Explainer Episode 59 – Why (and How) Does OMB Classify Americans’ Race? A Brief History

It may surprise some to know that the government has definitive racial classifications for Americans, and it can be still further intriguing to find that the agency tasked with collecting, recording, and managing this data is the Office of Management and Budget. In this podcast, Prof. David Bernstein, author of Classified: The Untold Story of Racial Classification in America, joins us for an explanation of why this is and how we got here.


  • Prof. David Bernstein, University Professor of Law and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University


Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and Narration]


Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.


Chayila Kleist:  Hello, and welcome to this Regulatory Transparency Project Podcast. My name is Chayila Kleist. And I’m an Assistant Director of the Regulator Transparency Project here at The Federalist Society. Today, on this Fourth Branch Podcast, we’re delighted to host Professor David Bernstein for a discussion on the Office of Management and Budget, or OMB’s classification structure on race and ethnicity. Professor Bernstein, thank you so much for being with us today. We appreciate you taking the time. 


Prof. David Bernstein:  Thank you so much for having me. 


Chayila Kleist:  For our audience, Professor Bernstein is Professor of Law and the Executive Director of the Liberty and Law Center at the Antonin Scalia Law School at George Mason University where he’s been teaching since 1995. He also has been a visiting professor at the University of Michigan, Georgetown University, William and Mary, Brooklyn Law School, The University of Turin, and Hebrew University.  


Professor Bernstein teaches constitutional law, evidence, and product liability, and is the author of at least five books, one of which is Classified: The Untold Story of Racial Classification in America. He’s also the co-author of two additional books. In addition to his books, he’s written dozens of articles and essays published in major law reviews including the California Law Review, Columbia Law Review, Michigan Law Review and Yale Law Journal


Now, while there is certainly more I can say, in the interest of time, I’ll cut my introduction there. Though, if our audience would like to know more about Professor Bernstein, please feel free to visit RegProject.org and read his impressive full bio. With that, however, we can turn to our discussion. Starting at the beginning, why is the government in the business of classifying race?


Prof. David Bernstein:  The government, obviously, we can go back in American history and say that, starting with the first census, the government classified people by whether they were white or of African descent. But the federal government, in particular, didn’t really otherwise classify people, except for purposes of immigration law, until fairly recently. And what really happened was in the 1950’s the government started to try to enforce executive orders against government contractors, requiring them to adhere to anti-discrimination rules. 


The obvious problem is if you don’t know whether the employer, or, say, a defense contractor, is hiring minorities and whatnot, well, how do you know if they’re complying? So, they started asking the government contractors to identify people by various racial categories and other categories, initially, and then to report their statistics. Eventually, as the civil rights revolution went on, and we had lots of civil rights legislation, again, to make sure those laws could be enforced and see what progress different groups were making, the government had to create some consistent classifications. And they eventually did, in the 1970s, come up with standardized classifications to try to make them uniform throughout the government. So, if they’re getting data from different agencies, they can compare them, apples to apples. 


Chayila Kleist:  Got it. That makes sense for why it would have such a broad classification structure. You may have gotten into this a little bit. Why, in these various agencies that could have given those defined structures, was it that the Office of Management and Budget was the one that ended up setting these definitions?


Prof. David Bernstein:  Well, what happened was, really the story goes like this. Caspar Weinberger, Defense Secretary under President Reagan, most famous for that, but he was the Secretary of Health and Human Services under the Nixon Administration, and people came to him and said, “Look, we have this problem. In particular, we’re trying to, under a lot of Congressional pressure, figure out what’s going on with the Spanish-speaking origin population in the United States, mostly Mexican Americans. But, of course, there, at the time, were a fair number of Puerto Rican Americans in the mainland and Cuban Americans in smaller groups, as well. 


And it turns out that we’re not getting good data because different agencies are defining the group in different ways. I think I’ve counted, like, 13 different ways that agencies were counting this group, ranging from Chicano, which is really mixed-race Mexican Americans, to some broad category like Latinos, and everything in between. Some people included Puerto Ricans and Cubans. Some only included Puerto Ricans. Some included anyone of Spanish-speaking origin, Spanish language, Spanish surname. You name it.  


So, Weinberger asked an interagency task force to get together and figure out, “What do we do? Not just for the limited groups that are coming to me with specific issues, but we might as well do it throughout the whole government.” And, because there was an interagency commission that was charged with doing this, there was no one agency that had control over it.  So, I don’t know exactly how OMB got involved. But I guess the idea is that OMB is sort of in charge of making government-wide rules and recommendations that involve statistics and so forth, and money. And there’s a lot of money that flows, depending on the minority-serving institutions and other things. So, OMB wound up being in charge of ultimately writing the formal regulations and putting them into the federal register. 


