Racial classification as the machinery of preference
In a discussion of how federal racial categories came into being, David Bernstein dates the classifications to 1973, when Caspar Weinberger, described as the Secretary of Health and Education and Welfare, decided to create them, aiming at what Bernstein calls bureaucratic convenience. Because the classifications were seen as primarily about that at the time, Bernstein says, they were not very controversial, and they drew far less attention than the Bakke affirmative action case, which was happening at the same time. When the classifications were published officially in the Federal Register as law, they stated that they were not meant to be used for qualification for any government program — in other words, not for affirmative action — but they were immediately used that way. 5 Questions for David Bernstein on Racial Classification (2022)
Bernstein describes the jockeying that followed over the roughly forty-four years after 1978. The Asian category, which he says included Chinese, Japanese and Filipinos as the three major historical groups, expanded once Indians were added, and then Pakistanis, Bangladeshis and Nepalese, until it covered all of Asia east of Pakistan. He notes a request from a man from Kazakhstan, who argued that Kazakhs had been excluded from the Asian category for Small Business Administration purposes because the Soviet Union was considered a white country, but that Kazakhstan was now independent and its people more similar to India than to Europe. Bernstein also reports that at the elite level in colleges the idea that there is such a thing as Asian American is accepted without question, while at the grassroots level only 35% of people within the Asian American category say they consider themselves Asian American in any way, even as a secondary identity.
Self-identification and the honor system
Asked how the system corrects for people who self-identify to game it, Bernstein answers that the classifications were primarily created in a society with a black-white bifurcation, where there were strong disadvantages to asserting a black identity, and that fifty years later there is every incentive personally to assert some sort of minority identity because it gives higher status. He says he read a lot of literature about racial classification, including a great deal about affirmative action, and 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. In university admissions, he concludes, it is basically an honor system in practice, although you are supposed to adhere to it. 5 Questions for David Bernstein on Racial Classification (2022)
The picture differs by context. In government contracting affirmative action programs and in employment — for instance where a government agency has been sued and implements a preference system to settle the case — Bernstein says there have been instances in which a boss said he had always thought someone was Irish, or a government bureaucrat asked how someone named John Smith could be Hispanic, and the person was asked to provide further evidence. In government contracting the penalty has basically been losing the status, with no real penalty otherwise. In the employment context there are several examples of people being fired for writing down the wrong ethnic classification, either because a judge found no basis for the claim or because a settlement defined Hispanic in a way the person did not meet. Bernstein also notes a lot of fraud involving Native American heritage, which led the Department of Transportation a few years earlier to pass new regulations requiring membership in a tribe to try to reduce the fraud because it was so prevalent. Exploring the Borderlands of Legal Whiteness with David Bernstein (2022)
Affirmative action within Critical Race Theory
Jonathan Butcher places affirmative action inside the vocabulary of Critical Race Theory. He says the theory’s modern expositors, mainly Ibram X. Kendi and Robin DiAngelo, and especially Kendi, treat capitalism and racism as conjoined twins, and that Kendi’s book How to Be an Antiracist says racial discrimination is necessary because of past discrimination — present discrimination necessary because of past discrimination, future discrimination necessary because of present discrimination. Butcher describes equity as the coerced form of equal outcomes, as opposed to equality, which means everyone is treated the same way under the law regardless of the color of their skin or their ethnicity. Under equity, he says, government should create systems that provide the same outcomes for individuals, which is why proponents favor affirmative action, although they believe it has not gone far enough. He adds that Kendi says standardized tests are inherently racist because they measure people’s behaviors and abilities. Splintered: Critical Race Theory and the Progressive War on Truth (2022)
Diversity as a word of convenience
In a discussion of the leftward shift of academia, Bob Zadek says universities cry out for diversity and use it to justify policies he finds abhorrent — affirmative action type policies, taking race into consideration in admissions — while there is a strong movement for diversity except for diversity in ideas. John McGinnis agrees and says diversity was frankly a word of convenience for much of the academy: they did not want to use the words affirmative action as people started to understand what it was and that it is preferences for one group over the other. He says the proof is that there is very little interest in viewpoint diversity, and that in the legal academy conservatives are published at a higher rate and cited at a higher rate, which he says suggests discrimination, and yet they are not often at top schools. Here Comes the Storm (2019)
Across episodes: no development
The topic surfaces in four episodes — a 2019 discussion of academia with John McGinnis, a 2022 discussion of Critical Race Theory with Jonathan Butcher, and two 2022 conversations with David Bernstein on racial classification — and the excerpts show no development between the earlier and later treatment; each guest addresses a different facet rather than revising a shared argument.
What the sources do not cover
The excerpts do not state what any court held about affirmative action, which amendment or statute any case turned on, or the outcome of the Bakke case beyond its being controversial. They do not give the official federal definition of Hispanic, the text of the Federal Register notice, or the names of the Department of Transportation regulations. They also do not report the founding date of Critical Race Theory or the titles and fields of the guests beyond what the exchanges themselves supply.