Talks With Authors: Classified: The Untold Story of Racial Classification in America

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Ryan Lacey:  Hello, and welcome to this Federalist Society webinar. This afternoon, September 6, 2022, we have a Talk with Authors webinar to discuss Classified: The Untold Story of Racial Classification in America by Professor David Bernstein. My name is Ryan Lacey, and I'm an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinions are those of our experts on today's programs.

 

      Today, we are fortunate to have an interview with Professor Bernstein led by Cory Liu, whom I will introduce very briefly. Cory Liu is a Partner of the Ashcroft Law Firm. He previously served as Assistant General Counsel to Texas Governor Greg Abbott and clerk of the U.S. Court of Appeals for the Fifth and Sixth Circuit. He is a graduate of Harvard Law School and the University of Chicago.

 

      After our speakers give their remarks, we'll turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can toward the end of today's program.

 

      With that, thank you for being with us today. Cory, the floor is yours.

 

Cory Liu:  Thank you. Well, I'm pleased and delighted to be joined by Professor David Bernstein. He's the University Professor at the Antonin Scalia Law School at George Mason University and the author of the new book, Classified: The Untold Story of Racial Classification in America, which came out just this summer, so I'd love to hear about this book.

 

      And Professor Bernstein, can you maybe just give us an introduction? What's this book about, and why should people read it?

 

Prof. David Bernstein:  Sure. So we all know that when we apply for a job or for college or for a mortgage or for a lot of other things, there are boxes to check to say whether you're white or Asian American or Hispanic or black or so forth. And most people think, "Well, this is just a matter of self-identification. The institutions that are providing these boxes are sort of coming up with these boxes on their own."

 

      But it turns out, in fact—something that, frankly, I didn't know, and I think the vast majority of people don't know—that the racial classifications that we all live with day-to-day are actually the product of a government rule, Statistical Directive No. 15, that the Office of Management and Budget promulgated in 1977. And the reason they did it was because, with the passage of civil rights laws in the '60s and an increase in social science and other research from the government on different ethnic groups, they wanted to be able to keep track of civil rights compliance and how different groups are doing in the educational system, and they found that different government agencies were using different definitions.

 

      So for what we now call the Hispanic classification, there were some agencies that were using Mexicans and Puerto Ricans, some Mexicans, Puerto Ricans, and Cubans. Some used Spanish-speaking Americans. Some used Spanish-speaking households. Some used Spanish surnames. So the data was apples and oranges.

 

      So they just decided -- originally, "Cap" Weinberger, who was head of HEW during the Nixon Administration, decided, "Okay, we need to regularize these statistics, and let's come up with some definitions. And they're only supposed to be used for statistical purposes." So no one really paid that much attention. They gathered for the informal committee with subcommittees to figure out what the different groups should be called and how they should be defined, and those became the official definitions. And we live with these with very minor changes today.

 

      But, of course, as we all know, these did not stay restricted to government statistical record-keeping purposes. They spread to affirmative action. They spread to even government-mandated research rules that you have to have a certain number of these different groups. And the groups are kind of arbitrary and inconsistent with each other. Some are based on national origin. Some are based on racial origin. Some are based on community affiliation.

 

      The Asian American classification is not really internally coherent, for example. It includes everyone from people from Pakistan to people from the Philippines; people who have nothing in common in the way they look, in their religion, in their culture. They don't consider themselves Asian American if you ask them.

 

      So I thought it would be interesting both to look at how these classifications arose, how they're defined, and also how they're enforced because I had the suspicion that, despite there being nothing really in the law review literature about this, that because these could be a valuable attribute if you're applying for government contracts or for university admissions, there must be some cases out there in which the government says, "Hey. We don't think you're really Hispanic, or we don't think you're really black. Prove it."

 

      So I did some research, and I found a few dozen cases in which ethnicity was challenged by the government, usually involving Hispanics but also involving other groups. And I decided I would -- you know, I wrote, first, a law review article about this in the Southern California Law Review. "Hey. This is an interesting enough topic, and it's sufficiently obscure in the actual literature that I should write a book about this."

 

      So the book really is about the history of racial classifications—again, how they came to be the way they are, how they're defined, how they're enforced, how they've spread to all aspects of society—and, of course, in the end, what we should do about them.

 

Cory Liu:  So you talk a little bit about the research you did, and you talked about the statistical directives. How did you go about starting and conducting your research and finding out all this information?

 

Prof. David Bernstein:  Well, actually, I started off, as law professors often do, by hiring a research assistant. And my original plan, as I recall, was to talk about the inconsistencies in the way different federal agencies and different states describe or define these different groups.

 

      Because I was aware of at least one case in New York, for example, where Hispanic in New York does not include Spanish speakers, and Hispanic, for federal purposes -- sorry, Spanish immigrants and their descendants -- and Hispanic in federal law does. And someone in New York sued and said, "This violates Equal Protection. It's irrational for the federal government to consider me Hispanic for affirmative action purposes for government contracts but for the State of New York not to." And the Second Circuit said, "It's okay." But the real issue was, "Ha. That's interesting. There's a different definition." And I thought there -- and I also knew the Department of Transportation—I somehow found out—considers Portuguese and Brazilians to be Hispanics, whereas other government agencies don't. So I thought it was going to turn out to be an exploration of all the different definitions we have of these different groups. And I do have some of that in the book and in the original law review article.

 

      But then it turned out that I discovered, as I did my research, that Statistical Directive No. 15 really actually created uniform classifications that are used almost entirely throughout the federal government, and it's only the occasional agency like the Department of Transportation that somehow demurs from those.

 

      So it actually then became, "Well, that's weird that we have this one group with one classification. How come no one ever talks about it?" I actually did a search in Westlaw. There's—I don't know—six or seven citations in Statistical Directive No. 15. So it may be the most influential government rule that you've never heard of. It affects so much of day-to-day life.

 

      And of course, one thing that also struck me is, “Well, there are some white people, if they happen to have Spanish-speaking ancestry, who are defined as minority groups. What about other groups like Italian Americans or Polish Americans or Greek Americans or Jewish Americans or Armenian Americans? Were they ever considered minority groups? And why did we decide that it's only the specific groups that we had?”

 

      So I also have a couple of chapters devoted to what we now consider to be white groups and controversy over whether they should be included. I guess the most pertinent one today is Arab and Iranian Americans because they have successfully lobbied the Biden administration to at least explore recommending that they be classified, not as white, as they generally are today, but instead, as part of a new Middle Eastern and North African classification.

