In 1975, the Brothers Malone took the entrance exam for the Boston Fire Department. At the time, the Department was under a court-ordered affirmative action plan: it divided its pool of test-takers into groups of black and white applicants and gave substantial preference to those in the former. The Brothers listed themselves as white and didn't make the cut. In 1977, the Brothers Malone again took the entrance exam for the Boston Fire department, this time listing themselves as black. The Brothers became firemen. Within a few years, someone at the Fire Department grew suspicious of the Malones. An investigation ensued. The Department determined that the Brothers had falsified their applications. Eventually a Suffolk County Judge was forced to decide whether the Malones were black or white. Judge Herbert Wilkins found them white.
This Essay argues that squeamishness about deciding people's race can explain some otherwise baffling trends in affirmative action jurisprudence. The Supreme Court's fear of letting government agencies decide, as a factual matter, the race of individual students may explain its odd and seemingly inconsistent reluctance to use race as a factor in admissions. Part I discusses various legal strategies for adjudicating race and why we may be uncomfortable with them. Part II argues that Gratz v. Bollinger and Grutter v. Bollinger can be explained through the lens of the Malones, using the Fifth Circuit's reading in Fisher v. The University of Texas, the challenge to Texas's affirmative action program heading to the Supreme Court this term. Part III proposes a new reading of Grutter — arguing that Grutter serves to protect a school's right to select students on nonracial grounds — and suggests some implications for the program at issue in Fisher.