Are You Legally "Hispanic" if You are One-Quarter Mexican but Don't Have Ties to the "Hispanic Community?"

No, said a New York court

|The Volokh Conspiracy |

In Major Concrete Constr., Inc. v. Erie, 521 N.Y.S.2d 959 (NY. App. Div. 1987). a New York appellate court upheld an administrative ruling that an applicant for Minority Business Enterprise certification with the Erie/Buffalo Joint Certification Committee who was 25% Mexican, 25% Irish, and 50% Italian did not qualify as Hispanic. The local rule for "Hispanic status" was that an applicant must be "[a] person of Mexican, Puerto Rican, Central or South American or other Spanish culture, regardless of race." The applicant claimed that he qualified as Hispanic because his grandmother was 100% Mexican. However, he admitted that he did not keep any ties with the Hispanic community, did not belong to any Hispanic groups or clubs, did not have any Hispanic friends, and that no Hispanics live in his neighborhood. His attorney told the Committee that he was of Italian background. The Committee denied his application on the grounds that: (1) he is only 25% Mexican, (2) he keeps no contact with the Hispanic community or its culture, and (3) neither he nor members of members of his family identify as Hispanic. A trial court reversed, but the appellate court reinstated the denial, finding that the decision was supported by a rational basis, all that was required under relevant administrative law.

Note that in other jurisdictions, being of Spanish descent or culture is sufficient to claim identity. At some point, I'll blog a federal administrative decision that a Sephardic Jew who didn't speak Spanish, didn't have a Spanish-sounding surname, and had no ties to the "Hispanic community" was Hispanic for purposes of federal MBE qualification.

General research note: Like almost everyone, I thought that ethnic/racial identification in the U.S. for legal purposes was solely a matter of self-identification. I've learned that this isn't always true, and I've been researching various rules, administrative rulings and cases accepting or rejecting someone's claim of minority status.

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  1. The MBE designation. Is it racism? Is it crony capitalism?

    Why, it’s BOTH! It’s racism AND crony capitalism, in one bureaucratic clusterfuck!

    1. Hmmm. I thought MBE was a British designation for Member of the British Empire and authorizing said recognized member with using Esquire after their name.

  2. I’m 0% Hispanic but I have close ties to the Hispanic community through my stepfather who is 100% Mexican. Does that qualify me to be legally Hispanic?

    1. Good question. What constitutes “close ties” to an ethnic community

      I have to wonder whether if this applicant’s 25% Hispanic heritage had been through a paternal grandfather providing him with a Hispanic sounding family name, his application would have been more likely to have been granted.

    2. 1. depends on the jurisdiction;
      2. for federal purposes, it’s “origin or culture,” so you’re “in.”
      3. I think all of this is bad, un-American, racist, discriminatory, and unconstitutional.

  3. So if this guy had been a member of MS13, would that count as close ties to the Hispanic community?

  4. How is this not race-based discrimination? Requiring someone to act in a certain manner consistent with their race in order to qualify for some racial handout (which is also race-based discrimination, but legally permissible) seems to violate equal protection.

  5. One’s race is not solely self identification (as shown by news stories about a few people claiming to be Black without the benefit of Black ancestors.

    I’d love to see the objective criteria which says somebody is Black / African American. Are we still using the “one drop” definition?

    1. Hispanic are the descendants of the invading/oppressor group within the Americas. Why are they advantaged when native (pre-Columbian) inhabitants with no spanish/hispanic heritage would fail the hispanic test.

      Likewise the white guys from South Africa who are co-workers in my academic department. Yes, they are african-americans (having been naturalized) but they grew up as the children of what amounted to slave holding families, and who still hold plantations in their home country.

  6. ‘Line drawing is tricky, so lets never try!’

    Anyhow, these threads are good for some pop-sociology. What’s the half-life before the Bell Curve folks show up?

    Do’h, observer effect!

    1. It would be helpful if any relevant government agency or body had ever bothered to explained why people with Hispanic ancestry, regardless of whether they are immigrants, regardless of whether they are white (of entirely European origin) qualifies for MBE status to begin with, getting the same level of preference as black descendants of American slaves. No one ever has, so we are left with “this category exists because reasons,” which makes the line-drawing problem even more acute.

