The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It's not just that colleges and universities discriminate on the basis of race, ethnicity, and national origin. They do it badly.The racial categories that the schools use are completely bonkers, an arbitrary mess mostly left over from the work of federal bureaucrats in the 1970s that can't withstand the slightest scrutiny.
The administrators who rely on these categories are beholden to senseless and unscientific distinctions — they aren't even competent or rational racialists.
Justice Samuel Alito raised this issue in the arguments, pretty clearly relying on the work of George Mason University professor David Bernstein, who eviscerated the categories in an amicus brief and has written a book on their origin and implications, Classified: The Untold Story of Racial Classification in America.
The categories throw together a kaleidoscope of races and ethnicities in six neat categories: Asian, Native Hawaiian or Pacific Islander, Hispanic, White, African American, and Native American. Created for federal bookkeeping purposes 50 years ago, they long ago hardened into orthodoxy, with some adjustments here or there. ….
As legal scholar David Bernstein points out in "Classified: The Untold Story of Racial Classification in America," "Experience around the world shows that affirmative action categories almost always expand rather than contract, as more and more groups lobby to get affirmative action preferences and then lobby to protect those preferences." A system that drew its political support from our desire to eradicate Jim Crow ended up covering a number of protected classes, though along somewhat arbitrary lines that were driven as much by political maneuvering as by any rational criteria. This created various ad hoc absurdities — a Pakistani is "Asian," but an Afghan born a few miles across the border might be coded "White"; the daughter of a Spanish doctor is Hispanic, eligible for various private and government-sponsored affirmative action programs, while the child of an Italian janitor, who might be visually indistinguishable from the doctor's child, is presumably in no need of help.
The more immigrants who arrived, the more these complications multiplied, even among Black Americans. American descendants of enslaved people are our most disadvantaged citizens, with enduring gaps in education, income and wealth, but African immigrants are much better educated than average. The old system assumed a large White majority that was self-contained and thoroughly dominant; it was simply not built for a world where "biracial" was a meaningful category, or where some minority groups were more successful than the (rapidly shrinking) White majority….
To get the Volokh Conspiracy Daily e-mail, please sign up here.