Diversity’s Dubious Definition: Harvard Case Spells End to Racial Classifications

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Joe Selvaggi: [00:00:00] This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. The U.S. Supreme Court’s ruling in the Students for Fair Admissions vs. Harvard dealt a blow to race conscious university admission standards. The 6-3 majority was unpersuaded by Harvard’s claim that diversity conferred a government interest of a better education for everyone, not merely because Harvard failed to show any measurable benefit of diversity, but also that the university’s definition of diversity was not sufficiently precise to survive constitutional scrutiny. Owing to the fact that any permissible exception to the Constitution’s equal protection requirement must be narrowly tailored, the court found that using racial and ethnic classifications to define diversity was, quote, plainly overbroad and, quote, both over inclusive and under inclusive and, quote, arbitrary, leaving careful observers of the ruling to question whether the use of such categories in any government supported programs could long survive legal challenge.

Could the Students for Fair Admissions decision mark the beginning of the end for race based affirmative action programs and what classifications, if any, could legally replace race when seeking to help improve opportunities for those with disadvantages? My guest today is George Mason University distinguished law professor and Cato Institute adjunct fellow David Bernstein, whose recent piece for Cato Supreme Court review, entitled Students for Fair Admissions and the End of Racial Classifications as We Know It examines how a case involving race in college admissions will affect the use of such classifications outside academia. We’ll discuss the history of racial and ethnic classifications in the U.S. and how the future makeup of America comprised of increasing integration of existing communities, along with the additions of new citizens from across the globe, will serve to further undermine efforts to define us by race.[00:02:00] 

When I return, I’ll be joined by George Mason University Distinguished Law Professor, David Bernstein. Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi, and I’m now pleased to be joined by the George Mason University Distinguished Law Professor, David Bernstein. Welcome back to Hubwonk, Professor Bernstein.

David Bernstein:

Thank you so much, Joe.

Well, I’m pleased to note that this is your second time on Hubwonk. Your first or your last year to discuss your recent book entitled Classified, The Untold Story of Racial Classifications in America. It was a great conversation, a fine book. I still recommend it to our listeners. Um, but, you know, for the benefit of those who have not read the book, you cataloged in that book, the evolution of racial categories and how we got to our present day definitions.

Um, very, very good book. And, I want to use it’s basis is sort of, as we, go forward in our, our discussion since that time, uh, some earthquakes have happened along, the legal realm of racial classification, specifically the Students for Fair Admissions versus Harvard, in which the Supreme court decided that, using racial definitions in admissions, it doesn’t.

constitutional scrutiny. So I don’t want to get too far ahead of ourselves. Let’s just backtrack a little bit and talk about, first, a little history on how we got here. How is it that we have, from the census to when we apply for jobs or different things, how is it that we’ve got these little boxes that say race, white, black, et cetera?

Tell us about, briefly about the history of racial classifications in America. 

David Bernstein: Well, really the only national racial classifications we had until fairly recently were on the census. They originally had white and black, uh, basically, or some, some variations of those. Uh, and then later when we had some Asian immigration, they sort of added Chinese and Japanese Americans to the census, but everyone else was sort of considered white, including, uh, people of Spanish-speaking origin, unless they were obviously of African descent.

Uh, and the reason that we started getting federal classifications was that in the 1950s, President Eisenhower signed executive orders requiring federal contractors not to discriminate, and then they had to say, well, who are we checking to for discrimination, and they went through a bunch of different permutations over the 50s, but they eventually arrived on anyone who doesn’t look Caucasian, basically, uh, that would be African Americans, uh, Native Americans.

Chicago. We now by called Chicanos, Mexican Americans who look like they’re mixed race, um, and Chinese and Japanese, which later became the current classifications that we have and why those classifications in part because there was a notion that we’re analogizing from African Americans that they’re the, uh, most Yeah.

Oppressed group in the country. And so we were focusing on race, but also because in the old days, until the mid-1970s, racial classification in employment or education, whatnot, was almost always not self-identified, but done by a third party. So, if you’re the HR person and a big defense contractor, you have to report to the government how many minority employees you have.

You can look around the room and say, who looks Asian, who looks black, who looks Hispanic, but you weren’t allowed to ask. You weren’t supposed to ask. So we wound up with the visible minorities being the minorities. And then by the time we get to the 1970s. There still aren’t formal boxes to check outside the census, but there is a sense in the federal bureaucracy that we have a problem.

We’re gathering all this data for civil rights enforcement, for education for bank loans for all sorts of things. But we, since we have no formal definitions, different federal agencies. Are you using different classifications. So, for what we now call Hispanics, for example, some agencies were only looking into Chicano.

Some are looking at Mexican Americans. Some added Puerto Rican Americans. Some added Cuban Americans. Some said people with Spanish surnames. I was old enough to remember what that was, the classification, Spanish surname, Spanish speaking household and so forth. I think I counted 13 different ways that people of Spanish speaking origin might have been tabulated so they couldn’t get consistent data this way.

They’re comparing apples and oranges. So, they just decided to have an inter-agency commission to get together to try to make uniform classifications for the federal government and two things were true then that turned out to be problematic. One of them was that they did not anticipate that we’d have massive immigration from Asia, from Africa, from Latin America over the next 45 years.

