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> But you can favor people for other reasons, which may result in more people of a certain race. That doesnt violate the Civil Rights Act.

I don't know where you got that idea from but it's not true. There's plenty of precedent that using a proxy for a protected class to discriminate violates the CRA.

If elite institutions have favored people based on a protected class in the past, then preferring their children is likely to perpetuate that same discrimination in many cases (religion, race, ethnicity) that are inherited or inculcated. Obviously not for others (gender, sexual orientation, veteran status) that aren't inherited.

I saw that you were supportive of ending affirmative action. This is basically the same thing.

> I don't know where you got that idea from but it's not true. There's plenty of precedent that using a proxy for a protected class to discriminate violates the CRA.

You’re assuming unequal outcomes means there is something being used as a proxy for race.

In a merit based system you would take the best students and judge by grades and test scores. This would have unequal outcomes.

You don't have to measure outcomes at all. Harvard has had discriminatory admissions criteria in the past. Many axes of discrimination are inherited. Ergo preferring children of Harvard alumni causes that same discrimination, but with a new name ("legacy admission").

> You don't have to measure outcomes at all.

I think I compete agree with this.

> Harvard has had discriminatory admissions criteria in the past. Many axes of discrimination are inherited. Ergo preferring children of Harvard alumni causes that same discrimination, but with a new name ("legacy admission").

But are you saying legacy admission are unfair or illegal? “Discriminatory” admissions practices are not necessarily illegal (by gender) nor even bad (by grades).

They're definitely unfair. The courts will decide if they're illegal. IMO they should be, because they're one step removed from already-illegal discrimination: based on race, religion, ethnicity, and country of origin.

See also, the origin of "grandfather clause":

https://en.wikipedia.org/wiki/Grandfather_clause#Southern_Un...

You can read the complaint here - http://lawyersforcivilrights.org/our-impact/education/federa...

PDF - http://lawyersforcivilrights.org/wp-content/uploads/2023/07/...

Their legal argument starts on p17 of the PDF and across pages 17 and 18 it cites Title VI of the Civil Rights Act, and points to 34 CFR §100.3(b)(2) which states universities in receipt of federal student funds:

> may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin [1]

The general rule across most jursidictions is you can have a test for employment, admissions etc. that leads to a disparate impact - e.g. a tough physical fitness test that it is harder for women to pass than men - but if that can't be justified as relevant to the job or serving a valid role for the organisation, that's a problem.

To use the fitness test example, it's highly likely that the Marines applying such a test to decide who gets to train for special forces could justify such a test, but rather less likely if you're a company deciding on who to hire to write software or adminster databases or whatever.

The argument made in the complaint is that the justifications for legacy admissions policies don't work, and without a satisfactory justification, it's a breach of Title VI.

[1] https://www.ecfr.gov/current/title-34/subtitle-B/chapter-I/p...

This is a great summary thank you for providing it. The clarification that requirements must fit the job or serve the organizational interests seems key. The latter sounds like it has more wiggle room for Harvard in terms of building and maintaining a strong donor base. But perhaps there are more guidelines on this requirement.

I guess you might be able to argue legacy admissions might be more fit for the job (expectations, culture fit, etc) but that seems weaker and frankly not the real reason for Harvard admitting so many legacies.

> But you can favor people for other reasons, which may result in more people of a certain race

No, that is mainly the point of the civil rights act.EEOCs entire purpose is to sue/prosecute orgs that discriminate without being direct about it. If you only interview white sounding names for example, there is no proof of direct discrimination or if a policy you have has the effect of excluding a protected class.

The bar for proving malice, as with all things legal is if a "reasonable person" can recognize the indirect effect of those actions as harming protected people because then intent to discriminate can be proven.

> No, that is mainly the point of the civil rights act.EEOCs entire purpose is to sue/prosecute orgs that discriminate without being direct about it.

Having unequal outcomes doesnt mean your are discriminating.

Yes but if it is a pattern anyone can recognize it is cause for investigation and if there were pattern breaking applicants then that is probably a suit. Of course, a court will decide case by case if what happened was actually discrimination. Even with all this, there is a crapton of actual discrimination just based on people's names. Another commentie on this post was mentioning how their employer was tossing out all indian sounding names, i have seen similar things as well. This is very common and the law allows lawsuits based on patterns of unequal outcomes and in civil cases, the defendant has to prove the accusation is false (opposite of innocent until proven guilty).

Law isn't code. Believe it or not judges, and regular people, can suss out when someone is trying to be clever with their illegal discrimination.

If admission to a college is based on a standardized test that is administered only on Sunday mornings, no one is going to buy that it is not designed to discriminate against devout Christians. It doesn't matter if the college swears up and down that that's the only day they have proctors or testing sites available. You don't have to say or even imply you're doing it for an illegal reason.

