That critique opens a new way to challenge racial discrimination in court. Lawyers and litigants who care about racial equality should take full advantage of it.
Genuine diversity means diversity of thought, culture, experience, religion, philosophy, and so on. The Supreme Court and colleges such as Harvard University and the University of North Carolina assumed that racial diversity was a good proxy for genuine diversity.
The thinking went something like this: Most people of a particular race share the same or similar experiences, thoughts, religions, and philosophies, so if colleges racially balance their student bodies, they’ll guarantee genuine diversity in their student bodies.
That changed in Students for Fair Admissions v. Harvard.
The high court found there was no relationship at all, ruling that the categories are “imprecise,” “opaque,” “overbroad,” “arbitrary,” “underinclusive,” and without a “meaningful connection between the means they employ and the goals they pursue.”
Consider who is included in each category. “White” includes people from Italy, Norway, Algeria, Israel, Iran, and Afghanistan. “Asian” includes 60 percent of the world’s population and groups together those from Pakistan, India, China, Japan, Korea, and Indonesia.
“Hispanic” includes anyone who comes from a country once colonized by Spain (but not Portugal). And “black” includes dark-skinned people from Africa but not from other places, such as Australia and Melanesia.
Under these categories, an Israeli Jew provides the same contribution to diversity as an Iranian Muslim and a Swedish Christian. A Chinese farmer provides the same diversity as an Indian computer scientist. A Spanish monarchist provides the same diversity as a Venezuelan socialist.
And a wealthy African immigrant provides the same diversity as a poor black person from Harlem. An aboriginal Australian fits in no category, and so provides no diversity at all.
Each of those claims is patently absurd, of course, but if race is diversity, those are the conclusions that follow.
But now that the Supreme Court finally has gotten around to recognizing the obvious, it has opened a new way of attacking racial discrimination in all sorts of contexts. This is so because what the court recognized in the context of diversity is not limited to that context.
Put simply, if America’s racial categories are bad proxies for diversity, they may be bad proxies for other things too. And now, courts must consider that question.
Consider a common sort of case, one that challenges preferences for certain racial groups in government contracting. The logic behind them goes like this: The government has discriminated against people from certain racial groups in the past, so it must now give people from those groups a remedial preference.
As for Aleutians, the court was at a total loss as to why a hypothetical black victim of discrimination should have to “share this ‘remedial relief’ with an Aleut citizen who moves to Richmond tomorrow.” The court found the preference unlawful because it purported to give a remedy to a group that hadn’t suffered any harm.
This logic applies equally on two levels—the individual as well as the group. Thus, if some of the black contractors in Richmond today are also recent arrivals who never suffered discrimination, they aren’t entitled to the remedy even though they too are black.
With a growing population of African immigrants, an increasingly mobile population, and increasing rates of interracial marriage producing multiracial children, the odds that our categories don’t group together those who are actually alike in relevant ways are high and rising.
Make no mistake, however, in thinking that this newfound focus on the arbitrariness of racial categories marks some novel shift in the doctrine of equal protection.
If lawyers use it, then Students for Fair Admissions may mark not only the beginning of the end of racial preferences in university admissions, but the beginning of the end of racial preferences everywhere.
