Private: College Admissions and Nobility

By Carlton Larson, professor of law, UC Davis School of Law. Professor Larson is author of the chapter, "Legacy Preferences and the Constitutional Prohibition of Titles of Nobility," in The Century Foundation book, Affirmative Action for the Rich: Legacy Preferences in College Admissions.  

In a recent book, Affirmative Action for the Rich, a number of authors address various aspects of the problem of legacy preferences in college admissions. My chapter, entitled, "Legacy Preferences and the Constitutional Prohibition of Titles of Nobility," makes an argument that many people will initially find quite startling. The Constitution flatly prohibits the states from granting any "title of nobility." I argue that public universities violate the prohibition of titles of nobility when granting preferential admission to applicants based on their ancestry.

At first blush, this argument might seem a bit nutty. The prohibition would seem to be about creating dukes and earls, not about distinguishing among 17-years olds applying to college. But this perception is simply wrong. To see why, imagine a simple hypothetical. Suppose that a state decided to create a new position called "Distinguished Citizen." Each person selected as a "Distinguished Citizen" would receive a coat of arms, a large country estate, and would be entitled to serve in a state "Council of Distinguished Citizens" that would replace the state senate. The title of "Distinguished Citizen" would be hereditary, descending to the individual's eldest child or other heir at law. In this case, no prohibited "title" of nobility has actually been used - nobody was formally declared a duke or an earl. But, functionally, this system is virtually identical to the English House of Lords - precisely the type of aristocracy that the Constitution was meant to prohibit. If this proposal did not violate the prohibition of titles of nobility, then the prohibition could be easily evaded by simply using certain words rather than others - "Distinguished Citizen," rather than "Earl."

As this example suggests, the prohibition of titles of nobility is not primarily about words - it is about the substance of nobility. To know whether a governmental practice violates the prohibition, one must know functionally how it actually works, not whatever label it happens to be wearing. So what, then, is the substance of nobility? One of the core features of nobility is a set of hereditary privileges with respect to institutions of the state. This feature, more than anything else, animated the constitutional prohibition.

My chapter spends a fair amount of time exploring how revolutionary Americans understood the term "title of nobility." This evidence overwhelmingly demonstrates that revolutionary Americans viewed hereditary privileges as flatly prohibited by the Constitution's prohibition of titles of nobility, and by the predecessor clause in the Articles of Confederation. As one proponent of the Constitution pointed out, American political leaders would "have none of the peculiar follies and vices of those men, who possess power merely because their fathers held it before them, for they will be educated (under equal advantages, and, with equal prospects) among and on a footing with the other sons of a free people." Revolutionary Americans repeated, insistently (with the notorious exception of slavery), that any form of hereditary privilege be purged from American life. When a group of former Continental Army officers formed a hereditary society, an outraged people demanded that it be abolished as a violation of the fundamental principles of equality the nation was founded on. Many of America's most distinguished lawyers concluded that this society violated the prohibition on titles of nobility in the Articles of Confederation, even though no formal titles such as "earl" or "duke" had actually been employed.

Once we understand that the constitutional prohibition of titles of nobility is not limited to specific titles, but extends to all hereditary privileges granted by the state, it is easy to see why legacy preferences in public universities cannot be sustained. These preferences augment the candidacies of certain applicants for no other reason than their ancestry. It is hereditary privilege, pure and simple, entirely unrelated to any personal quality of the applicant. This is precisely the type of privilege with respect to state institutions that the revolutionary generation was most concerned to eliminate. Indeed, so successful was the American Revolution in this respect that is impossible to think of any other area of American life in which public institutions routinely favor certain people solely based on ancestry. Would we give bar examinees a few extra points because they happen to have a lawyer parent? Or issue hereditary hunting licenses? Of course, not. The very idea is absurd. And it's just as absurd in the context of college admissions. Although created in the 1920's to reduce the number of Jewish students at elite institutions (prior to the 1920s, elite institutions did not limit their class size; they took every applicant who passed the rigid entrance requirements), legacy preferences are more properly viewed as a relic of a monarchical, aristocratic era. They have no place in 21st century America.