"The Modern American Law of Race"

My article explores how the standard racial category boxes that we are asked to check came to be, and what proof the government requires of belonging to a minority group.

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My article is forthcoming next year in the Southern California Law Review. I've previewed some of the interesting cases I discuss on this blog, and I have a larger book project in mind. Here is the abstract for the article:

This article explores the modern American law of race.

Part I of this Article addresses the origins and development of modern racial categorizations–African American, Asian, Hispanic, Native American, White–in the United States. These categories arose from categories used for federal anti-discrimination enforcement and affirmative action policies. There has never been a coherent or comprehensive explanation from any federal source as to why some minorities are deemed to be "official" minority groups and others are not, or why groups have the precise, and often seemingly arbitrary, boundaries they do.

As documented in Part I of this Article, the scope and contours of official minority status have come about from a combination of which groups were deemed analogous to African Americans, bureaucratic inertia, lobbying campaigns, political calculations by government officials, a failure to anticipate future immigration patterns, and happenstance.

Part II discusses state variations on the scope of the standard ethnic categories, in particular in the states' Minority Business Enterprise (MBE) programs.

Having discussed the origin and scope of official minority categories at the federal and state level, this Article next turns to a second issue–what evidence individuals must provide to demonstrate membership in these categories. Conventional wisdom is that these categories are purely a matter of self-definition based on informal norms. However, various states require a wide range of proof of minority status to participate in MBE programs, ranging from providing an official document such as a birth certificate listing one's race, to providing letters of support from ethnic organizations, to relying on certification by the National Minority Suppliers Development Corporation.

Perhaps surprisingly, challenges to the under- or over-inclusiveness of a government's definition of the scope of racial or ethnic categories are rare. Part IV of this Article discusses the only three such cases this author found.

Part V of this Article reviews cases in which a denial of minority status to a petitioner seeking Minority Business Enterprise status has been adjudicated and resulted in a published opinion. Most of the cases discussed in Part V involve the question of Hispanic status, the boundaries of which have proved especially vexing to administrators and courts.

The next section of this Article, Part VI, turns from racial categorization in the Minority Business Enterprise context to adjudication of claims of minority status by individuals seeking to benefit from affirmative action in employment.

Part VII of this Article discusses two other contexts in which courts have had occasion to determine racial or ethnic identity; first, cases in which a plaintiff has needed to show he is a member of a protected class under anti-discrimination laws, and second, cases involving "Indian" status under the Major Crimes Act.

This Article concludes by noting that laws dictating ethnic and racial categories were designed primarily to assist African Americans overcome the legacy of slavery, Jim Crow, and discrimination. As the United States has become more demographically diverse, however, African Americans are now a shrinking minority of non-whites protected from ethnic and racial discrimination, and of those eligible for affirmative action programs. Given high rates of interracial marriage among other minority groups and the reality that mixed-race and mixed-ethnicity individuals can check whichever box most benefits them, the percentage of non-African-American individuals eligible for minority status for affirmative action purposes will continue to grow, putting increasing strains on the current method of categorization.

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  1. Years ago in the Naval reserve we all had to classify ourselves as to race. Before checking a box I asked the unit’s executive officer what criteria one should use to make the choice. After all modern science says all human ancestors came out of Africa but it did not seem reasonable that the goal of the exercise was to have 100% check the African American box. Anyway, the exec told me as I recall that the criteria was, “you are whatever you say you are.”

    1. Unlike with other minority groups, where there is at least some purported ethnic (blood) lineage, a Native American is anyone whom a Federally-recognized tribe says is one, with all others being excluded. Now that’s one thing in the west where there were established reservations and Federal tribal census records — it’s something entirely different in the east where the tribes were largely assimilated into the larger culture (i.e. integration), where the members of the purported tribe identified as (and were accepted as) being “white” (i.e. non Indian) and had dispersed across the landscape.

      The Mashantucket Pequot tribe (Foxwoods Casino) is a good example is a good example, the tribe never officially existed until the 1970s and it essentially involved a single family. And there are real issues about its members even being related to each other, let alone being of Native American blood.

      But an intrepid lawyer got the Federal Government to recognize them as a tribe, and then to use the Indian Gaming Act to permit Malaysian businessmen to build what (in the 1990s) was a highly lucurative casino. (It isn’t anymore because the market is now saturated, but that’s another issue.)

      This has led to other tribes getting recognized, and then literally purchasing a reservation from which to run a casino — buying up land and then retroactively declaring it a reservation. After having lost two court decisions, the Mashpee Wampanoag were told “no” — see https://www.boston.com/news/local-news/2020/03/29/mashpee-wampanoag-reservation

      Conversely, regardless of bloodline, one is only a Native American if the tribe says that one is — and to avoid having to share casino revenue, many tribes no longer admit members older than one year of age.

      At which point, I bluntly hold that the whole damn thing is a fraud. This is two steps removed from restorative justice — first the tribal members (considered “white” in past decades) weren’t discriminated against, and second, to the extent they were, others equally situated (i.e. of the same blood) equally were and are now being discriminated against again.

