The Volokh Conspiracy
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In the oral argument from SFFS v. UNC, Justice Alito raised the question, highlighted in my amicus brief and book, of whether the racial and ethnic classifications used by UNC and other universities are so arbitrary as to be unconstitutional. I have posted the colloquy below.
(1) Justice Alito asks why a student of Afghani heritage should be put in the same classification as a Chinese American. In fact, while this is far from clear from the Common Application itself, officially the Asian American classification ends at the Western border of Pakistan, and Afghan-Americans are white. This just goes to show how arbitrary and confusing the classifications are.
(2) Mr. Park for UNC struggles to explain that UNC both considers each student's ethnicity on an individualized basis, but also relies on box-checking because racial heritage is relevant to one's life experiences: "[Plaintiffs' argue] that race says nothing about who you are. And we just don't think that is true when you look at American society as it exists." But that just gets us back to Justice Alito's question: what common "racial" experiences do, say a Filipino, a Vietnamese, and Bangladeshi American have in common, such that they should be considered members of the same classification? "Asian" seems like a rather arbitrary dividing line, especially given that "racially" Asians may be Caucasian, East Asian, Austronesian, or "other" (like indigenous Malaysians.)
JUSTICE ALITO: I'd like your response to the argument that these racial categories are so broad that any use of them is arbitrary and, therefore, unconstitutional. So what would you say to, for example, a student whose family came from Afghanistan and doesn't get in because the student doesn't get the plus factor that the student would get if the student's family had come from someplace else? So you would say to the student: Well, we don't—we don't need you to contribute to a diversity of views at our school because we already have enough Asians. We have a lot of students whose families came from China or other Asian countries. And the student says: Well, you don't have anybody like me, I'm from Afghanistan. What—what similarity does a family background to the person from Afghanistan have with somebody whose family's background is in, let's say, Japan?
MR. PARK: So, respectfully, what you're describing is the exact opposite of how our process actually works on—on an individualized basis. This is—we discuss this on page 11 of our brief. There was a Vietnamese student. The admissions office –the admissions officer testified about a Vietnamese student who immigrated to a remote part of North Carolina and thrived in that setting, and she testified, undisputed, that that was a favorable aspect of her application.
JUSTICE ALITO: Well, that's—that's– that's an individual aspect of the application and something that has to do with her experience. But what is the justification for lumping together students whose families came from China with someone—with students whose families came from Afghanistan? What do they have in common?
MR. PARK: So I agree that that would be a strange rule. And that is not the rule that this Court has established. It would require —
JUSTICE ALITO: Well, then why do you have them check a box that I'm Asian? What do you learn from the mere checking of the box?
MR. PARK: So we think that it depends on the individual circumstances of that person, but I am telling —
JUSTICE ALITO: So you don't need the—you don't need the boxes at all?
MR. PARK: So I think that that is not necessarily true on an individualized basis. So another example, so we—again, as I discussed, we attempt very vigorously to recruit and enroll rural students, and we don't ask them to write an essay about how being from a rural background affects their, you know, sense of self and their experiences, but what we say is that person comes with something that we value, and –
JUSTICE ALITO: Well, they may choose to write about it, but what's the answer to my question? Why do you have these boxes? Why – why do you give a student the opportunity to say this one thing about me, I'm Hispanic, I'm African American, I'm Asian? What does that in itself tell you?
MR. PARK: We think that it can in context, on a individualized basis, perhaps not in every case but in some cases, give important information about where that person is coming from and what their experiences have been. And, really, this goes to the heart of the dispute that we have between the parties. So they say on page 53 of their brief that race says nothing about who you are. And we just don't think that is true when you look at American society as it exists.