Should Ted Cruz's children be eligible for affirmative action preferences in state universities?

|The Volokh Conspiracy |

[When Fisher v. University of Texas was decided by the Supreme Court on its first go-round in 2013, I wrote the commentary reprinted below for SCOTUSblog, with a more mundane title. Disclosure: Sen. Ted Cruz (R-Tex.) wrote the foreword to my new book.]

The same day the United States Supreme Court issued its opinion in Fisher v. University of Texas, the trial of George Zimmerman for the shooting of Trayvon Martin began in Florida. Since the shooting, pundits have debated whether Zimmerman, who has a white father and Peruvian mother, should be described as "Hispanic," "white," or "white Hispanic." Regardless, given his maternal heritage Zimmerman would clearly qualify for affirmative action preferences at elite colleges. [At the time, I received bizarre criticism from some law professors who suggested that I used the Zimmerman example to make Hispanics look bad. I think it should be clear from the next sentence why I chose Zimmerman, who was then in the news, to lead off the piece.]

The debate over how to categorize Zimmerman exemplifies ambiguities in Hispanic identity, and therefore leads to some interesting questions regarding the future of affirmative action. The Supreme Court's jurisprudence on preferences in university admissions began in the 1970s when affirmative action primarily involved African Americans, and discussion over how affirmative action impacts that group still dominates debate on this topic. But as I've noted before on this blog, Hispanics and not blacks are now the largest group who qualify for affirmative action preferences, and Hispanics were the primary beneficiaries of such preferences at the University of Texas, the defendant in Fisher.

As the debate over Zimmerman implies, Hispanic is not a racial category. And regardless of country of origin or racial heritage, all Hispanics are eligible for affirmative action preferences; indeed, the Grutter litigation suggests that it would be unconstitutional for a university to give preferences to some Hispanics but not others, because that would suggest that the university is acting from motives other than seeking diversity as approved by the Supreme Court.

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. For that matter, Grutter never explained why Hispanic should be considered an ethnic rather than just a linguistic category. After all, according to a recent Pew Foundation study fifty-one percent of Americans of Spanish-speaking heritage identify themselves by their family's country of origin, while just twenty-four percent use a pan-ethnic identify such as Hispanic or Latino.

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.

Grutter endorsed the University Michigan Law School's policy of trying to achieve a "critical mass" of students from minority groups. But even assuming some ethnic commonality among Hispanic Americans, some are recent immigrants from Spanish-speaking households, others have been in the United States for generations and speak only English. Some have only Spanish-speaking recent ancestry, while others, like George Zimmerman, may be from families of mixed heritage, and some in fact may self-identify as Hispanic even though they only have distant Spanish-speaking ancestry. Indeed, when Sonia Sotomayor was appointed to the Supreme Court, debate broke out over whether she or the late Justice Benjamin Cardozo, whose Sephardic Jewish ancestors fled Spain [and Portugal] hundreds of years ago, should be deemed the first Hispanic Supreme Court Justice.

Put another way, what commonalities do the Argentine child of German refugees from (or perpetrators of) Nazism, the child of Mexicans of indigenous ancestry whose first language is Mixtec, and the child who has one set of grandparents descended from the Mayflower and another set of mixed-race Puerto Rican grandparents who arrived in New York City in the 1930s have that create a critical mass of anything beyond a clumsy census category?

An alternate justification for affirmative action preferences is that they are necessary to redress the historical exclusion of minorities from mainstream American life. The Supreme Court has never endorsed this rationale, but if it did it would have to explain how it fits the situation of Hispanic Americans who do not have common racial heritage, and who mostly trace their families' immigration to the United States to the post-civil rights era.

The Supreme Court could allow universities to narrow the category of Hispanics eligible for affirmative action to members of particular subgroups that are doing relatively poorly economically or educationally. Attempting to help such groups is a plausible justification for preferences. But it would beg the question of why it's consistent with equal protection principles for state universities to grant these groups preferences, but not other underprivileged groups, such the descendants of Hmong refugees [who are categorized as Asians and therefore if anything discriminated against in university admissions], or, for that matter, Appalachian whites.

Any justification for government use of preferences will become more complicated as Hispanics become increasingly assimilated into American life. Currently, approximately thirty-six percent of Hispanics born in the United States marry non-Hispanics. In the not-too-distant future, tens of millions of Americans will have partial Hispanic ancestry. Will all of them qualify for government affirmative action preferences, and if so, why would it be consistent with equal protection principles to give a preference to a light-skinned American with one Colombian grandparent, but not to a dark-skinned American descended from Egypt's Copt minority?

There may be satisfactory answers to these questions, but it seems that few people are asking them, and are instead stuck in the traditional black/white paradigm. Fisher strongly reasserts that under the Equal Protection Clause state university racial and ethnic preferences must pass strict scrutiny, which in turn means that they must be narrowly tailored to achieve a compelling government interest. At some point, university officials will need to explain to the courts' satisfaction why giving admissions preferences to all individuals with Spanish-speaking heritage regardless of race and other potentially relevant factors, but not giving similar preferences to members of other linguistic and ethnic groups, meets that test.

[Note that Ted Cruz has one Euro-American parent and one parent from Cuba whose father was born in Spain. Cruz is married to a woman of European descent. Cruz's children would be eligible for affirmative action preferences at the University of Texas if they self-identify as Hispanic. Even if one buys the premise of "diversity as a compelling interest," how can this be considered "narrow tailoring"? FWIW, Cruz's position, as you would expect from a constitutional conservative, has been that the court should rule in Fisher's favor.]