The New Republic's Jeff Rosen has an interesting article in the New York Times Magazine on legal issues that may face a confirmed Justice John Roberts. He makes an interesting point on racial quotas and preferences, which he refers to as "affirmative action." (via the admirable www.theamericanscene.com). Rosen raises the following issue:
Affirmative-action programs may also be challenged by people other than disappointed white applicants. As America becomes increasingly multiracial, there may be debates over who, precisely, gets to qualify for racial preferences. Akhil Reed Amar, a colleague of [Peter] Schuck's at Yale Law School, told me that people might eventually resort to genetic tests to prove their racial heritage.
"I can imagine a predominantly white person who has been rejected because of an affirmative-action program saying, 'I should benefit from it because I am of mixed race, and I can prove it with sophisticated DNA analysis showing the percentage of my genes that came from Africa,' " he said. "The university might respond: 'It's not a genetic test but a social understanding test, and since people don't perceive you as black, you haven't been subject to discrimination.' "
In response to disputes like this, Amar suggested, state legislatures might conclude that "the social-understanding test is unacceptably fuzzy, and at least science can give us some rules. So the government might require a genetic test because it's easy to administer." If, however, a state legislature were to declare that anyone with a drop of African-American blood is entitled to be considered black, the policy might provoke a bitter Supreme Court challenge. "It would recall the shameful history in times of slavery and Jim Crow," Schuck told me, "in which one drop of blood was sufficient to render an individual black for the laws of slavery. And it would be extremely distasteful for blacks and whites." Still, Schuck acknowledged, the problem of deciding who is eligible for affirmative action will grow only more urgent in an era of shrinking public resources. "I think as pressure on affirmative-action programs increases," he said, "affirmative-action programs will have to make refined judgments about eligibility."
Justice Sandra Day O'Connor, as Rosen notes, in 2003 provided the decisive fifth vote to preserve racial quotas and preferences (provided they are slightly disguised) in university admissions in Grutter v. Bollinger. Near the end of the opinion she wrote, "We expect that 25 years from now, the use of racial preferences will no longer be necessary." Roberts, he speculates reasonably, may take a different view and provide a decisive fifth vote for the proposition that racial quotas and preferences violate the 14th Amendment. But if he doesn't, the question of who qualifies for quotas will remain with usand will get more and more dicey.
I would submit that it is already pretty dicey. I have read complaints that blacks admitted to elite universities were disproportionately of immigrant stock or from high-income families. These are not the kind of people, it is argued, for whom quotas were designed. So do we need subquotas for blacks who are the descendants of slaves or who come from low-income families? Should applicants be required to document that they had ancestors who were slaves?
The Hispanic category, invented by the Census Bureau for the 1970 Census, poses even more of a problem. Who is Hispanic? Presumably people with descendants from Spanish-speaking Latin America. But what about Brazilians, who speak Portuguese? What about Spaniards? When Crown Prince Felipe of Spain attended Georgetown University, did administrators there count him as one of their Hispanic students? I would bet they did. But he is also a direct descendant of Emperor Charles V and King Louis XIV: hard to see him as part of a victim class.
Back in the 1980s, California Rep. Tony Coelho, who is of Portuguese descent, sought to become a member of the Hispanic Caucus. When asked how he could consider himself Hispanic, he presented a map of the Roman Empire in which the entire Iberian peninsula was labeled "Hispania." The caucus let him in, either because his argument was persuasive or, perhaps more to the point, because he was chairman of the Democratic Congressional Campaign Committee.
Coelho might also have argued that Portugal was ruled for 60 years (1580-1640) by the kings of Spain. I have considered classifying myself as Hispanic for a similar reason. Some of my ancestors came from Sicily, and Sicily was ruled for 300 years by the kings of Spain. By my calculation that makes me five times as Hispanic as Tony Coelho.
The problem of racial classification raised by Jeff Rosen can be addressed in only two ways. One is self-classification: Everybody gets to say what category he or she falls into. The other is classification by someone elsethe government, the college, or the university.
If we choose self-classification, which seems to be the case today, the system is waiting to be gamed. Boston University Prof. Angelo Codevilla is the descendant of a 17th-century Spaniard who was sent to Milan, which was then ruled by the king of Spain, and remained there. He considers himself to be of Italian descent, but he told me some years ago that he didn't know whether his children classified themselves as Hispanic when applying to college.
If we choose classification by someone else, then we need a model. History provides us with examples: the race classification laws of apartheid South Africa, the post-Reconstruction racial code of Louisiana. University administrators could make up their own. For that is where racial quotas and preferences take us: to race codes. Silly me, I thought the Civil Rights Act of 1964 was taking us in the other direction.
Here's hoping Justice Roberts spares us all from this problem.