The Volokh Conspiracy

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A Remarkable Moment at Oral Argument in the UNC Affirmative Action Case

Counsel for UNC did not know which box students of Middle Eastern Origin are supposed to check.

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From the oral argument transcript:

JUSTICE KAVANAUGH: How are applicants from Middle Eastern countries classified from Jordan, Iraq, Iran, Egypt and the like?

MR. PARK: My understanding is that just like other situations where they might not fit within the particular boxes on the common application, that we rely on self-reporting and we would ask—you know, they can volunteer their particular country of origin.

JUSTICE KAVANAUGH: But if they honestly check one of the boxes, which one are they supposed to check?

MR. PARK: I—I do not—do not know the answer to that question. What I can say is that if a person from a Middle Eastern country self-discloses their country of origin, it would be considered in the same way that we consider any box that matches, you know, one of the boxes that's available in the common application, which is it would be an individualized holistic analysis.

This was a really strange colloquy, because there is a right answer to Justice Kavanaugh's question. The classifications are directly imported from the Department of Education's Office of Civil Rights, which in turn uses the standard "Directive 15" classifications used throughout the federal government. And according to Directive 15, individuals of Middle Eastern origin are officially "White." In fact, the Biden administration is currently considering creating a new MENA (Middle East and North African) classification because Arab American and Iranian groups have been lobbying to take these groups out of the white classification.

But in case there was any doubt, here is the Common App's race question. It's a bit opaque, but nevertheless Middle Eastern is treated as a subset of "White":

Regardless of your answer to the prior question [regarding Hispanic status], 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

Is it possible that Mr. Park, in preparing for the argument, never looked at the Common App? Or did he not simply not want to concede that Middle Easterners are treated as generically white because that tends to undermines the claim that UNC is looking for "diversity?"