5 Questions for David Bernstein on Racial Classification
2022-07-18 · Guest: David Bernstein (Professor of Law at George Mason University) · 52:45
The Untold Story of Racial Classification in America
Bob Zadek interviews Professor David Bernstein about his book “Classified: The Untold Story of Racial Classification in America.” They explore how the US government created arbitrary racial and ethnic categories for bureaucratic convenience and political maneuvering, and the negative consequences these classifications have on law, medicine, and social cohesion.
Topics: Racial Classification, Affirmative Action, Civil Rights, David Bernstein, Identity Politics, Constitutional Law
Speakers: Bob Zadek, David Bernstein
Introduction [00:28]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running libertarian show on all of radio. Thank you so much for joining us today for an hour of what I think you will find to be the most thoughtful, interesting show I’ve had in quite some time, at least in the past week.
One of my first shows when I started broadcasting about a decade ago was with Ward Connerly. In fact, he was my first guest as I remember. He was an African American businessman and former regent of the University of California, and he had led a ballot initiative in California, which was successful, to overturn affirmative action in California. Whenever it comes to a vote, Americans always, or should, reject any idea of racial classification. And when I say racial classification, I use the word racial even in a broader sense than you would imagine. And let’s just say reject the idea of any classification, as do the founders, who looked upon us and hoped the law would look upon us only as individuals, not as members of one or a thousand different membership groups.
The founders hated any concept of peerage systems. They rejected it, whereas you acquired certain rights and certain privileges and certain detriments by the mere accident of how and where you were born and from whose womb you emerged. You’ve heard of the phrase “legally blind,” but what about “legally white”? Can you imagine such a thing as fighting over whether you’re white or not, and fighting over what country you came from, and allowing government to dictate that part of your persona?
Well, this morning’s guest has thought quite a bit about it, and he has raised some issues—legal, moral, political—that I dare say have just about never been raised before. When you read David’s book, you will ask yourself, you will say to yourself, “I never thought of that, but wow, is this important.” This morning’s guest is David Bernstein. He’s a Foundation Professor of Law at George Mason University and he is a blogger at the Volokh Conspiracy. He has just written—it will be going out in the middle of July, any day now—Classified: The Untold Story of Racial Classification in America. You will learn in the next hour how government decides exactly who you are. And once government bureaucrats decide who you are, they then will decide what privileges you have and what privileges you don’t have, simply because of the classification that a government has assigned to you. You will be amazed; indeed, you will go through an identity crisis after the show is over, because you will think you were one type of person, and David will help you understand that you are quite another, at least in the minds of some bureaucrats, with profound effects upon your life and your relation to government. So, David, welcome to the show this morning and thank you so much for the book.
David Bernstein: Thanks so much for having me.
The Origins of Modern Classification [04:33]
Bob Zadek: Now, David, the subtitle of your book is The Untold Story of Racial Classification in America. Now, first, let me get into this subject quite slowly because we have a lot to cover. So first of all, why is the government in the business of even deciding who you are in terms of your racial, ethnic, geographic, political classification? Why does government even care? All the government should care about is whether you’re obeying the law or not, and certain basic information, economic information perhaps, so it can publish statistical data that might help government and business operate better. So why does government care in the first instance? And then we’ll get into, after we learn why government cares, we’ll get into how they use this information that they have developed. So first, David, welcome to the show and tell us, David, why government cares.
David Bernstein: Well, of course, historically speaking, the government cared generally for nefarious reasons. So of course, in the Jim Crow South, you had to distinguish between who was black and who was white because you had laws that would put black people in different schools. You had laws in various states that banned interracial marriage, so you had to know what race people were. You had laws that banned people who were classified as Asian from immigrating to the US, or if they immigrated, from becoming citizens. So those were all sort of bad things.
After the Jim Crow era was coming to an end and after the Holocaust, there was a lot of sentiment to say, “Aha, now’s the time we can abolish these arbitrary classifications once and for all.” And they did so for a time in Canada, for example. The problem became that the United States government, through a variety of civil rights laws, felt that it needed statistical information about people’s race and ethnicity in order to enforce the laws. So the first group of laws in question were federal executive orders from the President in the 1950s—first Truman and then Eisenhower, and then later Kennedy—prohibiting government contractors from discriminating based on race and other qualifications. And in order to ensure that contractors weren’t discriminating, they asked each contractor to fill out a form saying how many employees do you have of different minority groups. At the time, it included Catholics and Jews and so forth, but it turned out that those groups were really hard to enumerate because the policy at the time and the law of many states was you weren’t allowed to ask people about their religion or their ethnicity.