      1. This is the issue of Ward Churchill and Elizabeth Warren.

        While the tribe later backpedaled, Ward Churchill *was* a Native American because a tribe decided to make him a member. Conversely, Elizabeth Warren is not because no tribe has made her a member. And the DNA test is bogus because it only compared her to South American Indians, as American tribes have refused to provide reference DNA.

        1. As a rule, federal law will recognize you as an “Indian” if you are a member of a federally-recognized tribe… but NOT if you have no relevant Indian ancestry and were adopted into the tribe. Of course, Churchill wasn’t arguing federal law, but I find this interesting because the rationale for Indian preferences in the Bureau of Indian Affairs is that it’s a political, not racial category, but in fact the category often has racial elements.

      2. Immigrants arrived in different waves at different times.
        The category of native american includes descendants of people who migrated here pre-columbian. But currently designated native americans are themselves not pre-columbian clearly. So what makes them special compared with people who trace their ancestral lineage back to other migrational waves? They left some other land and wandered over to this continent in different waves over millennia, likely displacing others who had come before them.

        “We’re Americans, with a capital “A”. You know what that mean? That means that our forefathers were kicked out of ever decent county in the world. We are the wretched refuse. We’re the underdog. We’re mutts!” (Stripes, 1981)

        And the sooner the american populace gets over attempting to identify as separate groups, with special rights to trump others, the better.

  2. Non-discrimination: If you find yourself having to categorize people according to race, you’re doing it wrong.

    1. A lot of people have noticed that too 🙂

      Unfortunately, among those “lot of people” are sub-lots of people who (1) use racial groupings to stir up trouble for races they don’t like, (2) use racial groupings to push their own statist agenda of growing government, (3) use racial groupings to push their own self-interest of getting government contracts or other favoritism.

      The only influence government will ever have on stopping racism is to stop classifying race and collecting race data and promulgating race data. It would also help to admit that lots of people are, if not “racist”, at least “racialist”, and that freedom of association allows that. I assume most people would classify me as “white”, I am probably less targeted by race than most non-white, and thus my opinion is somewhat tainted by privilege in the eyes of many racists and racialists who like to stir up trouble. But if I were interviewing at a business which didn’t like whites, I’d rather just walk away and leave them to their bigotry, maybe leaving a yelp review or the equivalent. Not only would I not want to work at a company where my (or anybody’s) race mattered, I also believe that businesses are less efficient and likely to be less successful when they care about such irrelevant matters. Of course, maybe a company’s line of business is such that race does matter, and I would rather leave that determination to them, their employees, and their customers than the government or a bunch of racist and racialist activists.

      1. The only influence government will ever have on stopping racism is to stop classifying race and collecting race data and promulgating race data.

        The Civil Rights Acts, Brown v. Board, etc. beg to differ.

        1. Then Mr. S, what is the genetic basis of claiming that there are races? You should know that there is none.
          And even under the bizarre reasoning of that established present categories, by what stretch of the imagination is an an immigrant from Argentina a Hispanic while one from Brazil is not, even though they have the same ethnic heritage?

          1. The confusion here is that ‘race’ doesn’t have its strict genetics meaning here. It is, at most, referring to broad genetic clusters, that don’t align well with traditional ‘races’.

            1. In other words it is an artifact to be manipulated “in the service of”
              politics.

              1. Right. Not entirely fictional, (The genetic clusters are real and statistically consequential.) but really not much practical use outside epidemiology.

          2. It’s not a genetic thing, it’s always been a social thing.

            1. In other words, no basis in science. Just a device useful in politics.

              1. Sociology is a science.

                Politics deals both in genetics and sociology all the time without much trouble.

                1. And the most replicable finding in sociology is???

                  1. Listen, I’m a trained physicist, I get hard science and it’s appeal. But I’ve gotten an education in social science and it’s pretty naive to call it nonsense.

                    1. Sociology is more descriptive than predictive.
                    2, Realizing that maybe showing the soles of your feet when driving around Iraq is a bad idea – that’s sociology.
                    3. This debate we’re having here? It’s a sociological debate. I hope you believe in sociology – you’re soaking in it.

                  2. Stereotype accuracy, IIRC.

                2. Sociology is no science. It is BS opining

        2. “The Civil Rights Acts, Brown v. Board, etc.” did not stop racism, they only remedied its effects.

          1. Stopping racism isn’t within the government’s remit. Only equality before the law is any of the government’s business.

            1. So I take it you’re a Plessy man?

              1. I’m not sure where you got that. As I understand equality before the law, the government should be treating people strictly without regard to their race. Race is simply never a relevant category for conditioning government actions, it is constitutionally prohibited from being that.

                That’s quite different from saying that the government is entitled to try to suppress opinions and dictate private choices.

                1. Plessy is equal before the law, but not blind before the law.

                  But that’s more or less pedantic; I get what you’re laying down.

