Who is Hispanic, by Law?

It depends on the judge you get


I've been busy sending out my new draft article, "The Modern American Law of Race," to law reviews. I've blogged about some of the interesting cases on racial and ethnic identity I discuss, and I thought I'd do one more, this time summarizing some Small Business Administration cases on Hispanic status. I believe I'm the only one to have ever noticed and written about them.

In DCS Elec., Inc., an administrative law judge upheld a hearing officer's ruling that a blond-haired light-skinned business owner who had undisputed Hispanic ancestry and spoke Spanish was not Hispanic for the purposes for SBA regulations. The hearing officer had found that she did not identify as Hispanic, nor, given her non-Spanish maiden and married last names, appearance, and accent, did others identify her as such. The ALJ found that the hearing officer's conclusion that she had not been denied business opportunities as a "Hispanic" and therefore did not qualify for the 8(a) program was not arbitrary and capricious. In a footnote in the decision, the judge noted that, "the [SBA's] regulations are not clear as to the meaning of the term 'Hispanic American,' i.e. whether it includes only Hispanics from this Continent."

By contrast, in Rothschild-Lynn Legal & Fin. Servs, an administrative law judge overturned an SBA hearing officer's ruling that a Sephardic Jew whose ancestors had fled Spain centuries earlier was ineligible for certification as a Hispanic. The judge stated that the relevant statute presumes discrimination based on Hispanic status, so once the applicant showed that he was of Spanish ancestry, the hearing officer erred in requiring him to also provide evidence that he had been discriminated against because of that ancestry.

In Garza Telecomm., Inc., a hearing officer found two siblings whose mother is Hispanic to be white because their birth certificates stated that their color or race is white. On appeal, the administrative law judge reversed, chiding the SBA for erroneously assuming that someone in the white racial category could not belong to the Hispanic ethnic category. The judge concluded that "whether an individual is white, black, or any other race bears no relationship to his or her ethnicity." The judge also ruled that since the SBA had found that the siblings' mother was Hispanic, it should have necessarily found that they were also Hispanic.

NEXT: Bill Barr as Bogeyman

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  1. And this is why government-mandated benefits for selected ethnicity groups and racial groups is wrong.

    1. What about religious claimants?

      1. Yes, government mandated benefits for selected religious groups would be wrong, too.

        I’ve said it before: If we sufficiently respected individual rights in general, religious liberty wouldn’t NEED any special accommodations, because anything it would make sense to permit for religious reasons would already be allowed for secular reasons anyway. Religion’s need for special accommodations is a symptom of our lack of secular liberty.

        1. Government-mandated benefits for selected religious groups is what we have and what “religious freedom” advocates propose.

          1. Like what “benefits”? The same “benefits” every non-profit group gets?

            Or can I as a good Catholic/Muslim/Jedi go and get preference for a government/state contract because I’m a selected religion?

            1. Like the benefits of entitlement to violate certain laws, or to refrain from paying taxes, or to claim immunity from labor laws, or to discriminate against citizens . . . based on a claim of superstition.

              1. “or to refrain from paying taxes”

                So…you’re saying if someone’s Jewish, they don’t need to pay income taxes? Just because they’re Jewish? I don’t see that anywhere in the tax code.

                Or, are you perhaps referring to non-profit churches? So…just like every other non-profit organization, religious or not, they don’t need to pay taxes? Perhaps you think they should pay taxes, despite being a non-profit?

                1. At least let me see the church’s 990.

                2. Churches mostly provide entertainment (big bands, for example), child care, summer camps, coffeehouses, bingo games, and other commercial services. Bruce Springsteen does everything for the soul that any Bible-thumper can, and is a better musician, and he pays taxes while the preacher freeloads.

                  Only the most dedicated Republican would try to argue that a televangelist who rakes in millions from gullible clingers, or a faith healer such as Benny Hinn who buys jets and mansions with offerings from credulous and downscale believers, deserves to be a parasite sponging off taxpayers.

                  Organized religion is a racket. A diminishing racket, as science and knowledge overtake superstitious and gullibility. As the number of credulous church-goers declines, the day when superstition-based claims are granted undeserved special privilege approaches.

                  Choose reason. Every time. Be an adult. Or, at least, try.

  2. ” The judge also ruled that since the SBA had found that the siblings’ mother was Hispanic, it should have necessarily found that they were also Hispanic.”

    Playing that forward, it seems that we will all be Hispanic by and by.

    1. One drop is all it takes!

      1. LOL Brett.

        Although for federal government purposes, one usually is required to have at least 50% minority heritage to qualify. I knew a contractor in NM who’s mother was Hispanic and his father was white. He was considered minority for government purposes.

