Problem
Many universities give preferential treatment to children of alumni, called "legacy applicants." At some colleges, legacy applicants are more than 40% more likely to gain admission than their non-legacy peers. When public universities favor legacy applicants, they are discriminating in favor of a group (children of alumni) and must be able to withstand an equal protection challenge.
It's easy for a university's legacy preference policy to pass the equal protection test. "Children of alumni" would be a non-suspect class (the classification isn't based on race, national origin, gender, or any of the other things that warrant heightened scrutiny.) Therefore, the public university need only pass the "Rational Basis Test" by showing that its classification is rationally related to a legitimate government interest. Remember, it's pretty easy for the government to pass this test. In this case, the university can argue it has a legitimate interest in fostering a connection to a reliable source of alumni donations, and there's evidence that alumni donations increase when several generations attend the same school. Bingo.
By contrast, we saw in Fisher that it's much harder for a public university to pass the equal protection test when its admission policy takes race into consideration to foster diversity, because the classification of race is subject to a strict scrutiny analysis. Always an uphill battle.
Does the outcome seem right to you? A policy that preserves the status quo -- legacy preferences -- easily passes constitutional scrutiny, but a policy that endeavors to remedy systemic discrimination by taking race into account skates on thin ice. Is our equal protection jurisprudence working for us? What do you think?