                  But wanting the government to be racially blind when the society that it reflects is not seems naiive to me. Government needs to deal with the real world it inhabits.

                  1. Right, and that’s why the government needs to separate people into irrelevant categories and treat them differently based on which they fall into, right?

                    Once the government pays attention to race, discriminating on the basis of it is virtually inevitable.

                    1. 1. Either government can effect people with respect to bigotry or it cannot. You are arguing that government is making people more bigoted, but also shouldn’t try because it can’t succeed in making people less bigoted.

                      2. People were racist long before affirmative action. The idea that affirmative action is making people more racist doesn’t track very will with all the people on this thread arguing that maybe black people are generally mentally inferior.

                    2. “You are arguing that government is making people more bigoted, but also shouldn’t try because it can’t succeed in making people less bigoted.”

                      No, I’m saying that whether or not people are “bigoted” isn’t any of the government’s business. I doubt that the government can make people less bigoted, am fairly sure that, if they could, they’re not going about it the right way, but that doesn’t matter: Messing with what people think isn’t the government’s job. And that’s what bigotry is: How people think.

                      What people do is, within a restricted range, (Where it violates other peoples’ rights.) the government’s business. What’s going on inside their heads isn’t.

                      ” People were racist long before affirmative action.”

                      Of course they were, throughout all recorded history.

                      “The idea that affirmative action is making people more racist”

                      I’m not arguing that affirmative action is making people more racist. I’m arguing that affirmative action, ITSELF, is racist. It’s racially discriminatory, and based on the idea that the color of somebody’s skin tells you something meaningful about them, something that spares you the need to inquire into individual circumstances. It treats people of the same color as interchangeable. This group victims, that group perpetrators, all based on skin color alone.

                      “doesn’t track very will with all the people on this thread arguing that maybe black people are generally mentally inferior.”

                      Yeah, you really don’t understand the other side one bit.

                    3. I think society is measurably better after the Civil Rights era. Most agree with me.
                      Government had a hand in that improvement.

                      Your philosophical ideas about what government ought to be are fine, but it’s hard to argue that your no civil rights scenario makes the real world much better.

                      Maybe segregated lunch counters were philosophically more pure, but I’d question the utility of a philosophy that insists on such a reality.

                    4. “I think society is measurably better after the Civil Rights era. Most agree with me.
                      Government had a hand in that improvement.”

                      And most of that improvement came from the government refraining from or being compelled to refrain from, doing wrong. NOT from it compelling private citizens to do right. Tearing down the government’s own mandated discrimination.

                      “Your philosophical ideas about what government ought to be are fine, but it’s hard to argue that your no civil rights scenario makes the real world much better.”

                      What “no civil rights” scenario? I’m all for civil rights. I just don’t agree that you’ve got a civil right that other citizens, in their private capacities, not discriminate against you. Point to it in the Constitution, if you disagree. I’m sure something that profound would have been made explicit.

                      Civil rights are things like freedom of speech, freedom of religion, property rights, freedom of travel. The Privileges and Immunities protected by the 14th amendment. Equal protection of the law. Due process. A defining characteristic of them is that they’re, with the exception of some procedural rights in dealing with the government, negative rights. Rights to have other people leave you alone. NOT rights to have other people do things FOR you.

                      Once you start enforcing positive rights, rights to other people’s behavior, you start reducing liberty, not increasing it.

                      “Maybe segregated lunch counters were philosophically more pure, but I’d question the utility of a philosophy that insists on such a reality.”

                      Segregated lunch counters were mandated by law. That law violated civil rights by depriving both the people seeking lunches AND the owners of the lunch counters of their free choices.

                    5. Once you start enforcing positive rights, rights to other people’s behavior, you start reducing liberty, not increasing it.

                      The freedom to discriminate has been more or less proven to create a net loss in liberty when it’s broadly applied.

                      As to your quibbling about civil rights vs. the civil rights acts, well, I stand by my previous comment. Your freedom doesn’t survive contact with reality.

                      If your stand against affirmative action is, again, purely philosophical. Doesn’t really examine real-world effects. Congrats on your idealism (for real – we need it), but my pragmatic self is not particularly moved.

                    6. “The freedom to discriminate has been more or less proven to create a net loss in liberty when it’s broadly applied.”

                      The freedom to discriminate has never existed at the same time as a legal environment that didn’t itself mandate discrimination, and leave people free to extra-judicially punish the failure to engage in discrimination, and engage in crimes against the disadvantaged group without repercussions. So you can’t really say that the freedom to discriminate would create a net loss of liberty in a context where the equal protection of the law was a real thing.

                      Basically we went straight from mandatory discrimination, to mandatory non-discrimination, without even TRYING mere freedom.

                    7. The freedom to discriminate has been more or less proven to create a net loss in liberty when it’s broadly applied.

                      Just talk me through that descriptive not prescriptive thing one more time.