      1. It would be helpful if any relevant government agency or body had ever bothered to explained what constitutes a reasonable search, but we’re still working out the details. Doesn’t mean we should cancel the Fourth Amendment.

        Bright lines are nice, but sometimes you can’t get narrow tailoring and are going to be over/under inclusive in service of practicality. It’s not generally fatal to a program.

        1. Bright lines in the 4th Amendment area are more than just nice – they’re essential and the lack of bright lines is a problem, but there’s an answer that doesn’t involve abolishing the 4th Amendment:

          Abolish qualified immunity, and the cops themselves will be clamoring for bright-line rules on the 4th Amendment.

          1. 4th Amendment jurisprudence is a mess of contradictions, exceptions, exceptions to exceptions, fact-specific questions; bright line rules, mixed questions of facts and law, prudential rules, Constitutional rules, etc. etc. It takes two semesters to get even a surface view.

            Doesn’t mean it’s bad.

            Similarly, race is a mess. But that doesn’t mean programs that have a racial component are unconstitutional or bad policy.

            Doesn’t mean it is constitutional or good policy, but IMO stuff like this helps: https://www.nytimes.com/2019/11/18/nyregion/fair-housing-discrimination-long-island.html

            1. I’ve used up my free *Times* articles, but can I guess that it’s about alleged racial discrimination against black people?

              Do I understand that you’re advocating affirmative action in compensation?

              If we’re actually dealing with bona fide anti-black racists, how do you avoid a scenario where they say, “look, we sold a house to a family from India, meeting our racial goal, so why are you harassing us?”

              1. “I’ve used up my free *Times* articles, but can I guess that it’s about alleged racial discrimination against black people?”

                I can guess it’s an article about real estate agents drawing lines.

            2. “It takes two semesters to get even a surface view.

              “Doesn’t mean it’s bad.”

              I think it does.

              If the goal is to be *secure* from unreasonable searches, then it’s a problem if you can’t tell what’s an unreasonable search and the cops can get off the hook for an unreasonable search specifically because the whole thing is so vague.

              1. It’s not compensation – it’s acknowledging that there’s still racism to out there both in spirit and in effect, so don’t pretend there’s a level playing field.

                As for the 4th, large systems dealing with multiple equities are going to be complicated: news at 11.
                If you have a better way to balance solving crimes with protecting privacy, I’d wager it’ll tick off more people than the current system.

                1. The current categories aren’t geared toward racism. White people from Spain qualify. People who are 1/4 Asian and appear Caucasian qualify. Someone who is 1/16 Native American and is named John Smith but happens to be a member of a registered tribe qualifies. Dark-skinned Arabs, Greeks, Armenians, Afghans, Iranians, among others do not qualify. The categories are both over and under-inclusive. The underlying truth is that the origin of these policies is in discrimination against African Americans. But outside the context of university admissions, they are a small % of the beneficiaries. As of 1997, less than half of federal contracts awarded to MBEs went to African Americans. Given the increase in other “minority” populations since then,and their increased social and economic capital, I doubt it’s even 25% today.

                  1. I do not disagree that the line-drawing is not narrowly tailored. I would point you to my 2:36 comment about how this is not uncommon in government programs.

                    Racism, in all it’s dumbness, does not lend itself to bright lines. This means that programs to combat it are naturally going to have the same issues. Insisting that they do not is a collateral attack that denies the reality of the wrong being addressed.

                    Minorities other than AA’s are not without their history of racism; over/underinclusive or no, I don’t see why the logic is not naturally extended in terms of good policy, constitutionality, etc.

                    1. I think I used collateral in a legalish way, not a correct way. Sorry!

                    2. Well if courts take strict scrutiny seriously in this context (which they haven’t) it’s a real problem. Be that as it may, it’s also just interesting to see how the courts have dealt with the line-drawing issues, especially because people think there isn’t any such line-drawing, that it’s all self-identification.

                    3. So you’re attacking the Fischer holding by pointing out over/underinclusiveness? Because as I recall Fischer acknowledged that, but still held the program was narrowly tailored.

