On Spanish people and affirmative action

|The Volokh Conspiracy |

I've always wondered why no one has challenged government ethnic/racial preference programs on the grounds that the categories used by the government are incoherent. Why, for example, do light-skinned people whose ancestors came to the U.S. directly from Spain qualify for affirmative action, but darker-skinned Arabs, Greeks, Turks and so on do not? It turns out that there is an Eleventh Circuit opinion on this very issue, Peightal v. Metropolitan Dade County, 940 F.2d 1394 (11th Cir. 1991). Unfortunately, in upholding the use of the very broad "Hispanic" category, the court ultimately failed to address why, given strict scrutiny that's applied to racial and ethnic classifications, a program that includes people of purely European descent while excluding darker-skinned non-Europeans is even rational, much less how it is narrowly tailored to serve a compelling interest:

The crux of Peightal's argument on appeal is that the Plan is both over-and-under-inclusive in its preferential treatment of Hispanics. Peightal maintains that the Dade County minority preference program is over-inclusive because it favors white European Spaniards with no significant cultural or linguistic discernability from non-Hispanic white persons. In addition, Peightal argues that the Plan is under-inclusive because the class of persons qualifying for preferential treatment as "Hispanics" fails to include other national and ethnic groups that are susceptible to similar discrimination.
The EEOC definition of "Hispanic," as applied by Metro Dade, includes: "All persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race." Peightal asserts that this definition is over-inclusive because it includes persons who can trace their ancestry to Spain, irrespective of language or culture, but would preclude favorable treatment to persons with Portuguese heritage, for example. According to Peightal, since white European Spaniards with no visibly discernable "Hispanic" characteristics have not been subjected to past or present discrimination, it violates the narrowly tailored prong of the strict scrutiny prong to include them in the favored group called "Hispanics."
While it may seem anomalous to grant employment preferences to a light-skinned descendant of Spanish grandparents who speaks no Spanish and has no individual cultural ties to an American Spanish community or to Spain, (while denying such preferences to the Portuguese-speaking offspring of Portuguese parents), such a situation would not arise under the Metro Dade Plan, because the Plan adopts the EEOC requirement that a person's claim of identification with a certain racial or ethnic group "should accompany strong visible indication that the person culturally and linguistically identifies with the group he or she claims." (emphasis in original). [NOTE: Federal preference programs, which include people of Spanish and Portuguese origin in the "Hispanic" category, have no such limitations.]
As for the Plan's alleged under-inclusiveness, Peightal argues that it excludes, and therefore discriminates against, members of European national origin, Middle Eastern national origin, and Slavic/Russian national origin, while benefitting those of Spanish origin. Peightal claims that Greeks, Italians, Portuguese, Jews, Israelis, Iranians, and others, are all culturally and linguistically discernable and subject to discrimination in the work place as a result of their ethnic characteristics. However, since these groups are not benefited by the Department's minority preference program, Peightal argues that the Plan is therefore unconstitutionally under-inclusive.
However, it is well established that the Equal Protection Clause does not require public employers to institute affirmative action goals for each and every ethnic group that may exist in a community. In adopting an affirmative action plan an employer may rationally limit its application to those minority groups in the local work force that are most in need of remedial efforts.

I am currently working on a related project, and have learned that how the "Hispanic" category was invented is rather arbitrary. The short version is that "Chicanos"(Mexican Americans) and Puerto Ricans, being dark-skinned (and thus suffering race discrimination) and having poor socio-economic indicators, were analogized to African Americans. When Nixon became president, he demanded that Cubans also be included, because they vote Republican. The early wave of Cuban immigrants primarily looked, and thought of themselves as, "white". And once white Cubans of primarily European origin were included in affirmative action programs, the relevant category could not reasonably exclude anyone else of "Hispanic" origin.

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  1. David might as well be studying Martians, so alien is he from the subject matter.

    Another example of why this site suffers from being all-white. David apparently doesn’t even know any Hispanics that he can talk to. They might not change his ultimate conclusions but they would at least save him a lot of time.

    1. Hilarious, because I have some very close relatives with Sephardic ancestry, who therefore are “Hispanic” under federal rules.

      1. There is even a federal court ruling, Bennun v. Rutgers State Univ., 941 F.2d 154 (3d. Cir. 1991), and a federal Small Business Administration administrative ruling, Rothschild-Lynn Legal & Fin. Serv.s, No. 499 MSBE-94-10-13-46 (Apr. 12 1995), affirming that Sephardic Jews are “Hispanic” for purpose of both federal civil rights law (Bennun) and affirmative action (Rothschild-Lynn).

        1. I don’t think that that’s what captcrisis meant.

          1. He means Mestizos.

            Its the Indian ancestry that makes a person Hispanic in the minds of left racists.

