The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Is an American of Indian Descent Raised in Iran and Who Held Iranian Citizenship Indian or Iranian for Affirmative Action Purposes?


When I started researching my book, Classified: The Untold Story of Racial Classification in America, the law review literature asserted that racial classification, in practice, was almost entirely a matter of self-identification. While federal law specified the classifications and their definitions, in practice people could check whatever box they wanted, and no one ever checked. In fact, according to the relevant literature, there was only one case, ever, in which an individual's self-identification was questioned. This was an infamous case involving two Irish-American firefighters in Boston who claimed to be African American to take advantage of the fire department's affirmative action policies.

I was confident that there were more such cases, in part because Eugene Volokh once blogged about such a case involving whether New York State could constitutionally decide that a contractor of Spanish descent was not Hispanic for state purposes, even though he was Hispanic for federal purposes. In the end, I found a couple of dozen such cases, mostly involving minority business enterprise preferences, and mostly involving the Hispanic classification, though also others involving claims of American Indian, African American, and Asian American identity. Many of those cases wound up being cited in Justice Gorsuch's concurring opinion in SFSA v. Harvard.

I assumed that these were just the tip of the iceberg, as I relied on publicly available judicial or administrative rulings, or media coverage. Most disputes, I figured, were decided within the bowels of government bureaucracies, and the only way to find them would be to comb through thousands of unpublished records, if you could first figure out where those records were located. It wasn't sufficiently important to my book to undertake such an efforts.

That said, I did just happen upon another such dispute over identity, discussed briefly in a 1989 GAO report on fraud in disadvantaged business enterprise programs. As background, at the time Iranian Americans were classified as white, and thus not "minorities" eligible for DBE preferences, while Indian Americans were classified as Asian American and therefore were eligible.

An anonymous letter alleged that the president of an engineering DBE did not oversee the firm's day-to-day management and that the firm was controlled by the vice president, who was a white male. It was also alleged that the president was Iranian-born and thus not eligible to participate in the program. The investigation disclosed that there was no apparent problem with control since the president drew the largest sal- ary, signed all company checks, and was the only person in the firm with an engineering degree. It was also determined that the DBE president was raised in Iran and held Iranian citizenship, but that his parents were of Indian descent. During the reassessment process, the state transportation agency requested an advisory opinion from DOT concerning whether a person born in Iran to Indian parents is Iranian or Indian for purposes of DBE program participation. The state agency eventually recertified the DBE based on the DOT ruling that the controlling factor was a person's heritage not citizenship.

This decision seems correct, as Asian American is defined under federal law as someone descended from one of the original peoples of Asia. But it does raise the question of how far one can take that principal. Are Parsi Indians, descendants of Zoroastrians who fled Iran hundreds of years ago to escape Muslim persecution Indian, or Iranian? How about Baghdadi Jews from India whose ancestors moved to India from Iraq in the 19th century? Is there any statute of limitations here? In practice, though, I suspect that so long as an individual's ancestors had Indian citizenship, it's very unlikely anyone will question whether they are "really" Indian and thus Asian American.

Anyway, the existence of this case reinforces my suspicion that there are many more such cases reported somewhere in bowels of government archives.