 

Cory Liu:  So what I'm hearing you say is, before this directive came out, different agencies had different categories, and it was possibly inconsistent or just different. And then, even today, like you're describing now, these categories are evolving. Different groups are speaking out and trying to argue for different reclassifications.

 

      So how did these -- in this process of trying to come up with a uniform set of categories, what was that like, and was it anthropological research or science? Or how did they end up settling these different versions of how different people were classified?

 

Prof. David Bernstein:  I mean, really, to put it bluntly, it was almost entirely arbitrary. But let me go -- I'll get to that in a minute. Let me just go back a little bit in history.

 

      So the federal government -- the only time the federal government really ever classified anybody was for two purposes: immigration because of the Asian Exclusion Act, which prohibited people defined as Asian from getting into the United States. But even then, it wasn't really defined. The Supreme Court ultimately had to decide who was on the right side or the wrong side of the border to be depicted as Asian. Eventually, the western border of Pakistan was sort of chosen as the dividing line kind of arbitrarily. And then, also, on the census, was basically you could be one of the Chinese, Japanese, Filipino, black, American Indian, or white. Those were your choices. But other than that, the federal government didn't classify.

 

      But then, in the 1950s, President Eisenhower, and later, President Kennedy, established executive orders prohibiting discrimination in contracting. The problem was that you could ask contractors to sign a pledge that they don't discriminate, but how do you know if they're discriminating if you don't know who their employees are? And obviously, if you have, say, a guy building roads in Georgia, and he has no black employees in the 1950s, that would be a sign that you should investigate further.

 

      So they created these forms asking employers, "Do you employ these groups, and how many?" And they started off with "blacks and others," which "others" specifically said, "for example, Jews and Mexicans." And eventually, Jews were dropped off the list. Mexicans were added as Spanish Americans, as a euphemism for what was primarily Mexicans but also Puerto Ricans. And Asian Americans were added. There were very few Asian Americans, relatively speaking, in those days, so they were added without anyone really thinking much about it. Basically, we had the visible minority—Mexicans.

 

      Because here's what I didn't really appreciate as much as I could have in the book. I have come to appreciate it more as I think about it. At the time, there was a strong legal and social norm that if you were a progressive liberal employer, you did not ask people about their race or religion. That was considered forbidden and an invitation to discrimination.

 

      So how do you decide which groups you're going to monitor for discrimination? After all, there's a lot of discrimination against Catholics and Jews and among other -- and Italians, and so forth. But if you can't ask people what their ethnicity is, the only groups that you could actually report on are a visible minority. "Oh, that person looks Asian. And that person looks Mexican—" only darker-skinned Mexicans, of course. "That person looks like they have African ancestry, so put them down as black." So until the 1970s, all of these reports were by the employers, themselves, not by the employees. So it was the employers looking over how people look. So that was one reason.

 

      The second reason was ideological, which groups -- we think of African American as being the classic group subject to discrimination. Which groups are most analogous to them? And it was decided, both by the bureaucrats and by African American civil rights groups, that they were sort of accepting that at least some Mexicans and Puerto Ricans and Asians were racially analogous to African Americans and that they faced race discrimination, but Catholics, Jews, white ethnics, and such were not.

 

      So even as late as the 1970s, though, there were some federal agencies, when they kept statistics, that did keep an "other" category. They would count Cajuns in Louisiana or French Canadians in Vermont and New Hampshire and other local minorities that had faced local discrimination.

 

      But when the government decided to regularize its statistics, they, for no particular -- they just sort of set up a committee, and the committee decided, "We're not going to have an 'other' category. We're not going to consider the white ethnic groups or the religious minorities. We are going to consider Spanish-descended people—Spanish-language descended people." They show by example how arbitrary this was.

 

      They established a subcommittee to figure out what that classification should be. They got three volunteers from different government agencies—one Puerto Rican American, one Cuban American, one Mexican American—to represent the three largest Spanish ancestry groups in the country, and they put them in a room, basically, for a few months and said, "Hash out what this group should be called and what the definition should be." And they argued about it. They didn't consult any anthropologists. They didn't consult sociologists. They certainly didn't consult geneticists.

 

      And there was one woman, who I believe was the Puerto Rican representative, who was very insistent that they call it Hispanic and trace it to Spain. So they call themselves that. People who are directly ancestral—who have ancestral ties to Spain, itself, but not Latin America—are included. Brazilians are not included. Portuguese are not included. People from Argentina who have Italian or German ancestry are included. But they could have, for example, said, "You have to have some indigenous ancestry, otherwise, you're racially white," but they didn't.

 

      So that was the basic thrust of it. It was not done in any coherent way. No one was paying all that much attention. You go back to the New York Times, the Washington Post, there aren't any big stories about government about to create permanent classifications for all government programs. It was not secret, but it was very much not well-publicized either. No one really recognized the importance at the time.

 

      But we wound up being kind of stuck with these because, as you might expect, as soon as these groups were created, not only did they become the basis for affirmative action programs and so forth, but lobbying groups developed around them. And no one's going to say, "Oh, well, you know what? Let's make the Hispanic group smaller," because then they would lose constituents. "No, let's not include people from Africa and the African Americans classification because then we lose constituents."

 

      So if anything, the groups have expanded. Their definitions have expanded slightly, but we've been stuck with these sort of arbitrarily created categories ever since. And in fairness to the people who created the classifications, when OMB published the rules for these new classifications in the federal register, they very specifically said, "These are not anthropological. They're not scientific. And they're not to be used for eligibility for any government program."

 

      So one of the great ironies is that they immediately were used for eligibility for government affirmative action programs. And when we get to things like diversity and higher education, universities will say, "Well, we have to do this because we want diversity in our universities."

 

      No one at the time ever thought, "We are creating classifications for diversity purposes." No one sat down and said, "Well, if you want a diverse class with all different perspectives, what groups should we consider, and how shall we define them?" These were really only meant for statistical convenience and especially for anti-discrimination enforcement.

 

      For that purpose, they're not ideal, but they're not terrible. But when it gets to things like deciding who gets included for diversity or deciding which groups were excluded historically from the construction market and, therefore, should get preference for road-building contracts, why you would include, say, someone whose ancestors immigrated from -- who, himself or herself, immigrated from India 70 years ago and became an American citizen, no one has ever been able to explain that. And I don't think anyone reasonably can.

 

Cory Liu:  So you've already touched on this a little bit, but how exactly are you supposed to -- what are the scope of these categories? Can you just walk us through the current -- at least as the government defines them? What are the categories? And maybe talk about some of the challenging or confusing or inconsistent parts of it in terms of how these definitions are made.