        Not to mention the various percentages used by Native American tribes. Then you have to consider Alaska Natives, Pacific Islanders, and Hawaiian Natives. I’m not sure what the percentages are for those US government approved Races.

        Then we have issues like Sen. Warren lying about her Native American status to gain an advantage in both school and work.

        1. I know lots of African Americans who are less than 50% black. What about Afro-Hispanics?

    2. No. Humans originated in Africa. That means we are all Afro-Americans.

  3. King Juan Carlos is Hispanic. He clearly needs affirmative action support.

  4. In general, the existence of edge cases that present difficulties for a rule is not really much of an argument against the rule.

    The argument is beloved of lawyers, of course, but the problem is that there are always edge cases, whether the rule makes sense or not.

    1. When the US court of law is defining your race and/or ethnicity, and using that government-defined race and/or ethnicity to bestow benefits or penalties upon you…

      There’s a problem.


      1. But that’s not the argument Bernstein is making.

        1. Bernstein isn’t making any arguments. He’s simply relating interesting cases about ethnicity.

    2. We should judge and treat people by race!~Liberalism 2020

      1. We should judge and treat people by superstition!– Clingers

    3. A mature, nuanced comment which is totally out of place here.

    4. True, but absurd edge cases can highlight that a rule is forcing you to draw distinctions that shouldn’t be relevant to anything.

      1. OK, Brett, but it’s sort of a cheap shot, really, and not really relevant to the objection.

        Pointing out that there are cases where a distinction is difficult to make is not an argument that it shouldn’t be made.

        I’m sure that it is sometimes difficult for a jury to decide exactly what category a homicide falls into. That doesn’t mean we should abandon those distinctions.

        1. I think this says it all:

          “The judge stated that the relevant statute presumes discrimination based on Hispanic status, so once the applicant showed that he was of Spanish ancestry, the hearing officer erred in requiring him to also provide evidence that he had been discriminated against because of that ancestry.”

          This is precisely the problem with these sorts of laws: Identifying whether somebody belongs to a group becomes the whole game, because the group membership is assumed to tell you everything you need to know about the person.

          This automatically leads to the edge cases becoming important, and being decided on criteria that are rationally indefensible.

    5. Three issues. First, courts are split as to whether the scope of categories for affirmative action, as opposed to use of affirmative action in general, is subject to rational basis or strict scrutiny. If the latter, it’s a real problem, as categories like Asian and Hispanic can’t possibly pass strict scrutiny.
      Second, the government sort of fell in to using the relevant categories, without any public justification for, e.g., why white people of Hispanic origin get preferences, but, say, Yemini Muslims do not. The government should be more thoughtful about how and why it used particular categories.
      Third, and this should be of special concern to affirmative action proponents, the relevant categories are sufficiently broad and vague and intermarriage being what it is that in a generation or so, most Americans will be eligible for affirmative action, and only a small minority of those eligible will be descendants of American slaves.

      1. I don’t have any firm statistics, but I have an educated guess that it’s already the case that the vast majority of federal and state contracting preferences, originally meant primarily to benefit African Americans, go to Asians, Hispanics, and Native Americans.

    6. I make this argument frequently, especially when edge cases are used to find rules unconstitutional. I appreciate your picking up on it.

      When we don’t like a rule, we tend to look for edge cases that don’t make sense and conclude “this rule doesn’t make sense.”

      When we like the rule, the edge cases don’t bother us.

    7. Really, there ought to be a central bureaucracy to resolve all the “edge cases” rather than relying on ad hoc litigation to weed out fakers and opportunists.

      How about a Race Classification Appeal Board?


    8. Since when have the “edge cases” not been an argument against rules? If your rule causes significant problems, even for a minority, perhaps the rule is ill conceived.

  5. hearing officer found two siblings whose mother is Hispanic to be white because their birth certificates stated that their color or race is white.

    Birth certificates are now meaningless for identification; they cannot even correctly designate sex.

    1. “they cannot even correctly designate sex”

      If blind person is filling it out, then you are right.

      Even then, one can feel the difference.

    2. I find it sad but amusing that the hearing officer didn’t know US gov’t race and ethnic background are two different issues.

      US Gov’t previously recognized 3 race classifications:

      US Gov’t now recognizes 5 race classifications (and bi-/multi-racial):
      Native American / Alaska Native
      Pacific Islander / Native Hawaiian

      US Gov’t White race includes Arabs, Jews, Hispanic/Latino (Spain European descent), etc.

      IOW they created a huge mess.

      1. Federally mandated affirmative action plans (required for large enough companies with government contracts) have Hispanic and “White (non-Hispanic)” as required race categories.

