The following contribution to our Fisher symposium comes from Walter M. Weber, Senior Litigation Counsel for the American Center for Law and Justice. A graduate of Princeton University and the Yale Law School, he has drafted more than a hundred briefs for Supreme Court cases. His wife and children are multiethnic.

“Your racial label will determine how we treat you.”

That’s a rotten thing to hear from anyone. Especially the government, which is supposed to afford the “equal protection of the laws.”

Yet that is precisely what racial preferences entail. Some people are treated advantageously, others relatively disadvantageously, all because of what racial “box” they are put in.

The organization I work for, the American Center for Law and Justice (ACLJ), strongly believes in the unity of all people in one human nature, from fertilization through natural death. Just as there is no difference in kind between prenatal, neonatal, adolescent, or adult human beings, there is likewise no difference in kind between black, white, Asian, or other ethnic groups of human beings. There is one race – the human race.

But a system of racial preferences presupposes the placement of individual human beings into different racial boxes. After all, you can’t give an edge to a particular group unless you can identify who belongs to that group.

And that’s the rub. Particularly in this day and age of cosmopolitanism and demographic diversity, the notion that there are intrinsic differences between “white” and “black” and “Asian” and whatever other category is plainly illusory. Indeed, there are websites, like The Daily Multiracial, devoted to listing and celebrating multiracial persons. So where does one put a Tiger Woods or a Cher in a schema of sealed-off racial groups? Absent purely arbitrary decisions, there is no answer.

The porousness of racial categories only underscores the fundamental constitutional problem: What business is it of the government to impose racial labels? How in the world is it proper for the government to tell someone – say, sports greats Franco Harris or Roy Campanella, entertainers like Carol Channing or Carly Simon, or tech whizzes like Steve Jobs (all of whom have mixed ethnic ancestries) – whether they are “black,” “white,” “Asian,” or something else? Sure, someone can personally wear green on St. Patrick’s Day despite claiming only a single Irish great-great-grandmother, or boast of being descended from Genghis Khan many generations back, or proudly assert an African-American heritage regardless of the ethnic mix of the person’s other ancestors. But when the government uses a certain percentage of blood, or an arbitrary collection of physical features, to stamp a label on you – with official consequences to boot – that is something entirely different.

Governments have tried racial labeling before, with an ugly record to show for it. Most notorious, of course, were the racial laws under the German National Socialists, laws which determined who did or did not count as Jewish – with ultimately lethal consequences. In Rwanda, more recently, government-mandated tribal labels (e.g., Hutu or Tutsi) spelt death for those in the “wrong” group.

Sadly, the United States also experimented with government-imposed racial labeling. Miscegenation laws and laws establishing segregation in schooling, transportation, etc. all involved affixing labels – principally “colored” or “white” – to Americans in order to divvy them up for purposes of various privileges. Different state courts and state legislatures confronted the descendants of ethnic intermarriage with a menu of rules for deciding into which box to place “mulattoes,” “quadroons,” “octoroons,” and others. In some states, a drop of “colored” blood made one a minority, while in other jurisdictions a larger percentage of black ancestry was required.

This was a disgraceful aspect of our national history. Government officials sorted individual human beings into supposedly distinct categories subject to disparate official treatment. Indeed, the very process of sorting these hapless persons, as if they were breeds of horses, is cause for national shame.

Yet programs of racial preference continue today. One of them is before the Court in Fisher v. University of Texas. Is there anything different about the new racial labeling? Is the government somehow doing it better this time?

One difference is that nowadays the discrimination is typically presented as for the benefit of minorities, rather than their detriment. Whether it is in fact beneficial is a question for the empirical sciences to resolve. But on principle, how is it consistent with the Equal Protection Clause to say that Jane Smith gets an edge in college admissions because her grandfather or great-grandfather was black or Latino, while the otherwise equally qualified Julie Jones or Grace Chung does not? How is that different from the case of young Isabel Wall, who looked no different from her Caucasian classmates, but who was nevertheless told she belonged in the “colored” school instead of the “white” school because she had “negro blood of one eighth to one sixteenth,” as the D.C. Court of Appeals ruled in 1910 in Wall v. Oyster?

Another difference nowadays is that the racial labeling is voluntary, i.e., applicants are asked to label themselves. For example, the current sample application form at the University of Texas at Austin, after asking if the applicant is Hispanic or Latino, says, “Please select the racial category or categories with which you most closely identify,” and then lists five racial groups for the applicant to check.

But even in a system of voluntary self-labeling, the government is still attaching real-world consequences to racial labels. It is thus far from clear that leaving the labeling to the unfettered discretion of private persons somehow cures any constitutional infirmities.  Certainly worse is if the government ends up second-guessing the applicant’s label, as that puts the government back in the business of being the ultimate arbiter of racial labels. (A messy example of racial second-guessing, as noted in the ACLJ’s amicus brief in Fisher, was the recent flap over whether a race car driver of Spanish and Puerto Rican descent was “too Caucasian” to qualify for a NASCAR minority program. An older example was when a man was turned down for a “diversity” position at a college, allegedly because he was “not visibly black.”)

Does the Supreme Court recognize government definition of racial groups as a constitutional problem? Well, Chief Justice Roberts in LULAC v. Perry described “divvying us up by race” as “a sordid business.” Justice Kennedy asked the pertinent question in Parents Involved in Community Schools v. Seattle School District No. 1: “When the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite?” And Justice Stevens acidly observed in Fullilove v. Klutznick, “If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reichs Citizenship Law of November 14, 1935.”

In fact the Supreme Court has unanimously recognized, in St. Francis College v. Al-Khazraji, that racial labels may well be “arbitrary” and “for the most part sociopolitical, rather than biological, in nature.” The Fisher case gives the Court the opportunity to confirm that it is no proper business of government, under an Equal Protection Clause, to say, “Your racial label will determine how we treat you.”

Posted in Featured, Fisher Symposium

Recommended Citation: Walter Weber, Online Fisher symposium: Government-imposed racial labels, SCOTUSblog (Sep. 5, 2012, 2:10 PM), http://www.scotusblog.com/2012/09/online-fisher-symposium-government-imposed-racial-labels/