Whatever the Court would decide in the Michigan cases was considered likely to shape private college admissions as well. Many observers of the relatively conservative Court believed that it would strike down race-based preferences. But they overlooked one element in affirmative action's favor—the Court's desire to preserve legacy preference. Dominated by Ivy Leaguers, the Supreme Court has long been a domain for the best and brightest of the legacy establishment. Among its most famous legacies are Harvard grad Oliver Wendell Holmes Jr., son of a well-known essayist who attended the school, and former president and chief justice William Howard Taft, one of a long line of his family members to attend Yale.

  Five of the nine justices in 2003 or their children qualified for legacy preference. Two justices, Stephen Breyer and Anthony Kennedy, have family ties to Stanford University that span three generations. A third, Sandra Day O'Connor, is a Stanford graduate and mother of two Stanford alumni, and has served on the university's board of trustees. Justice Ruth Bader Ginsburg and her daughter Jane were the first mother and daughter ever to attend Harvard Law School. Justice John Paul Stevens followed in the footsteps of his father, Ernest Stevens, at both the University of Chicago and Northwestern University Law School. None of the justice's children went to Chicago, according to the university, but four of his nephews and nieces have attended.

  These justices, like everyone else wrestling with the affirmative action debate, inevitably filtered it through the prism of their own personal history. Although legacy preference wasn't directly at issue in the Michigan case, it appeared to be on the justices” minds.

  Both the Michigan law and undergraduate admissions processes gave preference to legacies as well as minorities. On the 150-point scale Michigan used to rank undergraduate candidates, alumni children re-ceived 4 points. During oral arguments on April 1, Justice Breyer drew the parallel. “What is the difference,” the justice asked a lawyer representing the white students challenging affirmative action, between a university spurning a student because he isn't a minority, or because he isn't the child of an alumnus? The lawyer answered that the equal protection clause of the U.S. Constitution prohibits race discrimination but not discrimination on the basis of alumni affiliation—even if the effect is to favor whites.

  Breyer was familiar with the legacy boost. His father, Irving, attended Stanford, as did his son, Michael, who graduated in 1997. That year, Justice Breyer gave the Stanford commencement address. After being introduced by his longtime friend Gerhard Casper, then president of the university, Justice Breyer confided to the crowd that “this morning I gave Michael a Stanford ring…. As I did so, I thought of my father, for it was his ring, given him on his graduation seventy years ago. Yesterday I walked through the Inner Quad and saw the three paving stones that mark my family's three graduations: my father's graduation, my own in 1959, and yours, Michael, now.”

  Before admitting Michael Breyer, Stanford placed him on its wait list—a frequent refuge for legacy applicants with borderline credentials. Former Stanford admissions dean Jean Fetter described the waiting list in a 1995 book as “an appropriate place to acknowledge any legacy preference.” Susan Case, former director of college counseling at Milton Academy in Milton, Massachusetts, where Michael Breyer went to high school, confirmed that he was wait-listed by Stanford. “I don't know that legacy was the reason he was admitted,” she told me. “He was a strong candidate in his own right.” Another person familiar with his Milton credentials said the legacy connection “obviously contributed.”

  Justice Ginsburg and her husband, Martin, both attended Harvard Law School. (The justice completed her degree at Columbia.) Their daughter, Jane Ginsburg, told me she had excellent undergraduate grades and was accepted at three other top law schools besides Harvard. The younger Ginsburg—who became a professor at Columbia Law, where her mother used to teach—described her attitude toward being a legacy this way: “However you got in, you're in. Now you just have to prove you belong.”

  Justice Kennedy—son of Stanford alumna Gladys McLeod Kennedy— went to Stanford, as did his two sons and one daughter. Both sons, Justin and Gregory, graduated from Jesuit High School in Carmichael, California. Justice Kennedy's daughter, Kristin Marie, graduated in 1986 from St. Francis High School, a Catholic girls” school in Sacramento, where she was an honor-roll student and played on the tennis team, according to the school.

  Sandra Day O'Connor wrote in Lazy B, her 2002 memoir about growing up on a cattle ranch by that name, that her father “always regretted that he did not attend Stanford.” She fulfilled his dream, going there both as an undergraduate and a law student—as did her husband, John J. O'Connor III. Two of their three sons, Scott and Jay, enrolled at Stanford; the other, Brian, went to Colorado College. Jay, the youngest, was admitted to Stanford in 1980, while his mother was on the university's board of trustees.

  Jay O'Connor, a technology executive in the San Francisco area, told me he applied to Stanford and four Ivy League schools and was accepted by all but Princeton, where he was wait-listed. In high school, he said, he was ranked near the top of his class and was editor in chief of the school newspaper and president of the debate team. He declined to divulge his SAT scores but said they “met or exceeded the standard ranges” published by the top-tier schools. “I was seen by all of the schools to which I applied as an outstanding academic candidate,” he told me. “I don't know what happened inside any of those schools. I have no way of knowing that.” He said that his brother Scott was an outstanding student and state champion swimmer in high school, and was also accepted at top universities with which their parents weren't affiliated.