Chayila Kleist:  Got it. Okay, that makes some sense. But it came from sort of an interagency task force, and now it’s under the OMB. Turning, then, to this structure, the structure that we have, what OMB has promulgated, I think there are two distinct categories. And you can correct me if I’m wrong. We have races and an ethnicity, multiple ethnicities, that are these categories promulgated by the OMB. How did we come to have that structure? You mentioned a little bit it was this interagency task force. And then, what’s the difference, legally, between a race and ethnicity? 


Prof. David Bernstein:  So, we have this very bizarre, I would say, situation in which the government does, in fact, classify people first by ethnicity, and then, by race. So, you might think to yourself, if you hear that, “Well, I am ethnically Italian American, but no one ever asked me to check that off.” So, ethnicity is actually solely Hispanic/not Hispanic. That’s the only ethnicity that’s recognized. The origins of this go back, again, to the 1950s when the government was forced to figure out how to classify people for these executive orders. 


And, initially, everyone understood that a primary group that we were interested in were African Americans, or, in those days, they would have been referred to as Negro Americans. But they weren’t really clear on who else we wanted to count. So, they initially asked about Jews, and sometimes about Catholics. But the underlying problem was that, in those days, it was considered extremely rude, and, in some states, like California, it was actually illegal to ask someone “What is your ethnicity or religion?” Plus, African American civil rights groups said, “Yeah, we really should be focusing on race.” 


So, between those two factors, basically, what you would do, if you were the HR person in that Raytheon or similar defense contractor, you’d look around the room and say, “Well, people look black, okay. And the one-drop rule says, ‘if you look black, obviously, you’re black.'” We could look around. We wouldn’t know if you’re Hispanic. But we could say you “look Mexican.” “You look Asian.” So, it turned out that we only wound up with those particular groups. So, when we had a Hispanic classification, we had, in practice, a classification of people who looked Hispanic.  


By the early 1970s, though, things had shifted, and civil rights groups and the ACLU, which had formerly been very much against asking people to identify themselves by race or ethnicity, were now in favor of doing so. So, first of all, once you do that, if you ask people, “Are you of a Spanish-speaking origin?” it’s not whether you look Hispanic or don’t look Hispanic, whatever that might mean to you. It’s just whether you’re of any Spanish-speaking origin. You could be blond-haired and blue-eyed. You could be of Afro-Hispanic descent or whatever, Afro-Cuban descent, for example, and you were still Hispanic. 


Meanwhile, the Nixon administration was very keen on expanding out from groups who “look Hispanic,” like Chicanos, or many Puerto Ricans, into having a broader ethnic classification, for two reasons. First of all, Nixon thought there was a lot of radicalism going on among Chicano activists, Puerto Rican activists, there was a lot of Puerto Rican terrorism, which we’ve kind of forgotten about in favor of independence. So, if we have a broad Spanish-speaking origin, that would be the new American classification.


There’s no Hispanic in Latin America. If you tell someone from Latin America they’re Hispanic, they don’t know what you’re talking about, really. They’re Mexican or Argentine or whatever. 

So, number two, when affirmative action was starting up in the early 70s, Nixon said, “Wait a second. We’re giving preferences to Mexican Americans and Puerto Ricans, but not to Cubans? That’s not right. Cubans vote for us.” Now, Cubans are primarily Caucasian, and self-identify as white. But, for all those reasons, they sort of came within this new pan-Hispanic classification. And once you include white Cubans, how do you exclude white Argentines or white Spaniards? 


So we have all that background. We also have a congressman named Roybal, who gets Congress to pass legislation saying the government has to figure out how to classify people by Spanish-speaking origin. And his interagency commission that I mentioned gets together, has a specific subcommittee composed of three volunteers — one Cuban American, one Puerto Rican, one Mexican American — to figure out what to call this classification. And they decide on Hispanic. And they say it’s anyone of Spanish-speaking cultural origin. 


So, I am getting to your question. So, why do we have this ethnic classification for Hispanic? Well, first of all, it’s clearly not a racial classification. Again, you could be blond-haired and blue-eyed, 100 percent of European origin. You could be 100 percent indigenous. You could be 100 percent of African descent. You could be 100 percent of Asian ethnic descent, or any combination thereof, and be Hispanic. So, it would seem weird to make that a racial classification. 


Plus, at the time, at least, all the major Mexican American groups, which were the primary Latino groups in the country, were against calling them a race. They thought “We are an ethnicity, not a race.” So, therefore, we wound up with Hispanic as an ethnic classification and everything else as a racial classification. And, again, well, why aren’t we looking at Italian Americans and Polish Americans and Irish Americans? Because the origins of the Hispanic ethnic classification were really as a Chicano racial classification.


Chayila Kleist:  Got it. Okay. I would love to circle back to both of those together and how we use these categories, but, firstly, we have one ethnic classification. How many racial classifications?  


