The Volokh Conspiracy

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I've Read Harvard's Brief in the Pending Racial Preferences Case, and I Have a Question

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Here is the first sentence of the second paragraph in Harvard's brief:

This Court has consistently held that universities conducting such holistic review need not ignore that a person's race—like their home state, national origin, family background, or interests—is part of who they are, and that in seeking the benefits of a diverse student body, universities may consider race as one among many factors provided they satisfy strict scrutiny. [emphasis added]

Harvard gives preferences to three groups: African Americans, Hispanics, and Native Americans. The latter group is sufficiently small that I will put them aside for now. Meanwhile, I don't think anyone is going to question whether, whatever one thinks of the concept of "race," that African Americans constitute a "racial group" in American law and common parlance.

But what of Hispanics? The Common App relied upon by Harvard admissions, like every other form people fill out based on classifications created by the federal government in the 1970s, treats "Hispanic" as an ethnic, not a racial classification. Applicants are first asked if they identify as Hispanic, and then, regardless of their answer, about their race. Here are the relevant question from the Common App:

Are you Hispanic or Latino/a/x?
Yes
No

Which best describes your Hispanic or Latino/a/x background? (You may select one or more)

Central America
Cuba
Mexico
Puerto Rico
South America
Spain
Other

Regardless of your answer to the prior question, please indicate how you identify yourself. (You may select one or more)

American Indian or Alaska Native
Asian
Black or African American
Native Hawaiian or Other Pacific Islander
White

Which best describes your White background? (You may select one or more)

Europe
Middle East
Other

The Record in the case shows that Harvard gives any student who checks yes to the first question a boost for being Hispanic status. The boost is given even if the applicant does not mention anything about their Hispanic identity anywhere else in the application, including any evidence that this identity is meaningful to the applicant or that the applicant has ever suffered any discrimination because of that identity.

So let's say that the Supreme Court declines to overrule current precedent holding that racial diversity is a compelling government interest sufficient to overcome an equal protection challenge to racial preferences. What is Harvard's compelling interest in, say, admitting a blond haired, blue-eyed student whose great-grandparents were Italian immigrants to Argentina but whose parents moved to the US thirty years ago, and checks white under race on the Common App? This student isn't considered a racial minority under the civil rights laws Harvard complies with; is of entirely European heritage, and thus is, in common parlance, "white;" and does not look like a member of a racial minority group such that she may have faced discrimination on that basis. How, assuming that this student checks "yes" for Hispanic/Latino, would admitting this student add to Harvard's racial diversity? How would this student add more to Harvard's racial diversity than a dark-complexioned Italian American whose ancestors came to the US from Sicily, who gets no "racial" preference?

How, for that matter, did Harvard conclude that Hispanics, who federal rules tell us "can be of any race," constitute a racial minority such that Hispanic students are the only students who can be of 100% European ethnic heritage and still get a racial preference? Did Harvard even ever consider this question, and if not, how can its claim to deference for its academic decision-making regarding admissions be taken seriously?

One could, of course, claim that Harvard is entitled to pursue not just racial but also ethnic diversity. But Harvard does not formally pursue ethnic diversity the way it pursues racial diversity. It does not give students who check the White box an automatic advantage if they are from any other ethnic group, no matter how dark-complexioned, no matter how much that group has a claim for redress for historical wrongs, and no matter how much that group may add to Harvard's ethnic mosaic. Armenians, for example, get no automatic advantage, nor do darker-complexioned victims of more recent genocidal campaigns who are hardly well-represented at Harvard, such as Kurds and Yazidis. So Penelope Cruz's child gets an automatic advantage in Harvard admissions, but not the child of Yazidi refugees who fled Iraq after ISIS's genocidal campaign, even though it's pretty clear which one would add more "diversity" to Harvard. Hmm.

Whenever I write about racial classifications and their discontents, some folks always chime in that line-drawing in this context will inevitably be imperfect and arbitrary. That's true. But we have to keep in mind the legal standard Harvard needs to meet. Its preferences need to be *narrowly tailored* to serve a *compelling interest* in *racial diversity* in the context of higher education. Given anyone of any race who check the Hispanic box a preference seems to fail all aspects of that test, especially given that as far as I can tell, Harvard has never explained why it treats Hispanic but no other ethnic status as racial to begin with.

Side note: Harvard could argue that it singles out Hispanics as a racial group because even though they are officially an ethnic group according to the Department of Education, by requiring inquiry into Hispanic and no other ethnic status the government treats Hispanics as equivalent to a race. One problem with this reasoning is that the government never intended the classifications at issue to be used as proxies for racial diversity. The other problem is that, as I explained in a previous post, the Department of Education once allowed the use of a one-question format for race and ethnicity that did in practice treat Hispanic as akin to a race. However, in 1997 new federal rules prohibited the one-question format, and required various entities to ask the Hispanic ethnicity question separately from the question about race. In other words, federal law specifically now affirmatively prohibits schools from treating Hispanic like a race when they gather admissions statistics.

Second side note: There is no evidence in the Record, I believe, that Harvard changes the admissions bump a Hispanic applicant gets based on what Spanish-speaking country his ancestors lived in.

Third side note: SCOTUS also tends to refer to Hispanic preferences as "racial" preferences. It should stop doing so, at least without explaining itself.