              2. Once again you show lack of subtlety. You like to classify everything you don’t like as evil. If the subject were ice cream, you’d have your own particular favorite, let’s say strawberry, and all other flavors would be non-strawberry.

                1. I’m not saying it’s evil, though interesting you should choose those words to put in my mouth.

                  I’m testing Brett’s logic, which as he initially wrote it sounded like it was fine with separate but equal under the law.

                  Believe me, if I think you’re saying something bigoted, I’ll tell you.

                  1. You probably forgot because it was in the context of gun control, but what I’ve said in the past was that, while the 14th amendment didn’t theoretically prohibit separate but equal, subsequent history demonstrated that separate was never actually going to be equal, because as a practical matter nobody who would accept equal was demanding separate.

                    And so separate is properly prohibited under the 14th amendment due to that.

                    However, the 14th amendment, expressly, applies only to state actors, leaving people in the private sector free to discriminate. This isn’t to say they should, but they’re constitutionally entitled to if they’re stupid enough to want to.

                    And morally, too, from a principled libertarian viewpoint.

                    1. OK. I mean, you answered that to my satisfaction above as well.

                      I skip the gun threads more often than not these days. Just speculative/telepathic paranoia going over the same pattern again and again.

                      Private actors can discriminate. Under federal law at least. We’re talking about public schools here, mostly.

          2. Polling post-integration begs to differ.

            Government, at times, leads by example.

            1. Not in racism. Society had been shifting away from Jim Crow for decades before Brown or the Civil Rights Act. Both would have been impossible with society’s prior shifts.

              You really ought to read up on some history before making such sweeping misstatements.

              1. This is revisionist as anything. Brown was resisted quite a bit.

                I am not arguing that no progress could have been made without Brown or the Civil Rights Acts, but to argue that progress was independent of them flies in the face of our current historical understanding.

                1. Yes, and where it was resisted it had no effect for over a decade.

                  1. It appears in your objection, you’ve admitted it had an effect. Which was my thesis.

                    Glad we agree!

                    1. “it had no effect for over a decade” is not an acknowledgment that it had an effect after the end of a decade.

                      For any value of {it}

        3. Slavery and Jim Crow were both government-mandated. The Civil Rights acts have not abolished racism, they have just reversed it. Now racism is mandatory in college admission, awarding contracts, etc.

          1. Slaver and Jim Crow were both de facto and de jure.

            Affirmative Action isn’t racism; that is begging the question.

            1. That’s not begging the question, it’s correctly identifying what’s before you: Affirmative action treats people differently on the basis of race, that’s “racism” unless you use a tendentious definition of “racism” designed to immunize ‘good’ racial discrimination from the charge.

              1. Your logic is ‘I define racism to include this, and if you don’t you’re wrong.’ ‘Racism is bad.’ ‘This is bad.’

                That’s semantic nonsense.

                1. You need a definition of racism that doesn’t bake in whether or not you approve of the conduct, or think it benignly motivated. You need a definition that’s objective.

                  My definition is treating somebody’s race as telling you something important about them, such that you can make decisions based on it. Treating people, essentially, as instances of their race, not as individuals.

                  Affirmative action does this. It assigns victim groups by race, without concern as to whether particular people were actually victimized. And, in a zero sum context, it correspondingly assigns fall guy status on the basis of race, not whether the designated fall guy is personally guilty of something.

                  Literally, somebody could apply at college, the son of ANC terrorists, and get a seat at the expense of a South African refugee whose parents were necklaced by the first person’s parents. And it’s all good, because in America the dark skin gets you assigned the role of victim, and the light skin gets you assigned the victimizer role.

                  “Assigned” on the basis of your race, not what you may or may not have done.

                  THAT is racism.

                  1. Racism has a pejorative denotation. You’re ignoring it for your definition, and then back-filling in that denotation.

                    It’s not argument, it’s semantics.

                    You think all racial categorizations are bad. But you can’t really explain why, other than to call it racist.

                    1. Racism has a pejorative connotation because it’s irrational, and leads to people doing evil things. People are, morally, entitled to be treated according to their own deserts, and racism leads to treating them as mere instances of a group.

                      The night riders riding out to lynch a random black because they heard of a black committing a crime, were racist, because they didn’t care if they got the RIGHT black. Any black would do, they were interchangeable.

                      But this is no different than the affirmative action maven, deciding some random black needs to be promoted because “blacks” have been disadvantaged, and never mind if the one promoted was. And to accomplish this some random non-black has to lose the position, and that, too is OK, because non-blacks were responsible for blacks being disadvantaged, and non-blacks, too, are interchangeable, so you don’t need to find one who was personally responsible to take the fall.

                      Collective guilt, collective debts, paid to people with no connection to the crime but appearance, at the expense of people with no connection to the crime but appearance. That’s racism, and that’s affirmative action.

                    2. Racism has a pejorative denotation. You’re ignoring it for your definition, and then back-filling in that denotation.

                      What do you mean by a “perjorative” denotation ?

