Are Legacy and Donor Admissions Soon to Become a Part of the Past? The Department of Education Strikes Back Following SCOTUS Affirmative Action Decision

4 min

On July 24, 2023, less than a month after the Supreme Court's landmark decision striking down affirmative action practices in college admissions,[1] the U.S. Department of Education, Office for Civil Rights (OCR) has launched an investigation into Harvard University's use of legacy and donor preferences in its undergraduate admissions process. This investigation comes following a complaint filed by three advocacy organizations, alleging that Harvard University's legacy and donor admissions practices discriminate against applicants on the basis of race. With this investigation, the Department of Education has signaled that Institutions of Higher Education (IHEs) can expect increased scrutiny to be applied to preferential admissions practices moving forward and should review policies governing their admissions processes that may ultimately become subject to novel legal challenges in the future.

The Chica Project, the African Community Economic Development of New England, and the Greater Boston Latino Network initiated the underlying complaint against Harvard University on July 3, 2023, to challenge its practice of awarding preferential treatment in the admissions process to undergraduate applicants with familial ties to donors and alumni. The complaint, filed by Lawyers for Civil Rights, alleges that Harvard University's legacy and donor admissions practices violate Title VI of the Civil Rights Act of 1964, a federal law banning discrimination by programs that receive federal financial assistance. The complaint argues that students with a legacy relationship to Harvard University are approximately six times more likely to be admitted, and donor-related applicants are nearly seven times more likely to be admitted. The complaint further contends that both legacy and donor applicants are typically white.

OCR notified Lawyers for Civil Rights that it planned to target the following issue for investigation: "Whether the University discriminates on the basis of race by using donor and legacy preferences in its undergraduate admissions process in violation of Title VI and its implementing regulations." During the investigation, OCR will collect and analyze relevant evidence from both the complainant and the accused to reach a determination on the merits. While OCR has declined to provide further comment on the matter, multiple lawmakers and policy advocates have addressed the debate over legacy and donor admissions.

For instance, when the Supreme Court decided to curtail the use of affirmative action in college admissions, Justice Neil Gorsuch authored a concurring opinion, which criticized admissions practices giving preference to children of donors, alumni, and faculty as "undoubtedly benefit[ting] white and wealthy applicants the most." Following the Supreme Court's decision on affirmative action, President Joe Biden also remarked on the matter, stating that legacy admissions policies "expand privilege instead of opportunity."

Though legacy and donor admissions practices remain relatively common, with proponents arguing that they help promote a valuable sense of community and persuade alumni to donate their time and money, many colleges and universities have voluntarily decided to discontinue their use. Such decisions may ultimately prove to be beneficial, as lawsuits against such practices are likely to follow, regardless of OCR's determination. Indeed, one of the attorneys with Lawyers for Civil Rights has commented that the group has not yet ruled out filing suit against Harvard University directly in the future.

Given this newest development in the legal debate over college admissions practices, IHEs are once again encouraged to review their enrollment processes with particular attention to any preferential admissions practices, even where such practices do not appear to implicate a legally protected category on their face. Additionally, IHEs should consider how they will handle legacy and donor admissions practices moving forward, and the consequences associated with either retaining or eliminating their use.

IHEs with questions regarding college admissions practices and how this ongoing legal debate is likely to impact the use of particular policies over time may contact the authors of this article or any member of Venable's Labor and Employment Group.

[1] IHEs looking to learn more about the Supreme Court's decision on affirmative action in college admissions, can access our prior insight on the topic, The Future of Race in Higher Education Admissions.