An Equal Protection Standard for National Origin Subclassifications: The Context that Matters

Abstract

The Supreme Court has stated, "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause." Judicial review of legislative race-based classifications has been dominated by the context of the United States' history of race-based oppression and consideration of the effects of institutional racism. Racial context has also dominated judicial review of legislative classifications based on national origin. This pattern is seen, for example, in challenges to government affirmative action programs that define Latinos according to national origin subclasses.

As a matter of law, these national origin-based classifications, like race-based classifications, are subject to strict scrutiny and can only be part of "narrowly tailored measures that further compelling governmental interests." In applying this two-pronged test to national origin classifications, courts have struggled to identify factors that determine whether the remedy is narrowly tailored and whether there is a compelling governmental interest. While courts have appropriately focused on race specific themes and experiences when the central feature of the classification is race, courts have not uniformly applied a national origin "context" when the central feature is instead national origin. National origin classifications, such as "Latino," often consist of members of various national origin subclasses. Thus, some courts have considered the historical and current discrimination against members of national origin subclasses as part of their equal protection analysis. However, courts often rely on race-based approaches to evaluating this history and do not uniformly assess subclass experiences.

Some scholars and jurists have argued in favor of considering various cultural and ethnic components of national origin in such cases, including language and historical group assimilation. These approaches have neither comprehensively considered the full range of context relevant to an equal protection analysis of national origin subclassifications, nor have they gained a foothold in equal protection jurisprudence.

This Article argues that context that is specific to and conscious of the experience and legal position of national origin groups matters just as much as racial themes and context in race-based legislation. It analyzes equal protection challenges to Latino classifications and presents a new approach to equal protection doctrine and discourse in which Latino national origin subclassifications are contextualized and recognized as legally relevant and operative. The Article demonstrates that the context that matters in national origin classification cases depends on factors associated with country of origin subclassifications, as well as the homogeneous classification of all persons of Latin American and Latino Caribbean descent as Latino.

This Article's proposed uniform standard of review for national origin subclassifications depends upon the legal, historical, cultural, and political context of subclasses. To justify a contextualized definitional and constitutional analysis, it draws on the history surrounding the definition of "Latinos" and "Hispanics" in the United States. Subclassifications are constitutional if (1) the initial legislative or administrative decision to classify by national origin satisfies the current strict scrutiny standard, which requires a narrowly-tailored remedy that serves a compelling governmental interest; and (2) the subclassifications are based on the intragroup dynamics and histories of the relevant target subclass, focusing on the experience of individuals within the subclass as "Latinos" and as subclass members.

Keywords: Latino, national origin, ethnicity, race, constitutional law, equal protection