For Five Supreme Court Justices,Affirmative Action Isn't Academi

For Five Supreme Court Justices,
Affirmative Action Isn't Academic

Judges or Their Kids
Are College 'Legacies'
By DANIEL GOLDEN
Staff Reporter of THE WALL STREET JOURNAL
May 14, 2003

In one of the most controversial cases of the year, the nine U.S. Supreme Court justices are expected soon to decide the fate of racial preferences in college admissions. As it happens, a majority of the justices are already familiar with another type of admissions preference.

Five justices or their children qualified for an admissions edge known as "legacy preference," which most U.S. colleges give to the sons and daughters of their alumni. This preference is sometimes criticized as affirmative action for wealthy whites, since the students who benefit from it overwhelmingly fall into that category.

Two justices, Stephen Breyer and Anthony Kennedy, have family ties to Stanford University that span three generations. A third justice, Sandra Day O'Connor, is a Stanford graduate and the mother of two Stanford alumni, and has served on the university's board of trustees. Justice John Paul Stevens attended the University of Chicago and Northwestern Law School, as did his father. Ruth Bader Ginsburg and her daughter Jane formed the first mother-daughter combination ever to attend Harvard Law School.


It isn't clear whether academic lineage played a role in the admissions of these justices' children, and several of them had stellar high-school records. Yet judges -- like everyone else wrestling with the affirmative-action debate -- inevitably filter it through the prism of their own personal history. In this case, college ties exert "at a minimum, a subconscious influence over how they think," says Edward Lazarus, a former U.S. Supreme Court clerk and author of a 1998 book about the inner workings of the court. Mr. Lazarus and other legal experts say the legacy link wouldn't require the justices to recuse themselves.

Legacy preference isn't directly at issue in the case, a challenge to affirmative action by white students who were rejected from the University of Michigan. But during oral arguments on April 1, Justice Breyer drew a parallel. "What is the difference," the justice asked a lawyer representing the white students, between a university spurning a student because he isn't a minority, or because he isn't the child of an alumnus? The lawyer answered that the Equal Protection Clause of the U.S. Constitution prohibits race discrimination, but not discrimination on the basis of alumni affiliation.

In a brief filed before the court, minority students at Michigan and elsewhere argue that legacy preference is one of several factors favoring whites that must be counterbalanced by affirmative action. As the case was en route to the Supreme Court, a federal appeals-court judge invoked a similar argument. Lawyers for the white students argue that children of minority alumni are also eligible for legacy preference. At the University of Michigan, legacy preference confers a much smaller benefit than racial preference. On the 150-point scale the university uses to rank candidates, alumni children receive four points, compared with 20 points for black, Hispanic and Native American students.


Justice Breyer's father, Irving, attended Stanford. So did his son, Michael, who graduated in 1997. In his Stanford commencement address that year, Justice Breyer spoke of walking the previous day through the university's inner quadrangle and seeing "the three paving stones that mark my family's three graduations: my father's graduation, my own in 1959, and yours, Michael, now."

Before admitting Michael Breyer, Stanford placed him on its wait-list -- a frequent refuge for legacy applicants with borderline credentials. While it's not certain why Mr. Breyer was on the waiting list, former Stanford admissions dean Jean Fetter described the waiting list in a 1995 book as "an appropriate place to acknowledge any legacy preference."

Susan Case, former director of college counseling at Milton Academy in Milton, Mass., where Michael Breyer went to high school, confirmed that he was wait-listed by Stanford. "I don't know that legacy was the reason he was admitted," she says. "He was a strong candidate in his own right." Another person familiar with his Milton credentials said the legacy connection "obviously contributed." Michael Breyer declined to comment.


Justices Breyer, Stevens, Kennedy, O'Connor and Ginsburg said through a court spokeswoman that it would be inappropriate to comment while the case is pending. Stanford declined to comment, citing applicants' privacy rights.