Prof. David Bernstein:  So, originally, we had black. I think they called it an Afro-American. That was black/African American. We originally had Asian American/Pacific Islander. Then we had Hispanic. And then we have white. And then we have Native American/American Indian. The only thing that’s changed since then, as far as the scope of the classifications, is that Asian American/Pacific Islander has been broken off into Asian American and Pacific Islander/Native Hawaiian. Those are now two distinct classifications.  


Hispanic is now Hispanic/Latino. But the underlying definition hasn’t changed. So, even though Brazilians are arguably Latinos, because they’re not of Spanish cultural origin, they’re not within that classification. There was a controversy, briefly, in the 1980s, should we include African and Caribbean immigrants in the African American classification? The argument would be, “Well, even though we use it as a race, African Americans have been in this country a long time as sort of really an ethnic group. And they’re distinct from recent immigrants from Kenya or Somalia. 


But the OMB just kind of decided arbitrarily, really, “Yes, we’ll call them black African American. We won’t have a separate classification for them.” So, the classifications really have barely changed. Again, really, the only significant change, other than terminology, since the 1970s, is that we have a separate classification for Native Hawaiians and Pacific Islanders. They’re no longer in the AAPI classification.


Chayila Kleist:  Got it. So, we currently have five racial classifications and one ethnic classification. How are those used? Are they used separately? Are they used together? We have these categories. They’ve been set up by OMB. What do we do with them now?


Prof. David Bernstein:  Okay. So, I should say that when they were first created, this was ambiguous. What do you do? Do you ask people about all of it at once? Or do you ask separately about ethnicity and race? Educational institutions, which is kind of important, given the recent affirmative action case in the Supreme Court, educational institutions, for a good 30 years, almost — or so, actually, not even almost, 30 years. — when they asked students to identify themselves, they used one question: are you black, Hispanic, white, Native American, AAPI or, later, Asian/Pacific Islander/Native Hawaiian? And, therefore, in the education context, Hispanic came to be seen like it’s the same as a racial classification. 


And the Supreme Court did, and still does refer to Hispanic as if it’s a racial classification when actually it’s not. But you really have the option, until 1997, if you were asking people, you could either ask one question: which of these six classifications, or five, whatever it is, are you, including Hispanic? Or you could ask first, are you Hispanic, ethnically? And then, what is your race? And you could be Hispanic and something else. In 1997, OMB created new regulations demanding that all agencies ask only the two-part question.  First, are you Hispanic? And then, what race are you?  


The educational institutions, the Department of Education, took a good decade to actually implement that. But now, every agency, every institution that follows the government rules — either because they have to or just because they follow them as the Common App has done for educational institutions — asks, “Are you Hispanic?” And then, “What race are you?” So, you could be Hispanic and something else. I should say there’s one other change. Until 1997, you were only allowed to check one box. You could check “Hispanic” and then one race. But you were only allowed to check one racial box. 


In 1997, OMB changed the rules, under pressure from multiracial activists. They wanted a separate multiracial classification. All the civil rights groups were against that. They didn’t want to decrease their numbers in the census, for various reasons. They thought it would reduce their political power, essentially. So, instead of creating a new multiracial classification, you are permitted to check that you are of more than one race. So, you could check Hispanic. So, theoretically, at least, someone could be, depending on their origins, Hispanic first, and they could be “all of the above,” for race. Or they could just be some of those. So that’s what we are left with.


And you said, “How are they used?” They’re used for affirmative action purposes. They’re used for civil rights enforcement. They’re used on the census. Although the census does ask you about subclassifications, like for Asians and Hispanics, which are not usually asked about for affirmative action purposes. They are used, bizarrely, for medical research. The government created rules. Congress created a law in the late 1990s requiring NIH, the National Institutes of Health, and the FDA to ensure that there’s enough racial diversity or ethnic diversity within the subjects of medical studies.  


And the FDA and NIH, scientifically speaking, should have gotten some elite panel together and said, “Okay, we need to, by Congressional edict, decide what sort of classifications would make sense for scientific purposes. And that could be based on genetic differences. It could be based on sociological differences for studies of who gets heart attacks and why, based on lifestyle. But I sympathize or empathize with them. And if I’m the head of NIH or the head of the FDA in, like, 2002, and I have to make these rules, am I going to call the expert panel together to decide what “race” means, in the medical context, and just have everyone in the world come down on me for pretending that race is scientific? But Congress has made me do this. So, what do I do?  


Well, I just take, already, the classifications that we’re using for everything else, which, by the way, when the OMB published them, the [audible 00:17:21] just said, “By the way, these aren’t anthropological classifications. They aren’t scientific classifications. Don’t use them for that.” And we now use them for scientific purposes. So, it’s completely insane. We have these scientific studies that say, for example, “Here’s what we discovered about the Asian population from this scientific study.” But this Asian population is genetically incredibly varied. It could be 100 percent Pakistani Americans or Indian Americans. It could be 100 percent Filipinos. It could be 100 percent Chinese Americans, or any combination. And you have no idea.  


