Separating Race and State

Chief Justice John G. Roberts Jr. has penned two memorable lines about classifying people based on how they look: “It is a sordid business, this divvying us up by race,” and “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” David E. Bernstein’s new book, Classified: The Untold Story of Racial Classification in America, provides overwhelming evidence as to why Chief Justice Roberts is correct.

Bernstein is the libertarian law professor and blogger who has done more than anyone else to “rehabilitate” the U.S. Supreme Court’s widely reviled liberty of contract decision, Lochner v. New York (1905). In fact, he titled his book about the case Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011). Bernstein’s thesis in Rehabilitating Lochner was that the Court’s decision in Lochner was well grounded in precedent, and that modern constitutional jurisprudence owes as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents.

Turning to Bernstein’s new book, most Americans already know that racial classifications are ubiquitous in American life. What makes Classified a must-read, however, is Bernstein’s legal history of their origins, his avalanche of evidence about how increasingly arbitrary and incoherent they are, and his proposed solution for cleaning up the mess they have created that, a mess that quite frankly, must be cleaned up if America is to truly be a nation committed to equal opportunity for everyone.

Racial Classifications

Bernstein, who is well-known in academia for his sharp pen, opens his book with the following pronouncement: “Official American racial and ethnic classifications are arbitrary and inconsistent, both in how they are defined and how they are enforced. The categories are socially constructed and historically contingent. They evolved from older racist categories and have barely been updated since the 1970s.” He never takes his foot off the gas on this point anywhere in the book.

The rise of the modern racial classification system traces predominately to the civil rights era and its policies against discrimination. However, according to Bernstein, the largely unknown “Statistical Policy Directive No. 15” that the Carter Administration released in 1977 imposing racial categories for data collection purposes has, with some tweaks, controlled ever since. Bernstein then makes a claim that should scare Americans straight: “When the government created the classifications, they came with the caveat that they were for data collection purposes only. Nevertheless, the classifications have been used from the outset to determine which groups are eligible for affirmative action preferences.”

One of the strengths of Classified is the anecdotes Bernstein employs to enliven what might otherwise be yet another dry and redundant story of government incompetence and corruption. Chapter One includes two gems. The first involves Tiger Woods, who ranks a close second to Jack Nicklaus as the greatest golfer in history. Sports fans likely know that Woods has European, African, Thai, and Chinese ancestry and that, as a result, he self-identifies as “Cablinasian.” But, as Bernstein points out, according to the government there is no official Cablinasian classification. Woods is a billionaire by virtue of his athletic prowess, and it probably does not matter that he self-identifies as something the government insists does not exist.

It does matter in the second of the two anecdotes that jump from the pages of Bernstein’s book, that enmeshing Elizabeth Warren. As another reviewer of Classified concisely put it, Bernstein played a “seminal role in destroying Warren’s presidential hopes” by discovering that, in the 1980s, Warren had self-identified in the Association of American Law School’s faculty directory as “Native American,” a classification that helped secure for Warren a tenured law faculty position at Harvard. According to Bernstein, the “federal Bureau of Indian Affairs would not classify Warren as an Indian because she does not have either tribal membership or one-quarter Indian ancestry.” However, Bernstein continues, given the anomaly of self-identification, “[p]erhaps the fact that Warren was invited to provide a recipe for the book, Pow Wow Chow: A Collection of Recipes from Families of the Five Civilized Tribes, is evidence of community recognition.”

If the Supreme Court decrees in the October 2022 Term that it is illegal to consider race and ethnicity in higher education admissions decisions, the justices in the majority will probably cite Bernstein’s book as a reason why.

Further Confusion

Bernstein next looks at the “anomalous Hispanic category.” Hispanic is the only minority category that is defined as an ethnicity, not a race. The classification is arbitrary. Bernstein writes: “The Hispanic classification is an American construct; residents of Spanish-speaking countries do not use it to refer to individuals’ ethnicity. Critics of the category contend that the differences among those Americans classified as Hispanics ‘are greater than their imputed commonalities.’” It gets worse. “Even though most Hispanics identify as white on the census and in surveys,” Bernstein notes later in the book, “they are often referred to as ‘people of color,’ that is, nonwhites.” Moreover, “Supreme Court decisions more generally treat affirmative action preferences for Hispanics as racial preferences.” The Hispanic classification makes no sense, and Bernstein should be commended for documenting how patently obvious it is that it makes no sense.

