Thursday, June 29, 2023: Three Justices Square Off in the Harvard/UNC Case Decision Over the Accuracy of OMB Directive 15 Defining Race and National Origin in America
We pass the comments of the three Justices along as a “mirror” and without editorial comment, although we do offer, below, explanations of technical terms from time to time to aid the reader to follow the debate among the Justices.
First, Chief Justice Roberts, in his Majority Opinion for the SCOTUS in the Harvard and UNC case decision, poked at what is known as the White House Office of Management and Budget’s (“OMB”) 1997 Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (“SPD 15”). The Chief Justice called OMB’s current racial definitions “opaque”, as we will see below.
While this is an obscure OMB Directive, it is important to the Equal Employment Opportunity community since OMB SPD 15 provides the backbone definitions of race and ethnicity for use throughout the entire federal government, and its stakeholders (like employers filing annual EEO-1 Reports and federal contractors developing Affirmative Acton Plans, for example). SPD 15’s purpose is to maintain a constant and common definition when collecting race and ethnicity data anywhere within the federal government, or by its stakeholders.
-We most recently wrote about SPD on May 30, 2023, here when discussing the Federal Interagency Technical Working Group on Race and Ethnicity Standards (“Working Group”) Report of its emerging plans to possibly amend the SPD 15’s definitions of race and national origin. (“Ethnicity” is not a statutory or regulatory word, but rather is street jargon to refer to what the Civil Rights Act of 1964, the EEOC, and OFCCP refer to as “national origin”).
Second, Justice Gorsuch took a special interest in OMB SPD 15 and wrote three pages of questioning criticism of the OMB Directive in his Concurring Opinion, raising some of the same concerns the Federal Interagency Working Group has voiced.
Third, Justice Sotomayor then jumped into the squabble in her lead Dissenting Opinion and chided the Majority for presuming “…that it knows better and appoints itself as an expert on data collection methods, calling for a higher level of granularity to fix a supposed problem of overinclusiveness and underinclusiveness.”
We do not know whether the Federal Interagency Working Group will feel particularly happy to be caught in the crossfire of a major Supreme Court decision. But, I am sure the Working Group will appreciate that the SCOTUS has now elevated the importance of their work. (I have lectured for over three decades before thousands of employment lawyers and affirmative action, compliance, and HR managers about the content of OMB SPD 15. The typical reaction has always been yawns and wonderment as to why I was taking up valuable podium time during the conference to discuss the intricacies of the federal definitions companies use every day to assign racial and national origin classifications to the millions of applicants and employees applying for work and employed each year. Well, OMB SPD 15 is now on the front page!)
So, What Was/Is The Fuss About, Specifically?
A. Roberts Tees It Up:
[Roberts Majority Slip Opinion at pp. 25-26, in which he attacks the definitions of race the universities used as part of the Court’s concern that “…[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification [for use] and classification.” The Majority’s point of view is that close enough for horseshoes is not close enough for the federal Courts which must stubbornly guard the Constitution’s 14th Amendment Equal Protection Clause prohibition on the government’s use of race other than for extraordinary reasons, and then only when they are carefully tailored to the need compelling the use of race]:
“It is far from evident, though, how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.
For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents [the universities] are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as ‘Hispanic,’ are arbitrary or undefined. See, e.g., M. Lopez, J. Krogstad, & J. Passel, Pew Research Center, Who is Hispanic? (Sept. 15, 2022) (referencing the ’long history of changing labels [and] shifting categories . . . reflect[ing] evolving cultural norms about what it means to be Hispanic or Latino in the U. S. today’). And still other categories are underinclusive. When asked at oral argument ‘how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt,’ UNC’s counsel responded, ‘[I] do not know the answer to that question.’ Tr. of Oral Arg. in No. 21–707, p. 107; cf. post, at 6–7 (GORSUCH, J., concurring) (detailing the ‘incoherent’ and ‘irrational stereotypes’ that these racial categories further).
Indeed, the use of these opaque racial categories undermines, instead of promotes, respondents’ goals. By focusing on underrepresentation, respondents would apparently prefer a class with 15% of students from Mexico over a class with 10% of students from several Latin American countries, simply because the former contains more Hispanic students than the latter. Yet ‘[i]t is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is ‘broadly diverse.’’ Parents Involved, 551 U. S., at 724 (quoting Grutter, 539 U. S., at 329). And given the mismatch between the means respondents employ and the goals they seek, it is especially hard to understand how courts are supposed to scrutinize the admissions programs that respondents use.