So, we learn nothing useful from seeing that. So, this is true of Asians. Does that mean, like, if an Indian American comes into my office, and I’m a doctor, I should be concerned about something? Well, you don’t know, because you don’t even know what Asian group the study was done on. Same thing with Hispanics. Hispanics, like we said, can be of any race. The average American Hispanic is about 55 percent European, genetically, about 40-something percent indigenous, and about 10 percent or so of African descent.  


So, basically, it doesn’t mean anything. It’s like saying you’re American. You have no idea what ethnic origin anyone is. And you have no idea, while they may still be Hispanics, what the genetic origin was of that particular Hispanic population. Maybe there were only 300 people in the study. They could be mostly Cuban Americans or primarily Caucasian. They could be mostly Dominican Americans or primarily African. They could be some group in New Mexico where it’s mostly indigenous. You have no idea. 


So, it’s complete garbage. And it’s shocking to me, really shocking. It’s the most shocking thing in my book that we use garbage pseudo-racial, pseudo-scientific nonsensical statistics for any given purpose. And we use it all the time. And it’s become widely accepted in the scientific community, which, 20 years ago said, “This is crazy.  Why are we doing this?” “But, oh, don’t worry about it,” everyone said 20 years ago, “in 20 years we’ll be using genetics instead.” And we’re not. We’re still using this nonsense. 


Chayila Kleist:  And that’s an interesting set of conversations on the way it’s continuing to be used, the way we’ve had categories that have continued through time. And I’d love to get, a little later, into the effects that have been had, now that we are 20 years, 30 years, however many years in, what possible improvements can be made, or how it’s done really well, as we’ve used the system. But, before we get there, I would love to know, just for rounding out the set of facts of this system, how it works. Who collects and reports the data? I think you’ve mentioned the census and individual employers and, perhaps, schools. But how does this data about people get collected?


Prof. David Bernstein:  Primarily, you are asked to voluntarily give this data when you apply for a mortgage or when you apply for college or when you matriculate in college or when you’re signed up for a medical study. We’ve all checked these boxes at various times in our lives. Now, I should say, while these are voluntary, first of all, you’re not always told it’s voluntary. So, if you look at the Common App, while you don’t have to fill it out, it doesn’t say you don’t have to fill it out. So, people kind of think you do. And only, like, 1 1⁄2 percent, I think I saw, was the statistic of students who apply to college, do not check it. 


The second thing that is a little disturbing to me, at least, and troubling, is they’re asserting government regulations that require that if you don’t fill it out, then someone has to guess. So, for example, if you apply for a mortgage, and you decline to fill out what your race is, the mortgage loan officer has to guess. Now, in the old days, when you applied for mortgages in person, they would just look at you, or look at your last name, and decide. Now that everyone does everything online, I don’t even know what — I guess they just look at your last name and zip code and whatever guess they make. I don’t know what they do, really. And the same is true in some employment contexts. If people don’t say, then you have to guess. 


So, even if you really want to opt out of the system entirely, you’re not allowed to, in fact, I discovered, reading some of the underlying litigation documents in the Harvard affirmative action case. And at Harvard, I’m sure they don’t do this in every case, but if you will not check the box, and Harvard thought “Maybe we should claim you for affirmative action,” they would investigate your background. They would look at your social media posts. They would look at your zip code. They would look at your demographics of your high school. They’d try to figure out, “Is this person, say, black, so we can claim them?”


So, that also troubles me. So, in other words, if you were someone who was African American, you didn’t want to get a preference, you didn’t want Harvard to know you were black, you wanted to play the game completely straight and not be considered based on your race, Harvard would still try to put you into one of those boxes so they could claim you, really, against your will, against your consent. So, it does seem to me that I would be in favor of some sort of racial privacy law, that if you decline to state your race, then no one, short of the government, should be permitted to identify you by race against your will. But we don’t have any such thing in the United States. 


Chayila Kleist:  Wow, I had not heard about that. But it is interesting to see the various ways that this data can be collected, or asserted, as the case may be. As mentioned earlier, I would love to turn to the ways the system has worked. Because we mentioned earlier in the podcast, sort of at the beginning, “Here are the goals we had for being able to classify by race and ethnicity.” And so, how is it done through these categories? Are they helpful in delineating our current racial and ethnic makeup in the U.S. in ways that are helpful from a regulatory standpoint? They might now be, in some of the other ways, say, medicine, I think they’ve been picked up. What is the current status quo?


Prof. David Bernstein:  Sure. Well, back in the 1970s, when these statistics were created, these classifications were created. So go back to the 1970 census, the most recent census. At the time, I think it was 12 percent of the population was African American. About 82 percent or so, or 81 percent, was non-Hispanic white. About 5 percent were what we now call Hispanics — but there was no such classification yet — but were of Spanish-speaking origin. But such individuals, at the time, were generally considered to be white ethnics. 