                    4. It’s not *just* over and underinclusive, the categories are arbitrary. If I am a Pashtun from Afghanistan, I’m white. If I’m his cousin who lives a mile across the border in Inda, I’m Asian.

                    5. The categories are arbitrary if you take them by themselves.

                      If you take into account the context that they’re trying to combat an arbitrary system – racism, suddenly they seem entirely on point.

                      It’s like changing to a rotating reference frame can make a chaotic seeming system suddenly reveal it’s order.

                2. “don’t pretend there’s a level playing field”

                  OK, I won’t, thanks for the warning.

                  “As for the 4th, large systems dealing with multiple equities are going to be complicated: news at 11. If you have a better way to balance solving crimes with protecting privacy, I’d wager it’ll tick off more people than the current system.”

                  If abolishing qualified immunity doesn’t solve the vagueness problem, then at least we can say that there’s a defect in the Constitution itself, and we have to live with it because as you say, attempts to make it more specific probably won’t work. Which unfortunately would reflect badly on the Constitution that they couldn’t have more specific criteria for reasonableness. But if something is entrenched in the constitution you have to deal with it.

                  As opposed to racial discrimination, which is not required by the Constitution – many people actually go so far as to say it’s forbidden.

                  1. Ignore the Constitution – I presume you think privacy is and ability to investigate are both important. If bright lines are necessary for a viable policy, wow would you balance those equities in a simple way in all the various ways they interact in the criminal justice system?

                    1. I’d support a constitutional amendment defining the 4th amendment term “reasonable.” I’d say warrants are required subject to specific exceptions. E. g., I’d incorporate the hot-pursuit standard, describe what constitutes a voluntary consent to search, and so forth…all in consultation with the relevant experts (who I don’t have on call right now, sorry). But at the end I’d have a more specific constitutional provision than the current 4th Amendment, and I’d try to get it through Congress and the states.

                      Meanwhile, I’d acknowledge the vagueness problem with the 4th Amendment as it currently exists, and try to ameliorate the situation by abolishing qualified immunity, so cops would have to worry about the need for bright lines, and maybe bring their lobbying power to bear in clarifying the standards for searches, because now they’d have an incentive to do so as opposed to going ahead and searching in borderline cases.

                      That’s really the best I could come up with on the spur of the moment.

                    2. You’re not actually making any bright lines, though. You’re just codifying the existing doctrine, which is an are of law notable for it’s lack of bright lines. (Hence why I used it as an example).

                      Lobbying power to clarify standards? How has that worked elsewhere?

                    3. Well, then, not all problems can be fixed. What do you take me for, a leftist? 🙂

                      We can at least acknowledge it’s a problem with the Constitution. I don’t fetishize that document.

                    4. Neither do I.

                      But I think we just proved it’s not a problem with the Constitution – it’s just a problem that cannot be solved simply.

                    5. Of we could use warrants as they were used at the founding, as a defense against torts.

                      Someone opens your door while you’re away? That’s common law trespass.
                      Someone opens your journal you left on your porch? Trespass to chattels.
                      Someone walks across your plowed field to knock on your door? No trespass.

                      An agent of the state trespasses on your property? They violated the 4th amendment, unless they have a warrant authorizing that trespass.

                      And no, that doesn’t mean a legislature can define a tort such that agents of the state are exempted. The easy question is: if random_guy did it, would he have committed a tort or crime? If yes then a warrant is required. That even addresses hot pursuit, as lifesaving actions were always exempted from trespass, though not from damages caused.

                      Another angle on the same principle: if I’m not allowed to do it to a judge, Senator, or President, then their agents of the State can’t do it to me either absent a warrant. This ones at least an even better general principle, because it covers things like firearms laws, drivers licenses, and more all at once.

                    6. “But I think we just proved it’s not a problem with the Constitution – it’s just a problem that cannot be solved simply.”

                      No, the problem is that there isn’t the political ability to get 2/3 of Congress and 3/4 of the states to clarify the term “reasonable.” That’s a problem with the Constitution and the political obstacles to changing it.

                    7. Eddy, you just showed you can’t clarify reasonable without codifying all the current caselaw.

                      That’s not a problem with the Constitution.

