Where Did the Racial Boxes People Check on Forms Come From? – Part 1

The illogical and politically-motivated process that led to the creation of official U.S. government racial classifications.

In previous essays, we explored the 2023 Supreme Court case of FAIR v. Harvard, which prohibited racial preferences in government and business settings as violating the Equal Protection Clause of the Constitution.  In his concurring opinion in that case, Justice Thomas writes:

[R]ace is a social construct; we may each identify as members of particular races for any number of reasons, having to do with our skin color, our heritage, or our cultural identity. And, over time, these ephemeral, socially constructed categories have often shifted. For example, whereas universities today would group all white applicants together, white elites previously sought to exclude Jews and other white immigrant groups from higher education. In fact, it is impossible to look at an individual and know definitively his or her race; some who would consider themselves black, for example, may be quite fair skinned. Yet, university admissions policies ask individuals to identify themselves as belonging to one of only a few reductionist racial groups. With boxes for only “black,” “white,” “Hispanic,” “Asian,” or the ambiguous “other,” how is a Middle Eastern person to choose? Someone from the Philippines? Whichever choice he makes (in the event he chooses to report a race at all), the form silos him into an artificial category. Worse, it sends a clear signal that the category matters … In fact, all racial categories are little more than stereotypes, suggesting that immutable characteristics somehow conclusively determine a person’s ideology, beliefs, and abilities. Of course, that is false. Members of the same race do not all share the exact same experiences and viewpoints; far from it. A black person from rural Alabama surely has different experiences than a black person from Manhattan or a black first-generation immigrant from Nigeria, in the same way that a white person from rural Vermont has a different perspective than a white person from Houston, Texas.

Justice Gorsuch, in his separate concurring opinion, also points to the odd nature of the racial boxes people fill in on various official forms:

Start with how Harvard and UNC [University of North Carolina] use race. Like many colleges and universities, those schools invite interested students to complete the Common Application. As part of that process, the trial records show, applicants are prompted to tick one or more boxes to explain “how you identify yourself.” The available choices are American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; Hispanic or Latino; or White. Applicants can write in further details if they choose … Where do these boxes come from? Bureaucrats. A federal interagency commission devised this scheme of classifications in the 1970s to facilitate data collection. See D. Bernstein, The Modern American Law of Race, 94 S. Cal. L. Rev. 171, 196–202 (2021); see also 43 Fed. Reg. 19269 (1978). That commission acted “without any input from anthropologists, sociologists, ethnologists, or other experts.” Brief for David E. Bernstein as Amicus Curiae 3 (Bernstein Amicus Brief ). Recognizing the limitations of their work, federal regulators cautioned that their classifications “should not be interpreted as being scientific or anthropological in nature, nor should they be viewed as determinants of eligibility for participation in any Federal program.” 43 Fed. Reg. 19269 (emphasis added). Despite that warning, others eventually used this classification system for that very purpose -- to “sor[t] out winners and losers in a process that, by the end of the century, would grant preference[s] in jobs … and university admissions.” H. Graham, The Origins of Official Minority Designation, in The New Race Question: How the Census Counts Multiracial Individuals 289 (J. Perlmann & M. Waters eds. 2002). These classifications rest on incoherent stereotypes. Take the “Asian” category. It sweeps into one pile East Asians (e.g., Chinese, Korean, Japanese) and South Asians (e.g., Indian, Pakistani, Bangladeshi), even though together they constitute about 60% of the world’s population. This agglomeration of so many peoples paves over countless differences in “language,” “culture,” and historical experience. It does so even though few would suggest that all such persons share “similar backgrounds and similar ideas and experiences.” Consider, as well, the development of a separate category for “Native Hawaiian or Other Pacific Islander.” It seems federal officials disaggregated these groups from the “Asian” category only in the 1990s and only “in response to political lobbying.” And even that category contains its curiosities. It appears, for example, that Filipino Americans remain classified as “Asian” rather than “Other Pacific Islander.” The remaining classifications depend just as much on irrational stereotypes. The “Hispanic” category covers those whose ancestral language is Spanish, Basque, or Catalan -- but it also covers individuals of Mayan, Mixtec, or Zapotec descent who do not speak any of those languages and whose ancestry does not trace to the Iberian Peninsula but bears deep ties to the Americas. The “White” category sweeps in anyone from “Europe, Asia west of India, and North Africa.” That includes those of Welsh, Norwegian, Greek, Italian, Moroccan, Lebanese, Turkish, or Iranian descent. It embraces an Iraqi or Ukrainian refugee as much as a member of the British royal family. Meanwhile, “Black or African American” covers everyone from a descendant of enslaved persons who grew up poor in the rural South, to a first-generation child of wealthy Nigerian immigrants, to a Black-identifying applicant with multiracial ancestry whose family lives in a typical American suburb.