So, uh, at the time the country was overwhelmingly black and white. Hispanics were still considered to be a white, uh, group, maybe with, you know, different ethnicity. And so they didn’t really anticipate that we’d have all these, uh, changes. And they also didn’t anticipate we’d have a lot of interracial marriages.

So from a society that was. You know, 98 percent black and white. If you include, uh, Caucasian Hispanics, we are now a society where we’re like 58 percent non Hispanic white, and then a lot of people are mixed race, a lot of people, and within each category, instead of just having Mexican Americans, Puerto Ricans, and Cubans, we have dozens of different Latino groups within the Asian classification, instead of just having Chinese, Japanese and sometimes they would consider Filipinos Asians, sometimes not. We now have several dozen different Asian groups and the classifications to the extent they made any sense to begin with in 1978, when they were formally put into the law, don’t make any sense any longer. 

Joe Selvaggi: So, uh, I think the, uh, the, the law harmonized those definitions, I think it was called Directive 15, uh, but those people who ultimately sat down in the government and said, look, let’s formalize these, uh, categories, they accepted then that there’s no scientific basis, no, um, anthropological basis, they were somewhat arbitrary, and, and they cautioned when they created those rules to say, let’s not use these for anything other than just broad, uh, categories, just, just to, uh, you know, sort of observe and make sure we’re not, you know, you know, if we [00:08:00] need to make sure we’re not discriminating, these might be useful. Is that fair to say? 

David Bernstein: Sure. Just like, for example, take what became the Hispanic classification, which was sort of a novel term, which wasn’t often used before to refer to individuals. If you’re looking at it for non-discrimination purposes, is some government contractor discriminating against people of Spanish speaking origin?

You know, if you’re getting a resume back in 1977 from somebody that says name, Hernandez or Rodriguez, uh, you don’t know if they’re from Spain and Caucasian or if they’re, uh, primarily, uh, Indian heritage or whatever it is. So if you don’t like any of those groups, you’re probably going to put that to the side.

So, I made a certain amount of sense to say, we don’t really. care that much about the details of exactly what this classification entails, as long as we get it close enough that we can monitor discrimination. The problem, of course, is that even though the rules, like you said, specify these are not meant to be anthropological, they’re not meant to be scientific, we did it, you know, they don’t say this, but they did it in a [00:09:00] rather, uh, you know, very, um, half, half Uh, asked if I may weigh where they just sort of got a bunch of bureaucrats together, remaining consult anthropologists or geneticists or sociologists or anybody else who might have been helpful and said, look, he’s just for statistical purposes, but almost immediately, uh, Corporations, universities, government agencies themselves that well, we’re also expected to implement affirmative action, EO kind of programs.

We don’t really know which classifications to use. Let’s just lock on to these. 

Joe Selvaggi: So, um, okay. And again, we’re talking about there’s really no basis for these classifications. And yet again, I’m going to jump forward to the recent Harvard case, um, universities, Harvard and others like it. in their applications, uh, and also in their case for, let’s say, quote unquote, diversity, are using those same somewhat arbitrary, again, no anthropological basis whatsoever. We, in our last show talked about Caucasians can be everything from Europeans all the way to Afghanistan. Uh, um, Asians can be Indian to, um, uh, China to Japan, uh, Hispanic, you know, it’s all over the board. Um, And yet universities, Harvard included, use those categories and actually use them proactively to encourage “diversity.” That is, the more of those boxes they could check, the more diverse their student body would be. Is that fair? 

David Bernstein: Yeah, that’s perfectly fair. And one thing that’s sort of astounding in a way is that if you go all the way back to when this Directive 15 was implemented in 1978 to the present day, I don’t think a single university in litigation or otherwise has ever issued a report or an explanation of why it chooses to use the classifications that they do, why these are classifications for diversity purpose and not others. So, you have this weird situation, which Chief Justice Roberts points out in SFFA that if a school has 15 percent of their students are Mexican American, they are considered to be more diverse than a school that has 10 percent Latino students, but the Latino students are 1 percent from 10 different countries, which is obviously more diverse, uh, in, in actuality, because you have the Spanish-speaking countries are not, you know, you know, unicultural, they have different histories, traditions, cultures, and so forth, different ethnic makeups for that matter, but that’s the way it is.

I always like to talk about the case before SFFA, which was Fisher versus University of Texas, with Supreme Court barely upheld University of Texas’s plan. And there, Texas does not have that large a black population. And the real action was we want more Hispanic students and fewer Asians, or do we want to let the chips fall where they may get more Asians, fewer Hispanics? The weird thing there is that Texas was justifying its affirmative action programs based on diversity. But let’s say you are a Hmong Cambodian from Minneapolis and you apply to University of Texas. And you said, ‘Hey, I am, I’ve done some research. I’ve talked to the Asian Student Association. I’ve looked at the last names of all your students. I don’t think you’ve ever had a single Hmong student. So if you take me in, I will add diversity.” And Texas’ unofficial response with the way they’d handle it, it’s like, oh no, you’re Asian American, so you’re exactly the same as far as we’re concerned as if you were from India or China or the Philippines or places where we still have a lot of students from.

But if we take 3,000 Mexican Americans in our class, we take 3,001, that would make things more diverse. So there’s obviously shows the diversity rationale in practice to be something of a sham. 