The Ivy League and other top colleges, which defend legacy preference as essential to alumni fund raising, admit alumni children at two to four times the rate of their overall applicant pools. Stanford admits one-fourth of all legacies, compared with one-eighth of applicants overall. Colleges say they rely on legacy preference as a tie-breaker between relatively equal applicants, and that many alumni children are top-notch students who would likely have been admitted regardless of preference.

Prestigious college connections on the high court aren't new. Among its most famous Ivy League legacies are Harvard grad Oliver Wendell Holmes Jr., the son of a well-known essayist who attended the school, and former Chief Justice William Howard Taft, one of a long line of his family members who attended Yale. One notable justice who wasn't a legacy: Clarence Thomas, the only black justice on the court. He grew up in poverty and graduated from the College of the Holy Cross in Worcester, Mass., and Yale Law School. His only child, Jamal, attended Virginia Military Institute.


Some of the current justices' legacy ties date back to an era before widespread SAT testing and other standardized measures of academic merit. More than half a century ago, Justice Stevens followed in the footsteps of his father, Ernest Stevens, at both the University of Chicago and Northwestern University Law School. None of the justice's children went to Chicago, according to the university, but four of his nephews and nieces have attended.

Richard Bischoff, the University of Chicago's associate director of admissions, says the university doesn't have formal preference for legacies. However, he says, applicants "who grow up with University of Chicago alums usually articulate why they desire a liberal education better than most high school seniors," and thus are more likely to be admitted. Northwestern Law says it does favor legacies.

Justice Ginsburg and her husband Martin both attended Harvard Law School. (The justice completed her degree at Columbia.) Their daughter, Jane Ginsburg, says she had excellent undergraduate grades and was accepted at three other top law schools besides Harvard. A Harvard Law spokesman said the school gives a small edge to legacies but declined to comment on individual students.

The younger Ms. Ginsburg -- now a professor at Columbia Law, where her mother used to teach -- describes her attitude toward being a legacy this way: "However you got in, you're in. Now you just have to prove you belong."

Justice Kennedy -- son of Stanford alumna Gladys McLeod Kennedy -- went to Stanford, as did his two sons and one daughter. Both sons, Justin and Gregory, graduated from Jesuit High School in Carmichael, Calif. An administrator there declined to comment. Justice Kennedy's daughter, Kristin Marie, graduated in 1986 from St. Francis High School, a Catholic girls' school in Sacramento, where she was an honor-roll student and played on the tennis team, according to the school. Justin Kennedy declined to comment; his brother and sister couldn't be reached.

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Sandra Day O'Connor wrote in "Lazy B," her 2002 memoir about growing up on a cattle ranch by that name, that her father "always regretted that he did not attend Stanford." She fulfilled his dream, going there both as an undergraduate and a law student -- as did her husband, John J. O'Connor III. Two of their three sons, Scott and Jay, enrolled at Stanford; the other, Brian, went to Colorado College. Jay, the youngest, was admitted to Stanford in 1980, while his mother was on the university's board of trustees.

Jay O'Connor, now a technology executive in the San Francisco area, says he applied to Stanford and four Ivy League schools -- and was accepted by all but Princeton, where he was wait-listed. In high school, he says, he ranked near the top of his class and was editor-in-chief of the school newspaper. He declined to divulge his SAT scores, but said they "met or exceeded the standard ranges" published by the top-tier schools. "I was seen by all of the schools to which I applied as an outstanding academic candidate," he says. "I don't know what happened inside any of those schools. I have no way of knowing that."

Mr. O'Connor adds: "I'm a big believer that you should make your own mark. Who your parents are shouldn't be relevant." He says his brother, Scott, was an outstanding student and state champion swimmer in high school, and that Scott, too, was accepted at top universities with which their parents weren't affiliated. Scott O'Connor declined to comment.

In 1982, Justice O'Connor, who is regarded as a swing vote in the affirmative-action case, delivered the Stanford commencement address. At the time, Jay was a sophomore, and Scott had already graduated. She expressed the wish that "you will all be lucky enough to have your children attend this paradise on earth ... that we call Stanford."

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