So in the end, what contractors would do is say, “Okay, well let’s look at the visible minorities. How many people do we have that look like they’re of African descent?” And they could put them down as “Negro,” as the term would have been at the time. “How many look Oriental,” as the term would have been at the time. “How many look like they might be Mexican?” And those became the main classifications that the United States had. We call the classifications now Asian American, Black/African American, Hispanic/Latino, but they basically arise out of these original classifications that were used in government contracting law. And then when broader civil rights laws were passed, similarly, the government wanted to check for discrimination in employment and education. And the easiest—of course, African Americans were a primary rationale for the laws to help them overcome the legacy of discrimination—but when you’re thinking about which other groups that you want to protect, the racial minorities, the visible racial minorities, were the most obvious ones because they were the easiest ones to figure out without having to ask.
Bob Zadek: If we stop there, David, it seems to me the government is accomplishing the wrong goal. It’s preventing discrimination against people who look black or look Asian, not who actually are black or are Asian, as the classifications are used.
David Bernstein: Yeah, I think that’s right. And the transition from visual identification for statistical purposes and self-identification happened in the ’70s. I think it was partly a result of lobbying by civil rights organizations who wanted the government to get better data. And they wanted them to get better data for certain kinds of laws that are more group-based in terms of discrimination than individual-based.
So for example, if you were a light-skinned person who happened to have a Hispanic descent, you may not face discrimination in employment if people don’t realize from your last name or from your appearance that you’re Hispanic. But if you live in a Hispanic part of Texas, and the establishment in Texas is trying to prevent people living in your town from voting because the town is overwhelmingly Hispanic, you may suffer voting rights discrimination even if no one would discriminate against you personally in employment. So certain types of discrimination have that statistical base.
Plus, we developed this large social welfare bureaucracy during the Great Society in the ’60s where we wanted to check the social progress of various groups. So how well are black or Hispanic or Asian or whoever students doing on educational tests? How many of them are graduating high school? And again, even if you didn’t face discrimination individually as a Hispanic or black person, if you were living in a so-called black neighborhood or Hispanic neighborhood and had black or Hispanic origins, you may suffer the same consequences of being in a bad school district or whatever as your darker-skinned compatriots.
So basically, these statistics were invented to enforce both the laws and to track the progress of various groups. And the problem that the government faced was every government agency had its own definition of which groups sort of counted for statistical purposes. So some agencies would say the Hispanic category would be actually Mexican Americans and Puerto Ricans, but not Cubans. Some included Cubans. Some said Mexican, Puerto Ricans, Cubans, and others. Some said Spanish-speaking households. Some said Spanish-language households, and so forth and so on. So the government was getting data that was different—they were maybe trying to measure the same things, but they were measuring it in different ways. Some agencies even had an “other” category where they would include white ethnics like Cajuns or French Canadians or Italian Americans, other groups with low socioeconomic progress at the time.
So the government decided in the mid-’70s, “Look, we need to compare whatever we’re doing here. You could agree or disagree with what we’re trying to do, but once we’re doing it already, we need uniform data that we can have across the government so we can at least compare apples to apples.” So they decided to create an interagency government committee to decide exactly what the official government classifications are and how they’re defined. And it wasn’t really especially controversial at the time because no one realized what the implications would be, which is, “Oh, well this is just gathering statistical information.” No one realized that this is going to become the baseline for affirmative action programs and racial preferences. No one realized that identity politics would revolve around these classifications. No one realized—and everyone would have been appalled by the idea—that we’re going to divvy up medical treatment based on these very unscientific categories, which is the latest trend that we need to be concerned about.
Classification Creep [12:24]
Bob Zadek: You have wonderful, profoundly irrational, almost humorous examples. So please share those with the audience as well as you explain classification creep from a few classifications to the amount that we have now, and why did it happen?
David Bernstein: So you have to remember that when these classifications were really coming into their own between the 1950s and the early 1970s, the United States was primarily a biracial society. We had a large majority of what we could call white people of European or Middle Eastern origin, and we had black people who basically were anyone who looked discernibly like they had African descent. And there was not that much ambiguity there. Obviously, there were a few borderline cases, but for the most part, there was no social advantage or economic advantage historically—quite the opposite—to a white person claiming black ancestry, and black people who looked like they had African ancestry couldn’t say they were white even if they wanted to.
