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Do the Ethnic Categories Used by Universities for "Diversity" Purposes Make Sense?

No, argues an amicus brief filed on my behalf in the pending Supreme Court affirmative action litigation.

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Some highlights of the brief, authored by Cory Liu:

Harvard and UNC's race-conscious admissions policies divide applicants into the following categories for purposes of determining eligibility for race-based
advantages in the admissions process: (1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African American; and (6) Native American.

As Professor David Bernstein has shown, these racial and ethnic categories were created in the mid-1970s by federal bureaucrats whose only goal was to unify the racial and ethnic categories federal agencies used for recordkeeping. David E. Bernstein, The Modern American Law of Race, 94 S. CAL. L. REV. 171, 197–200 (2021); see also DAVID E. BERNSTEIN, CLASSIFIED: THE UNTOLD STORY OF RACIAL CLASSIFICATION IN AMERICA (forthcoming 2022). The categories came about in a haphazard manner without any input from anthropologists, sociologists, ethnologists, or other experts.

The bureaucrats who created the categories expressly warned that they "should not be interpreted as being scientific or anthropological in nature, nor should they be viewed as determinants for eligibility for participation in any Federal program." 43 Fed. Reg. 19,260, 19,269 (May 4, 1978).

There was never even a hint in the development of the categories that they were established for achieving educationally beneficial diversity in higher education. See Hugh Davis Graham, The Origins of Official Minority Designation, in THE NEW RACE QUESTION: HOW THE CENSUS COUNTS MULTIRACIAL INDIVIDUALS 289 (Joel Perlmann & Mary C. Waters eds., 2002)….

Harvard and UNC's racial and ethnic categories match the categories adopted by federal agencies, including the Department of Education. Whatever value the categories may have in allowing for consistency in data collection, they lump together members of very diverse groups into arbitrary categories. As Michael Omi and Howard Winant, two of the leading sociologists of race in the United States, point out: "These racial categories are rife with inconsistencies and lack parallel construction. Only one category is specifically racial, only one is cultural, and only one relies on a notion of affiliation or community recognition." MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES 122 (3d ed. 2015); see also PETER H. SCHUCK, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE DISTANCE 164 (2003) (describing the racial categories as "almost comically arbitrary").

Harvard and UNC cannot explain why they use these particular racial and ethnic categories in their admissions policies….

Given the unduly broad nature of the "Asian" category, it is no surprise that only a minority of people assigned to that category identify as "Asian" or "Asian American." See JANELLE WONG ET AL., ASIAN AMERICAN POLITICAL PARTICIPATION: EMERGING CONSTITUENTS AND THEIR POLITICAL IDENTITIES 162 (2011) (finding that less than 40% of Indian, Chinese, and Filipino respondents identified as "Asian" or "Asian-American," even as a secondary identity)….

The question of who counts as "Hispanic" has continually befuddled federal and state authorities. See, e.g., Marinelli Constr. Corp. v. State, 613 N.Y.S.2d 1000, 1002 (N.Y. App. Div. 1994) (denying Hispanic status to a person of Italian-Argentine descent); Major Concrete Constr., Inc. v. Erie Cty., 521 N.Y.S.2d 959, 960 (NY. App. Div. 1987) (denying Hispanic status to a person with one Mexican grandparent); In re Rothschild-Lynn Legal & Fin. Servs., SBA No. MSBE94-10-13-46, 1995 WL 542398, at *3–4 (Apr. 12, 1995) (granting Hispanic status to a Sephardic Jew whose ancestors had fled Spain centuries earlier); In re DCS Elecs., Inc., SBA No. MSBE-91-10-4-26, 1992 WL 558961, at *4 (May 8, 1992) (recounting agency's conclusion that someone with "blond hair and light skin" was not Hispanic); In re Kist Corp., 99 F.C.C.2d 201, 216–17, 248 (1983) (granting partial minority credit for Hispanic status to a person with one Cuban grandparent); In re Storer Broad. Co., 87 F.C.C.2d 190, 191–93 (1981) (accepting Sephardic Jewish heritage as evidence of Hispanic status); In re Lone Cypress Radio Assocs., Inc., 7 FCC Rcd. 4403, 1992 WL 690184, at *5 (1992) (concluding that while being one-fourth Hispanic is enough to classify someone as Hispanic, being one-eighth Hispanic is not); Participation by Disadvantaged Business Enterprise in Department of Transportation Programs, 62 Fed. Reg. 29,548, 29,550 (May 30, 1997) (reaffirming Department of Transportation decision to classify "persons of European Spanish and Portuguese origin" as Hispanic, even though the latter group is not of Spanish origin or culture)….

