Strange Response from “A Group of Latino/a Law Professors”

A self-described “group of Latino/a Law Professors” has published a strange response to my commentary on Hispanics and affirmative action after Fisher, published on Scotus blog, noted by me here, and followed up yesterday.

Why strange? Because the response has very little to do with my post. My post, being commentary on a Supreme Court case and not general musings on affirmative action, primarily was about whether using the the broad category of “Hispanic” makes sense under the diversity rationale endorsed by the Supreme Court in Grutter and left undisturbed by Fisher. I noted that “Hispanics” are an extremely heterogeneous group, including many people who by just about any measure other than affirmative action categories are considered to be white, such as descendants of immigrants from Spain, Sephardic Jews, Argentines of Italian descent, and so on.

Let’s recall that diversity is the ONLY rationale for affirmative action [preferences in universities] endorsed by the Supreme Court. A state university that relied on a “social justice rationale,” such as the desire to remedy past and present racism, would clearly be acting illegally under current law.

So I’m surprised to find that the professors’ response doesn’t address the diversity rationale at all. Indeed, the word “diversity” doesn’t appear in their response–perhaps because some of the signators have themselves been strong critics of this rationale.

Instead, the professors entire commentary is devoted to a defense of the notion that affirmative action for Hispanics is justified for “social justice” reasons: “The negative stereotypes and rampant discrimination create barriers across our society and in particular in the educational context impediments that affirmative action seeks to address….. Affirmative action attempts to remedy racism…. Affirmative action seeks to repair the ongoing harms directly attributable to past racism, and also responds to continuing discrimination and stereotyping.”

I did address the point, but only in one short paragraph: “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.” There was no need to say more about this, because, again, it’s not a lawful justification under Grutter and Fisher, so it’s only tangential to a commentary on Fisher.

While I implied a certain amount of skepticism about whether this rationale could be properly applied to all Hispanics, I didn’t discuss it any detail and didn’t take an ultimate position on the matter. I’ve also noted in the past (indeed, as recently as yesterday, leading various readers to criticize me in the comments as an apologist for affirmative action) that, like co-blogger Ilya, I have much more sympathy with compensatory justice rationales for AA than for diversity argument. And in my Scotusblog commentary itself, I suggested that attempting to aid certain Hispanic groups that are struggling economically and educationally is a “plausible justification for preferences.”

All of which leads me to wonder what “fallacies,” indeed “innappropriate fallacies” the professors are referencing.

To the extent the professors and I have a clear substantive disagreement, it’s over whether, regardless of rationale, “Hispanic” is an overinclusive category for affirmative action. The professors assert that “we may all look different, have different cultures, linguistic abilities, and histories, but U.S. society tends to lump together all ‘Hispanics’ and often negatively stereotypes us as a result.” Let’s take my previous examples–descendants of immigrants from Spain, Sephardic Jews, and Argentines of Italian descent–and let’s add someone who looks and sounds “middle American” but happens to have one Cuban grandmother. Perhaps I’m mistaken, but outside university admissions offices, I don’t think people generally lump Julio Yglesias’s grandchildren, Pola (which she spells as Paula in the U.S.) Mazzilli from Argentina, Benajmin Cardozo’s distant cousins, and John O’Malley of Topeka with each other, or in the same category as the broad population of Mexicans, Central Americans, and others.

Indeed, I note that the professors refer to themselves as “Latino/as”, not as “Hispanics” intentionally excluding from their group at least the Yglesiases and Cardozos, who nevertheless qualify as “Hispanic” for admissions and other affirmative action purposes, so long as they self-identify as such. And it’s unclear to me why Benjamin Goldberg, whose grandparents fled Nazi Germany to Washington Heights in 1938 doesn’t qualify for affirmative action, but Benjamin Goldberg, whose grandparents fled Nazi Germany to Cuba in 1938, and then fled Castro in the 1960s, does. These and kindred examples may reflect only a small percentage of the Hispanic population, but anecdotally are a far greater percentage of the pool of “Hispanic” candidates for admission at elite universities–in part precisely because they don’t face the sort of barriers the professors identify as facing Latinos as a group. [UPDATE: A plausible response is that “Hispanic” is an imperfect category, but “good enough” for the relevant purpose. The question would then arise as whether with regard to public universities, “good enough” is sufficient to satisfy the narrow tailoring requiring of strict scrutiny.]

But all that aside, and though I think the professors largely talked past me this time, I welcome this discussion. As I’ve consistently noted, discussion of the pluses and minuses of affirmative action preferences typically only references African Americans, who now constitute only a minority of the intended beneficiaries. In areas like government contracting, where Native Americans, Asians, and Hispanics are all eligible for affirmative action, African Americans are a significant minority of those eligible, and may be an even smaller minority of those who benefit. In Fisher itself, far more Hispanic applicants were eligible for preferences than black candidates. So for supporters, critics, and those in between, the debate about the future of affirmative action, whether constitutional or otherwise, must go beyond the black-white paradigm that has dominated discussion for decades.