The Volokh Conspiracy

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

If An Applicant Didn't Check a Race Box, Harvard Would Assign a Race Anyway


Imagine you were a black or Hispanic applicant who did not want to be given a  racial/ethnic preference when applying to Harvard. Or you were an Asian American applicant who feared that your Asian background would be a hindrance. The obvious thing to do, beyond lying on your application, would be to leave the race and ethnicity questions on the Common Application blank. I have even seen an admission consultant suggest that if someone leaves those questions blank, admissions officers would treat your application as if you were somewhere in between white and Asian.

It turns out, though, that according to the plaintiffs' statement of undisputed material facts filed in August 2018, with citations to the record, Harvard did not accept "undisclosed" for race as an answer, at least for applicants who piqued its interest:

184. If a student does not identify his or her race, the Admissions Office has alternative ways to determine the student's race through other information the Common Application requires, including the student's last name, citizenship status, birthplace, language proficiency, country of birth of the student's parents, and the parents' last names and former last names. Ex. 204, McGrath Ex. 3.

185. The Admissions Office can also do outside research through social media to determine an applicant's race, which it has done in at least one instance. Ex. 20, Ray 31:16-32:10.

Fascinating, and troubling. I have interacted with several academics who support affirmative action on condition that racial identity is voluntarily self-disclosed and defined, rather than imposed. It turns out that this did not apply to Harvard, and likely other schools.