Racial Classification in America (with David Bernstein)

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0:00:07.7 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus. Joining me today is David Bernstein, university professor of law at Antonin Scalia Law school at George Mason university and executive director of The Liberty and Law Center. He’s the author of many books. The latest is classified: The Untold Story of Racial Classification in America. Welcome to Free Thoughts, David.

0:00:27.5 David Bernstein: Thanks Trevor.

0:00:30.5 Trevor Burrus: We think about racial classifications that we have learned about throughout American history, the big ones being slavery, of course, and then later, Jim Crow, are this the kind of racial classification you’re talking about in this book?

0:00:45.2 David Bernstein: So the book really focuses on the post World War II era. Everyone sort of knows that we have an unpleasant and disturbing history of racial classification, before the civil rights era, in the Jim Crow south, where they had to decide whether someone was sufficiently black to be subject to anti-​miscegenation laws or to school segregation or laws that excluded Asian people. We had to decide who was Asian, who wasn’t. And most people think that while we still have racial classifications boxes that we check off, that these boxes are basically a subject to self-​identification and they’re not really official, they’re kind of informal, but it turns out that actually those boxes that you check when you apply for a mortgage or to college or register your kid for school are actually based on official guidelines, rules really, by the federal government that were enacted in the mid to late 1970s. And they do have official definitions and some people, do have their, self-​identity rejected or at least questioned. And sometimes they even get penalized for putting down the, “wrong race.”

0:01:52.9 Trevor Burrus: When reading the book, it was because I’ve known you for a long time I found myself wondering what led you to write this book or more specifically, was there some research you were doing in another area that you suddenly found these strange racial classifications in American law that most people don’t actually know about?

0:02:12.6 David Bernstein: So I sort of had this in the back of my mind for a long time because when I was doing the research for a book I wrote for Cato over 20 years ago or you Can say that. I came across a case involving two white firefighters in Boston who failed their test to become firefighters. And then took it again this time putting down that they were black, to take advantage of affirmative action legal settlement. And eventually when they applied for promotion, their blackness was questioned and they were eventually fired, they sued. They were union members, they went to arbitration and the Massachusetts courts eventually set out criteria for what makes you black or not. And said that here are a bunch of ways that we could recognize you as black and you don’t meet any of these. And I always had at the back of my mind, whether there are other cases like that. That case was always depicted in the literature as the only case along those lines. I said, that would be really strange because so many government contracts, university admissions, and so forth are influenced by what race you put down. And surely there have been other cases where people have questioned this, and there have been adjudications.

0:03:19.8 David Bernstein: Another thing that happened, or two other incidents that happened around the same time, both involving sort of Hispanic classifications. We had a president of our university named Angel Cabrera. He was a white guy from Spain, but Spanish people are considered Hispanic or at least it seemed like they were considered Hispanic because he portrayed himself as a Hispanic president of George Mason university. He was on the cover of some diversity in higher education magazine. I thought that was kind of odd because what makes him a minority that he is diverse. But if he had been from Italy… He’s literally from Spain, he was born in Spain, went to school in Spain that came here for grad school. Wat makes him a minority, but say not someone from Italy or Afghanistan or Armenia or Greece. So that was sort of interesting to me. I sort of thought it would be worth looking into, and also I had a nanny who was from Peru. I helped her apply for a green card. And when she filled out the application, first, it asks as these forms tend to, are you Hispanic or not? And she had, that was easy. She said, yes, but then it asked you for your race. And she said, what do I put down? And I said, are you Spanish? She goes, I’m not Spanish. Are you white? She goes, no, I’m not white.

0:04:32.5 David Bernstein: I said, well, you’re not black. She says, no, I’m not black, I am Mestiza. Actually She would’ve said and which is, you know, mixed Spanish, white, that’s what they say in Latin America. And there was, of course, no classification for her. I had her classified. So I said, you know we have these real weird idiosyncrasies in American racial classification, ethnic classifications that we just don’t sort of think about that Hey, there’s no real classification for mixed race people from Latin America, by the way you think, oh, what about the American Indian classification? Because of lobbying from American Indian groups, only North American Indians not including Mexico are included, if you’re from Latin America, if you’re 100% Inco, or whatever, you’re still not Indian, that’s according to our rules. So, then I said we have this weird thing where if you’re a European from Spain, you’re a member of minority group, but If you’re European from somewhere else, you’re not. And I started looking into it and I discovered that the federal government has its own classifications. There’s a general rule from their office of management and budget.

0:05:30.1 David Bernstein: That’s followed by the vast majority of agencies, but the department of transportation has slightly different rules. So for example, they consider Portuguese people and Brazilians to be Hispanic, but the government generally does not, different states have slightly different rules. Some, they generally follow federal rules, but they may define Hispanic differently, or they may define Asian differently, or they may include Portuguese or not Portuguese, or Portuguese may be a separate classification. So first I wrote a law review article about the history of how these classifications came to be and how they’re enforced. And in the course of writing that article, I discovered not much to my surprise that that one case involving the firefighters was one of several dozen along those lines. That’s just merely the one that people have paid attention to, but there are a lot of other state, federal, and often administrative agency cases where especially people applying for government contracts would have, for example, an Anglo sounding name, but they put down Hispanic saying they’re Hispanic and this would be questioned and then agencies or courts had to adjudicate. Are you really Hispanic?

