Affirmative Action Mocks Ethnic Diversity
As the Supreme Court takes up preferences at Harvard, legal scholar David Bernstein argues that labels like ‘Hispanic’ and ‘Asian’ are completely arbitrary.
PUBLIUS GUEST AUTHOR: David E. Bernstein, author of Classified: The Untold Story of Racial Classification in America
The U.S. Supreme Court will consider on Monday whether racial preferences in college admissions are illegal. David Bernstein argues they’re irrational.
The argument at the high court is that Harvard and the University of North Carolina unlawfully discriminate against Asian-Americans to hold down their numbers and ensure a diverse student body. But what does it mean to say “Asians” are overrepresented on campus? Presumably elite colleges don’t have hordes of applications from America’s roughly 27,000 Mongolians. “Imagine you are a child of Hmong refugees,” says Mr. Bernstein, a professor at George Mason University’s Antonin Scalia Law School, referring to an ethnic group from Southwest China and Southeast Asia. You might hope the admissions officers see you as contributing to diversity. “They say, ‘Oh, no, no, you’re Asian.’ But this Asian thing is purely a statistical construct.”
Mr. Bernstein, 55, is the author of a recent book, “Classified,” that traces the haphazard codification of the federal government’s racial labels. “We created these classifications in 1977 in a very different America, right, that was primarily black-white,” he says. “Now we have all these other groups, and we have much more division within the groups, and we’ve barely changed them at all.”
The decisive player in the ’70s was the Ad Hoc Committee on Racial and Ethnic Definitions, set up under the Federal Interagency Committee on Education. A task force with three interested federal workers—Mexican-American, Puerto Rican and Cuban-American—debated a Spanish-language label. The eventual result was a document with a title only a hardened bureaucrat could love: Statistical Policy Directive No. 15.
Issued by the Office of Management and Budget in 1977, Directive 15 set definitions for the racial categories we mostly know today: white, black, Asian and Native American, with an ethnicity option for people of Hispanic heritage, who can be any race. In 1997 a Native Hawaiian and Pacific Islander grouping was split off. A complaint from Hawaiians, which echoes today, was that colleges treated them as Asians.
In a country that’s far more diverse five decades after Directive 15, its labels show up everywhere from college applications to clinical trials. The problem is that these blunt categories are arbitrary and historically contingent. “Asians are supposed to have descent from the original peoples of Asia, whatever that means,” Mr. Bernstein says. That grouping covers half the world’s population and a dizzying number of ethnicities. Yet according to the feds, Asia ends at the Pakistan border. Pakistani-Americans, like Japanese-Americans, are classified as Asian. Afghan-Americans are officially white.
The black classification covers anyone with origins in “the black racial groups of Africa.” Well, Mr. Bernstein asks, “what do you do if you’re an Aborigine from Australia?” He also cites immigrant diversity that’s missed by Directive 15, since 21% of black Americans are first- or second-generation.
The Hispanic category includes immigrants from Spain, as well as people with indigenous heritage in places such as Mexico, even if those ancestors spoke no Spanish. The U.S. has something like three million black and Asian Hispanics. The government uses “Latino” as a synonym, yet it excludes Brazilians—except that the Transportation Department counts “Portuguese culture or origin” as Hispanic in its Disadvantaged Business Enterprise program.
The Native American label requires “tribal affiliation or community attachment,” but for all the jokes about Elizabeth Warren, those ties can be distant. Some reports say the Cherokee Nation has members enrolled with 1/4,096th ancestry. For the record, Ms. Warren’s DNA test suggested she was at least 1/1,024th.
As for the white classification, it covers Cajuns, Quebecois, indigenous northern Scandinavians, Greeks, Arabs, Iranians, and most Jews, not to mention people who see themselves as simply American but whose parents or grandparents identified as minorities. A push for a multiracial category faded as the census began to let people check multiple boxes in 2000.
Things could have been different, which is a theme of Mr. Bernstein’s book. The government in the 1970s might have thought the term Hispanic too broad for rooting out discrimination. Today about a third of U.S. Hispanics accept terms such as mixed race or mestizo, and the feds might have created a category like that.