  Jay added: “I'm a big believer that you should make your own mark. Who your parents are shouldn't be relevant.”

  His mother evidently disagreed. Like Justice Breyer, Justice O'Connor had also delivered Stanford's commencement address—in 1982, when Jay was a sophomore, and Scott had already graduated. “There is no greater, more foresighted office in this land of ours than the admissions office of Stanford University,” she told graduates, expressing the wish that “you will all be lucky enough to have your children attend this paradise on earth … that we call Stanford.”

  IF THE COURT had struck down affirmative action, Justice O'Connor's dream of a legacy paradise would have been imperiled. Civil rights advocates seeking payback would likely have mounted campus protests against legacy preference—and swung their full weight behind banning it. Indeed, in California and Georgia, where voters or federal courts had prohibited affirmative action, state universities had dropped legacy preference under pressure from civil rights groups. In a brief filed before the Supreme Court, minority students at Michigan and elsewhere cited legacy preference as one of several factors favoring whites that affirmative action was needed to offset. The implication was that the fates of minority and legacy preferences were intertwined; should the first be scuttled, the second would have to go as well, or admissions would tilt even more toward white privilege.

  That prospect became moot on June 23, 2003, when, by a 5-4 vote, the Court upheld affirmative action in admissions to Michigan law school. Four of the five justices from legacy families voted to uphold affirmative action; the sole exception was Anthony Kennedy. Justice David Souter, a childless Harvard graduate, was the fifth affirmative action vote. In the less pivotal undergraduate case, the Court struck down Michigan's point system because it lacked “individualized consideration” and made race a “decisive” factor.

  Justice O'Connor, who had been regarded as a swing vote, wrote the majority opinion in the law school case, Grutter v. Bollinger, reasserting Justice Powell's rationale that universities may consider race among other factors to promote their goal of student body diversity. In a tone reminiscent of her Stanford address twenty-one years earlier, the opinion brimmed with praise for the “educational judgment” and “expertise” of admissions decision makers. One of her key arguments was that Michigan law school took into account not only race but also a variety of “diversity factors”— such as whether applicants have traveled overseas, overcome hardships, or served their communities. Left unmentioned was another consideration that inhibited diversity, namely, legacy preference.

  “The Law School actually gives substantial weight to diversity factors besides race,” Justice O'Connor wrote. It “frequently accepts non-minority applicants with grades and test scores lower than under-represented minority applicants … who are rejected.” Since many of these nonminority students admitted with low grades and test scores were likely to be alumni children, perhaps Justice O'Connor considered legacy preference a “diversity factor.”

  In a piercing dissent, a justice outside the legacy establishment suggested that elite colleges—and, by implication, their allies on the Court —cared more about saving preferences for alumni children than for minorities. Clarence Thomas, the only black justice on the Court, grew up in poverty and graduated from the College of the Holy Cross in Worcester, Massachusetts, and Yale Law School. His only child, Jamal, attended Virginia Military Institute. Justice Thomas complained that the “national debate” over legacy preference had indirectly contributed to Michigan's victory. He personally believed, he wrote, that the admissions process is “poisoned” by legacy preference: “This, and other, exceptions to a true meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation's universities.” Nevertheless, alumni child preference is legal: “I will not twist the Constitution to invalidate legacy preference.”

  But colleges—and their allies on the Court—had no compunctions about twisting the Constitution to protect their favorite fund-raising tool. “Were this court to have the courage to forbid the use of racial discrimination in admissions, 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,” he observed.

  Whatever the motives for the Michigan decision, it deflated the anti-legacy push in Congress. The original reason for attacking legacy prefer-ence—to build public support for affirmative action—was now less compelling. “It took a little wind out of our sails,” Bethany Little said. “The people we were getting the most traction with were people interested in the fairness argument. When we said, ‘They might take away affirmative action in the face of this,” we had a real punch. When we had to give up the punch, we lost some political energy.”

  Dannenberg wasn't deterred. To counteract the colleges” lobbying blitz and sift reality from rhetoric, he organized a July 9 roundtable discussion for committee staffers. Panelists included journalist James Fallows, who had criticized early decision and legacy preference; two higher education lobbyists, Sarah Flanagan and Becky Timmons; and representatives of the Hispanic Education Coalition, which had circulated the proposal to require some colleges with legacy and early decision programs to fund efforts to reduce minority dropout rates.

  Instead of producing harmony, the discussion highlighted the discord within the committee and between Kennedy's staff and their erstwhile higher education allies. “It was a very intense conversation, because the schools felt attacked,” Bethany Little told me. “That was a shame, because I actually think there could have been a more productive policy discussion about solving the problem.” She added that “the squabbling in the committee was exposed to outsiders.”

  In a July 21 follow-up memo to all Democratic committee staff, Flanagan blasted the proposal as an “extremely inappropriate” way to “insert Congress into individual college admissions decisions.” She argued that while it was aimed at elite colleges, the proposal would actually hurt “small, struggling institutions” that take more chances on admitting minority students who are at risk of dropping out. “Because this proposal is so intrusive and potentially damaging,” she warned, “college presidents in all sectors of higher education will vigorously and publicly challenge it.”