So no one really thought too much about the classifications. We had a very small Asian population, less than 1%. And what we now call Hispanics were considered to be white people by the federal government. They were white on the census every single decade except in 1930 when there was briefly a Mexican American census category. So we had almost all white people and black people. No one really anticipated that we’d have millions of immigrants from Latin America and from Asia that would really complicate things.
And also, people really thought that these classifications were pretty immutable once you had them—that if someone was Chinese, they would just stay Chinese. It didn’t really occur to people in those days, when interracial marriage was really frowned upon, that by our time, 2022, interracial marriage would be supported by almost all Americans as a good thing, or at least a neutral if not good thing to do, and that the rate of intermarriage for all these groups would be very high. Even African Americans have gone up from 2% to like 22% of marriages are interracial.
So first, we have to realize that no one anticipated all these classifications. Asians were an afterthought. The Hispanic identity is interesting because, like I said, they were historically considered to be white. There was a movement sponsored by the Ford Foundation for political reasons, really, to make Mexican Americans the equivalent of African Americans as a racial minority. But oddly enough, what really got the Hispanic identity movement going was Richard Nixon. Richard Nixon, as President, had two concerns. His first concern was that he was concerned with Chicano radicalism, Mexican American sort of mixed-race radicalism, and Puerto Rican nationalism, because if you remember back in the ’60s and ’70s, there were Puerto Rican nationalists who were hijacking airplanes, bombing Congress—it was a fairly big issue at the time. And he felt, “Hey, if we make a Hispanic sort of identity, pan-national identity, maybe that will make them feel more American and less tied to Mexican or Puerto Rican identity.”
But his other concern was, “Hey, a lot of schools and government programs are already giving advantages to Puerto Ricans and Mexicans on the grounds that they’re dark-skinned and a racial minority because of their African and indigenous heritage. How can we exclude Cubans? Cubans vote Republican, so we should include them.” Once you include Cubans, who are predominantly of European origin and consider themselves to be white, you basically have to include anybody who’s of Spanish origin.
So if you talk about some of the absurd decisions that we’ve had in the court system and in bureaucracy, a lot of them revolve around Hispanic identity. The official definition is anyone with Spanish ancestry or culture is Hispanic. But in practice, a lot of agencies and courts say, “Wait a second, your name’s David Bernstein. Okay, your grandfather—this is not true, but let’s just imagine—your grandfather fled Nazi Germany in 1938, settled in Cuba for a generation, and then when Castro came to power, he came to the United States. So it’s true that you have Hispanic origins, maybe your father was born in Cuba. But really, were these programs meant for you? You’re not dark-skinned, your name doesn’t sound Hispanic.”
So there’s this big split in the courts where some courts just say anyone with Spanish ancestry going back even 500 years counts as Hispanic, and others are saying, “No, we want to limit the programs to people who we think will face discrimination because of their Hispanic origins, people who have darker skin and so forth.” Now, as far as I’m concerned as a law professor, the law is very clear. It actually does say anyone with any Hispanic origins who wants to claim that identity gets to claim it. And you don’t even have to have truly Hispanic origins. In practice, it means your ancestors came from a Spanish-speaking country. So you could be a Basque whose first language ancestrally was Basque and not Spanish. You could be an Indian from Mexico or Peru whose first language was one of the indigenous Indian languages, but you’re quote-unquote Hispanic because you’re from a Spanish-speaking country. So there’s all sorts of craziness in the bureaucracy, conflicting decisions as to who counts as Hispanic.
We also had a very interesting phenomenon with regard to Americans from South Asia—like India, Pakistan, and so forth. They were initially classified by the census and by government agencies starting in 1970 as being white because, after all, they’re Caucasian. An Indian American group though lobbied to have them switched to the Asian category, and at the last minute, they changed the proposed classifications to include Indians as Asian. But Indians could have just as easily been white but for slightly different historical circumstances.