The history of people of Spanish-speaking origins, while in border towns and in places where there are a large congregation of Mexican American immigrants, they are often considered to be a minority racial group. As far as the U.S. government was concerned, if you were of Spanish-speaking origin, unless you were obviously of African origin, you were white. And then, there was less than one percent of people who checked that they were of Asian American or Native American origin. And, also, interracial marriage was pretty rare and still pretty much frowned upon by most people. 


So, if you’re making these classifications in 1977, you were thinking, “Well, basically, we have a black and white society.” And, given the one-drop rule, or the idea that if you have discernable African American ancestry, then you’re African American, this isn’t going to cause a lot of problems. And this is primarily going to be for enforcing civil rights legislation. And it’s mostly for African Americans. And, also, if you’re Hispanic, we don’t really care. If your last name is Rodriguez or Lopez or something like that, even if you were blond-haired and blue-eyed when you sent in your resume, someone’s not going to know you’re blond-haired and blue-eyed, so they’ll probably discriminate against you anyway. 


For those limited purposes that were far from ideal, it still certainly didn’t make any sense to put, like, Indian Americans and Filipino Americans in the same classification. But, broadly speaking, they were probably good enough for government work, as they say. Now, we go ahead 36 years, and we’ve had tremendous immigration from Latin America, tremendous immigration from Asia. We have, in the African American community — I didn’t even know this until I wrote the book — 21 percent of African Americans in the United States are either first- or second-generation immigrants. We have much higher rates of interracial marriage than we used to, and a lot more people who have mixed origins. 


We have a lot of people, “My grandfather was Mexican,” or “My great grandmother was a Navajo.” And these classifications have become really imprecise and really poorly suited. We talked about medicine already, but even for affirmative action, poorly suited. I always tell people when I give talks about this that if you’re in favor of affirmative action, you should be troubled by the way the classifications are used because, putting aside that universities are already problematic, because, again, a blond-haired blue-eyed person whose parents immigrated from Spain 15 years ago gets a preference. But, even more so, the area of affirmative action which gets less attention is government contracting. A lot of people think a government contract doesn’t have affirmative action anymore, because didn’t the Supreme Court say that was unconstitutional?


Well, they left some loopholes. And those loopholes turned out to be big enough to drive a truck through. And there’s more racial preferences in government contracting than there ever has been before. And the way government contracting works is that if you are a member of any of the designated minority groups, you get exactly the same preference. It’s not like universities, where African Americans get the biggest preference and Hispanics get somewhat less and Asians probably face discrimination. Whatever group you’re in, you will get a preference. So, already, about half of Americans can non-fraudulently claim to be a member of one of these groups.  


Because, again, even if you don’t go around in life thinking to yourself, “Oh, I’m Hispanic,” or whatever, if you have a Mexican American grandparent or great grandparent, you can check the box and say, “I identify as such.”  Who’s going to say that it’s not true? So, blacks are about 14 percent of the population. Hispanics are about 19 percent. Asian Americans are about 7 percent. Native Americans are about 1 percent. So, we’re already over 40 percent. And those are the people who check the boxes on the census. Anyone could not check the box on the census, but say, “Yeah, why not?  I’m applying, and my great-great grandmother is, whatever, Hispanic.  I’ll just check the box.” So, already we’re at about 50 percent. 


In another generation, it will probably be more like 80 percent. If 80 percent of Americans are getting preferences, then, really, no one’s getting a preference. So, the whole thing becomes moot, really. So, if you really figure there are certain groups, because of historical discrimination or present-day discrimination, or whatever the rationale is, and you want to give them a preference to help them break into kind of the mainstream, that’s not what we’re doing anymore.  


Even at universities, which, again, do differentiate more, over 40 percent of African Americans who are getting into Ivy League and other elite schools and are getting affirmative preferences are first- or second-generation African or Caribbean immigrants or have mixed-race parents. These are not the sort of people, when we think of affirmative, we think we want someone whose ancestors struggled through slavery and Jim Crow and wound up in an inner-city school or a rural school, under-funded, to get that break. That’s not who these preferences are primarily going to. 


A lot of them are going to, again, immigrants and mixed-race individuals, and, also, most of them are from relatively high-income households, even if they are people whose ancestors were American slaves. The Hispanic classifications, I don’t think anyone’s done a study on this. But I think it’s fair to say that a lot of people who are getting Hispanic preferences are not people who are suffering from race discrimination because they’re Hispanic, but are people who happen to have some Spanish-speaking origins but are not necessarily different, demographically, otherwise, than the mainstream individuals who are getting into these colleges. 


