Massachusetts Bill Aims to End Legacy Admissions, Early Decision

Facing public scrutiny and potential fines, will Massachusetts colleges preserve preferential admissions policies that disadvantage minority students?
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Mark J. Drozdowski, Ed.D., is a senior writer and higher education analyst with BestColleges. He has 30 years of experience in higher education as a university administrator and faculty member and teaches writing at Johns Hopkins University. A former...
Updated on November 2, 2023
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  • A pending bill in the Massachusetts Legislature seeks to eliminate legacy admissions and early decision programs at all colleges in the commonwealth.
  • Colleges maintaining such practices would pay a fee based on institutional wealth.
  • These fees would establish a fund benefiting students at Massachusetts community colleges.
  • Legacy admissions faced criticism before the Supreme Court banned affirmative action, and scrutiny has intensified since that ruling.

More than a dozen Massachusetts legislators want to eliminate legacy admissions, donor preferences, and binding early decision programs. Colleges continuing these practices would pay a penalty, creating a fund to support community colleges in the commonwealth.

Co-filed by state Rep. Simon Cataldo and state Sen. Pavel Payano, both Democrats, the bill seeks to "advance fairness, integrity, and excellence in higher education admissions."

In a post-affirmative action world resulting from last summer's Supreme Court decision, the spirit of the bill aligns with growing sentiments around preferential admissions policies.

Levying a 'Public Service Fee' on Colleges Violating Sanctions

House Bill No. 3760, introduced earlier this year and still pending, would require Massachusetts colleges, both public and private, to disclose information about their admissions practices and outcomes, levying a "public service fee" on colleges violating sanctions against maintaining early decision programs and favoring legacy and donor applicants.

"The data empirically show that these policies materially and powerfully discriminate, specifically in selective schools, against working-class students and students of color," Cataldo told BestColleges.

The public service fees would vary according to an institution's wealth. At the low end, colleges with an endowment per student of less than $50,000 would pay a fee equal to 0.01% of their endowment. At the high end, those with an endowment per student exceeding $2 million would pay 0.2%.

With its per-student endowment of more than $2 million, Harvard would qualify for the 0.2% tax, which the Crimson estimates would cost the university $100 million annually.

Amherst and Williams colleges both have per-student endowments of roughly $1.6 million and would face a 0.15% tax.

Funds generated through these fees would establish a war chest to support Massachusetts community colleges. What those funds would actually do remains somewhat vague. The bill notes the Higher Education Opportunity Trust Fund would be created "for the purposes of supporting certificate and degree attainment at select public community colleges."

"We look at it as a win-win," Cataldo said. "Either these schools do the right thing by eliminating policies that are harmful for working-class applicants or they support the same demographic of folks who are hurt by these types of policies while also helping to bolster the programs that are putting workers into areas of the workforce that are sorely in need right now."

Cataldo added that proceeds resulting from this bill could bolster the commonwealth's push for free community college.

"If implemented, it could get us really close, if not all the way there," he said.

Enforcement Remains the Primary Challenge

The bill requires colleges to annually affirm they do not maintain early decision programs or favor legacy applicants as a matter of policy.

Naturally, enforcement relies on transparency among reporting institutions. Having an early decision program or not is a simple binary matter. But how can anyone prove that an admission decision for a legacy applicant hinged solely on that individual's legacy status? In a holistic process, legacy status is one attribute among many and may not necessarily be the deciding factor.

Remaining truly blind to legacy status and donor potential could become difficult given all the nuances reflected in a college application. Proving a college did not could be equally challenging.

"We spent the most time thinking about the enforcement mechanism in crafting this bill," Cataldo said.

Cataldo noted that profiles of admitted students would provide all the evidence legislators would need to enforce the law. If a college continued to demonstrate an overrepresentation of legacy students – in a recent year, legacies constituted 5% of Harvard's applicants but about 30% of admittees – then that would trigger an investigation.

"I don't think anybody would want to be caught up in a lie," Payano told BestColleges. "The Attorney General's review of the data would open up a certain level of attention to what goes on in a university that I'm sure no president would want."