And ironically, what we wound up doing—you mentioned the Chinese Exclusion Act—so Asians were banned from immigration and ultimately citizenship for quite a while. The courts had to come up with a definition of who is Asian. And basically, the courts in the 1920s said, “Well, Indians and Pakistanis and so forth are Caucasian, but they’re not white, so we’re excluding them as Asian.” What we ultimately did in 1970 is mirror the old racist classifications, and we decided the same boundaries apply. If you were in Asia, but west of Pakistan, west of China, you’re white. So Iranians, Arabs, Armenians, Israelis are all white. But if you’re from Pakistan and China east, you’re Asian. And even Filipinos, who are Austronesian in origin rather than East Asian in origin, we put three different ethnographic groups in the same classification: Caucasians (South Asians), East Asians, and Austronesians. 60% of the world’s population that have nothing in common culturally, nothing in common religiously, they don’t look alike, they have different—incredible diversity within the classification. They’re all just Asian American. So one of the absurdities of this is when Harvard says, “Oh, we’re going to have a soft quota, we want 20% Asian Americans because Asian Americans are all like the same for diversity purposes.” How is a Bangladeshi the same as a Malaysian? Not in any rational way.
The Ambiguity of Self-Identification [20:12]
Bob Zadek: A couple of comments. First of all, when you talked about Nixon cooking the books on classifications based upon his enemies, his famous enemies, what occurred to me was I wonder if Nixon was trying to call hippies as a racial category because that was his other enemy besides blacks—he hated hippies. So maybe he was trying to give them a racial classification.
Second of all, you mentioned people—two concepts related, David. You talked about someone claiming to be, and then you supplied a racial category. Do we get to pick our racial category for some purposes and not for others? And I know you’re about to answer, but I’m going to ask you a second related part. So answer that plus my next question. You also mentioned that groups were lobbying for to get included or excluded from classifications, again changing a concept which is, one would think, biological or genetic to some degree—I know it’s based upon heritage as well—but something which is sort of somewhat fact-based to something which is discretionary.
So how does one get to claim what you are and for what purpose? And now we’re going to get into really one of the political important parts of your book, which is why it matters. Why are people fighting to be included or excluded in certain groups? Therefore, if people are claiming what they are and if lobbying groups are lobbying to be a certain thing, there must be a reason. So now we get into really one of the political important parts of your book, which is why it matters. Why are people fighting to be included or excluded in certain groups? Therefore, if people are claiming what they are and if lobbying groups are lobbying to be a certain thing, there must be a reason. So tell us about the ugly political part of this classification system.
David Bernstein: So to go to the question about whether we get to classify ourselves, you could opt out of classification. No one—there’s no—I think the law even says that you don’t—you can’t be forced to identify your race, although sometimes the forms don’t have an opt-out, but you don’t have to answer. But most of the time, the people who are collecting this data—the mortgage company, the university, whoever it may be—are required to guess at your ethnicity and race if you don’t put it down. So you can’t escape the system by opting out.
The second related issue is that there are official definitions of what constitutes someone who’s Hispanic, someone who’s Asian, etc., as I mentioned. Most Americans think there aren’t, that it’s just all self-identified. And the reason they think so is that one of the weird things about the way we do racial classification in the United States is we do have official definitions of what the classifications are, but when you’re filling out the form, those definitions aren’t provided. So I actually just wrote a blog post about this recently. My daughter’s a rising senior in high school, so we’re looking at the college applications, and they ask you to write down what race or ethnicity you are, and they give you some hints. They say like Hispanic, you know, are you one of these countries or if not, put down what country you are. But for example, for African American, it just says do you consider yourself African American or black. It doesn’t give you the definition, which is a descendant of one of the racial groups of Africa. So let’s say your parents immigrated to the United States from Morocco. Morocco is in Africa, so can you—are you African American? You may purposely say, “I’m just going to put that down to help my application,” but you may not honestly know, the definition isn’t given. So it’s one of the weird things that we do have official definitions, they’re supposed to be adhered to, but no one actually provides them to people. So that—and usually no one checks. Occasionally someone does, and that’s how we get court cases and agency decisions, but usually in the university admissions, no one does check.
Now, on your second point, why do people care? Obviously, my book is not about affirmative action, but obviously if you’re going to write a book about modern racial classification and how they work, one of the major issues involving classification is the way they’re used or not used to give people preferences based on those classifications. So affirmative action of course has to be part of the book even if it’s not what the book is primarily supposed to be about.
