October 16, 2012

The Fisher oral argument: How are college applicants supposed to choose a race?

By Jonathan Wood Attorney

In addition to all of the other serious problems with UT’s (my alma mater) racially discriminatory admissions policy, the oral argument in Fisher highlights the absurdity of how race is used in college admissions.  The Chief Justice peppered the attorney for UT with questions about if, and how, UT determines the race of its students.

CHIEF JUSTICE ROBERTS: Counsel, before — I need to figure out exactly what these numbers mean. Should someone who is one-quarter Hispanic check the Hispanic box or some different box?

MR. GARRE: Your Honor, there is a multiracial box. Students check boxes based on their own determination. This is true under the Common Application

MR. GARRE: Your Honor, that was — they would make that self-determination, Your Honor. If anyone, in any part of the application, violated some honor code then that could come out.

CHIEF JUSTICE ROBERTS: Would it violate the honor code for someone who is one-eighth Hispanic and says, I identify as Hispanic, to check the Hispanic box?

MR. GARRE: I don’t think — I don’t think it would, Your Honor. I don’t think that that issue would be any different than the plan upheld in Grutter or the Harvard plan or in Bakke.

CHIEF JUSTICE ROBERTS: You don’t check in any way the racial identification?

MR. GARRE: We do not, Your Honor, and no college in America, the Ivy Leagues, the Little Ivy Leagues, that I’m aware of.

According to the University’s lawyer, the only guidance for how applicants are supposed to determine which box to check is the school’s two sentence honor code.  Based on the honor code, a student could choose to check any box as long as she sincerely identified with the race selected.  So, for example, if a high school student sincerely believed that humans evolved in Africa, and thus humanity has a common African ancestry, she could identify as African-American and would receive an advantage in the application review process.

Of course, UT can’t (and shouldn’t) assign a race to applicants and determine how it will treat them based on the race that it assigns.  But at the same time, race and ethnicity in the United States doesn’t lend itself to a simple checklist form.  As we explained in our amicus brief, in the past ten years the number of Americans who identify as belonging to “two or more races” has increased 32%. America is becoming more diverse as well.  There are now more “minority” than “nonminority” babies born each day.  UT’s answers to the Chief Justice’s questions highlight the foolhardiness of permitting the state to engage in racial discrimination at all in this increasingly diverse nation of immigrants.

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