So, my suspicion is, my hypothesis is, having written about this and talked to people and given speeches, the people on the left who are very favorably inclined to affirmative action, they are also uncomfortable with what’s happened to the classifications. They’re also uncomfortable with the fact that diversity is the primary rationale, rather than trying to make up for past discrimination. But the problem is, they understand also that affirmative action has been under legal and political threat. It’s never been popular. Its constitutionality has always been in question. And they’re afraid, I think, if they publicly question the classifications, they’re just giving ammunition to the other side. 


So, it’s thinking a little bit of help for the groups who really want help is better than nothing. And it’s symbolically important as well. So, they haven’t sort of jumped on the bandwagon. But one of the surprises, when I was writing my book Classified, was it turned out that — I thought that, when I wrote the book, that people on the left were going to really hammer me on it. But it turns out that, just when I was writing the book, all of a sudden, it became very controversial, and sort of circled the left. Why are we including white Hispanic people in affirmative action? Why do we call people “people of color?” What do all these groups have in common? Shouldn’t we be privileging the stories of African Americans and Native Americans who live on reservations?


And we have this new BIPOC, black, indigenous, and people of color, which focuses on them. We talk about anti-blackness, instead of just racism, in general. We talked about ADOS, American Descendants of Slaves, to separate them out from recent immigrants. So, there’s actually some foment on this, not in the affirmative action context, so much, but just on the side of aren’t we really losing our focus here? We were really worried, primarily, about groups that really faced centuries of historical violence and discrimination in the U.S. And people of color and all that doesn’t really capture that the way we want to.”  Sorry, that was really long. 


Chayila Kleist:  Got it. [Inaudible 00:31:27] my last two questions, both of which turn to the future, and first of which ties into the BIPOC and the other categories mentioned. What proposed amendments or new categories have there been for ways to update this system?


Prof. David Bernstein:  So, there have been a lot of comments to OMB, because they are reconsidering, saying, “We should do something about separating out sub-groups of African Americans.” As far as I know, OMB is not formally considering that. But I know there’s been a lot of organizations and individuals who have been advocating that. Asian American groups have been advocating that, as the census itself does, that, more generally, these statistics should be broken down. 


Because the concern for Asian American groups, the Asian American groups, not surprisingly, want to keep the classifications because their political power comes from the idea that this group of Asian Americans, which, by the way, only about 40 percent the Asian Americans accept being called “Asian Americans,” so the majority of Asian Americans say, “Don’t call me that. I’m Chinese American or just American. But I don’t have anything in common with other people from other parts of Asia just because we’re from the same very broad geographic region.” 


But, in any event, Asian American groups which accept the classification say, “Wait a second. We’re considered the model minority.” And people say that Asians don’t need any help, and maybe even should be subject to discrimination in admissions because they’re “over-represented.” But it turns out — they don’t say this explicitly, but I’ll say it explicitly — that the groups that when you’re saying, “Asian Americans are over-represented,” they’re primarily talking about Chinese and Indian Americans. Those are the groups, if you go onto a college campus and you say, “Which are the Asian groups that are over-represented,” a term that I don’t like, it would be those two groups. 


And there’s Japanese or Korean Americans too. But they’re much smaller groups. And they’re not as educationally successful, or successful in government contracting as those two. But then you have other subgroups, like Vietnamese Americans, and Malaysian Americans and Filipino Americans and Pakistani Americans, whose socio-economic indicators, on average, are around the median and lower than the median and from the heart of the median. In other words, they’re not over-achieving where the other groups are. And whatever struggles they had, they’re Cambodians, Hmong, and so forth, whatever struggles they have, it gets subsumed into this artificial Asian American classification. 


So, they want to break this down by subgroups. I think you should get rid of that nonsense classification entirely. But they don’t want to do that. They do want the subgroups to be considered. So, again, I haven’t heard that OMB is formally considering that. But there has been agitation to do that. The two things that OMB is formally considering doing is, first of all, creating a new Middle East and North African classification that they’re officially considering making a racial one. It could also be an ethnic classification like Hispanic. Neither of those make any sense to me. Really there are two things that this classification is trying to get at. The first is that Arab American groups would like a classification.  But there aren’t really that many Arab Americans in the United States, something like three million. So, it’s really hard to persuade the government that we should make a separate classification. 


Right now, Arab Americans, by the way, are classified as white. And the Arab American population, itself, is divided, maybe, 50/50 between Lebanese Americans, who are mostly Christian, and mostly have been here for a long time, and more recent immigrants, who are mostly Muslim from other parts of the Arab world. So, in any event, the new one would capture them. Similarly, there’s a view among Muslim American activists that Muslim Americans have been racialized. You can’t have a Muslim American classification. We a long [inaudible 00:35:22] of not classifying people by religion because of the establishment clause. 