So the most—the best example I could give you from the book is the fate of one of the original 1978 classifications, the only one that’s really been changed significantly since 1978, which was Asian American and Pacific Islander. And there are still organizations out there on university campuses and other places that call themselves AAPI, Asian American Pacific Islander. However, in the early 1990s, various people in Hawaii—Native Hawaiians, Samoans, other Pacific Islanders who live in the Hawaiian Islands—complained to the government they wanted a separate—they wanted to be put in a Native American category. They no longer wanted to be in the Asian American category. Why? Because what they found was that when they were applying to universities in California and other places on the mainland, being put in the Asian category was a disadvantage. Even though Native Hawaiians and Samoans and other Polynesians who are American citizens have lower than average socioeconomic criteria, on average they are nevertheless put in the same category with Asian Americans who have higher than average and who face sometimes discrimination. So they said, “We want to be put in with Native Americans so we get affirmative action like Native Americans do.”
Native American groups, however, were up in arms. They were completely opposed to Native Hawaiians being included in the same category with them because there are tremendous resources that the government allocates to the Bureau of Indian Affairs for health services, for educational services, for employment. They didn’t want to share those resources with a half a million or so Native Hawaiians. So they were objective. So eventually, the compromise the government reached was they put Native Hawaiians and Pacific Islanders into their own classification. So now if you look at forms, it’s a completely separate box to check if you’re Native Hawaiian or Pacific Islander.
But these are terms of art. So for example, people in the Philippines are—are literally from Pacific Islands, right? It’s an archipelago, it’s all islands. They’re in the Pacific. They are ethnographically related to other Polynesians, not to other Asians for the most part. But nevertheless, they stayed in the Asian American classification, and even though they are literally from Pacific Islands, they’re not Pacific Islanders.
Political Lobbying for Minority Status [26:31]
Bob Zadek: So Pacific Islander doesn’t mean a Pacific Islander. It means some Pacific—they should add an “S” for some Pacific Islands. They should have a modifier. What strikes me with this starts to sound like, David, is I recall when we started—we as a country started to add additional sentencing guidelines for hate crimes, a classification that I despise, as if to say harming person of one type is more—is you’re more criminally liable than harming somebody else. Lives have different values and the like. But there was then competition, various groups were lobbying to be included in hate crimes legislation under the theory—absurd in my opinion, but nevertheless a theory—that if you got yourself classified as a hate crimes victim, people are less likely to harm you. I guess that was the thinking. But aren’t there parallels between groups and pressure groups representing those classifications fighting to be legislatively included in hate group classification? It’s sort of again, if you’re in the right group, you get additional governmental benefits just for being in that group. Is there a parallel there?
David Bernstein: Sure, there’s a parallel there. And you know, one thing that I don’t always get to talk about, but I’ll mention briefly now, is that I have a couple of chapters on various groups that were sort of on the borderline who tried and occasionally succeeded to get minority status. For the most part, failed. Italian Americans failed. Polish Americans failed. Most Jewish groups were against Jews being singled out, but there were occasionally efforts to include Jews in certain kinds of programs, and that failed except Hasidic Jews, on the theory that they look different and dress different and so forth and speak Yiddish often as a first language. They got minority preferences in a few federal agencies, but not widely. Armenians got preferences in Pasadena, California, but nowhere else.
Arab Americans are still—back in the ’70s, mostly considered themselves to be white and were fine with that. Since we’ve had a lot of Muslim Arab immigration over the last couple decades, Muslim Americans at least claim, or at least their leaders claim, that they feel more racially distinct from the general population and that they suffer discrimination. They’ve been trying to get a special Middle East and North African classification. They almost got it under the Obama administration, the Trump administration vetoed it, the Biden administration is apparently poised to try again.
And then—but not all of this, I should say, comes solely from the bureaucracy. One of the more interesting things in the book on this score is jury discrimination. You know, lawyers have the right in most jurisdictions to exclude jurors who for whatever reason they don’t think would be good jurors for their client. So let’s say you have a defendant who’s Hispanic, and the prosecutor gets rid of all the Hispanic—all the jurors with Hispanic-sounding last names. The courts have held that that is the equivalent of racial discrimination against those jurors, and you can’t exclude them and you have to get a new trial.
On the other hand, let’s say there’s a mafia case, organized crime, all of the—the prosecutor gets rid of all the jurors who have Italian last names on the theory that they might be overly sympathetic to the Italian American defendant. That, at least most courts have held, is not racial discrimination because you don’t—because they’re just generally white people. Now, this is taking the official classification scheme and treating it as if it’s sociologically, anthropologically meaningful as opposed to looking at common sense. Obviously, the 14th Amendment protects Italian Americans from discrimination just as much as people with Spanish-speaking heritage. And Hispanic is not a race, just like Italian’s not a race. It’s an ethnic subcategory. So if you’re going to say that you can’t exclude people of perceived Hispanic descent from a jury, I don’t always see why it’s logical to say you could exclude people with Italian-sounding ancestry or purported Italian ancestry. So it’s really just bizarre that these classifications that again were really just made mostly for bureaucratic convenience have sort of taken a life of their own to the extent that whether you’re entitled to not have a prosecutor dismiss jurors of your ethnicity really depends on whether you’re a member of one of the official minority groups or not, as opposed to just whether you’re being discriminated against or not.
