When I began researching my book Classification: The Untold Story of Racial Classification in America , the law review literature asserted that racial classification is actually almost entirely a matter of self-identification. While federal law dictates the classifications and their definitions, in reality people can check any box they want, but no one ever does. In fact, according to the relevant literature, there has only been one case in which an individual’s self-identity was questioned. It was a notorious case involving two Irish-American firefighters in Boston who claimed to be African-American in order to take advantage of the fire department’s affirmative action policy.
I’m sure there will be more cases like this, in part because Eugene Volokh once blogged about one such case involving whether the state of New York could constitutionally decide whether Hispanic contractors were eligible for state purposes. Yan is not Hispanic even though he is Hispanic for federal purposes. In the end, I found dozens of these cases, most involving minority-owned business preferences, most involving Hispanic classifications, but some involving American Indian, African American, and Asian American identity claims. Many of these cases were eventually cited by Justice Gorsuch in the unanimous opinion in SFSA v. Harvard.
I believe these are just the tip of the iceberg, as I rely on public judicial or administrative rulings, or media reports. I believe that most disputes are resolved within government bureaucracies, and the only way to find them is to comb through thousands of unpublished records, if you can figure out where those records are first. It’s not important enough for my book to undertake such an endeavor.
That said, I did happen to encounter another similar identity dispute that was briefly discussed in the 1989 Government Accountability Office report on fraud in the Disadvantaged Enterprise Program. As background, at the time Iranian Americans were classified as white and therefore ineligible as a “minority” for DBE benefits, while Indian Americans were classified as Asian Americans and therefore eligible.
An anonymous letter claims that the president of an engineering DBE does not oversee the day-to-day management of the company, which is controlled by a white male vice president. The president is said to be Iranian-born and therefore ineligible for the program. The investigation revealed that since the president received the highest salary, signed all company checks, and was the only person in the company with an engineering degree, there were no apparent control issues. It was also established that President DBE was raised in Iran and holds Iranian citizenship, but his parents are of Indian descent. During the reassessment process, the national transportation agency asked the Department of Transportation to provide an advisory opinion on whether people born in Iran to Indian parents are Iranian or Indian in order to participate in the DBE program. The state agency ultimately recertified the DBE based on a ruling that the controlling factor was a person’s heritage rather than citizenship.
The decision appears to be the right one because, under federal law, Asian Americans are defined as descendants of one of Asia’s indigenous peoples. But it does raise the question of how far one can take this principle. Are the Parsi Indians, descendants of the Zoroastrians who fled Iran hundreds of years ago to escape Muslim persecution, Indians or Iranians? What about the Baghdadi Jews from India, whose ancestors immigrated to India from Iraq in the 19th century? Is there a statute of limitations here? But in reality, I suspect that as long as one’s ancestors held Indian citizenship, it’s unlikely that anyone would question whether they were “really” Indian, and thus Asian American.
Regardless, the existence of this case reinforces my suspicion that there are many more such cases reported deep in the government archives.