          2. If that’s not what he meant, then the entire point of the post, which is that “Hispanic” under federal affirmative action law includes anyone of Spanish descent, blew right past him.

      2. If that’s the closest you get then it’s a very, very attenuated connection. Jews were kicked out of Spain in 1492 so your relatives don’t even have any Spanish speaking ancestors, going back probably twenty generations.

        My point is, Why don’t you ask some actual self-identified Hispanic people about these classifications? They will tell you a great deal that will probably surprise you. Do you know any? If only the ones you give orders to (waiters, maids, etc.).

        My wife is a dark-skinned Hispanic and she has opened my horizons a good deal insofar as tolerance goes . . . but having grown up in an all-white town, hanging out with her and her family has given me a lot of insight into how Hispanics regard themselves, white people, black people, and other Hispanics.

        1. Given that Sephardic Jews are absolutely considered “Hispanic” under federal law, they have as much to say about the classification they are included in as anyone else. You are trying to draw a distinction between “authentic” Hispanics who suffer discrimination and “attentuated” Hispanics, and the very point of the post is that no such distinction is made in the law.

          1. (And btw, your assumption that I don’t interact with “Hispanics” otherwise wildly mistaken. Kids attend schools that are 40% or so “Hispanic”, and many of their and our friends are such.)

          2. “Given that Sephardic Jews are absolutely considered “Hispanic” under federal law, they have as much to say about the classification they are included in as anyone else.”

            Regardless of what federal law has to say, do they consider themselves “Hispanic”?

            1. When they’re looking for preferential treatment in school admissions, employment, etc., I would assume so.

        2. Okay, done. They think these classifications are incoherent too. What’s your point?

          1. I don’t think he has a point. I do however believe that he missed the entire point of the post.

        3. Damn, this is really close to “No true Spaniard is a Jew!” Thanks Torquemada, glad to see you stuck around. Torture any crypto-Muslims today.

        4. Ladino is the Spanish equivalent of Yiddish, and there are still a few hundred thousand speakers. There are lots of Sephardim in Latin America who speak Spanish even now. Sephardic culture still exhibits notable Spanish influence, even for those who mainly speak Hebrew, French, or English.

          Besides, the Decree of Alhambra, when the large part of Sephardim were dispersed, was proclaimed in 1492. Twenty generations of Sephardim is about 500 years ago, around 1520. I’m willing to bet they had ancestors speaking Spanish at that time.

        5. Captcrises’ debating skills are just devastating. His argument boils down to “Everything Bernstein says is wrong because my wife is Hispanic”.

          I can’t wait for Bernstein to post on the Harvard Asian discrimination lawsuit to unfurl my special insight because, wait for it, my wife is Asian.

          1. You found an argument in there? I missed any actual “argument” entirely.

      3. This article reminded me of a classmate long ago; his parents were Cuban refugees, his name was a long string of Spanish words, but he was red-headed with very white skin that freckled and sun-burned instead of tanning, and he had no accent. His father was a doctor and making more than my college professor father. (I don’t know how an immigrant got his medical license to carry over; they might have struggled for years while he repeated much of his training, but it didn’t show when I first met him.)

        But if Sephardic Jews are considered Hispanic, then I guess I had another “Hispanic” classmate – that is, I assume his family were Sephardic, since all of them could easily pass for Arabs. But his father was also a doctor, and everyone I knew considered them white Americans. If there was any prejudice against them (no one ever expressed any to me), it was because of religion, not color.

        What holds most Hispanics born in the USA back isn’t their color, their accents, or even their names; it’s their lack of desire for education. But these two families valued education more than most of the Anglos in our town.

    2. I think we have here BDS, Bernstein Derangement Syndrome, a hitherto-unknown variant of Trump Derangement Syndrome. Someone so unhinged by the mere existence of David Bernstein as to be incapable of simply not reading his articles.

  2. “I’ve always wondered why no one has challenged government ethnic/racial preference programs on the grounds that the categories used by the government are incoherent. ”

    I assume that’s because, if you favor this sort of government sponsored racial/ethnic discrimination, you don’t care whether it’s “coherent”, and if you oppose it, the fact that it’s government sponsored racial discrimination strikes you as rather more important, since the Constitution doesn’t actually mandate that the government’s policies be “coherent”.

    1. Wait! Has anybody thought to ask if the leave-outs are a sizable voting block anyone should worry about?

    2. Nah, what you need is an official government policy that holds up the 30 paint shades from pure white to brown to black from Home Depot next to each individual person, and assigns them a number based on the shade of their skin.

      Then, specific preferences are granted to people with darker skin, in order on the paint cards. The darker the skin, the more preferences.

