The Volokh Conspiracy

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Why Does the Supreme Court Refer to Preferences for Hispanics/Latinos as "Racial Preferences"?

Officially, Hispanics are an ethnicity that can be of any race, not a racial minority. I clear up the mystery in this blog post.


As discussed in my forthcoming book, Classified, when the Office of Management and Budget created the official Statistical Directive 15 "Hispanic" (later changed to Hispanic or Latino) category in 1977, it dictated that Hispanic was an ethnic classification, not a racial one. Despite occasional efforts to change the category to a racial one, most recently with the blessing of the Obama administration, it has remained an ethnic category ever since. This surprised me, because not only are Hispanics often colloquially often referred to a racial minority, but the Supreme Court has consistently referred to preferences for Hispanics in higher education as "racial preferences."

In the course of my research, I cleared up the mystery. When the Statistical Directive 15 categories went into effect, most government agencies that collected racial and ethnic statistics responded by placing a two-part race/ethnicity question on demographic forms. These forms asked individuals if they were Hispanic and, separately, what race they saw themselves as belonging to (White, Black, Native American, or Asian American).

The Department of Education, however, demurred. Its Office of Civil Rights left it up to the schools and universities gathering statistics about their applicants and student bodies to decide whether to use a two-part question or a one-part question. A one-part question asks individuals whether they are Black, White, Hispanic, Native American, or Asian.

Universities overwhelmingly chose the one-question route. This made Hispanic status the equivalent of a racial status—for example, one could not be both Hispanic and White on these universities' admissions forms.

The Department of Education did not change its rules to require a two-question ethnicity classification until 2007, about a decade after OMB told the Department it had to do so. By then, the notion that Hispanic affirmative action preferences in university admissions amounted to a "racial" preference was entrenched. But for whatever it's worth, as far as the U.S. government is concerned, preferences for African Americans, Native Americans, and Hawaiians and Pacific Islanders are "racial" preferences, while preferences for Hispanics are "ethnic" preferences, and Hispanics can be of any race. [About fifty percent of Hispanic check the White box on forms, most of the rest identify themselves as "other"].