Inventing Racial Classifications: Legacy and Limits of Discriminatory Labels

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Joe Selvaggi talks with George Mason Law Professor David E. Bernstein about his book Classified: The Untold Story of Racial Classification in America, discussing the ways in which racial definitions once used for past abuse and exclusion have evolved to become a central feature used to describe modern society.


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.”


Please excuse typos.

This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. Americans are frequently asked to select a race or ethnicity when applying for jobs, answering the census, or applying to college. Yet few understand the origins of how those classifications evolved and were coded into practice. Owing to a shameful history of use to justify chattel slavery or exclude certain groups from immigration or citizenship, policymakers of the past half century have used the labels black, Asian, Hispanic, Native American and white primarily to measure the efficacy of several rights laws and to track the success of economic inclusion programs. But even modern concepts of race still largely depend on legacy definitions and admittedly lack a reliable sociological or scientific foundation and rely on individuals to self-identify their race, all whilst Americans become increasingly multiracial. What can the story of how the concept of race and ethnicity took shape in the past tell us about how they might be better understood in the present? My guest today is George Mason Law Professor David Bernstein, whose newly released book entitled Classified: The Untold Story of Racial Classifications in America, delves into the history of how the concept of race, so central to many of the political, cultural, and legal debates of our time, took shape. Professor Bernstein will share how racial classifications evolved from an invidious pretext for enslavement or exclusion to legal criteria used for enforcing civil rights laws to the modern practice of using such labels for the purpose of ensuring equal opportunity and improved diversity. He will also discuss the pitfalls of blurring and broadening the definition of race and ethnicity in a way that serves to dilute the ability of policymakers to address valid claims of discrimination and past injustice. When I return, I’ll be joined by author and George Mason Law Professor David Bernstein.

Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi and I’m now pleased to be joined by George Mason Law Professor and author of the recently released book, Classified, The  Untold Story of Racial Classification in America, David Bernstein. Welcome to Hubwonk, David.

David Bernstein: Thank you very much, Joe.  All right. Before we dive into the observations of your book, I want to frame our conversation by noting you are a law professor. And so we’re going to be talking a lot about the way the law addresses the issue of race. But I’m curious. I know we’ve done a great deal of work. I’ve started to dive into your earlier work in your law review articles. What brought you as a scholar towards this intersection where the concept of race is instantiated in law? What brought you to this place?

David: I think it’s clear that race plays a significant role in American history and American legal history. But the vast majority of those who’ve written about it, who’ve investigated historically, talk about it presently, are people who aren’t sympathetic to and don’t really understand why markets don’t like limited government, believe in racial essentialism, even though they deny it. And I thought it was important that someone approach these topics, the same topics, but with a little bit different perspective.

Joe: Indeed. So you do talk in your book a great deal about racial classification, but you also say it’s an untold story. So regardless of which perspective is being used, not many people delved into how we arrived here in the present day, which we do throw around terms like race quite casually. But I think your background is in history, you undergrad in history. You’ve delved in your book a lot into how we got where we are. So what was the first sort of concept of race in the US? Who started to define it and for what purpose?

David: Well, I think officially, the United States government had race from the very first census. And it’s a very interesting phenomenon that people associate slavery with race, but really more like race with slavery. So you had this country founded on liberal, individualist principles and their people enslaved. So they had to say, well, why is it okay to enslave these people and tell them because they’re a different race? So that’s where we really got our American concept of race from their people who could be treated differently, have different rights from everybody else. But it wasn’t at the national level as opposed to the South where they had slavery and Jim Crow. Other than immigration law, the only time that the United States really set out to officially define race was starting in the 1950s with civil rights legislation. If you’re going to protect people from racial discrimination, you have to decide which kinds of people you’re trying to protect and how you’re trying to count them to ensure they’re being included.

Joe: Okay, so that’s an interesting idea. I think I’ve read before that in fact, slavery came first and we had to invent some sort of excuse for slavery. So we created this concept of race. That’s I think something to ponder. So who was it that in the 50s decided then,

okay, we need to roll up our sleeves and ensure we don’t discriminate against groups? Who defined, you know, who’s which group and the boundaries of those groups?

