Are Spaniards "Persons of Spanish Culture"?

A strange affirmative action classification in Boston suggested that the answer is no.

|The Volokh Conspiracy |

In the course of research for my "Modern American Law of Race" project (first article arising from the project downloadable here), yesterday I came across a very odd situation in Boston.

According to a 1988 article, the city's public school system was cracking down on people who falsely claimed minority status when applying for jobs or promotions. Most of these cases involved people claiming Hispanic status, and according to Maria Izarry, "who reviews all cases of race-fraud" for the school system, "We're talking mostly about Spaniards posing as Hispanics." For example, she told the Globe she was "currently investigating charges that two current employees have claimed Hispanic status, even though they are from Spain… If the charges are true … these two employees may become the first school employees who are actually dismissed from their positions because of fraud," because they were occupying positions designated for "minorities."

Now, there has been ongoing controversy over whether being "Spanish" should count as "Hispanic" for affirmative action purposes. It does for federal set-asides and the Small Business Administration's Minority Business Enterprise Program, but several states instead either use the Latino category or use a definition of Hispanic that excludes people from Spain. If Boston had used such a definition, it would make sense that a Spaniard claiming Hispanic status was engaging in fraud.

According to the Izarry, however, the school system used the EEOC definition of Hispanic, which she said only includes people from the Western Hemisphere. The EEOC definition, then and now is as follows: "Hispanics means persons of Mexican, Puerto Rican, Cuban, Central or South American origin, or other Spanish culture."

Admittedly, people of Spanish origin are not specifically included the way Mexicans, South Americans etc. are. But surely people from Spain are within the category of people of "other Spanish culture?" I did find a law review article deeming it ambiguous whether people from Spain were included in the EEOC definition. But it would be passing strange if the Spanish were deemed to not be of Spanish culture.

Source: Boston Globe, Oct. 19, 1988

UPDATE: The standard federal definition for Hispanic, adopted in 1978 by OPM for use across the government, includes persons of Hispanic culture or origin. The only source I could find for the EEOC definition circa 1988 was a secondary source that left off "or origin," but I'm not sure that's correct. It would of course be even stranger if Spaniards were deemed to be of neither Spanish culture nor origin.

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  1. Maybe the government shouldn’t be placing racial classifications on people and then choosing to discriminate against them if they are the “wrong” race. Crazy idea I know, but maybe we ought to consider it.

    1. An idea so crazy it just might work!

    2. Well, the Nazis wrote the Nuremberg Laws…

      1. I think people forget that the hated Jim Crow laws were race based classifications. All that “civil rights” did was rewrite those laws so that they favored a different system of racial classifications. In the minds of some that changed the system from “wrong” to “right” but if you support discriminatory systems such as affirmative action you have to at least concede that it is just another system of racial classification.

    3. That does seem the most straightforward way to resolve the issue.

      1. Balderdash. We should instead just hold up a paint chip from home depot next to each person’s face, and assign them a minority score based on how dark their skin tone is.

        /s for those who need it.

        1. I like this idea, since I can move up the scale from pasty white to darker than Halle Berry simply by spending an hour a day in the sun.

          1. I just turn pinker in the sunlight. The glowing orb, it burns! Since I avoid the sun, my default shade remains “overlord and master”

  2. Ever been to Chile? In South America, but almost everyone there looks standard US American. Do they count? Uruguay and Argentina as well?

    1. What is a standard US American besides overweight?

      1. I get it Americans are fat and stupid. Funny. Or maybe we just don’t need to these tired old tropes anymore. In a day and age where we can’t call a virus by the geographic area it originated from, maybe we should also stop with bigoted and offensive stereotypes like this too.

        1. No, it was an appropriate response to somebody who 1) doesn’t know that not “almost everyone there” in South America looks white, and 2) thinks that there’s a “standard US American.”

          Only three countries in South America have a white majority (Argentina, Uruguay, and Chile), and one other has white as the largest group but not a majority (Brazil).

          1. That’s interesting doc. Are you saying that Mexico is not majority white of Hispanic/Latino ethnicity? Are they majority Native American?

