The Volokh Conspiracy

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The One Key Question No Justice Asked in the Harvard/UNC Affirmative Action Case

Harvard and UNC's defense is based on the perceived need for racial diversity; but how do they justify treating "Hispanic" as a Racial Classification?


In October, the Supreme Court held several hours of oral argument in the Students for Fair Admissions case, challenging the constitutionality of affirmative action preferences for African Americans, Hispanics, and Native Americans at Harvard and the University of North Carolina.

The questions covered a wide range of issues, including, I believe for the first time, significant questions from the Justices about coherence of the classifications used by the universities.

The key issue in the cases is whether these classifications can be used by the universities to ensure racial diversity. The phrase "racial diversity" came up in oral argument thirty-eight times, with Justices Kagan and Sotomayor in particular pressing counsel on the issue.

The question no Justice asked is why the universities treat "Hispanic" as a "racial" classification. The Department of Education, consistent with OMB regulations that apply across the federal government, treats Hispanic as an "ethnic" classification; Hispanics can be of any race. The Common App, used by Harvard and UNC, follows the federal convention in asking students first whether they are Hispanic, and then about their race:

Are you Hispanic or Latino/a/x?

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

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

In any event, despite Justice Sotomayor's protestations in her BAMN dissent that "race matters" with regard to Hispanics (but apparently not Asian Americans) in education, treating Hispanics as a race seems to violate federal law. (I have previously discussed how the Supreme Court wound up treating Hispanic as a racial classification, even though that's legally incorrect.) For example, I don't think that a university could legally prefer Greek American applicants over other applicants in the name of "racial diversity." Discrimination of this sort within the "white" classification would generally be considered illegal ethnic/national origin discrimination.

I expect if counsel for the universities had been asked how they can defend, contrary to federal law, treating "Hispanic" as a race, the first response would be stunned silence, because universities have never even thought about that issue. Once counsel recovered, the answer would be that the universities just use "racial diversity" as a shorthand for pursuing racial and ethnic diversity, and the latter includes Hispanics, including those who check the "white" box.

But that answer would raise serious constitutional problems of its own. If the universities are interested in ethnic diversity, why is Hispanic literally the only ethnic group that they keep track of to ensure such diversity? One could argue that Hispanic is a special classification, because many Hispanics are dark-complexioned, and thus have experiences not common to other ethnic groups. But then what of, e.g., Arab Americans, Armenian Americans, Persian Americans, or Berber Americans? Hispanics, one might argue, face discrimination that other ethnic groups do not. But can one plausibly argue that Arab and Iranian Americans, especially those who are identifiably Muslim, have not faced discrimination not common to those with whom they share the "white" classification?

The heart of the equal protection clause, which governs this case (including for Harvard, because that clause has been deemed coextensive with Title VI of the 1964 Civil Rights Act) has long been a prohibition on arbitrary classifications. An applicant who checks off "Hispanic," then "White," then "South America" who is of Italian-Argentine descent gets a racial diversity preference. An applicant who checks off "not Hispanic," then white, then Middle Eastern who is an Iraqi Yazidi survivor of genocide does not. Nor does a very-dark complexioned Egyptian Copt, a member of a group that has faced centuries of caste-like discrimination in their home country. Arbitrariness, anyone?