0:06:32.2 Trevor Burrus: Some people might be wondering, well, If someone is coming from a conservative or a libertarian background who opposes racial classifications at all, that the reason for writing this book is to sort of go after the existence of racial classifications, and that you’re against them. And we won’t get into the whole question about that. But I think one of the more interesting things about your book is that it’s not that way, it actually discusses how much this stuff matters. And even if you’re for racial classifications, affirmative action, minority business preferences, this still poses very vexing problems that the government is pretty bad at doing it like it’s bad at so many other things.

0:07:17.0 David Bernstein: Sure. So, what I say in the last chapter of the book, the book is not, for example, just an attack on affirmative action. Of course, you have to talk about affirmative action to some degree if you’re gonna talk about racial classifications, because that’s where a lot of the controversy arises. But I say, when you’re, if you want… I mean, generally I tend to take the position that we should have a lot fewer racial classifications, but if we are going to find a need to classify people by race, we really need to think about what is the object, what are we trying to achieve? And then, are the classifications we’re using tailored to actually achieve those goals? So, for example, I’ve mentioned government contracting, the original basis for minority preferences of government contracting was primarily to help African Americans who had been excluded from government contracts by racism and old board networks and so forth to compete. So we added minority preferences. At the time there weren’t that many other groups out there, but in the ensuing 50 or so years, we’ve had a huge amount of immigration from South America, Mexico, Asia, and all those groups qualify just as much, you qualify if you are a person who came over here from India five years ago have become a citizen. You get exactly the same preference for a government contract as if your great, great grandparents were slaves.

0:08:34.8 David Bernstein: And after that, there were subject to Jim Crow in the south, and it doesn’t really make any sense. I’ve never seen anyone really explain or justify why a recent immigrant should be qualified for these programs. And I say, in medical research, the government has required medical researchers who get any kind of government funding or are under government supervision like the FDA to make sure they have enough subjects of different minority groups. And you can argue there’s reasonable arguments on both sides, of whether trying to divide research subjects to get a broader diversity of genetics, for example, is a worthwhile and whether the opportunity costs are worthwhile. But what isn’t really debatable it seems to me is adopting the crude classifications that were invented for completely other purposes, makes any sense. So just to give two examples, those researchers have to have enough Hispanics. Hispanics is not a race, there’s no genetic commonality among them, there could be any combination of European, African, indigenous, Asian, origin, and so you could have, so it’s sort of like saying American, right? Well, we have to have Americans in the group. What would that tell you? Or in the Asian classification, we classify people anywhere from India to Filipinos as being Asian.

0:09:53.9 David Bernstein: So you could do a study on a thousand Indians and say, I’ve covered the Asian base and the government would accept that, but there’s no particular genetic commonality between people from India who are Caucasians and people from say China. So even if you assumed I think somewhat heroically that you would expect there to be some potentially some different results between people who are ethnographically east Asian and Europeans, the classification we use doesn’t even require you to do that. You could just as easily use Austrian, Asians or Caucasians who happen to be within the Asian classification. So, there are a lot of examples like that. Even things that seem as simple as the African American classification, there’s controversy, including within the African American community. Now, as to what extent is that classification really meant to include recent immigrants and their children and grandchildren from Nigeria or from Jamaica? Or what about someone who marries a person of European descent, and their child is now half African American?

0:10:56.3 David Bernstein: They tend to have actually better socioeconomic, statistics than the people who have two African American parents, should they be included? And these decisions, the decision in that case, what basically the way the rules are written, anyone who has any African American ancestry at all can claim to be African American. And that decision was made without any real public discussion or debate. And one could argue, well, even people of African descent who aren’t descendants of slaves or the one that suffered enough discrimination want to be represented, but we’ve never really had a public discussion about this. And there’s certainly sentiment both in the African American community and otherwise to the extent we do have affirmative action preferences, it should be reserved for those who’ve suffered generations of discrimination in the US, not simply because you have to be, somewhat like your dad was an ambassador from Kenya, and you decided to stay in the United States after high school.

0:11:49.5 Trevor Burrus: You mentioned where they came from, and of course, your book goes back to before the Directive 15. But we’ve been interestingly stuck with in many ways, Directive 15. So, can you talk a little bit about that and where it came from and what its categories are?

0:12:09.8 David Bernstein: Sure. So, after world war II, when the civil rights movement was really taking off and those revulsion at the Holocaust and racially based genocide, and of course, we don’t think [0:12:22.1] ____ being a separate race, but the Nazis did, so to them it was racial. There was a strong inclination among liberal forces in society to do away through racial classifications altogether, which is what Canada did at least for a time. But then the problem arose, and this was a legitimate problem. We started enacting first executive orders, banning discrimination by government contractors, then major pieces of civil rights legislation, like 64 civil rights act, the voting rights act. How do you ensure in some way that the regulated businesses, the government contractors, the big employers who are regulated by the civil rights act, the local voting registrars in Mississippi, how do you ensure they’re not discriminating, if you can’t measure it, if you have no way of knowing who’s being discriminated against or who is in what the statistics are? So the governments, when they started giving out forms, they said, okay, let’s take African Americans and maybe Jews and Mexicans. And they started with that.