David: So at the time, there was an obscure office called the Office of Federal Contract Compliance, which had to enforce executive orders from President Eisenhower requiring that federal contractors not discriminate. The problem of course, they could say they’re not discriminating, but they wanted to sort of check up on the companies. So they started to, they got surveys, how many individuals of these different groups do you have? And it was sort of not clear who exactly they were going to enumerate, Jews, Catholics, blacks, Mexicans, and eventually partly for ideological reasons, but largely because of happenstance, they focused on visible racial minority groups. And the reason was at the time, it was considered at best rude, and at worst illegal in many states to ask people their religious ethnic racial background. So how did they decide who is what race? It was really just the HR person looking around the room and saying how many black people we have. If you’re a Catholic, no one knows if you’re Jewish, no one knows if you’re Polish, no one knows just by looking at you, we could pretty much tell who looks black, some people who look Mexican. So that’s why civil rights laws and their implementation, just sort of because of that, while they’re being focused on race to the exclusion of other possible categories.

Joe: So that seems like a pretty weak leg to stand on. You look around the room and decide who’s which race and check off the boxes on behalf of the census. Your book goes into great detail. You talk about this, I believe it was further down the line, instantiated a term called budget statistical directed number 15, which actually really more formally codified these  issues. But going into those categories of who is black, you know, in the various races, what did we arrive at ultimately when we started in the 50s and we ended and I don’t want to steal your thunder talking about this directive 15, where did we wind up ultimately developing these categories?

David: So one advantage of actually looking visibly at people is the least you could say, well, these are people who may actually suffer race discrimination because they look different.  But by the 70s, we moved to a system of self-identification. And the problem that the federal government faces that when people could identify themselves as whatever classification they want to different federal agencies were giving people different guidance as to which group they might belong to. So some federal agencies were looking at Spanish surnames for what we now call Hispanic some Spanish language households. Some would just look and ask if you are Mexican and so forth. And they were finding in the federal government, they were getting data from different sources, they wanted to compare but they couldn’t compare it because the different groups were defined in all sorts of ways by different agencies. They said, okay, let’s get together and come up with a singular definition of different groups that will be applied across the board. And they basically took this idea of the visible minorities and say, okay, we’ll have black African American, we’ll have some sort of Spanish language category they settled on Hispanic as an ethnic category because they wanted to be including white people from Spain and from South America, Asian American Pacific Islander, white, which is basically just everybody else, and African American and black as another category. So we wound up with these sort of five racial categories that coincidentally are not matched the long-standing racist classifications that have been used in other contexts.

Joe: So again, we’ve got these, I think it’s five discrete categories, we’ve got Hispanic based  on some sort of cultural connection to Spain, but sweeping geographic location from Afghanistan  to I guess Japan, I don’t know, and white being everybody else or indigenous people  being Native Americans in North America, but white people being everyone else, which seems  to me to be, you mentioned Italians and Jews and Poles and North Africans and Arabs, are these racial categories in any way coherent? Do they coalesce around any consistent criteria?

David: Look in fairness, back in the 1970s, America was over 80% white, over 10% black, and what we now call Hispanics were largely put into the white classification, and then you had a very small percentage, less than 1% Asian American and Native American. And at the time, people just thought, well, everyone kind of knows culturally who’s white and who’s black, and we have sort of a one drop rule if you look at all like you’re of African descent, you’re black, if you don’t, you’re white. So at the time, it sort of made sense not to worry so much about the other classifications, but they really weren’t anticipating that we would change. First of all, make Hispanic eventually into this entirely, what separate quasi racial classification, and it would become extremely diverse instead of being 80 plus percent Mexican American, we now have people from all over Latin America. And of course, the Asian classification, they just didn’t think they had enough Asians to bother breaking it down, but they wound up with a sort of insane category that includes everyone, like you said, from Pakistan, not just Japan, all the way to the Philippines, includes people  who look different, who have different religions, different cultures, who are, if you believe,  even in the old race categories, Filipinos are mostly Austronesians, East Asians, like  Chinese are a different group. And then Indians and other South Asians, Pakistanis are Caucasians, they’re not even racially the same group. And the different classification are defined, as you mentioned differently. So yeah, there’s really no coherence to it. It was just sort of a really slapdash, let’s come up with classifications. And frankly, for the purposes of that, they were primarily made for, which was enforcing anti-discrimination laws. They weren’t completely absurd. They weren’t great. But as they expanded to other realms, they became increasingly dubious.

Joe: Well, it seems to me, again, as you say, it came out of some sort of administrative office, and though well-intentioned, perhaps not based on any sort of scientific or rational basis. But as they were handed down into the country, and the country began to change, your book goes into great detail about the way in which political coalitions formed around these groups, and then enforce their boundaries. In some cases, they’re trying to include more people in their protected group. In other cases, they were trying to exclude groups that might logically qualify to be included. So say a little bit more about how coalitions enforce the boundaries of these race categories.

