New Book Crucial to Understanding Imminent SCOTUS Decisions on Racial Preferences

AMAC Exclusive – By David Lewis Schaefer

Sometime this spring, the United States Supreme Court will issue rulings in two cases challenging the constitutionality of the systems of racial preferences (often euphemistically called affirmative action) used by Harvard University and the University of North Carolina. Should the Court rule against the universities, it would require transforming the admissions policies of academic institutions throughout the country – as well as, potentially, the system of preferences used to allocate government contracts, and even the hiring practices of private employers.

In his recently released book Classified: The Untold Story of Racial Classification in America, David Bernstein, a distinguished law professor at the George Mason University Scalia Law School, offers a dispassionate but thoroughly researched examination of this so-called affirmative action system that may come crashing down in a matter of weeks.

Bernstein details how the “complex and sometimes bizarre” system of government-imposed racial classification (whether directly practiced by government or imposed on private institutions and businesses) developed in the first place and operates today. His focus is less on the issues of justice, equality, and individual rights about which debates over racial preferences usually revolve, and more on the sheer arbitrariness or randomness of the categories that are used to assign them.

As Bernstein notes, although “racial classification by law… has a terrible history in this country,” dating from when it was used to discriminate against Black people, Native Americans, or immigrants from East Asia, more recent governments, for ostensibly benign reasons, have developed a system of racial and ethnic classifications that are made even more egregious by the fact that they “do not reflect biology, genetics, or any other objective source,” but instead “combine extremely diverse groups” such as Hispanics, Asian-Americans, or whites under “arbitrary headings,” as the result of “amateur anthropology and sociology, interest group lobbying, incompetence, inertia, lack of public oversight, and happenstance.”

Following an initial chapter describing the government’s postwar development of uniform racial and ethnic classifications “for data gathering and civil rights enforcement” (rather than for ‘affirmative action’),” Bernstein devotes his next three chapters to considering “different ethnic and national groups that have been on the borders of legal whiteness.” These include Latinos, who succeeded in winning minority status for purposes of receiving preferences, and other ethnic groups such as Cajuns, Jews, and persons of Middle Eastern/North African descent who failed to achieve such status – the noteworthy exception being South Asians.

The last two chapters of Classified address contexts other than civil rights enforcement and affirmative action wherein mandated classifications “have a significant impact on American life.” Some examples of this include the definition of American Indian identity for purposes of establishing the rights of criminal defendants and the fate of children who are potential adoptees, and FDA/NIH rules requiring biomedical researchers to “sort study participants” according to “government-dictated ethnic and racial classifications,” even though those classifications lack any scientific relevance.

It is remarkable, in Bernstein’s recounting, just how randomly the contemporary system of governmental racial classification developed. Originally, President Truman appointed a Commission on Civil Rights which focused on the laudable goal of combating discrimination against groups whose skin color, unlike that of “white” minorities, set them visibly apart from the majority of citizens. In turn, Presidents Eisenhower and Kennedy broadened and deepened antidiscrimination policy directed at government contractors while requiring them to report the number of their Black employees. This subsequently expanded in response to lobbying efforts to reporting “Spanish-American” workers and then Japanese and Chinese Americans, along with American Indians.

As Bernstein observes, there was remarkably little public debate over which groups should be included and why – or whether, in the wake of Nazi horrors, the government should be engaged in tracking people’s “races” at all. Following a 1973 recommendation of the U.S. Commission on Civil Rights, the government nonetheless adopted a “racial and ethnic data collection system,” which was formalized in the late 1970s when the federal bureaucracy established “five standard official classifications,” namely American Indian, Asian/Pacific Islander, Black, Hispanic, and White.” As Bernstein notes, these categories lacked any “inherent logic,” since they grouped “Americans with vastly different physical appearances and cultural backgrounds – such as ‘Asian’ Pakistanis and Filipinos, ‘Hispanic’ Spaniards and Mexicans, or ‘White’ Moroccans and Icelanders” within the same respective categories.

This impulse toward imposing a groundless uniformity on fundamentally diverse human individuals reflects a tendency noted by Aristotle of intellectuals to want to simplify the world in a way that satisfies their instinct for mathematical regularity – as well the aim of modern rulers, as described by Alexis de Tocqueville in Democracy in America, to ease their task by erasing the distinctiveness of the human individuals they govern.

In one instance that Bernstein cites showing the absurdity of the government’s racial classification regime, “struggl[ing] with the question of who counted as Hispanic” for minority-preference purposes, a Federal Communications Commission review panel judged that a radio station should get partial credit for hiring a general manager whose grandfather had been born in Cuba, even though the manager lacked a Spanish surname, Spanish fluency, or any connection to the local Hispanic community, but not “full credit” for the foregoing reasons. And even though the “Hispanic or Latino” category is the only one “in which someone can be both white and have legal nonwhiteness,” since it is officially an ethnic rather than racial designation, “in practice” it is “often treated as a race,” while Hispanic groups who seek to maximize their political power resist attempts to narrow the category in the direction of a more race-based identity like “Indigenous Latino/Mestizo.”

