Tomorrow is the official publication date for Scalia Law School professor David E. Bernstein’s excellent—and timely—new book, Classified: The Untold Story of Racial Classification in America. In providing a history of American racial and ethnic classifications, Bernstein shows that those classifications are “arbitrary and inconsistent” and “do not reflect biology, genetics, or any other objective source.” Instead, our government “developed its classification scheme via a combination of amateur anthropology and sociology, interest group lobbying, incompetence, inertia, lack of public oversight, and happenstance.” That scheme has fostered a broad system of racial and ethnic preferences even as it has spawned “an unsound racialism in science and medicine.”
Relatedly, Bernstein has submitted an amicus brief in the big cases involving racial preferences in admissions at Harvard and the University of North Carolina. Here are some excerpts:
This brief identifies two problems with the way schools such as Harvard and UNC sort applicants based on race and ethnicity.
The first problem is that Harvard and UNC use racial and ethnic categories that are arbitrary and irrational in the context of pursuing diversity. The way these schools classify students cannot pass rational-basis scrutiny, much less the requisite strict scrutiny.
For example, Harvard and UNC cannot justify grouping people whose national origins represent roughly 60% of the world’s population together as “Asian,” despite vast differences within this category in appearance, language, and culture. Nor can they explain why white Europeans from Spain, people of indigenous Mexican descent, people of Afro-Cuban descent, and South and Central Americans who may be any combination of European, African, and indigenous by descent are grouped together as “Hispanic.”
The second problem is that Harvard and UNC rely on applicants’ self-identified race. Self-identification is highly susceptible to inaccuracy and disparate treatment of similarly situated applicants. This is due to fraudulent and exaggerated claims of minority ancestry, confusion about how students should self-identify, and inconsistent classification of multiracial applicants….
There was never even a hint in the development of the categories that they were established for achieving educationally beneficial diversity in higher education….
Neither Harvard nor UNC has explained why a white Catholic of Spanish descent, classified as Hispanic, gets an admissions preference for contributing to educational diversity, but a dark-skinned Muslim of Arab descent, an Egyptian Copt, a Hungarian Roma, a Bosnian refugee, a Scandinavian Laplander, a Siberian Tatar, or a Bobover Hasid—all classified as “white”—do not. Similarly, it is hard to see how diversity is better accomplished by admitting an additional “Hispanic” student of Mexican ancestry over an equally or better qualified student whose parents immigrated from Turkmenistan, who would be the only Turkman in the entire student body, because the Turkman is arbitrarily classified as “white.”
A system of self-identification also has no way of ensuring consistent treatment of multiracial applicants. As Judge Danny Boggs once observed: “A child might be born who would, in today’s conventional terms, be held to be one-half Chinese, one-fourth Eastern-European Jewish, one-eighth Hispanic (Cuban), and one-eighth general North European, mostly Scots-Irish.” Suppose that child applied to Harvard, identified as Hispanic, and received a race-based advantage. Now suppose that child’s younger sibling applied to Harvard, identified as Asian, and received a race-based penalty. Even though the two siblings have the same ancestry and grew up in the same family, their different (legitimate) self-identifications would result in vastly different chances of admission.