      Then watch the lawsuits come and the judgements that try to twist in a pretzel.

      1. So I could move up several points in the preference scale just by spending more time in the sun? I’m an extreme case – pasty white, but I tan quickly, and a few days at the beach will turn all exposed skin dark brown. But Native American farmers are considerably darker in the face than under the chin, and I think most Hispanics, Asians, and Mediterranean peoples are capable of tanning several shades darker than they are by birth.

        So would this plan give an advantage to outdoors workers – and to those rich enough to loll around the beach all day? Or would dropping pants be required for the inspection to try to find un-tanned skin?

    3. When the Supreme Court said an incoherent argument that passes constitutional muster is preferable to a coherent argument that is facially unconstitutional, for at least the next 25 years, then they threw in the towel on coherence.

  3. So the give preference to people Spanish origin, but not Italian? Yeah, that sounds rational.

    1. The racial insult “dago” which is anti-Italian now was invented by the British to describe the Spanish.

    2. From Peightal, affirmative action is based on people who have “been subjected to past or present discrimination.”

      Since Italians, Irish, Jews, and Germans (probably some other groups) aren’t entitled to race-based affirmative action it follows that these groups were not subjected to past or present discrimination.

      Presumably this makes sense to someone.

      1. The “been subjected to past or present discrimination” is an argument that Peightal made, but which the court rejected. Peightal was arguing that it was over-inclusive because the rule permitted people who were not visibly Hispanic to claim access to the program, and for that reason it was not sufficiently narrowly tailored. The court pointed out that the EEOC rule at issue applied only if the ethnic group claimed “should accompany strong visible indication…” that the person identifies with a group he or she claims.

        I agree that the EEOC rule doesn’t make much sense, but I’m not sure Peightal’s argument (or your argument) follows logically from the rule.

        1. The language of “past or present discrimination” does not arise from Peightal’s fevered imagination, it comes from the US Commission on Civil Rights’ Statement on Affirmative Action from 1977 (p. 2, second paragraph).

          Nor is it a standard that has escaped Supreme Court notice – see, e.g. Fullilove, Wygant, and Metro Broadcasting. The court has held that “past discrimination” can be a compelling government interest sufficient to overcome strict scrutiny of racially discriminatory laws.

          Obviously you’re correct: just because Congress creates a remedy for Group A who suffers from Y, it is not unconstitutional for Congress to refuse to provide the same remedy for Group B members who also suffer from Y. But it should inform members of the public to look beyond “Y” to figure out the real difference between groups A and B (as with most political issues, look at how groups A and B vote).

  4. There are also people considered Hispanic for being South American but are entirely of Italian, Portuguese or even German descent (Argentina, Brazil, Venezuala primarily).

    1. Though there is one case from New York denying someone of Italian Argentine origin the “Hispanic” categorization on the grounds that with no Spanish ancestry, he wasn’t Hispanic. Look for a blog post on that case in the future.

      1. “on the grounds that with no Spanish ancestry, he wasn’t Hispanic”

        Huh. Does that mean that people from Latin America of entirely Indian origin don’t count either?

        1. Logically, yes. Though that wasn’t an issue in the case.

        2. Maybe they’d have to be a member of a federally-recognized tribe.

          All I really know is that life would be a lot simpler if the government actually ignored race altogether. I don’t think anything will ever rid the world of racists and bigots; but at least they couldn’t practice it with the shield of government jobs.

        3. Normally they don’t. They often or usually (depends on area) don’t speak any Spanish (or Portuguese) and don’t really participate in the national culture. Many aren’t even Christian, unlike almost everybody else in LA until just recently. The reason the question hasn’t really come up on the legal definition for them is that a result of them being isolationist and tribal is that they don’t end up coming to the US needing legal assistance.

    2. I knew a Brazilian who was considered Hispanic whose ancestry was entirely Scandinavian. His four grandparents had immigrated from various Scandinavian countries. He and his parents were born in Brazil which is in South America; they spoke Portuguese.

      Closer to home: My white (Spanish-generic UK DNA) grandmother was born in Cuba to a Cuban mother (of Spanish and Basque ancestry) and immigrant of UKish ancestry father. My grandmother moved here at the age of 15. She married an American of Irish origin but moved back to Cubawith her kids during the depression. My mostly Irish-DNA US citizen dad spent half his childhood in Cuba. Then he moved back married a mostly-mixed-UK ancestry American…. Being comfortable in Latin America, he took jobs in Latin America my sister and I were born in El Salvador, the other one in Guatemala.

      “The EEOC definition of “Hispanic,” as applied by Metro Dade, includes: “All persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race.”

