Despite constitutional language stating that all citizens are entitled to equal protection of the laws, the federal, state, and many local governments have adopted policies that classify Americans in certain ways and then use those classifications to treat them differently. Everyone agrees that the way many of the southern states used to draw distinctions between people to maintain white supremacy was abominable, but in modern America we continue to do something similar. The supposed difference between the old days of segregation and today’s racial classifications is that our present policies are meant to help rather than to hinder.

In his new book Classified, Professor David Bernstein of the Antonin Scalia School of Law at George Mason University takes a penetrating look at the way governments today continue to classify people by race, and the consequences are generally bad. The classifications, he shows, are arbitrary and incoherent, rewarding some and penalizing others without rhyme or reason. Even if you think there’s good reason to favor Americans whose ancestors were held in slavery, racial preferences have expanded so much that very few of those who receive these benefits have any such claim. Mostly, our race-based policies benefit people who immigrated to the United States after 1965 and their descendants, as well as those Bernstein calls “identity entrepreneurs,” which is to say, people who try to get ahead by posing as members of “protected” groups.

Questionable classifications / Americans might assume that the government carefully crafted its group classifications to benefit those who have somehow suffered from discrimination. Bernstein makes plain at the outset that nothing of the sort happened. The system of classifications was haphazard and is logically indefensible. He observes, inter alia, that people of mixed-race heritage cannot indicate that they are multiracial on census forms, that someone who immigrates to the United States from India is classified as Asian but an immigrant from Afghanistan is classified as white, that a fair-skinned immigrant from Spain is regarded as “Hispanic” but a dark-skinned Egyptian, Greek, or Iranian is deemed white, and that the government requires biomedical researchers to report their results broken down by racial categories despite the fact that the categories have no scientific validity.

Here’s the problem as Bernstein sees it:

Modern American racial and ethnic classifications do not reflect biology, genetics, or any other objective sources. Classifications such as Hispanic, Asian American, and white combine extremely internally diverse groups in terms of appearance, culture, religion, and more under a single, arbitrary heading. The government developed its classification scheme via a combination of amateur anthropology and sociology, interest group lobbying, incompetence, inertia, lack of public oversight, and happenstance.

Case studies / Bernstein has been following cases involving racial classifications for years and he presents many that show how absurd and harmful our system is. Consider, for example, the Malone brothers of Milton, MA, who applied for jobs as firefighters in Boston. The application asked for their race and they checked “white.” They failed to score high enough on the required exam and were therefore rejected. Then they reapplied, declaring themselves “black” on the application. This time, their scores were deemed high enough under the city’s preference for blacks and the Malones began 10-year careers with the Boston Fire Department.

They ultimately ran into trouble when one of the brothers applied for a promotion. A superior noticed that he had declared himself “black,” but the superior thought that was false. When he questioned them, they said they thought they had a black ancestor but could not provide evidence of it. The superior then referred the case to a hearing examiner who concluded that the Malones had made no effort to ascertain whether they actually had any black ancestry and therefore had acted in bad faith when they availed themselves of the preference for black applicants. That determination cost them their jobs. What is noteworthy here is that Boston initially thought the Malones not good enough to be firefighters, but then became willing to employ and train them after they declared themselves to be black, and then, when the gambit was revealed, terminated two veteran and presumably capable firefighters. Racial entrepreneurship is costly.

Some of the cases are almost amusing. A man named Robert Earl Lee who worked for Montgomery County, MD, legally changed his name to Roberto Eduardo Leon and identified himself as Hispanic because he thought that would give him a better chance at a promotion. That angered leaders in the Hispanic community who called Lee’s stunt “an insult” and demanded he remain officially “white.” Lee responded that he’d grown up in San Diego, spoke Spanish, and claimed that his mother had said his father was Spanish. That was good enough for the county’s director of employee relations.