Still, Payano conceded there may be ways around the reporting requirements given the subtleties of how legacies and donors' kids are considered in the application process. The solution is to build a better mousetrap.

"There's no such thing as a perfect law," Payano said. "My experience has taught me that anytime a law tries to control or nudge certain habits, there are always actors trying to figure out a way around that law. Policy makers then have to retool certain things to make sure what they are trying to do actually gets done."

Growing Trend to Ban Preferential Admissions Practices

Even before last June's SCOTUS ruling, legacy admissions had faced growing criticism. Now that race-based considerations have been deemed illegal, any admissions practices that disfavor racial minorities have attracted even greater scrutiny.

Shortly after the SCOTUS decision, three groups — the Chica Project, the African Community Economic Development of New England, and the Greater Boston Latino Network — filed a federal civil rights complaint against Harvard challenging its "discriminatory practice of giving preferential treatment in the admissions process to applicants with familial ties to wealthy donors and alumni ('legacy applicants')."

The complaint, filed with the U.S. Department of Education's Office for Civil Rights by Lawyers for Civil Rights (LCR), alleges the practice violates Title VI of the Civil Rights Act of 1964.

According to the complaint, almost 70% of Harvard's donor and legacy applicants are white. Compared to other applicants, children of donors are nearly seven times more likely to be admitted, while legacies are nearly six times more likely.

For the classes of 2014-2019, Harvard legacies were admitted at a rate of 33.6%, compared to 5.9% for non-legacies. About 28% of Harvard's class of 2019 were legacies.

More broadly, across the so-called "Ivy Plus" colleges — the Ivy League, Stanford, Duke, the Massachusetts Institute of Technology (MIT), and the University of Chicago — legacies are admitted at higher rates than non-legacies with similar standardized test scores, an advantage that increases with family wealth.

A recent report from Opportunity Insights, a Harvard-based research group, revealed that alumni children from families in the 90th income percentile are four times more likely to be admitted, while those in the 99th percentile are eight times more likely to gain admission.

Civil rights groups such as the American Civil Liberties Union and the NAACP continue to challenge legacy practices, as are some think tanks and members of Congress on both sides of the aisle.

At the state level, Colorado banned legacy admissions in 2021, and legislation aimed at both public and private colleges was subsequently introduced in New York. Connecticut considered a similar bill.

Meanwhile, the University of California system, the University of Georgia, and Texas A&M University have all long since abandoned the practice, and the University of Minnesota announced a similar intent following the SCOTUS decision.

Among private institutions, Amherst College announced two years ago that it would no longer favor legacies, who, at the time, accounted for about 11% of each entering class. Amherst's decision echoed a similar move by Johns Hopkins University, which jettisoned legacy admissions in 2014.

More recently, Wesleyan University joined the fray, leaving behind a tradition that represented "a sign of unfairness to the outside world," its president, Michael Roth, told The New York Times.

And last August, Carleton College announced that it, too, had discontinued the practice.

Meanwhile, the Massachusetts bill remains under consideration in the legislature. Cataldo and Payano touted the widespread, bipartisan support in both the House and Senate and said neither had encountered any opposition.

Payano feels "very confident" the bill will become law.

"I think everyone understands how this issue is affecting the working-class and BIPOC communities," he said. "Folks want to be able to go back to their community and say, 'We are taking action on this.'"

This effort bears watching because it doesn't necessarily make legacy admissions and early decision programs illegal but rather disincentivizes such practices by levying a punitive fee. In the process, it would produce the Robin Hood effect of taxing several wealthy institutions to the benefit of students typically on the opposite end of the privilege continuum. Perhaps this legislation could serve as a blueprint for other states considering similar measures.

Of course, considering the extreme example that the bill causes all Massachusetts colleges to eliminate these admissions policies, no fees would be collected, and no additional funds would flow into community colleges.

Even without legislative interventions, colleges nationwide are finding it increasingly difficult to justify any admissions policies that disadvantage racial minorities. Before the affirmative action ban, such practices made universities appear somewhat hypocritical given their rhetoric around diversity and access. Now they're downright indefensible.