Origins in government contracting
David Bernstein traces federal racial classification to the government’s historical interest in distinguishing people for restrictive purposes — segregated schools in the Jim Crow South, bans on interracial marriage, and immigration and naturalization laws aimed at people classified as Asian. After the Jim Crow era and the Holocaust, Bernstein says, there was sentiment to abolish these classifications, and Canada did so for a time. The United States instead retained them because civil rights laws required statistical information to enforce.
The first such laws Bernstein identifies were federal executive orders from the 1950s, issued by Truman, then Eisenhower, and later Kennedy, prohibiting government contractors from discriminating on the basis of race and other qualifications. Contractors were asked to report how many employees they had from different minority groups. Because many states barred asking about religion or ethnicity, contractors fell back on visible characteristics, recording employees as “Negro,” “Oriental,” or as looking Mexican. Bernstein says the present categories of Asian American, Black/African American, and Hispanic/Latino arise from these contracting classifications 5 Questions for David Bernstein on Racial Classification (2022).
Bob Zadek frames the resulting problem as the government preventing discrimination against people who look black or Asian rather than those who are. Bernstein agrees, noting that the shift from visual identification to self-identification came in the 1970s, driven partly by civil rights organizations seeking better data for group-based claims — voting rights discrimination in overwhelmingly Hispanic areas of Texas, for instance, or tracking educational outcomes in poor school districts.
Standardization and “classification creep”
Bernstein describes a period in which each agency used its own definitions: some counted Mexican Americans and Puerto Ricans as Hispanic but not Cubans, others included Cubans, others counted Spanish-speaking households, and some agencies placed white ethnic groups such as Cajuns, French Canadians, and Italian Americans in an “other” category. In the mid-1970s the government created an interagency committee to produce uniform classifications. Bernstein says this was not especially controversial at the time because no one anticipated the implications — that the categories would become the baseline for affirmative action and racial preferences, that identity politics would organize around them, or that medical treatment would be allocated by them 5 Questions for David Bernstein on Racial Classification (2022).
Bernstein attributes the proliferation of categories to changed demographics. Between the 1950s and early 1970s, he says, the United States was primarily a biracial society with a small Asian population — under 1% — and Hispanics counted as white on every census except 1930, when there was briefly a Mexican American category. No one anticipated large-scale immigration from Latin America and Asia, or that interracial marriage would become widely accepted; Bernstein cites interracial marriage among African Americans rising from 2% to about 22%.
On Hispanic identity, Bernstein credits the Ford Foundation with sponsoring a movement to make Mexican Americans a racial minority, and says Richard Nixon did more to advance the category. Nixon had two concerns: Chicano radicalism and Puerto Rican nationalism, including hijackings and bombings, which he thought a pan-national Hispanic identity might soften; and the desire to include Cubans, who vote Republican, in programs already benefiting Puerto Ricans and Mexicans. Once Cubans — predominantly of European origin — were included, Bernstein says, anyone of Spanish origin had to be included.
The official definition, per Bernstein, is anyone with Spanish ancestry or culture, but courts split: some count anyone with Spanish ancestry going back centuries, others limit programs to those likely to face discrimination. Bernstein, as a law professor, says the law clearly allows anyone with any Hispanic origins to claim the identity, and that in practice it means ancestors came from a Spanish-speaking country — including Basques and indigenous Mexicans or Peruvians whose first language was not Spanish.
South Asians were classified as white by the census and agencies starting in 1970 because they are Caucasian, until an Indian American group lobbied to be moved to the Asian category, and the proposed classifications were changed at the last minute. Bernstein notes that courts in the 1920s had excluded Indians and Pakistanis as Asian despite being Caucasian, and that the 1970 scheme mirrored those boundaries: Iranian, Arab, Armenian, and Israeli as white; Pakistani and Chinese and eastward as Asian. Filipinos, Austronesian rather than East Asian, were grouped with Caucasians, East Asians, and Austronesians — 60% of the world’s population — under one label. Bernstein cites Harvard’s stated aim of roughly 20% Asian American enrollment and asks how a Bangladeshi is the same as a Malaysian.
Self-identification and its limits
Bernstein says people cannot be forced to identify their race, though forms sometimes lack an opt-out, and that collectors — mortgage companies, universities — are required to guess if a person declines. Most Americans believe the categories are purely self-identified, but Bernstein says official definitions exist and are simply not provided on the forms. He describes reviewing his daughter’s college applications: the Hispanic prompt lists countries, while the African American prompt asks only whether the applicant considers herself African American or black, without giving the definition — a descendant of one of the racial groups of Africa. He raises the case of parents who immigrated from Morocco, which is in Africa, and whether such an applicant could claim the category. Bernstein says no one usually checks, and that court cases and agency decisions arise from the rare instances when someone does 5 Questions for David Bernstein on Racial Classification (2022).
Lobbying over categories
Bernstein calls the fate of Asian American and Pacific Islander the only original 1978 classification significantly changed since. In the early 1990s, Native Hawaiians, Samoans, and other Pacific Islanders in Hawaii asked to be moved to a Native American category, because being placed with Asian Americans disadvantaged them in mainland university admissions despite lower average socioeconomic status. Native American groups opposed the change, not wanting to share Bureau of Indian Affairs resources for health, education, and employment with roughly half a million Native Hawaiians. The compromise created a separate Native Hawaiian or Pacific Islander box. Filipinos, Bernstein notes, remained Asian despite literally being from Pacific islands and being ethnographically related to Polynesians rather than Asians.
Zadek draws a parallel to hate crimes legislation, which he says he despises, and to competition among groups to be included under the theory that classification as a hate crime victim makes harm less likely. Bernstein agrees there is a parallel and lists groups that sought minority status: Italian Americans failed, Polish Americans failed, most Jewish groups opposed singling out Jews, though Hasidic Jews obtained minority preferences in a few federal agencies, and Armenians obtained preferences in Pasadena, California, but nowhere else. Arab Americans mostly considered themselves white in the 1970s; more recent Muslim Arab immigration has produced efforts to obtain a Middle East and North African classification, which Bernstein says nearly happened under the Obama administration, was vetoed under Trump, and is apparently poised to be tried again under Biden.
Bernstein also describes jury discrimination. Lawyers may generally exclude jurors they think unfavorable, but courts have held that a prosecutor removing all jurors with Hispanic-sounding surnames is equivalent to racial discrimination against those jurors, requiring a new trial. Removing jurors with Italian surnames in a mafia case, most courts have held, is not racial discrimination because they are just generally white people. Bernstein calls this treating the official classification scheme as sociologically meaningful rather than applying common sense, noting that the 14th Amendment protects Italian Americans as much as people of Spanish-speaking heritage, and that Hispanic is not a race but an ethnic subcategory. He says it is bizarre that protection from having jurors of one’s ethnicity dismissed depends on membership in an official minority group, and the excerpt breaks off there 5 Questions for David Bernstein on Racial Classification (2022).
Across episodes
Only one episode is represented in these excerpts, so the sources show no development of the topic across episodes; the sole treatment is Bernstein’s discussion of the origins, standardization, and political contestation of federal racial classifications.
What the sources do not cover
The excerpts do not state the name of the interagency committee that produced the uniform classifications, nor the specific executive orders or statutes involved. They do not give the holding or citation of any jury discrimination case, or identify which amendment the jury cases turned on beyond Bernstein’s reference to the 14th Amendment. The final sentence of the excerpt breaks off mid-clause, so Bernstein’s conclusion about official minority groups is not available.