          2. What’s a “White majority” in Argentina mean? Exactly?

        2. Jimmy,
          No need to lie about what Emu wrote. Americans are fat. Really really fat. Emu said nothing about them being stupid. And you knew that.
          (For a really impressive figure, go to Nauru, where an amazing 95% of adults are obese. Well over double the US rate.)

          1. If truth is suddenly a defense to offensiveness then what would you say if someone asserted blacks really do have a lower IQ or Jews really do have more money on average? Just curious.

            1. Those are hate facts. Simply noticing them makes you a bad person.

            2. Jimmy,
              I read your comment as, “I am sorry about lying about what Emu wrote. Now, here’s a nice digression to something else.”

      2. Descended from the British Protestants who founded this nation. Everyone else is just a guest and has to go back.

    2. Probably not. These types of laws are intended to benefit people who are not white without running afoul of constitutional race discrimination issues.

  3. War is Peace.
    We have always been at war with Oceania.
    Lies from the Ministry of Truth.

  4. . But it would be passing strange if the Spanish were deemed to not be of Spanish culture.

    Moreover, what else would “other Spanish culture” even refer to, given that they already accounted for Central and South America?

    (I guess one could argue that since it mentions Cuba and Puerto Rico separately, that the Caribbean isn’t encompassed by Central and South America, and therefore “other Spanish culture” was meant to refer to Spanish Caribbean islands.)

    1. The Philippines, perhaps?

      1. My wife’s from the Philippines, and certainly doesn’t count as “hispanic” for these purposes. I guess the “Asian” part overrides it.

        1. Well, my wife is from the Philippines also, and quite a few of them consider themselves Hispanic. The Northwest Indiana Professional Hispanic organization was headed for many years by a local Filipino journalist who worked as a reporter for the Northwest Indiana Times.

    2. Portugal and Brazil — are they Spanish culture?

      1. Sure, if you want to die.

    3. ‘Other Spanish culture’ could refer to Equatorial Guinea.

  5. “The EEOC definition, then and now is as follows. . . .”

    Prof. Bernstein, can you post the EEOC link to this definition?

    I did a search on the EEOC web site but only got lots of other stuff.

    1. Here is some pretty similar wording from eeoc.gov:

      “Definitions of the EEO-1 race and ethnicity categories are as follows:

      Hispanic or Latino – A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.”

      1. Hmm, that was the general definition adopted by the OMB in 1978 for use throughout the government, but I found a 1988 source that left off “or origin.” So now I’m not sure what the EEOC definition was in 1988, but it would of course be even stranger if Spanish people did not come within the definition of “Spanish origin.”

  6. I wonder how Portugal and Brazil fit into this scheme? Even aside from Portugal and Spain being “united” for a time under one king.

    As a kid, I always wondered how black blood was so powerful and white blood so weak than a single drop of black blood could pollute white blood so easily. Even aside from that one drop scheme, the idea that one black and one white parent creates black kids seemed too weird for me to understand. Some racists used to joke that Obama could easily be called white instead of black since he really did have “pure” white and black parents; could they not see hwo silly it made all racial classifications?

    Just drop the questions and classifications. Make government truly color blind, and leave civil society to all its mixed-up confused prejudices; the market would quickly leave the bigots to themselves.

    1. Portuguese count as Hispanic for federal SBA and DOT (transportation purposes). In fact there was a mini-scandal in Washington DC around 1990 when it turned out that three Portuguese brothers got the vast majority of transportation contracts set aside for “minorities.” Portuguese are not included in the general federal definition of “Hispanic,” which matches the EEOC definition.

    2. the market would quickly leave the bigots to themselves.

      You mean like it did before?

      1. Society moves on. I haven’t seen an ‘Irish need not apply’ sign in some time.

        1. Yeah. It moves on, a little, with a lot of pushes from the government.

          1. Sure. For example, the original affirmative action stuff in say 1970 was an awesomely good idea. But that was 50 years ago, and policy needs to keep up with the times. It’s not clear that, say, advantaging Carlos Slim relative to some Appalachian kid today is smart; policy needs to be adaptive to current conditions.

