The Constitutionality of Legacy Preferences

In the wake of the Court's affirmative action decision, a federal lawsuit was filed on Friday challenging Harvard's legacy admissions preferences. There's a good chance that Harvard (and other schools) will abandon legacy preferences after gnashing their teeth, but suppose they don't. What should happen to the legal challenges?

One relevant case is Kotch v. Board of River Pilots. It's a constitutional decision that I teach in Admiralty. Louisiana required that ships entering New Orleans port and the Mississippi have a local licensed pilot to avoid shallow water and underwater obstacles. (This is a longstanding rule for maritime commerce.) State law provided neutral criteria for getting a pilot license that included an apprenticeship, but in practice pilots would almost always take only their relatives as pilot apprentices. Some wannabe pilots who could not get a license challenged this practice on equal protection grounds.

The Supreme Court (in 1947) rejected this claim by a 5-4 vote. Justice Black wrote for the Court and leaned heavily on the idea that pilot regulation was a traditional state function and that pilotage was "a unique institution and must be judged as such." Basically, he said that a pilot needed local knowledge and that this need for personalized knowledge was (or could be) rationally related to picking mainly relatives of existing pilots. The Court went out of its way, though, to say that this deference might not apply to other professions or business that used family ties to make selections.

Justice Rutledge dissented and said: "The result of the decision therefore is to approve as constitutional state regulation which makes admission to the ranks of pilots turn finally on consanguinity. Blood is, in effect, made the crux of selection. That, in my opinion, is forbidden by the Fourteenth Amendment's guaranty against denial of the equal protection of the laws. The door is thereby closed to all not having blood relationship to presently licensed pilots." He added: "The discrimination here is not shown to be consciously racial in character. But I am unable to differentiate in effects one founded on blood relationship."

The last line strikes me relevant to legacy preferences. Plaintiffs challenging them will probably not be able to show that there is intentional racial discrimination in that aspect of admissions programs. But what using a familial tie? Universities can argue that there is a rational basis for legacy preferences--alumni donations. But is rational basis review the correct standard? In 1947, the idea of heightened scrutiny was in its infancy. Maybe Kotch would come out the same way now under heightened review--it depends on how the courts would view pilotage today--though I think that's doubtful. And I don't think legacy preferences would survive heightened scrutiny. Perhaps Kotch will get renewed attention in the upcoming litigation.