                    8. No, I think the only current caselaw I’d say I’d codify was the hot-pursuit standard.

                      I also said I’d consult with relevant experts. I was thinking of experts in the actual subject of govt searches, not simply people who could parrot off the precedents, some of which might be open to reconsideration when writing up a constitutional amendment.

                      The term “reasonable” is fairly vague, and less specific than many constitutional provisions. Case law obviously hasn’t done the job of making it less vague, so I’d classify case law as part of the problem which a constitutional amendment might fix.

                    9. I’m arguing nothing would make it less vague – that it’s the nature of the beast.

                      You’re coming at me with blue ribbon commissions to streamline the process.

                      I’m feeling like a winner.

                    10. I’m saying that the problem is political – the inability to get together a supermajority to define what’s reasonable.

                      If it were possible for some expert civil libertarian to magically insert a definition into the constitutional text, the vagueness problem would largely vanish I’m afraid we’ll never get to find out if my guess is true, but clarifying language is the usual solution to vagueness in the law, so why not here?.

                      “I’m feeling like a winner.”

                      In the sense that “Everybody has won and all must have prizes.” But then it was a Dodo who said that.

                3. For “diversity”, the 50th Mexican is treated as adding diversity, the first Cambodian is treated as subtracting. To make up for socio-economic difficulties, Indian-Americans, who have the highest median income of any ethnic group, are treated exactly the same as Hmong, who have the lowest. Nigerians, with above average median income, are treated the same as Somalians, who have much lower than median, and are treated the same as descendants of slaves, whose ancestors lived through slavery and Jim Crow. I’d love to say that no one could anticipate these problems in the early years, but I recently read Bakke and discovered that the reserved slots went wildly disproportionately to Asian Americans, who weren’t underrepresented in the medical field to begin with.

                  1. Yes, if you bring in a bunch of impracticable variables suddenly things look chaotic. That’s not a reflection of much legal moment, though – every regulation requires some coarse graining. Some murders are justified, doesn’t mean murder is a problematic concept.

                    1. But you’re arguing the other direction – discrimination based on race is ok, just not sometimes. I think most (here, at least) disagree with that basic premise, instead thinking that discrimination based on race is always wrong (many stop here), with some going on to say except in some cases.

                      Bernstein’s pointing out that “except in some cases” isn’t even coherent, as the cases in law are entirely arbitrary – they’re not even aimed at any target, let alone one with widespread agreement on the merits.

                    2. I’m arguing race-based policies are bad, except for when they’re combating race-based differentials in opportunity.

                      The argument that our society is anti-white because not all of it’s laws are racially agnostic is ignoring the legacy of our past racial legal regime, as well as how a lot of current social mobility avenues currently operate (see the NYT article I posted for an example).

                      Certainly the arbitrariness of race-based policies is not a good objection, given the identical arbitrariness of the ill they are addressing.

                      Now, some here end up arguing that they don’t like aa because actually the playing field is level now; its just that Asians and whites are smarter.

                    3. “Now, some here end up arguing that they don’t like aa because actually the playing field is level now; its just that Asians and whites are smarter.”

                      Nobody’s arguing that anybody is smarter. Are you arguing that the “playing field” somehow favors Asians, and needs to be “leveled” by giving other races preferences over Asians? What raced-based differentials in opportunity are being combated by giving certain Spanish Europeans preference over Asians?

                    4. Is there redlining to screw over Asians? Are there people arguing that Asians are born with a lower IQ and should be kept mostly for menial labor?

                      Asians have their issues as a minority. This particular playing field isn’t one of them.

                      That doesn’t mean the playing field is flat for everyone.

        2. “what constitutes a reasonable search”

          One authorized by a proper warrant obtained by probable cause.

    2. ‘Line drawing is tricky, so lets never try!’

      Do you have some suggestions for drawing the line in the “right” places?

      I think you can feel free to offer your contribution, since deferring tot he “experts” seems to end up with results all over the map.

      There are some areas where the arbitrariness of line-drawing is highly relevant – eg, First Amendment problems and race-discrimination problems.

      1. For convenience sake, we can date affirmative action to LBJ’s Howard University speech, or at the latest Nixon’s Philadelphia Plan.

