The intense interest in the Supreme Court’s decision yesterday about so-called affirmative action absolutely begs the question: “Why do high school seniors and their parents compete so intensely over admission to certain schools? Is it really because they offer a vastly superior education? Or is it because they represent pathways to other kinds of success?
It isn’t even ironic that the backgrounds of the nine current Justices themselves offer a strong hint to the answer. Seven of them attended Ivy League undergraduate colleges. Eight of them attended either Harvard or Yale Law schools. There is no statistical universe in which roughly four thousand other undergraduate colleges are underrepresented to that extent. There is no statistical universe in which 198 other law schools are underrepresented to that extent. And this is not new, though it may be truer now than ever. Of 116 people who have served on the Court, 22 were Harvard alumni and 11 were Yale alumni.
No, this is a relational universe, not a statistical universe. It is not about the best or the brightest or even the most prepared. It used to be called an old boys’ network. It meant that people’s paths in life were prepared for them. It meant that - for example - people hiring new law school grads for prestigious and highly-compensated firms were more likely to choose alums from their own alma mater. It still means that admissions officers at elite colleges are more likely to admit the children of alums and faculty, what they call “legacies”.
High school seniors want to attend elite colleges because the name of that college attaches to them and enhances their chances of success later on. College seniors want to attend elite law schools for the same reason. And law students with certain ambitions compete for clerkships with judges because it brings them closer to becoming judges themselves. Again, let us return to the current nine Justices: Chief Justice John Roberts clerked for Chief Justice William Rehnquist; Justice Elena Sagan clerked for Justice Thurgood Marshall; Justice Amy Coney Barrett clerked for Justice Antonin Scalia; Justice Brett Kavanaugh clerked for Justice Anthony Kennedy; Justice Neil Gorsuch clerked for both Justices Anthony Kennedy and Byron White. Students at Yale Law have long known that cultivating close personal relationships with Professor Amy Chua (Harvard College, Harvard Law) and her husband Professor Joel Rubenfeld (Princeton College, Harvard Law) was a pathway to a Supreme Court clerkship. The Yale Daily News reported that those students were afraid to speak out against either of them on allegations of sexual harassment and inappropriate relations because of those coveted clerkships and the danger of retaliation.
Let’s look for a second at Justice Thomas, who felt the need to add a 57-page concurring decision to Chief Justice Roberts’s decision on the affirmative action case. And let’s look at President George HW Bush who nominated Thomas to the Court way back in 1991.
Clarence Thomas graduated Yale Law in 1974. He has complained repeatedly over the last fifty years that he was subsequently overlooked by the prestigious firms to whom he applied because they assumed he got his degree because of affirmative action. He says it “robbed my achievement of its true value,” and that interviewers "asked pointed questions, unsubtly suggesting that they doubted I was as smart as my grades indicated”. The possibility that those interviewers were simply racist seems to have eluded him completely. He has been on the Supreme Court now for almost 32 years, by far longer than any of his colleagues and has avidly sought opportunities to declare what he calls “racial preferences” unconstitutional throughout that time. In his concurring decision yesterday he referred repeatedly (and triumphantly!) to a dissent he wrote twenty years ago as proof that he has been right all along.
How, then, did he get to the Court? Thomas found a patron in Missouri Attorney General John Danforth, a fellow Yale alumnus. He served Danforth as assistant attorney general. When Danforth was elected to the US Senate, Thomas followed him to Washington as a legislative aide. Danforth championed him to positions in the US Department of Education, the EEOC, the Court of Appeals and finally the US Supreme Court. His long tenure on the Court is, in part, due to the fact that he is among the youngest Justices ever appointed, certainly the youngest in the last 150 years. When we look back earlier, to younger appointees, we find more about legacy. Bushrod Washington became a Justice in 1798 at the age of 36. Yes, he was the nephew and closest blood relation of George Washington. Even younger was Joseph Story who was 32 when he joined the Court in 1812. He actually taught law school while concurrently serving as a Justice. Where? You guessed it already: Harvard.
If we turn to President George H.W. Bush we find a legacy at Yale. He graduated in 1948, after serving in World War 2. His son, President George W. Bush graduated Yale in 1968. His granddaughter, Barbara, graduated Yale in 2004. I will have more to say about how they all “earned” this in a moment. First, though, let’s go in the other direction. George H.W. Bush’s dad, Prescott Bush graduated Yale in 1917. He was one of the the thieves who stole Geronimo’s skull from Fort Sill for a secret society at the college named Skull and Bones. Prescott Bush's grandfather, Reverend James Smith Bush, was also a Yale graduate, class of 1844.
It isn’t necessary to look at the high school records of all these Bushes to determine whether this was a meritocracy. It isn’t necessary to look at the statistical likelihood that this was anything other than preference for the children of alums. Yale Professor Gaddis Smith, who worked on a history of the college wrote that James Rowland Angell, who was president of Yale from 1921 until 1937, “would say, very explicitly, that we must preserve Yale for the ‘old stock.’” Smith clarified this, writing, “The slogan of the first major fund-raising campaign for Yale, in 1926, was ‘Keep Yale Yale.’ The alumni knew exactly what it meant.” And this is hardly unique to Yale. Harvard President A. Lawrence Lowell (1909-1933) insisted on excluding Jews from Harvard in order to maintain admissions opportunities for Gentiles and perpetuate the “purity of the Brahmin race”, which is what they called New England’s white, Protestant upper class in those days.
I mean, we use the word “legacy” freely to describe a college applicant who is accepted because his family attended. But what does that word actually mean. The definition is simply money or property that is handed down by an ancestor. And what should be clear by now is that these are, indeed, legacies. Does Bushrod Washington get on the Supreme Court if his uncle is not George. Does George W. Bush become President if his dad is not George H.W.? Does he become Governor of Texas? Does he even get admitted at Yale?
In his concurring decision yesterday, Justice Thomas dismissed the idea that a racially diverse student body yields any educational benefit. He goes still further, claiming that Black students do better at HBCU’s. He claims that attendance at elite white schools stamps them “with a badge of inferiority. He cites data showing that HBCU’s do better at promoting Black scientists, physicians, and engineers. He fails to consider the possibility that racist white professors in those fields actively discourage their Black students. But he also fails to note that elite colleges still represent a pathway to elite positions in society, positions like chairs on the bench of the US Supreme Court.
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