The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Arbitrariness of Racial Classifications Gets Attention as SCOTUS Considers Affirmative Action


I did not time my book on racial classifications to coincide with litigation over affirmative action. Indeed, the book is not about affirmative action, and much of the book has nothing directly to do with it.

Of course, though, it turns out that you can't talk about the post-World War II history of government racial classification without affirmative action coming up, because that's both where it's more controversial and where almost all the cases addressing individual claims to minority status arise. And it turns out the racial (and ethnic, given that "Hispanic" is officially an ethnicity, not a race) classifications used by universities in the affirmative action context were never intended to be used for "diversity" purposes, and don't really fit the diversity rationale dictated by the Supreme Court as the only valid reason to  use race in admissions. (I have no idea what Harvard would say if asked why, say, the five hundredth Mexican American in its freshman class would be deemed to officially add diversity to its class, such that it keeps track of such numbers and officially touts them when promoting its diversity, but the first Hmong, Afghan, Laplander, Mongolian, Turkman, Icelander, or Bobover Hasid would not; I doubt it would be anything terribly coherent.)

In any event, the book happened to come out in July, and I also filed an amicus brief with the Court in the Spring (authored by attorney Cory Liu) explaining why, based on the research in my book, the classifications Harvard and UNC use are wildly arbitrary–really, over-inclusive (white Spanish immigrants get a benefit for being "Hispanic"), under-inclusive (members of the groups noted above are officially "White" or "Asian American" and at best get no benefit for adding diversity) and ultimately irrational (why are Pakistanis and Filipinos, who have nothing in common beyond what any two random groups of human may have in the same Asian-American "diversity" category?)

This argument is quite different than the usual debate over "reverse discrimination" and "inclusion." I suppose the fact that it adds something new to an old and somewhat predictable debate explains why it is has received significantly more attention that I had any reason to expect.

Most prominently, the Wall Street Journal's Weekend Interview on Saturday was devoted to an interview with, well, me. It starts:

The U.S. Supreme Court will consider on Monday whether racial preferences in college admissions are illegal. David Bernstein argues they're irrational.

The argument at the high court is that Harvard and the University of North Carolina unlawfully discriminate against Asian-Americans to hold down their numbers and ensure a diverse student body. But what does it mean to say "Asians" are overrepresented on campus? Presumably elite colleges don't have hordes of applications from America's roughly 27,000 Mongolians. "Imagine you are a child of Hmong refugees," says Mr. Bernstein, a professor at George Mason University's Antonin Scalia Law School, referring to an ethnic group from Southwest China and Southeast Asia. You might hope the admissions officers see you as contributing to diversity. "They say, 'Oh, no, no, you're Asian.' But this Asian thing is purely a statistical construct"….

As for Harvard and UNC, the Supreme Court said in Bakke that the only legal rationale for racial preferences in admissions is to ensure campus diversity. Yet clumsy Directive 15 terms are all over the current parties' briefs. Schools use those labels in reporting data to the Education Department, Mr. Bernstein says, which might be why admissions offices follow them off a logical cliff.

"When has anyone ever sat down, including Harvard and UNC, and explained why these specific classifications, made for other purposes, are coextensive with diversity?" Mr. Bernstein asks. "One of the claims against affirmative action used for diversity purposes is that it's a stereotype, that all X are the same." No one actually thinks "that Indians have anything in common with Filipinos, other than this arbitrary geographic classification."

CNN's story yesterday on the pending cases notes:

David E. Bernstein, a University Professor at George Mason University's Antonin Scalia Law School also supports SFFA. He calls into question Harvard's racial categories, deeming them "arbitrary and irrational."

"Harvard cannot explain why roughly 60% of the world's population should be grouped together as 'Asian" despite vast differences in appearance, language, and culture," he added.

Education Week also highlighted the brief in its article on the cases:

Chief Justice John G. Roberts Jr., who has been skeptical of race-conscious government actions in education and other contexts, wrote in a 2006 redistricting case, "It is a sordid business, this divvying us up by race."

A provocative brief filed on the side of challengers to affirmative action focuses on some of the details of the "divvying." The brief raises questions about the racial and ethnic classifications used in American education…. Harvard and UNC classify students based on five racial categories: (1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African American; and (6) Native American, says Bernstein's brief.

The categories are not unique to those schools, as they match the classifications used by the U.S. Department of Education, though the federal government has also offered "two or more races" in Census forms and other surveys for years now. Bernstein says these classifications stem from a 1970s effort by the federal Office of Management and Budget to standardize race and ethnicity data collected across the federal government.

"The racial and ethnic categories that Harvard, UNC, and universities across the country use in their admissions policies were created by executive-branch bureaucrats who specifically warned that they were not scientific or anthropological in nature and should not be used to determine eligibility for benefits in race-conscious policies," Bernstein's brief says. "The categories are imprecise, over- and underinclusive, and are not narrowly tailored to achieve educationally beneficial diversity."

There have also been other news stories and op-eds that have highlighted the arguments the book and the brief, but I won't tax readers' patience by citing them.

The remaining question is whether any of the Justices will express interest in the classifications at oral argument today and ultimately in their opinions, or whether the debate continue on its previous trajectory, accepting the classifications as a given and only discussing whether diversity is a compelling government interest and what universities must do to satisfy that compelling interest.