 

      So let’s say you're filling out the Common Application. You're applying for college. You see these boxes. What is the applicant -- and a lot of people have talked about being confused by these and not even being sure how to self-identify. But what, at least, is the government's way of defining these categories?

 

Prof. David Bernstein:  Sure. So one thing I should mention, since you raised it, is that while the government does have official definitions, one of the oddities of our whole system is they never provide those definitions when you're actually filling out a form. So I was looking at the Common App because my daughter's a high school senior and applying, and it just says, "Which of these do you identify with?" And it just lists the classifications but doesn't actually tell you how you know whether you're in one of them.

 

      But to the extent we are following the official definitions, for white, it’s anyone who is descended from people who live anywhere from Iceland to The Caucasuses to the Middle East to North Africa. So anyone from Iceland to Morocco to Turkey to Armenia to Azerbaijan are all classified as white.

 

      For African American—or black, as the category is now known—it's anyone who is descended from "one of the black racial groups of Africa." That does not include Egyptians. It does not include whites who are from Africa. It does not include Moroccans and so forth. It does include people who immigrate from Nigeria or Kenya or Somalia and move to the United States. There was some question—and it would be in the '80s when immigration from Africa really picked up—"Are these really African Americans? They're early immigrants. They haven't faced centuries of Jim Crow and slavery and so forth." And it was, again, without much public discussion, decided they would be included.

 

      The Hispanic classification includes anyone of "Spanish culture or ancestry." So technically, if you have a Spanish-speaking ancestor, then you could identify anywhere in the world—or even someone who wasn't Spanish-speaking but from a Spanish-speaking country like Basque -- people of Basque descent from Spain, people of indigenous descent from Mexico. Your ancestors don't actually have to have ever spoken Spanish for you to be—at least not as their first language -- for you to actually be Hispanic. But if you're descended from any country where Spanish is the general language, then you are considered to be Hispanic.

 

      Oddly enough, if you are Hispanic, and you moved to Asia—your family lives in Asia for 100 years—you never become Asian because Asian is defined racially. If you're Asian, and you move to Latin America—your family moves there—and then they move to the US, you are both Asian and Hispanic. So that's one of the real oddities of the whole system.

 

      Asian is defined as being descended of one of the original groups of Asia. It does include three different ethnographic or genetic groups, if you will. Filipinos are mostly Austronesians—they’re mostly related to Hawaiians and to the Māori, and so forth, more than to East Asians. East Asians and people from South Asia, who are ethnically diverse themselves, but are generally not, are Caucasian—more related to Europeans than they are to East Asians.

 

      The original draft of the classification scheme that went into Directive 15 did not include South Asians as Asian. They were mostly being classified as white at the time. But an Asian American group that was quite small at the time lobbied to have it changed at the last minute, and they were successful. No one really -- there weren’t a lot of -- it was mostly Indians, and very few people cared one way or the other whether Asian Indians were included. They cared, so they were put into the Asian classification.

 

      Originally, there was an Asian American Pacific Islander classification. In 1997, one of the few changes was that Asian American Pacific Islanders were broken off into two separate categories, and now there's a Hawaiian native and Pacific Islander classification that's separate. That came about because native Hawaiians found that they were having trouble getting into colleges in California because they were considered part of an "over-represented" group along with other people in the AAPI category. So they said, "Well, that's not fair. We were colonized by Americans—white Americans—and we have low socioeconomic indicators on average. Why should we be included with Chinese and Koreans and so forth? We want our own classification." OMB said, "You're not big enough to have your own classification."

 

      "Okay. Well, put us with Native Americans and Native Alaskans." Native Americans didn't want them because they didn't want to share the Bureau of Indian Affairs resources with them. So they finally compromised and put them together with Polynesians into this classification.

 

      Similarly, by the way, if you are a 100 percent indigenous Latin American origin person, you are not an American Indian or a Native American because, again, the classification's limited to American and US and Canadian Indians because of lobbying from American Indian groups that don't want to share Native American resources. I think I've covered all of those.

 

      So the current controversies, which would be the relevant next question, I guess, were again, “Should we have a separate Middle Eastern/North African classification?” There is some lobbying with the Biden administration. They're going to consider whether they should break up the Asian classification. Most Asian Americans don't consider themselves to be Asian Americans. And again, it's such a broad category that includes people who are so disparate that there is some sense they should be separated. And finally, there's been talk off and on over the decades of changing Hispanic from an ethnic classification to a racial one.

 

      Oh, there's one final point. You're not allowed to check off multi-racial. Originally, you could only check one box. So you could be Hispanic or white, or Hispanic or black. Nowadays, since 1987, you first check off whether you're Hispanic or not, and then you check off your race. But some Hispanic groups, who originally opposed having Hispanic be a racial classification, now think it would be advantageous, so they are now lobbying to have the Biden administration change Hispanic to a racial classification.

 

Cory Liu:  Well, that's fascinating. As an Asian American, according to the government, I've always wondered, "Where do these classifications come from," right? I mean, if I talk to my relatives from China, and I say, "Are you of the same race as people in India?" they would be confused. But it's only in America, here, that because of politics and, I guess, as you're describing, these arbitrary decisions from bureaucrats that they get lumped together.

 

      And it's very interesting to me that, actually, as you were saying, people from India were, at some point in time, treated as possibly Caucasian, and then over time, that evolved. And so that's just very curious how these all came about.

 

Prof. David Bernstein:  Well, one other thing I had mentioned about this is—this is ironic, and it has some basis—when they had to decide in the '70s what classifications to make, what they really did was recreate the traditional racist classifications that Americans had lived with in the 19th and early 20th century. So the Asian classification was defined, ultimately, the same exact way it was defined under the Asian Exclusion Act as including, for example, people from India but not including people from the Arab world, which is exactly what the Supreme Court held in the 1910s and '20s.

 

      Now, you can argue, "Well, that makes sense because they were discriminated against as Asians before, so they should be in the same classification." But on the other hand, the classifications, themselves, had this racist basis where the government—or the Supreme Court, for example—say, "Well, yeah, Asian Indians are Caucasians, but they're not white people. At least, people don't think of them that way." So it's weird to recreate that, but it was the most convenient way of doing it, right?

 

      We have this traditional racist color scheme that anthropologists came up with in the 19th century: yellow for Asia, black for Africa, white for Europe, and brown for people of partial or full Native American descent in Latin America. And we basically follow that as kind of -- if it was only being used to keep statistics, maybe it wouldn't be so problematic. But it actually affects both people's own self-identity and how other people think of them.

