Unlacing the Golden Bootstraps: Legislating Away Legacy and Donor Preferences in College Admissions

Many colleges and universities in America give admissions preferences to the children of alumni and relatives of donors. This practice helps colleges raise funds and cultivate a strong alumni network but results in drastic inequality in the admissions process for applicants without such connections. The pending Merit-based Educational Reforms and Institutional Transparency Act (MERIT Act) seeks to end legacy and donor preferences at all private universities receiving federal funding. Because the vast majority of private colleges accept federal funding, this legislation has the potential to be incredibly impactful in the college admissions process. To combat such legislation, the affected private colleges and universities may be able to raise First Amendment and Spending Clause challenges. A private college could argue that it is an expressive association entitled to First Amendment protection, and that setting funding conditions that alter its admissions practices unduly burdens its First Amendment rights. A college could also argue that a ban on legacy and donor preferences places an unconstitutional condition on it, which entirely limits its ability to pursue its mission as an institution. Finally, a college can argue that conditioning all existing federal student loan money on ending legacy and donor preferences is outside Congress’s Spending Clause power because too much money is at stake and the conditions further a policy goal not originally contemplated by the colleges. This Note discusses and assesses each of these First Amendment and Spending Clause challenges a college could raise. Further, this Note argues that there are strong political reasons for Congress to pass the MERIT Act, and that, with careful drafting, Congress can pass such legislation in a way that survives First Amendment and Spending Clause challenges.