The concurring opinion of Justice Gorsuch cites the work of David Bernstein, who has compiled his research in his book Classified: The Untold Story of Racial Classifications in America.  As Bernstein writes:

Official American racial and ethnic classifications are arbitrary and inconsistent, both in how they are defined and how they are enforced. Debates over racial classification in the contemporary United States almost always involve abstract arguments about justice, equality, and individual and collective rights. These discussions ignore how classifications work in practice. This book, by contrast, explores the complex and sometimes bizarre real world of government-imposed racial classification. Racial classification by law in the United States has a terrible history. We Americans shake our heads when we encounter the absurd and often cruel lengths federal and state government once went to in classifying Americans by race at a time when people’s rights depended on how they were classified. For example, we react with visceral disgust to century- old legal decisions discussing the distinctions between an “octoroon” (one- eighth African by descent) and a “quadroon” (one-quarter African by descent) and how that affected which side of the Jim Crow segregation line people occupied. We are similarly appalled by century-old cases adjudicating whether Asian Indian and Arab immigrants should be considered white people eligible for naturalization and what blood quantum of Native American ancestry makes one an American Indian for legal purposes … Despite our revulsion at historical examples of government-mandated racial classification, it’s more common than ever. Applying for a mortgage, enrolling a child in school, receiving a COVID- 19 test or vaccine, applying for a green card, and many other common activities involve checking racial and ethnic boxes dictated by federal agencies. Modern American racial and ethnic classifications do not reflect biology, genetics, or any other objective source. 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 … In the not-so-distant past, the United States had a large non-Hispanic white majority, a significant Black minority, and a relatively small number of “others.” In 1970, only 5 percent of Americans were Hispanic, and they were generally classified as whites. Less than 1 percent were Asian or Native American. Today, thanks to immigration and intermarriage, Hispanics are by far the largest officially recognized minority … Hispanics, Native Americans, and Asian and Pacific Islander Americans combined are nearly 30 percent of the population. Collectively, they outnumber African Americans by around two to one. Decades ago, Americans had powerful incentives to assert a white identity, given widespread societal prejudices. Indeed, an American’s status as a white person was seen, and was sometimes treated by the courts, as a valuable property right. As recently as the 1980s, a Louisiana woman who identified as white but was of 3/32 African descent sued to have her birth certificate changed when she discovered it categorized her as “colored.” Today, discrimination is still a barrier to minorities, but minority status makes Americans eligible for civil rights protections and affirmative action preferences that are not available to those classified as non-Hispanic whites. For example, being classified as a minority makes American business owners eligible for minority business enterprise preferences that influence hundreds of billions of dollars of government spending annually … it was only in the late 1970s that the federal bureaucracy established five standard official classifications: American Indian or Alaska Native, Asian and Pacific Islander (the latter later spun off to a new category with Native Hawaiians), Black, Hispanic, and White. Forty-plus years later these classifications seem natural and have been almost universally adopted in our society, albeit with updated nomenclature -- African American is a popular and government-sanctioned alternative for Black, and Latino for Hispanic.

The rapid rise of mixed marriages in America introduces further arbitrariness into racial classifications:

As of 2017, 46 percent of Asian and 39 percent of Hispanic American newlyweds born in the United States married a spouse from a different category … The percentage of African American newlyweds marrying someone from a different group soared from 5 percent in 1980 to 18 percent in 2015.