0:13:25.6 David Bernstein: And then over time, it gradually morphed into oddly enough, basically recapitulating the sort of traditional racist categories back from the 19th century anthropology, they sort of dropped Jews and they added Asians and they added native Americans and they added a Mexican. The Mexican category morphed into a Hispanic category. So basically wound up with like black, white, brown, red, and yellow, the attritional racist color scheme. But it was well-​intentioned, it wasn’t meant to recapitulate the old racist things. It was a combination of a few factors. One is that African American civil rights groups were quite adamant that groups like Jews or Italian Americans who were white ethnics should not be included, and the other groups didn’t for the most part fight back on that. The second thing that was just sort of an ideological point. Well, if color is the big divide in Latin American society, we should be looking to see which groups are sort of analogous into African Americans in the sense of being discriminated against based on color.

0:14:32.1 David Bernstein: But the third thing and something I think I under emphasized in my book, but I thought about it more later is that there was a strong norm back in the ’50s, ’60s and early ’70s that you were not supposed to ask someone what their race, religion, or anything else was. So if you’re going to monitor discrimination, like if a government contractor is going to report data to the government, how many minority employees do we have? The only ones that you could really report are ones who are visibly look different. So this would include people with African descent. It would include east Asians. It would include at least some native Americans, less assimilated probably who have less intermarriage. And it would also include not all Hispanics, but people who “look Hispanic” right? Darker skinned people. So that’s how we started. And then you mentioned Director of 15. So Director 15 is the rule that the federal government passed in 1977 that sort of formalized these stats. And basically, what happened was as we continue enforcing the very civilised laws and we were encouraging academic research funded by the government and how are different group’s doing, government agencies found that they were getting data that didn’t match each other.

0:15:50.4 David Bernstein: So one government agency within the health education welfare department might have a classification for Mexicans and Puerto Ricans. Another might have Mexicans, Puerto Ricans and Cubans. Another might have Mexicans, Puerto Ricans, Cubans, and other people of Spanish speaking descent. Another might have Spanish surname, another might have Spanish speaking household and so forth. And so on, they were getting that the data didn’t match. And some agencies were using a criteria for other minority groups like Cajuns in Louisiana or Portuguese in Massachusetts. So Caspar Weinberger, who is at the time, the head of HEW, Health Education Welfare, said, we have to regularize these statistics. What do we do about Hispanics was sort of an interesting question because they had traditionally been seen as white, but there was a Chicano movement saying, no we are really brown. And plus Richard Nixon thought it was important to have a separate Hispanic classification for various political reasons, which I go into in the book and perhaps most important, a particular Congressman who was Mexican American got Congress to pass a law saying you must have a separate classification for people with Spanish speaking descent.

0:17:00.8 David Bernstein: Another issue was, should people from south Asia like Indians, Pakistanis, should they be considered white? Which was the norm at the time? Or should we put them into the Asian classification and there was some political jocking over that. But the long and the short of it is, this was done. It wasn’t a secret. It wasn’t done in some sort of conspiratorial way, but because really the only official implications where this is just how the government’s going to keep statistics. The effect that this was gonna have in America society wasn’t well recognized. There wasn’t a lot of public discussion. There was very little debate. It was done very haphazardly. So for the Hispanic classification, for example, the government literally asked for volunteers from a few agencies. They wanted one Puerto Rican, one Cuban, and one Mexican American. They found three government employees who volunteered, one from each group. They sat them down in a room together, and said, come up with what the classification is and how to define it. And they went back and forth. There was a disagreement, but they finally settled on Hispanic.

0:18:00.3 David Bernstein: They could have done Latino for example, Latino would’ve included Brazilians, but it wouldn’t have included Spaniards. Instead, they went with Hispanic which includes Spaniards and not Brazilians. And some of the Chicano activists were upset, they said why are we going back to Spain, Spain is the oppressor, right? But this was not what this subcommittee happened to decide. So it was on pretty much without all that much thought both because it wasn’t thought that it was gonna have that much impact. But also we do have to remember that by in the mid-​’70s still, we mostly had a black, white binary in the United States. We had overwhelming majority of white Americans, European descended Americans or middle Eastern descended Americans, a minority of black Americans and a few percentages of less than 10% altogether of Asian, Hispanic, and native Americans, so no one thought that, no one paid that much attention to what was going on. No one really expected the huge wave of immigration we’ve had since then, no one expected to have so much intermarriage, interracial marriage, inter-​ethnic marriage, where we have a lot of people who have now mixed ancestry, whose status is kind of unclear.