Bernstein next reminds readers that members of Italian, Polish, Jewish, Armenian, and Cajun American communities have been discriminated against, but the government nevertheless classifies all of them as “white” and focuses its anti-discrimination resources on protecting “blacks.” To state the obvious, “Jews in the Western world suffered from both religious and racial hostility, the latter culminating in the Holocaust.” To state the less obvious (to non-lawyers, at least): “the Supreme Court has held that Jews, like Hispanics but unlike other predominately white ethnic groups, are a ‘cognizable racial group’ and are therefore protected from discrimination in jury selection under the Batson rule.” To repeat: government classifications are arbitrary and inconsistent.

When Bernstein addresses how to classify South Asian, Arab, Iranian, and Multiracial Americans, we find more of the same. Indeed, at this point in the book I was reminded of the many scenes in The Sopranos in which the TV show’s Italian-American main character, played masterfully by the late-James Gandolfini, punches an enemy of “the family” eight or nine times more than necessary to make a simple but powerful point: “Don’t mess with me or mine.” With respect to the groups under consideration in this part of Classified, Bernstein writes, for example, that “even though the federal government has classified Arab Americans as white for over a century, many Americans consider Arab Americans to be something other than white” and “[r]equiring mixed-race children to check only one box, multiracial activists contended, forced them to implicitly reject one of their parents, causing psychological distress.”

In the chapter about “American Indians,” Bernstein makes a subtle shift from the “borderlines” of legal whiteness chronicled in the previous chapters to the “borderlands” of legal whiteness. Arbitrariness and inconsistency continue to reign, however. The Supreme Court considers “Indian” to be a political rather than a racial classification, yet government agencies regard “Indian” as a race. It gets more confused: Bureau of Indian Affairs “regulations issued in 2020 governing eligibility for federal education grants to Indian students define Indians as those with tribal membership or who are ‘at least one-fourth degree Indian blood descendant of a member of an Indian Tribe,’” some laws benefitting American “Indians” require tribal membership to qualify and others do not, and courts are not consistent about what percentage of “Indian” ancestry suffices to be considered an “Indian.”

The chapter about racial categories in scientific and medical research is, however, the most jarring of all. There, Bernstein documents how, as mentioned above, the government unit that originally devised classifications for data collection purposes explicitly warned that these “classifications should not be interpreted as being scientific or anthropological in nature,” yet the Food and Drug Administration (FDA) and the National Institutes of Health (NIH) nevertheless require medical researchers to classify study participants using the said-same categories. Curiously, the FDA and the NIH have never explained why researchers must classify study subjects and data by Hispanic identity but not any other ethnicity. And why did the COVID-19 vaccines take longer to evaluate than they otherwise should have? Because, Bernstein insists, then-NIH director Francis Collins required Moderna to recruit more “people of color” before NIH would acknowledge the vaccine’s safety, even though Collins admitted there was no reason to believe that the vaccine would have a different safety and efficacy profile based on ethnicity.


The denouement to this “sordid business” is when Bernstein calls for “the separation of race and state.” He wants the government to get out of the classification business. According to Bernstein, countries such as France have refused to classify people based on race or ethnicity because the “prevailing wisdom in such countries is that official race or ethnic classifications are divisive and undermine common national identity.” The United States has long been committed to the separation of church and state. The separation of race and state is at least as important for purposes of social solidarity and social stability. If that were not enough to convince readers to “stop discriminating on the basis of race” (to quote Chief Justice Roberts), Bernstein demonstrates that the public policies that classifications on the basis of race and ethnicity are supposed to advance—biomedical research, diversity in higher education, and the like—are actually hindered by the “sordid business” of “divvying us up by race” (to again quote the Chief Justice).

I take three lessons from Bernstein’s eye-opening book. Two are personal. The first is that the book confirms my longstanding personal practice of checking the “I choose not to answer” box when applying for jobs that want to know what race, ethnicity, gender, sexual identity, etc., the applicant is. The second is that, because my stepmother is “black,” unless and until the government does what Bernstein advises it to do—stop asking questions like that—I should start self-identifying as “black” to increase the likelihood that I will be offered one of the jobs for which I apply. After all, I work in higher education, and racial and ethnic preferences are its sacred cow. The third lesson is important for the nation as a whole (rather than merely for me personally): If, as is widely expected, the Supreme Court decrees in the October 2022 Term that it is illegal to consider race and ethnicity in higher education admissions decisions, the justices in the majority will probably cite Bernstein’s book as a reason why.