According to Peightal, since white European Spaniards with no visibly discernable 'Hispanic' characteristics have not been subjected to past or present discrimination, it violates the narrowly tailored prong of the strict scrutiny prong to include them in the favored group called 'Hispanics.' The EEOC definition of 'Hispanic,' as applied by Metro Dade, includes: 'All persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race.' Peightal asserts that this definition is over-inclusive because it includes persons who can trace their ancestry to Spain, irrespective of language or culture, but would preclude favorable treatment to persons with Portuguese heritage, for example. In addition, Peightal argues that the Plan is under-inclusive because the class of persons qualifying for preferential treatment as 'Hispanics' fails to include other national and ethnic groups that are susceptible to similar discrimination. Peightal maintains that the Dade County minority preference program is over-inclusive because it favors white European Spaniards with no significant cultural or linguistic discernability from non-Hispanic white persons. The crux of Peightal's argument on appeal is that the Plan is both over-and-under-inclusive in its preferential treatment of Hispanics. Unfortunately, in upholding the use of the very broad 'Hispanic' category, the court ultimately failed to address why, given strict scrutiny that's applied to racial and ethnic classifications, a program that includes people of purely European descent while excluding darker-skinned non-Europeans is even rational, much less how it is narrowly tailored to serve a compelling interest:

Metropolitan Dade County, 940 F.2d 1394 (11th Cir. directly from Spain qualify for affirmative action, but darker-skinned Arabs, Greeks, Turks and so on do not? It turns out that there is an Eleventh Circuit opinion on this very issue, Peightal v. Why, for example, do light-skinned people whose ancestors came to the U.S. I've always wondered why no one has challenged government ethnic/racial preference programs on the grounds that the categories used by the government are incoherent.

Reason in spanish