3 Takeaways - Classified: The Complex and Bizarre World of Government-Imposed Racial Classification. Listen, and Learn. (#130)

Episode Date: January 31, 2023

At a time when government-imposed racial and ethnic classifications are increasingly used to determine peoples’ rights, it’s important for them to make sense. According to law professor and author David Bernstein, they definitely do not. They’re absurd, have negative consequences, and are widely manipulated by “identity entrepreneurs.” 

Welcome to the Three Takeaways podcast, which features short, memorable conversations with the world's best thinkers, business leaders, writers, politicians, scientists, and other newsmakers. Each episode ends with the three key takeaways that person has learned over their lives and their careers. And now your host and board member of schools at Harvard, Princeton, and Columbia, Lynn Thoman. Hi, everyone. It's Lynn Thoman. Welcome to another Three Takeaways episode. Today, I'm excited to be with David Bernstein, a professor at George Mason University Law School and author of Classified, the Untold Story of Racial Classification in America. Debates over race and racial classifications almost always involve abstract discussions about justice, equality, and rights.

However, many of these discussions ignore how classifications actually work in practice, which is what we'll be talking about today. These classifications are ubiquitous, and they can impact everything from applying for a job to college admission, citizenship, and even receiving a COVID vaccine or COVID test. I'm looking forward to learning more about the ways these classifications work in practice and how they are, according to David, arbitrary and inconsistent, both in how they're defined and how they're enforced. He also believes they are becoming increasingly dangerous and arbitrary in our ever-diversifying world. Welcome, David, and thanks so much for our conversation today.

Thanks. Looking forward to it. Me too. David, why are official American racial and ethnic classifications so important? Well, they're important because they affect people's legal rights, or how easy it is to get into college or to get a contract, right? So if you put down that you're African American or Hispanic, it's easier to get into college, it's easier to get a government contract have shaped how Americans see themselves and each other. If you go back 50 years, you wouldn't have really found anyone who thought of themselves as being Hispanic or being Asian American. Those classifications didn't really exist in people's minds. People were Mexican American or Chinese American or just American. But once the government invented these classifications, they started to affect both people's self-perception and how people perceived others. So interesting. What are the classifications, the categories that the federal government uses,

and how does it define each one? African Americans is one, and that's defined as anyone who's descended from one of the Black racial groups of Africa. Hispanic is officially an ethnic group that could be of any race, but that often gets confused. In any event, that's someone who is of Spanish origin or culture. Asian Americans are people who are descended from the original groups of Asia, whatever that might mean. But Asia in this context ends in practice at the western border of Pakistan. Separated off from the original Asian American Pacific Islander group, there's now a separate group of native Hawaiians and Pacific Islanders,

which includes people from the sort of atolls in the Pacific, but not the big Pacific group of Pacific Islanders, which is the Philippines, who are instead Asian American. There are white Americans who are people who are descended from the original peoples of Europe, Middle East, North Africa. But if you just have to be from one of those countries, but you're not Caucasian, you could still be a white person. Did I miss one? I think those are it. Native Americans. Native Americans, thank you. I thought it was Native Americans who are defined as someone who has cultural affiliation with a Native American tribe. Are these objective criteria? They're not objective. They came about in the 1970s. The government thought it was needed to regularize and standardize the classifications that were

being used to collect data. And they came up with these classifications in a fairly haphazard way. There were historical rationales in the sense that people had understood certain groups to certain contours and that played a role. Political lobbying played a role. Just sort of happenstance played a role. Political lobbying played a role. Just sort of happenstance played a role. For example, Hispanic category, they just actually asked for three volunteers from the government, one Cuban American, one Mexican American, and one Puerto Rican American, representing the three largest

groups of people of Spanish origin. They sort of sat them in a room for a few weeks and said, come up with a classification and how it's defined. And it wasn't like they consulted with anthropologists or sociologists or ethnic studies specialists or geneticists or anybody else. It was literally just a bunch of bureaucrats sitting in different conference rooms coming up with these classifications based on whatever criteria they happened to come up with. How are these groups inconsistent? So the groups are inconsistent in the sense that the definitions vary. So the Black slash African-American category is the only really specifically racial category. You have to be descended from one of the Black racial groups of Africa. The Hispanic category is cultural and linguistic. The White and Asian categories are based on geography.

