Born For This: A Libertarian Looks At Legacy Admissions

>> Tom Church: Welcome back to The Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, joined by the libertarian professor Richard Epstein. Richard, if you don't know, is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's the Laurence A Tisch professor of law at NYU, and he's also a senior lecturer at the University of Chicago.

Today, we're talking about attempts to fix higher education and make private universities more fair. Now, there are two sets of air quotations in there. I'll let you see if you can find them. Richard, how are you holding up today?

>> Richard Epstein: Meanwhile, I taught two classes today, and I had a busy lunch and did a bunch of other stuff.

So I'm feeling just standing. The rule is very simple. If the work is productive, you're not tired at the end of the day. If it's frustrating, you're tired at the middle of the day. So today was a good day, and you are the beneficiary.

>> Tom Church: I appreciate that.

I hope you're not tired after our conversation. So let's set the stage, shall we?

>> Richard Epstein: Sure.

>> Tom Church: Here in California, California's AB 1780 was approved, signed into law by Governor Gavin Newsom on September 30th of this year. So as you noted in your weekly column, it sets out to stop the practice of legacy and donor admissions, specifically in non public higher education institutions.

That is, undergraduate and graduate programs at private universities no longer able to use legacy or donor admissions to, I guess, put their thumb on the scale for applicants. Richard, I wanna know, how is this intellectually different from the Supreme Court's recent rulings about affirmative action in public and private universities that many have argued make universities focus more on merit and not on demographics or other aspects?

How is this any different?

>> Richard Epstein: Well, it turns out it's not all that different, and therein lies the problem with the Supreme Court decision. As you know, basically, I've always thought that the affirmative action debate should have been resolved in the following sentence. If you get a bunch of private universities that are not subject to government coercion who engage in a practice of this particular sort.

You assume that it has some efficiency advantages, even if you don't know exactly what they were. And so you let public institutions basically piggyback on the private institution. The reason that it doesn't work as well as we would hope is it's quite clear that there's a huge organized government force on these bodies, which essentially takes after any organization that seems to slight minority of prospects and so forth.

So it's not basically making an untutored choice or an informed choice when you have the balance, whatever way you want it. There's clear coercion in order to have these programs. So what you see is a level of program that would not exist in a market that did not have the government with heavy thumb on the scale.

Well, at this particular point, if you got rid of the thumb, it's going to be a really difficult question as to how you do the trade-offs. Most institutions will tell you the following. If we were to use a colorblind standard and we came up with no black admissions because we're elite institution, we're not gonna survive our conservative alumni.

So what we do is we make adjustments. The key point is there's no government out there telling you which adjustments to make. And so private institutions would generally try to get to the point where the marginal benefits of additional affirmative action programs are offset by their marginal cost.

And if you note that this is not a simple merit calculation with respect to individual people, there are all sorts of collective goods that are involved in this case, all sorts of financial implications in this case. And one of the things that helps make an affirmative action program go is a lot of free cash, much, much of which can be supplied in direct or indirect fashion by various kinds of people who have a special affection to the good, mainly those people who are donors on the one hand or legacy admits on the other.

Now how do those people work is, of course, very shadowy. If you actually try to figure out who is and who is not a legacy admission, it's extremely difficult to say. And when they put this new statute on, what they're supposed to tell you which students are provided a legacy preference or donor preference.

Or the fact that somebody is a legacy or the relative of a donor is not a sufficient condition for saying they're that. And yet we don't know what we're supposed to do to figure out which of the people who are admitted, who are essentially related by money or by family to somebody else is a legacy or not.

It doesn't give us any information about the way in which that's the word. So we don't know who's in compliance and who's in violation. Nobody could compile the table in these cases. And what's going on? Well, I've been involved in the admissions committee for many years, and every year or so, I kick on the phone.

I said, I just talked to this particular person. I think that she's very good, and I think we should admit her with a scholarship to the law school. And who knows if I'm a donor to the law school, I am at NYU through the classical liberal institute and I do this.