  Facing this threat, Kennedy decided to seek counsel—and political cover—from then Harvard president Lawrence Summers, a prominent advocate of increased access to elite education for low-income students. On August 5, Kennedy wrote to Summers, asking for his views on the Hispanic Education Coalition proposal, which the senator praised as a “modest and thoughtful recommendation.” Harvard “does a good job in promoting diversity, so it would not be affected,” Kennedy noted.

  Summers's August 15 reply offered little comfort, toeing the lobbyists” Chicken Little line. “I must register a strong caution about any proposal that reaches into the college admissions process,” he wrote. “Federal intervention in admissions has the potential to undermine fundamental values in higher education—institutional independence and the academic freedom of colleges and universities to compose incoming classes in accordance with their distinctive missions.”

  On September 5, the rift between Kennedy and private higher education became public when my colleagues in The Wall Street Journal's Washington bureau reported that the American Council on Education had written to the senator, denouncing the proposal to penalize colleges that practiced early decision and legacy preference for disparities in graduation rates. Kennedy began having second thoughts, and Dannenberg realized that he just didn't have enough votes on the committee for the measure. Backing off the monetary incentive to pay more attention to minority and low-income students, Dannenberg and Senator Dodd's staff crafted a sunshine proposal. Colleges would have to report on the number, socio-economic status, and race of students who were alumni relatives or admitted under early decision programs. But they would face no penalties, regardless of the data.

  In October 2003, Kennedy proposed the reporting requirement as an amendment to the higher education act, prompting another round of media coverage. The senator and his staff insisted that the watered-down bill is a first step to restricting legacy preference. “It's a continuum,” Kennedy told me. Dannenberg believed that the bill would “name and shame” colleges that favor the privileged in the same way that test-score reporting mandated by the No Child Left Behind law has exposed deficient secondary schools.

  Nevertheless, Dannenberg's crusade was losing momentum. The scaling back of the bill signaled to colleges that, with affirmative action safe, Senator Kennedy no longer considered the battle against legacy preference as a priority. In the summer of 2005, with the sunshine bill awaiting a hearing or vote in committee, Dannenberg left Kennedy's staff to join the New America Foundation, a Washington think tank, as director of education policy. Soon afterward, the senator agreed to omit the reporting provision from the education committee's reauthorization of higher education. According to a spokeswoman, the senator felt there wasn't enough bipartisan support for it and didn't want to jeopardize a deal with Republican colleagues on federal financial aid for college students. “It's clearly a long-term project,” the spokeswoman said.

  Today, the anti-legacy movement in Congress appears moribund. In March 2006, the House defeated, by a vote of 337 to 83, a proposal by a Republican member to require colleges to report “raw admissions data” on race, legacy status, and other factors. Dannenberg himself is no longer looking to Congress for leadership, but he hasn't given up the cause. He's organizing a campaign to persuade students and alumni to link their giving to colleges to fair admissions policies. Dannenberg envisions current and prospective donors pledging to withhold their gifts unless colleges either abolish legacy preference or boost financial aid for low-income and minority students.

  “Maybe we can't get the government to push colleges, but we might be able to get students—the donors of the future—and current alumni to do it,” he said. “A lot of folks think legacy preferences are morally wrong, even if they are in line to benefit from them. It's no different from other civil rights issues.”

  It was the most controversial first-place pick in the history of U.S. News&World Report's influential rankings of American colleges. In 1999, when the magazine anointed the California Institute of Technology as the nation's best university, the cognoscenti scoffed as vigorously as if Stephen King had been awarded the Nobel Prize in Literature. How could a tiny engineering school in California surpass Harvard, Yale, Princeton, Stanford, and Caltech's larger, better-known East Coast counterpart, the Massachusetts Institute of Technology? The magazine yielded to the criticism and changed its criteria—reducing the importance of one measure, expenditures per student, in which Caltech led the field by a wide margin. Caltech, which otherwise might have stayed on top for years, slid back to the bottom half of the top ten, saving the Ivies and other traditional powerhouses from perennial embarrassment.

  Yet there is a good reason, left unmentioned in that ruckus, for putting Caltech a notch above the rest: the Pasadena school comes closer than any other major American university to admitting its student body purely on academic merit. Caltech doesn't compromise admissions standards to attract donations or foster a wealthy alumni base. Nobody gets into Caltech because their families are rich, famous, or well connected; they get in because of their talent and passion for science, period.

  The preferences of privilege so familiar on other campuses are alien to Caltech's culture. It's the only one of the country's top twenty universities that does not take into account an applicant's alumni affiliation, according to a U.S. News survey. Of 549 students admitted to Caltech in 2005, only eight—1.5 percent—were alumni children, far below the proportions at other elite schools.

  The Caltech application asks candidates where their parents went to college, and some students and faculty on the admissions committee say they actually hold alumni children to a higher standard. Being a legacy “could have a negative effect,” said physicist Michael Cross, a member of the freshman admissions committee. “If they've done a summer research project at Caltech through their parents” connections, that's less impressive than if they found a position on their own.”