Last fall, the U.S. Supreme Court heard oral arguments in the two cases challenging the legality of racial preferences in college admissions. Writing on Volokh Conspiracy, law professor David Bernstein points to a key question that no one asked: Why is “Hispanic” a racial category meriting preferences?

Bernstein writes, “I expect if counsel for the universities had been asked how they can defend, contrary to federal law, treating “Hispanic” as a race, the first response would be stunned silence, because universities have never even thought about that issue.”

I think he’s right — academics and lawyers who favor continuing preferential admissions just assume that the system of preferences that has emerged over the past 50 years is good. They concentrate on trying to impugn the motives of anyone who questions it, not on the intellectual coherence of their project.

He continues, “One could argue that Hispanic is a special classification, because many Hispanics are dark-complexioned, and thus have experiences not common to other ethnic groups. But then what of, e.g., Arab Americans, Armenian Americans, Persian Americans, or Berber Americans? Hispanics, one might argue, face discrimination that other ethnic groups do not. But can one plausibly argue that Arab and Iranian Americans, especially those who are identifiably Muslim, have not faced discrimination not common to those with whom they share the “white” classification?”

Such a query would have really made Harvard and UNC squirm.

Bernstein has written an illuminating book on the history of racial classifications in the U.S. entitled Classified. It’s well worth reading.