                      That the person conducting the racially based categorisation and discrimination is doing so because he believes members of one or more of his categories are in some way inferior to members of other categories ?

                      Or that “racism” is any type of racially based categorisation and discrimination that should be deplored ?

                      Or something else – in which case what ?

  3. Equality of opportunity is still something we need to strive for.

    Case and point: 50-50 this thread devolves into ‘Bell Curve’ racial science.

    1. When did you read the Bell Curve ?

      1. My parents had it in the bathroom when I was a kid, actually. Mad sense then, but seems rather exploded now.

        Big liberals, but also big contrarians, my folks. Also big bathroom readers.

        By similar contrivance, I also read The Liberal Crack-Up by Emmett R. Tyrrell, and Will by G. Gordon Liddy.

        They packed me off to Summer Camp with Atlas Shrugged and The Fountainhead.

        1. How interesting. I had always imagined that you were a crusty old codger. But you are a mere child.

          1. Yep! Just barely a child of the ’70s. My first news memory is the fall of the USSR.

            Just took to old codger pop culture more than anything else.

        2. “Mad sense then, but seems rather exploded now.”

          Maybe you should reread it, then, if you only read it as a kid, and since have only read attacks on it. You may be confusing the attacks with the actual book.

          1. The attacks quote it pretty extensively as they dismantle it, and I’m not sure what new I’d get out of it now that I know about the sources (studies in South Africa) and the agendas of the researchers (went on to be a White Supremacist spokesman)

            1. Yeah, sounds to me like you only know of it at this point from the attacks. Herrnstein, of course, died shortly after it was written, so you’ve got to be talking about Murray. I’m unaware of him being a White Supremacist spokesman. Maybe you’ve got some evidence of that?

              1. Not the author – the main study they cite.

                https://en.wikipedia.org/wiki/Richard_Lynn

                1. Refute the argument and the data, not the person. You’re literally engaged in ad hominem argumentation. (And probably feel good about doing it, I expect.)

                  1. I agree, that’s ad hominem. Still, helluva thing he became a eugenicist.

                    As to the data, it assumes that *blacks living in apartheid South Africa* were in an environment free from discrimination. There is no environment that can be dis-aggregated from race.

                    Then there’s the Crawford-Nutt(sp?) paper, which found Zambian copper miners did badly, but Zambian students did above the white norm. The Bell Curve cherry-picked the copper miners from the paper, ignoring it’s result and the other data.

                    And I recall they uskewed the data to make it fit a bell curve, which is a bit of circular logic.

        3. I find it hilarious when the libs are all about “SCIENCE!!!” when they can spin it to support their agendas. Confronted with something inconvenient though like the Bell Curve and they will have none of that actual science.

    2. Devolves, evolves, whatever. How would that demonstrate that equality of opportunity is still something we need to strive for?

      1. By how many people here tend to post about blacks being mentally inferior.

        1. Which, logically speaking, has nothing to do with equality of opportunity. And, anyway, you omitted the “on average”, which is very important.

          1. I’m pretty sure y’all are wrong about blacks just being dumber.

            Therefore, I find that the fact that you still think so to be a sign that the playing field isn’t level, due to people like you.

            Therefore, I’m fine with leveling it until enough are disabused of your neo-phrenological notions.

            1. “I’m pretty sure y’all are wrong about blacks just being dumber.”

              I don’t think “blacks are just dumber”. I think that blacks, whites, little green martians, are all distributed over broad distributions of intelligence, which may have differently located peaks, but which largely overlap, so that knowing some individual’s race tells you nothing about their intelligence.

              But, when you get into statistical analysis of large groups, the locations of those peaks have certain implications, such as statistical disparities not conclusively proving disparate treatment.

              1. Yeah, you’re wrong about the peaks. That’s the consensus of science, unless you cherry pick.

                Especially as race, not having a very strong genetic component, is swamped by individual variation.

                1. “Yeah, you’re wrong about the peaks. That’s the consensus of science, unless you cherry pick.”

                  Nope. See, for instance.

                  “The cause of that differential is not known; it is apparently not due to any simple form of bias in the content or administration of the tests themselves. The Flynn effect shows that environmental factors can produce differences of at least this magnitude, but that effect is mysterious in its own right. Several culturally based explanations of the Black/White IQ differential have been proposed; some are plausible, but so far none has been conclusively supported. There is even less empirical support for a genetic interpretation. In short, no adequate explanation of the differential between the IQ means of Blacks and Whites is presently available.”

                  The extent to which the difference is genetic isn’t known. That it exists is well established.

                  “Especially as race, not having a very strong genetic component, is swamped by individual variation.”

                  That’s what I said, if you had understood it. “Race” only starts to have any significance when you’re working with large numbers. On the level of the individual, it tells you nothing.

                2. Differentials in testing outcomes != differentials in intelligence.

                  1. Yes, that’s the usual next step: “I’m not getting the measurements I’m committed to finding, so the yardstick must be broken!”