Immigrants from the Indian subcontinent might have been labeled white. That was the recommendation of the ad hoc committee in the ’70s, and federal agencies were already coding them that way. After lobbying by an Indian-American organization, Directive 15 moved them to Asian.
Some white ethnicities might have gotten a dispensation as well, except their lobbying failed. One study said big Chicago companies had few officers who were Polish-American, a group that was 20% of the city. When the Supreme Court first took up college race preferences, in Regents of the University of California v. Bakke (1978), Leonard Walentynowicz filed a brief for Polish organizations that attacked “giving preference to one kind of White ethnic group (Hispanic) without showing why other White ethnic groups similarly situated have not even been considered.”
What if such efforts had succeeded? Mr. Bernstein cites a 1963 book by Nathan Glazer and Daniel Patrick Moynihan, “Beyond the Melting Pot,” which grappled with the persistence of Italian and Irish and Jewish niches in New York. Even in the 1980s, Mr. Bernstein says, “we still talked about the ‘unmeltable ethnics.’ ” The punch line from today’s vantage: “All these groups have melted, right, since then, very quickly.”
If the government had tracked Italian-Americans separately and given them affirmative action, “would that have led Italian-Americans to be more cognizant of their Italian-Americanness, and to organize politically that way?” Mr. Bernstein asks. “I think the answer is probably yes, although it’s hard to know.”
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Classified: The Untold Story of Racial Classification in America
By
David E. Bernstein
A call for the separation of race and state, backed by a deep dive into the surreal world of racial classification in America.
Americans are understandably squeamish about official racial and ethnic classifications. Nevertheless, they are ubiquitous in American life. Applying for a job, mortgage, university admission, citizenship, government contracts, and much more involves checking a box stating whether one is Black, White, Asian, Hispanic, or Native American.
While reviewing the surprising history of American racial classifications, Classified raises questions about the classifications’ coherence, logic, and fairness; for example:
• Should Pakistani, Chinese, and Filipino Americans be in the same category despite their obvious differences in culture, appearance, religion, and more?
• Why does the government not allow Americans to classify themselves as bi- or multi-racial?
• How did the government decide that a dark-complexioned, burka-wearing Muslim Yemini should be classified as generically white, but a blond-haired, blue-eyed immigrant from Spain should be classified as Hispanic and treated as a member of a minority group?
• Why does the government require biomedical researchers to classify study participants by the official racial categories, when the classifications have no scientific basis?
In an increasingly diverse society with high rates of intergroup marriage, the American system of racial classification is getting even more arbitrary and absurd. With rising ethno-nationalism threatening democracy around the world, it’s also dangerous. Classified argues that the time has come to consider abolishing official racial classification and replace it with the separation of race and state.
PLUG BOOK: Classified: The Untold Story of Racial Classification in America
BIO: David E. Bernstein holds a University Professorship chair at the Antonin Scalia Law School, George Mason University, where he has been teaching since 1995. He has also been a visiting professor at the University of Michigan, Georgetown University, William & Mary, Brooklyn Law School, and the University of Turin.
Known as a fearless contrarian, Professor Bernstein often challenges the conventional wisdom with prodigious research and sharp, original analysis. His book Rehabilitating Lochner was praised across the political spectrum as “intellectual history in its highest form,” a “fresh perspective and a cogent analysis,” “delightful and informative,” “sharp and iconoclastic,” “well-written and destined to be influential,” and “a terrific work of historical revisionism.” Professor Bernstein blogs at the Volokh Conspiracy (the leading law professor blog) and at Instapundit.com. Professor Bernstein is a graduate of the Yale Law School, where he was senior editor of the Yale Law Journal and a John M. Olin Fellow in Law, Economics, and Public Policy.
Professor Bernstein is married and has three children of mixed Eastern European, Middle Eastern, and Spanish-Jewish origin. He prefers not to classify them.
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David E. Bernstein, author of Classified: The Untold Story of Racial Classification in America