Race-based preference proponents seek federal investigation into legacy admissions at Harvard.

But there's no civil rights violation to investigate.

A left-wing activist group, Lawyers for Civil Rights, has filed a complaint against Harvard with the Department of Education. Filed on behalf of three Massachusetts-based black and Latino community organizations, the complaint calls on the feds to investigate Harvard’s legacy and donor-related preferences that, for the time being, favor white applicants.

The complaint is a response to the Supreme Court’s decision that Harvard’s racial preference regime for blacks and Hispanics is unlawful. It mirrors arguments that proponents of such regimes have long made, and that are now lodged with new vigor in light of the Court’s decision. Proponents hope that doing away with legacy and donor-related preferences will open up places for members of minority groups whose levels of enrollment, these proponents fear, are in jeopardy due to the Harvard ruling.

But there’s a huge problem with asking the feds to investigate legacy and donor-related preferences. Whatever one thinks about them as a matter of policy, they are lawful. There is no violation to investigate.

Both the Constitution and Title VI of the Civil Rights Act prohibit colleges from discriminating on the basis of race and ethnicity. No law bans them from discriminating on the basis of legacy or the donations of relatives.

Opponents of these practices argue that legacy and donor-based preferences are discriminatory because they have a disparate impact on blacks and Hispanics. However, this argument fails because neither the Constitution nor Title VI permits a violation to be found based on disparate impact.

The constitutional question was settled by the Supreme Court’s 1976 decision in Washington v. Davis, 426 U.S. 229.

The relevant statutory provision is 42 U.S. Code § 2000d (Title VI) — the prohibition against discrimination in federally assisted programs on grounds of race, color, or national origin. The Supreme Court has said that this provision does not reach beyond intentional discrimination. See Alexander v. Sandoval, 532 U.S. 275. 285 (2001).

Given Harvard’s preference regime for black and Hispanic applicants, it cannot plausibly be argued that its preference for legacy and donor-related applicants is intended to discriminate in favor of whites. And, of course, that’s not the intent at all. These preferences are intended to keep alumni happy, to encourage large donations, and (colleges would say) to foster a sense of continuity and community.

However, a well-informed reader warns me that the Biden administration might press ahead with investigating the Lawyers for Civil Rights complaint anyway. Harvard could then use the complaint and investigation as pretexts for doing away with legacy and donor-based preferences. In this way, it could try to pacify alumni by pretending it had to do this to comply with federal law. Many other colleges probably would follow suit.

My view is that colleges like Harvard would like to continue granting preferences to the relatives of alumni and big donors. Thus, it will look for other ways to keep admitting blacks and Hispanics at something approaching current rates. However, if Harvard determines that eliminating preferences that currently favor whites is necessary to keep black and Hispanic admissions rates high, it might well eliminate them.

I want to add a few observations about legacy preferences. First, their opponents vastly overstate the degree to which these preferences result in departures from merit-based selection.

Ann Coulter points to several studies that support this observation. A 1999 Princeton study of 4,000 students entering 28 selective colleges found that a majority of legacy admissions had SATs above their college’s average. And those below that mark were only slightly below it — 47 points, on average out of a possible 1,600.

In addition:

A 2009 Harvard study found that legacy applicants to the top 30 most selective colleges had a mean score 10 points higher on the reading SAT than non-legacy applicants and six points higher on the math SAT.

About a decade later, Naviance, a college software provider, examined 15,402 legacy applications from 2014-17 and found that 82% of legacy applicants have SAT or ACT scores at or above their colleges’ average for accepted students.

It’s likely, therefore, that the majority of legacies who attend elite colleges fall into one of two categories: (1) those who would have been admitted without legacy status and (2) those for whom all legacy status did was to overcome the disadvantage of being white (and perhaps geographically non-diverse).

Second, although legacy preferences currently help white applicants to a disproportionate extent, this reality will change in the future. These days, whites make up a clear minority of freshmen at top colleges — about one-third at Harvard and even a smaller percentage at Stanford.

White representation has been trending downward for decades. Eventually, therefore, legacy preferences will become a race-neutral criterion insofar as whites are concerned, and then end up benefiting non-white applicants at the expense of their white counterparts.

I’m not a fan of legacy admissions and even less a fan of preferences for relatives of big donors. It would be fine with me if these practices were eliminated — along with race-based preferences.

But the decision about how to treat legacy and donor-backed applicants should be up to each college. Each should be free to use them if they want to, but free as well to discard them for any lawful purpose, including the purpose of opening up places for applicants from less-well-off families.

However, colleges should not feel free to discard these preferences for the purpose of opening up places for members of a particular racial or ethnic group. And it would be especially unfortunate if colleges were to use an unjustified Biden administration investigation as the pretext for accomplishing this.