In another instance of how sheer political calculations determine the setting of preferences, in 1989 “Chinese-American businesspeople persuaded the San Francisco government to exclude Asian Indians from a bid-preference program for designated minorities,” on the grounds that “Indian Americans were recent immigrants who had no history of discrimination in the United States.” That argument was a “stretch,” since by 1989 “most Chinese-Americans were also post-1965 immigrants and their descendants,” and the claim appears to have been simply aimed at “limiting competition” for the preferences.

A similar competition played out in Ohio, where Indian-American businessmen who had become active in Republican politics persuaded Governor George Voinovich to add “Asian Indians” to the state’s “Oriental” classification, against the opposition of state’s African-American legislators – only to have the addition reversed, but finally confirmed thanks to a court ruling. Nonetheless, “many South Asians” in the state “are dissatisfied with being lumped into the Asian-American category,” rather than given a separate listing.

Bernstein’s devotes his final pages to observing the manner in which “official and racial ethnic classifications in the United States are self-fulfilling,” in that they encourage citizens “to think of themselves as members” of government-invented or promoted groups in a way that was far less common fifty years ago (e.g. “Hispanic” or “Asian American”). Whereas “the horrendous history of racial classifications in places like Nazi Germany and South Africa” should give “pause” about the resultant risks of “identity politics,” most Americans (Bernstein maintains) are “blasé” or even encouraging of them.

“Many progressive social theorists,” Bernstein observes, even “applaud increasing white racial consciousness” on the implausible assumption that this will get whites to acknowledge their “privilege” and as a result join the battle against racism. Far more likely, as Bernstein notes, is the risk of a “chauvinistic backlash” from whites who see themselves as victimized by a system that favors only those who manage to win “non-white” status (even if they are prosperous techies with South-Asian roots, attorneys from Mexico, or Spanish executives).

While holding out the alternative of the French policy of simply refusing to classify its diverse citizenry by race or ethnicity, Bernstein defends America’s continued use of its “standard racial and ethnic categories,” however imperfect, “for their original intended main purpose,” that of “monitoring discrimination” against those who suffered from it most egregiously in the past. Beyond that purpose, he cites the late Justice Scalia’s advocacy of “managing” diversity via what Bernstein calls “the separation of race and state,” on the principle that in the eyes of the government, Americans form only a single race. (That is surely what the Fourteenth Amendment would appear to signify.)

But while advocating the elimination of racial/ethnic classifications in the areas of biomedical and sociological research, and preferences in business contracts and college admissions, since they are “often counterproductive” and risk further societal divisions, Bernstein concludes that government can still pursue affirmative action’s original goal of “redressing the present effects of historical discrimination against African-Americans without resorting to racial classification.”

To this end, he proposes that affirmative action preferences in both government contracts and college admissions be strictly limited to “African-American descendants of slaves and members of American Indian tribes who live on reservations,” with the goal of “righting historical injustices that have modern reverberations,” and “bring[ing] marginalized groups into the American mainstream.” He hopes that, in contrast with the expectations of exponents of Critical Race Theory, racial division will gradually disappear from the American political landscape.

In view of his powerful critique of the system of racial and ethnic classification, both for its arbitrariness and its effect in promoting rather than mitigating societal conflicts, Bernstein’s concluding recommendations come as something of a disappointment. How can it be determined that a Black person born over the past 40 years (following desegregation, the 1964 Civil Rights Act, and the Voting Rights Act) suffers from diminished life prospects as a consequence of slavery or of widespread racial discrimination until, say, the mid-1970s? Consider the large number of Black elected officials throughout the country, including a president, the prominence of many Blacks in the fields not only of sports and entertainment, but also in business, and so on.

Indeed, the distinguished (Black) social scientist Thomas Sowell has demonstrated that the trajectory of Black progress was greater in the decades preceding the Civil Rights Act and Voting Rights Act rather than afterward – not because those laws were not beneficial in themselves, but because of negative sociological developments (famously highlighted by Daniel Patrick Moynihan) including increasing out-of-wedlock births, declining public schools, growing crime, and dependency spawned by ever-increasing government welfare programs.

In sum: Bernstein has made an invaluable contribution to our knowledge by meticulously documenting the arbitrariness and harmful effects of the entire system of racial preferences. His research provides further ground for hoping that the Court will finally strike down the use of such preferences in college admissions. Such a decision also should pave the way for repeal of the system of preferences for so-called minority business enterprises.

But Bernstein might have gone a bit further to consider whether the advancement of descendants of slaves and of the victims of past discrimination is not best served by encouraging them to take advantage of the opportunities available to all citizens in America – even as we adopt measures, notably education and welfare reform, to assist all underprivileged individuals, regardless of race, ethnicity, or immigrant status, by removing obstacles that poorly thought-out public policies have put in their way.

David Lewis Schaefer is a Professor of Political Science at College of the Holy Cross.