        That means they’ve had 50 years to work out the kinks and figure out where the line is drawn.

        Based on that half a century of experience, where do *you* think the line should be drawn, and would it be politically feasible to adopt your preferred version?

        1. See above – demanding a bright line on racial questions is almost begging the question.

          1. The argument against racism is that it’s inherently arbitrary to draw racial distinctions (I’d allow exceptions for medical research on race-specific diseases or giving descriptions of at-large criminal suspects, so take advantage of those concessions as you wish).

            Under the original jurisdiction for affirmative action – that some groups need a leg up to compenate for a history of discrimination – then it is indeed necessary to be specific on which groups have suffered discrimination and which groups are freeloaders who don’t deserve to booted off the preferences gravy train.

            If we go by the more modern justification of diversity and multiple perspectives, then we have to make sure we’re actually getting a diverse group of people, and how can that be achieved? Would diversity at a traditionally white school be enhanced by someone with some black ancestry but who is mostly white and generally can’t be distinguished from a white person? Or would he have to wear dreadlocks, be darker in hue, and act in a stereotypically “black” way?

            Either rationale doesn’t seem to do much to avoid the problem of freeloaders who take slots which by your own rationale ought to be reserved to the underprivileged or to the people with unique perspectives?

            1. “who don’t deserve to booted off the preferences gravy train.”

              should be

              “who deserve to be booted” etc.

              1. First, don’t call affirmative action racism.
                But if society is dealing with de facto racial distinctions or their legacy, it’s hard to argue that it’s bad policy for government policy to acknowledge such.

                I don’t much care for the Bakke analysis, but part of the point was that the way to get rid of racism is integration. And that requires the same arbitrary BS that racism uses to work.

                Lots of policies have freeloaders. Do what you can to avoid them, but so long as they’re marginal, they’re not fatal to any other public or private enterprise, why would they be to this?

                1. “First, don’t call affirmative action racism.”

                  If “racism” includes “racial prejudice *or* discrimination,” then what you call “affirmative action” is racism, since it’s discrimination.

                  https://www.merriam-webster.com/dictionary/racism

                  In any case, don’t be shocked that an opponent of affirmative action would call it racism, rather than cede to your assumptions that supposedly benevolent discrimination isn’t racism. Most racists claim the discrimination they support is perfectly benevolent. Even apologists for Jim Crow claimed benevolent motives for themselves.

                  Challenging the benevolent self-image of racists is a standard part of the anti-racism toolkit, sorry.

                  1. Definition of racism
                    1: a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race
                    2a: a doctrine or political program based on the assumption of racism and designed to execute its principles
                    b: a political or social system founded on racism
                    3: racial prejudice or discrimination

                    Racists fall under 1. Affirmative Action proponents explicitly don’t fall under 1.
                    Your taking ‘discrimination’ under 3 our of context (i.e. ignoring prejudice) is doing violence to the verbiage. That’s why you are left arguing, as you had to above, that best practice in drug trials is to be racist, albeit benignly racist. Which is not how anyone treats that.

                    1. I used definition 3, which says racial discrimination. I’ve conceded the benevolence of discriminatory drug trials, but only you contend for the benevolence of broad preference programs. I make no such concession.

                    2. Benevolence, but definitionally racist.

                      Good luck selling that.

                    3. As I discuss below, we can include in the definition a requirement that the discrimination be arbitrary. You’ve already conceded this in the case of affirmative action: it admittedly “requires the same arbitrary BS that racism uses to work.”

                      So even under that modified definition it’s still racist. Unless you’re going to claim that there are non-racist forms of arbitrary racial discrimination?

                    4. If you’re going to start writing your own definition, I can just pick the first two above and call it a day.

                    5. So far I’ve shown affirmative action is racist under three possible definitions (or maybe four), including the “prejudice” definition you offered.

                    6. You spent all your time on definition 3, so I don’t know what you’re talking about, unless you’re inventing additional definition to agree with you.

                    7. No, I used the “racial discrimination” definition, when you objected I tried arbitrary discrimination, when you insisted on prejudice I showed prejudice.

