as a Harvard alum, the college certainly acts like it needs the money. And of course, the Court will be making law for all colleges and universities. Unless and until all colleges have endowments sufficiently large to provide all students with a full ride and have no other unmet financial needs, large donations will serve the colleges' interests. That's not necessarily to say that securing large donations sufficiently advances colleges' interests to justify donor-child preferences. Perhaps the Court will say that they must make financial sacrifices in order to avoid or minimize the use of race in admissions. But it's way off-base to say--as Justice Gorsuch did--that Harvard's interest in giving donor-child preferences is about class diversity. It's about money, which is essential to running a college and may even be helpful in supporting other race-neutral means of achieving diversity.

The second objection concerns the use of the funds. Justice Gorsuch gave the example of a donor preference for the donation of funds for an art museum, not for scholarships. But of course money is fungible. I have had the misfortune of serving on dean search committees on four occasions, including once when I chaired one. To prepare myself the first time, I spoke with a number of sitting deans about various aspects of the job, including fundraising. To a person, they agreed that you want donors to give unrestricted funds but that if the donor wants to fund something specific, you gently try to steer the donor towards a project that you were planning to undertake anyway, like a new building or . . . wait for it . . . a new art museum for your Fine Arts Department. Then, because money is fungible, you have the equivalent of an unrestricted gift. Justice Gorsuch's belittlement of a donor preference with respect to an art museum is either naive about how fundraising works, anti-intellectual (in suggesting that an art museum is an unworthy use of funds for a college), or disingenuous.

One can say something similar about legacy preferences. Mostly these exist to encourage alumni to stay involved with their alma mater--including by making donations. They're not entirely about the money. There's something to be said for maintaining a connection to past generations--although that interest is likely outweighed by the countervailing interest in giving opportunities to students whose parents and more distant ancestors were excluded (a point Justice Jackson made in the UNC argument). But in any event, to say that alumni preferences can't be justified so long as a college wants to use race-based affirmative action, one must account for the financial hit, which, as with donor preferences, could actually undercut other race-neutral means of achieving diversity.

Preferences for children of faculty and staff also have a financial payoff. We can think of such preferences as a kind of deferred compensation (especially if the admissions preferences are combined with tuition discounts). Because such preferences are only redeemable when children of faculty and staff reach college age, they effectively lock in some faculty and staff who might otherwise depart--or at least substitute for higher salaries that might otherwise have to be paid to such faculty and staff to retain them. The financial case for these preferences might not be as strong as for donor children and legacies, but they're real. (Readers wondering whether I'm engaging in special pleading can take comfort from the fact that neither of my daughters even applied to Cornell, chiefly because they each wanted to go somewhere a bit distant for college.)

Preferences for athletes are different, however. At a small number of colleges with big-time sports programs, men's football and basketball make money. Success in intercollegiate sports may also improve a college's ability to attract top students who are not athletes. Duke's basketball program helped propel the university's academic ranking, for example. But at most colleges and universities, even football and basketball lose money--at least if measured in direct terms. It's possible that even a money-losing football program helps maintain alumni loyalty, which in turn could lead to enough revenue to justify the program, which in turn could justify athlete preferences. Even so, over the range of sports and across colleges and universities, varsity athlete preferences are very difficult to justify. The squash, water polo, and crew programs probably all skew white and all lose money on net.

I don't necessarily want to say that that fact should mean that no college that gives recruited-athlete preferences should be forbidden from engaging in race-based affirmative action. Nor do I want to say that there should be a general prohibition with an exception for money-making sports. Among other things, an exception simply for men's football and basketball would run afoul of Title IX. But I do think that by raising the squash issue, Justice Gorsuch has usefully prompted an examination of the policy question whether colleges should give recruited-athlete preferences.

To my mind, the answer is no. That's not to say that participation in varsity (or club or intramural) athletics shouldn't count as a plus in an application in the same way that other extracurricular activities should. But  recruited-athlete preferences that go beyond the kind of consideration that an admissions officer gives to the editor of a high school newspaper, a volunteer at their local hospital, or a member of a dance troupe are very difficult to justify.