But the Asian one, because you have to be descended from one of the original peoples of Asia, is also sort of quasi-original categories. Are the legal classifications used in the U.S. today essentially updated versions of racist categories used in the past? To a large extent extent and disturbing extent, really, they are. Just for example, again, Asian American, now Pakistanis, Filipinos, Chinese Americans really have nothing in common in terms of origins, except they're all from the continent of Asia, but they don't look alike. They don't have the same religion, the same culture, the

same food, the same anything, really. But if you go back in American history, we used to have laws that restricted Asian immigration and restricted Asians from becoming citizens, which required the courts to determine who was Asian. And the court said, OK, people from the Middle East, even though that's Asia, they're white. But people from Pakistan and India, even though they're Caucasian, are not considered to be white. So we wound up recreating that exact racist classification that was used to keep out people of Asian descent. How does the U.S. government define the boundaries of groups?

As a practical matter, the way the rules are enforced to the extent they're enforced are not coextensive with the definition. So for example, Hispanic says that you have to be of Hispanic origin or culture, but in practice, it means that your ancestors immigrated here from a Spanish-speaking country. So you could be someone of Basque descent from northern Spain whose ancestors never spoke Spanish as a first language, aren't of Spanish culture, but you'd still be considered Hispanic. Or it could be an indigenous Mexican from a rural area where your first language was a native Mexican language, not Spanish, but you still wind up being deemed Hispanic. So it's a combination of the formal rule and informal boundary lines that were established just to clarify things.

But one of the weirder or more arbitrary aspects of the laws is that most of us have filled out these forms fairly regularly when we apply for a mortgage or register our kids from school. And one of the oddities is that when you fill out the forms, there's rarely any information about what the classifications mean, how they're defined officially, and you're sort of left to your own devices. How is it determined which category a person is in? Well, it's self-identification in the sense that if you apply for college or certainly if you fill out a mortgage form, we have no ethnicity police in the United States who

are going to come and knock on your door and demand a DNA test or demand a genealogy. However, there are cases in which people have, in particular, tried to get minority business enterprise status or otherwise qualified for certain affirmative action programs, where for one reason or another, a government official or someone in charge of the affirmative action program questioned the individual's bona fides as being a member of that group, and then they sort of have a little mini hearing. The formal rule is Hispanic origin or culture, but some government agencies have said, well, in practice, if your name is Smith,

it doesn't sound Hispanic. You don't quote unquote look Hispanic. You look like you're average European. You have blonde hair, blue eyes. You haven't faced any discrimination based on being of Spanish origin or culture. So you're not who the program was meant for. Whereas other agencies will say,

hey, it says Spanish origin or culture. It doesn't say anything about looks. It doesn't say anything about last names. So if your ancestors, for example, were kicked out of Spain 500 years ago as Sephardic Jews, that makes you Hispanic. So in practice, it's really all over the map, despite what seems to be pretty well-stated rules. Let's take some well-known people. What categories would some well-known people like Tiger Woods or Elon Musk, what categories would they fall into? So Elon Musk, he's from South Africa, but he's white. So he's not descended from one of the black races of Africa. So that makes him a white American. If he is an American citizen, you don't check the boxes if you're not a citizen. He is white. Tiger Woods is 50% of Asian, I think, Thai and Chinese descent. He has partial

Native American heritage and partial Black heritage, African heritage. And he calls himself Caliban Asian to combine, and he's also partly European, to combine Caucasian, Asian, Native American, and Black. This has been controversial in the Black community because people say, well, you look Black. People treat you as Black. You're denying your identity. On the other hand, Tiger Woods could justifiably say, I'm actually multiracial. But we don't have a multiracial classification in the United States.