And is this a legacy admission or am I trying to be a broker of an honest deal for both parties? And lots of people, for example, who do exactly that. So you're a rich donor and you have a schedule and you are willed to do something, and you find some person whom you think is attractive and you call up and say, give this person a chance.

Now, what are you asking for? Most of the time, everybody's in this business is not asking that they be admitted on your say so. It's very unusual to do that. What you're asking is they'd be taken out of the sludge pile and given an individual examination so they're not overlooked and neglected.

And that's a half favor, and it certainly matters, otherwise people would not ask for it. But it's not saying, in effect, if you don't give this admission, I'm gonna take the money away. And so if you have all these soft practices going in all directions, figuring out who is or is not a legacy admit is gonna be very hard to do, given the fact that you don't know the way in which these particular practices work, and you can easily make mistakes on the way in which it does.

So then you look at this statute and the affirmative action cases, and this is what you discovered. Everybody said, we only care about merit. Well, they don't. If they only cared about merit, what they would have to do is repudiate all their diversity hires on everything. And so what would happen is you would not just go after legacies, you'd go after anybody who seems to be getting a racial preference, including your affirmative action program.

Now, are these programs still in place? Absolutely, I mean, they've fudged in a lot of way, and they're certainly less powerful now than they were before the Supreme Court decisions. But if you actually count, for example, for the elite 20 institutions, or they call it the Ivy Plus group of 12 elite institutions, and measure the number of black admissions into those schools, and then measure that against the median of the people who are in the top quadrant, ie, those people with top grades and top boards, it's a tiny fraction.

And what they said at Harvard was just plain wrong, in that case. They said, we've got so many people in the top quadrant, we can't possibly take them all. Which is true, and you don't have to. But there's nothing which says you can't get yourself exclusively from that quadrant.

Instead of going down, three or four other groups are much weaker applicant, and we do go down. And so if you would really wanted to do this, you said we only believe in merit. You're gonna have to stop lawyer affirmative action program. But the key thing to understand is there's supposed to be a very flawed enforcement mechanism with respect to a legacy admission.

There is no enforcement mechanism whatsoever with respect to affirmative action program, because frankly, they don't wanna stop them. So all the talk about this being a pure merit system idealization, that's the talk that somebody would have if they were a straight color blind person. And we know that there's nobody who pass this legislation from the progressive party takes that, so what they do is they announce a neutral principle, enforce it against one group if they figure out how to do it and they don't enforce it against another group.

And in fact it's infinitely easier to enforce this against minority candidates because their scores are so much weaker. So you ask, well, how do I know that? Well, I've done admissions work not so much recently, but over the years since 1968. And I mean it's just perfectly clear when you're talking about legacy admissions for alumni and so forth, what you do is you give them a couple of points on the scale, not ten or twelve, but one or two.

And what you also do with your legacies is they come to you and they want to get in and you don't think they can do it. What the dean does is she gets on the phone and calls up the dean of a lesser law school for whom this person might be good, and said could you help me out a little bit and think about the way whether or not you consider this person for admission who's sort of in the middle of your profile and one favor then begets another.

So you've got all of these kinds of mechanisms going and they don't give you any way to identify this. And so what it says if you look at this program it is almost farcical, it says if it turns out that you don't have any non compliance, we don't examine your records.

So everybody's going to report non compliance, rather compliant, and then when you look at non compliance it's like having a trapdoor fall out. You, regardless of the number of violations, that is one, your report is now the legacy stoner status, race and country of origin of every newly enrolled citizen at these schools who is a legacy admit and we don't know of course who they are.

And so you then have to do all this stuff and do all these calculations, it would be crazy. Just as a matter of sanction, if you're taking in say 5000 students at a large school of 2000 students in a year in all your programs and you have one legacy admit, you're gonna have to report for everybody coming into the school.

It's just an absolutely crazy thing, so nobody's gonna report any violations under the statute and nobody's gonna know you can't investigate that. So who knows what's supposed to go on? Is the issue of legacy preferences limiting is a key question to answer and I've worked on this stuff for a very long time.

