The Idiocy of America's Racial Classification System

A conversation with Prof. David Bernstein

David Bernstein is a law professor at George Mason University and the author of Classified:  The Untold Story of Racial Classification in America.  The book is a fascinating look at the disconnect between racial classifications as they are routinely employed in 21st Century America and, well, reality.  It’s fascinating that many categorizations and terms that we take for granted today are quite recent innovations, and aren’t particularly rooted in any sort of cultural or biological or historical ground.  As the Supreme Court weighs affirmative action in higher education this term, it’s likely that Bernstein’s book will be influential.  I asked him a few questions.

1.  So we spend a lot of time talking about race and ethnicity in America, but it seems like the basic thesis of your book is that we have no idea what we're talking about.  Is that right?

Americans typically make two primary errors about race. The first is that the racial classifications we use in common parlance--Black, White, Asian, Native American, Hispanic—are somehow natural and arose spontaneously. Very few of us realize that the US government codified them in 1977 in a formal federal law called Statistical Directive No. 15. Before that, almost no one called people of Spanish-speaking descent “Hispanics.”  What we now call “Asian Americans” were nothing like a coherent group; Japanese, Chinese, and Filipino Americans had distinct cultures and significant history inter-group conflict. Americans from India were typically classified as “white” or “other,” but a last-minute lobbying campaign resulted in them being added to the Asian American group.

Relatedly, very few Americans are familiar with the scope of the federal classifications and how their definition. For example, Hispanics are officially an ethnicity, not a race, but the media often treats them as a racial group. Contrary to popular belief, “Hispanic” includes Spaniards, but not Brazilians. The government defines indigenous people from Spanish-speaking countries as having Hispanic ethnicity, but thanks to lobbying from Native American tribes, are not “Indians” and have no racial box that fits them. Arab Americans, Iranians, Armenians, and other people from Western Asia are white, not Asian or Middle Eastern (there is no such official classification).

People also assume incorrectly there is some sort of cut off, that you can’t claim “X” ancestry if, say, only your great-great-grandfather was “X.” But the Black/African American classification is defined as anyone with “origins in one of the black racial groups of Africa,” so the one-drop rule prevails. The Small Business Administration has concluded that a Sephardic Jew whose ancestors haven’t lived in a Spanish-speaking country for centuries can still claim Hispanic status.

2.  What are some particularly egregious examples of nonsensical racial classification under existing law and practice?

The Asian American classification includes people with ancestry anywhere from Pakistan to the Philippines. Imagine the absurdity of university officials using “Asian American” as a singular “diversity” classification! It’s so internally diverse, and includes people who ancestors include around sixty percent of the world’s population. And while we don’t often think about it, the white classification is a government-invented pseudo-race, including everyone from Icelanders to Yemenis, people who don’t have anything more in common than do Filipinos and Pakistanis. Also, the Hispanic ethnic classification makes little sense—most Hispanics self-identify as “racially” white and often look European. Why do they, but no other “white” ethnicity, get a special category?

3.  Americans in general seem less friendly to racial classifications even as the government and large institutions seem increasingly focused on them.  Why do you think that is?

I think we have a disconnect between what’s going on at the grassroots and what’s going on at elite universities, in government, and in large corporations. At the grassroots level, Americans are more tolerant than ever, and mixing socially and romantically in every possible way, rapidly creating a non-racial multi-ethnic American identity. But the elite has created and seeks to defend a whole intellectual, business, and educational infrastructure based on freezing people into classifications created without much thought (or foresight) in the 1970s. I know which side I’m rooting for, but I’m not sure which side will prevail.

4.  40 years ago Burke Marshall wrote about the obsolescence of racial thinking modeled on the civil rights era in what was already becoming -- and has now largely become -- a nation of minorities.  Does it still make sense to talk about "minorities" in an America where there's barely a majority at all?

It doesn’t, and that’s especially true given that the thinking behind having official “minorities” was to identify which groups might be doomed without government intervention to be a permanent underclass. It turns out that from a socio-economic perspective, there is as much diversity within each classification as among the classifications. African Americans are still poorer than average, but Nigerians and other “black” immigrant groups classified with them are more economically successful, as are “black” people with one white parent. (To my own surprise, I learned that first and second-generation immigrants are over twenty percent of the “African American” population.)

Indian, Chinese, Japanese, and Korean Americans have higher socioeconomic achievement than whites, but Malaysians, Burmese, and other “Asian American” groups are below-average. Cuban Americans much more successful as a group than are Guatemalan Americans. Greek Americans have among the highest average incomes in the United States, but their fellow “whites,” Appalachians, have high rates of poverty (and every other social pathology). If anything, the focus on race has blinded us to the non-racial factors that seem most determinative of the socioeconomic fate of different population groups.

5.  Apartheid South Africa, Nazi Germany, and the Jim Crow south had elaborate racial classification systems.  Is it ironic that we have developed something rather similar in a system that's supposed to be anti-racist?  How has that happened?