So Tiger Woods would have one of two choices if he was filling out a form. He could either check the box that he most identifies with and say, I feel like I'm mostly Asian or mostly Black, whatever, and just check that box. Or now he could also check more than one box. He can't say I'm multiracial, but he can say I am white, I am Asian, I'm Native American, and I'm Black. Do people game the system? And if so, can you give some examples? People absolutely game the system. There's a phrase, I didn't make it up, but maybe I'm popularizing it, called identity entrepreneurs. And that's people who look Caucasian, look like a standard European American, let's say,

but they have some sort of minority ancestry, according to the government, official minority ancestry. So they may have a Hispanic ancestor or a Black ancestor or an Asian ancestor. And the reason we call them identity entrepreneurs is that socially speaking, their friends, their families, they themselves may consider themselves to be white. But when they apply for a government job or a university position or a government contract, they put down their minority ancestry. So a fair number of affirmative action slots are going to people who are socially white, do not have the social disadvantages of being a member of a minority group, but have sufficient minority heritage, usually honestly, but maybe they're also just making it up, that they

could put down the minority status to benefit when it's beneficial to them. Does the U.S. now find itself in the position of policing claims to minority identity? For the most part, it is self-identification. And there was an interesting colloquy in one of the affirmative action cases before the Supreme Court, University of Texas, where the university was asked, what criteria do you use? Do you check what race people are? And he said, no, and we don't know of any university that does that. And I did not find a single case in all my research for the book of anyone applying to university who's ever penalized in any way for putting down a race they are. And part of the reason, I suppose, I've looked at the application for colleges, it just

says, which race do you identify as? Which is vaguer. You can identify, you know, if we have men identifying as women and vice versa, white people can identify as black or whatever. How could you say someone's engaging in fraud if they just feel that way at this point in our history? But anyway, I expect we're going to see more of this as DNA has become more common and people discover ancestry.

People might very well say, well, even if I always consider myself white, but it turns out my grandfather was really passed as white, quote unquote, and was of African descent, my family faced historical discrimination. Why should I not put it down? I know someone whose great-grandfather came here from Cuba, but was European in origin. He got, why should they get it, not me? So if I can check the box, why shouldn't I check? Do groups act to maximize their advantages? They certainly do.

One reason why Hispanic is an ethnic category, not a racial one, I mean, it's not really anything except made up by the government, but it is closer to ethnicity than race, but there have been moves to make it a race. And one reason it's not is that Asian groups were afraid that Filipinos would check off Hispanic as a race because many of them have Spanish culture and descent from when Spain ran the Philippines, they would lose constituents. And black groups were afraid that people of African descent who spoke Spanish would check off Hispanic and black and they'd lose constituents. They all were afraid that people who would normally claim membership in their group would check the Hispanic race box instead. So yeah, so besides the general arbitrariness of the classifications, it's definitely been the case that groups have been trying to police the boundaries, either to keep

people out in order to preserve their own benefits or to preserve a larger constituency by making sure that people don't leak out into other categories. What do you see as the results of the United States government's racial and ethnic classifications? I find that they're dangerous in the long run because they encourage people to think of themselves as members of these artificial groups the government more or less made up. And that would be not so bad, but for the fact that we're also giving people benefits and we're kicking away benefits from that based on these groups. The most dangerous one, I think, which you alluded to in your opening, was that the medical profession has started to argue that we should decide who gets medical care, who gets vaccines based on these artificial categories,

because minorities, in theory, have less access to healthcare, they should get preference, decide who gets medical care or who gets vaccines based on these artificial categories because minorities, in theory, have less access to healthcare. They should get preference. Although that becomes complicated because Hispanics actually have a longer lifespan on average than whites. So maybe the whites should get preference over Hispanics, which would be really bizarre. But in any event, I can't imagine anything more dangerous to civil society, for example, than knowing that your grandma got put to the back of the line because she was of X group and someone else's grandma got put to the front of the line. It's dangerous to begin with to divide people by race in this way, but if you're going to do it, you should at least be doing it in some sort of coherent way where you're matching

the classifications to the goals that you're actually trying to achieve. And that's not something we're doing. When the government came up with these classifications in the 70s, they very specifically said these are for record-keeping consistency purposes only. They're not meant to be sociological or anthropological, they're not meant to dictate eligibility for government programs. They were never meant to be used for the purposes we're using them for. So you're essentially saying that these classifications are self-fulfilling and that they divide the country by race and ethnicity? Yes.