Bernstein describes the many bizarre ways in which America’s official racial categories have been applied:

In my own world of the legal academy, it’s not uncommon for mixed-race individuals to check a minority box when they apply to law school and then identify socially as non-Hispanic white once they matriculate.

Indeed, one of the most prominent proponents of race-based policies, the author Ibram X. Kendi (whose most popular book I’ve critiqued here) found himself embarrassed after he tweeted out a report on how many American college applicants lie to claim minority status, only to subsequently realize the report showed the opposite of his world view: namely, that minority preferences are so beneficial today, and instances of racial discrimination so few, that applicants were going so far as to lie in order to gain those “minority” benefits.  As the Daily Mail reported:

Ibram X. Kendi posted and then deleted a tweet promoting an article which stated that white college applicants pretend to be non-white in order to gain acceptance -- which his critics claim contradicts his own theories about white supremacy and “privilege.” The controversial anti-racism author and Boston University professor tweeted a link to an article from The Hill. “More than a third of White students lied about their race on college applications, and about half of these applicants lied about being Native American,” Kendi tweeted. “More than three-fourths of these students who lied about their race were accepted.” The Hill story cited a survey by Intelligent which found that 34 percent of white students falsely claimed they were a racial minority. Most of those students -- 81 percent -- said they lied in order to improve their chances of getting accepted while half of them said they did so in order to qualify for minority-focused financial aid. Nearly half -- 48 percent -- wrote on their application that they were Native American while 13 percent said they were Hispanic. One in ten wrote that they were black … On Twitter, Kendi’s critics said that his deleting of the tweets was an admission that his philosophy is false and that this country does not oppress non-whites. Jack Posobiec tweeted: “Ibram X. Kendi accidentally admits minority applicants have a better chance of getting into college, deletes tweet.” Posobiec said Kendi “deleted it after realizing he just debunked his life’s work in one tweet.”

Bernstein writes on other oddities created by America’s arbitrary system of racial classifications, including the following:

If Italian Americans are intentionally excluded from juries in criminal cases involving Italian American defendants, is that illegal discrimination, or is it legal because the government does not classify Italian Americans separately from other whites?

Asian Americans, meanwhile, are increasingly perceived as belonging to the same demographic category as European-descended Americans. One often reads articles about how an American high-tech company employs almost no minority workers, only to discover many of their US-based employees are Asian Americans. For example, an article in the New York Times declared that Google’s demographic data “offers a stark glance at how Silicon Valley remains a white man’s world.” Just a few lines later, we learn that one-third of Google’s American employees are Asian.

The most notorious case [from the 1990’s] -- indeed, many academic articles incorrectly claim it is the only such case -- challenging racial self-identification involved Paul and Philip Malone, twin brothers from Milton, Massachusetts. The Malones applied for firefighter jobs in Boston. On their employment application, they declared their race to be white. They failed the civil service exam and were rejected. At the time, the Boston fire department had a hiring preference for black applicants resulting from a legal settlement. The brothers retook the exam, this time listing their race as black. Their scores were too low to be accepted as firefighters as whites, but they passed the lower threshold for black applicants and got jobs with the department. A decade later, fire department Commissioner Leo Stapleton noticed that Philip Malone listed himself as black on a promotion application. Stapleton had interacted with the Malones and always perceived them to be white. He questioned each brother individually about their racial identity. Paul told Stapleton that his father was black; Philip reported that someone in his family was black, but he did not remember who. This exchange led to disciplinary proceedings against the Malones for fraudulently claiming to be black. The hearing examiner concluded that there were two ways the Malones could defeat the racial fraud charge and keep their jobs. First, the Malones could show they had a good faith belief that they could claim black status. The hearing officer found that the brothers had made no effort to verify they had black ancestry. They also never inquired as to what standards existed for asserting minority status. The hearing examiner concluded that they did not act in good faith. Second, the brothers could establish that they met one of three objective criteria for being black: by visual observation of their features; by documentary evidence, such as birth certificates, that established black ancestry; or by evidence that they or their families hold themselves out to be black or are considered black by the community. The hearing examiner found that both men had fair skin, fair hair coloring, and Caucasian facial features, and concluded that “they do not appear to be black.” Moreover, the Malones, their parents, and both sets of grandparents had been identified as white on their birth certificates. Finally, the hearing officer found that there was no evidence that the Malones had identified themselves or were identified by others as black, except in the context of their job applications. The Malones protested that until their disciplinary hearing, racial status in the fire department had always been solely a matter of self-identification. The hearing examiner rejected their plea and ruled against the brothers, costing them their jobs.