            “lot of pushes from the government”

            Sometimes yes, sometimes no. Society wised up about the Catholics and the Irish, for example, without a whole lot of coercion.

            1. It’s not clear that, say, advantaging Carlos Slim relative to some Appalachian kid today is smart; policy needs to be adaptive to current conditions.

              I don’t totally disagree with you. I would like to see more attention paid to systematic disadvantage broadly.

              1. I’m concur with that. I just think it’s time to do it on an individualized basis. In 1970, the percentage of blacks that had experienced severe, pervasive, lifelong discrimination was 99.93765% (sorry, no link). But today it’s less obvious that, say, Colin Powell’s or Obama’s kids have trod a rougher path than, say, some Bosnian/Syrian/Hmong refugee or her kids.

                That makes it harder to do in some ways, and easier in others. Giving kids a leg up in college admissions based on the inverse of their parent’s income seems easier than adjudicating how much preference to give to the 1/4 Hmong, 1/4 Hispanic, 1/2 German Muslim kid.

                And some unequal opportunities probably can’t be fixed. People born beautiful have a large advantage over ugly people, but I can’t see much of a path for government intervention to fix that.

                1. ‘I’, not ‘I’m’.

          2. No, actually it almost entirely goes the other way. Social pressure precedes laws. Apartheid fell despite the laws supporting it, not because of any change in the laws or government.

            The times that laws become “necessary” are usually to reverse some other unwarranted government intrusion. Consider, for example, that the entire DOMA/gay marriage debate would have been largely irrelevant if the government hadn’t already inserted itself into the business of marriage contracts.

            1. No, actually it almost entirely goes the other way. Social pressure precedes laws.

              Often that’s the case. But social pressure has produced discriminatory law as well. That’s what I meant by saying the Jim Crow laws were not necessarily a binding constraint. White southerners overwhelmingly favored those laws. Overwhelmingly. They would have acted as they did even without them.

              In fact, many southern elections became a contest to see which candidate could more loudly defend Jim Crow. As George Wallace famously noted, that was a winning strategy.

      2. The paradox is that if discrimination is sufficiently popular that it has a significant effect on people’s economic prospects it’s very unlikely that legislation can be passed *and enforced* that will have any significant effect on discrimination. (I say and enforced because, as a historical matter, a lot of northern states had antidiscrimination legislation in place well before the modern civil rights era. It just didn’t do very much).

        1. The paradox is that if discrimination is sufficiently popular that it has a significant effect on people’s economic prospects it’s very unlikely that legislation can be passed *and enforced* that will have any significant effect on discrimination.

          You mean the 1964 CRA had no effect?

          And doesn’t the example of discrimination in the North, not required by law, prove that the market won’t fix it?

          1. The 64 Act was an example of the majority imposing its will on a geographic minority. For 100 years or so previously, it worked the other way, e.g., until 1948 the armed forces were segregated because of the will of the minority. No one sensible thinks that the market “solves” discrimination. Basically, the market will mitigate discrimination. The government can either mitigate it further, or make it worse. But you won’t find any example where a strong majority of the voting public favored discrimination, but the government both passed an successfully enforced antidiscrimination law. So if as in 1964 the trends are favorable and the majority is on board, the government can accelerate the trends. If as in 1890 the reverse is true, government can also accelerate the trend.

            1. Indeed, a representative government is typically only going to be as good as the public it represents, if that. Usually not even that good, because government doesn’t attract the best of us.

              That’s the current problem, actually. I think the general populace is ready to move past racially discriminatory “remedies” for long past discrimination, and embrace color blind government. You’ve seen this in multiple voter initiatives banning governmental discrimination.

              But the ‘elites’ who run the government aren’t ready to go there yet, and are dragging their heels on it. I suppose because systems of preferences are handy for buying votes.

            2. No one sensible thinks that the market “solves” discrimination.

              I have heard that sentiment expressed quite often, on this blog and elsewhere.

              the market will mitigate discrimination.

              No it won’t. Not necessarily. It may well reinforce it. Consider the example I gave above of a restaurant owner in a racist society. That owner, whatever his personal views, will find it economically rational to refuse to serve blacks, just as a business owner will find it rational to avoid promoting them, however skilled and diligent.

