We now have government beginning to tell private universities whom they can admit. That’s not the state’s business.
A new California law has banned the practice of preferential admissions for legacy students at the state’s private universities, including Stanford University.California recently prohibited its private colleges from using an applicant’s legacy status — that is, whether other family members attended the school — in admissions decisions. Maryland passed a similar law earlier this year, and other states ban the practice for public colleges. Other states are considering similar bans.
The problem with the California ban is that it is the mirror image of the lawsuits that gave the Supreme Court the opportunity to strike down diversity-based racial preferences in admissions. That effort, led by conservatives, represented a concerted push to limit how even private universities could choose their students. And such lawsuits are not finished — far from it. The organization that led the lawsuits, Students for Fair Admissions, has promised to keep litigating.
To fight back, the universities can argue in court that they have a First Amendment right to expressive association with the students they choose to admit. Such a right would trump state legislation unless the state could show that it had a compelling interest in the law and had narrowly tailored the law to achieving that interest — a difficult standard to satisfy.
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