0:19:07.4 David Bernstein: But the long and the short of it is, once these classifications came into being, and there were some advantages presented, they very quickly became affirmative action categories, even though they officially said, these are not meant to determine eligibility for any program. Once these classifications are ossified and advantages came around to them, not surprisingly, interest groups formed around them to protect them and to ensure that they kept them this way. So it’s been very difficult to make any changes because, for example, native Hawaiians, at some point, became upset, and they said, “Hey, wait a second. We’re put into the Asian and Pacific Islander category, but we actually have pretty low average socioeconomic indicators. We should be considered an oppressed minority. We were colonized,” and so forth. And they said, “Put us in the same classification with native Americans and Alaska natives,” maybe Native American tribes isn’t quite the right analogy, but the Alaskan Native seems like a pretty close analogy. But the existing Native American groups said, “We don’t wanna share the resources of the Bureau of Indian Affairs,” so no way. So they said, “Okay, well, just make us a separate group entirely.” And the government said, “Well, there’s too few of you to really make that viable.”

0:20:21.6 David Bernstein: So eventually, they said, “Okay, we’ll just make a new classification, Native Hawaiians and Pacific Islanders,” but Pacific Islanders won’t include Filipinos even though they are literally from Pacific Islands and more genetically related to Polynesians than to other Asians, because the Asian groups wanted to keep Filipinos, because they are a large constituency, and the native Hawaiians didn’t really want Filipinos in their group. So that was the compromise that was made. Native Hawaiians and Pacific Islanders, that classification is not especially coherent itself. But that’s one of the very few changes. Yeah, the other changes have been on the surface, like the category was originally, I think, Black/​negro, and now it’s Black/​African American. The Hispanic classification, the definition hasn’t changed, but now it’s Black/​Hispanic. There was a question, when African immigration picked up, should the OMB consider them to be African American, or put them in a separate class? And so, they just wrote a little memo saying, “We’re just gonna keep them in the same group, without any real explanation.”

0:21:21.5 David Bernstein: But the long and the short of it is, that anytime you try to make any kind of changes as to How you define these groups, you will run into… You might be able to expand the groups, like the Asian classification in various agencies has been expanded to include groups that simply weren’t thought about because we didn’t really have a lot of Mongolians or Malaysians 50 years ago, now we have some. But other than that, because the groups had… Just for example, there’s some tension among Hispanic activists, should people who are really White, who are of European origin really be included in that classification? But all the Hispanic groups in the United States or almost all of them are based on the notion that everyone of Spanish speaking origin is Hispanic. We’re all like one group. They don’t wanna give it up, and if you look at pictures of leaders of Hispanic groups, a lot of them, at least by appearance, seem to be primarily if not entirely European origin. So they’re not going to give up the notion that they’re Hispanic. So, in other words, it’s not really any different than any other government program that has proven to be somewhat obsolete and to have outlived the original intention that you have interest groups that form around them, it becomes very difficult for anyone to modify them, unless there’s a really strong reason politically to overcome the status quo, the status quo just stays the way it is.

0:22:50.4 Trevor Burrus: That’s what I thought was the most sort of interesting meta point about your book, was that political economy, as you pointed out. You can create different government programs that are maybe not that popular when they’re created, but if you create a constituency around it, by virtue of the government program doing it, it may be impossible to take away. And it’s not always… Like some groups want to keep the expansive definition for various purposes, but sometimes there’s a tension that works the other way. You point out that on African Americans, if you’re looking at welfare statistics, immigrant Africans, so people with black skin, but are not descendants of slaves, who often do better socio-​economically than people who are descendants of slaves, if you include them in their category, it could look like the category is doing better for some programs like socioeconomically better. But if you take them away, you make the category smaller, which could affect, say, the Congressional Black Caucus and the Voting Rights Act. And so there’s not always a pull to expand or contract. There’s forces that go both ways, correct?

0:24:00.4 David Bernstein: Sure. And one of the oddities to me, I mean, in some ways, almost ruined my ability to consume the news without constantly being annoyed, because you’re constantly seeing statistics being presented in ways that all the incentives for research are… First of all, the government terms requires you to use the classifications, like in medical research. But even when they don’t, because the government, for example, in the education context, requires public schools, universities and so forth to gather these particular statistics, if you’re a researcher, you go with the data you have. So you’ll see these statistics that say, “Hispanics are doing the following.” I was like, really? I mean, because what does that really tell me? Because without claiming sociological expertise, I know enough to know that even Mexican Americans in Texas are different in a variety of ways than Mexican Americans in California. But then imagine just for example, Cuban Americans in Miami who live in the City of Miami versus recent Puerto Rican migrants who are working in agriculture in Central Florida. Like, these two groups really have nothing in common except that we sort of arbitrarily put them into the same classification.

0:25:10.7 David Bernstein: And if you just sort of average them together and say, “How are Hispanics in Florida doing?” You’re not really getting a good picture of either, right? Because simply the farmworkers are averaging down the income and educational status, and then Cuban Americans are averaging it up, but you’re not really getting the right thing for either. So when I said, again, if you’re gonna have classifications, you should be thinking about what they’re being used for. We use these things for research, but for sociological research and anthropological research, economic research, you really would wanna be much more finely tuned and figure out, “Okay, let’s look at subgroups.” Like Native Americans, you have Sasa Native Americans, but you have some people who are living on the Hopi reservation who have been there for several generations, and have very little economic or educational opportunity. You have other people who check Native American, but maybe they’re 132nd Cherokee. And they all count, as long as they put that down when you do the survey research. But just, again, averaging those two groups is not gonna give you any useful data. It’s going to actually obscure more than illuminate.