              1. No one sensible thinks that the market “solves” discrimination.

                But see.

                Now, I think this oversimplifies Becker’s arguments considerably, but you can find lots of similar articles and comments all over the place.

      3. You mean like slavery and Jim Crow, which were government mandates?

        Apparently you have forgotten that in Plessey, the railroad was happy to have integrated cars, and apparently its customers were just as happy; it was the government which forced segregation.

        Yes indeed, markets will do the right thing, government will do the wrong thing, and thus it has always been.

        1. Yeah. Plessy. The last refuge of idiot libertarianism.

          That’s just ridiculous.

          The market will do the wrong thing, when the wrong thing is profitable, which it certainly is in a racist society.

          You want a nice symbol? When black college students staged a famous sit-in at Woolworth’s in Greensboro there was no law preventing the store from serving them. It was store policy. That’s all.

          You ignore a huge number of examples where the market didn’t do the right thing. Start with employment practices, which were mostly not governed by Jim Crow laws. Then proceed to discrimination in parts of the country where there were no Jim Crow laws. Then..

          And there is a pretty good case that Jim Crow laws really weren’t the binding constraint in the South. The public was extremely racist. Whites weren’t bursting with desire to eat in restaurants where blacks also ate, etc. A rational restaurant owner would refuse to serve blacks, Jim Crow or not, just as rational business owners would never promote a black employee to supervise whites.

          So take your reflexive, “Oh it was all because of the evil government,” nonsense and shove it.

          1. He’s right about Plessy. The railroad wanted to be integrated, and cooperated with a New Orleans civil rights organization to set up a test case to challenge the La. segregation law. That’s just the historical fact, I don’t think that’s nearly sufficient to draw broad conclusions, but it does happen to be true.

            1. Yes, I’m aware of the facts of Plessy.

              I’m just tired of seeing it trotted out in these discussions to “prove” that markets will “do the right thing,” as Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf says.

              Not only should we not draw “broad conclusions,” I don’t think we can generalize much from that at all. Among other things, a monopoly streetcar business is pretty atypical.

            2. It’s not a all clear the railroad wanted to be integrated as we think of the word now. The law in question required separate cars for blacks and white and often neither car was fully occupied. What the railroad really wanted was not to have to haul around empty or nearly empty cars.

            3. Another example of the market encouraging discrimination is the once widespread real estate covenants that prohibited the sale of homes to blacks or Jews.

              Surely “discrimination-blind” thinking would lead one to conclude that these were economically unwise, as they restricted the pool of potential buyers. But of course that was the point. Presumably that restriction was intended to appeal to enough buyers, and add enough value to the homes, that the benefit outweighed the loss from declaring some potential buyers unwelcome.

          2. “When black college students staged a famous sit-in at Woolworth’s in Greensboro there was no law preventing the store from serving them. It was store policy. That’s all.”

            And the black college students convinced them to change their policy. 4 years before the CRA of 1964.

            1. Good for them, but why was the policy ever put in place, if the market solves discrimination?

              1. Look at those goalposts fly!
                You are presented with a case where the market convinced the store to change its policy, and now you claim that “the market” can only matter if had somehow prevented the policy from existing in the first place!

                1. Not flying at all.

                  You can’t say, “See the market fixed it so that proves it’s wonderful and will always fix things,” when it didn’t fix it for decades, probably, and Woolworth’s had to be kicked in the ass to change things.

                  The logic of “market fixes” is that economic rationality works on its own, silently and efficiently. That’s not what happened here.

              2. “Good for them, but why was the policy ever put in place, if the market solves discrimination?”

                Why did the government let them put it in place, if the government solves discrimination?

                You understand that we had a civil rights movement, right? It’s not like politicians one day said, hey, let’s end discrimination, and they passed the civil rights act. The CRM affect both public policy and private decision-making.

    3. A lot of slaves had significant Irish ancestry.

  7. According to the Izarry, however, the school system used the EEOC definition of Hispanic, which she said only includes people from the Western Hemisphere.

    The joke’s on her. Most of Spain, except Catalonia, is west of the Prime Meridian, and thus is located in the Western Hemisphere.

