Florida had a “single-subject rule” which the Florida Supreme Court interpreted in 2000 on FCRI in the most highly restrictive way possible (requiring even that education preference be separated from contracting and further from hiring, which was a political ruling designed to make the initiative financially unreasonable since six petitions would have been required).

But most states have no single-subject rule (Michigan, but Michigan does have some limits on expansiveness as a recent attempt to amend 34 sections at once was ruled unconstitutional) or modest ones that define single subject as something that reasonable coheres. Ending all preferences – including legacy and VIP preferences (the subject is preferences, notably arbitrary and unfair ones) – would seem to me reasonably coherent into a single-subject. The problem is that courts often rule politically and the VIP issue provides an untested avenue.

I think the solution though is somewhere between LaShawn’s idea and not trying at all, particularly given the Michigan model. The ballot language was litigated and mostly approved before the serious signature-gathering investments were made (sure, there was continued wrangling legally, but the courts in Michigan were pretty clear by the time we really started). In fact, it was that delay in Michigan that cost us two years – but if we see the remainder of practical petition states as a long-term project, and understand that the investment cost is signatures, then at least in those future states where the legal process is determinable up front (I wouldn’t take the chance in a state where it isn’t), one could propose legacy, or even multiple variations of language, to local Boards of Canvassers/Sec. States, get the appropriate legal clarification, and then proceed. And I’d just love to see a Sec. of State or even a court say no to legacy language – if they did, it’s certainly not our fault & we’d go back to the tested language, and something they’d get political heat for. We justifiably would be able to say we tried.

That said, it at least requires an independent look at each state’s legal environment.

LaShawn Barber’s ideas, and those who respond to them, always stimulate my thinking. I value that.

To be consistent, however, we should be far more vigorous in our opposition to legacies than we have been.

This is something I’ve been thinking about for some time now (in May 2003, the Michigan Bar Journal published my archival expose of VIP/Legacy practices at U-Michigan – http://www.chetlyzarko.com/michbar.html ), and I agree with the conclusion. I understand why legacy and VIP preferences had not been included in previous drives – there is a serious split even within our own movement, and as an organizer of MCRI I remember very sound reasons why we couldn’t include it, most notably a concern that we had legally tested language on race and that trying to bring in new language introduced unpredictable legal issues. But 5 years later – with the experience of Colorado and the message and situation brought by Barack O’Bama – I believe adding legacy and VIP preferences to the list is vital. Indeed, while there are a number of reasons Colorado went the way it did, I posit that if it had an anti-legacy clause it would have won. The elite-left has always fallen back on the “class” argument in response to the CRI’s – that is, it suggests that “affirmative action” helps literally everyone “disadvantaged” and now, even, the elite-left has become bold enough to suggest that preferences be used for men in nursing and other situations. A variation of this argument is the same as the pro-union argument (and has more validity logically, though I still see through it) – that AA lifts the boat of the lowest segment of society and therefore helps the second-lowest segments (which is the lower-class white that they are appealing to). Ending legacy preference along with race preference eliminates the middle-man and renders that attack on the CRIs meaningless.

Of course, you have to deal with “practical” concern of those within our coalition – that legacy preferences allow universities to maximize money. But as Shikha notes, we don’t accept that argument for race — which is essentially a “practical” argument as the cheapest way to get diversity. But if we believe in meritocracy and keeping our public university decision-makers (we already agree on free market principles by only applying the CRI’s to public universities) from treating people differently for the wrong reasons, then there is no philosophical barrier to the people deciding that public universities shouldn’t do certain things. That’s called oversight. And the purpose of public universities was never to “maximize money” or “compete” (with private universities?) – both of those thoughts are inimical to free-markets and less-government (that is, public universities “maximizing” anything immediately brings to mind scary thoughts, let alone when they do it at the expense of fairness or “competing” with tax-subsidy against private universities). Whether we like it or not – we have public universities. But even in the most conservative and free-market lights, the people have the power and moral authority to exercise just oversight over the elites running them – including race, gender, and legacy/VIP preferences.

The timing now is even more appropriate though. Barack O’Bama was elected on a class-equality theme – and had to personally answer the question of whether he’d want his daughter to receive “VIP preference” because of her eventual status as a relative of the powerful, and in the converse whether she should get continued “race preference” her status as such which everyone knows will convey her immense private privileges that far exceed anything lower-class whites might have over lower-class blacks. The moral answer – as Barack’s was during the campaign – is clear.

Given the new historical environment we now face – the time is opportune for this change, it is easily explained (the question will be, why not before) in light of this change of reality, and it could give the movement new life. It would also be a logical way to go back to states like Colorado – because you have something different.

There’s another provision the new CRI’s could add for clarity as well, in addition to prohibiting preference based legacy or VIP status. That would be expressly noting that other socio-economic programs are permitted (without defining them specifically) – indeed, it might be necessary to do this if one bans socio-economic conditions like legacy (because most schools also use “reverse-legacy” status, that is, preference if you’re family has never had a college student) or VIPstatus (which is essentially “reverse-socio-economic” preference). So one would at least need to be very careful with this language as it is designed, as well as thinking about the issues. Without care, you could end up banning something like geographically created school choice programs, which are essentially socio-economic preferences because they only operate for certain regions in most cases. That’s typically what I mean when I talk about socio-economic programs anyway – not straight up preference to the poor (although I see no Constitutional objection to that, I suspect it to not be effective), but programs that may target them and restore to them educational choices they have lost for a variety of reasons or in the alternative give them long-term preparation.

Aside from being inherently unfair, legacy preferences must be purged from college admissions for other reasons. Granting preferences to students on the basis of family history and privilege has long provided a convenient excuse to justify the entrenched practice of race preferences.

As regards the inclusion of a ban on legacy preferences in Ward Connerly’s future ballot initiatives — what an excellent idea! This across-the-board anti-preference stance would make the honorable fight for genuine equality for ALL Americans even more unequivocal than before. It might also make higher education’s race preference policies a bit more difficult to defend.