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Five years ago, Washington state businessman Ralph Taylor demanded that the government declare him black. Taylor was of mixed race—a DNA test showed he had only 4 percent African ancestry—but he wanted his business to qualify for the special preferences that “black-owned” businesses enjoy under state and federal “affirmative action” laws. And he did persuade the state to declare him black by submitting DNA evidence, along with testimony that he was a member of the NAACP, subscribed to Ebony, and had friends who considered him partly black. Based on this, the Washington government declared his company a minority-owned business eligible for preferential treatment under the law.

But to work on federally-funded projects required a separate application—and this time, bureaucrats decided he was not black, after all. Taylor pointed out that the law defined “black American” as anyone “having origins in any of the black racial groups in Africa,” which, in fact, he did have; but officials rejected his application on the grounds that he had not suffered “racial or ethnic prejudice” as a result of his ethnic background (114–15). He sued, but a federal judge upheld the government’s self-contradictory dual classification. Simply put, he was black when he worked on state projects but white when he applied for federal projects.

Such absurdity is inevitable in racist thinking and policies. Whether in its overtly hostile forms, or the allegedly helpful variety that seeks to grant favors to members of “disadvantaged” groups, racism is premised on the false and immoral idea that people’s minds are functions of their ancestry and, consequently, that a person’s accomplishments are less morally relevant than the color of his skin. But as George Mason University law professor David E. Bernstein makes clear in Classified, racism contains still another layer of incoherence: The assumption that people fit within racial categories that can be legally defined, compared, or contrasted is itself untenable.

In fact, these categories are often nothing more than vague resemblances—groupings that blur, ignore, or manufacture differences and similarities between people. That means “affirmative action”—which supposedly remedies racism by allocating jobs, college admission, eligibility for business loans, prioritization for government contracts, and other benefits to people who have suffered discrimination in the past—uses sloppy, subjective legal terms to define eligibility. And because these benefits are so valuable, people and politicians often try to manipulate those definitions for their own profit. As a result, the racial classifications that state and federal laws use for bestowing legal privileges on favored groups are dictated more by political scheming than by anything resembling fact.

Take, for example, the “Asian” classification. People often assume that this term refers to people from East Asian countries such as China, Japan, Korea, and Vietnam. But according to the federal government, it also includes Pakistanis, Indians, and Indonesians, who generally don’t view themselves as culturally, historically, or even geographically related to people of East Asian ancestry.

The “Hispanic” classification is even more capricious. It was created by government fiat in the 1970s to encompass people whose ancestry is derived from Spanish-speaking countries. Basing a classification on language rather than history or biology is peculiar, given that language is not an immutable characteristic acquired at birth. But the Hispanic category also includes people who do not speak Spanish, such as Brazilians, who speak Portuguese, and immigrants from Spain who speak Catalan. What’s more, residents of Spanish-speaking countries do not call themselves “Hispanic,” and polls reveal that half of American-citizen Hispanics consider themselves white.

The results of this bizarre taxonomy are sometimes silly. When Steven Spielberg’s remake of West Side Story appeared last year, studio publicists boasted that the cast would be racially “authentic” because the Puerto Rican character Maria would be portrayed by Hispanic actress Rachel Zegler. But Zegler is of Colombian and European ancestry and has no Puerto Rican heritage. “Exactly how casting a half-Colombian, half-European actress to play a Puerto Rican character is culturally sensitive was left unexplained,” writes Bernstein (33).

The self-contradictory and arbitrary definitions used in various laws often encourage shameful opportunism and injustices. “Affirmative action” programs typically rely on self-definition when it comes to race—meaning that people are deemed to be whatever race they say they are. But that is not always true. When two white men named Paul and Philip Malone applied for jobs with the Boston Fire Department in the 1980s, they were rejected because their test scores were too low, thanks to hiring policies that required higher scores for white applicants than for black. So, they simply reapplied and marked “black” on their application forms, whereupon they were accepted.

Ten years later, their ruse was discovered. They were subjected to a disciplinary hearing, where they argued that the law does not define “black,” and the government has traditionally allowed people to self-identify. That was true, but the Malone brothers lost their case because a judge ruled that their skin, hair color, and facial features “[did] not appear black” (3). Most Americans are “appalled,” Bernstein notes, “by century-old cases adjudicating whether Asian Indian and Arab immigrants should be considered white people eligible for naturalization and what blood quantum of Native American ancestry makes one an American Indian for legal purposes,” yet “despite our revulsion,” such legal decisions are “more common than ever” (xi).

It’s no surprise that when the law gives privileges to or imposes burdens on vaguely defined (or undefined) populations, people will try to shoehorn themselves into those groups. And political leaders have sometimes demanded recognition of new racial categories in order to obtain favors for their constituents. This is usually easy to do: Every group of people probably has suffered some form of discrimination at some point in history, so politicians can almost always point to past incidents of bigotry against whatever group they choose to define.

