The race-conscious admissions policies of Harvard and UNC divide applicants into the following categories for purposes of determining eligibility for race-based applications
advantages in the admissions process: (1) Asian; (2) native of Hawaii or the Pacific Islands; (3) Hispanic; (4) white; (5) African American; and (6) Native American.
As Professor David Bernstein has shown, these racial and ethnic categories were created in the mid-1970s by federal bureaucrats whose sole purpose was to unify the racial and ethnic categories used by federal agencies for record keeping. . David E. Bernstein, The Modern American Law of Race, 94 S. CAL. L. REV. 171, 197-200 (2021); see also DAVID E. BERNSTEIN, CLASSIFIED: THE UNTOLD STORY OF RACIAL CLASSIFICATION IN AMERICA (to be published 2022). The categories emerged randomly without any input from anthropologists, sociologists, ethnologists or other experts.
The bureaucrats who created the categories expressly cautioned that they “should not be construed as scientific or anthropological in nature, nor considered determinants of eligibility for participation in any federal program.” 43 Fed. Reg. 19,260, 19,269 (May 4, 1978).
There was not even the slightest hint in the development of the categories that they were established to achieve educationally beneficial diversity in higher education. See Hugh Davis Graham, The Origins of Official Minority Designation, in THE NEW RACE QUESTION: HOW THE CENSUS COUNTS MULTIRACIAL INDIVIDUALS 289 (Joel Perlmann & Mary C. Waters eds., 2002)….
The Harvard and UNC racial and ethnic categories match the categories adopted by federal agencies, including the Department of Education. Whatever value categories may have in enabling consistency in data collection, they group members of very diverse groups into arbitrary categories. As Michael Omi and Howard Winant, two of the leading sociologists of race in the United States, point out: “These racial categories are full of inconsistencies and lack parallel construction. Only one category is specifically racial, only one is cultural, and only one is based on a notion of community affiliation or recognition.” MICHAEL OMI & HOWARD WINANT, RACIAL TRAINING IN THE UNITED STATES 122 (3rd ed. 2015); see also PETER H. SCHUCK, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE DISTANCE 164 (2003) (describing racial categories as “almost comically arbitrary”).
Harvard and UNC cannot explain why they use these particular racial and ethnic categories in their admissions policies….
Given the unduly broad nature of the “Asian” category, it’s no surprise that only a minority of people assigned to this category identify as “Asian” or “Asian American.” See JANELLE WONG ET AL., ASIAN AMERICAN POLITICAL PARTICIPATION: EMERGING CONSTITUENTS AND THEIR POLITIC IDENTITIES 162 (2011) (finding that less than 40% of Indian, Chinese and Filipino respondents identified as “Asian” or “Asian-American”, even as a secondary identity)….
The question of who counts as “Hispanic” has continually confused federal and state authorities. See, for example, Marinelli Constr. Corp. v. State, 613 NYS2d 1000, 1002 (NY App. Div. 1994) (denying Hispanic status to person of Italian-Argentine descent); Major Concrete Constr., Inc. c. Erie Cty., 521 NYS2d 959, 960 (NY. App. Div. 1987) (denying Hispanic status to person with Mexican grandparent); In re Rothschild-Lynn Legal & Fin. Servs., SBA No. MSBE94-10-13-46, 1995 WL 542398, at *3–4 (April 12, 1995) (granting Hispanic status to a Sephardic Jew whose ancestors had fled Spain centuries earlier) ; In re DCS Elecs., Inc., SBA No. MSBE-91-10-4-26, 1992 WL 558961, at *4 (May 8, 1992) (recounting the agency’s finding that a person with “blonde hair and light-skinned” was not Hispanic); In re Kist Corp., 99 FCC2d 201, 216–17, 248 (1983) (giving partial minority credit for Hispanic status to someone with a Cuban grandparent); In re Storer Broad. Co., 87 FCC2d 190, 191–93 (1981) (accepting Sephardic Jewish heritage as proof of Hispanic status); In re Lone Cypress Radio Assocs., Inc., 7 FCC Rcd. 4403, 1992 WL 690184, at *5 (1992) (concluding that while being a quarter Hispanic is sufficient to classify someone as Hispanic, being an eighth Hispanic is not); Participation of Disadvantaged Businesses in Department of Transportation Programs, 62 Fed. Reg. 29,548, 29,550 (May 30, 1997) (reaffirming the Department of Transportation’s decision to classify “persons of Spanish and Portuguese European descent” as Hispanic, even though the latter group is not of Spanish origin or culture )….
There is enormous ethnic, cultural, linguistic and religious diversity within the category of people that Harvard and UNC classify as white…. The category includes, among others, the Welsh, Norwegians, Greeks, Moroccans, Chaldeans, Afghans, Iranians and North African Berbers. Bringing together people from all these groups in the same category is incompatible with the objective of real educational diversity….
Neither Harvard nor UNC has explained why a white Catholic of Spanish descent, classified as Hispanic, gets an admissions preference for his contribution to educational diversity, but a dark-skinned Muslim of Arab, Egyptian Coptic, Hungarian Roma, Bosnian refugee, Scandinavian Lapp, Siberian Tatar or Bobover Hasid – all classified as “white” – do not. Likewise, it is difficult to see how diversity is better accomplished by admitting an additional “Hispanic” student of Mexican ancestry rather than an equally or better qualified student whose parents immigrated from Turkmenistan, who would be the only Turkman in the entire student body, because the Turkman is arbitrarily classified as “white”.…
A descendant of American slaves who grew up in a predominantly black working-class neighborhood of Milwaukee does not contribute to diversity in the same way as a child of an African diplomat, nor as a black-identified candidate of multiracial descent who has grew up in a small, mostly white town in Montana…. Yet they all fall into the same diversity category at Harvard and UNC….
Similarly, the experiences of a Navajo Indian who grew up on the tribe’s reservation in Arizona are quite different from those of someone with sixty-fourth Cherokee ancestry and a European surname whose appearance and life are indistinguishable from those of its “white” neighbours. except he inherited tribal affiliation….
The racial and ethnic categories that Harvard, UNC and universities nationwide use in their admissions policies were created by executive branch bureaucrats who specifically warned that they were not scientific or anthropological in nature and should not be used to determine eligibility for benefits in race-conscious policies. The categories are imprecise, over and under inclusive, and not narrowly tailored to achieve educationally beneficial diversity.
Note that the brief does not address whether a different version of affirmative action for “diversity” purposes might override the Constitution, nor whether affirmative action programs based on values other than “diversity can be constitutional. The brief only addresses the notion that basing affirmative action justified by educational diversity on categories created for entirely different purposes and not meant to reflect sociological or anthropological reality cannot pass strict scrutiny.