Professor David Bernstein and New Book Featured in Wall Street Journal Interview

By Kyle Peterson
Wall Street Journal
October 28, 2022

The U.S. Supreme Court will consider on Monday whether racial preferences in college admissions are illegal. David Bernstein argues they’re irrational.

The argument at the high court is that Harvard and the University of North Carolina unlawfully discriminate against Asian-Americans to hold down their numbers and ensure a diverse student body. But what does it mean to say “Asians” are overrepresented on campus? Presumably elite colleges don’t have hordes of applications from America’s roughly 27,000 Mongolians. “Imagine you are a child of Hmong refugees,” says Mr. Bernstein, a professor at George Mason University’s Antonin Scalia Law School, referring to an ethnic group from Southwest China and Southeast Asia. You might hope the admissions officers see you as contributing to diversity. “They say, ‘Oh, no, no, you’re Asian.’ But this Asian thing is purely a statistical construct.”

Mr. Bernstein, 55, is the author of a recent book, Classified, that traces the haphazard codification of the federal government’s racial labels. “We created these classifications in 1977 in a very different America, right, that was primarily black-white,” he says. “Now we have all these other groups, and we have much more division within the groups, and we’ve barely changed them at all.”

The decisive player in the ‘70s was the Ad Hoc Committee on Racial and Ethnic Definitions, set up under the Federal Interagency Committee on Education. A task force with three interested federal workers—Mexican-American, Puerto Rican and Cuban-American—debated a Spanish-language label. The eventual result was a document with a title only a hardened bureaucrat could love: Statistical Policy Directive No. 15.

Issued by the Office of Management and Budget in 1977, Directive 15 set definitions for the racial categories we mostly know today: white, black, Asian and Native American, with an ethnicity option for people of Hispanic heritage, who can be any race. In 1997 a Native Hawaiian and Pacific Islander grouping was split off. A complaint from Hawaiians, which echoes today, was that colleges treated them as Asians.

In a country that’s far more diverse five decades after Directive 15, its labels show up everywhere from college applications to clinical trials. The problem is that these blunt categories are arbitrary and historically contingent. “Asians are supposed to have descent from the original peoples of Asia, whatever that means,” Mr. Bernstein says. That grouping covers half the world’s population and a dizzying number of ethnicities. Yet according to the feds, Asia ends at the Pakistan border. Pakistani-Americans, like Japanese-Americans, are classified as Asian. Afghan-Americans are officially white.

The black classification covers anyone with origins in “the black racial groups of Africa.” Well, Mr. Bernstein asks, “what do you do if you’re an Aborigine from Australia?” He also cites immigrant diversity that’s missed by Directive 15, since 21% of black Americans are first- or second-generation.

The Hispanic category includes immigrants from Spain, as well as people with indigenous heritage in places such as Mexico, even if those ancestors spoke no Spanish. The U.S. has something like three million black and Asian Hispanics. The government uses “Latino” as a synonym, yet it excludes Brazilians—except that the Transportation Department counts “Portuguese culture or origin” as Hispanic in its Disadvantaged Business Enterprise program.

The Native American label requires “tribal affiliation or community attachment,” but for all the jokes about Elizabeth Warren, those ties can be distant. Some reports say the Cherokee Nation has members enrolled with 1/4,096th ancestry. For the record, Ms. Warren’s DNA test suggested she was at least 1/1,024th.

As for the white classification, it covers Cajuns, Quebecois, indigenous northern Scandinavians, Greeks, Arabs, Iranians, and most Jews, not to mention people who see themselves as simply American but whose parents or grandparents identified as minorities. A push for a multiracial category faded as the census began to let people check multiple boxes in 2000.

Things could have been different, which is a theme of Mr. Bernstein’s book. The government in the 1970s might have thought the term Hispanic too broad for rooting out discrimination. Today about a third of U.S. Hispanics accept terms such as mixed race or mestizo, and the feds might have created a category like that.

Immigrants from the Indian subcontinent might have been labeled white. That was the recommendation of the ad hoc committee in the ‘70s, and federal agencies were already coding them that way. After lobbying by an Indian-American organization, Directive 15 moved them to Asian.

Some white ethnicities might have gotten a dispensation as well, except their lobbying failed. One study said big Chicago companies had few officers who were Polish-American, a group that was 20% of the city. When the Supreme Court first took up college race preferences, in Regents of the University of California v. Bakke (1978), Leonard Walentynowicz filed a brief for Polish organizations that attacked “giving preference to one kind of White ethnic group (Hispanic) without showing why other White ethnic groups similarly situated have not even been considered.”

What if such efforts had succeeded? Mr. Bernstein cites a 1963 book by Nathan Glazer and Daniel Patrick Moynihan, Beyond the Melting Pot, which grappled with the persistence of Italian and Irish and Jewish niches in New York. Even in the 1980s, Mr. Bernstein says, “we still talked about the ‘unmeltable ethnics.’” The punch line from today’s vantage: “All these groups have melted, right, since then, very quickly.”

If the government had tracked Italian-Americans separately and given them affirmative action, “would that have led Italian-Americans to be more cognizant of their Italian-Americanness, and to organize politically that way?” Mr. Bernstein asks. “I think the answer is probably yes, although it’s hard to know.”