                2. “But if society is dealing with de facto racial distinctions or their legacy, it’s hard to argue that it’s bad policy for government policy to acknowledge such.”

                  That argument is pitched at such a high level of generality that I’m not sure how to refute it, or even if you said something wrong.

                  “I don’t much care for the Bakke analysis, but part of the point was that the way to get rid of racism is integration. And that requires the same arbitrary BS that racism uses to work.”

                  It’s hardly a surprise that, as you acknowledge, affirmative action involves arbitrary BS, because that’s what racism is, and affirmative action (as practiced today) is racism (see above).

                  “Lots of policies have freeloaders. Do what you can to avoid them, but so long as they’re marginal, they’re not fatal to any other public or private enterprise, why would they be to this?”

                  How do you know if these freeloaders are marginal? The good Prof. Bernstein is citing cases where the bureaucracy went to a great deal of trouble to ascertain who’s a bona fide member of a protected group and who isn’t. Why would this be the case if freeloaders are an acceptable risk?

                  Indeed, systems of racial discrimination tend to require a bureaucracy to make sure that everyone fits in the right racial box, and to stop them from straying beyond their box.

                  https://www.apartheidmuseum.org/exhibitions/race-classification

                  1. Until there’s more than anecdotes, I’m going to assume marginal.

                    And that’s what these posts have been – a blizzard of anecdotes. Which is sometimes (but not always) a sign you’re more pounding the table than arguing the law or the facts.

                    And your ‘aa is racism’ has become just begging the question now.

                    1. “And your ‘aa is racism’ has become just begging the question now.”

                      Affirmative action, as we’re defining it here, “requires the same arbitrary BS that racism uses to work.” So there’s already a distinction from carefully-planned drug trials, which presumably aren’t based on arbitrary BS.

                      If affirmative action discriminates on the basis of race, and uses “arbitrary BS,” indeed the same arbitrary BS as racism, then it seems to meet the dictionary definition of racism as racial discrimination.

                      I acknowledge that you don’t think it’s racism, but of course you support the policy. I don’t see how someone who opposes the policy can be shamed out of calling it what it is.

                    2. Arbitrary != racist.

                      I know someone who does diversity in drug trials work, and let me tell you race is not easier there than in policy work.

                      By your pinched definition (ignoring the prejudice component) there is no restriction based on arbitraryness, and so you’re back to calling drug trials best practices benignly racist – an absurd result.

                    3. I’ll cheerfully agree that if drug trials rely on arbitrary racial discrimination they’re racist.

                      “ignoring the prejudice component”

                      Well, if we must look at prejudice, let me first ask: are you denying that there’s prejudice against (say) whites, Asians, men, who are generally the ones against whom this “benevolent” discrimination is practiced?

                      Or will you take the ground that, sure, sometimes people have been known to express prejudice against these groups, but this has no connection to the purity of affirmative action?

                    4. You’re adding the arbitrary component. That’s an outcome-oriented proviso to include aa and exclude drug trials.

                      And so again we are left with your begging the question.

                    5. I don’t think I invented the idea of arbitrary racial discrimination being racist, but if it’s my idea, I would be happy to take credit for it.

                    6. I see you didn’t address my point about prejudice.

                      If you’re thinking of denying the existence of anti-white, anti-male, anti-Asian prejudice, I’d suggest you first look at, say, the hate-crime statistics. It’s not all about white dudes beating on black people.

                      If you’re going to suggest that the people responsible for affirmative action had purity of motive and weren’t tainted by the prejudices I mentioned…we’ll be here all week. Anyway, who has the burden of showing that something you admit to be arbitrary race discrimination, is based on purity of motive?

                    7. Of course, “In a system of white supremacy, which is what America was founded on and continues to be, it is impossible to be truly racist against white people.”

                      Which is why we can’t call a high-ranking person at an influential newspaper a racist simply because they once said stuff like “#CancelWhitePeople,” and that white people are “only fit to live underground like groveling goblins.”

                      https://www.dailydot.com/irl/racism-against-white-people-doesnt-exist/

                      There’s no connection between such a person’s prior statements and the pro-affirmative action attitudes promoted by influential media outlets. Don’t you trust them?

                      (But I hope at least the Goblin Coalition complains.)

