Personal Dignity, Equal Opportunity, and the Elimination of Legacy Preferences

Abstract

Students with the wrong ancestry are denied equal access to almost all elite colleges and universities in the United States, nearly eighty-five percent of which admit students based in substantial part on whether they are children or grandchildren of the school’s alumni. These “legacy preferences” significantly contribute to the widening and calcifying socioeconomic stratification on elite campuses and in American society. The Supreme Court has held that government’s sorting of persons by “ancestry” is inherently suspect and therefore subject to heightened judicial scrutiny. This article argues that the suspect “ancestry” classification includes not only “race” or “ethnic group” but also descent within only one or two generations -- “family lineage.” The anticlassification principle that drives contemporary Equal Protection jurisprudence protects personal dignity, which arises from making one’s own way in the world based on individual merit, unhindered by inherited or otherwise ascriptive status. In feudal and aristocratic societies, “dignity” was attached to the status or rank that a person inherited through family lineage. The Equal Protection Clause rejects this inherited, status-based dignity in favor of a “personal dignity” that inheres equally in each individual. Elite schools’ use of family-lineage classifications to distribute public goods is incompatible with the personal dignity to which each person is entitled in a democratic society. The inclusion of family lineage within the suspect “ancestry” classification is reinforced by the Supreme Court’s traditional indicia of suspectness. Family lineage is immutable, not merit-based, and has been rejected as a basis for classification in other provisions of the Constitution and in major Congressional actions. Antisubordination values confirm this conclusion: legacy preferences help the elite managerial class replicate itself at the expense of children born to lesser-educated or less wealthy parents. . Lastly, including family lineage within the proscribed ancestry classification is supported by international law. The Universal Declaration of Human Rights and other international conventions signed by the United States preclude preferences in admission to higher education based on “birth.” The drafters of the UDHR specifically intended to prohibit family-lineage distinctions “in the sense of inherited privileges for the sons of noblemen, capitalists, party leaders and so on.” The United States delegate, Eleanor Roosevelt, asserted that the requirement that admissions be “on the basis of merit” precludes preferences based on “personal... favour.” These principles led to the abolition of legacy preferences and other forms of hereditary distinctions at Oxford and Cambridge. The result is that today the United States is the only nation in the world whose elite universities discriminate in admissions based on family lineage.