A similar imponderable involves religion. Mr. Bernstein says if he were giving book talks in the 1950s, “most people in the audience would have looked at me, and looked at my name, and said, ‘There’s a Jewish guy.’” These days, “most people just say, ‘There’s a white guy.’” Right now the president, House speaker, Senate majority leader and most Supreme Court justices are Catholic or Jewish, which goes remarkably unremarked. What would JFK say, and what if there had been faith-based affirmative action? “To what extent would the government intervening,” he asks, “actually retard what we consider progress?”

There’s also the matter of how Directive 15 as it exists has shaped identity. “I grew up in New York,” Mr. Bernstein says. “As a kid, there were no ‘Hispanics.’ There were Colombians and Puerto Ricans, you know.” When his college’s former president, born in Spain, was noted as a diverse leader in academia, Mr. Bernstein recalls thinking: “Why does that make him any more diverse than if he was from Italy or Norway or wherever?” Or see the remake of “West Side Story.” Steven Spielberg gushed about its sensitivity toward Hispanics after filling the role of Maria, a Puerto Rican, with an actress who’s Colombian- and Polish-American.

This summer the White House began considering revisions to Directive 15. One idea being floated is to combine race and ethnicity, putting Hispanic on par with white or black. Another is to add a check box for Middle Eastern or North African ancestry. “Do I look white to you?” Rep. Rashida Tlaib, a Palestinian-American, once asked the Census Bureau director. “Circling ‘white’ on the census changed my lived experience as a person of color.” Amid the 2010 census, activists urged Arab-Americans to ‘check it right, you ain’t white.” The proposed alternative was to choose “other” and use the write-in field. Well over 80% of Arab-Americans disregarded the instruction and picked white, Mr. Bernstein reports.

He has other ideas, though probably not to President Biden’s liking. France famously refuses to collect racial data, though the U.S. is unlikely to take a step that would complicate enforcement of civil-rights laws. “I don’t say we’re never going to have any classifications for any reason,” Mr. Bernstein says. “But if you’re going to use them, use them in a way that makes sense for the goal you’re trying to achieve.” The FBI’s hate-crimes statistics, for instance, don’t follow Directive 15.

Perhaps there could be a rule, Mr. Bernstein says, “that before you ask people to check the box, that you have to have a compelling interest,” which is also a constitutional precondition for government to treat people differently based on race. If the public wants to redress historical wrongs, maybe it could focus on descendants of slaves and tribal members on reservations, “two classifications that, while they are strongly correlated with race, are also not actually racial classifications.”

Another rule might say racial labels can’t be unwillingly imposed. “If you fill out a mortgage application—I know that’s one example—and you just don’t check your race, the mortgage broker is required to guess,” Mr. Bernstein says. “That’s not appropriate for a free society.” But as long as it’s happening, he’s skeptical that opting out of the check boxes accomplishes much.

In biomedical research, Mr. Bernstein thinks Directive 15 should be banned. He points to an NPR story last year that said Moderna’s Covid-19 vaccine trial was delayed “a week or two” after Francis Collins, then head of the National Institutes of Health, insisted on more minority participants. As Dr. Collins recounted, he told Moderna: “You may have a vaccine that turns out to be safe and effective for white people, but you will have failed, and we will not defend you.”

Mr. Bernstein sees that as politics invading science. “The government wasn’t saying, ‘Oh, we’re concerned about specific genetic subgroups that may be more susceptible to this or that,’” he says. It was a public-health PR move under Directive 15, and especially unscientific for Hispanics. “Even to the extent that race can be at least correlated with genetics, that’s not true for Hispanics, because they’re from everywhere.”

Race remains a heated topic, but Mr. Bernstein is optimistic about the trend lines. As of 2015, the share of newlyweds with a spouse from another category was 29% of Asians, 27% of Hispanics, 18% of blacks and 11% of whites. (The Pew Research Center notes that if the figure for whites looks low, it may be “simply because most potential partners are white.”) What will happen to minority contracting preferences when a majority of citizens qualify for them? If the future looks like Tiger Woods, who once called himself “Cablinasian,” then Directive 15 might be obsolete.

As for Harvard and UNC, the Supreme Court said in Bakke that the only legal rationale for racial preferences in admissions is to ensure campus diversity. Yet clumsy Directive 15 terms are all over the current parties’ briefs. Schools use those labels in reporting data to the Education Department, Mr. Bernstein says, which might be why admissions offices follow them off a logical cliff.

“When has anyone ever sat down, including Harvard and UNC, and explained why these specific classifications, made for other purposes, are coextensive with diversity?” Mr. Bernstein asks. “One of the claims against affirmative action used for diversity purposes is that it’s a stereotype, that all X are the same.” No one actually thinks “that Indians have anything in common with Filipinos, other than this arbitrary geographic classification.”

Yes, Filipinos, from an archipelago of Pacific islands, are counted as Asian, not Pacific Islander. Go figure. As with the rest of Directive 15, this isn’t only a practical objection but a legal one: “An arbitrary classification,” Mr. Bernstein says, “is the hallmark of what violates the Equal Protection Clause.”