There is a tremendous amount of ethnic, cultural, linguistic, and religious diversity within the category of people that Harvard and UNC classify as white…. The category includes, among others, Welsh, Norwegians, Greeks, Moroccans, Chaldeans, Afghans, Iranians, and North African Berbers. To place people descended from all these groups into one category is inconsistent with the goal of achieving genuine educational diversity….

Neither Harvard nor UNC has explained why a white Catholic of Spanish descent, classified as Hispanic, gets an admissions preference for contributing to educational diversity, but a dark-skinned Muslim of Arab descent, an Egyptian Copt, a Hungarian Roma, a Bosnian refugee, a Scandinavian Laplander, a Siberian Tatar, or a Bobover Hasid—all classified as "white"—do not. Similarly, it is hard to see how diversity is better accomplished by admitting an additional "Hispanic" student of Mexican ancestry over an equally or better qualified student whose parents immigrated from Turkmenistan, who would be the only Turkman in the entire student body, because the Turkman is arbitrarily classified as "white."…

A descendant of American slaves who grew up in a working-class, majority-black neighborhood in Milwaukee does not contribute to diversity in the same way as a child of an African diplomat, nor as a black-identified applicant with multiracial ancestry who grew up in an overwhelmingly white small town in Montana…. Yet they all fall into the same diversity category at Harvard and UNC….

Similarly, the experiences of a Navajo Indian who grew up on the tribe's reservation in Arizona are quite different from those of a person with one-sixty-fourth Cherokee ancestry and a European surname whose appearance and life are indistinguishable from his "white" neighbors' except that he has inherited tribal membership….

The racial and ethnic categories that Harvard, UNC, and universities across the country use in their admissions policies were created by executive-branch bureaucrats who specifically warned that they were not scientific or anthropological in nature and should not be used to determine eligibility for benefits in race conscious policies. The categories are imprecise, over and underinclusive, and are not narrowly tailored to achieve educationally beneficial diversity.

Note that the brief does not address the issue of whether a different version of affirmative action for "diversity" purposes could past constitutional muster,  nor whether affirmative action programs based on values other than "diversity" may be constitutional. The brief only addresses the notion that basing affirmative action justified by educational diversity on categories created for entirely different purposes and not meant to reflect any sociological or anthropological reality cannot pass strict scrutiny.

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  1. There is only one category; "mixed race".

    1. All those seeking a preference should submit a DNA sample, to verify they are mostly from Africa, and not half from the British Isles. In the past 50 years, these have been overly privileged, with affirmative action, forbearance of their 4 fold violent crime rate, their raping of 20000 white women a year, their economic under performance and their excessive government dependency.

      The ethos of America is selfishness, not racism. So very dark skinned African immigrants outperformed whites in the 2010 Census. They are top performers and have been rewarded by America accordingly. Africans are the new Koreans. America does not care about their color, but cares only about, what can you do for me.

      1. The better basis of privilege and of assistance is the recent income tax statement of the parents.

  2. Those scare quotes tho.

    1. Not scare quotes, the quotes reflect that these are official classifications into which people are put. Afghans, for example, are "white," regardless of how they perceive themselves, or how they are perceived by others. Immigrants from Nigeria are "African Americans" even if they don't consider themselves part of the same category as those with generations of history in the US. and so on.

        1. ^

          That's some 'I'm being subtle' nonsubtle culture warrior stuff.

          1. Take the L, dude. Will you ever learn to do so gracefully?

        2. Umm... the whole point of the post is that what universities (and the Supreme Court) have called "diversity" isn't actually diversity, it's assigning people to arbitrary classifications and then deciding that one has diversity if one has the targeted number of people from each classification. It's balancing by arbitrary government ethnic/racial classification, not actual diversity.

  3. Betteridge's Law.

    Betteridge's law of headlines is an adage that states: "Any headline that ends in a question mark can be answered by the word no.

    1. I've broker that rule several times.

  4. All classification schemes have edge cases. That doesn't make them nonsense.

    For example, does it make sense to say "Russians are at war with Ukrainians"? Some Russians are fighting on behalf of Ukrainians. Some Ukrainians are fighting on behalf of Russians. Some live thousands of miles away and are completely unaffected by conflict.