The universities’ main response to these criticisms is, essentially, ‘trust us.’ None of the questions recited above need answering, they say, because universities are ‘owed deference’ when using race to benefit some applicants but not others. Brief for University Respondents in No. 21–707, at 39 [internal quotation marks omitted]. It is true that our cases have recognized a ’tradition of giving a degree of deference to a university’s academic decisions.’ Grutter, 539 U. S., at 328. But we have been unmistakably clear that any deference must exist ‘within constitutionally prescribed limits,’ ibid., and that ‘deference does not imply abandonment or abdication of judicial review,’ Miller–El v. Cockrell, 537 U. S. 322, 340 (2003). Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review. As this Court has repeatedly reaffirmed, ‘[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.’ Gratz v. Bollinger, 539 U. S. 244, 270 (2003) [internal quotation marks omitted]. The programs at issue here do not satisfy that standard.” [footnote 5 omitted]
B. Gorsuch Tees It Up:
[Gorsuch Concurring Slip Opinion at pp. 5-8 in which he attacks as “incoherent stereotypes.”… “And no one can doubt that both schools intentionally treat some applicants worse than others at least in part because of their race.
Start with how Harvard and UNC use race. Like many colleges and universities, those schools invite interested students to complete the Common Application. As part of that process, the trial records show, applicants are prompted to tick one or more boxes to explain ‘how you identify yourself.’ 4 App. in No. 21–707, p. 1732. The available choices are American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; Hispanic or Latino; or White. Applicants can write in further details if they choose. Ibid.; see also 397 F. Supp. 3d 126, 137 (Mass. 2019); 567 F. Supp. 3d 580, 596 (MDNC 2021).
Where do these boxes come from? Bureaucrats. A federal interagency commission devised this scheme of classifications in the 1970s to facilitate data collection. See D. Bernstein, The Modern American Law of Race, 94 S. Cal. L. Rev. 171, 196–202 (2021); see also 43 Fed. Reg. 19269 (1978). That commission acted ‘without any input from anthropologists, sociologists, ethnologists, or other experts.’ Brief for David E. Bernstein as Amicus Curiae 3 (Bernstein Amicus Brief ). Recognizing the limitations of their work, federal regulators cautioned that their classifications ‘should not be interpreted as being scientific or anthropological in nature, nor should they be viewed as determinants of eligibility for participation in any Federal program.’ 43 Fed. Reg. 19269 (emphasis added). Despite that warning, others eventually used this classification system for that very purpose—to ‘sor[t] out winners and losers in a process that, by the end of the century, would grant preference[s] in jobs . . . and university admissions.’ H. Graham, The Origins of Official Minority Designation, in The New Race Question: How the Census Counts Multiracial Individuals 289 (J. Perlmann & M. Waters eds. 2002).
These classifications rest on incoherent stereotypes. Take the ‘Asian’ category. It sweeps into one pile East Asians (e.g., Chinese, Korean, Japanese) and South Asians (e.g., Indian, Pakistani, Bangladeshi), even though together they constitute about 60% of the world’s population. Bernstein Amicus Brief 2, 5. This agglomeration of so many peoples paves over countless differences in ‘language,’ ’culture,’ and historical experience. Id., at 5–6. It does so even though few would suggest that all such persons share ‘similar backgrounds and similar ideas and experiences.’ Fisher v. University of Tex. at Austin, 579 U. S. 365, 414 (2016) (ALITO, J., dissenting). Consider, as well, the development of a separate category for ‘Native Hawaiian or Other Pacific Islander.’ It seems federal officials disaggregated these groups from the ‘Asian’ category only in the 1990s and only ’in response to political lobbying.’ Bernstein Amicus Brief 9–10. And even that category contains its curiosities. It appears, for example, that Filipino Americans remain classified as ‘Asian’ rather than ’Other Pacific Islander.’ See 4 App. in No. 21–707, at 1732.
The remaining classifications depend just as much on irrational stereotypes. The ’Hispanic’ category covers those whose ancestral language is Spanish, Basque, or Catalan— but it also covers individuals of Mayan, Mixtec, or Zapotec descent who do not speak any of those languages and whose ancestry does not trace to the Iberian Peninsula but bears deep ties to the Americas. See Bernstein Amicus Brief 10–11. The ‘White’ category sweeps in anyone from ’Europe, Asia west of India, and North Africa.’ Id., at 14. That includes those of Welsh, Norwegian, Greek, Italian, Moroccan, Lebanese, Turkish, or Iranian descent. It embraces an Iraqi or Ukrainian refugee as much as a member of the British royal family. Meanwhile, ‘Black or African American’ covers everyone from a descendant of enslaved persons who grew up poor in the rural South, to a first-generation child of wealthy Nigerian immigrants, to a Black-identifying applicant with multiracial ancestry whose family lives in a typical American suburb. See id., at 15–16.