0:26:18.5 David Bernstein: And relatedly, we’ve come to accept that, most of us don’t think about it anymore, we just hear things like Hispanic, we just sort of accept it, but it really is totally artificial. Asians is even better example. So again, everyone from India to the Philippines, most people who are surveyed, who are in the classification of Asian American, about 62% of them say they don’t accept the identity at all. So they don’t even think of themselves even as a secondary identity as Asian American, but I’ll listen to NPR, or when I was listening to NPR during the 2020 election, they had like a week where they’re basically saying, “We’re gonna talk about the Asian American vote in 2020.” I said to myself, as I’m finishing my book, “Well, this is gonna be interesting ’cause there is no such thing.” And it turns out that when they’d say that, and they had said, “We’d continue our series about the Asian American vote. We are here today at the Chinese American democratic club of San Francisco.” And next day, “We’re here at the Korean political caucus of South Carolina.” And of course, ’cause there were no Asian political groups in that sense.

0:27:24.5 David Bernstein: I mean, there are few groups that so identify, but as far as like grassroots political organizing, it will almost always be done on an ethnic basis, because Koreans don’t think of themselves as being the same as Pakistanis, they don’t think of themselves as being the same with Filipinos. There’s no reason that they would all be one. Now, for east Asians, you could at least say, well, maybe they all face the same sort of discrimination ’cause Whites don’t distinguish among them. But even that doesn’t work for the Asian classification, because surely, even if you’re a fairly ignorant American from a place where that’s not very diverse, you could tell a difference between someone from Pakistan or India compared to someone from China or Japan. You may dislike one group, but not the other, or you may dislike all foreigners, but [0:28:11.1] ____ being all Asian.

0:28:15.2 Trevor Burrus: Now, I’m about as White as can be. Although, again, even that category is very unclear, but I can definitely trace part of my ancestry back to Jamestown. But I did have a great grandpa who was Italian, born in Italy, came over in the early 20th century. Now, a lot of people might be thinking, well, what about this idea that Italians weren’t White or Irish? Would be this question of White, which you kind of push back on a little bit. But there is some interesting questions about types of discrimination faced by people who present as white skinned, like Polish and Italians that nevertheless was meaningful and is not really accounted for in our discrimination laws.

0:28:55.4 David Bernstein: Yeah. I mean, the people who say they weren’t White are using a really stylized, modern definition of White, meaning fully accepted. I actually just wrote something on Twitter about this ’cause I was thinking about it more. And I think if you wanted to say what is really meant when you say that Irish or Polish or Jewish or Italian immigrants weren’t considered White, what they really are saying is, not only were they not considered fully American, they were considered potentially unassimilable, they’ll never be real Americans. Not because they weren’t White, but because they had various religious and ethnic attributes that were considered undesirable and unassimilable into American life. So when I say that they really were considered White, that doesn’t mean that they didn’t face a tremendous amount of hostility and discrimination at various times. As I point down in the book, by the late 1960s, early ’70s, you could go to Chicago, which had like a 25% Polish population, and look at the CEOs and high-​level executives at Chicago companies and not find anyone really of Polish background.

0:30:01.5 David Bernstein: Same thing, Italian Americans, of all the non-​Black ethnic groups, had among the worst socioeconomic indicators. As of the late ’60s, they were sort of trapped off in the manual labor positions. Even Jewish Americans were generally economically successful as late as the early ’70s when they surveyed the banking industry. Jews are supposed to be great with money, right? So stereotypically, you say, oh, it’s dominated by Jews, whatever, but actually, there were almost no Jews. Like, there was like one Jewish bank executive. I have like 175 that were surveying a city that was 25%, 30% Jewish, where Jews had a lot of education and so forth. So there’s clearly a lot of discrimination. And when these classifications were being implemented in the ’60s and ’70s, there was some pushback saying, well, why should say Mexicans or Puerto Ricans be included but not say Italians or Polish or other White ethnic groups? And again, part of it was just the convenience of being able to look at someone and more or less determine what group they’re from. But part of it was, again, ideological, that whatever other disadvantages these groups face, they had so-​called White skin privilege. I thought that was a new term, but I found it used even back in the ’70s. And therefore, they should be in a separate category.

0:31:21.1 David Bernstein: But today, one could make the argument at least with regard to recent immigrants, that, “Hey, whatever color of skin people have now, if they’ve been immigrants in the United States since the 1960s, they’ve been protected by civil rights laws.” Certainly, society today is a lot more tolerant in general of minority groups than it was in the past, and there are people who are being classified as members of oppressed minority groups who faced a lot less discrimination in their family history in the US than White ethnic groups who never got officially classified as minorities. But on the other hand, you could say, one lesson maybe is that we don’t even really typically look at people we consider White and even think about their ethnic origins anymore. I mean, as late as the mid-​’80s, when Justice Scalia was being appointed to the Supreme Court, there was some discussion. It wasn’t a huge deal, but it was considered a big political plus that he was the first Italian American Justice. Now, DeSantis is considered a very likely presidential candidate, maybe a future president, and his Italian background almost never comes up. I actually saw some discussion on Twitter recently about whether we should consider DeSantis to be minority because of his Cuban background. It’s like, wait a second, he’s not Cuban, you won’t even know that he’s Italian.