                    8. Wait a minute, she seems to have left her position (was this before or after she called for a boycott of her paper?)

                      https://www.foxnews.com/media/new-york-times-sarah-jeong-off-editorial-board

                    9. Why are you bringing critical race theory into this? It’s not going to take you in a direction that shows affirmative action is racist.

                    10. “Why are you bringing critical race theory into this?”

                      You had managed to make minimal use of straw-manning up to now – but now you do it in a big way. I’m disappointed.

                      You mentioned prejudice (part of an alternate definition) so I indicated that, yes, there may be some prejudice against white, etc., associated with discriminating against whites, etc.

                      You certainly haven’t met your burden of showing that racial discrimination involving, as you admit, “arbitrary BS” is motivated by pure motives and not prejudice.

                    11. Perhaps you missed that my 5:59 post was sarcastic?

                    12. (You’d think someone with the handle Sarcastro could recognize sarcasm)

                3. “…but part of the point was that the way to get rid of racism is integration. And that requires the same arbitrary BS that racism uses to work.”

                  The way to get rid of racism is racism?

                  1. Racism has and continues to make the playing field uneven.

                    Condemning all attempts to make the field even as screwing with the playing field, and thus making it uneven, is ignoring context.

                    And your question begging is not cute.

                    1. “Condemning all attempts to make the field even as screwing with the playing field, and thus making it uneven, is ignoring context.”

                      It’s not a game. You can’t “level the playing field” by enslaving non-blacks for 400 years and saying, OK, now we’re even.

                    2. “Condemning all attempts to make the field even”

                      I think what TIP and myself were complaining about was affirmative action using “the same arbitrary BS that racism uses to work.”

                    3. If you give special benefits or penalties to one group that other groups don’t have applied to them, then you are not making an even playing field.

                      This is an incredibly basic definition. Why do you keep getting it wrong?

                    4. TiP, no one is talking about enslaving nonblacks as reperations. We’re talking about addressing current effects right now.

                      Racism is arbitrary because race is arbitrary. But saying ‘well that makes any attempts to address it impossible because it’ll have to be arbitrary’ is too clever by half.

                    5. Toranth assumes the playing field is even, and so yells at anyone who tries to alter it.

                      In the process, there’s some collateral damage – his generalization comes out against learning disabilities. And playing golf with a handicap.

                      Our meritocracy is not very good at its job.

                    6. Sarcasto, there is *never* an even playing field for anything but certain purely RNG events.

                      At least half the people in this thread are smarter than you, and nothing you can do will compensate for that.

                      And no, no matter how you think it sounded in your head, trying to switch the topic to games – artificial restricted behavior entertainment activities – does nothing to advance your argument, but instead makes you sound like an idiot that cannot tell the difference between play and reality.

                  2. “Toranth assumes the playing field is even, and so yells at anyone who tries to alter it.”

                    Again, how is giving preference to Spanish Europeans over Asians, “leveling” the playing field, since you insist on using this ridiculous analogy.

                    1. You’re conflating necessary coarse graining with substantive policy choices.

            2. You’re missing the point about medical research – it’s not the race that matters.

              When we get to the point where everyone’s DNA is fully sequenced medical research won’t ever use the concept of “race” in any way. Instead it will be “people who have sub-genotype A476Q are predisposed to (something).” And that’s because in medicine race doesn’t matter, it’s the genetic subtype, which can appear in any population but happens to correlate with the sociological construct we call race.

              So when you have someone of (some race) who has a stereotype (some stereotype) but they don’t have the genetic subtype that causes that stereotype they won’t be classified with their “race” for medical purposes, they’ll be classified with their genetic similars.

              It’s only because we know we have limited genetic coding that we use race now in medicine, because it’s pretty good shorthand for what we know is the real cause, and with which we can make some reasonably accurate assumptions without the benefit of full DNA sequencing – but that’s something we know will go away once we have the data readily available.

              Affirmative Action, on the other hand, has no target, no way of knowing that it’s accomplished it’s goal, and so can’t ever have an endpoint under its own rubric.