      We could certainly claim “Cuban origin” through our grandmother. Or “Cuban culture” through our father. Or “Central American origin” by virtue of birth. My sisters (but not I) speak Spanish. We all look mostly Irish, English or Scots.

      We are NOT what people considered “Hispanic” when they are thinking of people who should be given preferences due to any sorts of slights or slurs that might have arisen as a result of our appearance. But the definition appears to include us, and we sort of do think of ourselves as Hispanic, the same my husband considers himself “Swedish and Polish”.

      1. “… or other Spanish culture or origin…”

        So, no Portuguese? And thereby, no Brazilians?

        1. Uhmmm…. Brazilian citizen born in Brazil. Born to Brazilian citizen parents, also born Brazil. He’s as Brazilian as someone born here is American. There’s no rule saying only people of Portuguese descent are Brazilian.

        2. No Portuguese, but Brazil is still in South America.

      2. “We are NOT what people considered “Hispanic” when they are thinking of people who should be given preferences due to any sorts of slights or slurs that might have arisen as a result of our appearance.”

        There are people who will reject a resume from a person with a Hispanic-sounding name, without ever getting a chance to actually meet you. So looking “white” isn’t quite a perfect shield. The same is true for other “ethnic” names.

        1. So black people are less likely to experience this than Armenians or Slavs.

    3. “There are also people considered Hispanic for being South American but are entirely of Italian, Portuguese or even German descent (Argentina, Brazil, Venezuala primarily).”

      I may have heard of one of those guys. He’s in Europe now.

      1. What about the ca-WWII Germans (the baddies and the rest) who immigrated to S. America?

        Why should their children (who are born in S. America and thereby are ‘hispanic’) be given special treatment?

        1. There’s also the Brazilian Confederados, descendants of Lost Cause survivors who fled to Brazil and whose descendants are still there.

          https://www.historynet.com/the-confederados.htm

          Suppose some of these people come to the U. S., their ancestral homeland – they’ll have a racial edge over the white descendant of a Union soldier.

          1. Unless of course they’re excluded from affirmative action because they’re portugese-descended.

            1. OK, the Census wanted to classify Portugese as hispanic back in 2013, but I don’t know how far that went:

              https://www.washingtonexaminer.com/are-portuguese-hispanic

              1. Well, they must! Because Tom Hanks, Keanu Reeves, and Katy Perry all need protecting!

              2. Under federal law, “Hispanic” includes Portuguese descent for affirmative action purposes. Some states exclude Portuguese (and some Spanish from Spain as well), and a few put it in a separate category from Hispanic, but still use it for affirmative action.

                1. Thanks, I was confused for a minute.

                  So people of Confederado descent *are* protected?

  5. … There’s also some irony about protecting descendants of Spain, a country with a heavy hand in bring slaves to the Americas.

    1. I wonder if there’s any relation between AOC and that other Cortez?

      1. Oh, indeed: She can trace her lineage to a noted slaver…..

      2. She does look like she’s firmly of 100% European descent. Light skin and round (crazy) eyes and all.

    2. Their ancestors were enslaved by the Romans.

  6. FYI typo “dissent” should be “descent”.

    1. Totalitarianism?

  7. The column should be circulated by local papers across the country.

    Also, just the tip of the DNA so to speak.

  8. “should accompany strong visible indication that the person culturally and linguistically identifies with the group he or she claims.”
    How strongly? Do I need to wear a poncho and sombrero when applying? Do I need to speak Spanish or only have an accent? Forget it. I’ll just send my wife. She can pass as not white.

    1. Do I need to wear a poncho and sombrero when applying?

      That’s funny.

    2. You need a bag of Fritos. That should cover it.

    3. Try snappy serapes.

  9. Part of the problem may derive from the point that the people who target others for discrimination, demonization, exclusion, and/or violence in America — as the Irish, Jews, blacks, Italians, agnostics, women, Asians, Catholics, gays, Hispanics, eastern Europeans, Muslims, other Asians, atheists, other Hispanics, and others have been afflicted in successive waves throughout American history– tend to be relatively haphazard in defining their targets.

    To the bigot, looking like an Italian, or a Jew, or a homosexual has often been enough to qualify for abuse.

    The good news is that the bigots generally do not win in America, at least not over time.

    1. I may have missed your defense of the affirmative action policy of including white Spanish-descended people but not Greeks or Italians. Could you review the benefits of this policy and explain why it makes sense?

      1. The policy of including white Spanish-descended people but not Greeks or Italians originated in Congress. The benefits of this are clear:

        1) It won Hispanic – especially white Cuban – votes for certain politicians, helping keeping the powerful in power.

