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January 15, 2008

Prof. Larson, I hope you are right: Legacy Admits and the Constitution's Nobility Clauses

Adam Liptak has just written an interesting N.Y. Times article on legacy admits, "A Hereditary Perk the Founding Fathers Failed to Anticipate," Jan. 15, 2008.  In the article, Liptak presents the standard defense of legacy admissions practices but ends by presenting Prof. Carlton F.W. Larson's nobility clause constitutional argument against such practices. His paper is "Titles of Nobility, Hereditary Privilege, and the Unconstitutionality of Legacy Preferences in Public School Admissions," and the abstract is below:

This Article argues that legacy preferences in public university admissions violate the Constitution's prohibition on titles of nobility. Examining considerable evidence from the late eighteenth century, the Article argues that the Nobility Clauses were not limited to the prohibition of certain distinctive titles, such as "duke" or "earl," but had a substantive content that included a prohibition on all hereditary privileges with respect to state institutions. The Article places special emphasis on the dispute surrounding the formation of the Society of the Cincinnati, a hereditary organization formed by officers of the Continental Army. This Society was repeatedly denounced by prominent Americans as a violation of the Articles of Confederation's prohibition on titles of nobility. This interpretation of the Nobility Clauses as a prohibition on hereditary privilege was echoed during the ratification of the Constitution and the post-ratification period.

This Article also sets forth a framework for building a modern jurisprudence under the Nobility Clauses and concludes that legacy preferences are blatantly inconsistent with the Constitution's prohibition on hereditary privilege. Indeed, the closest analogues to such preferences in American law are the notorious "grandfather clauses" of the Jim Crow South, under which access to the ballot was predicated upon the status of one's ancestors. The Article considers a variety of counterarguments supporting the practice of legacy preferences and concludes that none of them are sufficient to surmount the Nobility Clauses' prohibition of hereditary privilege. 

The article also references a NBER working paper by Jonathan Meer and Harvey Rosen, "Altruism and the Child-Cycle of Alumni Giving" (2007), the abstract is below:

This paper uses a unique data set to assess whether donors' contributions to a nonprofit institution are affected by the perception that the institution might confer a reciprocal benefit. We study alumni contributions to an anonymous research university. Inter alia, the data include information on the ages of the alumni's children, whether they applied for admission to the university, and if so, whether they were accepted. The premise of our analysis is simple: If alumni believe that donations will increase the likelihood of admission for their children and if this belief helps motivate their giving, then the pattern of giving should vary systematically with the ages of their children, whether the children ultimately apply to university, and the outcome of the admissions process. We refer to this pattern as the child-cycle of alumni giving. If the child-cycle is operative, one would observe that, ceteris paribus, the presence of children increases the propensity to give, that giving drops off after the admissions decision is made, and that the decline is greater when the child is rejected by the university. Further, under the joint hypothesis that alumni can reasonably predict the likelihood that their children will someday apply to the university and that reciprocity in the form of a higher probability of admission is expected, we expect that alumni with children in their early teens who eventually apply will give more than alumni whose teenagers do not. The evidence is strongly consistent with the child-cycle pattern. Thus, while altruism drives some giving, the hope for a reciprocal benefit plays a role as well. Using our results, we compute rough estimates of the proportion of giving due to selfish motives.

-E.R. erosser@wcl.american.edu

January 15, 2008 in Books/Articles/Reports of Interest | Permalink


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