    1. I expect they’re going by the Tordesillas meridian.

    2. When we’re talking USFG the Western Hemisphere just means the Americas.

  8. Boston, eh ? Isn’t that quite near Harvard ?

    Lizzie, call your lawyer.

  9. I’m sure “the law” varies a lot over the U.S. On occasion, Spaniards don’t want to be considered “Hispanic” because they like to think of themselves as “European” rather than Latin American. For centuries in Latin America, native-born Spaniards took social precedence over “colonials” of “pure” Spanish descent. There are all sorts of games one can play. Years ago I met a woman from Argentina who was in the U.S. on a scholarship from Notre Dame for Hispanics. Her parents were both “Dutch”–“Dutch” as in “Deutschland”, I suspect. She spoke Spanish fluently but her English had a heavy German accent.

    1. Don’t ask her parents what they did in the war!

      (note: strictly a joke)

      1. More likely her grandparents at this point.

      2. No it’s fine.

        I’m sure they were in the Underground.

  10. Hispanic is a term made up by Anglo sociologists. The people they call “Hispanic” call themselves, Mexican, Columbian, Venezuelan, etc. — not Hispanic. I learned this at a church seminar taught by a Mexican.

    1. I think you’re confusing things. Hispanic as a census term to apply to people with origins south of the border, long-ago annexed parts of Mexico, or in parts of the Caribbean is partially artificial. Hispanic as a general term certainly wasn’t made up by sociologists; we’ve had the term for centuries and was already common currency for Spanish-speaking New Worlders in the US a century ago.

      As for what they call themselves, no, most of them of recent extraction do not call themselves “Hispanic” because in Spanish it means Spanish as in the country. However, many do call themselves “Latino” because it does mean “Latin American” in Spanish.

  11. Are Brazilians Hispanic? Asking for a friend.

    1. No, they are nuts.

  12. “Now, there has been ongoing controversy over whether being “Spanish” should count as “Hispanic” for affirmative action purposes. It does for federal set-asides and the Small Business Administration’s Minority Business Enterprise Program, but several states instead either use the Latino category or use a definition of Hispanic that excludes people from Spain.”

    To avoid all these decisions which are all over the map, we should get a central Racial Classification Board like they had in apartheid South Africa, resolving all borderline cases and making sure everyone was on the same page.

    1. Or Nuremburg Racial Purity Laws, like the Nazis wrote.

    2. Or, we could just stop making racial classifications.

      1. No, no, it’s just that there are a few bugs in our existing system of racial classifications, just work those out and we’ll be OK.

        /sarc

  13. I haven’t studied the cases, but if they haven’t probed the limits of what constitutes Hispanic culture, surely they will as peoples mingle. My English-only, five-year-old grandson with fair complexion and red hair is surnamed “Garza.” He just recently allowed that maybe enchiladas aren’t as bad as he’d thought. What’s his culture?

    1. If he wants to have a future in this country, what do you think it had better be???

    2. His nickname can be Canelo like the Mexican boxer.

  14. Let me see if I have this straight — a person from Spain doesn’t count, but a person from Mexico whose parents were from Spain does count. And this is supposed to be morally defensible?

    And why doesn’t a White South African count as “African” as the person was born in Africa….

    1. It is all so dumb and black Americans should really take the lead on this because they are the party most harmed by including others in the oppressed minority category. Even most Chinacos shouldn’t be included because the vast majority came here after the Civil Rights movement and so they and their descendants were never subject to de jure racism and chose to come to America.

      1. Why are African immigrants considered descendants of American slaves? They actually are the descendants of those who enslaved them…

        1. They shouldn’t be and American blacks should take the lead on that too. Diversity harms American blacks and whites and it is very obviously racism.

    2. “And why doesn’t a White South African count as “African” as the person was born in Africa….”

      Is there some specific issue you’re talking about? I imagine most relevant federal and state programs don’t target “Africans” except for immigration assistance and I haven’t heard that white Africans can’t take advantage of programs like that.

