The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I was asked to contribute to a symposium on race, racism, and administrative law at Notice and Comment, the blog of the Yale Journal of Regulation. Given my current research on the American law of race, some of which I have blogged here, I had a lot to choose from; the most egregious forms of racial classification in the U.S. are largely the product of administrative decisions, rather than legislation. I ultimately decided to write about how the FDA and NIH require the use of ridiculously unscientific "racial" categories, adopted by the OMB for entirely different purposes in 1977, in biomedical research, and why this use of "race" should be abolished. Here's a taste, but you can read the whole thing at this link:
As of this writing, the federal government is considering using race and ethnicity to allocate access to a new Coronavirus vaccine to combat Covid-19 when one becomes available. More specifically, the government is considering giving preference to African Americans and Latinos because they have been disproportionately affected by the pandemic.
There are obvious dangers to allocating medical resources by race … especially in a politically sensitive an area such as vaccines, where the public is already all-too-prone to accept various conspiracy theories and quackery that leads them to oppose vaccination. Instead of expanding the use of race in this way, science and medicine should be moving away from considering race and ethnicity at all.
Unfortunately, the FDA and NIH have mandated the use of race and ethnicity since the late 1990s. As a result of this mandate, the use of race has become so common in the scientific and medical communities that most people in the field fail to consider whether there is any justification for doing so. As one scientist reports, "we don't tend … to think a lot about that [race] variable, what it means, how it's defined, how it's being used. We just sort of use it blindly."
This is very unfortunate, because, in addition to other problems discussed below, the FDA and NIH mandated that the "race variable' be based on the arbitrary (but now standard in American life) racial and ethnic classifications established by the Office of Management and Budget in 1977 for civil rights enforcement purposes. At the time, the OMB warned that the "classifications should not be interpreted as being scientific or anthropological in nature." This did not stop the FDA and NIH from institutionalizing them into medical and scientific research….
Any discussion of race in science and medicine must start with the recognition that variations in DNA that may have scientific or medical implications are not specific to race, as such, but to geographical distance between different populations. Additionally, there is no known example of polymorphism that is found exclusively in any particular "racial" group….
Even if at one time race may have been useful as a crude proxy for genetic heterogeneity, as DNA testing has become more available and much less expensive, race is a poor substitute for looking at actual discernible genetic differences between people. "Pooling people in race silos," an editorial in Nature Biotechnology declared, "is akin to zoologists grouping racoons, tigers, and okapis on the basis that they are all stripey."…
The OMB category of Asian, meanwhile, is absurdly non-specific and unscientific. It includes people with origins everywhere from the Philippines to the Indian subcontinent. There are vast differences among the various ethnic groups that comprise the two billion or so people who live within the Indian subcontinent, much less between South Asians and East Asians.
Hispanic/Latino is an even more problematic category. Latinos' origins can be any combination of African, Asian, European, and Indigenous. Nor are they culturally homogenous. There is no reason to believe that data about Dominican residents of New York City is applicable to indigenous Mexican farm workers in California….
[S]upport for the idea that we should allow the government to use research based on arbitrary, scientifically ridiculous OMB racial categories to allocate medical resources to people based on those categories seems both fantastical and an unjustified triumph of unscientific racialist thinking. Unfortunately, this is what NIH's and FDA's imposition of the OMB categories into scientific research has wrought.