        2) Using government power to make arbitrary and nonsensical decisions enhances the power of the decision makers when others come to beg for the playing field to be tilted their way.

        Your mistake was thinking that the benefits of government policy should go to the governed rather than the governors…

    2. The good news is that the bigots generally do not win in America, at least not over time.

      Well, it’s good news for us, Artie–but is must really suck for you.

      Your entire ideology depends on convincing the people you look down on that they can’t do anything without the approval of the White Liberal.

      And they’re all starting to see what useless bags of crap you and yours really are.

      1. “And they’re all starting to see what useless bags of crap you and yours really are.”

        Are you predicting a reversal of fortune in the culture war? Are conservatives finally going to get to stop swallowing all of this damned progress?

        Or are you just engaged in more hapless right-wing whining and ranting while better Americans shape our progress against your wishes and efforts?

        I’m betting on the latter.

        1. A reversal?

          Why would I want a reversal? So that you all could completely drop the act and bring back slavery?

          The right is the side that worked to abolish slavery, the side that worked for female suffrage. The side that fought for civil rights. The side that fought against fascism.

          You are on the side that tried to keep humans as farm animals. The side that striiped basic human rights from whoever you could. The side that embraced fascism.

          Your heroes put American citizens in concentration camps. They lobotomized and sterilized them.

          You can lie to yourself and to everyone around you as much as you want–what happened is what happened, and you can’t change that.

          1. LOL. You make Humpty Dumpty proud.

          2. “The right is the side that worked to abolish slavery, the side that worked for female suffrage. The side that fought for civil rights. The side that fought against fascism.”

            You’re 0-4 in historical accuracy, but 4-0 in cultural appropriation.

        2. Waiting for your response to Eddy above.

  10. I am likely the whitest hispanic anyone will ever find, damned near nordic in appearance (at least when I was younger). But my parents were born in Central America, and our family can be traced to Spain, 12th century.

    The government in it’s wisdom(?) feels that I have something in common with a yanomami tribesman from the Amazon basin…not sure why that is or why either of us deserve, or even need, special consideration for, well, anything.

    1. “…and our family can be traced to Spain, 12th century.”

      When you go this far back, the entire experiment becomes absurd. All people with any European descent share ancestors from 1,000 years ago. If what you’re saying is true, we’re both descendants of Charlemagne.

      1. Perhaps but I prefer to think of myself as a descendant of King David.

  11. Affirmative Action was conceived in a society with a far simpler demographic composition. It cant possibly function in a truly multiethnic society unless it is cabined to the groups for which it was initially intended (Native Americans and blacks). Otherwise, every aspect of the civil service and much of the private sector will devolve into an ethnic spoils system

    1. Define “function” in this context.

      The original “affirmative action” program, (Not that it was called that.) was for the freed men; People who had literally been slaves, and then freed, and needed a hand up because they’d been treated like property their whole lives. But the last of those guys died quite a while back.

      Later came “affirmative action” which was touted as just going the extra mile to make sure you didn’t overlook any qualified black candidates, but otherwise remaining merit based. That version of affirmative action survived about 23 seconds encounter with reality, and almost instantly devolved into covert and even explicit racial quotas.

      That’s all “affirmative action” means anymore: “Quotas, but we don’t want to admit it.”

      And the only function it’s intended to have is buying votes.

      1. There is a challenge in assessing how people of different backgrounds can be measured against each other.

        If I’m assessing high school grades for admission to a competitive college (which means that there are more applications than the school can actually accept), should a student who got an A in AP calculus his senior year get preference over a student who got an A in Analysis and trigonometry in his senior year? Well, yeah, except… what if the second guy didn’t take AP calculus because he graduated a year early, and Analysis and trigonometry is a prerequisite course for AP calculus. Or maybe he went to a tiny little rural school which doesn’t have enough AP calculus students to offer the class.

        Fast-forward to the transition from academics to work, where the qualities that make someone good at the one don’t translate as well to the others. It’s easy to fall into patterns. Sometimes those patterns are good and helpful, and sometimes they are not. For example, lawyers are often judged by the law school they attended, rather than by their actual capabilities. Yes, The average Yale graduate is going to be more capable than the average (fill in the T4 school of your choice here). But not all candidates are average, and Yale admissions are highly competitive, and largely based on available measures of capability… but not exclusively so. So “playing it safe” and always going with the Yale grad, means overlooking some talented and capable candidates.

        1. The lack of value of high school grades and the wide variance in grading from school to school is why they invented standardized tests.

          1. Is it news to you that have the admission criteria for admission into law school is performance on a standardized test? When I mentioned “available measures of capability”, I’m talking about the LSAT.

            Or are you one of those people who thinks standardized testing is unbiased? It’s not.