    Nevertheless, some classification must be used if you generally want to punish Russians and/or generally assist Ukrainians. Even if flawed, nationality is a useful approximation. So are the racial categories we now use.

    1. The question isn't whether they have some uses. The question is whether they are narrowly tailored to serve a compelling interest in diversity in higher education, which is the legal standard. In my book, I go through different examples of how the classifications are used, some are defensible (used broadly to monitor discrimination) and some are indefensible (used in scientific research without a good scientific rationale).

    2. There is a difference between edge cases and just wholesale overinclusiveness that renders the category meaningless once put under literally any scrutiny.

  5. "Diversity" should be based if anything on economics (parents wealth) as long as you don't push it past test scores. If say a wealthy Jewish kid from NYC scores the same as a working class Italian kid from Syracuse..and you can only take one..take the Italian kid..

    1. Standardized tests are being fazed out in many places, so eventually you just have to hope an 'A' in NYC is the same as an 'A' in Syracuse, or anywhere else.

    2. Yet the child of Puff Daddy is different than a White trustifarian Yale legacy.

  6. No. The government classifies me as 'hispanic'. I've been told I look Dutch - big square head, blue eyes, blond hair (once upon a time), tall.... My family traces back to 13th century Spain (we left during the inquisition, went to Portugal, then Holland, then the new world).

    But the government thinks that I have something in common with a member of the Awa tribe in Ecuador, because Spanish....but not the Awa-Guaya tribe in Brazil, because Portuguese. And the two tribes have nothing in common with each other, of course.

  7. Bernstein—like most right wingers—is fine with any reasoning whatever, so long as it gets rid of affirmative action for blacks. Professor Bernstein, if your interest is the quality of racial reasoning used to design social policy—if you want to critique racial reasoning forthrightly—show everyone the way to do it right. Provide a model which preserves or strengthens affirmative action in college admissions for blacks and native Americans—the two categories whose historical deprivations have been qualitatively different, and continuously far more damaging, than anything which other groups have suffered in this nation.

    If you are unwilling to do that, no one should pay attention to your arguments, no matter how logically convincing you find them. Everything you argue here is about creating red herrings. Some red herrings of superb quality, by the way. The racial reasoning has been flawed. But the quality of racial reasoning is not the subject under discussion, except while you pretend otherwise.

    Affirmative action is the subject under discussion. Stick to that. If you think blacks should continue to struggle to get higher education equal in quality to that offered to others, say so, and defend your position, without circumventions to pretend that is not the result you want. If you want to substitute a regime of meritocracy for the present American system, say that—and explain what categories you think constitute enduring merit—and justify it as a better system of governance for this nation.

    1. Basing affirmative action on the income statements of the parents, and on the difficulty of circumstances that obstructed academic success, solves the problem of race based preferences.

      1. Income-based affirmative action mostly benefits the children of South- and East-Asian food service workers. This is clearly an undesirable outcome.

    2. "is fine with any reasoning whatever, so long as it gets rid of affirmative action for blacks."
      Be honest , call Bernstein a racist and cut all the blah blah

      1. Nico, I am particular about my criteria for racism. I distinguish it from bigotry, for instance. I insist that racism is a term which refers to systematization based on race, and without that no amount of personal bigotry amounts to racism. Conversely, in my view using race to systematize, even without bigotry, is racism. A non-bigoted politician, who for the sake of electoral advantage appeals to bigotry among constituents (who may not themselves be racists, or not racists in every bigoted case), thus becomes a racist without being a bigot.

        That said, I have not seen much evidence that Bernstein is a racist, or a bigot. I do suspect him of being a closet meritocrat. On that basis, he may judge blacks as a group less meritorious (perhaps not innately so, but only as a matter of missed preparation), and thus resent affirmative action on blacks' behalf. That is why I added the bit about meritocracy.

    3. Because admitting the sons and daughters of Nigerian diplomats and engineers is truly helping black descendants of slaves...

      1. No need to be stupid on purpose, Squirrelloid. Put the distinction in the policy.

    4. Bernstein—like most right wingers—is fine with any reasoning whatever, so long as it gets rid of affirmative action for blacks.

