The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.