 

      And it's a little weird to think that if you think of someone being an Asian American, it's not something that Asian Americans themselves primarily came up with. It's not something that people used on their own. It's not something people even identify with today, mostly. It's something that the government kind of imposed on society, again, relying on a long-standing racist classification.

 

Cory Liu:  Yeah. So I talked with one of my former coworkers about this issue as well. He’s British, and so I asked, "Over there, how do you guys use the term Asian?" And he actually said that over there, Asian, typically, is more commonly thought of as people from India. And then Chinese—or actually, I guess, the old term would have been Oriental—would have described people from East Asia.

 

      And so, it's interesting how, in the US, we had one way of talking about it. And then, even in Britain, another English-speaking country, it was kind of the opposite. And so, it just kind of goes to show how arbitrary and culturally defined and ever-shifting these labels are.

 

Prof. David Bernstein:  Yes. So I mean, two related [inaudible 24:54]. One is that I was in Hawaii last year, and we went to one of the old plantations, and they had each of the ethnic groups that worked on the plantation—and I think it was a pineapple plantation or a banana plantation; I don't remember—had their own little village within the plantation. Not surprisingly, there wasn't an Asian village. There was a Korean area, the Japanese area, the Chinese area, and also the Portuguese laborers -- Portuguese area, that had their own customs and this and that.

 

      And of course, over time, historically in the U.S., Chinese and Japanese, because of the various wars between China and Japan, were not always all that amicable toward each other. And Filipinos didn't think of themselves as being related at all to either group.

 

      But then the other thing that was kind of funny was last year—no, two years ago, I guess—during the election season, I was listening to NPR, which I can't stand listening to anymore. That was sort of the end of my rope with them. But they had a whole week where they said, "We're going to be visiting -- we're going to focus on Asian American politics in the 2020 election." And then every day it was like, "Oh, today, we're going to the Chinese American Democratic Club of San Francisco." And next, it would be the Korean American Republican Club of Atlanta.

 

      And it was never -- there was no Asian Political Club because, again, these are different ethnic groups. You wouldn't expect, during the big wave of European immigration, for Italians and Scandinavian and Polish immigrants to be in the same group. You wouldn't say, "Hey, we're going to go to European Americans to talk about politics."

 

      And it's the same thing. I mean, it's sort of racially and ethnically reductionist to take groups that have different cultures, different languages, different histories, often long histories of animosity, at least back in their home countries, and sort of just decree by fiat that they are all part of the same government-created group.

 

      And the same's sure of whites, for that matter. I mean, I'm embarrassed to say that I got through writing most of the book and was almost done before I said to myself, "You know, I've just kind of been assuming that white is a natural group that makes a certain amount of sense. But why is that?"

 

      What does a Bobover Hasid in Brooklyn have in common with an Appalachian Scotch-Irish person's family that's been in the country for 400 years? And what do they have in common with a recent Irish immigrant working in the high-tech industry in Silicon Valley? Right? I mean, we could call them all white, but I think I quote somebody else as saying that "White is also a sort of government-created pseudo race." It's not ethnographically coherent because then geneticists could divide up whites into quite a few different groups. But it's also not ethnographically coherent in thinking that people from Afghanistan and Azerbaijan are just like people from France or England, who are just like people from Greece and Crete.

 

Cory Liu:  Yeah. So another anecdote: in the ethnic bar associations there's often an Asian American Bar Association, and I find that sometimes it's more frequently East Asians and Southeast Asians. But there's also some South Asians, like people from India, who participate. But there's also South Asian Bar Associations.

 

      So you kind of see people sort of end up breaking up into different groups, and that just kind of illustrates the arbitrariness of Asian as a category that covers, really, 60 percent of the world's population.

 

Prof. David Bernstein:  Yes, I'm a law professor, so I'm not a sociology anthropologist. This was not the main focus, but I did learn a lot about this sort of thing just in researching the book, not all of which made it into the book because I try to keep my narrative nice and tight and coherent. 

 

      But not only—so I looked it up at some point—every major university has a separate South Asian student group. And in many universities, especially larger universities that have a lot of graduate students, they have the Asian American group, which will be mostly East Asians. Then they'll have a separate South Asian group, which will be American-born South Asians. But then, the graduate students will have a separate Pakistani and Indian graduate students' association.

 

      So, of course, Pakistanis and Indians -- I won't say it's -- maybe saying they hate each other is too much of a -- too strong, but they're obviously two countries that have long-standing religious and national tensions. And they all think of themselves as being South Asians. They think of themselves as being two completely separate groups. You'll actually have multiple different Asian groups, not just the two.

 

Cory Liu:  So everything we've talked about -- we mentioned some about college admissions, but I wonder if we can go a little deeper into that. So a lot of these ideas that Professor Bernstein and I are talking about, we had a chance to submit an Amicus brief to the U.S. Supreme Court in Students for Fair Admissions v. Harvard.

 

      And so maybe can you just describe for the audience a little bit, first of all, what the Supreme Court has said on the consideration of race and college admissions? And then maybe apply some of the findings from your book into what are some things the Supreme Court hasn't yet addressed and maybe needs to address in order to provide a satisfactory answer on how to address the issue.

 

Prof. David Bernstein:  Sure. So the Supreme Court has held that considering race in college admissions is appropriate only for so-called "diversity" purposes. The original thought in Bakke v. California—Justice Powell's opinion as the fifth vote in that case was sort of the controlling opinion—was they could use race for diversity purposes in order to sort of -- just like you'd want to have college athletes to fill the football team and musicians for the musical ensembles to add to the college experience, it's good to have a diverse student population.

 

      That was accepted and elaborated upon in the Grutter opinion and also suggested that we want to have people representing different groups so that we could develop leaders from different groups. But the one thing -- and that in itself is, of course, at issue—whether the Supreme Court should stick to that.

 

      And I think there's some issues with that rationale on a variety of grounds, including the possibility that you are stereotyping people as all having the same views because they're from the same group, that schools are really using implicit quotas even though they claim to only be using it for diversity purposes, and also that it's not really clear that -- for example, law schools use race. But law schools don't really usually care about diversity, right? I mean, your LSAT and GPA are the vast majority of what they consider. They don't really care if you're an oboe player or a football star or whatever. So even if undergraduate universities are permitted to do it, it's not really clear why it applies to grad school.

 

      But all that said, one thing that really hasn't ever come up in the Supreme Court except in occasional dicta or questions at oral argument—it had never really been explored in the opinions in any meaningful way—is why these classifications? For example, the Supreme Court, for reasons that I could go into—historical reasons—refers to the way that the Department of Education counted Hispanic for a long time—counts Hispanicity as a race. But in fact, under the laws that the universities are actually applying—the Office of Civil Rights uses Directive 15 now—Hispanic as an ethnicity. So why do we care about Hispanic ethnicity, but not any other ethnicity, if what we care about is diversity?