      Can't speak for Prof. Bernstein, but, as a right-winger, I'll give you my two cents.
      Harvard is a private school. As such, it should be free to use any admission criteria. Yes, it should be free to discriminate in favor of blacks. (Conversely, it should also be free to discriminate against blacks.) The same goes for any private entity.
      UNC is a public school. It is super-wrong for the government to engage in any kind of racial discrimination among its citizens. (And calling it "affirmative action" instead of "discrimination" doesn't change that.)

    5. "Provide a model which preserves or strengthens affirmative action in college admissions for blacks and native Americans—the two categories whose historical deprivations have been qualitatively different, and continuously far more damaging, than anything which other groups have suffered in this nation."

      This is you unintentionally funniest and most ironic comment yet, Steve:
      https://reason.com/volokh/2022/01/24/affirmative-action-without-racial-preferences/
      Affirmative Action Without Racial Preferences
      In my forthcoming book, Classified, I suggest limiting preferences in higher education to descendants of enslaved Americans and residents of Indian reservations.

      1. As for the substantive point, while a prospective student may volunteer at some point what "subgroup" he belongs to, Harvard does not specifically request that information, though there is no legal or practical reason it could not. The only categories it asks about are those onthe common app, which does note ask about subcategories. https://www.wcupa.edu/_admissions/SCH_ADM/documents/20-21_CommonApp_first-yearapplication.pdf
        Not only that, but the Common App specifically tells you, e.g., that if you are Middle Eastern, you are "white" or if you are from India you are "Asian", thus discouraging any notion that you can or should try to differentiate yourself from the general category. So of course Harvard *knows* that all Asians don't originate from the same country. But there is no evidence that it acts on that, and indeed given what is asked, they would have no way of knowing who comes from which subcategory unless it's volunteered.

        1. "So of course Harvard *knows* that all Asians don't originate from the same country. But there is no evidence that it acts on that"

          Totally false. You'd have to not be following the case at all in order to think this. You are following the case that you're submitting amicus briefs about, no?

          "they would have no way of knowing who comes from which subcategory unless it's volunteered"

          ...? Any applicant too stupid to know that they should volunteer this information on their Harvard application doesn't deserve to go to Harvard.

          Did you even think before submitting your (truly wretched) brief that these questions have an important bearing on your thesis? A miniscule amount of data gathering would have gotten you enough info to totally undermine the logic of your brief... but IMO it doesn't require any data gathering at all. Of course Harvard applicants are going to volunteer their background details and of course Harvard is going to take it into account. And with that, your whole brief burns.

          1. "Any applicant too stupid to know that they should volunteer this information on their Harvard application doesn't deserve to go to Harvard." Really? Koreans, Chinese, and especially Asian Indians are well "overrepresented" both in general and within the Asian category in college admissions. Why would people in those categories volunteer that information? And if you are, say, Filipino but have a Spanish surname, why would you volunteer that you are Asian at all? And if you are from an "underrespresented" group, say Pakistani, why would you volunteer that, not knowing whether Harvard would consider you to be "South Asian" and thus very "overrepresented," or Pakistani and thus "underrepresented?" And what actual evidence, beyond vague assertions in a brief, is there that Harvard actually cares about subcategories?

            1. Once again, by assuming bad faith on everyone's part -- applicants, admissions officers, brief drafters -- you (surprise!) conclude that everyone's acting in bad faith.

              In your world, applicants are trying to game the system, admissions officers are secretly eschewing diversity in favor of some sort of secret social justice campaign, and lawyers lie in Supreme Court briefs. (Well, looking at your brief, I see where you get the last one.)

              In the actual world, the way you get into Harvard is by being compelling. SAT scores and grades are not compelling. A story is compelling. If you as an applicant strongly identify with your Pakistani background, naturally you'll have compelling stories to tell about that and how it has helped define who you are. At the same time, Harvard, who genuinely is looking to shape a diverse student body, wants people who actually embody the traits that they're looking for. If they want a vital Pakistani subculture, then they're going to prefer candidates who embrace their Pakistani roots. (And it's not all about race. Some candidates might not say anything about race, even opting out of the Common Application buckets, and instead tell a story about life on a farm or life as a military kid or life with a disability or life as the daughter of a movie star or whatever it is... Harvard wants all those kinds of people represented.) So again, of course smart applicants are going to use the details of their backgrounds to tell a compelling story about themselves, and of course Harvard is going to use those details to shape their student body.