Joe Selvaggi: Yeah, indeed, uh, my back end of the napkin estimate says by those definitions, half the world is Asian. So, um, you know, uh, it’s a very vague, blunt, uh, definition, to say the least.

Um, You don’t have to paraphrase the whole decision, but we had the Students for Fair Admission versus Harvard, we had the decision come down. Ultimately, they made the case that they needed to have diversity to for educational benefits. What did the Supreme Court, um, at the high level, the most basic argument, why didn’t the, well, the Supreme Court, uh, didn’t agree with Harvard, side with Students for Fair Admission. What was the basis for the majority of the decision? 

David Bernstein: So, uh, the media coverage of this has not been nearly as perspicacious as it should be. They just focus on sort of the bottom line and a little bit of rhetoric. But if you look at the opinion closely, the legal standard that the court has held. Uh, for use of racial preferences in higher education and really elsewhere to is what we call strict scrutiny.

Uh, strict scrutiny means those two things. First of their government has to show a compelling interest, uh, in what it’s doing on that score. The Supreme Court had previously held that diversity in higher education is a compelling interest, or at least we defer to the university’s judgment in academic freedom that’s a compelling interest.

Chief Justice Robert Tarver said, no, we now reject that because diversity is so vague and the goals that Harvard and University of North Carolina claim to be achieving are also so vague that we have no way of even judging what they’re doing. So, uh, diversity in this context is no longer a compelling interest.

Even if it was a compelling interest, the second part of the test is that if you’re using race, it has to be narrowly tailored to achieve that compelling interest. And Roberts enumerated several reasons why the use of race by Harvard. And UNC was not narrowly tailored. One reason is because there was no endpoint.

Justice O’Connor, back in her majority opinion in Grutter 2003, suggested 25 years from now that should be enough. It wasn’t necessarily a hard deadline, but Harvard and UNC acknowledged that there was no limit to what they were doing. Indeed, the diversity rationale doesn’t allow for a limit. You can, you’re always good if you, if you think diversity is a compelling interest, you’re always going to be.

Using race to achieve whatever you consider diversity is another thing that Was that they said was that, um, and this goes to the issue. We’re talking about that. The, uh, classifications themselves are so vague and arbitrary that this is not narrow tailoring. You can’t just take these Directive 15 classifications, which is just as Gorsuch points out his current opinion, which is concocted by bureaucrats and say, aha, that creates diversity.

Well, why, why would, why would that be the case? Why would 60 percent of the world’s population, I think it’s more 60 than 50, uh, all be part of the same diversity classification. Why would all white people from Iceland to Yemen, uh, as a defined by law, be in the same. uh, diversity classification. And finally, uh, to be narrowly tailored, you really have to explain, you know, what you’re trying to accomplish and what would lead you, uh, to believe you’ve accomplished that [00:16:00] goal.

And there’s really no articulation anywhere in the litigation of, other than we want to show we have diversity, what was really trying to be achieved here. 

Joe Selvaggi: I again, you, you answered the question exactly right. What I’d say though, for the benefit of our listeners, what you’re describing is when you make exceptions to the Constitution, that is the, the Constitution itself says in the 14th Amendment Equal Protection clause, um, that, you know, the laws have to apply to everyone equally.

And, and, and as such, if you’re going to make an exception to that, you really have to have a hell of an argument, a good case to say, look, Not to everyone. Uh, some people, it’ll apply a little differently and, and that’s where your strict scrutiny comes in, in order to defy the constitution’s imperative to, to treat everyone equally, you better have a darn good case.

And Harvard, as it turned out, didn’t have a good enough case. What I want to tie some of the loose ends together here is that you point out in your argument, I didn’t realize this. I want to. Let our listeners know I’m reading [00:17:00] from your students for fair admission and the end of racial classifications as we know it a piece you wrote for the Cato Law Review.

I didn’t realize until I read your piece that the, the argument that Robertson and the majority made largely hew to some of the arguments you make in your book. So I didn’t realize you had actually made an amici brief in this case, pointed out to the, um, Supremes that the racial classifications are vague, arbitrary, overbroad, underbroad, uh, and they heard you, um, and, and wrote that in their decision.

What I didn’t appreciate, and you’ll share this with our listeners, I hope, that this case, uh, the Supremes asked the Lawyers for lawyer for Harvard and UNC, you know, what do you say to effectively David Bernstein’s argument that these standards are in incredibly vague and the lawyers said, geez, I don’t have an answer. They are vague, but, you know, let’s you know, I don’t have an answer. Say more about this. 

David Bernstein: Yeah, so, um, it’s actually kind of surprising to me having, having written, uh, this book Classified. Now, the book isn’t about affirmative action as such. It’s about racial classification in America, but of course, one of the major places that racial classification comes up and is controversial is affirmative action.

So, doing the research, I thought I’d find a whole bunch of cases where someone had talked about the vagueness of the classifications, the arbitrariness, and that’s really actually been kind of uncommon. Some lower court judges have occasionally alluded to it. There was a little bit of an allusion to it by Justice Alito only about the Asian American classification being overbroad in the Fisher case, the preceding Supreme Court case, but in general, the litigation has proceeded along the lines of we implicitly accept that these classifications somehow makes sense or valid, but you shouldn’t She’ll still shouldn’t use them because they are some form of reverse [00:19:00] discrimination or violate the Equal Protection Clause of the Constitution.