Racial Classification in the Courtroom [31:31]
Bob Zadek: And of course you said a second ago this classification system was at least in part done for bureaucratic convenience. That almost puts a positive gloss on it. If that was all that was involved, you could just roll your eyes and say, “Oh, bureaucrats,” it seems a bit benign. But it’s not about or only about bureaucratic convenience. It’s about the money. And there’s, as you have explained earlier, if you can get yourself classified in the right way, your—the group you represent will get economic benefits and other benefits that if you’re excluded from the group, you don’t get. So if it was only about bureaucratic convenience, David, I’d be talking to a different guest. Who cares about bureaucratic convenience? But there’s a lot of money involved and power, and also the opportunity of course for pandering by elected officials as they did with hate crimes. “Hey, I’ll get the votes of this classification by getting them their own special classification and the benefits that go with it.” So tell us about the ugly political part of this classification system.
David Bernstein: Sure. When I say bureaucratic convenience, of course I meant that’s what someone like Caspar Weinberger, who’s the Secretary of Health and Education and Welfare in 1973 and decided to create these classifications, was aiming at. And it was—and because it was seen as primarily about that at the time, it wasn’t that controversial. I mean, you were around in the late ’70s, I was around, I was young, but I remember the Bakke case being really controversial, the Bakke affirmative action case. That was happening at the same time as these classifications were coming into effect, and the classifications didn’t get a thousandth of the attention that Bakke got because no one really realized the implications.
But the implications, as you said, is that once the classifications get written into law—I mean, some people figured this out, like the Indian lobby wanted to be members of minority groups so that their constituents would be eligible for minority business programs. But most people were sort of oblivious to it. And the classifications themselves when they were published officially in the Federal Register as law, they said, “These are not meant to be used for qualification for any government program. In other words, they’re not for affirmative action.” But they were immediately used that way.
So for the last however many years since 1978, 44 years, there’s been all this jockeying. Well, the Asian group, we know it includes Chinese, Japanese, Filipinos—those were the three major historical groups. Well, add Indians. Once we add Indians, I guess we have to add Pakistanis and Bangladeshis and Nepalese. And if we already—and what about people from Tuvalu and Palau and so forth and so on? So they all—the Asian category expanded to basically include again all of Asia east of Pakistan, from Pakistan and China east. And there’s this new jockeying for this Middle Eastern category.
And some of this happened at the agency level. There was a guy from Kazakhstan who made a very reasonable argument. He said, “Look, Kazakhs were not included in the Asian category for Small Business Administration purposes for racial preferences because we were part of the Soviet Union, and the Soviet Union was considered a white country, so we’re all put down as white. But now Kazakhstan is an independent country, and culturally, ethnographically, anthropologically, we’re much more similar to India than we are to Europe, and geographically also. So you should count us.” So there’s been, you know, all sorts of jockeying like that.
And the—at the elite level in colleges and whatnot, you know, if you go to—you know, I’m in the academic world, the idea that there’s such a thing as Asian American, for example, is just accepted without question. It turns out that the grassroots level, if you ask people who come within the Asian American category, “Do you consider yourself in any way to be Asian American?” only 35% say yes. Not even as a secondary identity. They don’t think of themselves as Asian American at all. But they think of themselves as Chinese American or just American or whatever.
Now, so the funny thing is you listen to NPR—I was listening to NPR during the election season, I can’t stand listening to them anymore so I’ve stopped, but I did listen in 2020—and they would have reports where they’d say, “We’re going to talk about the Asian American vote today.” And then they’d say, “So we’re reporting today from the Chinese American Democratic headquarters in Los Angeles, California, or we’re reporting today from the Korean American lobby in North Carolina.” So even though they were calling it Asian American, on the ground at the grassroots, there’s no Asian Americans. No one thinks of themselves that way. It’s a ridiculous concept. But the—but there are groups out there that to enhance their own political power, both within the university bureaucracy and within government, want to homogenize these vastly different cultures and ethnic groups and religions into one flat category that’s easier to manipulate and easier to get stuff for.