At that point, federal officials got into the act. The Equal Employment Opportunity Commission informed Montgomery County that allowing Lee to take advantage of a racial preference just by changing his name was “an abuse of federal law.” Montgomery County buckled and rescinded his reclassification. At the end of this kerfuffle, Lee sniffed, “All I want is equal opportunity.”

History / Bernstein’s history of the evolution of racial classifications is illuminating. In 1946, President Harry Truman created a Commission on Civil Rights, charged with identifying and eliminating racial discrimination in the federal workforce. Then, under Dwight Eisenhower, the government set up a commission to prevent racial discrimination in federal contracting. The preference regime didn’t really take hold until President Richard Nixon’s “Philadelphia Plan” in 1969, which mandated that all contractors on federal construction projects institute “goals and timetables” for increasing minority employment. That was soon followed by an executive order requiring federal agencies to assist “minority-owned” businesses. That raises the question, who should qualify as a minority?

In 1973, the U.S. Civil Rights Commission issued a report urging the federal government to create a system for collecting racial and ethnic data. The categories it called for were: Asian/​Oriental, Native American, Spanish, Negro, all other minority groups, and white. Then in 1977, President Jimmy Carter’s Office of Management and Budget released “Statistical Policy Directive 15” that set forth the standards for all federal agencies to collect data based on race and ethnicity. Bernstein points out that Directive 15’s classifications lump together people who have almost nothing in common while dividing others who have much in common.

The mania for group favoritism began in earnest. Congress passed the Public Works Employment Act of 1977, specifying that 10% of government contracts be set aside for minority-owned businesses. The next year it passed the Small Business Investment Act, with preferences for “Black, Hispanic, Native American and other minority” firms. Agencies such as the Department of Transportation, Small Business Administration, and Federal Communications Commission wrestled with cases where the question was whether someone was or was not a member of a preferred group.

It’s unfair and wasteful that people in (or who purport to be in) favored classifications are treated differently, Bernstein argues, and it clearly has harmful results. That is particularly so when it comes to medical research. Both the Food and Drug Administration and the National Institutes of Health (NIH) mandate that research be done with group quotas. For example, in 2021 Moderna had to delay the release of its COVID vaccine because NIH director Francis Collins told the firm that it needed to test the vaccine on more non-whites before the agency allowed its distribution. Was there scientific evidence that the vaccine might have different effects on different racial groups? No. Collins said that his reason was that he feared the public wouldn’t trust the vaccine unless the research trials had more race-based data.

SCOTUS / In his concluding chapter, Bernstein wonders if there is any way out of the current mania for racial and ethnic classifications. Can we get back to the 14th Amendment’s insistence upon equal protection of the laws for all? Can we bring about, in the author’s nice phrasing, the separation of race and state?

He doubts that we’ll be able to make much progress through legislation or administrative action; group preferences are too well entrenched. The courts, however, might act. He points to an important precedent, Adarand Constructors v. Pena (1995), where the Supreme Court struck down a set-aside program for favored groups. Bernstein cites Justice Antonin Scalia’s concurring opinion: “In the eye of government, we are just one race here. It is American.”

This term the Supreme Court is grappling with racial preferences in a pair of cases involving Harvard and the University of North Carolina. The plaintiffs are Asian-American students who argue they were rejected for admission because the schools limit the number of students who are of Asian ancestry. For years, colleges and universities have defended such policies by arguing they need “diversity” in student bodies to create educational benefits for all. Bernstein responds, “Yet the way colleges go about achieving racial and ethnic diversity makes little sense if diversity per se is the objective, as opposed to using diversity as a subterfuge while pursuing other objectives.” Universities are content with crude quotas even if many of the “diverse” students add nothing but optical diversity, while they reject many applicants who are far more culturally different but are lumped into the “overrepresented” white and Asian categories. Moreover, law schools are being flooded with applicants making dubious claims of Native American status.

America would be much better off if the Court were to pull the plug on the mania for racial classifications to achieve social engineering goals.

Classified is a very timely book that challenges what has become a sacred cow in American politics: the supposed need to group people by race and treat them differently. It could help steer our national conversation in a positive direction.