So I wrote this book. The book happened to come out right when SFFA was coming to the Supreme Court and someone came to me and said, you plan to write a brief about this? I said, I don’t really write briefs. You know, if I want to be a lawyer, I’d be a lawyer. I’m a professor. Uh, I said, well, how about if I write the brief for you based on your work and you’ll be the party.

So I wasn’t the author of the brief, although I certainly had some input into it. It was a lawyer named Corey Liu who deserves credit for actually going ahead and doing it. But the brief was based on my work and it just made the case that, hey, you know, one issue that no one’s really talking about is that these classifications don’t really make any sense.

If you accept the diversity rationale is a rationale, then you really should be considering each individual for their individual contribution to diversity and whatever way that means maybe even including ethnically, but you can’t go and say that people from India are in this are. The same kind of diversity as people from the [00:20:00] Philippines doesn’t make any sense.

You can’t say it’s all from with ancestry in Iceland is somehow the same as someone with the ancestry from Morocco. You can’t say that a black kid who grew up in the inner city of Baltimore is the same as the son of a Nigerian or an oil baron who came here for high school and became a citizen. Uh, these are just people who do not contribute to diversity in the same way, even if you accept the notion that ethnicity is an important aspect of diversity. So much to my own surprise, because like 117 amicus briefs were filed in this case, I thought it was going to be buried. The amicus brief got a lot of attention.

Some of the themes in the amicus brief were actually raised by some of the justices in oral argument. And then, uh, Justice, Chief Justice Roberts spent several paragraphs on this issue. Uh, in his opinion, but maybe, you know, to my delight, I guess, Justice Gorsuch in his dissent spent a lot of energy talking about how, um, absurd and arbitrary the classifications are, how they can support the compelling interest and the narrow tailoring in this case.

And he [00:21:00] cited my brief and one of the an article I wrote and Chief Justice Roberts in his opinion cites that part of the brief as supporting the general notion. So, it’s not something that the plaintiffs themselves had really argued about as litigation commence. It’s not something that play any role in the lower court opinions.

It’s really something that kind of what we call in law, sua sponte, spontaneously came up, um, at the Supreme Court level and If people want to give me credit for that, because I’m the one who wrote the brief, and I guess I can’t really, I’ll take it, right? I mean, I can’t disagree that does seem to have that influence.

And I was surprised and happy, I guess, that that had happened. 

Joe Selvaggi: Well, again, I’m here to give you credit for that again, I was astonished to see so many of it sounded like some of the majority opinions were cribbing your, your, your work directly. So, you know, we’ll take it if you can. So I want our listeners to understand that we’re not or you’re not [00:22:00] asserting that there’s no such thing as diversity across.

Mankind, you know, there’s all kinds of diversity. There’s 190 countries and seven continents. And, you know, the world is a very manifold place. It’s a fantastic menagerie of people. It’s just that these particular categories, black, white, Asian, Hispanic, Hispanic. Those are functionally meaningless, and to use those as your criteria for admission or for anything, frankly, is to you know use tools  that are unsuited to the task of diversity. Is that fair to say?

David Bernstein: Sure, yeah. Look, what I always tell people, you know, France famously doesn’t… take into account people’s ethnicity and their senses and official statistics, and that’s problematic in the sense that there are cases in which race becomes or ethnicity becomes very relevant. So I like to give the example of American hate crime statistics.

We keep hate crime statistics, which are a valuable way of seeing our particular groups being [00:23:00] targeted, but we don’t like arbitrarily to say we’re only going to look at these five groups that were in directive number. Uh, 15 in 1978, we have anti elderly, uh, hate crimes, we have anti-gay hate crimes, we have anti-Jewish hate crimes, anti-Catholic hate crimes, anti-Christian, because there’s a lot of different groups.

So when you’re looking at any kind of diversity, you have to say, what are we trying to get at? Uh, we use these absurdly, not only do we use these categories in affirmative action, because of government edict, we wound up using them in health research also. Now, if you’re a health researcher, I don’t deny that our genetic Differences among human populations that might manifest themselves in different reactions to drugs or, uh, different health consequences of certain diseases and so forth, but you would never use like the Hispanic classification doesn’t make any sense.

It’s an incredibly genetically diverse group that we would call Hispanic is probably a genetically diverse as the group we call American. They can be from any continent, maybe with a little extra admixture of [00:24:00] Mediterranean from the Spanish, but right. You could be white, you could be native, uh, indigenous. You could be black, you could be Asian, you can be any combination and be a Hispanic. We would never use the Indian classification. It includes three completely distinct anthropological, putting aside genetic diversity. You have, uh, South Asians like Indians, you have East Asians like Japanese, you have Austronesians like Filipinos who are more closely related to like the M?ori and whatnot than they are to East Asians.

So, you never use these classifications. So, my point with the classification is not that we never have any reason to ever classify anybody, uh, by. Some diverse classifications they have, but it has to be logical. It has to be geared towards what you’re trying to do. And like you said, if you’re looking at human diversity, the rationale behind diversity, higher education is we want people to learn from each other and experience, you know, different cultures and so forth.

