More On “Roberts vs. The Future”

Several days ago I posted a long discussion (here) of Jeffrey Rosen’s long article in the New York Times Magazine on “Roberts vs. The Future.”

For some reason I neglected to deal with Rosen’s riff on “racial classification” — maybe I thought my post was already too long, or I meant to do so in a separate post, or I forgot. Anyway, Michael Barone has now done so, and in his normally fine fashion, relieving me of my neglected obligation.

Barone quotes the following paragraphs from Rosen:

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 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.”

In response to Rosen’s argument that the increasing “diversity” of American society will create increasingly dicey disputes over who qualifies for special preferences, Barone concludes:

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 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 else