The Volokh Conspiracy

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Justice Sotomayor Defends Racial and Ethnic Classifications Relied Upon by Harvard and UNC

She doesn't do a very good job of it.


Justice Sotomayor, in the Students for Fair Admissions affirmative action cases:

The Court also holds that Harvard's and UNC's race conscious programs are unconstitutional because they rely on racial categories that are "imprecise," "opaque," and "arbitrary."

We're off to a bad start. The issue is not simply that Harvard and UNC use these categories in a "race conscious" way, it's that Harvard and UNC classified their students by these categories, and then gave them an admissions bonus if they checked the box showing they were members of certain classifications.

To start, the racial categories that the Court finds troubling resemble those used across the Federal Government for data collection, compliance reporting, and program administration purposes, including, for example, by the U. S. Census Bureau. See, e.g., 62 Fed. Reg. 58786–58790 (1997). Surely, not all "'federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and social studies'" that flow from census data collection, Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 2), are constitutionally suspect.

A lot of the things Sotomayor mentions are indeed problematic from a public policy point of view, because the classifications are so imprecise and arbitrary. Someone should write a book about it! But from a constitutional perspective, taking data based on these classifications into account for whatever reason is a different matter than classifying individuals and rewarding or penalizing them because they checked a particular box on a form.

The majority presumes that it knows better and appoints itself as an expert on data collection methods, calling for a higher level of granularity to fix a supposed problem of overinclusiveness and underinclusiveness.

As I discuss in some detail in my book, it was not "experts" who came up with these classifications, but, as Justice Gorsuch notes, "bureaucrats." Experts at the Census Bureau were livid when the Bureau decided to adopt these classifications for the 1980 Census. They found the "Hispanic" classification to be especially nonsensical, and product of politics rather than sound data policy.

But if we do want to defer to the pseudo-experts in the government who came up with them, we should recall that when they were initially published in the Federal Register in 1978, they came with these caveats: The "classifications should not be interpreted as being scientific or anthropological in nature" and should not be "viewed as determinants of eligibility for participation in any Federal program," assumedly alluding to affirmative action. As for various public and private planning uses of the data, the argument is circular; academics and planners use the data because the Census Bureau collects the data, which makes the relevant data cheap and readily available. If the Census Bureau used different classifications, researchers would generally use those instead.

Yet it does not identify a single instance where respondents' methodology has prevented any student from reporting their race with the level of detail they preferred. The record shows that it is up to students to choose whether to identify as one, multiple, or none of these categories. See Harvard I, 397 F. Supp. 3d, at 137; UNC, 567 F. Supp. 3d, at 596. To the extent students need to convey additional information, students can select subcategories or provide more detail in their personal statements or essays. See Harvard I, 397 F. Supp. 3d, at 137. Students often do so. See, e.g., 2 App. in No. 20–1199, at 906–907 (student respondent discussing her Latina identity on her application); id., at 949 (student respondent testifying he "wrote about [his] Vietnamese identity on [his] application"). Notwithstanding this Court's confusion about racial self-identification, neither students nor universities are confused. There is no evidence that the racial categories that respondents use are unworkable.

I can attest with some confidence that people are very confused about the relevant classifications, but for now I will just point out that some of the Justices themselves are confused, including Sotomayor. She consistently alludes to a Latino racial classification in this and other opinions, but no such classification exists. Rather, there is a Hispanic/Latino ethnic classification, delineated separately from race. This classification is based on ancestry and cultural ties to Spain, so unlike "Latino" it includes Spaniards but excludes Brazilians. At oral argument, Justice Alito referred to a student of Afghani descent wondering why he should be put in the same classification as a Chinese American. In fact, while this is far from clear from the Common App, the underlying classification scheme considers people from Afghanistan to be white. As for providing more detail in one's personal statement or essay, the evidence showed that Harvard and UNC only classified their students by the main classifications; if a student had an interesting story related to, e.g., his Vietnamese background, that might make for a compelling essay, but Harvard and UNC would still "count" that student only as an "Asian American" for statistical purposes.

[In a footnote, Sotomayor adds:] The Court suggests that the term "Asian American" was developed by respondents because they are "uninterested" in whether Asian American students "are adequately represented." Ante, at 25; see also ante, at 5 (GORSUCH, J., concurring) (suggesting that "[b]ureaucrats" devised a system that grouped all Asian Americans into a single racial category).

That's just a weird distortion of what Roberts wrote for the majority: "Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other."

That argument offends the history of that term. "The term 'Asian American' was coined in the late 1960s by Asian American activists—mostly college students—to unify Asian ethnic groups that shared common experiences of race-based violence and discrimination and to advocate for civil rights and visibility." Brief for Asian American Legal Defense and Education Fund et al. as Amici Curiae 9 (AALDEF Brief ).

Well, to be more precise the term "Asian American" was coined by Japanese and Chinese American students, who wanted a common term for the reasons Sotomayor suggests. Whether Filipinos, then the largest Asian American group, qualified was an open question, and those activists would have been surprised, maybe shocked, to learn that South Asians were later folded into the classification. Beyond that, Gorsuch never claimed that bureaucrats invented the term "Asian American." Rather, he wrote, "Where do these boxes come from? Bureaucrats. A federal
interagency commission devised this scheme of classifications in the 1970s to facilitate data collection." That is accurate. And it bears noting that the majority of so-called "Asian Americans" don't accept that moniker, even as a secondary identity.