The Honor System and Fraud [37:02]
Bob Zadek: Tell us a bit about—we touched on this briefly earlier in the show, David, but I was holding back on digging into it in more detail. Tell us a bit about the role of self-identification plays in the classification, because if you can get benefits by being in a certain group, how does it work if you fill out a form? Because you often have said during our show, you fill out a form and check a box. That’s where it always starts. You check a box, which means one gets to self-identify. Now, is there a regime to audit how you self-identify, or is it when I go for my interview, somebody would look at me and say, “Come on, Bob, you’re not Korean or Asian American.” How does the system correct for people who just self-identify to game the system or the like? Or perhaps they claim to be 1/16th Native American to get to teach at a law school. I pick that kind of at random, just as a hypothetical. How does the system control that, or does it not at all? And does that color all of the statistics?
David Bernstein: So again, this is an odd idiosyncratic thing about our system. Remember again that these classifications were primarily created in a society with a black-white bifurcation where even if you could get affirmative action benefits, people had strong disadvantages 50 years ago socially, economically, and so forth to asserting a black identity. To a situation now 50 years later where actually on many campuses and in many circles, it’s considered bad to be a white person and beneficial to be a member of minority groups. So you have every incentive personally to assert some sort of minority identity—it gives you higher status.
So the short answer is I was not—I didn’t look for this specifically, but I read a lot of literature about racial classification, including a lot about affirmative action. I did not see a single example anywhere in the United States of any student ever being penalized for putting down a classification other than what someone else thought they were. So basically, it’s an honor system with regard to university admissions in practice, although you are supposed to adhere to it.
With regard to government contracting affirmative action programs and employment, like when a government agency’s been sued and they implement a preference system to settle the case, in those situations, there have been instances where either someone’s boss said, “Wait a second, I always thought you were Irish, let me look into it,” or where a government bureaucrat says, “Wait a second, your name is John Smith, how could you be Hispanic?” and where they actually ask you to provide further evidence.
In the case of government contracting, the penalty basically has been you just don’t get that status. There’s no real penalty, so anyone could assert they are whatever they say, and if the government says you’re not, you lose that minority status. There’s really not much of an incentive not to exaggerate your ethnic heritage, and in fact there was a lot of fraud involving Native American heritage, and eventually the Department of Transportation just a few years ago passed new regulations saying that we require you to be a member of a tribe to try to reduce the amount of fraud because it was so prevalent.
In the employment context, there are actually several examples of people being fired for writing down the wrong ethnic classification. That involves one of two situations: either that the judge found that you had no basis, no one—you didn’t consider yourself black, no one else considered you black, you don’t really have any black ancestry that we could discern, and therefore you’re obviously engaging in fraud. Or in some cases, part of the affirmative action settlement was you will now hire two Hispanics for every white that you hire to make up for past discrimination, and here’s how we define Hispanic. And if Hispanic was defined as, for example, being from a Spanish-speaking household—that’s not the official federal definition, but that could be a definition in a legal settlement—and you were not from a Spanish-speaking household, but you have a great-great-grandparent who immigrated from Spain, you have now defrauded the system by using a definition other than the one that you were supposed to adhere to. So the short answer though to all that is it’s mostly an honor system in practice, but it’s also the case that because these are official government definitions, you could be denied that status if anyone looks into it, and you could in fact even be penalized for lying about your status.
Conclusion: Separation of Race and State [45:56]
Bob Zadek: David, you have lifted up the hood on the system of racial and ethnic classification in America and done a magnificent job in your book. What are your conclusions? What have you concluded in doing the research for your book? Where did we go wrong? Did we go wrong? How should the problem, if you perceive there to be a problem, how should it be fixed? Your recommendations as somebody who knows more about this subject than perhaps anybody else on the planet, except those who read your book.
David Bernstein: So my conclusion is basically that our target should be the widespread separation of race and state. We have more or less a separation of church and state in the sense that we don’t favor—we don’t classify people by religion, there’s no official government tally of who’s Mormon and who’s Jewish and who’s Catholic and who’s an evangelical Protestant, who’s Muslim. We should also generally not have official tallies about this with regard to race, except if there are certain limited civil rights laws that without statistical evidence you wouldn’t be able to enforce them, then I’d say, well, you have to do the best you can with those classifications or repeal the laws. But there’s nothing you can much do about that.