And the answer is, if you are inside the institution, you're aware that there's a price to take if you dump down low in order to get yourself donor or legacy admits, and you're very careful about all of that stuff because you're the one who pays the price if the student body is weaker.

But if you look at it and you say, I now take somebody and it's not a lot of people, you got somebody who could give you $10 million in order to establish some kind of a program. You take that person in and use a $9,900,000 excess in order to give programs to people whom you want to get in.

It's not as though most of these people are involved in cross subsidies, but if you're trying to understand the program, there may be one or two very large donors for whom the cross subsidy issue is paramount. And if you're a university, I'm going to say to myself, and sleep very well at night.

Well, I took this guy's kid who had an 89 when you needed a 90 to get in, and he gave me $10 million, and now I could start three new programs. It's the single case rather than the aggregate, and so most universities are prepared to back off of this if in fact they could keep that.

And we have no idea whether or not when this is done, that practice is going to continue or not going to continue, because again, they don't give you any preference to tell you which of the students who are admitted who are legacies are given a preference, right? So you know, you have kids coming in, be scores between 20 and 40, let's say, and you get a legacy who comes in at 25.

Is that a preference because you could have taken somebody at 30, or is it not because you take a lot of people at 22 who are not athletes or not this, it's completely non operational. And what happens is anybody who supports a program like this has to understand the following.

Do you know what you're doing, sir? Do you have any idea of how these admissions programs work? Have you ever run an admissions program in your life? Have you ever called on alumni to do screening interviews or one thing or another? Are you sure that this is gonna be an improvement over not one of the first things you tell people when you're doing an admissions is it's not individual merit in some ideological sense or isolation is Conti in sense that matters.

It's the question of what the assemblage looks like, and that means you consider other things than individual stuff. So if you decided that the 50 most smart people, your class or mathematician, are you deviating from merits? If you decide to take a bunch of poets who test law and there's just no good answer to that particular question, and universities have to live with their choices, so they try to get them right.

The guy who comes in and tries to run this comprehensive study, he doesn't have to live with the consequences and he can impose millions of dollars on somebody. If you actually have to go through the evaluation that they want, then you don't know whether you're going to be insulated, so just take the following case.

Somebody comes along and writes a letter to the head of the California board saying, I was listening to a conversation in the elevator, and it was perfectly clear that the admissions at ex university were taking into account factors other than merit. Does that give you the right to investigate?

Do you know the answer, Tom?

>> Tom Church: Go ahead.

>> Richard Epstein: I don't know the answer, that's the point.

>> Tom Church: Yeah, I mean-

>> Richard Epstein: If you don't know the answer, you don't want to put something out there, and so, look, Jason Riley made this very bad column. He's usually a great columnist, and he assumed if you like the idea, that's all you need to do.

But the key thing to understand is that the enforcement mechanisms are there. And it turns out if the sentiments are in favor of limiting these as it is, then the last thing you want to do is to regulate. Because then instead of the university making the trade offs in an appropriate fashion, you get some big guy coming in from the outside who could do whatever he wants.

And you cannot figure out from this bill which students are, you can know which students are legacies and which ones have donors, but you can't figure out which ones have got preferences unless you do an enormous amount of detail work, which is going to be extremely awkward on privacy grounds, amongst other things.

So this is just a horrible statute, and the thing that Jason and everybody else should remember is that voluntary organizations can do things that they can't explain to other people, but the moment you force them to explain it and they can't do it, you have a crisis on your hand.

So the issue isn't whether or not you want to do or do something, the issue is, turns out if you're going to get a public enforcement mechanism and you don't have accurate triggers, it's going to be a catastrophe if you force it. Or, and this could happen, somebody looks at this and says, this is an absolute nightmare.

You get a republican governor, let's say in California and what the governor says is, hey, they didn't report any violations. See no evil, hear no evil, goodbye, I'm not worrying about this anymore. Which is the other problem? You have no idea when you see a statute like this, whether it's going to be bombs away or whether or not it's going to be something that is just going to be ignored.

So if you look at the difference in terms of enforcement of various kinds of obligations having to do with race and affirmative action, and you take the dear colleague letter, Barack Obama in 2011, which everything goes up for grabs, and then you look at Betsy DeVos saying, I'm not doing any of that stuff.

