I. Today's Reality
I do not quarrel that our notions of diversity have unquestionably evolved over the last century and a half. For example, in 1854 the California Supreme Court stated in People v. Hall that the Chinese were "a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown." Sadly, there was but a single dissent from that view.
In 2010, then-Governor of California, Arnold Schwarzenegger, signed legislation authorizing the University of California to award honorary degrees to former students of Japanese ancestry whose studies were interrupted by internment during World War II. California's notions of diversity have thankfully progressed since People v. Hall.
It is then perhaps tempting, if not facile, to claim today that the pronouncements of People v. Hall and Plessy v. Ferguson are outdated, discredited, and behind us. Foreshadowing Chief Justice Roberts' assertion that "conditions . . . have dramatically improved," Judge Noonan in a 2011 Ninth Circuit opinion, Darensburg v. Metropolitan Transportation Commission, described well-documented and persistent racial disparities in the allocation of funds for mass transit in the Bay Area as involving "hopelessly outdated" racial categories.
Despite the temptation to believe that we have reached a point in our history where race and other statuses no longer give rise to discrimination, one is left with the disquieting feeling that in many respects, things have not changed or improved all that much. Moreover, it is plain that discrimination and its cure have many moving parts.