I’ve Read Harvard’s Brief in the Pending Racial Preferences Case, and I Have a Question

This is Harvard’s first paragraph.

The Court has held consistently that universities that conduct such holistic reviews need to consider that it is important that they do not overlook that fact. Race of a person—like their home state, national origin, family background, or interests—is part of who they are, and that in seeking the benefits of a diverse student body, universities may consider race as one among many factors provided they satisfy strict scrutiny. [emphasis added]

Harvard offers preference to the following three groups: African Americans and Hispanics. This last group is so small, I’ll just ignore them. I do not think that anyone will be questioning whether African Americans, regardless how one views the notion of race, are considered a “racial category” under American law.

What about Hispanics? Harvard admissions relies on the Common App. This form, as all other forms, was created based in 1970s federal government classifications. “Hispanic” is an ethnic classification, and not a racial one. First, applicants are asked whether they identify themselves as Hispanic and, depending on their answers, what their race is. The Common App asks the following questions:

Is it Hispanic?

Which describes the most your Latino/a/x or Hispanic heritage? You can choose one of the following:

Central America
Puerto Rico
South America

Please indicate your identity, regardless of what you answered to the preceding question. You may choose to select more than one.

American Indian or Alaska Native
Black American or African American
Native Hawaiians and Other Pacific Islanders

Which describes the best your White background? You can choose one of the following:

Middle East

Harvard grants any Hispanic student who answers yes to the first question an advantage in proving their status. This is evident from the Record. Even if applicants don’t mention their Hispanic identity elsewhere in the application, the boost will be granted.

Now let’s assume that the Supreme Court rejects current precedent, which holds that racial diverse is sufficient to defeat an equal protection challenge regarding racial preferences. Harvard is interested in admitting the blue-eyed, blonde-haired student, who’s great-grandparents are from Argentina, but were born to Italian immigrants. Harvard also checks the Common App as checking white for race. This student isn’t considered to be a racialHarvard’s civil rights laws consider her a minority; she is entirely European and, therefore, is “white”; and doesn’t look like someone from a racial group that might have been subject to discrimination. If this student answers “yes” to Hispanic/Latino then how would Harvard admit her? racial diversity? What would the Harvard student do to increase Harvard’s diversity?

Harvard’s conclusion that Hispanics who are allowed to “canbe of any race” is a racial minority, means that Hispanic students can only be European-ethnic and get a preference for racial status. This question was never raised by Harvard. If so, how could Harvard claim deference to its admissions decision making?

Of course, one could claim Harvard can pursue ethnic and racial diversity. Harvard is not explicitly committed to ethnic diversity in the same manner it does racial diversity. Students who tick the White Box do not get an advantage over students from other ethnic groups, regardless of how complex they may be or how many Harvardians that are related to them. Armenians are not eligible for an automatic advantage. The same goes for those who were victims of more recent genocide campaigns and who aren’t as well represented at Harvard such as Yazidis or Kurds. Penelope Cruz’s child is granted an admissions advantage to Harvard. However, Penelope Cruz does not get the same benefit for her child from Yazidi refugees fleeing Iraq. Despite it being obvious which would bring more diversity to Harvard. Hmm.

When I discuss racial distinctions and the discontents they bring, people often comment that any line drawing in such a context is bound to be imperfect or arbitrary. That’s true. However, Harvard must meet a legal standard. It’s preferences need to be *narrowly tailored* to serve a *compelling interest* in *racial diversity* in the context of higher education. Any race can check the Hispanic box, but a preference appears to fail every aspect of that test. This is especially true given the fact that Harvard has not explained why they treat Hispanics differently than other races.

Side note: Harvard may argue that Harvard has singled out Hispanics in its racial classification because they are considered an ethnic group by the Department of Education. This is due to Harvard’s requirement to inquire into Hispanic ethnic and other statuses. The government views Hispanics the same as any other race, by treating them as equal to a person of color. However, this logic is flawed because the government didn’t intend the classes at issue to serve as indicators of racial diversity. Another problem is the fact that the Department of Education used to allow a single-question format regarding race and ethnicity, which in reality treated Hispanics as an akin of a race. In 1997, federal laws prohibited the use of a one-question format for race and ethnicity. Instead, different entities were required to separate the Hispanic question from the question regarding race. Federal law now explicitly prohibits schools to treat Hispanics as a race in their admission statistics.

Side note 2: Harvard does not appear to have changed the admissions bump that a Hispanic applicant receives based on the Spanish-speaking nation his ancestors were born in.

Third, SCOTUS tends to call Hispanic preferences “racial.” It must stop this, at the very least.