 

      An example I've given is—I think we have this in our brief—you have, already, 2,000 Mexican Americans being admitted to the University of Texas. You have two last students who are applying. One of them -- who you're deciding between. One of them would be your 2,001st Mexican American. And the other would be your 5,000th white student, but the only Turkman from Turkmenistan in the entire class, maybe the only Turkman who's ever attended the University of Texas. Now, if you're just looking at ethnic diversity, clearly, the first Turkman would actually add more diversity than the 2,001st Mexican American, but the Turkman is just put into the white classification, and therefore, isn't adding diversity at all.

 

      Similarly, when we talk about Asians -- I hate the term "overrepresentation" because I don't think there's such a thing, but if you had "overrepresentation" of Asian Americans --  Asian American, again, covers a wide range of groups. Some groups, like Asian Indians, like Chinese immigrants, are "statistically overrepresented" in colleges, but some don't do very well in higher education, statistically speaking, like Hmong refugees or Burmese immigrants to the United States.

 

      So once again, you might be the first Burmese or the first Hmong to be applying to the University of Texas, but they'll say, "Oh no, you're Asian, so you don't count." You're just lumped in with the Asian group. And the people from this group could say, "Wait a second. But I don't think of myself as Asian. There's no such thing as generic Asians. I am a Hmong refugee. My grandparents came here in '75 penniless. I have nothing to do with some Asian Indian who maybe had graduated from a nice university in India and came to Silicon Valley to work here, and their kid's now applying. Why should I be lumped in ethnically with a group that I don't really find anything in common with?"

 

      And I think they have a point. If diversity is the true value, why are we just using statistical classifications created for entirely different purposes that no -- as far as I'm aware, not a single university, in any litigation, or ever in its history, has sat down and said, "Okay. We want diversity. Let's pretend that government-mandated classifications don't exist. If we really wanted an ethnically diverse class, how will we define that? What groups will we look to? And how will we recruit them?"

 

      Instead, they have just naively or purposefully or whatever you want, or willfully, just taken statistical classifications that were not invented for that purpose, that were not even considered for that purpose, and applied them as if they are the be-all and end-all.

 

      And if you think about it, if the standards are supposed to be strict scrutiny—the standard is strict scrutiny—there's supposed to be narrowly tailored classifications. If none of the universities in question, whether it be Harvard or anybody else, have ever sat down and thought, "Are these really the proper classifications for ethnic diversity, or are we just using some statistical device that was amended for other reasons?" I don't see how it could pass even rational-basis scrutiny, much less strict scrutiny.

 

Cory Liu:  Yeah. And going back to looking at the different court opinions, just trying to understand what our universities are doing and what the courts are saying about it, I followed the pleadings in all these different cases. And the only reference I've seen to Asians have been in official litigation, the district court -- the Western District of Texas, Judge Sparks, his only mentioned is Asians are overrepresented—I mean, italicizes overrepresented—and he just leaves it at that. He doesn't explain why the Asian capital -- what the Asian category even means, why it's appropriate, and how that could be a basis for treating different students differently based on their race.

 

      And then, in the second Fisher case, Justice Alito cites amicus brief that discusses experiences of  Asian Americans, and he raises this concern of both lumping everyone together and then whether it's appropriate to be imposing race-based costs on what is, extensively, a racial minority group.

 

      Another issue that we address in our amicus brief is this issue of self-identification and how do universities determine what an applicant's race is. Pretty much, it's just based on self-identification, like you said, on the Common Application. And actually, there's an exchange from the first Fisher oral argument where Chief Justice Roberts asks the lawyer from the University of Texas, "Do you do anything to verify the self-identified race of the applicants?" And the lawyer says, "No, I don't think Harvard does it. I don't think any school does that."

 

      So can you say a little bit more about what implications that might have for this strict scrutiny narrow tailoring issue?

 

Prof. David Bernstein:  Well, it just leaves a lot of additional arbitrariness in the process because there are -- every time I talk about this book, just about, I get some story about someone somebody knows who was born in South Africa or Tanzania or Egypt but who is Caucasian, who put down African American, and no one generally checks, like they said.

 

      I don't know. I can't verify these. I know of at least one verified story like that, but I can't verify all these stories. But you hear it so often that it must occasionally happen. But I think people are less likely to claim they're black, but we know there is a tremendous amount of exaggeration and fraud with regard to Native American ancestry.

 

      We point out in the brief, and it's in the book, also, that someone did a study in the early 2000s, and they found that X number of people put down they were Native American when they were matriculating to law school. And then ten years later, only one-tenth of people who graduated in that class, who were lawyers, in the census, said that they were Native American.

 

      Now, of course, not everyone who goes to law school becomes a lawyer. But whatever. Obviously, if ten times as many people are saying they're Native American on their applications, who are self-identified as such on the census, that's a lot of people who don't really think of themselves as Native American in day-to-day life, who are putting it down for advantage in admissions.

 

      This raises the issue of what another law professor calls "identity entrepreneurs—" people who sometimes fraudulently but, oftentimes, more like in an exaggerated manner, claim an ethnicity that doesn't really affect their day-to-day life. And it may not be they're violating any rules. Like I said, the definition of a Hispanic is that if you have any -- if you are of Spanish culture or ancestry.

 

      So there's an actual case in the Small Business Administration bureaucracy among administrative law judges where someone who didn't have a Spanish-sounding name, didn't speak Spanish, didn't claim any ties with the Spanish-speaking community, said, "Well, my ancestors were Sephardic Jews who were expelled from Spain in 1492. I’m Hispanic." And the judge said, "Yeah. You are." First, they said no, but on appeal, they said, "Look. It says Spanish ancestry."

 

      So not everyone who has a Mexican great-great-grandfather or has a Sephardic-Jewish ancestor or who has other sort of vague Spanish-language ancestry, or Spanish national ancestry, will claim Hispanic, but they can.

 

      So one person who has a great-grandfather who is Mexican -- I mean, Mitt Romney could have claimed it based on the fact that his father, I believe, was born in Mexico after a bunch of Mormons fled to Mexico. Any other people whose ancestors, for example, fled Nazi Germany to Cuba in 1938, then came to the U.S. when Castro took power -- so they're in Latin America for 23 years or so, and they can justifiably claim that they—if their father or a grandfather was born in Cuba—are of Spanish-cultural ancestry.

