The One Key Question No Justice Asked in the Harvard/UNC Affirmative Action Case
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 North Carolina.
The questions covered a wide range of issues, including, I believe for the first time, significant questions from the Justice about coherence of the classifications used by the universities.
The key issue in the cases is whether these classifications can be used by the universities to ensure racial diversity. The phrase “racial diversity” came up in oral argument thirty-eight times, with Justices Kagan and Sotomayor in particular pressing counsel on the issue.
The question no Justice asked is why the universities treat “Hispanic” as a “racial” classification. The Department of Education, consistent with OMB regulations that apply across the federal government, treats Hispanic as an “ethnic” classification; Hispanics can be of any race. The Common App, used by Harvard and UNC, follows the federal convention in asking students first whether they are Hispanic, and then about their race:
Are you Hispanic or Latino/a/x?
Article from Latest