David: Sure. So there was a question, should Hispanic or something like that could have been indigenous, Mestizos, whatever, that would have been more of a racial category. Should that be a racial classification or should it be an ethnic classification, which it is now asked about separately? And African American groups and Asian groups, both opposed making it to a racial classification, because the Asian groups were afraid that Filipinos who often have some Spanish descent, Spanish surnames would check off Hispanic rather than check off Asian and similarly African Americans who were afraid Afro-Latinos would check off Latino or Hispanic rather than African American and reduce their numbers. Native American groups, meanwhile, did not want Hispanics to be part of the Indian classification, even if they were 100% of indigenous origin, because they didn’t want to share the breeder of Indian  affairs resources with immigrants as opposed to Native American tribes of North America. So they’re also and all the groups opposed in the 1990s, the movement to create a multiracial  classification, because again, they want their numbers to be greater, both for political  lobbying purposes, but also if you engage in any kind of litigation over employment discrimination or voting rights, the baseline that you’re trying to prove discrimination is how many  people fit the classification in the census in the local area. And the fewer people check that box, the harder it is to win lawsuits.

Joe: So the plot thickens now, given that we live in this melting pot called the US, and it’s very possible, in fact, likely that many people have black, white, Asian, American Indian and Hispanic parents or grandparents, how should a multiracial person be classified? There’s all these kind of groups trying to define boundaries. What about those people who can check all boxes? Who’s what? Who’s white, who’s black and who’s Hispanic in that?

David: Until 1997, you’re only allowed to check one box. As a compromise with the multiracial movement, they change it. Now you can check more than one box. Although after they implemented that and the agitation for multiracial classification died down, many federal agencies made internal rules saying basically, if you’re black or anything else, you’re black. If you’re white or anything else, you’re the non-white classification.

So they didn’t in practice use the multiracial classification or more than one classification.  I think you should be allowed. I mean, ideally, for most of these purposes, you should just be allowed to say, how do you, there should really be two questions that are salient for the government, if any, one of which is how do you identify? And the second would be, what do other people think of you as? And that would get a lot better data for real sociological, anthropological, even civil rights purposes, and simply asking which of these very broad categories do you identify with?

Joe: Is it so, I don’t want to oversimplify now, but given that we’ve got sort of this concept of a minority status and special status, again, instantiated law or anti-discrimination, what’s  the boundary between being a white person or white and being a minority? Is there a clear one?

David: The boundary really is that if you are from anywhere in Europe or the Middle East up to Afghanistan, other than Spain, and you’re not from Latin America, then you’re not a minority. So it doesn’t really, it doesn’t matter what your religion is or even how dark complexion you are. So a Yemeni Muslim is officially white, a dark complexion or an Armenian whose grandparents were massacred by the Turks in 1918 are white and they’re just white in exactly the same way, legally speaking, as a white haired blonde or blonde, blue-eyed Icelander.

Joe: So given how vague the term even, well, particularly, maybe especially white is, when we’re doing sociological studies or medical studies, how do we meaningfully, you know, when we go in and check off that box white, as you say, white can be a whole range of backgrounds, what the, how can we meaningfully tease out any sort of group preference or group oppression,  if you will, if these terms are so vague?

David: Let me take those two separately. First with sociology or anthropological studies, a really bad result of the government creating these classifications and using them, not just for statistical, statistical purposes for civil rights, but also in the census, is that there’s huge databases that the government collects every 10 years, when they do this survey that like one that every eight Americans is asked to fill out, and they use these very crude classifications. Now, if you’re a sociology professor or a grad student or anthropology student or economist or anybody else and you want to study groups, you could create your own data set, but it would cost a fortune and very difficult to do or you just rely on the government data. So we wound up with the data that we are all given about these issues being broken down by these crude classifications and it winds up obscuring in intragroup differences.

So for example, when Lyndon Johnson back in the early 60s was promoting the war on poverty and JFK before him, the group that got the most attention at the time were Appalachian whites. You have all these books with pictures of people living in these shacks with outhouses and Appalachian whites are still among the worst off groups in the United States and they’ve attracted a little bit of attention now because of the opioid crisis and whatnot,