 

      So there's a lot of wiggle room in how people define themselves, and no one does check. And for that matter, if you look at the Common Application or when you check employment boxes, no one tells you how to determine whether you identify as one of these groups or not. So there's room for exaggeration. There's also room for people just to make mistakes. You can legitimately figure it says, "African American." It doesn't define it. You might think that if you were born in Africa, but you happen to be Caucasian, that you're African American.

 

      There's also people's choices that they make. We point out in the brief that people aren't trying to game the system. You might have two brothers who have one Chinese parent and one Mexican parent, and one of them feels much more attached to the Chinese side of their heritage in their family, and one feels more attached to maybe their Mexican grandmother. So one puts down Asian; the other puts down Hispanic. You can actually put down both because of Hispanic ethnicity. But in any event, one could put down Asian, one could put down Hispanic, and they have the exact same background. They may look almost exactly alike, but one gets an admissions preference from Harvard, and the other gets an admissions—at least according to the plaintiffs, and I think they're right—one actually gets discriminated against in admissions.

 

      So there are just layers. There's the arbitrary classifications themselves. There are how they are arbitrarily defined. And there are how people arbitrarily self-identity. And in fact, there's data showing that if you ask people, "What is your ethnicity?" that you ask them again a year later, a third of people change, not necessarily the classifications used in affirmative action. For the census also, people change their race pretty frequently every decade depending on how they're feeling about their identity at the moment.

 

      So, to a large extent, there's racial essentialism built into our classification system. We just assume that we know who's black, who's white, who's Asian, and it's not controversial. And this, in fairness, made a certain amount of sense in the early 1970s. Circa 1972, Mexican Americans were considered to be white before we decided to have a Hispanic classification. So we had 90 years, almost 90 percent of the population was white, about 12 percent was black, and then we had less than 1 percent Asian American and less than 1 percent who were Native American. And a lot of the Native Americans were mixed race.

 

      And in any event -- so basically, we had black, white, binary. And given the one-drop rule, historically, and given the social disadvantages of being African American, we felt we could tell. No one's getting identified as African American if they’re not. And everyone knows who's African American and who's white anyway.

 

      But no one anticipated, and then no one expected at the time, was both the massive wave of immigration we've had from Latin America and Asia since then, such that now Asians and Hispanics together are more than double how many African Americans there are. And also, the huge rate of intermarriage that we have, such that there are many millions of Americans, and growing every day, who have mixed ancestry and who could claim different ancestries depending on what they think is beneficial to them in the moment or how they're feeling in the moment.

 

Cory Liu:  Yeah. Well, one of the most heartbreaking facts that sort of came out of Students for Fair Admissions v. Harvard case was the experience of Asian Americans. And in the merits amicus brief that we did, I quoted a really heartbreaking article. It was on Slate, and it was actually a student who had gotten into Yale, who was Asian, and he reflected on what he did in order to get there. He basically said, "Look. I tried to make myself look less Asian. I didn't say what my race was. I purposely avoided learning Chinese even though there's a part of me that wanted to connect with my heritage, but I just feared that it would hurt me in the admissions process. I tried to avoid looking Asian in as many ways as possible." And ultimately, he concludes that he regrets it and even used the word "sellout."

 

      And so it's really quite tragic that a policy that's supposed to encourage diversity is actually putting students in a position of trying to, in a sense, erase their own race because they think it's going to disadvantage them in the admissions process.

 

Prof. David Bernstein:  Yeah. You know, the funny thing is that back in the '70s, when we mentioned that an Asian Indian group was lobbying to be considered Asian because they wanted in on the growing minority disadvantaged business programs that assume that if you're a member of a minority group, you are disadvantaged. Another Asian Indian group based in -- this one was based in New York. The other group, based in Chicago, got wind of this, and they said, "Well, we don't want this." And it was too late for them to -- and they finally said, "You know what's going to happen is we're already overrepresented among business owners and in the higher education and so forth. Indian Americans are doing very well. And white people are going to resent that we're getting preferences. And then other minority groups are going to say, 'Wait. But you’re not real -- you don't really deserve to get preferences, and in fact, we should limit how many of you are admitted to college or get government contracts because there are a certain percentage of slots that are implicitly reserved for minorities, and you shouldn’t be taking them. They should be reserved for other groups.' So we'll be screwed both ways, basically."

 

      And at least in the higher education situation, that's proved to be reasonably prescient that the group that is most "overrepresented" in higher education are people of Asian Indian descent. And to the extent that their implicit quota is on Asians, they, along with Chinese and other groups—but especially Asian Indians—are catching the brunt of it. And if they were considered to be white, they would just be in the general white-lumping category, and no one would even be paying attention to how many there are.

 

Cory Liu:  So you've talked a fair bit about college admissions. Can we talk about maybe some other areas of the law where, your ideas and your research, you're hoping that they'll get some more attention and be talked about in those areas? I know you’ve talked about contracting and employment-type issues, but can you talk a little bit about what other applications there might be?

 

Prof. David Bernstein:  So one of the ones that really -- I mean, maybe the most distressing thing in the entire book and in all of my research is the way that these classifications have become institutionalized into the scientific and medical professions. And this isn't for scientific reasons.

 

      What happened was -- and I go through the history in more detail in Chapter 6, so I won't do all that right now. But basically, Congress told the FDA and NIH—after lobbying from civil rights groups, who are concerned that members of minority groups weren't being represented in scientific studies and, therefore, maybe the studies weren't valid for them—that "You must include members of minority groups in your studies. You must require companies you regulate." So any company that gets an NIH grant, any pharmaceutical or biomedical company, or medical device company that the FDA regulates, they must have enough members of minority groups in their studies.

 

      And the NIH and FDA could have taken this sort of unscientific dictate from Congress and said, "Okay. If we have to do this, let's go about this scientifically. Let's figure out, on a genetic basis, what groups might actually have different reactions to different drugs." This would not necessarily correlate at all with our current racial group.

 

      So, for example, within the white category, there are some groups that are fairly genetically distinct from other white groups—the Ashkenazic Jews because of a Founder's effect DNA-wise, Icelanders because they were on an island isolated from other populations. We know there are groups like this that may have some different issues.

 

      Instead, I think for obvious political reasons—which is that no one really wants to gather a bunch of experts and say, "What does race mean in the medical context?—" they just literally took these classifications, which were specifically stated not to have any scientific basis, and imposed them on the medical and scientific professions, which has had all sorts of horrible effects. One of which is that it has crowded out actual genetics-based research, which could actually lead to medical advances.