                    1. Or you’re using a broken yardstick because you like the outcomes. Intelligence is very complicated, and IQ is crazy reductive. You like it because it’s simple, and tells you the stories you want to hear.

                      Bottom line – background experience swamps any useful genetics data.

                    2. Yes, that’s the bottom line, and I keep saying that.

                      What I find hilarious here, is that I could say, “Blacks on average have darker complexions than whites.”, and you’d scarcely blink.

                      Maybe I’d say that blacks on average have a different ratio of fast twitch to slow twitch muscle fibers, which may explain at least some of the racial distribution of sports success. At worst you’d ask for some evidence of this.

                      I might say that blacks are, statistically, more likely to suffer from hypertension than whites. Or sickle cell anemia. No problem.

                      I can go down a list of organ systems, noting statistical disparities between the races, and it’s no big deal, at worst there’s a demand for evidence.

                      Then we come to the organ, the CNS, and suddenly, everything changes. Suddenly it’s not a question of evidence anymore, suddenly the answer is dictated by ideology, is morally fraught. If the tests say the “wrong” thing, the tests must be broken, because the “right” thing isn’t determined from the evidence, it’s known in advance.

                      Why is that? There’s no objective difference here between discussing the CNS and kidney function. And it’s not like slight differences in median intelligence have any moral dimension. They barely have any real world implications at all, beyond the standard of proof in academic disparate impact claims.

                      I don’t like the idea of topics where ideology tells you what the facts of the world have to be, and if your yardstick doesn’t agree with the ideology, it’s broken.

                    3. Yeah, Brett. Until we know more about neuroscience, mental traits are much harder to disaggregate from the environment than are physical.

        2. To be fair it is the left who wants to use race as our political yard stick. Can’t expect people to constantly have race thrown in their face without also bringing up topics the race baiters would like to avoid. Here is a hint leftie – your belief structure exists outside of the realm of reality and science. Can’t fault someone for pointing out its weaknesses.

      2. Brett, the very fact that you think that’s a legitimate question is evidence that equality of opportunity is still something we need to strive for.

        1. I think what this demonstrates is that we really, really need to know what is meant by “equality of opportunity”. Because it doesn’t look to me like we mean the same thing by it.

          1. Equality of opportunity is a pretty straightforward concept, but also an impossibility – even in theory – so the real question is how far you want to push that boulder up the hill, before it rolls down and you have to start again.

            Since humans differ as to their sex, age, health, strength, height, eyesight, experience, attractiveness, intelligence (and all components thereof), desires, family, friends, honesty, wealth, education, articulateness, native tongue, immune system, personality, usefulness to their fellow man, place of residence and so on for at least three pages; the pursuit of equality of opportunity is necessarily an exercise in rainbow chasing.

            Geocentric cosmology is child’s play compared to intersectionality. And intersectionality is a three year old’s crayon drawing of the real landscape of inequality of opportunity.

            But it still seems an attractive rainbow. Faced with someone who has obviously had very few opportunities, for whom extra opportunities can be created with little pain or effort, why not ?

            But as a government scheme, policed by the law courts, whatever can it be but purely arbitrary ?

            1. ‘This thing is pretty complicated! That probably means it’s BS’

              -Guy who has not studied thing.

              1. Guy with hands waves them desperately.

        2. What I mean by it, is that people who are similarly situated along relevant metrics should, broadly speaking, tend to be treated similarly, and see similar outcomes. But if groups aren’t on average similarly situated, then they won’t on average have similar outcomes, even if every individual is treated entirely without regard to their group membership.

          1. We increasingly see that ‘relevant metrics’ is a morass. Unconscious bias, self-bias, all sorts of incalcuables.

            And then there’s the question about the outcomes. Testing is not a great metric. It’s the one we use, but most agree it’s not great. We use it because it standardizes; it’s objective. Except now folks think it isn’t.

            As I’ve said many times before, I think race-based affirmative action is too narrow. But the same logic as applies to race (whether you go with the benefit of diversity Bakke or a playing-field logic like I do) applies to background including class, country, race, gender. Some schools already do that.

            1. I don’t like anything here but meritocracy, because every other basis is unrelated to the ultimate purpose of education, and because the importation of fuzzy criteria can serve as just a way to sneak in racial considerations. Like Harvard just by coincidence finding that enough Asian-Americans have bad personalities to make their numbers turn out “right” despite their superior academic qualifications.

              To be honest here, affirmative action wasn’t a big deal for me going to college, because I had good enough test scores to go anywhere I wanted regardless, and the whole thing was just getting started back then anyway.

              But my son is an Asian-American, and wants to go to MIT just like his hero Richard Feynmann, and it pisses me off that he’s going to have to get several hundred points higher on his SAT to get in than some black kid, because when somebody’s designated the winner, somebody else has to be the designated fall guy.

              Sure, he’ll probably do it anyway, but it always burns to be the victim of racial discrimination.