but in general, their data is just subsumed into whites and no one pays any attention to them. Conchariwise, for example, with Asian Americans, everyone says all of them are minority are doing so well. But if you’re looking college admissions, for example, is really people with origins in India and China and a couple of other countries in the East  Asia that are doing so well, but Pakistanis and Bangladeshis and Malaysians and the whole bunch of other subgroups are actually average or worse and we don’t even think about that because they’re all subsumed into Asian. Now medical research is the really crazy one, because the government mandated, the congress mandated that the FDA and NIH require regulated industries to use racial classification to make sure groups aren’t being left out. But instead of trying to figure out which groups to use in some sort of scientific or anthropological —so I think you’ll get experts together say, hey, what would make sense for scientific studies to avoid the obvious controversy that would cause, they just use the same crude  studies, even though by the way, the same includes categories, even though when the  statistical directive number 15 was created, the government said very explicitly, so not  meant to be scientific. But we’ve had a situation where for example, Moderna’s vaccine was delayed because they didn’t have enough Hispanics in their study, even though there’s really  hard to see why Hispanics who could come from anywhere in the world would have any specific reaction to the vaccine other than rather than like Americans in general.

Joe: So it’s a case of garbage in garbage out where science is relying on highly unscientific foundations for its for its analysis. We and earlier podcasts, we’ve talked about things like crime statistics, such as unfortunate hate crimes against Jews or blacks or any kind of categories, they seem to be more precise in their analysis of racial categories. Are there parts of the government that sort of take make the extra step and actually, you know, define people with a little more precision than directive 15?

David: I’m really glad you mentioned the hate crimes example because it’s something I thought of after I wrote Classified, after the book came out as an example of where the government doesn’t just accept the crew classifications and stop there. It looks at Catholics and Jews and Christians in general all crimes against the old crimes, every possible hate crime, which makes a lot of sense if you’re looking at hate crimes. And I think it goes to the point that it’s not that classifications are never useful because you’re silly to say, oh, we’re not going to have hate, we’re not going to look at hate crimes because we want to classify people. But that when you do classify, when you need to, you should be doing it in a precision way, focused on what you’re trying to get at and not just use these crew classifications. Unfortunately, other than the hate crimes example, even months after Classified came out, I haven’t really come across any other example of the government using more of a precision way of classifying people rather than just using these crude directive 15 classifications.

Joe: So all this conversation about how vague these racial categories are, they’re beyond academic or passive analysis. They really do also speak to a lot of the government set-asides for, let’s say, disadvantaged groups, however vague that term is defined. What is the origin and where does this concept of defining first, defining race and then designating  special set asides for those race, where did that begin?

David: It really began after the Detroit riots in 1968 and other riots after MLK’s assassination, the Kerner commission appointed by the president issued this report and said there’s despair and lack of hope in black communities and urban communities and we need to do something  to bring African Americans more to the economic mainstream. And for the first decade or so, these programs that started off with the Small Business Administration, Department of Housing and Urban Development and so forth, were really geared specifically towards African Americans. They were officially open to other minorities, but the appointed officials were all running them while African American, they were known to be African American programs. But as the formal rules got created, they added like everyone who was not legally white, essentially non-Hispanic white was included, which again at the time was not that many people because  the country was overwhelming white and black, but we’ve gotten to a point now where most  people who are eligible for government set asides or contracting preferences, unlike  in the emissions context with universities where African Americans get the highest preference, you get exactly the same preference if you’re a Pakistani or Mexican immigrant who came here six years ago, got citizenship, you have a wealthy family, started a business, you apply  for an SBA loan or a special department of housing and urban development program A you do if you’re the descendant of slaves, it’s already the case that so most of the  people who are eligible for these contracts are not African Americans, African Americans only get a small percentage of them and over 50% of Americans are eligible as members of  minority groups and other very large percentage are eligible as women. Of course, it’s overlap. So we’re already at a point where like 70% of Americans are eligible for preferences at some point if everyone’s getting a preference and no one’s getting a preference. So while I’m not a huge fan of these preference programs to begin with, if I were a fan of them, I’d be concerned because if I really do think there are some groups that need these programs to be brought to the mainstream, it’s not happening anymore.

Joe: Well, I enjoyed some one of the funnier parts of your book. I want to bring in Boston a little bit here is as soon as you start to allow a broaden the range of people who can be eligible for preferences, there’s going to be people who claim eligibility for preferences with let’s say somewhat dubious claims. You mentioned some firefighters in Boston, I think even some teachers in Boston. I’m not surprised that the abuse sort of happened here. I think you may have mentioned more in your, well, no, in your book you talk about two, it sounded like Irish sounded name Boston firefighters who claimed minority status say more about these kinds of abuses of minority claims.

