Who gets a preference?

Yes, we know that the Supreme Court permits selective colleges to award a “plus” to black, Hispanic, and Native-American applicants. But just who, exactly, qualifies as black, Hispanic, or Native American?

Absurd Supreme Court decisions can produce seemingly absurd questions. But as silly as the above query sounds, it’s one courts have wrestled with for much of our history, particularly during the Jim Crow era. Fortunately, those days are gone. But now the Grutter case has once again revived the distasteful relevance of racial identification.

Colleges that award a plus to applicants from preferred minority groups confer a significant benefit — admission to an institution that can ease the pathways to success. Indeed, we’re told by preference supporters that graduation from an elite school can add hundreds of thousands of dollars to one’s income over the course of a lifetime.

The competition for admission to these schools is ferocious. Students struggle for years to compile the kind of GPAs, extracurriculars, and board scores that will increase the probability of admission. Yet each year, thousands of high-school seniors with stratospheric grades and scores are rejected by their schools of choice. Getting the “plus,” a preference on the basis of an applicant’s race, allows one to vault to the front of the admissions line. As a Center for Equal Opportunity study demonstrates, a black applicant to the University of Michigan is 174 times more likely to be admitted than his white counterpart. A Hispanic applicant is 133 times more likely to be admitted. Indeed, beyond an average level of qualifications, the plus/preference nearly guarantees admission to many select schools.

When the state dispenses a benefit on the basis of an individual’s status, it requires validation of such status. Some of these benefits are arguably as valuable as the “plus”; others are not — but proof of eligibility is invariably required. For example, a person applying for Social Security disability must supply an array of information: names of treating physicians, types of treatments used to diagnose the disability, medications, etc. Applicants for driver’s licenses must establish proof of age. And in New Hampshire, where the legally blind are entitled to free fishing licenses, an applicant must furnish the results of an eye exam approved by the state ophthalmologist.

The University of Michigan, however, requires no objective proof that an applicant is, in fact, eligible for the “plus” by virtue of being a member of a preferred minority group. Paragraph 11 of the Michigan Law School application states, in pertinent part:

[I]f one race or ethnicity that you think best applies to you. Your decision to answer or not answer this question will not influence law school’s decision on admission.
American Indian/Alaskan Native — tribal affiliation
American Indian
Black/African American
Hispanic/Latino
Asian American/Pacific Islander
White, not of Hispanic origin [emphasis added]

So the only “proof” of membership in the preferred class is mere self-identification. But self-identification presents at least two problems. The first is fraud. The Michigan Law application also contains the following certification:

I hereby certify that all statements and representations on this application and all accompanying materials are true and accurate to the best of my knowledge. I understand that false statements may result in revocation of an offer of admission or expulsion or rescission of my degree. [emphasis added]

So, if a white applicant is caught trying to improve his chances of admission by a multiple of 133 by claiming to be Hispanic, he could be expelled, or — if he isn’t caught until he’s already practicing law — his degree could be revoked.

Skepticism that either of the above scenarios would ever come about is understandable. After all, how many hypersensitive, politically correct college administrators would dare question a student’s race?

But racial fraud is far more pervasive than some might suspect. Minority set-aside programs throughout the country have been marred by scandals involving fraudulent racial identification. And applicants for civil-service positions that accord racial preferences pursuant to consent decrees have also been known to fudge race.

One of the earliest and most publicized examples of the affirmative action era is the case of the Malone brothers. As Christopher Ford notes in his 1992 California Law Review article, “Administering Identities; The Determination of ‘Race’ and Race-Conscious Law,” the Malone twins, white-skinned and fair-haired, took the 1975 civil-service test to become Boston firefighters. They self-identified as white and were not accepted because of low scores. Shortly thereafter, the Boston fire department became subject to a consent decree requiring preferences for black firefighter candidates. The Malones retook the test, this time identifying themselves as black. Although their scores weren’t high enough for acceptance as white candidates, they did qualify under the standards for blacks — and were hired. They worked as Boston firefighters for the next ten years. Only when they came up for promotion did higher-ups notice that the Malones had identified themselves as black; they were duly fired for falsification. This prompted the Boston fire department to investigate nearly a dozen other cases of suspected fraudulent racial identification.

The second and more important problem concerns the colleges’ critical-mass formulation. As I noted in an earlier article (see “Michigan Impossible“), the Supreme Court permits a selective college to award a plus to preferred minorities so that the college can reach a “critical mass” of such minorities. Critical mass is the fabled point at which the number of preferred minorities on campus causes the four purported benefits from diversity to flow: (i) breaking down racial stereotypes; (ii) promoting cross-cultural understanding; (iii) providing the exposure needed to prepare for the global marketplace; and (iv) promoting spirited classroom discussions.