Well, if so, why are you using these under inclusive, over inclusive classifications? If you say, well. Professor Bernstein, even though they say diversity, we all know that the underlying motivation is primarily to help underrepresented minority groups and within that classification, primarily to help African Americans who suffered from hundreds of years of slavery, Jim Crow and so forth.

It still doesn’t make any sense because it turns out, first of all, you’re giving preferences to Hispanics as well as to African Americans. 25 percent of 18-year-olds in the United States are Hispanic. Only 15 percent are African American. Some more Hispanics are benefiting and Hispanic experience, while they’ve certainly suffered discrimination, has nothing to do with the African American experience beyond them both being minority groups.

Then within the African American classification at Harvard. Over well over half the African American students at Harvard, we’re benefiting from preferences are first- or second-generation immigrants or descendants of immigrants. And, you know, they have very little in common other than skin color with the culture of native-born African Americans.

In fact, if we’re looking [00:26:00] at. uh, recompense for historical wrongs. I like to say that not only are some of the people benefiting from affirmative action who are, say, African immigrants, not in the sense of American slaves, but some of them are also in the sense of those who sold Africans into slavery in the United States.

So, it doesn’t make any sense from that perspective either. So, I put it both morally and philosophically, but also legally. If you’re looking at this narrow tailoring, why are we classifying people? Was it trying to achieve these broad classifications, which may have made a certain amount of sense, although still very imprecise in 1978, when we were much less diverse country, don’t make any sense today.

Joe Selvaggi: Yeah. So again, after that decision came down, I got lots of, uh, emails from deans of Harvard, uh, um, graduate school saying. You know, this is the worst thing that’s ever happened. But since then, they seem to have, their tune is changing slightly. And so far, as they acknowledge, it seemed to be that this very sort of, um.

Uh, research-oriented universities seem to acknowledge the [00:27:00] clumsiness of the diversity criteria. So, I want to, you know, get beyond that decision and talk about the implications of this decision for everything else. I’m going to start again, maybe on the scope of your paper. But I had a curiosity about the simple notion we brought up earlier, the idea of the census.

It’s a, as you know, constitutionally mandated every 10 years, we have to count how many people we have in this country. And we’ve decided to include in that census race, uh, self-identified race and, ethnicity. Uh, given that we’ve, the, the Supreme Court has acknowledged these are meaningless, vague terms.

Is, is that sort of categorization either, you know, the vagueness doomed or do we, are we going to be more specific or just take it away altogether or it has no relevance to the census? Well, in 

David Bernstein: fairness to the Census Bureau, as of the last census, they were already asking Asian Americans, like, what specific countries, uh, in Asia.

They were asking, they were asking everybody for more detail, to get [00:28:00] a more granular view. Uh, Asian American groups have been advocating this primarily because they want to show it’s only certain Asian American groups that are overachievers and the others should be considered underrepresented minorities.

But there is a more general point to this, right, that we show that the whole idea of Taking 60 percent of the world’s population with all different cultures, languages, appearances, food, everything else, and lumping them together is kind of absurd. And what I like to see is to get rid of the overarching classification itself.

Don’t ask Asian American, just ask, what is your national origin? Or you can have two, you, if I were running the sentence, I’d ask two questions. What do you consider yourself ethnically? Well, if anything, you know, are you just American or do feel like you have an ethnic, uh, identity of some sort, and that could be anything.

And number two, that’s the subjective question. The objective question is, where is your ancestry from? Uh, because both of those things could, could create some interesting data that researchers could work with a lot better data than just knowing someone’s [00:29:00] Hispanic or not. Now, the downside is that the census, that’s.

Internally, the Census Bureau externally, because of political pressure, the Census Bureau, not the Census Bureau, but the government in general, OMB, Office of Management and Budget, which created Directive 15, is in charge of those classifications, which the Census Bureau adopts. Wants to make Hispanic into a racial category.

Whereas now it’s ethnic, which it’s already not really an ethnic classification. I mean, if you go to Latin America and ask people, are you Hispanic? They won’t know what you’re talking about because they’re a Mexican. I’m Argentine. Right. But even if we accept that it’s become an ethnic category in the United States, how is it, you know, and even if we accept that race is socially constructed, Hispanic simply isn’t a race, you know, you could be, you can have any.

Kind of appearance, any kind of background, you consider yourself 100 percent white as many Hispanics do. So why would we put you down as being of the Hispanic race? They also want to make Middle Eastern and North African into a separate classification from white. You, [00:30:00] I first blush that makes a certain amount of sense and that we understand that Arab Americans may face, may look somewhat different and face different challenges and people of, you know, Eastern or Western European heritage, but in the end is just as nonsensical.

A classification as white, it makes just as little sense in the sense that, you know, Middle Eastern North African includes Israelis includes Persians, it includes Turks, it includes Berbers, it includes Lebanese Christians, it includes You know, the Middle Eastern North African population, uh, is incredibly internally diverse as well.

It’s not, I think people see it. These are proxy for Arab American, but many Arab America, many non-Arab Americans, like Israeli Jews, like, um, uh, Christians, uh, from Iraq, who didn’t consider themselves to be Arab, uh, are not going to be in those classifications and some people see it also as. A [00:31:00] proxy for Muslim, but I did a rough some rough figures might have to go about half of the mean of classification would not be Muslim.