David: Sure. Look, there’s two different groups are people who fraud who really fraudulently claim minority heritage and include these two Irish firefighters who Boston had a settlement affirmative action settlement because of past discrimination, they’re giving preference to African Americans, they failed to test the first time, they checked off African American the second time and they got the jobs and 10 years later when they apply for promotion, they put down black again, and their supervisor said, so you guys aren’t black, you’re Irish and they were fired and they went through a civil service hearing and eventually it was determined that they didn’t have any black heritage, that no one else thought it was  black, they didn’t hold themselves as black so legally they cannot claim black status. So those are that’s a relatively clear thing. The last clear examples and it’s not really clear whether this is even abuse are people who have vague distant minority ancestry, but arguably or maybe not even arguably, nevertheless come within the official definition of the category. So black African American is defined as someone who has ancestry one of the black races of Africa. Just reading that literally if you do genealogical research and you discover that your great great-great-great-grandfather was an escaped slave who came to North passed as white and then descendants thereafter are white and everyone’s lived their life as a white for 150 years, you still do have origins in one of the black races of Africa. If you’re Hispanic it says if you for Hispanic it says you have to be someone who is of Spanish cultural origin of Spanish origin is a case in classifying my book that I sort of start  off with a guy who said I’m a Sephardic Jew my ancestors came from we kicked out Spain 500 years ago about Spanish origin and the courts say well you don’t we don’t require you speak Spanish you don’t look Hispanic whatever that might mean we don’t require you  have a Spanish surname. It says Hispanic origin your Spanish origin your Spanish origin you’re Hispanic is that some abusing the system for affirmative action? Maybe but it’s abusing it by the open invitation of how the classifications themselves are defined.

Joe: So I think in your book that that guy did get his Hispanic designation so he fought in one, even though his claim dates back to I guess 1492 something like that. Now when we talk about setting aside, let’s say money for minority owned businesses. How is it determined again we’re having an argument how an individual is determined to be a minority or a particular race. Your book doesn’t go into great detail. But if I say I want to ensure that I have a certain number of contracts set aside for minority run businesses. What defines a minority run just you know president or ownership or how is that run?

David: It’s supposed to be 51% minority owned which as you might expect leads to some abuses where you have people who are allegedly running the copy of this being paid to put their name  on the title. But other than that assuming that you have a legitimate claim to minority status and again this legitimate claim could be distant ancestry. You basically write into the certifying agency usually it’s a state agency could be the federal government and you check off that you’re a member of this group and you sign affidavit saying I am a member of this group and usually that’s the end of that. But every once in a while there is a certifying official who for whatever reason doesn’t believe your claim in some states they even ask you for a picture so sometimes it’s just well you don’t look like you’re black but you wrote down black so and then they ask you to prove it. And exactly how you’re supposed to prove it is not 100% clear. There are some guidelines in the federal government saying well you could look for membership in minority groups you could look for how the person holds themselves down in the community but you would in a sense wind up with many race trials. It’s not really clear whether those specific rules apply or whether ultimately and there’s a really mixed views on this in the agencies and the courts. Do you really have to prove that you are Hispanic in some outward way that you participate in Hispanic culture or you speak Spanish or is it enough to look back to the actual wording of the rule which says you just have to be of Hispanic origin and once you prove you have a Spanish ancestor that’s enough.

Joe: It’s interesting to me again these policies are well intentioned  but you point out I mean you and I just discussed people who may fraudulently assert that they  are Hispanic for instance but you also mentioned that of course if you immigrated here from  Spain you are a European you are comfortably an uncontested member of the Hispanic group as opposed to someone similarly darker complexed like an Italian person who is also a European but has no claim whatsoever. You mentioned in D.C. the fact that these set asides these carve outs for minority owned business in DC 80% were going to Hispanic companies 20% to black-run companies say more about how these set asides wind up going to the wrong place, in fact people who have recently immigrated or even people of African American descent who are you know have no connection whatsoever to let’s say former slaves they may have recently immigrated here from Africa or the Caribbean or more somewhere else.