Unless there's a legitimate reason for applying whatever criteria you choose to apply, you have to check whether they're a proxy for a protected class. This definitely applies to hiring. I see no reason why it shouldn't apply to college admissions. Does having a parent who studied at Harvard better qualify a student to study there?

The Civil rights act did put restrictions on literacy tests used as a form of indirect discrimination. So there's some language for things outside of direct discrimination.

I think that it would have to be demonstrated that the legacy admissions process is a proxy for racial discrimination, i.e., put it in place as a stealthy race-based criterion.

I think you’re right. If they can prove that is the intent I think that would demonstrate that its illegal. But merely by effect, not buying it. Any way of choosing that is not by race, which is a legal requirement, can have very unequal outcomes. If its by effect then choosing by grades and test scores is illegal.

I wonder what would cause a university to both pursue affirmative action to meet diversity quotas while also actively trying to discriminate against minorities via legacy admissions.

> The Civil rights act did put restrictions on literacy tests used as a form of indirect discrimination.

As a prereq for voting. But getting accepted into a university isnt a right. And obviously universities discriminate against the illiterate.

"No person in the United States shall, on the ground of race...be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

That "Federal financial assistance" part puts it in scope. And "program or activity" specifically includes "(2)(A) a college, university, or other postsecondary institution".

I don’t understand how you’re positioning this. It seems like you’re saying they have extra compliance because they accept federal funds.

I don’t disagree. So what? This has nothing to do with literacy tests. Are you suggesting legacy admissions discriminate by race? As I mentioned there is an unequal outcome but equal outcomes are not required.

> Are you suggesting legacy admissions discriminate by race?

Other than adoptive children, people tend to be of the same race as their parents. How is it not racial discrimination?

> This has nothing to do with literacy tests

I mentioned literacy tests as the restrictions put on them by the civil rights act are an illustrative example of the act calling out indirect discrimination. I understand they aren't directly related to college admissions.

I could have used a contrived example. Like how height requirements could discriminate against women. But that's not mentioned in the act, while literacy tests are...so it's a better and more relevant example.

It was in reply to this:

"But you can favor people for other reasons, which may result in more people of a certain race. That doesnt violate the Civil Rights Act."

Again, an example where that's not true. In that case "literacy tests" for voting were restricted, even through it's "other reasons" and indirect. The literacy tests have, as you say, "unequal outcomes". I'm not 100% convinced that legacy admissions would fall into the same category. But, I imagine many people are.

In other words, I brought up the literacy tests as an example of something that contradicts your assertion, which I read as something like "only clear and direct discrimination is in scope for the civil rights act".

Very interesting that you saw affirmative action as "institutionalized racism" (https://news.ycombinator.com/item?id=36549656) but now "getting accepted into a university isnt a right".

You seriously don't see how preferring children of alumni (other than edge cases like adoptive children) isn't institutionalized racism by proxy?

Possibly, but as I understand it the courts had to get involved to drag Harvard away from racially discriminating in favour of various minorities people.

It seems unlikely that Harvard are secretly discriminating against minorities with their legacy admissions program. There seems to be a consensus that if admissions was left to their own they'd be trying to filter out Whites & Asians. So it seems a bit far-fetched to claim that might be an indirect attack against the very people Harvard were just trying to advantage. They're clearly discriminating based on social standing, money and power.

>It seems unlikely that Harvard are secretly discriminating against minorities with their legacy admissions program

I agree, though it's also likely they protect and promote their legacy admissions because it drives a lot of alumni funding. I don't think there needs to be proven deliberate intent to discriminate for a lawsuit to succeed. Lots of ADA lawsuits, for example, aren't about intent.

Actually, it is legal to discriminate on race, such as by saying that you only want to hire white actors to play Abraham Lincoln (BFOQ), and it is also legally murky to use things which can act as a proxy for race, and hence why police had to argue for the use of IQ tests to exclude high-IQ candidates.

There are also parallels to BFOQ's in other peer nations.

> Thats a job for congress.

The Supreme Court doesn’t seem to think so.

You’re referring to making gay marriage legal?

In any case its the Supreme Court”s case to rule on what the law says. They cant just conclude legacy admissions are unlawful because they are bad. Congress can.

The court ruled its unconstitutional to have a law forbidding gay marriage. They did not make a law.

They can essentially strike down laws as unconstitutional. But that’s a legal basis - they cant just say they think its bad and strike it down.

Edit: (no reply button below) please clarify what you don’t understand. I dont see any disagreement between us despite your oppositional stance and fear of bigotry.

I’m not sure at all what you’re trying to say here but I hope it’s not bigoted.

The court can rule that it is against existing laws and allow individuals to sue schools for damages.