      1. Africans are big beneficiaries of diversity at Ivy League colleges.

  15. I don’t see how it would be “fraud” even if a specific definition excluded Spain. Unless the forms make it very clear that Spain is excluded, I would think a lot of descendants of Spaniards would fairly call themselves Hispanic.

    1. They are white Hispanics—white Europeans. The reason they could sneak into minority status is because Spanish emigrants had many places to go like Cuba and Argentina and Mexico so they weren’t coming here in the same numbers as other Europeans during the Great Wave. So America didn’t have that many people with Spanish surnames prior to the 1965 Immigration Act.

      1. There were “hispanic” immigrants just after 1776. Isleños settled in Louisiana and Texas. Many of those old families continue to with Spanish surnames and were well integrated into “white” society. I have a friend who immigrated from Cuba but his parents were born in Spain. Many Cubans and Puerto Ricans are fully integrated into white society,

        1. Senator Salazar from Colorado is an example of an American of Spanish descent whose family settled here during colonial times—Hispanos is a term coined in the 1930s to differentiate them from other Hispanics in America.

      2. “America didn’t have that many people with Spanish surnames prior to the 1965 Immigration Act.”

        California has an awful lot of places with Spanish names. It didn’t start out part of the United States, but it’s been in America the whole time.

  16. What’s this “Hispanic” nonsense? Isn’t the proper woke description now “Latinx”?

  17. Interestingly, while there are plenty of people willing to defend some some Platonic ideal of racial preferences, I am not aware of anyone who actually comes out and defends the status quo as representing a good form of racial-preference policy.

    Yet obviously *someone* likes the status quo since it’s the status quo.

  18. These preferences provide a means of legal graft, allowing politicians the opportunity to steer money to favored constituents/supporters.

  19. This whole line of posts makes me think of an NFL game with David in the stands continually yelling, “Why are you calling this ‘football’?
    Only soccer can be called ‘football’! Just ask the rest of the world!”

    1. “Only soccer can be called ‘football’! Just ask the rest of the world!”

      The NFL successfully sells tickets for not-soccer games when it holds games outside the USA. See also Australian rules football, which is also not soccer.

  20. “Are you of Spanish culture?”

    “I didn’t expect a kind of Spanish Inquisition!”

    1. NOBODY expects the Spanish Inquisition!

      Something ruthlessness something something slavish devotion to the Pope!
      Wait, start again!

  21. But it would be passing strange if the Spanish were deemed to not be of Spanish culture.

    By coincidence, I am right now reading a terrific book, by Antony Beevor: The Battle for Spain: The Spanish Civil War 1936-1939

    Two things I have learned so far:

    1. I always understood that I never understood the Spanish Civil War. Beevor’s book shows by example why that was, because too many authors writing about The Spanish Civil War have not been up to the task of disentangling all the factions. Beevor does that with care, while lightly exploring the historical roots of many of them. Understanding begins to dawn.

    2. There were a lot of folks in Spain who had thought for a long time that other folks in Spain, “were deemed to not be of Spanish culture.” The ins and outs were various, bewildering, reciprocated, and of long standing.

    1. Considering that there are some parts of Spain that right now don’t think they want to be part of Spain, getting those factions properly disentangled seems a wise idea.

  22. It also gets confusing when you toss Brazil and Portugal into the mix. While not Hispanic, aren’t they Latino? The difference between the language is not great, as are names and such. Like Lopes instead of Lopez. Gomes instead of Gomez.

    1. “It also gets confusing when you toss Brazil and Portugal into the mix.”

      To some people, it’s all just Mexico once you’re past the Rio Grande. The notion that there are different peoples and cultures down there just draws a blank look from them.

      1. Quite true. In parts of rural America they don’t know Paraguay from Pakistan.

  23. One of the alleged points of minority mandates is to correct for prior discrimination. So perhaps showing the prior (or present) discrimination should be part of the qualification, instead of just sharing traits such as skin tone or language with people who’ve suffered from prior discrimination.

  24. But . . . Hispanics are from Spain. From any Spanish speaking country – so not Brazilians.

    Latinos are from Latin America.

    1. Do they call it Latin America because the Roman Catholic Church is so popular there? Doctors and lawyers are the only other ones making any significant use of Latin these days.

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