0:32:48.5 David Bernstein: So, there is a certain case to be made in that sense for maybe benign neglect, like when we did not officially classify people as minorities, and they wind up assimilating at least into the general White population. And maybe the less we classify people by race, the more likely we are to achieve a common American identity, than if we officially tell people, “You’re members of different groups.”

0:33:14.0 Trevor Burrus: It makes some sense, though, as you point out, like different interest groups of these different racial classifications will sometimes complain, and I think with justification, that some version of that group is either not being discriminated against, because they don’t look like the group, which would be, say, White Spanish, people born in Spain or of Spanish descent, who are getting Hispanic status. And so, that we should be looking at phenotype more than genes, and saying, “How does this person present?” Because racism in its sort of ugly incarnation is this kind of classification based on, “Well, you look like X, therefore we’re going to deny you Y or do something to you.” So should that be the way that these categories go? Looking at what actually happens to people based on how they are treated, based on, unfortunately, how they look?

0:34:07.8 David Bernstein: So one suggestion that someone posed to me at one point was that you could actually ask people, instead of, “What race you are?” Is to say, “Do you have reason to believe, based on your appearance, that you face discrimination?” The problem is, I don’t think we have a strong norm about that, so I think there’d be a lot more fraud and misrepresentation in that case. But if we had started with that, to begin with, if that was the norm, that might have been a better solution. What we, I think, don’t wanna do. So in Brazil, they started affirmative action later than we did, they traditionally had something like 86 or something crazy, different classifications from like fully White to fully Black and everything in between. They faced the question of where the cutoff should be, and there are cases where people who are siblings, one was determined to be Black and one not, but what they eventually started doing was giving guidance to, like if you apply to the university, that the people who you’re applying to should actually measure your nose width and how curly your hair is, and that sort of thing.

0:35:13.5 David Bernstein: And [chuckle] I’m not Brazilian, I don’t know how this goes over here, but I’ve not yet encountered anyone who thinks, yeah, what we really wanna do is be taking out a ruler and maybe take out the calipers for the head and figuring out, “Hey, you’re ethnographically part of this group.” And we also don’t want, although it might be in some ways, more effective for discrimination purposes. We also don’t really want someone pulling out a color palette and saying, “Well, you’re only light beige, so you don’t count.” And it gets even more complicated, because people, Hispanic activists will say, “Well, I may be a White Hispanic, my last name is Lopez. And when people see my name on a resume, they don’t know if I’m brown, or white, or yellow or anything else, so they may just assume that I’m a member of the other group.” So there are a lot of complications in this regard, but my own feeling about this, at least with regard to affirmative action, which I express at the end of the book, is the two groups that we could say, really have suffered generations of government hostility, the two groups that are not post-​1960, primarily post-​1965 immigrants and are not of European descent are Native Americans and African Americans who are descendants of slaves.

0:36:29.4 David Bernstein: And Native Americans, I don’t wanna include all Native Americans, because there are a lot… I have a whole chapter about how we determine who is officially Native American, but the long and the short of it is, for things like the census or checking off boxes, there are a lot of people who essentially, you said you’re just a gray old White guy, who live their lives like a regular White person in the sense that they don’t really have any cultural or other ties, but they just happen to have inherited tribal membership, let’s say, like the Cherokee are very liberal about tribal membership, so there’s at least one person in the United States who’s 15238th Cherokee, but his great, great, great, great grandfather or whatever was Cherokee. So, he casts as a tribal member. You can’t even go by tribal membership. So I would sort of say, let’s start off, at least, by limiting our classifications for affirmative action, if we think we need to engage in it, to descendants of slaves, American slaves, and to Native Americans who live on reservations, because you know that they have really suffered the brunt of the discrimination as opposed to someone who happens to have you on one, you know, who’s Elizabeth Warren or someone who is vague may be real, maybe not so real, ancestry may identify that for purposes of getting a job or so forth.

0:37:42.2 David Bernstein: And to me, there’s two advantages. One is limiting things to the groups that really have suffered the most, but also, arguably at least while those classifications correlate with race, they’re not actually racial classifications. So in other words, not saying anyone who’s black gets a preference, you have to be a descendant of American slaves. If you actually are white and descendant, you’re very vague, you know, lengthy ancestry, our norms would say, you just don’t check it just like our norms. Now, say you wouldn’t check that you’re black, right? And if you’re native American, it’s not that you have some native American so-​called blood. It’s rather that you actually live on a reservation, therefore we know that you’ve suffered generationally from government oppression. So based on Supreme Court precedent, one could argue, again, that while these are correlated with racial categories are actually political classifications that don’t raise the same constitutional concerns about the government dividing people or classifying people by race. And I think they also lead to less concerned that the government is, in fact segregating people in a variety of ways, classifying them by race and thereby interfering with what seems to be a very strong undercurrent of intermarriage and assimilation in the United States.

