Judicial Watch Attacks Racial Spoils System in Supreme Court Brief
April 10,2015
For years now, the U.S. Supreme Court has suggested that so-called affirmative action programs that result in racial quotas and such are a no-go. But, at the same time, the High Court has left some confusing and disturbing wiggle room that would allow race to be a factor as part some of nebulous effort to achieve “diversity.”

In higher education especially, admissions officials must avoid using race as the primary determining factor in admissions. This brings us to the historic Fisher v. University of Texas litigation, which may be headed back to the U.S. Supreme Court. We have joined with the Allied Educational Foundation (AEF) to once again file an amici curiae brief with the Court in support of Abigail Fisher, a Texas resident who was denied admission to the University of Texas at Austin (UT) in 2008 based upon its racial preference policies.

In 2008, Fisher and her former co-plaintiff, Rachel Multer Michalewicz, filed suit against UT, alleging that the university had violated the Equal Protection Clause of the 14th Amendment. In January 2011, after the U.S. Appeals Court for the Fifth Circuit ruled in favor of UT, Fisher appealed the decision to the U.S. Supreme Court. In a June 2013, 7-1 ruling, the high court vacated the Fifth Circuit’s ruling and ordered it to review the case again. In his majority opinion, Justice Anthony Kennedy wrote:

Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice …

Your JW has been part of this debate for some time. In fact, we partnered with AEF on an amici brief in support of Fisher prior to her Supreme Court victory.

Despite the 7-1 Supreme Court ruling, a divided Fifth Circuit three-judge panel again upheld the UT race-based admissions policies in a 2-1 decision issued in July 2014. The Fifth Circuit panel suggested that colleges and universities “may use race and ethnicity not only in pursuit of an undefined ‘critical mass’ of diversity, but also ‘in its search for holistic diversity.’”

At the time, we joined with AEF to file an amici brief in support of Fisher’s appeal for an en banc (in full) hearing before the Fifth Circuit, arguing that the panel’s ruling had violated the Equal Protection Clause. But in November 2014, the full Fifth Circuit declined to rehear the case.

In our latest “friend of the court” brief, we argue that race-conscious government activity results in the “further enshrinement of the intellectually impoverished concept of race into law; the perpetuation of a culture of racial and ethnic politics in American public life; and the increase of racial intolerance in American society:”

Ultimately, the only way to treat the illegitimate concept of race is to absolutely prohibit its use as a basis for government decisions affecting individuals or groups of individuals. Conveniently, such a prohibition is precisely what the Constitution already requires.

Our brief also highlights the absurdity of the crude racial classification system at issue:

Students must self-identify their race, but it remains unclear what makes one applicant a “Hispanic or Latino,” an “American Indian or Alaska Native,” an “Asian,” “Black or African American,” a “Native Hawaiian or Pacific Islander,” or simply “White.” UT does not specify whether an applicant must be a “full-blooded” member of his or her self-identified race or ethnic group, or whether 1/2, 1/4, 1/8, 1/16, or even 1/32 is sufficient to be granted or denied the “plus” factor.….Also undefined by UT’s policy is whether the terms “Hispanic” and “Latino” refer to persons of full or partial Spanish ancestry only, or also to persons of other European ancestry.

The court filing also cites research and one federal court ruling that suggests that one’s Hispanic ethnicity is self-defined:


[A]ccording to an April 2012 study by the Pew Hispanic Center, only twenty-four percent (24%) percent of Hispanic adults self-identify by the terms “Hispanic” or “Latino.” Fifty-one percent (51%) say they self-identify by their family’s country or place of origin, and twenty-one percent (21%) use the term “American” most often to refer to themselves. The study concluded that this “system of ethnic and racial labeling does not fit easily with Latino’s own sense of identity.” And at least one court has found that the term “Hispanic” is itself nothing more than self-identification:
[W]hether or not a person is an Hispanic is not a biological characteristic but a psychological characteristic as to how one identifies himself or herself. It is not simply whether one has some Spanish ancestry or whether one speaks Spanish as a first language… A person’s surname is not a definite indicator… [W]hether a person is Hispanic in the final analysis depends on whether that person considers himself or herself Hispanic.
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This definitional problem was highlighted in the controversy over Senator Elizabeth Warren during her 2012 campaign for Senate. Based on nothing more than “family lore” and “high cheekbones,” Ms. Warren claimed, perhaps quite sincerely, that she was 1/32nd Cherokee and therefore a Native American and a minority. In response, many people predictably expressed doubt that classifying Senator Warren as a “Native American” based on a system of racial self-identification made any sense, much less served a legitimate purpose.

Under UT’s policy, an applicant who, like the Senator, identifies herself as an “American Indian” based on “family lore” and “high cheekbones” would gain a “plus” factor toward admission, but an identical applicant without this same “family lore” or “high cheekbones” (or who was unaware that one of her 32 great-great-great grandparents happened to be Cherokee) would not. Imagine a freshman class at UT comprised of 6,715 Elizabeth Warrens, all identical but for the race or ethnicity of a single great-great-great grandparent.

The absurdity of this arrangement has become evident in the run up to the 2016 presidential campaign. Consider the recent controversy over Jeb Bush’s “mistakenly” checking “Hispanic” on a voter registration form. Think about what this means. Jeb Bush, under the UT admissions program now up for potential Supreme Court review, could choose to “self-identify” as Hispanic to gain a “plus factor” in applying to the state run school. Sen. Warren’s Cherokee heritage and Gov. Bush’s mistake are perfect illustrations of the absurdity of UT’s racial spoils system.

The U.S. Constitution doesn’t allow the government to dole out special benefits based upon divisive definitions of race and ethnicity however defined – mistakenly or not – by the likes of Elizabeth Warren or Jeb Bush.

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