Brief Followup on Post on Hispanics and Affirmative Action after Fisher

I’ve said most of these things in previous posts, but judging from the comments, memories are short (and we get a lot of new readers the last week of the Supreme Court term), so let me reiterate: (1) I think private universities should be free to have whatever affirmative action policies they want, for whatever reasons they want [though I'd greatly prefer transparency to obfuscation--current law virtually requires obfuscation, as done many schools' remarkably bad record at ensuring that their affirmative action admittees succeed]; (2) I think the diversity rationale for affirmative action is incoherent, and the examples I gave in my post suggest why. Because it’s incoherent, it shouldn’t satisfy strict scrutiny as required in Fisher, even though Justice O’Connor decided it does in Grutter. But I would still let private universities use this rationale if they so desired; (3) I think the “social justice” rationales for affirmative action–to redress past and current discrimination, but also to ensure that “out” groups have a place at the table, so to speak, because in-groups are prone to ignore their concerns unintentionally or otherwise, has some merit, especially with regard to African Americans. It also has the virtue of limiting the potential categories of groups that can seek affirmative action, which could prevent development of a broad ethnic spoils system. Unfortunately, the Supreme Court has ruled such considerations out as a justification for affirmative action; and (4) I think that some subgroups of the Hispanic population (among others) may very well qualify for affirmative action under the social justice rationale, but (5) it makes little sense for that purpose to give preferences to someone who is for all but affirmative action purposes white, but whose ancestors happened to speak Spanish.

UPDATE: Unlike Ilya, I also think that ten percent plans and the like are perfectly constitutional, for reasons I’ll explain in a future post.