Brandeis Magazine

Racial classification by law is as American as apple pie.

From the nation’s earliest days, white Americans justified slavery and the dispossession of Native Americans by specifying the races that did not deserve the rights they themselves enjoyed.

After the Civil War and the 13th Amendment ended slavery, authorities still went to absurd lengths to classify Americans by race. Officials divided mixed-race Americans of partial African descent into categories such as “quadroons” and “octoroons.” They engaged in pseudo-science and -anthropology to decide which groups from Asia counted as “Asian” and which counted as “white” under American immigration and naturalization law.

Ironically, the crude racial categorizations of the pre-civil rights era have morphed into ubiquitous government-dictated racial and ethnic classification. Today, applying for a job, a mortgage, college admission, citizenship, or government contracts involves checking a box to declare one’s race, even though there is no inherent logic to using the categories, nor to determining their precise scope.

This is all due to an obscure rule, Statistical Policy Directive No. 15, which the federal government’s Office of Management and Budget promulgated in 1977 to create uniform classifications that would standardize statistical categories across federal agencies. OMB warned the classifications were neither scientific nor anthropological, and shouldn’t be used to determine eligibility for government programs. Nevertheless, they soon spilled into all aspects of American life, from affirmative action to scientific research.

Consider some of the imprecisions the categories entail:

• The Hispanic category depends upon “Spanish descent or culture,” and includes Spanish immigrants; Cuban Americans of mixed European extraction; Puerto Ricans of mixed African, European, and Indigenous heritage; and individuals fully descended from Indigenous Mexicans. Some activists believe the classification should be narrowed to include only Indigenous Latino/Mestizo, excluding white Hispanics, who are much less likely to face racial discrimination.

• The Asian American category includes people descended from widely disparate national groups constituting 65% of the world’s population. Filipinos and Bangladeshis, for example, look different, practice different religions, speak different languages, and vary dramatically in culture. Asian Americans have extremely varying levels of socioeconomic success in the United States — Indian Americans, for example, have, on average, significantly higher-than-average incomes and levels of education; the incomes of Burmese and Malaysian Americans are, on average, well below the American mean. And, according to various sociological studies, only a minority of people in the Asian American category identify with the “Asian” or “Asian American” label.

• Anyone with sufficient ties to a Native American tribe is included in the Native American category. However, federal law is all over the map as to how one proves such ties. (In practice, many Native Americans prove their status by receiving a Certificate of Degree of Indian or Alaska Native Blood from the federal Bureau of Indian Affairs.)

• In the African American community, there is growing debate over whether the category of Black/African American should, in some contexts, be limited to descendants of American slaves or include recent African and Caribbean immigrants and their descendants. Some argue that individuals with one Black and one non-Black-identified parent should be classified as multiracial rather than African American.

• The white classification includes Americans with descent from diverse countries, including Iceland, Yemen, and Morocco. In the wake of lobbying from Iranian and Arab American groups arguing their constituents face racial discrimination not experienced by others classified as white, the Biden administration has proposed creating a new Middle Eastern and North African classification.

So what should be done about the U.S. government’s system of racial classification? One option would be to follow the example of some countries with multiethnic populations — most famously, France — that outright refuse to classify their citizens by race or ethnicity. They make the argument that official race or ethnic classifications are divisive and undermine common national identity, a key to social solidarity and stability. But there are downsides to this approach. For one thing, it makes it much more difficult for a government to detect and try to redress discrimination.

Still, it makes little sense for the U.S. to continue using classifications developed in the mid-1970s. Since then, the country has experienced large-scale immigration from around the world, along with a huge increase in interracial marriage. As a result, those self-identifying as Asian American and Hispanic have grown from 6% to 25% of the U.S. population.

Meanwhile, the classifications created by Directive No. 15 have grown ever more internally diverse, bordering on incoherent. They have also become an increasingly dubious match for their intended purposes: ensuring diversity in higher education (does it really make sense to put Pakistani and Filipino Americans in the same “Asian” diversity classification?), redressing past discriminatory practices, and accounting for genetic differences when engaging in medical research.

Something has to give. I propose a greater separation of race and state, combined with a much more nuanced and targeted use of racial classifications when deemed necessary.

Let’s start by eliminating the government’s requirement that biomedical researchers use the Directive No. 15 classifications in recruiting research subjects and reporting results. Classifications like “Hispanic” have no scientific coherence and were never meant to.

We should also be more precise in how we use race in affirmative action programs. For example, the primary original intent of racial preferences in government contracting was to help African American businesspeople, previously excluded by discrimination and old-boy networks, gain access to government contracts. Instead, most contracting preferences now go to immigrants who arrived after immigration reform in 1965 and their descendants, who are primarily of Asian and Hispanic descent.

In some cases, it makes more sense to replace government programs’ racial criteria with socioeconomic criteria. Programs benefiting people living in high-poverty areas disproportionately benefit members of historically excluded racial and ethnic groups while also helping other distinct groups with low average socioeconomic attainment, such as Appalachian whites. Such groups’ struggles are sometimes obscured by being channeled into the generic white classification.

Even if we think France goes too far, encouraging a common American identity, while still allowing for voluntary group self-expression, is sound public policy.

One day, I hope we look back on today’s racial divisions as a faintly ridiculous vestige of a less sophisticated, less enlightened, and less tolerant past, much as we now look at the Catholic- Protestant tensions that once dominated American politics and culture. How the U.S. government handles racial classification will be a decisive factor in whether this outcome comes to pass.

Law played a significant role in establishing racial divisions. And law (or its absence) can play a significant role in maintaining; abolishing; or, at least, severely mitigating these divisions.

David Bernstein is a University Professor and executive director of the Liberty & Law Center at George Mason University’s Antonin Scalia Law School. His most recent book is “Classified: The Untold Story of Racial Classification in America” (Bombardier Books, 2022).