  6. When reality collides with race politics.

  7. It is bizarre that some think that affirmative action in a multiethnic democracy will work well. he civil service and whole swathes of the private sector will devolve into an ethnic spoils system like India or Malaysia.
    And labeling something “goals” rather than “quotas” changes absolutely nothing.

    1. This is not really a multiethnic democracy.

  8. Why are there special laws for Hispanics, but not Greeks, Slavs, or Gaelics (or should they be called Greex, Slavix, or Gaelix)?

    1. Discussed in detail in the article

      1. “Discussed in detail in the article…” to which we have no access.

        1. Something for you to look forward to when it’s published!
          More seriously, I’d be happy to send a draft.

    2. If I want to have a non-denominational ethnicity, can I choose to identify as a publia? But since I don’t want to gender it, can I be called a publix? Just to mess with the grocery chain.

  9. You’re doing equal protection under the law wrong, if you find yourself needing to make determinations like this.

  10. Oh, come on. If you identify as Hispanic, even if genetically or culturally there is nothing Hispanic about you, you should be Hispanic under the law. Forget those outmoded social constructs that brand you with an ethnicity because of how you were born.

  11. Title VII violates the 14th Amendment by giving certain persons superior, i.e., unequal rights based on skin color or place of birth.
    Content of their character…..

  12. There are more REAL differences between men and women than there are between “races” (that do not exist) and ethnic/tribal groups (which exist, but people make WAY too much of.)

    The Democrat party is racist to its core — period.

  13. I found it interesting that an ALJ determined that if a person’s birth certificate listed their race as White, they could not be Hispanic. In at least the 1950s and probably many other decades, the birth certificate in America’s most Hispanic state (New Mexico) listed only four possible racial classifications: “White, Red, Yellow and Black.” Hispanic babies were routinely determined to fall into the White category. No doubt because, for many years, most Hispanics in the state described their ethnic background as “Spanish.”

  14. Is Scott Fujita – a white, adopted by a Japanese father and a white mother and raised in a traditional Japanese household an Asian?
    His father was born at the Gila River War Relocation Center in Phoenix, Arizona. His Grandfather Nagao was a 442nd Infantry Regimental Combat Team combat veteran

    1. The answer, under federal procurement law, is no. “Asian” is defined by the geographic region of one’s ancestors. Even if Scott had been born and raised in Japan, he still wouldn’t be “Asian” under the law.

      1. Is the analysis the same for Hispanic status? Let’s imagine an individual who was adopted by a Hispanic family and raised with strong Spanish-language, Latin American influences.

  15. This country has a rich history of courts’ determining race:

    ‘The indictment in this case charges that one of the defendants is a person of Caucasian or white race, and the other “a person of the negro or black race, to wit, an octoroon,” and that they “did co-habit together and live in concubinage,” in violation of section 1 of Act No. 87 of 1908, which reads as follows:

    “Section 1. Be it enacted by the General Assembly of the state of Louisiana, that concubinage between a person of the Caucasian or white race and a person of the negro or black race is hereby made a felony, and whoever shall be convicted thereof in any court of competent jurisdiction shall for each offense be sentenced to imprisonment at the discretion of the court for a term of not less than one month nor more than one year with or without hard labor.”

    The sole question is whether an octoroon is “a person of the negro or black race” within the meaning of this statute.’

    State v. Treadway, 52 So. 500, 500-01 (La. 1910)

    The State had appealed the acquittal of the defendants in the case. After a long survey of dictionary definitions, history, and judicial decisions from other states, the court, in a 3-2 decision, held that an “octoroon” was not a “negro” and affirmed the acquittals.

  16. Why not go straight to the horses mouth in such matters and just adopt the 1935 Nürnberger Gesetze with appropriate modifications for the race or culture you want to destroy or elevate?


  17. I had to re-read that line about someone being white and hispanic at the same time. “whether an individual is white, black, or any other race bears no relationship to his or her ethnicity.”

    That’s unpossible. I don’t know who manufactured separate definitions for race and ethnicity (probably the same people who tell you gender isn’t a synonym for sex), but there’s some doublethink going on here. The judge claims race and ethnicity are separate, but the rationale is “whose mother is Hispanic.” So is ethnicity race, or is it not? Is it genetic, or is it sociocultural? And even if it is an ethnicity, by that definition, how is white not also an ethnicity? And how can the claimant be of a white ethnicity with no white ancestry just because the color of their skin passes for the American standard of whiteness?

    This is why these laws are garbage. Such a stupid subject. We’re all mutts, stop giving people preferential treatment for arbitrary categories that nobody can agree upon.

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