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

In my book Classified I discuss the fact that when the Office of Management and Budget introduced the Statistical Directive 15 “Hispanic”, later changed to Hispanic (or Latino) in 1977, it stated that Hispanic is an ethnic category and not a racial. It has been an ethnic category since its inception, despite occasional attempts to make it a racial category, including the Obama Administration’s blessing. I was surprised by this because, not only is Hispanics commonly referred as a racial minority, but also the Supreme Court consistently refers to Hispanic preferences in higher education as “racial preferences”.

As a result of my research I was able to solve the mystery. The Statistical Directive 15 categories were implemented. Most agencies which collect racial/ethnic statistics used two-part race/ethnicity questions to fill out demographic forms. The forms required individuals to indicate if they are Hispanic, and separately what race (White, Black or Native American) they consider themselves to be.

But the Department of Education refused. Its Office of Civil Rights made it clear that schools and universities could collect statistics about students to make the decision on whether or not to ask a question in two parts. The one-part questionnaire asks people whether they are Black or White, Hispanic or Native American.

The one-question route was preferred by universities in large numbers. 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.

OMB required the Department of Education to change its two-question ethnicity classification rules in 2007. This was a decade later than OMB instructed it to. The notion that affirmative action preference for Hispanics in university admissions was a “racial” preference had been established. However, for all its worth, it is clear that preferences for African Americans (Native Americans), Hawaiians, Pacific Islanders, Hawaiians, and Hawaiians are “racial” preferences. Preferences for Hispanics, on the other hand, are preferences for Hispanics. Hispanics can also be of any race. [About fifty percent of Hispanic check the White box on forms, most of the rest identify themselves as “other”].