So, what are you really getting there? Except, you know, maybe giving Arab Americans, uh, activist groups, the opportunity to say, well, we are people should be some should be, uh, eligible for affirmative action. Also, you’re not really getting better data. Right, right. 

Joe Selvaggi: Indeed. All right. So that was a tough question.

I thought that was the easy one. So let me give you know what I think is the tough question. We have all kinds of set asides for at the local city state level, federal level for contractors that are for whatever term we want to use particular race or underrepresented groups that are specifically earmarked for either companies led by people of particular races, What does this decision, ultimately when, uh, people with good lawyers decide to challenge it, what does this decision imply for the constitutional worthiness [00:32:00] of those kinds of, um, government programs?

David Bernstein: I think if you find plaintiffs who are willing to challenge them, I think they’re all dead. Uh, they’re even, as, as much as the Supreme Court might have been skeptical, it was skeptical of affirmative action in universities, in contracting, uh, it’s, it’s much more egregious, much less defensible. So, I already mentioned part of the reason the Supreme Court allowed Racial preferences in higher education that they were deferring to the academic freedom of the university.

So the slide was educationally valuable. There’s no educational component in the set of size. Another thing about the set of sides is that with regard to education, the Supreme Court said, even though we’re allowing you to use race in higher education, you still have to do an individualized consideration of each applicant.

There’s no individualized consideration. In government contracting. If you are a member of any of the official minority groups, you get a preference, which [00:33:00] leads to yet another reason why it’s more dubious, which is that, at least in the context of affirmative action in higher education, there is some effort to say, okay, well, here are some groups that are especially underrepresented.

So we give African Americans the biggest preference. We give Native Americans some preference. We give Hispanics a lower preference, but still a preference in, uh, government contracting. It’s universally the same. If you are, uh, an Indian American, Asian Indian American from Bangalore, upper middle class family from Bangalore, they send you off to Stanford graduate school, uh, you get a degree in, uh, some, in some high tech sub related subject, you open up a small defense contracting or consulting firm, you apply for a government contract, you’ve become a citizen, you’ve been here for five years, uh, you get exactly the same preference.

As the African American from the inner city or from rural Mississippi, who’s been here for generations. I [00:34:00] have yet to find anyone, no matter how strong a supporter of affirmative action or otherwise, who has, who has been willing to justify be publicly or even privately. Yes. I think it’s a good idea that someone who just moved here five years ago is entitled to a preference, whatever their family background, as far as education income is, but say a poor kid from Appalachia isn’t, it just doesn’t make any sense.

It’s completely arbitrary benefit to people who happen to have particular ethnic heritage. And the funny thing is, I don’t think that at this point, advocates of affirmative action should care very much about protecting those programs, because if you add up all the people who are already eligible for affirmative action, it’s already about 50 percent of the population based on race.

Many of these programs also allow you to get affirmative action if you’re a woman. So, uh, if either you could claim, you know, you have a Mexican ancestor, or you put the business in the name of your wife, your daughter, you get preferences. So basically, and within a generation, everyone, basically, [00:35:00] well, almost everyone will be eligible in some way.

So, if everyone’s eligible, no one’s eligible. So, the preferences are in, I think in contracting are doomed. As it is, and I think this just will accelerate the process. I should say, by the way, that, um, I think even before SFFA.. Many of these programs were in very shaky legal ground. When people sue, they usually won.

So why the lawsuit stop? Um, there’s a story that one reason they stopped is because Every time a plaintiff won, the state would, or city or county would just put the program back in place and make them relitigate on some narrow legal issues. And it was expensive. But my theory is that the big companies don’t care about these preferences because the big companies have Major construction defense contractors, they’re not eligible for preferences, because you have to have under a certain amount of income.

The small people, if they really, if they really think it’ll make a difference, they can always find some way to become eligible. Whether they, again, put the business in the name of their wife or daughter, or they [00:36:00] discover some long lost Hispanic ancestor, or they have a black partner, or they, uh, you know, or in Louisiana, they basically persuaded the state government to make up some phony Indian tribes they could belong to their state, but not federally recognized, but that’s good enough to get preferences.

So, it’s really not achieving their purpose. The original, I know the original purpose was to help bring African American businesspeople into economic mainstream. It’s not doing that. There are very few African Americans of in the United States. We’re getting these things at this point anyway. So 

Joe Selvaggi: we’ve gone from, uh, meaningless terms to meaningless benefit, right?

If everybody’s, um, getting a set aside, then really, effectively, what’s the point? Um, I want to, uh, again, we’re running out of time, but I want to point to, uh, you mentioned briefly, uh, medical research. Uh, we know firsthand, as crazy as it sounds, we had some of our vaccine, uh, COVID vaccine research, uh, held up owing to the fact that, um, not enough, [00:37:00] Black or Hispanic, uh, subjects were in the test sample so that until enough of each race was tested, we couldn’t roll out the vaccine again.

If you listen to the beginning of the show, you would say these are meaningless terms. But nevertheless, they have an influence on how quickly vaccines come to market. Are those designations doomed given their specious claim to any sort of genetic difference? 

David Bernstein: You know, 20 years ago, when these rules were first coming into place, requiring minority participation in research studies, the medical establishment was appalled, uh, not the AMA because they’re, they’re political, but the research establishment, let’s say, was appalled and said, this is ridiculous.

