The Volokh Conspiracy
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Chief Justice Roberts in SFFA: "Hispanic" Is an "Arbitrary or Undefined" Classification
In the SFFA affirmative action case, Chief Justice Roberts for the majority, Justice Thomas, concurring, and especially Justice Gorsuch, concurring, argued that in addition to other legal defects in the defendants' affirmative action programs, the classifications used they used for "diversity" purposes were not properly tailored to serve the schools' interest in diversity.
Some of this discussion, especially in Gorsuch's opinion, came directly from the amicus brief filed on my behalf by Cory Liu. Undoubtedly, I'll have more to say about this in the future.
For now, though, I wanted to note Roberts' language. He wrote:
It is far from evident … how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.
For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as "Hispanic," are arbitrary or undefined. [citation omitted] And still other categories are underinclusive. When asked at oral argument "how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt," UNC's counsel responded, "[I] do not know the answer to that question."
Note the bolded language. I don't know whether Roberts thinks "Hispanic" is an arbitrary classification, an undefined classification, or both. But it strikes me that this language isn't getting the attention it deserves. The Supreme Court essentially held that "Hispanic" is a presumptively illegitimate classification, yet it's used all the time. I would have thought that would be big news.
UPDATE: It's irritating that the Justices continue to refer to the Hispanic classification as a "racial" one, even though it's been an ethnic, not racial classification, since it's creation in 1978. I've explained how this error came about, but in the interests of the sort of precision that Supreme Court opinions are known for, Hispanics are legally defined as an ethnicity who can be of any race. It's especially surprising that Roberts didn't get this right, because the fact that "Hispanic" is the only ethnic classification that is deemed a minority for diversity (and other) purposes strengthens the case for arbitrariness.