But with regard to any sort of private racial classification, whether it’s in medical research, whether it’s in affirmative action in higher education, whether it’s in any other context, you really need to figure out, well, what are you trying to accomplish with your classification? In medical research, what we should be trying to do is we should be trying to ensure a genetic diversity, for example, with regard to our research subjects so we’re not missing something if we have a monolithic group of people. But the genetic diversity does not well track with the classifications we have because those are arbitrary scientifically.
If we’re looking for diversity in higher education, there’s no reason a school should prefer the 1,001st Mexican American student over the first Hmong student because one group is quote-unquote Hispanic and one group is quote-unquote Asian. The first Hmong student will obviously add more diversity to the class than the 1,001st Mexican American student.
So in general, just like we have separation of church and state because we think it’s extremely dangerous and unproductive for the government to be classifying people by religion, potentially giving out goodies, it leads to societal tension, it prevents assimilation, it encourages people to overly identify with sectarianism, and for exactly the same reasons, we should try to discourage the government from creating official racial identity. But just like we allow people to have their own religious values, own religious beliefs, just like we allow religion to some extent to be taken into account if we want a diverse group of people for a particular project, we might say, “Hey, we don’t have anyone Mormon on this, we should get a perspective from the Mormon community.” You could do that with regard to race too, as long as it’s done on an informal basis, on a voluntary basis, without the government deciding what classifications we should use and giving out benefits and harms based on those government classifications.
Bob Zadek: And just as we wind down, what would you say to be the greatest damage which our country suffers as a result of this increasingly complex, absurdly arbitrary and random classification system? Is it simply unfair that people are getting money they shouldn’t be getting? Does it harm the social fabric of the country? Are there problems in administration of justice? What is perhaps the single or the two top harms that befall us as a result of this absurd system of racial classification?
David Bernstein: I think there are two harms, one general, one very specific. The general harm is that I think the long-term trend in American society is towards amalgamation. By what I mean by amalgamation is that different groups are mixing and they’ll eventually come up with a general multi-ethnic American identity. If you consider, for example, that 50 years ago or 100 years ago, people might have considered themselves German American or Italian American or Polish American or whatever, for the most part, even if they still have that identity personally, for the most part, we just generally think of them as white people now. I would like to expand that to we just generally think of people as American now, doesn’t matter what your ethnic or racial background is.
But every time you have to check one of those boxes, every time you get a favor or detriment from the government or from an agency affiliated with the government or that reports to the government because of racial or ethnic classification, it inhibits and detracts from that general trend and encourages people to organize themselves and identify themselves primarily by their ethnic or racial origin rather than as a generic multi-racial, multi-ethnic American. So that’s the general harm.
The specific harm that concerns me most right now is this movement which is crazy in the medical community towards actually deciding who gets vaccines, who gets medical treatment, who gets to be seen first in the emergency room based on their racial classification on the idea that certain racial groups suffer harm elsewhere in society, so we’re going to make up for it by favoring them in the medical community. It’s totally against the Hippocratic Oath, it’s totally against all medical ethics. I can’t think of anything that would lead towards more inter-ethnic conflict and hatred than knowing your grandmother who was suffering—who was in more danger than someone else’s grandmother—got treatment last because she was from the wrong ethnic group. It’s scientifically unjustified, there’s nothing racial—the difference in medical outcomes in the United States are based on various socioeconomic factors, not based on race per se. There’s no reason to make it a racial issue, and it’s inhibiting us from going to a more genetically viable based system where we actually look at people’s genetic heritage rather than at their raw crude racial classification. The only good news about the medical classification is that it’s so damaging and so destructive and so important that it may actually lead to the whole house of cards come tumbling down. Because I could tell you, I’d be very hesitant about engaging in any kind of ethnic identity fraud or exaggeration or entrepreneurship in general, but if I’m going to the hospital and you tell me that if I check the Hispanic box, I’m moving up in line, I am checking the Hispanic box. And I’d advise anybody else in the same circumstance to do the same thing, and I think they would.
Bob Zadek: David, thank you so much for sharing your wisdom today on your new book, about to be released, Classified: The Untold Story of Racial Classification in America. No longer will the story be untold thanks to you. And let us hope that those who are in a position to change society do so after reading your book and bringing a tiny bit of rationality to the rules and laws that govern us. Thanks again to David for sharing his wisdom and for sharing an hour of his time, and thanks to my friends out there for giving us an hour’s access to your minds and to your hearts. We hope you are the better. Thank you so much.