0:39:00.1 Trevor Burrus: And which is a good thing. As you said, we get to the point where so many of these categories, they think of themselves as white after a few generations or maybe even after one generation but they can check different boxes. Now, it seems, you know, an admirable goal to try, and when we think about why we have minority business owned business preferences to focus on people who’ve actually experienced oppression., but I mean, as we talked about, these are very persistent categories and there’s a lot of people who can game the system and they do, especially when it comes to minority business preferences, for example. Do we see an ability to do this better? For example, and this is probably a bad idea, but we have 23 in me now, we have DNA tests. People are finding out that they have different ancestry than they did. We might be able to get that more granular and say, well, you know, they have definitely oppressed ancestry, and we know this. So, I mean, is that better? Is there something that is coming that we could make this work better than what has in the past?

0:40:07.1 David Bernstein: Yeah, I don’t think we wanna go to a genetic test for various reasons.

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0:40:13.4 Trevor Burrus: But it’s affecting the debate though, right?

0:40:15.6 David Bernstein: Well, you know, it’s an interesting issue because the way these classifications are defined, and particularly the African American classification is defined as anyone who is descended from, and this is a quote, “the black races of Africa.” So if you do a DNA test and you’re Trevor Burrus, and you think of yourself as a white guy, but you do the DNA test that comes back saying you have 8% African ancestry. If you then choose to identify as African American, you come within the legal definition. I mean, no one could say, you know, there’s different levels of sort of problematic use of these classifications. One is, of course, outright fraud where someone just claims to be something they’re not. But another is that someone does actually meet the legal definition of the classification, but is clearly not the sort of person who…

0:41:09.8 Trevor Burrus: Yeah, I am not the sort of person who deserves any of that. Agreed.

0:41:12.7 David Bernstein: Well, let’s say, for the person who deserves it, that was intended.

0:41:15.7 Trevor Burrus: Intended. Yes.

0:41:17.9 David Bernstein: So, and this is comes up very early in my book. I talk about two separate cases from the small business administration involving people who claimed to be members of the Hispanic classification, therefore should get preferences under small business administration rules. One of them did have Spanish grandparents and she spoke Spanish and she grew up speaking Spanish with one set of parent, and one of her parents, her mom actually, but her maiden name was not Hispanic because it was her mom’s family that was Spanish. Her married name, she didn’t marry someone Hispanic. So her married name didn’t sound Spanish. She had blonde hair and blue eyes, which is not, you know, she’s already of European origin even of the Spanish side, so that’s not surprising. And the ministry of law judges said, “Look, you meet the technical definition, but this clearly wasn’t meant for someone like you. It’s meant for people who may have faced discrimination because they were Hispanic, and that excludes you.”

0:42:09.0 David Bernstein: Another case, different small business administration, judge is the first person to review the classification. It was someone who said, “Well, I’m a descend of Sephardic Jews, Jews who are expelled from Spain in 1492, classification says anyone of Spanish origin, that makes me of Spanish origin.” And they say, oh no, you know, same rationale. You don’t have a Spanish sounding name, etcetera, etcetera. But then on appeal, the administration of Lord judge say, “Well, look, I don’t care whether you face discrimination or not, because of your Hispanic origins, if you look at the statute, it says Spanish origin or culture. I don’t have any authority to decide who is sufficiently Hispanic.” Which I think is the correct answer under the statute, maybe a bad statute, but the statute doesn’t say you have to be Hispanic and be someone who may have suffered discrimination. It just says Spanish origin, therefore you are Spanish. Now, does he deserve, you know, even if you think Hispanic should recover, is she someone who’s been too well, that this is a sort of problem with using these crude classifications there, they tend to be quite over inclusive.

0:43:13.1 David Bernstein: And I think that, again, people weren’t worried so much about it 50 years ago. We didn’t have that many people who are minorities, who are not black and was considered at the time, and no one, at the time was still sufficiently socially undesirable to be black in the general society. No one thought that people would pretend, although now, of course, we have some cases like that. And usually people think, “Oh, I could tell when someone kind of looks black, and you’d have a hard time passing yourself off as someone of African origin so would I. Although, of course, there are some people who you legitimately identify as African American who happen to be fair skinned and so forth, but in any event that wasn’t really considered that much of a concern. We have blacks, we have whites, we basically know who each group is and we have a traditional one drop rule, any one of African descent. But now we have people, you know, we have some, we have people who maybe a quarter Chinese, a quarter Mexican, a quarter Irish and a quarter native American. So what classification are they supposed to choose? Well, it’s not gonna benefit them for college admissions to choose Chinese. They probably won’t, but you could have these.

0:44:14.8 David Bernstein: I wrote an Amicus Brief. I help write Amicus Brief for the current Supreme Court cases. I said, you could have a case where someone has one Chinese parent, one Mexican parent, they’re not trying to game the system. So one kid identifies more as Mexican side, he’s really close to his Mexican grandma and he puts down Mexican and the other kid happens to be closer to his Chinese grandparents. And more identifies with that side. He went to a Chinese language school or wherever it may be. And so one puts down Asian, one puts down Latino or Hispanic. They’re exactly the same background, same parentage, same family. And one gets discriminated against because he’s Asian, the other gets favor because he’s Hispanic. That doesn’t really make any real sense either.