It's the same statute, right? And yet you have so much wiggle room under these statutes, you have no idea. Idea what you're gonna get. And so my view is, so long as Gavin Newsom is the governor of the state of California, nothing could be trusted because he still believes in affirmative action.

If he were to come up and tell you, I believe only that merit counts, as he said in his public speech, and he had to do it under oath, and you ask him whether or not you're completely opposed to diversity programs now. Do you think he'd say, I'm opposed to diversity programs, which I've defended for my entire professional career?

Or would he say this is an opportunistic stunt where I could get even with the Supreme Court?

>> Tom Church: Probably, more the latter. Richard, tell me, what is the constitutional argument against this? How would you challenge this in California courts? I mean, right, why are they doing this? They think this is one way in order to make, give more opportunity to low income people to go to elite private universities within California.

Right, I mean, that's the ostensible.

>> Richard Epstein: Yeah, but the first thing is they can't achieve that particular end in any way. So one of the other problems is, well, why do you wanna be Stanford or at Harvey Mudd, or whatever the great colleges in California are that are private?

And the answer is you wanna be there, in fact, have great teachers and great classmates, right? So if you completely invert the student body so that it doesn't have very high boards and very high grades and very high outside activities, it's a different place. Even though it has the same name as the university, and it turns out if the quality gets weak enough, they're going to be people who would otherwise go there, who will now decide to go somewhere out of state, and this is a real kind of problem.

So what happens is if you basically turn over 40% of the student body to people who are sort of deprived of opportunities and they have weaker credentials, when you actually get down to it, in one way or another, it's gonna be a weaker university. Faculty are gonna be less willing to teach there, people are gonna take exit.

You can't do it. You can do a little of this. But one of the things that you note like affirmative action, and I've run affirmative action program, is too much of a good thing, is a bad thing, and you just, the hard problem is figuring out what the margins are and nothing the state does helps you that.

So what's the argument against it? It's the argument, look, these are private institutions and what they're trying to do is to figure out how to organize their affairs. And what they do is essentially, when they get charters from the state, they're charters which facilitate and give them independence.

What you're doing when you start to impose these programs on them is you're taking part of the ownership prerogative and transferring to the state. And that has two consequences. One is a taking, and the other is it's a violation of free speech. The takings argument is you guys had uncontrolled discretion that gave you a lot of advantages.

That's all gone now. And instead of devoting your resources to running your institution, you're doing it to entering lawsuits which are not in your benefit. And it's just no different from the government coming in and saying to a corporate corporation, what we're gonna do is make sure that if you have a board of ten, that you have to put three people on that board.

Not because you want them, because they fill certain boxes on race, sex, sexuality, or whatever it is. I regard those statutes as unconstitutional. The most extreme case was the Dartmouth College case back in 1819, where what they did is they just had a charter and they just fired everybody and put in people that the government wanted.

And that's just taken over the university. It's getting rid of the charter by indirection. And the constitutional rule is you cannot do by indirection that which you cannot do directly. And so what you're doing is essentially, you're taking over this particular place and you're removing its privateness. And you're doing exactly the same thing with corporations when you determine the membership of their board.

So you do say, you can't do this in the way in which you want to play it, because you're determining who's gonna be our student and we're not gonna have that role. It's a harder case because it's a partial regulation. And so what it's gonna turn on is how we perceive this.

The government will come forward and say, it's only a rational basis. We've given you a reason that we want to do this, improving monopoly, rather minority representation. That's all we have to show. And somebody else is gonna come back and say, no. What you have to do is to talk about both arms of the scissors, have the burdens and the benefits, and what you have to do is talk about these massive dislocations, the interferences and all the ambiguities I've done.

And when you do that, it turns out that you are crippling the institutions that are there. So the Harvard study, and there are always bad studies at Harvard in some sense. What they do is they announce that if you look at elite universities, they provide us with, say, 20% to 25% of the a plus students in the world in all sorts of measures.

