Hispanics and Affirmative Action after Fisher

My commentary is up at Scotusblog. Here are the key paragraphs:

Hispanics can be the direct descendants of Spanish conquistadors, their indigenous victims, African slaves, immigrants from anywhere in the world, or any combination of these. Hispanics’ ancestors have come to the U.S. from any one of twenty-one very diverse Spanish-speaking countries, plus possibly Portugal, Brazil, and other countries, depending on exactly how the category is defined. So what exactly justifies singling out Hispanics for preferences, but not members of other groups?

In Grutter v. Bollinger, the Supreme Court took the racial and ethnic categories used by the University of Michigan Law School as a given, and never addressed why Hispanic ethnicity, but not other ethnicities, should count for affirmative action purposes….

In any event, the diversity rationale endorsed by Grutter fails to explain why a state university is permitted to give preferences to a Hispanic individual of European ancestry, or an American of Mexican descent whose family has lived in Texas since 1850 and is fully assimilated into American life, while denying such preferences to, say, a dark-skinned child of Arabic-speaking immigrants from Yemen. The one hundredth Hispanic admitted to a university freshman class as an affirmative action candidate would seem to add less ethnic or linguistic heritage diversity than the first Kazakh or Mongolian. Yet it’s permissible under Grutter to give only the former a preference to satisfy diversity goals.

Even though Hispanics are now the largest group that are eligible for affirmative action preferences, I’ve never heard a coherent explanation of why it satisfies equal protection standards for state universities to use Spanish-speaking ancestry, as such, as a proxy for “diversity”–if anyone has one, please explain in the comments. Consider this: if Mitt Romney’s grandparents had bothered to learn Spanish and conveyed that language to their son when they lived in Mexico, his five sons (and their children) could all claim to be “Hispanic” for affirmative action purposes.

In fairness, some universities have in the past more defensibly limited their Hispanic preferences to members of groups that have faced historical discrimination in the U.S. and that have underperformed economically and educationally. The district court in Grutter, for example, found that the University of Michigan Law School limited its preferences to Mexican Americans and mainland Puerto Ricans. That raises issues of its own (including the fact that it still could have included Romney’s family), but at least its coherent. The irony is that the upshot of the Grutter litigation seems to be that universities are on much firmer legal ground if they give preferences to all Hispanics, including Hispanics from countries like Spain, Chile and Argentina with primarily European populations and cultures, than if they pick and choose among them. The latter option would raise the possibility that the university is acting from social justice motives banned by the Supreme Court, rather than seeking “diversity” among broad, arbitrary census categories as approved by the Supreme Court.

After writing the Scotusblog piece, I wondered what would happen if instead of having a standard white plaintiff challenge affirmative action action preferences for minorities, as in Grutter and Fisher, a group of plaintiffs who could claim to add at least as much “diversity” as many Hispanics sued claiming that denying them preferences, while granting preferences to, say, the children of a physician from Spain or the grandchildren of Italian immigrants to Argentina, is entirely arbitrary and thus violates even minimal equal protection requirements. Examples of some potential plaintiffs could be members of Minnesota’s impoverished Hmong community, dark-skinned Yeminites, the children of Mongolian former yurt-dwellers, Yiddish-speakikng Hasidic Jews from impoverished and insular communities, and so on. Such a case would, at least, force both state universities and the Supreme Court to explain exactly what they mean by diversity, and why having an ancestor who happened to speak one particular romance language qualifies one as a diversity candidate.