David: So let’s start with the fact that the Hispanic classification for the federal government excludes Portuguese people includes Spanish excludes Portuguese and Brazilian but does include people from Spain and this is the product of when they created these directive 15 classifications they did it as I mentioned very haphazard way they just asked three Hispanic employees of the government to sort of get together volunteers one from each of the major groups  Cuban Mexican and Puerto Rican to accomplish something and one of them was very insistent  that go back to Spain that be Hispanic and that’s why Spain was included but in DC the  local rules include Portuguese and as of 1990 80% of DC contracts that were set aside  for minority businesses was to really meant again to integrate African Americans into the economy were going to three cut to cut these controlled by three Portuguese immigrant  brothers.  Massachusetts is another state as a large Portuguese minority who face discrimination historically and Massachusetts doesn’t consider them Hispanic but as a separate Portuguese classification under minorities. So basically when it comes to these contracts or affirmative action or anything else we have no norm that you have to have suffered discrimination that you have to look like your member of the classification that you have to be culturally affiliated with the classification except to some extent for American Indians, you basically just have to meet the legal criteria. So you wind up with a situation where programs or men primarily to help African Americans like government contracting programs wind up helping a wealthy Indian immigrant from Bangalore who studied for his MBA at Stanford and now is starting a business or someone like you know if the Mexican ambassador to the US is son decides to stay in the United States and apply to college he gets that benefit. And you do have this additional complication that you mentioned. This was a real surprise to me.  If you would ask me what percentage of African Americans were born abroad. I would have said less than 5% but turns out that it’s about 11% another 10% or second-generation and they tend to be more economically and educationally successful than African Americans who have been in the country whose families have been in the country longer so you go to places like Harvard and two thirds of the students who are admitted as African Americans are benefiting from affirmative action are first or second generation immigrants or have one white parent mostly the immigrants and you have this real irony where I think a lot of us a lot of people believe we should be giving a break to those who are descendants of American slaves but some of the people getting the benefit are not only not they’re black but they’re not only not descendants of American slaves they may have been the  people who sold the slaves the slave traders 200 years ago.

Joe: Indeed well intentioned of course but of course it’s become horribly distorted.

We’ve focused our conversation on benefits that are conferred on people who are designated  minorities but you made an allusion to the fact that there are also some minorities that  by virtue of their minority status may actually suffer discrimination against legal discrimination against and bring us upon current events as you know that there’s a case before the  Supreme Court that does involve our beloved local institution Harvard the students for fair admission versus Harvard actually wants to defend again using the principles in the earlier Bakke case that said okay look we can consider race when doing admissions and again what’s come to light in the trial itself is that if one is let’s say an Asian minority one has to have substantially higher test results and qualifications to get admission  you know let’s say a white American is sort of neutral and a black applicant is given an advantage is it your view that you know using race and what we’ve covered is the vagaries of defining that term is that let’s say objectively unfair to let’s say give one way to more way  to one race less rate to another given that there seems to be no correlation between race and past oppression at least you know at its face?

David: Well I mean first of all we should be  cognizant of the fact that the Supreme Court has only allowed race and university admissions for diversity purposes and if they were truly interested in diversity uh other than mere  aesthetic diversity we’re going to have people of different skin tones and appearances on the cover of the alumni magazine and so forth and admissions materials it doesn’t make any sense to include all Asian Americans constituting people descended from 65 percent of the world’s population as one diversity classification. There was a big case that before the current case against Harvard there was a big case at University of Texas where they were essentially in practice preferring uh Hispanic applicants uh and downgrading Asian American applicants and the example I give  let’s say you’re a member of the Hmong Cambodian minority from Minnesota and you go to the University  of Texas and you say I you know I’d like to apply say well you’re subtracting from diversity  because you’d be another Asian we want to add to diversity by having another Hispanic that person of Hmong oancestry could say you know University of Texas to my knowledge has never had a single Hmong person ever that would really add diversity you already have 2000 Mexican Americans how is it adding to diversity take the 2001st Mexican American as opposed to the first Hmong so again we have these crude quiet and not even really racial classifications they’re uh legally speaking  racial classifications but they’re arbitrary they don’t even follow what we normally think of as racial lines and the Mexican Americans themselves uh you could just be you could be someone uh who is a descendant of a Mexican farm worker uh who is mostly of indigenous origin but you could also  be someone whose ancestors were Spanish Conquistadors and have been living in Texas since the 17th  century and you’re 100 European in origin and as American as you could get and you get exactly  the same preference as a Hispanic so it really is so even if you think that there’s some level of equity or fairness to preferring historically disadvantaged racial groups and admissions this ain’t it.

Joe: So given that we all want to ensure that people who are truly disadvantaged  do have some benefit and we don’t want to dilute that concept by making essentially everybody  disadvantaged or everybody a minority how do we tease out the concept of disadvantaged citizens from the concept of race? I think in your book you use a term I think I’ve heard for the first time from you separating out race and state how do we do that and do it with the precision that that’s needed to ensure that well-intentioned effort to help  disadvantaged people aren’t directed towards effectively a Benetton commercial of kids from elite prep schools from around the country?