If anything, attempts to divide us all up into a handful of groups have become only more incoherent with time. American families have become increasingly multicultural, a fact that has led to unseemly disputes about whether someone is really a member of a certain racial or ethnic group. There are decisions denying Hispanic status to someone of Italian-Argentine descent, Marinelli Constr. Corp. v. New York, 200 App. Div. 2d 294, 296–297, 613 N. Y. S. 2d 1000, 1002 (1994), as well as someone with one Mexican grandparent, Major Concrete Constr., Inc. v. Erie County, 134 App. Div. 2d 872, 873, 521 N. Y. S. 2d 959, 960 (1987). Yet there are also decisions granting Hispanic status to a Sephardic Jew whose ancestors fled Spain centuries ago, In re Rothschild Lynn Legal & Fin. Servs., SBA No. 499, 1995 WL 542398, *2–*4 (Apr. 12, 1995), and bestowing a “sort of Hispanic” status on a person with one Cuban grandparent, Bernstein, 94 S. Cal. L. Rev., at 232 (discussing In re Kist Corp., 99 F. C. C. 2d 173, 193 (1984)).
Given all this, is it any surprise that members of certain groups sometimes try to conceal their race or ethnicity? Or that a cottage industry has sprung up to help college applicants do so? We are told, for example, that one effect of lumping so many people of so many disparate backgrounds into the ‘Asian’ category is that many colleges consider ‘Asians’ to be ‘overrepresented’ in their admission pools. Brief for Asian American Coalition for Education et al. as Amici Curiae 12–14, 18–19. Paid advisors, in turn, tell high school students of Asian descent to downplay their heritage to maximize their odds of admission. ’‘We will make them appear less Asian when they apply,’’ one promises. Id., at 16. ’‘If you’re given an option, don’t attach a photograph to your application,’’ another instructs. Ibid. [footnote 1 omitted] It is difficult to imagine those who receive this advice would find comfort in a bald (and mistaken) assurance that ‘race-conscious admissions benefit . . . the Asian American community,’ post, at 60 (SOTOMAYOR, J., dissenting). See 397 F. Supp. 3d, at 178 (district court finding that ’overall’ Harvard’s race-conscious admissions policy ‘results in fewer Asian American[s]’ being admitted). And it is hard not to wonder whether those left paying the steepest price are those least able to afford it—children of families with no chance of hiring the kind of consultants who know how to play this game.” [footnote 2 omitted]
C. Sotomayor Tees It Up:
[Sotomayor Slip Opinion at pp. 52 – in which she argues: “There is no evidence that the racial categories that respondents [universities] use are unworkable.” The Court also holds that Harvard’s and UNC’s race-conscious programs are unconstitutional because they rely on racial categories that are ’imprecise,’ ‘opaque,’ and ‘arbitrary.’ Ante, at 25. To start, the racial categories that the Court finds troubling resemble those used across the Federal Government for data collection, compliance reporting, and program administration purposes, including, for example, by the U. S. Census Bureau. See, e.g., 62 Fed. Reg. 58786–58790 (1997). Surely, not all ‘‘federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and social studies’’ that flow from census data collection, Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 2), are constitutionally suspect.
The majority presumes that it knows better and appoints itself as an expert on data collection methods, calling for a higher level of granularity to fix a supposed problem of overinclusiveness and underinclusiveness. Yet it does not identify a single instance where respondents’ methodology has prevented any student from reporting their race with the level of detail they preferred. The record shows that it is up to students to choose whether to identify as one, multiple, or none of these categories. See Harvard I, 397 F. Supp. 3d, at 137; UNC, 567 F. Supp. 3d, at 596. To the extent students need to convey additional information, students can select subcategories or provide more detail in their personal statements or essays. See Harvard I, 397 F. Supp. 3d, at 137. Students often do so. See, e.g., 2 App. in No. 20–1199, at 906–907 (student respondent discussing her Latina identity on her application); id., at 949 (student respondent testifying he ‘wrote about [his] Vietnamese identity on [his] application’). Notwithstanding this Court’s confusion about racial self-identification, neither students nor universities are confused. There is no evidence that the racial categories that respondents use are unworkable.” [footnote 36 omitted]
Editor’s Note: DirectEmployers has a scheduled “Listening Session” with the Federal Interagency Technical Working Group on Race and Ethnicity Standards scheduled for September 21, 2023. Stay tuned for DE’s invitation to Members and Recruit Rooster customers to join that Session with the Working Group.