Similarly, being eligible for a legacy preference at most universities “is a near-perfect proxy for being white,” said Michael A. Olivas, a law professor and authority on higher education at the University of Houston.  In 2002, for instance, Texas A&M University admitted 321 whites and 3 blacks who would not have gotten in otherwise because they were legacies, according to data the university provided to The Houston Chronicle in 2004. The university abolished the preferences not long after those numbers became public.  In “The Chosen,” his study of admissions at Harvard, Yale and Princeton, Jerome Karabel, a sociologist at the University of California, Berkeley, demonstrated that preferences for the children of alumni were a relatively recent phenomenon, a result of anti-Semitism and xenophobia in the first part of the last century. The preferences spread to public universities even more recently.  It could cost public universities real money to give up the preferences. Alumni give more than $8 billion annually to public and private colleges and universities.  And they are not giving only out of nostalgia and altruism, as Jonathan Meer and Harvey S. Rosen, both economists, demonstrated in a recent National Bureau of Economic Research working paper. The paper analyzed alumni contributions at a selective research university it did not name.  Some conclusions: People with children gave more. Giving increased as the children of alumni who applied to the university neared 18. Giving dropped off after the admissions decision, and the decline was far greater when the child was rejected.  The conventional view is that legacy preferences are perfectly lawful. In his dissent from the Supreme Court decision upholding the affirmative action plan at the University of Michigan’s law school in 2003, for instance, Justice Clarence Thomas said the Constitution’s equal protection clause did not prohibit “unseemly legacy preferences” because they did not directly involve race.  “So while legacy preferences can stand under the Constitution,” Justice Thomas wrote, “racial discrimination cannot.”  He added a footnote tweaking some supporters of affirmative action. “Were this court to have the courage to forbid the use of racial discrimination in admissions,” Justice Thomas wrote, “legacy preferences (and similar practices) might quickly become less popular — a possibility not lost, I am certain, on the elites (both individual and institutional) supporting the law school in this case.”  Only one decision has squarely addressed the constitutionality of legacy preferences. In 1976, a federal judge in Durham, N.C., ruled that the University of North Carolina at Chapel Hill was free to favor the children of alumni.  The preferences did not violate the Constitution, the judge, Hiram H. Ward ruled, because there was a rational reason for them — they generated “monetary support for the university.” Requiring the university to provide anything more than a rational reason was not necessary, Judge Ward said, because neither race nor fundamental rights were directly implicated.  The bottom line, as Charles W. Collier put it in The Journal of Legal Education in 2005, is that the University of Michigan would be free to “transform itself into the Michigan University for Alumni Children Only without running afoul of the law in any way.”  But maybe there is another way to think about the issue. In a fascinating and provocative article published recently in the Washington University Law Review, Carlton F. W. Larson, a law professor at the University of California, Davis, argued that the Constitution prohibited legacy preferences at public universities through its nobility clauses.  Its what? The Constitution, in separate clauses, bars the federal government and the states from granting titles of nobility. The clauses have not been the subject of much litigation, but they do embody a principle the Constitution’s framers thought absolutely fundamental to the ideals of the American revolution.  “Legal distinctions, titles, powers and privileges,” John Adams wrote in 1788, “are not hereditary.”  Public universities, Professor Larson said in an interview, “have always been, much more than private universities, engines of upward mobility.” As a matter of policy, principle and constitutional law, he said, they should not be handing out benefits “based solely on ancestry.”  That may all be true, but it still seems a bit of a leap to move from prohibiting the government from naming me a duke to barring public universities from giving the children of alumni an admissions advantage.  But Professor Larson said he was “deadly serious” that the nobility clauses prohibited legacy preferences at public universities. “Maybe it’s the mark of an insane person,” he went on, “that you’re absolutely convinced you’re right.”  Online: Documents and an archive of Adam Liptak’s articles: nytimes.com/adamliptak.  A version of this article appears in print on , on Page A12 of the New York edition with the headline: A Hereditary Perk the Founding Fathers Failed to Anticipate. Order Reprints| Today's Paper|Subscribe
When it comes to legacy preferences in college admissions at public universities, should the federal government be allowed to discriminate based on heredity?