Now, the problem is that if you look at the groups that are subsumed under MENA, first of all, a lot of them aren’t Muslim. So, it doesn’t even really capture the 500,000 or so Chaldean Americans, Muslims living in Michigan from Iraq, who are Christian. We have Israeli Americans, several hundred thousand of those, who would be in that classification, who are mostly Jewish. We have Coptic Christians from Egypt. We have Druze. We have Armenians, I think, who are kind of within — who, again, are Christian. So, the MENA thing doesn’t really capture what’s going on with Muslims. It also doesn’t capture what’s going on with Arabs. I think Chaldean Americans might not consider themselves Arab, even if you say we’re talking about people from Arab countries. 


Well, then, we still have Turks and Iranians and Israelis and Armenians and Afghans, all of whom are not Arab Americans. So, the MENA classification, rather than giving us additional insight by working out a coherent subgroup, is internally incoherent, just like the “white” classification itself is. So, we’re just piling garbage on top of garbage, rather than trying to do something sensible. The other thing that is going on — and I really don’t understand what the specific impetus for it is — is that Latino groups have changed their mind, after opposing, for the most part, making Hispanic into a racial classification for most of the history of these classifications. 


They’re now advocating changing it to a racial classification. And I guess part of the reason is because now you can check more than one race. Back in the day, the civil right coalition was very much against, besides Latinos not being in favor of it, besides us having a history of not considering Latinos to be a separate race, putting them within the “white” classification, if anything. Back in the day, Asian American groups were concerned, “Well, if we have a separate Hispanic racial classification, some Filipinos will check off “Hispanic” rather than “Asian,” and we’ll lose constituents. The African American groups were concerned that if we have a Hispanic racial classification, some people will check off “Hispanic” if they’re Afro Hispanics, rather than “African American,” like people from the Dominican Republic. And we’ll lose constituents. 


The Native American groups were concerned that people of mixed ancestry will check off “Hispanic,” not “Native American,” With “Hispanic” they can check off both. Now they can check off both anyway. They don’t have to worry about losing any constituents. They’re now advocating for that. And, frankly, whatever political objectives they have in mind, in making Hispanic into a racial classification, it, for all the reasons we discussed earlier, doesn’t really make any sense. No one really thinks that if you run into your blond-haired, blue-eyed German-descended Argentine neighbor, that that person is somehow from a different racial group than someone who’s just German American who came directly to the United States. 


And, again, you’re separating people out, officially, by ethnicity. It’s problematic enough. One of my major concerns with these racial classifications, which we haven’t mentioned, is that the government, by separating people into racial classifications, makes people more likely to think of themselves as being a member of that race as their identity. Some people think this is a benefit. This is the second most shocking thing to me. The most shocking thing to me in my book was that we use these nonsense classifications in medicine. The second most shocking thing to me, which I really haven’t mentioned, is that Native Americans sometimes are given benefits based on their blood quantum, like, how much descent Indian they are.  


And at the Bureau of Indian American affairs, they’ll issue you a certificate that says you’re 1/4 blood quantum Indian, or 1/2 or 100 percent, which so much reminds me of Nazi racial laws that it just makes my mind hurt, brain hurt. The third most shocking thing, though, is that if you Google the phrase, “White racial consciousness,” which I came across as I was finishing my book, and I was Googling, and I thought, “Oh, well, what is this ‘white racial consciousness’? It sounds like David Duke or Nick Fuentes, like, White Nationalist, racist Neo-Nazi things.” It turns out that this phrase has been adopted by left-wing sociologists, anthropologists, and so forth, as a positive good, that whites should have racial consciousness.  


Why do we want whites to have racial consciousness? Well, because, until they recognize their whiteness, and their intrinsic whiteness and how they have white privilege, they won’t recognize that white privilege, and, therefore, they won’t become woke, and become allies in overcoming America’s racism. Now, I understand, sociologically speaking, why they adopt this position, because in sociology departments and anthropology departments and so forth, the people who have white racial consciousness probably are, indeed, woke people who say, “I have white privilege, and therefore I want to help overcome racism.” 


However, in practice, my intuition was that encouraging people to think of themselves as primarily being white, as opposed to other identities they may have, be it religious identity, an ethnic identity, being gamers, being musicians, being whatever being their professions, that increasing white racial consciousness is likely to increase racism. Why? Because human psychology, human nature, human history is such that when people adopt an in-group mentality they don’t normally say, “I’m a member of the ‘in group.’ And because I’m a member of this ‘in group,’ I want to help the people in the ‘out group.’ That is not the way things generally work. The way things generally work is, “I’m a member of this ‘in group,’ so I’m a member of this ‘in group.’ I want to help my ‘in group’ at the expense, if necessary, of the ‘out group.'” This is every ethnocentric, racist, racialist, or other chauvinist movement ever in human history. 