            It’s difficult to predict academic success. It’s even more difficult to predict occupational success.

            1. Where you went to undergrad probably receives greater consideration than the LSAT score. When I applied to business school, I could not get into a top 10 program despite the fact that I had a perfect 4.0 GPA and was in the top percentile on the GMAT. I later found out that it was because I went to a second-tier school for undergrad.

            2. Unbiased? No. Less biased than grades? Hell yes. If you think the test is bad, change the test.

              Of all the people who were in my 1L class (section) who dropped out (which was 1/3 of the class) only one had a high LSAT for the school. And she left because she got offered a 100k+ position in her old industry.

    2. The fact that quotas are banned ensures that your worst case scenario won’t come to pass.

      Sure, some coarse graining is needed, but I hardly think that’s fatal to the concept of affirmative action.

      1. Banned in name only. They just can’t be called quotas, and must instead be called ”a holistic review for diversity’s sake.”

      2. That quotas are banned means, in practice, nothing more than that they have to lie about having quotas. As long as you have a goal you’re not allowed to fail to meet, you’ve got a quota, no matter what you call it.

      3. I consistently see advertisements for internships, scholarships, summer academic programs–some from government institutions–that are limited to “persons of color” or related euphemisms. That’s not just a quota, that’s a 100% quota. They are banned in theory, practiced in practice.

        1. I don’t believe internships, scholarships, etc. is what people talk about when they’re talking about affirmative action – they’re talking about admission requirements.

          Minority-specific scholarships are a whole ‘nother can of worms.

          1. Scholarships are gifts. Who gets them is up to the giver. I don’t believe there’s a statutory requirement that gifts be given equally.

          2. And yet, it was literally one of the things David was just talking about…

            1. And yet, that’s not what Max, to whom I was applying, was talking about.

          3. You think affirmative action only applies to admissions, but not to employment or financial aid? In fact, there was a Fourth Circuit case pre-Grutter saying that state universities could not lawfully have a scholarship limited to black people. Interesting, the plaintiff was half-Hispanic and half-Ashkenazi Jewish, and he initially argued that it was illegal to limit a scholarship to blacks but not to Hispanics like himself. In any event, affirmative action preferences have always been defined as any preference given to someone based on “minority” status.

            1. I could be wrong, but I was under the impression that the caselines under discussion are all about admissions and employment.

              Maybe there’s some case-law on financial aid/scholarships/special programs, but I don’t think it’s clear that the current Supreme Court precedent applies.

              I also think the policy questions are different, given how individualized scholarship program requirements can be.

      4. In theory Justice Powell’s “individualized consideration” where race is “but one of many factors” that may provide a plus is distinct from pure quotas. In practice, institutions need not make any showing that these other factors were utilized as “pluses” with anywhere near the same rate as race. When these factors do come into play they merely serve as proxies for race, roundabout quotas.

  12. “. . . the court ultimately failed to address why, given strict scrutiny that’s applied to racial and ethnic classifications, a program that includes people of purely European descent while excluding darker-skinned non-Europeans is even rational. . . .”

    Why should have the court addressed this since it wasn’t an issue in Peightal’s suit against the county about his rejection employment as a firefighter?

    1. “Stop, before you fight this fire I must know how many of you are of Spanish descent!”

      1. You laugh, but during the recovery efforts in New Orleans for Hurricane Katrina, FEMA Urban Search and Rescue Teams that deployed were required to endure (additional) equal opportunity and cultural sensitivity training before they could actually go…you know…rescue people.

        BTW, this also applied to the teams that were pre-designated as the ‘international deployment’ teams.

        Crap like that being more important than peoples lives…

        1. Sounds like they screwed up getting their people up to speed on existing training requirements, to me.

          Whether the bureaucracy should be better set up to make exceptions is another issue, but that’s not actually an anecdote about SJW’s taking over the government.

          1. Sounds to me like they prioritized something over actually helping people, which is Flight-ER-Doc’s point.

            Who had the idea of imposing “equal opportunity and cultural sensitivity” training requirements in the first place? That itself represents SJW’s taking over the government.

            1. “Who had the idea of imposing “equal opportunity and cultural sensitivity” training requirements in the first place? That itself represents SJW’s taking over the government.”

              My guess is someone who had experience with bureaucrats who hadn’t had “equal opportunity and cultural sensitivity” training.

          2. “Sounds like they screwed up getting their people up to speed on existing training requirements, to me.”

            That may or be the case, but so what?

            Bureaucrat 1: There’s been a hurricane and New Orleans is flooded! People are dying! Send the first responders immediately!

            Bureaucrat 2: Wait! I screwed up. The first responders haven’t had sensitivity training. They might offend the very people they were sent to rescue!