Affirmative action in university admissions, which gets far more public attention than affirmative action in contracting, typically has a sliding preference scale. African American applicants get the biggest boost, while Asian Americans generally get no preference and sometimes are penalized for being “overrepresented.” Minority business enterprise preferences, by contrast, give members of all eligible minority groups the same preferences. A company owned by a white individual with a grandparent from Spain who successfully claims Hispanic status gets the same contracting preference as a company owned by an African American descendant of enslaved Americans. This increases the incentive for those with marginal minority background to claim a minority identity.

The government’s White category, meanwhile, combines all of Europe, Asia west of Pakistan, the Asian parts of the former Soviet Union, and North Africa into one ancestry group. There is a tremendous amount of ethnic, cultural, linguistic, and religious diversity among people the government classifies as White. The category includes, among many others, Arabs, Chaldeans, Georgians, Germans, Greeks, Hungarians, Icelanders, Kurds, North African Berbers, Norwegians, Poles, and Scots, classified together arbitrarily.

The National Academy of Sciences has pointed out several additional bugs in the American race classification system: “There is no race category that includes persons native to Central and South America. There is no race category for blacks who come from areas in the world other than Africa, and there is uncertainty about many persons from northern parts of Africa.”

[In 1975, Peter] Roybal … filed a complaint about another firefighter, Lieutenant Lawrence Giovacchini. After seventeen years in the department, Giovacchini petitioned to change his classification from white to Hispanic. Giovacchini’s petition was granted because he proved that his mother’s parents were born in Spain and that his family retained ties to Spanish culture. Roybal, however, believed that only Latinos should receive Hispanic preferences. As for others of Spanish culture, Roybal commented, “I don’t know what [Spanish] culture is, other than what I read in National Geographic. They live a totally white life.” According to Roybal, “Larry Giovacchini, many times, to my face, has called me a ‘beaner’” (a slur for “Mexican”). Another Mexican American firefighter added, “All his life he calls himself a proud Italian, he calls us beaners, and suddenly he decides he wants to be a beaner himself.” “For someone to be an Italian for forty years and then become a Latino in the forty-first year is blatant opportunism,” added Roybal. Giovacchini denied using the beaner slur but was otherwise unapologetic. “If the city wants to give me an advantage for being Hispanic, fine.” The city ultimately concluded that descent from Spanish immigrants qualified employees to be classified as Hispanic.

New York City has had similar employment controversies. Some police officers who had checked the white box when hired sought to change their status to Hispanic to improve their prospects for promotion. A police spokesperson responded that applicants for a change in ethnic classification must present proof of ethnicity that meets federal EEOC standards -- which is odd because no such standards existed.

Another NYPD case, Blake v. Sanchez, involved a police officer, George Sanchez, who had classified himself as Hispanic when hired by the police department. His parents were Jamaicans of African descent who had moved to Costa Rica before his birth. He spoke fluent Spanish and was a member of both the Hispanic and black police officer organizations. He took a promotion test, scoring high enough to be promoted if he were classified as black but not as Hispanic. Sanchez therefore asked the police department to reclassify him as Black. The Deputy Police Commissioner for Equal Opportunity denied this request because “no mistake in his current (self) classification” had been found. Sanchez appealed. The court ruled against him, noting that Sanchez originally classified himself as Hispanic as an outgrowth of a settlement of a class-action lawsuit regarding cutoff scores, “part of the very process whose result he now seeks to avoid …” In these circumstances, the court concluded, the police department’s “refusal to grant reclassification was necessary to protect the integrity of the administrative process.”

In the next essay in this series, we’ll examine the origins of America’s arbitrary racial classification systems.