0:44:56.7 Trevor Burrus: But realistically then, with that just being an example of affirmative action, but all the different classifications in federal law and regulations, we can’t do away with these racial classifications, correct? We realistically can’t, maybe we want to live in a post-​racial society and maybe we’re moving in that direction as you pointed out in her marriage, a bunch of people who are not sure of what they can classify themselves. But we can’t, we have to just do it better rather than getting rid of it, correct?

0:45:27.3 David Bernstein: Well, you could go the French way. There’s two things in France. First of all, they prohibit the government from taking any kind of ethnic information about people on census or whatever. But there’s also a very strong social norm that we’re all just Frenchmen, and we should not differentiate among ourselves. Now, that have some advantages, the obvious advantages of social cohesion and solidarity and encouraging assimilation in a good way of like allowing minorities to become part of the French nation. It also has its bad, negative attributes, which is that you can’t really like are north Africans in France being subject to discrimination? No one knows. We know that they have lower socioeconomic indicators. Why is that? Well, no one studies that because both the government and the private norms say you don’t consider people’s backgrounds. So same thing in the US, you could go to a system where we don’t have any classifications at all, but I don’t think we’re prepared to do that because if you were to do that, things like the Voting Rights Act would just become null. Because if you don’t know who’s voting or not, you could have specific, yeah, someone who gets turned away, active voting with your black, we’re not gonna let you vote. But that happens really rarely.

0:46:44.7 David Bernstein: Now, there are people who think this would be a good thing, that we have too much statistical based anti-​discrimination laws that you really should have to prove that individualized discrimination, but clearly it’s sometimes like with voting, there are real patterns and practices that be hard to pinpoint particular individual will be discriminated against directly. But there may be rules that were passed to try to effectuate discrimination and you wouldn’t be able to enforce those. And regardless of what I think or you think, I think society is not prepared to give up on enforcing laws in this way to ensure, to keep these statistics. So, yes, as long as we want to enforce civil rights laws, more or less, the way we’ve been enforcing them, we’re going to have to have some sort of classifications. And in fact, while I think the classifications in general are quite accrued and over broad nonspecific, they’re not terrible for the purpose, for that purpose. You know, I think for example, the Asian classification is way overboard, even for that purpose, because you could easily imagine, for example, a Chinese employer discriminating against Indians or an Indian employer discriminate against Chinese, but they’re all just Asians as far as the government’s concerned. So you could tweak that somewhat.

0:47:48.9 David Bernstein: But for that, that was their original purpose for that original purpose, just keeping track of discrimination and so forth, it’s not terrible, for almost any other purpose it is terrible. So for almost any other purpose, we should either look to separating race and state. So for example, I think in the medical context, we should just abolish these rules entirely about, because there’s generally no medical reason and the few exceptions where there are, they’re not exceptional enough to be worthwhile, plus they really inhibit us even when you might find an African Americans, for example, have a higher risk of X or this drug doesn’t work the same way. Well, is it really African Americans who are the issue, or is it some subgroup who have some genetic cluster from Western Africa, but it wouldn’t apply for example, to Ethiopian or Somalis? And we have no idea because we never look at that granular level. So I wouldn’t abolish that entirely. For social science research, again, we gather all these different subgroups together into sort of a crude classification used for anti-​discrimination purposes. But if you wanna know how the Hopi tribe is doing or how the Sioux are doing, or how particular small tribe in Arizona’s doing, you don’t need to study them and you really need to break it up that way.

0:49:08.2 David Bernstein: You really just looking at Indians in general is not gonna tell you. And again, and in fact, from a progressive point of view, as you mentioned earlier, you may actually be not noticing some real problems. So, if you’re looking at sort of all Indians in Massachusetts or wherever, well, you’re including the Foxwoods casino Indians who get all this revenue, you average them in with other ones, are you really getting, you know, maybe it’s covering up the fact that you have this huge Indian population that’s living in poverty. You add Nigerian immigrants to the African American population. One thing, by the way, I didn’t realize before I wrote this book, if you’d have asked me what percentage of African Americans are non-​native born, I would’ve thought somewhere 5% or less. Turns out it’s 10%. So if you include them and their children and their grandchildren, that’s a very substantial percentage of the population. They have higher socioeconomic indicators, higher educational status, higher income than they have born African Americans.

0:50:07.0 David Bernstein: You average them together with African Americans, it may give you a false picture of how the descendants of slaves who are really thinking about trying to help or trying to worry about their progress in society, how they’re doing. And same with all these groups. You’re including diverse, internally diverse populations as a singular entity. And that is potentially obscuring problems specific to some of the subgroups.

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0:50:47.6 Trevor Burrus: Thanks for listening. If you enjoy Free Thoughts, make sure to rate and review us on Apple Podcast or in your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism, visit us on the web at lib​er​tar​i​an​ism​.org.

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