The Court accords colleges a presumption of good faith in their use of racial classifications. In other words, the Court gives admissions officers the benefit of the doubt that their “critical mass” produces the educational benefits noted above.

Moreover, the Court allows the preference only because these educational benefits constitute a compelling state interest. Now, keep in mind that before Grutter, the only things that qualified as compelling state interests justifying the use of racial classifications were the remediation of actual instances of past discrimination and national security, i.e., pretty important stuff.

So reaching a college’s critical mass can’t be a matter a college treats cavalierly — otherwise it forfeits the presumption of good faith and its preference program is rendered unconstitutional.

And there’s the rub. The presumption of good faith that entitles colleges to use racial preferences is revoked where the critical-mass calculation is a sham. And critical mass is necessarily a sham if college gatekeepers take no credible steps to ensure that they’re actually admitting the “right” minorities to reach the critical-mass threshold.

The post-Grutter Internet is already bristling with calls for racial-identity rebellions designed to confound admissions offices. A few rogue applicants employing Malone-like tactics could easily scramble a college’s critical-mass numbers. (And, presumably, the educational “benefits” of diversity would then be lost — racial stereotypes would abound, cultural ignorance would prevail, graduates would be unable to function outside the Ann Arbor market, and minority students would be suddenly struck mute).

But again, the more pressing issue is not about rampant racial fraud, but about numbers. For if we are to take seriously the diversity argument — that the mere presence of preferred minorities in certain numbers is intrinsically beneficial to the educational experience — then the question necessarily arises: Who does a college consider to be black, Hispanic, or Native American?

Is an applicant of Moroccan descent an African American entitled to a plus — or is he an Arab American, who gets none? Does an ethnic German applicant recently emigrated from Peru get a Hispanic plus? Does a white applicant with a black great-grandfather get an African-American plus? And why doesn’t a native Hawaiian get a Native-American plus, as do Alaskan natives?

Admissions officers will be pleased to know that plenty of guidance is available to answer some of these questions. (The 1910 Louisiana case of State v. Treadaway, 126 La. 300, 52 So. 500, is a handy guide.)

There are scores of court decisions interpreting state laws regarding racial identity and school admissions. Prior to the 1950s, most states had statutes defining “blacks,” “Negroes,” “mulattos,” and “coloreds.” Those designated as such were excluded from white schools.

Some states employed the “one drop” rule — any black ancestor, however remote, rendered one black. Alabama held that anyone at least 1/32 black — i.e., who had at least one black great-great-great-grandparent — was to be excluded from white schools. North Carolina, on the other hand, only went back four generations.

The most common racial-identity statute considered anyone with at least one black great grandparent to be black. (Unfortunately for admissions officers, the law provides scant guidance as to who is a Native American or Hispanic, although a recent case in Seattle suggests that anyone with at least one Native-American great-great-grandparent qualifies as Native American.)

But what about Michigan? An old Michigan constitutional provision pertaining to “colored” school admissions provides little guidance. However, an 1880s Michigan marriage statute defines a “colored” person as anyone who is “wholly or in part of African descent.” (Some anthropologists would point out that we’re all, in part, of African descent. Arguably, then, everyone’s entitled to a plus.)

How would the University of Michigan determine whether someone is “wholly or in part of African descent”? The court that heard the Malone brothers’ wrongful discharge claim helpfully instructs that racial identity must be determined by one of three criteria: (i) visual observation of the claimant’s features (they all, you know, pretty much look alike); (ii) documentary evidence (shades of antebellum race passbooks); or (iii) reputation in the community (according to Critical Race theorists, “inauthentic” blacks — you know who they are — don’t count).

All of which raises the delightful prospect of an earnest college-admissions officer in the next racial-preferences court case explaining to the jury how he determined that Tiger Woods is not entitled to a plus because Tiger’s black ancestry is cancelled out by his Asian genes.

Everyone knows we’ll never see this vignette play out. But if student-body diversity is indeed a compelling state interest — on the level of national security — then colleges can’t play fast and loose with the plus factor. They can’t simply rely on the serendipity of racial self-identification to meet the all-important critical-mass threshold. Racial identity must be confirmed; otherwise, a college can never be certain it’s reached its critical mass, and the diversity rationale would be revealed as just a transparent, albeit elaborate, hoax — a cynical mechanism to get some preferred minorities on campus.

The sad fact is that this is precisely what’s going on, and everyone knows it. Even Justice Ginsberg suggests that colleges are simply arriving at predetermined numbers through “winks, nods, and disguises.”

So, as long as colleges don’t require proof of eligibility for the plus, we may one day see Prince William, pleased that his admission has helped the University of Michigan reach its critical mass, strolling across campus and wistfully reciting the old Langston Hughes poem:

Rest at pale evening… A tall slim tree… Night coming tenderly Black like me.

— Peter Kirsanow is a member of the U.S. Commission on Civil Rights.