David: Yes I mean so first of all we obviously have a lot of programs that help disadvantaged people that aren’t race-based I mean I don’t know what the figure is now hundreds of billions of dollars are being spent on Medicaid it goes more to people of  traditional underrepresented minority groups because they tend to be those categories overall  are poorer than Americans as a whole but we don’t base it on race and also there’s that but also if  we want to separate race and state there may in some cases uh be not quite proxies for race but  things that correlate with the race but aren’t actually racial classifications so we already have a situation where the Supreme Court has said that membership in an American Indian tribe is not  a racial classification even though it correlates with the race not everyone who’s a member of an  American Indian tribe is actually of racial Indian descent because it’s possible to get in otherwise but also a lot of people who have some racial Indian background aren’t members of tribes and  it’s a political category based on the historical relationship the US government has had with the Indian tribes. One could argue for example for narrow preferences for descendants of American slaves on similar grounds this is a historical political classification based on disadvantages  that this group has faced going back to the Constitution itself that it’s again while almost everyone who will fall into the category of descendants of slaves is black at least 20 or so percent of the population is black or not descendants of American slaves so I’m not sure how the Supreme Court would feel about that. Justice Kavanaugh actually asked this  precise question uh or argument so it’s on their minds but you could you could have certain categories like that you could even make it narrower like oh we’re going to prefer people who live in segregated school districts where minority populations are you know more than 80 percent of the school and  then say because this is an example of concentrated poverty based on past racism but not everyone who’s just happens to be a member of this phenotype gets the benefit so there are there maybe are  some ways around it but again the most basic answer is that if minority certain minority groups are  disproportionately disadvantaged to begin with any race-neutral program that helps with this  advantage will still disproportionately help them.

Joe: Indeed so but if we do say again we define  their disadvantage as disadvantage demonstrate disadvantage rather than a broad brush of race would we ultimately let’s say in a brave new world I’ll categorize this as a if you’re a king for a  day or all nine judges or justices for once could we literally ban the use of race, you know in its purest sense from the law on constitutional grounds were we to and then in a sense divorce  race and disadvantage and more precisely define disadvantage and ultimately say the race becomes irrelevant in the eyes of the law?

David: So they do that in France more or less and it can be done I mean the real difficulty is that there are certain anti-discrimination laws in particular the Voting  Rights Act that would be extremely hard to enforce or even monitor unless the government kept track  of people’s race how would you know if some local district in rural district in Texas is suppressing the Hispanic Mexican-American vote if you didn’t have some idea whether Mexican-Americans were voting or not and I don’t think the United States is quite prepared to dispense with its anti-discrimination laws or statistical evidence of discrimination quite yet, so I think preference some sort of racial classification is going to be with us for a certain amount of time but  and you know you don’t want a situation where the FBI can’t track hate crimes because we don’t look at  race but we can certainly limit to I mean my I don’t really talk about this in classified but  if I had to rewrite the book I would say towards the end I do say that we should try to separate race and state that we should when we do use classifications which use them as narrowly as  possible in the way to achieve the whatever limited goal we’re trying to achieve but I think the other thing I’d say is that a proper legal standard is before we classify anybody by race racial  classifications are supposed to be subject to strict scrutiny which means the government has to have a compelling interest so before the government asks you to check the box and start gathering data and all that and therefore classifying you by race they should have to show to the courts that there’s a compelling government interest in doing so they’re not just doing so for a ministry of convenience  or because they’re used to doing it of course interest groups want them to uh and I think for  example the medical context would clearly fail because of anything using crude non-racial, non-genetic categories that have to correlate with our racial classification scheme if anything undermines good medical practice rather than promotes it.

Joe: Indeed I think and in some way we’ve come full circle to where we started which is we have to acknowledge despite past discrimination there certainly is current discrimination meaning one could be affluent but  black and be discriminated against or Hispanic visually you know appearance-wise and be discriminated against and we still need to have ways to measure whether that’s happening you know in broader society, right—independent of past grievance current discrimination based on appearance still exists  clearly.

David: Sure and you know but I think we do ultimately have a conflict of visions there are those who think that America is so intrinsically racist it’s so baked into the American pie, so to speak, that we’ll never get rid of race-based differences and we should we should both encapsulate them in law and freeze them the way they are right now even though the government itself is partly responsible for how we perceive a race and just make sure each group gets its fair  share because otherwise we’re not going to have anything remotely resembling equity. My own view is that the historical levels of assimilation we’ve seen for previously uh contest very contested identities like Catholics who used to be excluded from all sorts of things people thought Catholic can never become president and they have a Catholic president six Catholics Supreme Court justice and just what’s going on at the grassroots with very high rates of interracial marriage you see  you walk around any major city or even small town to see every possible combination of people  as boyfriends, girlfriends, husbands, wives that we are at a point where we could imagine a multi-racial, multi-ethnic American identity that people still may still have you know Kiss Me I’m Irish stickers on St. Patrick’s Day but no one really cares anymore so much if you’re Irish and we can imagine race being the same way 50 years from now but if the government insists on classifying people and divvying up benefits by race which will in turn encourage people to organize themselves politically, socially and otherwise by race they’re really going to impede the progress we might make towards that  and leave us with permanent racial divisions.

