Monday, February 3, 2020

Who is Hispanic, by Law?

By David Bernstein - February 03, 2020 at 08:34PM

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.


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