              1. I’ve got very bad news about our meritocracy.

                And who knows whether Harvard is gaming their stats. You don’t, but as usual you’ve sussed out some bad faith.

                I get that this seems personally unfair to you, but I work with black scientists, and they feel like their life is full of such personal unfairness.

                Love Feynman. Re-read Genius a few months ago.

                1. “And who knows whether Harvard is gaming their stats.”

                  Oh, give me a break. Yes, everybody knows that Asian-Americans have lousy personalities, in just exactly the proportion that results in achieving Harvard’s numerical goals. What a convenient coincidence, and perfectly innocent.

  4. I’ve always been confused by the Hispanic categories, which vary regionally in the country. They generally favor European appearing persons and the degree of assimilation.

    1. That’s because it can be confusing. A Hispanic person can be 100% European descent, or 100% indigenous, or 100% African, or a mix of any or all of those groups. In the US we have the weird classification that Arabs are considered Caucasians, by the government that is.

  5. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

    1. Thank you Chief Justice MiloMinderbinder.

      1. He would get my vote for CJ.

    2. “I have a dream….”

      — Dr. ML King, Jr.

      1. “That dream is so last week, why do you keep bringing it up?”

        — Dr. ML King, Jr. about a year later. (Yes, I know, not an actual quote, but still the truth: He abandoned that dream in favor of racial preferences.)

  6. Too many diversity bean counters make six digit salaries in the grievance industry to think this will ever change, but if the line “race doesn’t matter” is what you are going to go with then perhaps we should stop classifying people by it.

    But, the race hucksters have sold their victimhood ware for too long in order for that to happen.

    1. The other problem is an increasing number of boys & girls literally saying that race doesn’t matter — and our increasingly complex Nuremburg rules as to what we call their children…

  7. Yep, truly we no longer need to worry about race.

    1. That is the core question. Do we care about race anymore as it concerns public policy?

      If the answer is “no” well there you go.

      If the answer is “yes” then you have to get ready for the good and the bad that comes with that. Not everything is going to fit nicely into the liberal agenda.

  8. I have always felt that ethnic whites should be allowed to identify themselves as non-whites. They have been discriminated from youth against, had to suffer under quotas and have usually lacked the benefits of being white. I have a mixed background (jewish-italian) and can personally attest to how I was treated differently by traditional whites when they found out i was not brought up jewish.

    1. In the first chapter of _Souls of Black Folk_, WEB DuBois mentions how *he* wasn’t discriminated against as a child, but he saw it happening to European immigrants. I’m told that “Irish Catholics Need Not Apply” signs were common in Boston at the time.

  9. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” ― John G. Roberts Jr.

    Government should have no business asking anyone about their race.

    1. We have a whole thread of people arguing that one race is quite likely mentally inferior to another.

      How does your breezy color-blind fix deal with that particular issue?

      1. Easy when it comes to public policy should race matter?

        No – there is no concern.

        Yes – should we have different policies based upon one race being mentally inferior to another? Can an actor treat races differently if they are really are differently situated? (insert dozens of other questions).

        Seems to me easier to just go with the ‘no’ here and we can all move on with our lives.

      2. What’s going to happen when someone suggests that African ancestry creates a greater risk to the Wuhan Virus?

        Just asking….

        1. True, there is no escaping certain undisputed tendencies for disease predilection based on heritage: askenazi jewish heritage and numerous conditions, africans and hypertension and sickle cell, europeans and cystic fibrosis…
          Are africans more susceptible to covid? no data there yet, but no reason that it is impossible.

          But for anyone who wishes to remain alive in the short term, do what the surgeon general has suggested, and that black americans have done poorly (his words), socially distance.

        2. Public policy wise nothing.

          Standards of care can be altered without the government telling doctors to do anything.

      3. It isn’t the government’s job to “deal” with that “issue.”

        1. Except in the past government did deal with racism, and to pretty good success, most feel.

          1. Not really just changed up the pecking order of racism. Screwed whites in favor of other races. But to many out there that is the government doing a good job with race.

            1. “There isn’t a white man in American who would trade places with me. And I’m rich.”
              ~Chris Rock

              1. Wasn’t there a movie about this?

              2. A funny quote by a comedian does contributes little to the conversation…

              3. The only thing that quote ever established is that he’s delusional in addition to being rich.

  10. Interestingly, skimming this discussion, I don’t see a heck of a lot of defenses of the racial-classification system under which we’re currently operating in the USA.

    Now, I’d say that anyone wanting the government to take note of people’s race for, say, education, contracting, employment, etc – ought to propose a practical method by which this can be accomplished.

    Is the current method doing the job? And if so, what job is it supposed to be doing, anyway? Not “making up for white-on black discrimination” – see the post for why this is no longer an adequate explanation for these programs.

    If the current method isn’t doing the job, then what alternate method of racial preferences would the proponents of preferences like to see?

    1. Haven’t seen a lot of people echo Bernstein’s ‘race is a hard distinction to make, lets end it’ argument. Except for you just now.