Joe: Indeed there’s a feedback loop so we’re getting close to the end of our time together. If we’re talking about I think you’re quoting Thomas Sowell there this conflict of vision and we say okay do we imagine that the classification of race has the effect of having us define ourselves by this arbitrary notion of race and therefore reinforce these boundaries. Do you see a future whereby we do sort of identify as white instead of American or do you see us migrating towards the other vision which is race essentialism  which says okay look there’s an impossible intractable divide between races that conflict  will always exist and this is our this is our lives forever. Which do you think do you envision?

David: Well I mean my own preference is post you know what you might call post-racial vision  and people mistake this doesn’t mean a post-racial vision doesn’t mean that no one ever notices  that someone’s a different color or looks different or no one has that oh I’m proud of my African American heritage it just means that the way you know 50 years ago if I was giving a speech about this sort of thing or certainly 70 years ago people would have noticed that I’m white but they would have really said you know Jewish guy named Bernstein looks Jewish you know whatever and but now most people don’t care about that we’ve all we’ve all we’ve gone beyond that sort of ethnic difference and we could have the same thing with the a bunch of races like yeah you might think you think  about it yes this person may have been Hispanic but publicly speaking it doesn’t matter but there  are entrenched interests who don’t want that to happen there are a group of left-leaning intellectuals who think the only way to create equity in the United States is for whites to become more white to identify more and more with their whiteness so that they recognize their privilege  and use that knowledge to become anti-racist activists which I just think is nuts because you know psychologically humans grew up in small tribes where you’re in the in-group or in the out-group and the in-group is what you depend on for survival in the out-group is your enemy and historically speaking psychologically speaking the social science data backs this up, the more you are likely to think of yourself as being white and the other people as being other the more likely you want to screw over the other not to help them they’re obviously going to be exceptions to that but that’s going to be the way they go the other problem is that government  corporations big business are used to the current system and they like it and then we have a whole group of people who make their living off of this. I was just looking at uh Latino studies departments in the United States right these are all people who have jobs based on the notion there is such a thing as Latino identity it could be studied and uh not only do they have jobs doing  this if you look at it you know 80 percent of them are indistinguishable by looks eighty percent of  professors from Europeans and if you say okay being you know you’re just really a white person who happens to have some Spanish heritage maybe a little bit of mixed it doesn’t really make you  any different from other immigrants where’s their job now where’s their career going to go so uh  there you know I think there has to be a conscious effort by those of us who have a post-racial vision to combat the entrenched groups who want to keep the status quo.

Joe: Indeed you have a quotation in your  book uh from Antonin Scalia about uh there is uh I’m I’m sure I’ll butcher it but there you know there aren’t races in the Constitution it’s just the American race I don’t know if I’ve given a fair  shake to that.

David: Close enough.

Joe: Close enough so uh so there are others who share that vision I will  admit I also share that vision again being of an Italian-American descent I think the um the  interpretation we had is Italian became white after Mickey Mantle or after Joe DiMaggio uh so I  don’t I don’t know when that happened but it happened uh and I see that as as progress so uh this has been a really great conversation I appreciate your time uh uh Professor Bernstein, it’s really an important issue I recommend your book please for our listeners to share with us where can we learn more about um your book and your earlier work and your writing on these topics?

David: So, the book is available Classified: The Untold Story of Racial Classification in America. You could buy on Amazon or I suppose they find bookstores everywhere as they say um uh my if you click on that link there’s you know my author name there you click on my  author name it shows my other books uh if you’re interested in my if you’re a more academic type  when I read the you know the articles as opposed to books uh you could if you look at which has basically all the articles that were written you could download those uh at your uh leisure and  I also blog among with a bunch of other law professors at

Joe: Wonderful, well thank you for joining me today on Hubwonk, Professor Bernstein.

David: Thank you so much.

Joe: 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 it would make it easier for others to find us if you offer a five star rating or a favorable  review we’re always grateful if you share Hubwonk with friends if you have ideas or comments or  suggestions for me about future episode topics you’re welcome to email me at hubwonk please join me next week for a new episode of Hubwonk.

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