So that was my intuition. And I actually looked it up. And it turns out there are studies about this. And to, really, what should be no one’s surprise, the more people figure themselves as having a white identity, the more likely they are to be racist. So, making a new racial group — to me what we should be doing is breaking down these racial groups. If we have to classify people for statistical reasons, for other reasons, for medical reasons, we should break it down into the narrowest ethnic sort of group possible. So, we shouldn’t talk about Asian Americans. Say you’re of Chinese ethnicity or half Chinese, half Korean; half Chinese, half English, whatever you happen to be.  


If you’re African American, that should be a separate ethnic identity, but we can all say that, overall, our primary identity, as far as what we think of ourselves in a group way, beyond our professions, we’re all Americans. We understand that melting pot, or even the tossed salad theory. But we’re all Americans. But once we say, “Oh, no, we’re white. We’re Asian. Now we’re Hispanic, racially,” whatever it may be, the more we define ourselves that way permanently, the more likely we are to run into trouble in the future. 


People say, “How dare you be a white nationalist?” And I, of course, find that objectionable. But when that person says, “Wait a second. From the time I was two years old, you told me how I’m white, and I have white privilege, and I should think of myself as white, and I should be hyper-aware of my whiteness and other people’s lack of whiteness. Then, why should I, as a white person, spend my time worrying about other people who aren’t white?” So, no, we don’t want that. We want, “Oh, no. I am an American who happens to be of whatever ethnic origins I have. And I may have medical consequences, based on my genetics.” They may have sociological consequences that we want to study. There may be particular groups who are sufficiently struggling, that we want to help them, as fellow Americans. 


But to permanently divide Americans by race is extremely dangerous. Now, again, these people on the left, their view is “America, it has been so racist, and race is so embedded in America that we’re never going to get to that point where we just think of ourselves as all just being Americans. So, we should institutionalize this and then make sure each group’s getting its fair share.” And, again, I think that’s dangerous. And I also think it’s pessimistic. I think that they and we would agree, “we” being me, that race is socially constructed, that there are genetic differences across populations. But they’re not coextensive with race, and there are often just as many differences within the racial group as between groups.  


Once we acknowledge that’s true, then it’s just sociology, and history, and so forth. So why can’t we get past that? They’ll say, “This is so embedded in America, we’ll never get past it.” I say, in 1960, when John F. Kennedy ran for president, people were very dubious that we’d elect a Catholic president. This Catholic/Protestant divide was so embedded in American history. The Ku Klux Klan was the largest political organization in the United States in the 1920s. And it was primarily anti-Catholic. That was less than 40 years before 1960. And, in fact, Kennedy lost the vote of millions of Protestants who normally voted Democratic, who wouldn’t vote for a Catholic. And he won because millions of Catholics who normally voted Republican voted for him out of identity politics.


We don’t think of Catholics engaging in identity politics anymore. But they did, at the time, because they were, then, the minority group that was distinct. Fast-forward 60 years. Joe Biden becomes president. He’s Catholic. No one talks about it. No one really cares. It’s mentioned, but no one cares. Speaker of the House: Catholic, Nancy Pelosi. Chuck Schumer: Senate Majority Leader, Jewish. Nine Justices of the Supreme Court: Six Catholics, two Jews. No one cares. Vice President: mixed race. On one side Indian, Asian Indian on the other, identifies as black, not a big deal.  


If you had told people in 1960 that that would be the American government 60 years later, they would have said — I say this only half-jokingly — “You’re letting the Catholics and the Jews run the government with negroes?” It would be inconceivable to them. Because, to them, to the average American in 1960, the U.S. was a white, Protestant country with a big Catholic minority, a smaller Jewish minority, and a black minority that wasn’t really considered part of the full polity. And the idea that “those people,” of which I’m one, were running the government 60 years later, would be impossible. 


So, if that can change that dramatically in 60 years, there’s no reason that, 60 years from now, with all the intermarriage, immigration, and Americans being incredibly tolerant, relative to most countries, on race, and compared to our past — I always tell people, in 1958, 4% of Americans — 4, one digit — thought interracial marriage was acceptable. Now it’s 95%. And among people 30 and under, it’s 98%. Why can’t, 60 years from now, we have a common American multiracial identity? And there’s no reason we can’t. But you know what? If the government continues to classify people by race, by crude racial categories, and continues to encourage people, along with the encouragement of the establishment, the big corporations, the universities, the government, the entertainment industry — they’re all bought into these classifications — that will stop us.  That could really be the barrier. 


Chayila Kleist:  We can wrap it there. Professor Bernstein, thank you so much for being with us today and sharing your expertise and insight. We really appreciate you taking the time. It’s been a great discussion. 


Prof. David Bernstein:  Thank you very much. 




Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.




This has been a FedSoc audio production.

David Bernstein

University Professor of Law and Executive Director, Liberty & Law Center

George Mason University

Race & Sex

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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