When the US government created our modern classification system in the 1970s, the country was still overwhelmingly black and white, about 81% white, 13% black. Around  5% were Hispanic, but the government traditionally considered this to be a “white” ethnic category. Given American history to that point, it’s not surprising that the bureaucrats who invented the system simply assumed that blacks and whites, respectively, would be pretty easy to identify, that they wouldn’t mix much, and that the division would likely be something close to permanent.  Also, the statistics were meant primarily to be used for civil rights record-keeping.  With “whites” not facing nearly as much discrimination as blacks, subdividing the white group was seen as unnecessary, though some experts advocated for doing so.

Meanwhile, the bureaucracy failed to anticipate the massive immigration from Asia, Latin America, and Africa that would upset the classification scheme. The result has been that many “minority” programs meant to help descendants of American slaves instead primarily helping “minority” immigrants and their children.

For that matter, Directive 15 specifically cautioned that its classifications were not meant to be used for affirmative action, nor as a scientific or anthropological guide. But once the classifications were in place, they became a convenient way to divide and identify population groups, interest groups formed around them.

The Directive 15 classifications even became the standard, by government edict, for scientific research, which is patently absurd. What scientist would naturally put Bangladeshis and Vietnamese into the same research category, or Argentines of Italian and German descent with Incan Indians from Peru?

6.  How will increasing rates of intermarriage and multi-racial families affect the classification system?  What has the response been so far?

We have already reached a point where a majority of the population can qualify as owners of “minority business enterprise” eligible for preferences in federal and state contracts. MBE preferences are given equally to anyone with minority status; an immigrant from China gets the same preference as a descendant of slaves who grew up in inner-city Baltimore. Within a generation, something like eighty percent of the population will be eligible. If everyone is getting a preference, then no one is, and something will have to give.

Relatedly, more and more preferences in higher education are going to students who have just enough minority ancestry to be able to check a box, but whom society at large perceives as generically white. My impression is that back when I was in school in the 80s, few white students with vague minority ancestry checked a minority box. Those who were against affirmative action didn’t want the preference, and those who favored it thought the preferences weren’t meant for them. What’s happened since is that everyone has grown cynical, believing, with some justification, that it’s just an arbitrary game that one should take advantage of if one can. We now have a large class of identity entrepreneurs—people who shift their self-declared ethnic and racial identity based on what’s most advantageous at the moment.

7.  What's the endgame here?  Will we develop ever more elaborate classification schemes, or will we simply give up on the whole process?  Are courts likely to impose significant discipline?

If I were running the show, I’d eliminate race entirely from medicine in favor of a laser-like focus on genetics, which is much more salient. More generally, I would allow the government to classify people by race only if the government could show a compelling interest in doing so. Even then, the classifications would need to be narrowly tailored to their stated objective. Today, universities pursuing “diversity”, prefer the 500th Mexican-American applicant, as adding to Hispanic diversity, over the first (white) Afghani or the first (Asian) Hmong, who, in their tunnel-visioned perspective, make the class less diverse by adding the white or Asian American populations. This is absurd and should not be permitted.

For the first time last fall, the Supreme Court, hearing oral argument in the Harvard and UNC affirmative action cases, seemed to question not just the constitutionality of affirmative action preferences, but whether the classifications themselves are unduly arbitrary and thus illegal. Some have credited the amicus brief I filed and my book for the newfound interest in this issue, but it does seem to me inevitable that someone would eventually ask why Arabs are in the same diversity classification as northern Europeans, or South Asians with Chinese, or why the fiftieth Puerto Rican adds more diversity than the first Syrian refugee.

But like I said, there is an entire intellectual, corporate, and educational infrastructure built around the current classification scheme, and powerful interest groups are devoted to maintaining it. There are also those who believe that racism is so intrinsic to the US that any hope of having a color-blind government is an illusion that just serves to cover up racial injustice.  

One could easily imagine, however, people in 1960 thinking that religious conflict in the US between Catholics and Protestants was immutable. Some prominent sociologists in the 1960s and 70s spoke of “unmeltable” ethnic groups like Italian, Polish, and Jewish Americans. Well, guess what? As of the 2020 election, our president, speaker of the House, and most Supreme Court Justices were Catholic. The Vice-President was a black-identified mixed-race Jamaican and Indian, and the Senate majority leader was Jewish. And almost no one cared.

Indeed, my kids’ generation see the religious and ethnic divisions of the past as incomprehensible and vaguely ridiculous. I’m hopeful that the same will be true of our remaining racial divisions. I think it will, if government will get out of the way.

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I too hope that the future works out in this fashion.  The problem with getting government out of the way is that there are so many bureaucrats and grifters (do I repeat myself?  well, maybe just a bit) who have every incentive to maintain and expand the current system.  Only an outside shock, perhaps from the Supreme Court, is likely to produce the necessary change.  I’ve written in the past about the role of the courts in providing such shocks to break up the “stuckness” of special-interest politics, and we can only hope that it happens here.  My own belief is that the endless focus on racial and ethnic politics, though profitable for some, is enormously destructive to society.  The sooner we end it, the better for everyone.