 

      It also delays research. So the Moderna COVID vaccine was delayed by a few weeks because the head of NIH—who, oddly enough, had written elsewhere that race shouldn't be used in medicine—told Moderna, "We're not going to approve your vaccine until you get more Hispanics and blacks in your studies," even though there was absolutely no scientific reason to think an mRNA vaccine would operate any differently in those groups.

 

      Now, Hispanic, itself, is not even a racial classification, has no genetic basis at all. You could be 100 percent European. You could be 100 percent indigenous. You could be 100 percent African. You could be even Asian and live in Latin America. You could be any combination of those. So it's like saying American. You have to have enough Americans. What does that mean?

 

      So it's completely scientifically unjustifiable. The Asian classification, again, includes people from India, people from China that have nothing cyclically in common genetically. And the rationale that is given to the extent one is given is that "Well, we are afraid that people won't trust the vaccine unless their group is represented." And to me, this is entirely circular. Why would someone of Hispanic descent think that a vaccine won't be valid for him even though Hispanic isn't a racial group? Well, the government says you have to have Hispanics. There must be a reason, right?

 

      I'm an Ashkenazi Jew. I am much more genetically distinct from the general American population, most likely, than someone who is of mixed Spanish, Italian, indigenous, and black origin. But no one tells me that, "Oh, we must have Ashkenazi Jews in the vaccine study, or they're not going to be valid for Ashkenazi Jews." And there's really no reason to think it would be, so I don't worry about it at all. And if we just have benign neglect in this area, there's no reason that anyone would worry about it.

 

      And this is now migrating into actual medical practice and actual rules where some states want to give medical treatment based on race or to give vaccines initially based on race. And there's all sorts of people who are asked their race when they go to their doctor or to the hospital, and I think this creates a lot of problems.

 

      Doctors do it for benign reasons. They think, "Oh, this particular treatment we think works better in African Americans." There's really, first of all, very little research supporting this. A lot of it winds up being data dredging. "We've tested this drug thirty different ways. It all seems the same, but we have a small statistically significant result for one particular minority group, but that's probably just statistical noise."

 

      But most important, actually, doctors are now -- what does it mean if someone goes into the doctor's office and says, "I'm African American?" They could be one-quarter African, genetically, and three-quarters European, which means they'd be more in the white group anyway. They could be Ethiopian, whereas the data we have on African Americans may be mostly people from West Africa or distantly related genetically. It's just a big mess.

 

      So I call in the book for just eliminating race entirely for medical practice from scientific studies. It doesn't mean I'm ignorant of the fact that there is some correlation between racial classification and genetics. But it's very crude, and we're much better off going directly to genetics, which is the actual scientific basis for medical reasons, rather than physiognomy or self-described ethnic background.

 

Cory Liu:  That's fascinating. I think we have a little bit of time for questions, so I'll go ahead and read some from the chat. And if you'd like to ask a question, feel free to type it in the chat.

 

      The first question—and I think Professor Bernstein and I've kind of addressed it already a little bit, but I'll go ahead and read it—says, "Why do we need definitions? Are we not able to self-identify?"

 

      Well, there are some challenges that arise if people are allowed to self-identify, right? As you mentioned, if you're mixed race—different people who are of the same, I guess you could say, genetics or ancestry—identifying differently, questions of exaggeration, etc., things like that.

 

      Is there anything more you'd like to say on that?

 

Prof. David Bernstein:  Yeah. I mean, the one area where I think the government has actually recognized self-identity as a particular problem was in government contracting, where there was massive fraud of people claiming to be Native American, so much so that in 2019, the Department of Transportation—and I think Commerce also—issued new rules saying you have to be a tribal member just so people wouldn't be making it up.

 

      Even that is problematic because some tribes have extremely liberal descent rules, such that you could be one-five-thousandths something Cherokee but be a member of the tribe. Plus, I understand—although this is not -- a little bit outside my expertise—that you could pay money to certain tribes to become a member. There are certain tribes that exist only -- they get a friendly state legislature to recognize them as a state-recognized tribe, but they really don't have any true tribal anything. They just exist in order to get affirmative action. So even when you make rules, they could be problematic.

 

      But one possible solution is just let people identify as whatever they want, don’t make any rules, and let the chips fall where they may. If everyone decides to classify themselves in ways that undermine these programs, well, so be it.

 

Cory Liu:  Next question has to do with genetic testing that have become much more popular—23andMe, Ancestry.com, etc. Do you think this is going to have an impact on these types of policies, litigation, court decisions, things that we're seeing from government agencies?

 

Prof. David Bernstein:  It's a fascinating question. There's one case in the Ninth Circuit addressing exactly this question where a government contractor took a DNA test and found—I don't know how accurate this test was, but no one disputed the test itself—there was four percent, I believe it was, of African descent. So he looked at the definition and says, "Anyone who is descended from the black race of Africa is African American,” so he checked off this box.

 

      And here's the crazy part of it. There are separate rules for being -- separate processes, really, for being recognized as a disadvantaged business in the project minority business enterprise for state and federal purposes. The State of Washington recognized him as black for state purposes. He then went through paperwork to apply to be black for federal purposes. And the same state officials, who are in charge of this for the federal government—it's complicated, but they do it for the federal government purposes as well—they said, "No, we decided you're not black."

 

      He said, "Well, how can I be black for state purposes and not for federal when we're applying the same rule?" And the answer is that "You had two different officials looking over your file, and one decided that your DNA ancestry combined with your expressed interest in now considering yourself mixed race was sufficient, and another one didn't."

 

      But what happens when lots of people, over time, discover that they -- a fairly large percentage of white Americans actually do have Native American or African ancestry. And also, some people have Hispanic ancestry, of course, but don't otherwise think of themselves as Hispanic. What happens when more and more people say, "Well, I could check that box"? And the answer is, I think if you look at the literal definition of the rules, that they could be included as long as they self-identify. But the rules are kind of stupid in that way because this is obviously not who was meant to be included.

 

      So I don't know whether judges like the Ninth Circuit, which denied his claim, will just say, "Well, we're not going to intervene if agencies don't want to recognize you," whether the rules will change, or whether we'll just broadly expand this.

 

      I mean, the government contracting -- unlike in universities, Asian Americans and Hispanic Americans get exactly the same preference as African Americans do. So over time, if nothing else happens, even without DNA testing, given the rates of intermarriage in a generation or two, 80 or 90 percent of Americans are going to be able to claim one of the groups anyway by ancestry, so something is actually going to have to give. Or if everyone's getting a preference, no one's getting a preference.