            Bureaucrat 1: Great. Now thousands of people will die because of your carelessness. Send them as soon as they’re trained.

            “…that’s not actually an anecdote about SJW’s taking over the government.”

            Yes, yes it is. Although I guess if you’re a bureaucrat maybe it doesn’t sound like one.

            1. Hidebound rule-following when you shouldn’t is the problem. It’s what bureaucracy is known for.

              Focusing on the specific rule is narrative building, but not actually the issue. Could have as easily been a rule about equipment checking, or financial training certification.

              And if you’re generally against training people in the workplace to not be a-holes to minorities, that’s kinda telling.

    2. Umm: “The crux of Peightal’s argument on appeal is that the Plan is both over-and-under-inclusive in its preferential treatment of Hispanics. Peightal maintains that the Dade County minority preference program is over-inclusive because it favors white European Spaniards with no significant cultural or linguistic discernability from non-Hispanic white persons. In addition, Peightal argues that the Plan is under-inclusive because the class of persons qualifying for preferential treatment as “Hispanics” fails to include other national and ethnic groups that are susceptible to similar discrimination.

      1. Yabut the under-inclusive aspect played no role in his employment rejection.

        Not even sure why he brought it up.

  13. The whole “Hispanic” designation was conceived politically to gather the largest number of potential voters possible without regard to whether the group as a whole was discriminated against or shared any significant characteristics. There are significant differences in the experiences of subgroups depending on the social status, even divisions within the subgroups based on race.

    I know people of Cuban Heritage, descended entirely from Spanish immigrants to Cuba who unless you knew their surname could not be identified as Hispanic. I know many people with Spanish surnames who could not be identified a Hispanic in any way being descended from Isleños who Immigrated from the Canary Islands in the 18th Century and for the most part. except for Spanish surnames are indistinguishable for any other local resident. In fact one of the most virulent racists in Louisiana was Leander Perez. In Louisiana as a result of the Spanish colonial period and Isleños, Spanish surnames among old families are reasonably common, as are French and German surnames.

    Many South Americans especially Chile and Argentina are indistinguishable from Europeans. Then there’s Tom Brady’s wife Gisele Bündchen , who is Brazilian and the fact that during the period when Italians were immigrating to the Americas in great numbers more Italians immigrated to Brazil than to the United States.

  14. I would put forward a sizable amount of money that Japanese Latin Americans have a higher chance of success than most all other ethnic groups in the US, and certainly more than home-grown whites. However, they can still reap the benefits of Affirmative Action, which we should admit was not intended to include Hispanics but rather Hispanics that were historically harmed by the US: Mexicans, Caribbeans, and Central Americans. Including German Methodists and rich whites from South America takes away from any recompense and benefits them, who are better educated and assimilated than the general Hispanic population. But how on Earth can that be legislated in any palatable manner?

    1. How exactly were they “harmed by the U.S.?”

      1. In the 19th century, we took a lot of land from Mexico, whether through annexation or war. The remaining Mexicans were not treated well in the client states we supported. Later, we interfered heavily in the Mexican Revolution by supporting a coup and then attempting to blockade the new regimes ports to prevent weapons shipments. We then bombarded Veracruz. This contributed to the large movement of Mexican refugees and immigrants into the US, who then enjoyed an inconsistent series of policies on their residency and work status.

        We occupied Haiti for two decades (1919-1934), Nicaragua for two decades (1912-1933), and the Dominican Republic for 8 years (1916-1924). When Columbia wouldn’t agree to our terms on the Panama Canal, we supported a secessionist movement in spite of a prior agreement to remain neutral.

        Once we were finally in the Cold War, we stoked instability in Brazil to place a military dictatorship in power (1964), supported the military dictatorship in the Dominican Republic during a civil war with US troops (1965), supported the military dictatorship in El Salvador that was eliminating rural villages with express, though muted here, approval of their methods (1981-1992), and trained and supplied the Contras in Nicaragua and did some of the dirty work ourselves (1982-1989).

        1. Honduras and the Banana corps are also a heluva story.

        2. Descendants of Latin American death squad leaders get the same “Hispanic” preferences as descendants of their victims. Upper-class whites who are openly racist regarding their mixed-race countrymen in countries like Peru or Columbia magically become minority victims of racism if they move to the U.S.

          1. Yes, you need some coarse graining. I don’t think that’s enough to prove the programs are bad, either as a legal or policy question.

    2. A great point. What is the status of Asian (east-asian, west asian, indian) children of immigrants to S. America?

      They too are ‘hispanic’ under the government’s directive.