              There's gobs of evidence that this is how it works. Look at Harvard's admissions materials. Look at how they have consistently described their admissions process. Look at the end results. You want Harvard to be acting in bad faith so badly that you're willing to write off all this clear evidence as somehow part of the scam. What scam?????

              1. Spoken like someone with no idea of how college admissions at a school like Harvard actually works...

                1. Which part don't you agree with? That candidates volunteer details about their backgrounds, or that Harvard considers those details?

    6. Why should he (or any critic of racial classifications) "provide a model which preserves or strengthens affirmative action" when affirmative action is unproven to be a workable solution to the "problem" of historical deprivation. Your argument assumes its own conclusion.

  8. Have you ever tried to fill out one of those forms for "record-keeping" purposes in a hiring search? You can't ask people their race or ethnicity and require them to respond honestly, but you have to complete the form and submit it to the "higher authority". You end up with a form in which the majority of the boxes checked are "not indicated" or "all of the above", which does nothing to help you collect the information the dictators want you to provide. Ten years ago, Caucasians would answer honestly but they soon realized that doing so caused them harm, so they joined the check as many as possible or "native American" box checkers. It's an exercise in futility to actually provide a correct response.

    1. About a year ago I was doing a refi on my house, and the guy at the bank asked me my race, but prefaced it by explaining that responding was optional but that if I didn't respond he was legally required to fill out the form with his best guess.

      Since this application was being done online, and the conversation in question was taking place over the phone, I was intrigued as to how he planned to make such a guess.

  9. I'm surprised that you've be willing to submit such an obviously bad-faith brief to a court.

    Harvard has explained -- which should have been obvious anyway -- that of course they use the federal reporting categories for federal reporting. But they use different (finer grained) categories internally for admissions diversity purposes.

    I've explained this to you before in comments and you replied, so I know this isn't news to you. That means you're knowingly signing off on a misleading brief.

    What an asshole!

    1. Actually what you wrote is this, which is nothing like what you just wrote, and I did not respond:
      Randal
      January.25.2022 at 2:43 am
      randal

      A) I'm sure Harvard would love to use more granular classifications if they were available. If the outcome of this case is simply, we need to have more options on the Common Application for race / ethnicity / background, I'm sure everyone would be happy (except the evil plantiffs).

      B) I imagine Harvard's #1 guiding principle (beyond just, what data is available) is how the social scene plays out on campus, i.e. how the students self-organize. If there's an "Asian-Americans at Harvard" society, then the question is, how did that come about and is it under-inclusive or too generic? If it's the natural grouping that the students themselves come to, then it makes sense to use for admissions. (One sub-goal of diversity is to make sure those campus social / cultural communities can be sustained.)

      1. That's not the only comment I ever wrote on the subject.

        1. "That's not the only comment I ever wrote on the subject." Maybe not, but that's the only other time I've blogged about the Harvard case, and that's the only comment you left there.

      2. Anyway, since you seem incapable of reading (or you've chosen to ignore) the briefing in the case you've decided to weigh in on...

        Asian-American applicants too may benefit from the consideration of race. Harvard, moreover, “does not treat race monolithically because students of the same race do not 'share the same views, experiences, or other characteristics,’” Harvard takes into account, for example, that there are “different groups and sub-groups within the category of Asian Americans.”

        SFFA disparages Harvard’s use of the term “Asian American,” but this category is set by the federal government’s Integrated Postsecondary Educational Data System, which Harvard is required to use for mandatory reporting of demographic data, and SFFA’s own complaint uses this term to define the applicants against whom SFFA accuses Harvard of intentional discrimination.

        1. It's true, you violated Reason's privacy policy (and presumably your "agreement" with Reason) DB.

          Commitment to Data Security
          Your personally identifiable information is kept secure. Only authorized employees, agents and contractors (who have agreed to keep information secure and confidential) have access to this information.

  10. Nice brief, professor. Well done.

  11. Try being married to a Filipina, and then figuring out the ethnic consequences. Her mother was a Fernandez, so she can rightfully claim like many other Filipinos to be Hispanic, which obviously means our kids are Hispanic also. But she is Southeast Asian. With a substantial portion of Chinese mixed in. And a dollop of Asian Indian. Since we've never lived near an Asian Community and she speaks accent-free English our friends just consider her an odd-looking white person.

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