The overlap between genetics and race in general is dubious. But once we get not just a race in general, but the specific classifications we use in the United States, which are, you know, which are even more arbitrary than just like saying, well, anyone who’s black is,  pick a race. Well, uh, [00:38:00] in the United States, we say anyone who happens to have Spanish speaking ancestry is a member of another group.

And we separate them out from researchers is ridiculous. Asian is ridiculous and so forth. But don’t worry, 20 years from now, we’ll all be using genetics anyway, instead of race. And that hasn’t really happened. It hasn’t happened in part because technology hasn’t advanced as quickly, I guess, but I think in part, um, the race stuff has crowded out, uh, genetics and it’s really a shame, you know, it’s fine.

Just coincidentally, my wife happened to have a colonoscopy the other day, uh, as everyone should get once, they turn 50, uh, Uh, public service announcement. I was talking to the doctor, and I was saying, you know, he’s also my doctor. I said, should I, you know, my, should I be getting one? I got one like seven years ago.

Here’s my, they say, well, you know, you’re an Ashkenazi Jew, my opinion, he’s also an Ashkenazi Jew, is that from observation and talking to other people in my field, Ashkenazi Jews are at higher risk. But the problem is we don’t have, can’t justify it to your insurance company because we don’t have any data because they don’t separate Ashkenazi Jews.

So one of the weird things about it is that we requiring 00:39:00] researchers to look at genetically diverse classifications that don’t teach us anything, but we don’t encourage them to actually look at truly genetically distinct populations. Icelanders, uh, maybe gypsies, uh, Hungarians, uh, Ashkenazi Jews, particular tribes from, you know, different ethnic groups, tribes from Africa or the United States.

There are groups that have some genetic differences where I don’t think RM, and they’ve mRNA vaccines like COVID, that was just ridiculous because there’s no reason to believe they’d operate differently on different classifications, but there are, there are, uh, for medical research purposes, sometimes we do want to look at people’s specific genetic inheritances.

It’s best to just look really at the genes, but if you can’t do that, certainly it’s sometimes worthwhile to look at specific genetic populations, but instead we waste time, energy, resources, money on research on ensuring that we have statistically, um, large enough. groupings to do [00:40:00] to, uh, satisfy the government.

And by the way, not statistically significant, right? If you’re, if you’re an actual scientist, if you, if you did think studying everyone that we call black in the United States would be worthwhile, you look for a statistically significant number. No, they want it to sort of match the population, which is also scientific and mathematical knots.

It’s all political. So, we’ve let the political nature of these classifications intrudes on actual science and it’s all, there’s no gain to this at all, it’s all downside. Well, um, 

Joe Selvaggi: Again, we’ve got so much to talk about, but we’ve gone over. I just have to keep asking just a little bit more. We’ve talked about, okay, now this is all government, uh, and we even talk back at the Harvard cases because they accept government money that the government has some, some say in how they, how they conduct their admissions.

What about the private sector? We, you know, we, we certainly don’t want. private actors to discriminate based on race and all these kinds of things. But again, we’ve spent our time talking about these vague, arbitrary, um, labels. Um, is there a chance, and I don’t want, you know, I don’t want to see discrimination, um, but if we use these clumsy terms like race, um, does that put in jeopardy, um, racial discrimination claims against private actors?

David Bernstein: I don’t think so, because really for purposes of race discrimination, there is not what is the objective feature of people’s physiognomy or, uh, ethnicity or background. It’s does the, you know, what does the employer think? So, one problem with using the classifications that we have is that it might, we might lose some subtleties like, um, Can an employer be sued for discrimination against Asians if they’re like 98 percent Chinese employees?

Which would suggest, oh, they’re hiring tons of Asians. Almost all their employees are Asian. But what if they want to hire someone from India because they hate people from India because they have nothing to do with each other, right? Or what if there’s someone from [00:42:00] Argentina who runs a business and there’s a large local Puerto Rican population and he has it in for Puerto Ricans?

So, we don’t get that, but we do get the broad categories. Uh, if you just have someone who does hate Blacks or Hispanics or, you know, East Asians that might very well come up, uh, either in the in some data that we are able to gather or at least in like remarks you make to your subordinates. Don’t hire any Chinese.

I don’t like them or don’t hire any whoever. So, um, I don’t think this undermines, uh, anti-discrimination law such it might undermine it if we ban Banned any use of classifications for any purposes. But again, that’s not my position. My position is we should try to have a narrow tailoring to you to use the classifications.

Once we decide what we’re trying to accomplish at the classifications should meet that goal. So, we should allow for, um, yes, statistical evidence is often a dubious way of proving discrimination, but the extent statistics are relevant, for example, if you know [00:43:00] you’re in a city that is 30 percent Hispanic, let’s say they’re primarily Mexican American, but it doesn’t really matter.

And you have, uh, uh, 10, 000 employees that don’t require any special skills that would, that would necessarily, you know, defer by ethnic group and you haven’t hired anyone who appears to be Latino, like no one with any less Spanish sounding last names on who kind of quote unquote looks Hispanic. That’s pretty good evidence.

You’re probably going out of your way not to hire them. And that’s fine, right? There’s no reason you can’t prove discrimination that way. It’s just that we don’t want to pretend that, oh, um, if Harvard, you know, is claiming, oh, we’ve made so much progress in Yeah. Encouraging underrepresented groups in our country.

