An overdue symbolic apology.

Photographer: Karen Bleier/AFP/Getty Images

Georgetown's Modest Plan to Help Slaves' Descendants

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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It seems fitting that Georgetown University is offering preferential admission to the descendants of slaves whom it sold in 1838. But is it legal? Colleges can’t admit students on the basis of naked racial preferences -- and slavery is the archetypal example of a race-based category.

The answer is probably yes, because the Georgetown program is an extension of the legacy admissions preference for children of alumni -- it’s just another kind of legacy that the college is acknowledging. And like most legacy admissions, the program for slaves’ descendants has something of a token character, because Georgetown, like its peer schools, already weighs racial diversity in admissions.

The law here is surprisingly tricky. Title VI of the Civil Rights Act of 1964 subjects all institutions that receive federal money -- including Georgetown -- to the requirement that they not discriminate based on race. That extends to university admissions and scholarships.

The U.S. Supreme Court’s decision in June in Fisher v. Texas is the latest word on when racial preferences are permissible in admissions. Technically, the decision only applies directly to public universities, because it interpreted the 14th Amendment, and the Constitution only regulates state actors, not private ones. But in interpreting what counts as permissible discrimination under the Civil Rights Act, courts are likely to use the guidance provided by the Supreme Court. If racial preference is constitutionally allowed, it’s certainly permitted by Title VI.

At one time, it was common for universities to justify affirmative action in admissions by the goal of remedying past discrimination by the university. But that rationale was absent in the Fisher case. Instead, Texas justified its policy of considering race with the objective of creating a diverse campus. That was the rationale the court embraced as permissible.

Crucially, Texas denied using race as a determinative admissions factor. Instead, it argued that it considered race only as one of multiple factors in a “holistic” review process.

So how does this framework apply to the Georgetown plan? If Georgetown stated openly that it would be giving preference to black applicants over equally qualified white applicants, that would likely violate Title VI. In theory, Georgetown could show a specific history of past racial discrimination in admissions, and argue that it was using racial preferences to overcome that past practice. But that approach, while not explicitly ruled out by the Fisher case, is certainly outdated and disfavored by the courts.

What’s more, even though Georgetown clearly has a history of racial discrimination -- having owned and sold slaves -- that probably wouldn’t be specific enough to satisfy racial preferences in admission. Georgetown would likely have to show that it racially discriminated in its admissions, and that granting racial preference today was narrowly tailored to achieving that goal.

On the surface, a naked preference for the descendants of slaves -- even particular slaves -- worrisomely resembles a racial preference, because it’s probably restricted to black students. Georgetown could argue, with some plausibility, that isn’t targeting race, just descent from slaves. Some of those descendants today may identify as white or Latino or Asian. But that would be an uncomfortable argument for the university to make, because the point of its plan is to make amends for the legacy of racism.

The solution for Georgetown is to say that it isn’t going to give the descendants of slaves a pure preference compared to other applicants. Rather, it’s going to weigh this descent as one element of its holistic admissions process, with the overall goal of producing a diverse class.

That would track the language of the Fisher opinion. But it would also probably mean that the descendants won’t get any special preference compared to other black applicants.

The holistic approach would also create a parallel to alumni legacy admissions, a pervasive if controversial admissions policy used by lots of private universities, including Georgetown.

Most colleges talk out of both sides of their mouth when it comes to legacy admissions. They encourage donations and loyalty by telling alumni that their children are admitted at a higher rate than the general class of applicants. Simultaneously, to avoid the charge of unfairness, they insist that the legacy status isn’t much of a help.

In 2014, Georgetown admitted 36 percent of legacy applicants and 16.6 percent of all those who applied. But the dean of admissions told the college newspaper that “the legacy preference policy does not give a significant weight to the applicant, estimating that about 80 to 90 percent of legacy students were accepted without consideration of legacy status.”

That’s logically possible if the children of alumni are stronger than the general applicant pool. But the same dean also told the paper that “the quality of credentials [of legacy students] is very close to the average.” If that’s true, then the effect of legacy status must be greater than he acknowledged.

The upshot is that no one really knows how much legacy preferences help, including (perhaps) admissions officers, who practice an art, not a science.

And that’s exactly what Georgetown needs to be able to say about preferences for descendants of slaves whom it sold. The Fisher precedent pushes universities to refuse precise quantification and instead present admission as a black box -- or a Hogwarts sorting hat. Filtered through that paradigm, Georgetown can expand legacy admissions to the descendants of those enslaved and sold. Its action will be essentially symbolic. But after all, symbolic apology is exactly what the university is trying to achieve.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net