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Banning Affirmative Action is Wrong and Unlibertarian and is Disrupting College Autonomy in Admissions Policy

The Supreme Court’s recent decisions preventing colleges from using affirmative action—Students for Fair Admissions (SFFA) v. the University of North Carolina at Chapel Hill, and Students for Fair Admissions (SFFA) v. Harvard College)—are wrong and unconstitutional. It’s a shame libertarians are in favor of this and sound like conservatives repeating dumb lines like “it should be merit oriented.” As if it was ever about merit: ever heard of legacy admissions or athletic admissions? Sure, mediocre-IQ Obama got into Harvard (racial affirmative action); but similarly mediocre-IQ George Bush got into Yale (legacy). Lower IQ football players get in and get scholarships too. So what?

It’s not about merit, or not only about merit; never was. Look at Harvard’s own website:

John Adams graduates

John Adams, future U.S. president, graduates. Before 1773, the graduates of Harvard were arranged in a hierarchy not of merit but “according to the dignity of birth, or to the rank of [their] parents.” By this rather undemocratic standard, Adams graduated 14th in a class of 24.

They also ignore federalism (the FedGov has no business regulating state universities) and constitutional problems with using the 14th Amendment to strike down state laws/actions they frown upon.1 Libertarians sound like clueless rah rah patriotic type dumb conservatives who romanticize the past and pretend we should “return” to a merit based higher education system. Return? Sounds half-racist. I understand why Blacks sense hypocrisy when whites whine about racial preferences—when legacy admissions have been tantamount to racial preferences for whites for a looooong time.

I explained 20 years ago why there is nothing unconstitutional about affirmative action, nor should it be illegal—nor is there anything obviously wrong with it (though this is outside the purview of libertarianism per se; I am speaking here as a normal human). See “Supreme Confusion, Or, A Libertarian Defense of Affirmative Action,” LewRockwell.com (July 4, 2003).

Colleges should simply be free to adopt and tailor their admissions policies as they see fit: whether merit, grades, standardized test scores; sports; legacies; or racial/gender/diversity affirmative action.

But now, because of the SFFA cases, they are now unable to use race-based affirmative action. So now some colleges will be forced to tinker with their admissions schemas to try to get some racial diversity. Many of them will start to end legacy preferences, for example, in part to make more room for minorities in the more general admissions pool; and also, if we have to throw out affirmative action because it’s not “merit” based, then the same logic applies also to legacy preferences (you know, the reason G. Bush got into Yale). And may also to athletic admissions and scholarships.

Case in point is Carleton College, which has just announced they are ending legacy preferences, in the wake of the SFFA cases.2 Of course, just as growing numbers of Blacks have been graduating from elite colleges in recent decades and thus could start to take advantage of legacy preferences for their kids… now the rug is being pulled out from under them. Carleton even acknowledges this:

We do recognize that this change may be disappointing to alumni with children who will soon be reaching college age, especially alumni of color who are better represented in today’s parental cohorts than was the case decades ago.

So now colleges will lose the legacy process which can help with alumni loyalty and cohesion and fundraising. And if they lose sports too, then they lose another source of fundraising and lots of fun. Stay out of it, feds.

  1. See Libertarian Centralists; Incorporation and the Fourteenth Amendment: The 140 Year Old “Riddle”; other posts about libertarian centralism. []
  2. See Carleton College gets rid of legacy preferences (Higher Ed Dive); Carleton ends legacy admissions (Carleton); Legacy Admissions at Carleton (Carleton); Legacy admissions under fire: Carleton abandons, Georgetown students petition, Pa. senator proposes ban (Higher Ed Dive). []
{ 2 comments… add one }
  • Adam October 11, 2023, 5:59 pm

    Does this argument extend to publicly-funded institutions since taxes, if they are to exist, should presumably not subsidize practices that taxpayers find objectionable?

    • Stephan Kinsella October 12, 2023, 9:46 am

      I find all taxes objectionable so these institutions should not exist. But if you have a public university it’s going to be run like a university is run, including normal policies of private universities, such as affirmative action.

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