Hey, we’re 15 percent African American. Isn’t that great? But wait, you’re only really you’re like two thirds African and Caribbean immigrants and only 6 percent compared to over 10 percent of the population domestic African Americans. You really haven’t made the progress you’re claiming. I mean, in some sense, if [00:44:00] you’re a civil rights activist or a racial justice activist, you should be skeptical of using these broad classifications because it allows Uh, people who are claiming to be warriors for racial justice to take in, say, lots of people from Argentina who are white and Italian by background and say, look how many Hispanics we have.

We’re doing great for social justice. 

Joe Selvaggi: Right, right. So, you want to you want to paint with a more precise brush. You don’t want these vagaries that we’ve adopted. So, we’ve completely run out of time. So, uh, the last question I want to ask is, okay, you know, firing your book and then the decision or the two shots over the bow of this whole sort of, um, um, affirmative action movement, at least affirmative, um, classification movement.

Um, where do you see the, you know, the, the green shoots of, of us sort of doing away with these clumsy, overbroad, uh, titles? Where will we start seeing [00:45:00] these lawsuits first appear that to challenge, um, uh, race based, uh, either hiring, uh, set asides, uh, admissions, that sort of thing? 

David Bernstein: We’ve already had a few lawsuits filed, one against law firms that had minority only summer programs with special benefits for the admittees to that program.

That seems to be, was clearly illegal even before SNF, because it’s basically a hundred percent job quota, which has never been allowed. We’ve seen a lawsuit against West Point, which will be interesting because the Supreme Court suggested that it’s possible at least that there is a compelling interest in racial diversity in the military academies.

Uh, but you know, I don’t really know because, unlike in the past, there is now an infrastructure of groups and organizations that want to challenge these, but they all have their own internal dynamics, which include the idiosyncratic interests of whoever’s running them and funding them and what they think will be good for fundraising, what they think strategically is in their best interest.

But I do want to say that [00:46:00] the more that these classifications are deemphasized in government and universities and in big business, the better off we are towards going getting past them in the sense that the good news. We’ve only talked about the official classifications at the grassroots level. People don’t think so much about these classifications.

You don’t meet outside of elite universities, if you ask someone what their ethnicity is, who we call Asian, they will, they don’t say I’m an Asian American. They say I’m Chinese, Taiwanese, Japanese, you know, Filipino, Mexican, you know, a matter of Latinos, I’m Mexican American. They don’t normally Think of that this, you know, but even more important, they tend to ignore these ethnicities in their day-to-day life.

I think African Americans are still more isolated than the other groups, but even among them, their interracial marriage rates up to like 23 percent or so, up from negligible figures, you know, 30 years ago, the groups are all mixing, you see. Just walking around any [00:47:00] big city, any small town that’s ethnically missed, you see all sorts of couples of all sorts of possible permutations of mixed ethnicity.

And on the ground, I think Americans are gradually developing a non-ethnic or multi ethnic American multi identity. Even if they have their own personal identity at home, they think of themselves as just broadly American. Say I’m not going to date someone or marry someone from that group. And oddly enough, while, you know, 50 years ago it was the elite, the government, the universities, that was fighting against the racism of the public.

In some sense, we’ve reversed it. At the grassroots level, the public is much more, uh, race neutral and race blind and color blind and willing to interact. And it’s at the universities, for example, that we see separate housing. Separate lunch, you know, separate dining hall, whatever it is, separate graduations from minority students, treat minority students as if they’re some exotic other, as opposed to being part of the American mainstream.

Joe Selvaggi: Well, I’m glad you ended on that note. You put, um, you [00:48:00] took the words out of my mouth. I do imagine or fantasize about a post racial America. I, you know, in my universe, it seems like we’re already there. I’m absolutely perplexed by the assertions made by. What I effectively say are race essentialists that say, you know, we, we are our race.

I’m like, there’s so much more about all of us than our race. It’s just a, you know, proverbial skin deep. Uh, maybe I’m painfully naive, but I, I think this is all trending in the, in, in a good direction. I’m pleased. Uh, well, I’m pleased for your book. I’m pleased for the outcome of the SFAA. And I’m thrilled that you were able to join me today on Hubwonk.

Thank you very much for your very informative, explanation of where we’re headed. Thank you very much, Professor Bernstein. 

David Bernstein:

Thanks for having me, Joe. 

Joe Selvaggi:

This has been another episode of Hubwonk. If you enjoyed today’s show, there are several ways to support Hubwonk and Pioneer Institute. It would be easier for you and better for us if you subscribe to Hubwonk on your iTunes Podcatcher.

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Joe Selvaggi discusses the implications of the Students for Fair Admissions v. Harvard case for race and ethnicity-based programs with David Bernstein, a Distinguished Law Professor at George Mason University and an Adjunct Fellow at the CATO Institute.


David E. Bernstein holds a University Professorship chair at the Antonin Scalia Law School, 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, the University of Turin, and Hebrew University. Professor Bernstein teaches constitutional law, evidence, and products liability. A prolific author, Professor Bernstein often challenges the conventional wisdom with prodigious research and sharp, original analysis. Columnist George Will praised Bernstein’s most recent book Classified: The Untold Story of Racial Classification in America, as “perhaps the most consequential American book of 2022.”