 

Cory Liu:  We have another question here. Maybe he could explain a little bit more, but he says, "Has your views on racism, or the lack thereof, during the Lochner era changed based on your research? I suppose Professor Bernstein has done some scholarship on the Lochner era and the Lochner Supreme Court case." So I don't know if you have any reflections on that?

 

Prof. David Bernstein:  I don't think my views have changed, although, one -- I always say the greatest thing about being a professor—law professor—is I get to find topics I'm interested in and so much I'm reading and writing about them, and I learn more. And I wasn't really -- I was sort of vaguely aware of the controversies over who counted as Asian or not in the early 20th century, but it wasn't something I had really investigated before. So I found delving into this more to be extremely interesting.

 

      I found controversies over Arabs and Persians and people from India, especially lighter-skinned people from India, who said they wanted to be Caucasian. And they were claiming how Japanese people had sometimes claimed, "We're Aryans also," based on some ethnographic evidence.

 

      So it was all very, very interesting. Again, there's a lot written elsewhere about that stuff. I was originally going to write a book about ethnic classification from the beginning of the American settlement and by Westerners until today. But I said, "You know what? That's too much. There's a lot written about the other stuff. What really hasn't been written about is how these classifications developed in modern times. So I'm just going to focus on that."

 

      But I learned a lot of really interesting stuff that I'd be happy to chat with people about over coffee sometime. But I try to value my reader's time when I write a book, so instead of going off on a lot of the sides that aren't really the focus, I only try -- the book's only like 180 pages with footnotes. I try to really focus on my thesis about modern racial classification.

 

Cory Liu:  Another question. So what do we do about this? Can the government be forbidden from collecting such statistics or should the categories be brought down more narrowly and fragmented to the point where they're not used in the same way as much anymore? Or I suppose -- what else?

 

      I mean, a quick reaction is just -- obviously, things in government always move slowly, incrementally, step-by-step. Certainly, the Supreme Court does, in terms of changing precedents, so probably wouldn't happen overnight in a sort of sweeping way.

 

      But at least, I think, once you've started discussing the ideas that Professor Bernstein has put forth and just raising those issues, whether as a litigator or in court decisions or in government agencies, maybe step-by-step, kind of a pragmatic way, people will start figuring out what are places where maybe these policies don't make as much sense anymore. Any thoughts?

 

Prof. David Bernstein:  Yeah. I mean, France, for example, is a common example of a country that absolutely forbids the government from using any kind of ethnic or racial classification. And indeed, there's a strong social norm against it also. But I don't think we're ready to move to that system because enforcement of certain civil -- even if you're not a big fan of using statistical analysis, like employment discrimination and so forth, certain things like voting rights, it's hard to see how they could be -- how the Voting Rights Act could be enforced if you can't keep track of who's actually voting or not. If there's some small town in Texas that's suppressing Mexican American vote, if you're not checking on how many Mexican American voting, how would you ever know?

 

      So I don't think we're going to do that. But what I say in the book is to the extent we feel the need to continue using racial classifications, we need to think about what are the ends we have in mind and at least tailor the classifications to that end. So in the medical field, as I've already said, I don't think you should be using them at all, or at best, extremely narrowly when there's no good genetic substitute, and you have some reason to believe that there's a racial problem that matches our classification. But I think this would be very rare.

 

      I think in social science research, or for diversity purposes, the classifications of somebody not at all sufficiently finely tuned, if they're doing social -- I mean, I can't read a newspaper the same way I used to. I'll read about, "Well, during the pandemic, the rate of Hispanic children passing the math tests in the United States in sixth grade have gone down by X amount."

 

      I was like, "Well, that's very nice, but is that true of Cuban Americans in Miami? Is it true of Puerto Ricans who recently moved to Central Florida? Is it true of rural Texan Mexican Americans the same as it’s true of urban Colombians in New York?"

 

      I mean, it's just -- lumping all these statistics together may give you a very general sense. And because Mexican Americans are still over 60 percent, I think you generally assume that applies overall to the Mexican American population. But that doesn't tell you anything about specific subgroups and really isn't a very useful social science data.

 

      For discrimination statistical collection, which is what the classifications were originally meant for, they're far from perfect, but they may be good enough for just keeping track of people. If you're trying to redress historical discrimination by the government, it's a little weird that—at least in the government contracting case—we count people who are post-1965 immigrants and their children and grandchildren, even though they grew up in an era with civil rights. Not saying there was no discrimination by era with civil rights laws, even with affirmative action, though we don't include people whose ancestors were white ethnics who suffered discrimination. And we include them to the same degree we include residents of the American Indian reservations and descendants of slaves and sharecroppers and so forth.

     

      So one thing I propose at the end of the book is that if we do feel the need to redress the harm suffered by African Americans and Native Americans, especially those who live on reservations, through affirmative action, we should do it on a nonracial basis. We should say, "If you live on an American Indian reservation, we can assume that you've suffered the effects of disenfranchisement and discrimination," and provide that as a rationale. And the Supreme Court has suggested that that sort of thing would be a political, not a racial, classification.

 

      Similarly, dissent from American slaves would exclude, say, Barack Obama because he was not -- you know, he had one white parent, one parent who was some sort of royalty in Kenya, I guess—would not include someone -- the ambassador from Nigeria's son who went to high school here, decides to stay and become a citizen.

 

      I didn't know this before I wrote the book. I discovered that ten percent of the African American population was born abroad. So if you include them and their children and their grandchildren, there's actually a substantial percentage of the African American population who are actually immigrants and their children and grandchildren, and they dominate admissions at places like Harvard for people who are admitted under the African American classification. And if we're trying to redress historical wrongs, that's not really the group that we should be primarily aiming at. And if you did it by descent from slaves, again, as opposed to what your race is, that would arguably be a political rather than racial classification.

 

Cory Liu:  All right. Well, thank you, Professor Bernstein. I could talk about these issues with you all day, but I think our time is up.

 

      The book again is Classified: The Untold Story of Racial Classification in America. It just came out this summer. And so this is really a great achievement and contribution to the discussion that I think, certainly in the legal profession, hasn't really been addressed enough. And so, I look forward to seeing how courts maybe start incorporating some of these ideas and the research that you've put forward.

 

Prof. David Bernstein:  Thank you, Cory. And thanks to everyone who tuned in.

 

Ryan Lacey:  Well, on behalf of The Federalist Society, I would like to thank Cory and Professor Bernstein for the benefit of their valuable time and expertise today. And I would like to thank you, the audience, for joining us and participating, especially with those great questions. We welcome listener feedback by email at [email protected]. And as always, please keep an eye on our website and your emails for announcements about upcoming webinars and other programming. Thank you all for joining us today. We are adjourned.

 

 

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