Judges, Rhodes scholarships, graduate things, Nobel Prize, you name it. Well, what's the reaction I have to that? You are absolutely right. That's the most important reason not to change the way these places operate. Because if you change them, you're not going to keep those numbers the same. And what you want to do is bring in people in key places or precious social resource.

And if you're gonna cut that number down by changing the composition of the class and changing the composition of the scholarship and changing the nature of the faculties that are gonna to be involved in this place, it's a massive disservice. So I look at that study and I say, my God, that's the kind of report card you say.

You guys really must know what you're doing if you manage to have that consistent level of excellence. And the fact that we don't know how to run this program and none of the people do who write these studies is a mistake. Again, I'm talking here as an insider, as somebody who's worked in universities for 57 years and has worked in many ways on different admission committees at different times.

And I'm telling you that these guys have no idea how these things start to work or the delicate trade offs that have to be made. And the rule is, if there are trade offs that have to be made, they could never be made if you have to answer to an alien body which has one particular drum to bang and has no idea what's going on.

And so the real question is, would you rather have, assuming you could get rid of the other forms of influence on these universities, the folks who run Harvard, decide what Harvard should do, or would you rather have a governor of Massachusetts engage in that situation? I don't think it's bad.

So as I told you in the paper, as I wrote in the paper, I'm very unhappy about all the alternatives on affirmative action because I don't think you could, quote, leave it to the market when you have a federal government which is so insistent on its enforcement strategies.

But on the other hand, I'm really worried about overkill and imposing kinds of structures on universities that just don't want. So my solution is you have to repeal the civil rights laws as they apply to universities and let it go back. If you think that universities are gonna reward the overt exclusion of minority students.

When you get rid of that, you got another thing coming to you. That's just not the way I've worked in these universities. And the internal support for affirmative action is spectacularly large. In fact, there's no, nobody really who's opposed to it. There are religious institutions that have other kinds of requirements that they want.

But you take a place like Hillsdale College, right? They don't take any funny money. Do you think they announced we will not take black students? They don't do that cuz they'd be crazy to do that. They understand as well as everybody else the point about mix. And if you know that it's gonna be honored socially at 97% of what you like, why to get that other 3% of compliance, you wanna wreck the entire system is just beef on me.

And so all the people are doing this are buying a bill of goods because I don't think they understand how these universities operate. I think they overstate the amount of these kinds of preferences, understate the benefits that they give, understate the cost of administration, and overstate the benefits that they think they can get.

And so the whole thing is, just, as far as I'm concerned, a disaster if it's enforced, and a sleeping gun that could go off at any time if you just leave it on the books and then all of a sudden it gets revised under one circumstance. So I am very strongly opposed to these programs.

And frankly, I've been a dean and I've run programs of one kind or another. I've been on admissions committees, presidential search committees. And the first thing I'm going to tell you is I did this at Chicago or at NYU. I know what's going on there. I certainly don't want to say because I know what happens in Chicago that makes sense.

I'm going to tell Northwestern what to do. What happens is you realize that your knowledge is institution specific and what you don't do is start preaching to everybody else how to run their shop. You always talk to people and if they ask you for advice, you give it.

But I certainly don't want to think that somebody who's never been involved in that institution has the power to investigate and determinate programs which may in fact be in the beneficial interest of the institution in question.

>> Tom Church: Richard, last thing here. Let's wrap up on this. I want to know where you draw the line because we're talking about racial preferences, we're talking about legacy preferences or donor preferences, and in this specific case, what private organizations or private universities are allowed to do.

Where's the dividing line? How am I supposed to interpret other options, other ways that they can distinguish between applicants?

>> Richard Epstein: Well, I mean, my view is if you do it right and you keep the federal government out, whatever they want to do is just fine with me. So you want to give legacy preferences?

Fine. You want to give athletic preferences which are always larger? Fine. Well, why do you give athletic preferences? Because essentially if you get the athletic spirit going, it brings the alumni out. You get greater school spirit. It's a terrific advertisement for the place. And so paying these prima donna athletes with a free spot at admission is there.