  15. “I’ve always wondered why no one has challenged government ethnic/racial preference programs on the grounds that the categories used by the government are incoherent. “

    Because it’s entirely made out of whole cloth and entirely a political power play? I’m still trying to locate the expiration date O’Connor swore she saw.

    What special kind of lemon juice do y’all use to uncover these before unbeknownst clauses of the constitution?

  16. Hispanic is not a “race, color, national origin” or any other classification under the Civil Rights Acts.

    Therefore, this classification is, and always has been, illegal.

    Plus, it is logically incoherent.

    1. When has logical incoherence been a requirement for the Law?

      cf Wickard v. Filburn, US v. Miller, etc

  17. The federal definition of “Hispanic” is so elastic and ridiculous that just about anyone could claim it.

    For example, my family has been in Texas since before Texas was a republic (i.e., when it was still part of Mexico). Ergo, I can truthfully say that some of my ancestors were from Mexico. Do I count? Under the federal definition, probably so.

    And, of course, how much “Hispanic” ancestry do you have to have to claim the status? More than half? A quarter? 2/1024 (a-la Warren)? “One drop”? [And, of course, how is this tested / measured / objectively determined?]

    Or is it, essentially, anybody who “self-identifies” as Hispanic (thus allowing the Beto O’Rourkes and Rachael Dozeals-types a free pass)?

    This question is not just a mental exercise — so long as college admissions and other diversity set-asides are in place, gaming the system has real economic value. Query whether the continued charade is worth it?

    1. A point I just made. What about (say) a early-20’s child of an Indian or Chinese family that immigrated to Brazil or Argentina in the late 80’s?

      They’re ‘hispanic’ too….

    2. Indeed. In addition, technically we’re all descendants of African populations, so….

      1. Let’s not forget that for Native Europeans, the Africans colonized our continent and nearly eradicated our bloodline, to the point that most of us Native Europeans have a majority African bloodline. I wonder if we’ll get repairations?

    3. I have an Italian surname that many believe is Hispanic because it sounds like a common Mexican nickname. When applying to grad school, I was tempted to “check the box.”

      1. This was supposed to be a response to LKB.

  18. Of course this whole discussion reaches just the tip of the iceberg. The problem is not that the “Hispanic” classification fails strict scrutiny, it is that all racial classifications fail even a rational basis test, since all racial designations are based on prejudice, not science.

    1. There isn’t a requirement that all laws be based on science, not prejudice.

      1. Perhaps you should have told that to Justice Kennedy …

        1. Perhaps. Not sure he would have listened to me.

      2. There isn’t such a general requirement, but there is when you are applying the strict scrutiny that is supposed to be applied to racial/ethnic classifications.

  19. “I’ve always wondered why no one has challenged government ethnic/racial preference programs on the grounds that the categories used by the government are incoherent. ”

    You’ll have to get an amendment requiring Congressional coherency. I would expect some pushback on this, no matter how popular it might be among the electorate.

  20. Professor Bernstein, is it your intent to critique affirmative action, to strive for improvements, or do you argue to get rid of it entirely? Your answer would help me focus a response.

    1. I’m not his spokesperson, but I found him saying this a couple decades ago – maybe he still thinks that way:

      “Affirmative action, then, should be ended not only because, as Roberts and Stratton argue, it violates individual rights, conflicts with a healthy civil society, discriminates against white males, and creates opportunities for government mischief-making, but because it distracts people of goodwill from confronting the real racial problems facing the United States. Quotas and set-asides may create the illusion of a just, equal society, but do little to actually implement it.”

      https://reason.com/1996/05/01/color-blind-2/

    2. It should be ended. Discrimination based on race is still discrimination based on race, even if you’re doing it for a “good intention”.

      1. Meh. Balancing things that discriminate for specific candidates with things that discriminate against specific candidates means that the most meritorious candidate wins.
        If, of course, you can get it balanced accurately.

        There’s an old saying, from a decidedly different context: “All I want is my fair advantage.”

    3. My intent is to point out that the categories we currently use are incoherent. There are several alternatives that could follow from that. One would be ending it. Another would be limiting it to, e.g., descendants of Americans slaves who identify as African American and members of Native American tribes. Yet another would be to allow people to self-identify as minority victims of discrimination. Or one could just acknowledge that the categories are incoherent and arbitrary and continue as currently on the theory that we can’t do any better, but you’d have to get rid of strict scrutiny to make that legitimate. But it’s interesting that even strong opponents of AA don’t ever seem to notice that (a) most of the beneficiaries these days are not African Americans; and (b) that the categories we use don’t make sense from either a “diversity” or “restorative justice” perspective.

  21. Presumably, if one of the daughters of King Felipe VI of Spain wished to study at an American university, she could tick the “Hispanic” box and benefit from affirmative action policies.

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