      I’m no racial theorist, but seems to me like Bernstein’s posts about how genetics are a poor proxy for race rather miss the point about the latest thinking on what race is and how it operates.

      1. So you tell me – what types of racial preferences should there be, for whom, and how do we resolve disputes over who’s what race.

        I’ve pretty much given up trying to compare your paraphrases of what people say with the actual content of what they say. I’m asking that *you* say something. Maybe you could summarize the “latest thinking” for the benefit of the poor clingers who haven’t studied it.

        1. If you want to take issue with my comments, take issue with a thing I said, don’t just intimate some general dissatisfaction.

          AA should be about background, including race and nationality and class.

          But even if I were ride and die for racial affirmative action, your insistence that I provide you with bright lines is silly. Lots of places in the law don’t have bright lines.

          Race doesn’t operate on a genetic level – it’s about social experience, not blood.
          And so are the invisible headwinds and locked doors they have to deal with; they’re subtle and not bright lines either; doesn’t mean they aren’t there.

          1. “Lots of places in the law don’t have bright lines.”

            Maybe so, but should this be one of those places? You provide no answer, or reason for making the rules vague.

            “And so are the invisible headwinds and locked doors” etc.

            Now, you don’t explain why you made that interjection – was it because racial preferences are needed to counteract those headwinds and doors? This brings us back to the question – what *kinds* of racial preferences do we need to blow back against those invisible winds?

            Does a Malaysian immigrant need racial preferences to unlock those doors? Why or why not?

            1. Yeah, this is not a place of bright lines.

              The bad aspects of race in society don’t involve bright lines. Why must ways we address them do so?

              If you want a true meritocracy, you need to address the headwinds in order not to leave potential geniuses on the table. Plus, a diverse society is stronger. Plus, we are a diverse society and should not be stratified with respect to it.

              1. “The bad aspects of race in society don’t involve bright lines. Why must ways we address them do so?”

                Criminals don’t observe bright lines. Why should laws against criminals do so?

                But then, I suppose racial preferences involve the government imitating the racism of the private sector – but it’s all good because the government’s intentions are benevolent.

                You still have to get to the point of explaining precisely what policies you’re defending. Again: Are you defending existing race-preference policies, some aspects of which the post helps summarize, or do you want to modify existing policy?

                If you’re defending existing policy, you have to explain why it’s OK for, say, an employer to check its “diverstiy” boxes by hiring a group of immigrants in the “protected classes” while not spending any of their diversity points to hire African-Americans or Native Americans. Does this achieve what racial preferences are supposed to accomplish? Does it blow away the “headwinds?”

                If you’re criticizing existing policy, what parts are you criticizing and why?

                You want to defend a generic “diversity” while allowing yourself an extraordinary vagueness about how the government is supposed to get us there.

                1. Eg, in seeking a “minority contractor,” should the government be able to recruit any person with darker (nonwhite) skin, or should it be specifically someone who belongs to a group historically discriminated against?

                  1. Let’s get even more specific: Are you for against the idea that the government “limit minority status to members of recognized Indian tribes who live on reservations and to documented descendants of American slaves who identify as African American”?

          2. It is just fanciful thinking to believe race is just a pure social construct and that it doesn’t have any genetic linkages.

      2. Sarc, you should read the piece before assuming my position. Here’s what I conclude:
        There are three possible general ways of dealing with such questions. One is to almost entirely ignore them, accept the current categories and their scope as a given, and rely almost exclusively on individuals’ self-identification in policing membership. That is the status quo. This seems unsustainable, as the percentage of Americans who can legitimately claim “minority” status under current rules will soon be well over a majority of the population, rendering the promised benefits of such status increasingly moot.
        The second possibility is to eliminate official racial and ethnic categories, with only narrow exceptions for matter like health research. The late Justice Antonin Scalia, for one, was inclined toward this position. Any such move by the courts will meet with strong resistance from the political, legal, and business establishments, which are institutionally committed to retaining
        something resembling the status quo, and in particular are committed to using affirmative action to redress discrimination against African Americans.
        A third possibility is to limit minority status to members of recognized Indian tribes who live on reservations and to documented descendants of American slaves who identify as African American. This option has several advantages….

        1. Fair enough; I was engaging with the comentariat more than the OP. I’ll check it out.

  11. DB:
    Your abstract, at least, makes an egregiously wrong claim—maybe you’re more careful in the paper, which I haven’t looked at yet because SSRN is being a bitch to me right at the moment. You say:

    ” This article explores the modern American law of race. Part I of this Article addresses the origins and development of modern racial categorizations–African American, Asian, Hispanic, Native American, White–in the United States. These categories arose from categories used for federal anti-discrimination enforcement and affirmative action policies.”

    I think you (pretty clearly) mean the modern system of racial categorization as found in legal contexts. Because racial categorizations have a weird and complicated history that certainly doesn’t begin with “categories used for federal anti-discrimination enforcement and affirmative action policies.”

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