And one of the things you have to look is check the boards and grades of some of these kids. I mean, they're way below what they are anywhere else. And then what you have to do is to make accommodations with tutors and special measures and so forth. On the other hand, you get some kid who's a 3.9 in astrophysics and happens to be the quarterback, say, count my double blessing.

I don't want to tell them how to do anything so long as I'm consent that the external pressures on them, as it were, legal systems are not there. The problem with universities right now is they're much too heavily regulated by the federal government in all sorts of ways.

And I think that what those do is it delegitimates the choices for affirmative action because it could be so heavily attributed to the effort to try to avoid real trouble in dealing with this thing. So somebody says, well, of course we have to go through with this program because otherwise we're going to be investigating.

Look, to give you another issue, the oversight that these government programs have on medical research and the way they fund them is oftentimes a huge detriment with all sorts of influences in a very bad way. And I want to get the federal government out of doing that stuff.

And so it becomes extremely difficult to get a sensible way to figure out how medical grants are going to be granted to various universities. And it used to be that you had a professional set of committees that were the interventions between the political guys who funded the money and the people who received them.

But if you have people in the government who start to start exercising influences over what goes on, it's a disaster. One of the great things that my former president at Chicago did, NYU at Chicago, Hannah Gray did, is when she was offered by some political purposes, hey, we'll give you a lot of money if you just play ball on this.

She said, nothing doing. The only money I'm going to take for medical research is that which goes through the process, and you have to preserve those independent checks. And if you don't do that, everything is going to start to go south. So what I'm asking for is stronger university autonomy on all of these things, which means that instead of imposing yet another silly program on them, I want them to relax on some of the programs that they put in there on faculty hiring and student admissions under the name of affirmative action, whatever else you wish to call it, because I think in the end, those are bad, but I don't want that government to come back and take the other position saying, well, there are problems with affirmative action.

We're going to ban that as well. What you have to do as a university is to have your choice, and what you should do as a government is to respect those choices and to know that some universities are going to have different attitudes on race and sex and any other kind of admissions than others and basically assume that diversity in the way that organizations run themselves is a good thing and it's not a bad thing.

And so over and over again, the point is to try to figure out how to minimize the combined effect of state and federal regulation. And the problem about Gavin Newsom is what he wants to do is to free up the kinds of activities that he likes by not checking them, and he wants to do it the other way.

So let me just mention one point. There are many schools that are committed to First Amendment values and exchange and to DEI programs, right. Well, you look at it, there's a huge asymmetry. There is no enforcement mechanism in these universities to deal with the free speech issues. There is a huge enforcement mechanism to deal with any deviation whatsoever from the affirmative action standards.

You go after people like Amy Wax, for example, because she says things you don't like. What happens is you can never have two consistent, inconsistent values in tension with one another, where in one case you have the might of the university behind it, and in the other case, everything just kind of goes through the air and nothing is said.

And the danger that you have in this case is they'll really come down on various kinds of donor and alumni preferences, maybe, we don't know, really tough. But they don't have a single sanction in place to deal with the deviations from what they regard as a near sacred merit principle to deal with affirmative action cases.

And they don't believe that. And I don't want to have that barrier either. What I want to do is to have independent institutions make their own judgment. And by God, it turns out if you're running a music program and you want to get jazz musicians, you're going to have a different composition than if you're a physics program trying to figure out what you do with hydrology and nuclear reactors.

They're just going to have different compositions and different styles and different rules. Well, you have to respect that. You have to respect it with respect to departments within universities as well. And that's also a constant source of tension. So again, I'm just going to stop right now. This is not a good statute.

It is not a conservative statute. The good news is that won't enforce it. The bad news is God knows what will happen if they try to do so. If you couldn't tell, you've been listening to The Libertarian podcast with Richard Epstein.

>> Tom Church: As always, you can learn more if you go to Richard's column, the Libertarian, which we publish on Defining Ideas at hoover.org.

If you found this conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts, Spotify, or wherever you're tuning in so that others can find it. For Richard Epstein, I'm Tom Church. We'll talk to you next time.

>> Presenter: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition.

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