              1. I’m not the one stuck calling medical research racist because I’m playing some dumb semantic game.

    3. I wouldn’t say ‘Line drawing is tricky, so lets never try!’

      But I would say ‘Line drawing is tricky and we keep failing, so maybe it’s time to admit that we’re doing something wrong.’

      Alternatively, you could say ‘Line drawing is tricky and, no matter how we draw it, we’re not getting the change we intended. Maybe it’s not the line that’s the problem.’

      1. First, research shows that a more diverse school experience leads to better outcomes even for white students.
        Second, the metrics do show benefits for the black community. More doctors, more representation on Congress, more PhD’s.

        So line drawing has gotten results, tricky or not.

        1. You are assuming your conclusion. Line-drawing (such as is described in the article above) is not what resulted in more diverse school experiences. Nor did that line-drawing result in the other benefits you describe.

        2. “So line drawing has gotten results…”

          As they say in the prospectii, “Past performance does not guarantee future results”.

          In 1965, affirmative action was an easy sell, to me at least. Any blacks alive in 1965 had almost certainly faced severe discrimination. But a couple of generations have passed since then, and it’s getting a little harder to tell how much preference a black CEO’s daughter deserves relative to a white guy from Appalachia whose parents OD’d when he was 12. And as PersonFromPorlock used to remind us, those young’uns seem to be marrying and parenting across the various classifications at a pretty high rate.

          So while I enthusiastically supported AA in 1965, the waters are getting a bit murkier. Should Harvard require higher scores from all Asians, of Chinese as well as Hmong ancestry, or do you look at the socioeconomic data and only disadvantage the Chinese-Americans? And the intermarriage thing seems pretty gnarly – what do you do when applicant A is 1/4 recent Nigerian immigrant, 1/4 Swedish, 1/4 Basque, and 1/4 Japanese, and applicant B is some similar mixture?

          Your arguments in this thread seem to be ‘OK, it’s hard, but it’s for a good end’. That’s nice, but there are things that are nice (personal hovercar!) that simply aren’t attainable. Do you see any point at which trying to make things perfectly flat will end up harming more people than it’s helping?

          1. I’m asking for equality of outcome, you’re seeing it as equality of result.

            I also don’t think giving up and accepting blacks will never get as many opportunities as whites would need a lot more evidence, especially given the morality of such a decision.
            Certainly Prof. Bernstein’s issues with narrow tailoring aren’t showing that.

            1. Okay, now you’ve lost us. In what sense is “outcome” not a synonym for “result”?

  7. A guy who is 25% Mexican genes/blood is not Hispanic because he has no ties to Hispanic culture?

    What does that say about our 1/1024th Native American Fauxahontas Elizabeth Warren?

  8. My father was from Puerto Rico, my wife is of British-German heritage, so my kids are 25% Hispanic with a Spanish surname. Five different colleges told us my kids qualify as “hispanic”. My feeling was the colleges didn’t give a damn about helping minorities, they just wanted to be able to pad their statistics and say “Look, 25% of our freshman are minority students”.

  9. I find myself surprised to find that Nobody’s argued that treating people with Spanish surnames differently from people without is unconstitutional gender discrimination, as generally speaking this tends to mean people with Spanish-sounding fathers get treated differently from people with Spanish-sounding mothers, and there doesn’t seem to be any important state interest involved in this particular way of drawing the boundary.

  10. I don’t know if it’s relevant to your research, but a number of years ago, I lost a summary judgment motion in the United States District Court for the Northern District of Georgia in a race discrimination employment case. The plaintiff claimed that he was Native American (Cherokee). False claims of Cherokee heritage are common in North Georgia, so I set out to establish that he was not, in fact, Cherokee. I thought I had pretty close to a slam dunk: After the Trail of Tears, the U.S. Government provided reparations to the relocated Cherokee families. With the assistance of the genealogists for the Cherokee Nation of Oklahoma, I learned that my plaintiff’s ancestors had applied for, and been denied, those benefits because they could show no connection to the Cherokee people. In the era before consumer DNA testing, I had come as close as possible to proving that the plaintiff was not Cherokee; nevertheless, the court allowed the lawsuit to proceed on the theory that it was sufficient if the allegedly discriminatory manager “thought” that the plaintiff was Cherokee.

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