"As one expert in an amicus brief supporting the plaintiffs pointed out, the 'Hispanic' or 'Latino' category lumps together such varied groups as Argentinians, Cubans, Mexicans and immigrants from Spain. 'Asian Americans'' include racial and ethnic groups that cover more than half the world’s population, such as Chinese people, Indians and Filipinos, among others. Such distinct groups as Arab Americans, native-born white Protestants and recent immigrants from Bulgaria are all classified as 'white.' 'African American' combines native-born Black Americans with immigrants from Africa and the Caribbean. Needless to say, these groups have vastly different histories. Lumping them into a few crudely defined categories makes a mockery of the idea that universities are genuinely pursuing diversity as opposed to engaging in gross stereotyping. Perhaps even worse, the diversity rationale could be used to justify all kinds of racial and ethnic preferences.... For many schools, however, the diversity rationale for racial preferences is likely a smokescreen for the real purpose: compensating minority groups that are victims of long-standing discrimination, particularly African Americans. This justification, which has largely been rejected by the Supreme Court, is much more logically compelling than the diversity theory."
Writes Ilya Somin at "Supreme Court affirmative action cases challenging Harvard, UNC policies are overdue/The Harvard suit features extensive evidence that the school’s admissions system discriminates against Asian American applicants" (NBC News).
Somin says he has has "considerable sympathy" for the alternative rationale, but it's hard to imagine the Supreme Court switching from diversity to compensation for past discrimination, which it rejected as a basis for affirmative action long ago (in the 1970s).
[T]o my knowledge I was the only Russian Jewish immigrant in my class at Yale Law School. Would 'diversity' justify Yale using ethnic preferences to make sure there was another the following year?
The words "make sure" load that question, but I think — as someone who has served on my law school's admissions committee many times — that it would be perfectly fine to read an applicant's file, find yourself on the line between yes and no, see that this person is a Russian Jewish immigrant, and go with yes. And that yes would be based on what the current doctrine requires — a prediction that this person's contributions will be beneficial to the class as a whole. It would not be based on the idea that Russian Jewish immigrants have been discriminated against in the past.
How could I possibly assess all the various harms of the past and funnel the urge to compensate into this one applicant? There's no expertise to defer to. With diversity, there is a notion, however hazy, that the school's file-readers have some special intuition about putting together a good student body and making the classroom lively and full of challenging viewpoints. There's a mystique, a magic, a black box that the Court can decide to leave closed. I know many of you are scoffing at that box. But the easiest answer is to leave it closed, not to move to another rationale for affirmative action.