As the majority justices show, the “diversity” rationale is so full of holes that it can’t possibly pass muster under the “strict scrutiny” imposed on the use of racial classifications, a standard that says such preferences are only permissible to advance “compelling” interests, and even then only if “narrowly tailored” to the advancement of those interests. The racial categories into which Harvard and UNC divide up applicants (black, white, Latino, Asian, etc.) are extremely crude, indeed. As Gorsuch pointed out, the “Asian” category “sweeps into one pile East Asians (e.g., Chinese, Korean, Japanese) and South Asians (e.g., Indian, Pakistani, Bangladeshi), even though together they constitute about 60% of the world’s population.” The other categories are not much better. WASPs, Jews, and immigrants from Bulgaria and Sweden are all equally “white.” “Latino” includes people from a vast range of nations and cultures. The “narrow tailoring” required by strict scrutiny surely compels a far more nuanced assessment. …

The crudeness of the racial and ethnic categories used by Harvard and UNC also undercuts Justice Ketanji Brown Jackson’s dissenting opinion, with its otherwise powerful appeal to the historic disadvantages faced by black people. She is right that black people are on average worse off than white people on various social and economic dimensions and that the legacy of slavery and discrimination is a large part of the reason why.

But even if black people are worse off, on average, that doesn’t mean that all or even most black applicants to elite institutions like Harvard and UNC have suffered greatly from discrimination. Many are relatively affluent members of the upper-middle class. Many others are recent immigrants from Africa or the Caribbean or children thereof. The same point applies to Hispanic beneficiaries of preferences, many of whom are also recent immigrants or children of such.

[The use of “diversity, equity, and inclusion” as an excuse for discriminatory conduct is clearly at an end. That doesn’t mean that DEI advocates will simply melt away; they will push those outcomes in other ways. The problem that Somin makes clear is that there are no ways around the fact that DEI is itself discriminatory and therefore subject to the same issues as SFFA v Harvard exposed. — Ed]