Bernstein gives the example of Italian Americans, who certainly have suffered private and public discrimination—they were even sent to internment camps during World War II.1 But antidiscrimination law does not officially recognize a distinct “Italian American” category—it simply defines them as “white.” When, in the 1970s, Italian American political leaders demanded that federal law create a new category for them, other ethnic groups, seeking to retain their privileges, pushed back. Italian American organizations fared no better when they filed lawsuits. And no wonder. As one appeals court wrote in 2003, it’s not clear how one could legally define the term “Italian American”:

Is an “Italian-American” one who came from Italy and became a United States citizen? Or is it one who is a first—or second—or third generation “Italian-American?” How much “ethnicity” is enough? What of the woman who has no Italian heritage but bears an Italian name because she took the name of her Italian—or “Italian-American”—husband? And how is one to even begin to know whether a man or woman is “Italian-American” when his or her name is ethnically-neutral, or . . . when an ethnically neutral name has been changed to an Italian name? (69)

Similar questions might be asked of most other racial or ethnic groups, of course, especially now that interracial relationships have become more common, and more Americans consider themselves “mixed race.” In fact, mixed-race individuals from other countries already have difficulty comprehending the idiosyncratic definitions in American race law. Bernstein gives an example from his own efforts to assist a Peruvian woman in filling out immigration paperwork. Like many South Americans, her ancestral roots are a combination of Spanish and indigenous, which in Spanish-speaking countries is often called “mestizo/mestiza.” But “there is no official mestizo racial classification in the United States,” Bernstein notes, and “the American Indian category on the form, which might otherwise have covered her Inca ancestry, is limited to North American Indians.” The ill-defined categories on American immigration forms left her “mystified” (viii–ix).

“It is a sordid business, this divvying us up by race,” wrote Chief Justice John Roberts in a Supreme Court decision almost two decades ago.2 And that business often has grotesque and cruel consequences. This is particularly true of federal laws relating to Native Americans, which define the term “Indian” in puzzling, sometimes contradictory ways.

Ignoring the radical differences in the cultures, languages, histories, and religions of the many Native American tribes, federal law instead uses the term “Indian,” which is a racial term originally imposed on indigenous Americans by white settlers. Thus, Bernstein notes, “The Native American Programs Act of 1974 define[s] Indian as encompassing anyone ‘claim[ing] to be an Indian . . . who is regarded as such by the Indian community,’” whereas the 1968 Indian Civil Rights Act “defines ‘Indian’ to include individuals who have ‘some’ Indian blood—no percentage is specified, though most courts agree that one-eighth is the minimum—and who are ‘recognized’ by others as belonging to a federally recognized tribe, regardless of formal enrollment” (120–21).

Meanwhile, the Indian Major Crimes Act—which gives federal courts authority to preside over criminal cases where the accused is an “Indian”—doesn’t define the word at all, leaving courts to fashion their own definitions. They’ve reached conflicting answers, often based on the amount of “Indian ancestry” the defendant has (126).

Still another definition appears in the Indian Child Welfare Act, which specifies that an “Indian child” is a minor who is either a tribal member or is eligible for membership and has a member for a biological parent. That means children whose sole connection to an Indian tribe is biological still qualify as “Indian”—which is important because the Act deprives such children of legal protections that children of other races enjoy. For example, it overrides the “best interests of the child” rule that courts typically use when deciding child abuse cases. That means state child welfare officials often are forced to return abused Indian children to the families that have abused them—which in many cases has led to their deaths.3

For the government to treat people differently based on their ancestry is profoundly unjust; when someone whose pedigree is northern European is denied admission to a government-funded university to give room to a student whose ancestors were enslaved centuries ago, the result is to punish the first person for an evil he didn’t commit and “compensate” the second for evils he did not suffer. Worse, government’s racial classification schemes “encourage people to think of themselves as members of racial and ethnic categories,” even if those categories were manufactured out of thin air (169). This phenomenon may be most dangerously manifested in the case of a category often ignored in discussions of this subject: the arbitrarily designated classification “white.”

The federal government, Bernstein notes, “classifies over two hundred million people with wildly diverse national origins and ethnicities, as white, part of ‘a single government-created pseudo-race,’” a characterization that ignores the overwhelming cultural and historical differences between, say, Frenchmen and Russians (170). By lumping them together, the government encourages these people to view themselves as a bloc with shared interests—and shared enemies. “The result is increased racial consciousness among Americans classified as white,” which could have catastrophic political and social consequences if it encourages “whites” to retaliate against groups they view as having taken unfair advantage (171).

Some of the cruelest atrocities in history have resulted from resentments such as these: The perpetrators of the Holocaust, for example, viewed themselves as defending the German majority against Jews they viewed as exploiters. America appears to be witnessing such a trend: the emergence of political figures and paramilitary groups openly advocating white nationalism who draw support, as Bernstein writes, from those who “believe themselves to be the victims of minority groups’ political gains” (171).

Bernstein ends on a note of pessimism. “Experience around the world shows that affirmative action categories almost always expand rather than contract” as more groups demand special privileges (181). And few politicians, judges, or university administrators show any willingness to eliminate them across the board. Yet there may be hope in the very irrationality Bernstein highlights; as interracial marriage becomes increasingly common, and more Americans identify themselves with multiple categories, the structure of race-based law becomes increasingly impossible to administer. “Within a generation or two,” predicts Bernstein, “a large majority of Americans will be eligible” for some race-based privilege, and “if almost everyone is eligible . . . they cease to be meaningful” (177). We can only hope that when—or, preferably, before—such schemes become unmanageable, Americans demand that their government—and their fellow citizens—judge each of us on our merits instead of our ancestry.

In “Classified”, @ProfDBernstein makes clear that the assumption that people fit within racial categories that can be legally defined, compared, or contrasted is untenable. —@TimothySandefur
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1. Stephanie Hinnerschitz, “Proclamation 2527 and the Internment of Italian Americans,” National World War II Museum, December 13, 2021, https://www.nationalww2museum.org/war/articles/proclamation-2527-internment-italian-americans

2. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006).

3. Timothy Sandefur, “The Unconstitutionality of the Indian Child Welfare Act,” Texas Review of Law and Politics 26, no. 1 (2022): 55–101.

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