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 Carolina. North.
The questions covered a wide range of topics, including, I believe for the first time, important questions from Justice on the consistency of the nomenclatures used by universities.
The key question in these cases is whether these classifications can be used by universities to ensure racial diversity. The phrase “racial diversity” came up thirty-eight times in oral argument, with Justices Kagan and Sotomayor in particular pressing lawyers on the issue.
The question no judge asked is why universities treat “Hispanic” as a “racial” classification. The Department of Education, in accordance with OMB regulations that apply across the federal government, treats Hispanics as an “ethnic” classification; Hispanics can be of any race. The common app, used by Harvard and UNC, follows federal convention by asking students first if they are Hispanic, then about their race:
Are you Hispanic or Latino/a/x?
I expect that if university attorneys were asked how they can defend, contrary to federal law, the treatment of “Hispanics” as a race, the first response would be stunned silence, because universities don’t have never even thought about this question. Once the lawyer is recovered, the answer would be for universities to simply use “racial diversity” as a shorthand for pursuing racial research. and ethnic diversity, and the latter includes Hispanics, including those who check the “white” box.
But this answer would itself raise serious constitutional problems. If universities care about ethnic diversity, why are Hispanics literally the only ethnic group they track to ensure such diversity? It could be argued that Hispanic is a special classification, as many Hispanics are dark complexioned and therefore have experiences that are not common to other ethnic groups. But then what about, for example, Arab Americans, Armenian Americans, Persian Americans or Berber Americans? Hispanics, one might say, face discrimination that other ethnic groups do not. But can it plausibly be argued that Arab and Iranian Americans, especially those who are identifiable as Muslims, have not faced discrimination not common to those with whom they share the “white” classification?
The core of the Equal Protection Clause, which governs this case (including for Harvard, as this clause was found coextensive with Title VI of the Civil Rights Act of 1964) has long been the prohibition against arbitrary classifications. A candidate who ticks “Hispanic,” then “White,” then “South American” and is of Italian-Argentine descent gets a preference for racial diversity. A candidate who verifies that he is not Hispanic, then white, then Middle Eastern who is an Iraqi Yazidi genocide survivor does not. Nor is a very dark-skinned Egyptian Coptic, a member of a group that has faced centuries of castel-like discrimination in his home country. The arbitrator, anyone?