The Volokh Conspiracy

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Are Spaniards "Persons of Spanish Culture"?

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


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.