I mean, I think the good news is on the ground level, first of all, despite their ubiquity, people are much less willing to just blindly accept them than you might think. Social science research shows that most people who are considered Asian American by the government don't think of themselves as being Asian American at all. They don't accept because it's nonsense. My parents are Chinese. They're not quote-unquote Asian. It's also the case that at the grassroots level, Americans have both never been more tolerant of each other and also have never been more likely to intermarry and interdate and have children of mixed races, which on the one hand is really good news. On the other hand, makes the categories even more

arbitrary and makes the groups that rely on these classifications for the political power even more desperate to defend the boundaries so they don't lose constituents. And will an ever-increasing percentage of Americans be potentially eligible for minority status given this intermarriage? ever-increasing percentage of Americans be potentially eligible for minority status, given this intermarriage? Absolutely. So again, like the Hispanic category of Spanish origin or culture, so technically anyone who has a Spanish-speaking ancestor is eligible. So the more Hispanic people marry people who are not Hispanic, all their children could

check off, could be, even when they really consider themselves Hispanic or not, they could be identity entrepreneurs and check off the box. David, you quote some stunning numbers in your book, Classified, about racial or ethnic groups marrying outside their category, Asians, Hispanics, and African-Americans. Do you remember those numbers? Sure. For both Asian-Americans and Hispanics, for second generation and beyond, it's over 40% marry someone outside their category. So just by happenstance, it would marry a lot of people from their own group. For African Americans, the rate of

interracial marriage has gone up, went up from 4% in 1980 to 15% in 2016, which is the figure I have in my book, but I understand now it's 22%. The whole classification scheme that we have was really based on the notion that we're going to have these permanent separate groups that we have no choice but to classify and make sure everyone is being treated fairly. So it's not really clear why we have to make public policy based on the notion that the groups will never intermingle because they certainly are doing so. David, before I ask for the three takeaways you'd like to leave the audience with today, what should I have asked you that I did not? One thing you might have asked that you didn't is to what extent are Americans actually aware

of these classifications and how they came about and how they're defined and where they came from? And for that question, I'd say the answer is almost no one knows about this. I mean, I'm a law professor. I've been writing about race-related things in history for decades. And this key federal rule that establishes classifications, Directive 15, Statistical Directive No. 15 in 1977, is something that I had never heard of before. I looked it up in the law review literature. I did a search on the big database of law review articles, only 30 articles. There are thousands of articles written about race and racial history and civil rights and affirmative action. Only 30 of them have ever even cited this particular law.

David, what are the three takeaways you'd like to leave the audience with today? So I think one takeaway is just to be aware that these classifications that we've all have accustomed ourselves to, that we just sort of think as natural, Hispanic, Black, white, that I well should emphasize that the white classifications itself, including everyone from Iceland to Turkey, is itself entirely arbitrary from any kind of anthropological point of view. So, I think we should be aware that these classifications are not immutable, that they're not natural, they're not based on science or genetics or anything else. Takeaway two is I think when we do use them, that they're being used for purposes they

were never intended to, and in ways that don't really match what the intended outcomes are. So whether it be medical studies, when the classifications themselves specifically said these are not scientific in nature, should not be used that way, or using them for affirmative action for diversity purposes when the categories themselves are internally diverse, but that isn't taken into account for at all by universities, that's a problem. But not only are the government-dictated groups themselves arbitrary, but we have an additional problem, which is that researchers who are looking into things like poverty or education, it's very hard for them to get good granular data about how subgroups are

doing because the government only collects his stat. And the third takeaway, I think, is that we should also recognize that to some extent, by having these classifications, the government is trying to freeze a certain conception of race into society permanently. There are some who think this is a good idea because they think, well, America, racism is such an inherent part of American life that the groups will always be somewhat separate and face discrimination if they're not white. And therefore, we need to make sure that each group is taken into account and gets their fair share. And I would say two things. First, as we already talked about, the groups are becoming increasingly incoherent, if they ever

were coherent, with interracial marriage. But also, we have to keep in mind that these things, again, are not immutable. So we have to have a little bit of imagination here and recognize that the divisions we have by ethnicity and race that we happen to have today don't have to be here in 60 years. And to the extent, if the government ossifies them, it makes it much more likely that they won't disappear. And what we really want is people to think of themselves as just being fellow Americans and not being members of these different groups. David, thank you. This has been an eye-opening conversation. And your book, Classified, is an important book, which raises enormous issues. Thank you for our conversation today. Thank you so much for having me.

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