Harvard’s affirmative action woes have sparked a new national conversation. In that context, I would like to look upstream from affirmative action or other programs that assign benefits or burdens on the basis of race, to the very act of classifying by race.

In my view, an original sin—a root of the evil of today’s diversity, equity, and inclusion regime—is the act of classifying all Americans on the basis of race and ethnicity and reporting the results. The administrative state plays a crucial role in spreading classification. As Professor David Bernstein has ably documented, the administrative state has transformed race into a comprehensive, bureaucratic system which entailed drawing somewhat arbitrary lines. By doing so, it made racial and ethnic sorting “legible” and thus able to be acted upon by both governmental and private decisionmakers. Unsurprisingly, just about every imaginable apparatus of administrative control imposes race reporting requirements across virtually every type of program.

Racial classification then enables and serves as a catalyst for the worst excesses of DEI. The act of classifying itself creates a cascade of responses both inside and outside of administrative agencies that inevitably lead to both more racial dis- crimination and less effective governance. Agency attention that should be devoted to legislatively authorized programs gets diverted into a meta-program, a “whole of government approach,” devoted to racial consciousness. And without getting rid of the classifications that make up any DEI regime’s foundation, even policymakers who wish to end racial discrimination in our government will be playing with a handicap.

This administrative regime wounds our nation. Racial classification, and the racial discrimination and dysfunctional governance it leaves in its wake, serves only to heighten the salience of race in our society. Race is an objectively minor attribute of the human person, and foregrounding it diminishes the inherent and equal dignity of every human being1 and leaves our society degraded in the process. Elevating race in this way is not just bad, it’s unlawful. Justice Harlan’s Plessy dissent had it just right, in a line that deserves to be more famous: “In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.”2

This essay proceeds as follows. Section I discusses the administrative origins of our current racial classifications and how the administrative state now brings classifications with it into every domain. Section II considers how racial classification helped DEI take off in private companies and then explains why the same classifications within administrative agencies is equally toxic. Finally, Section III makes a call for action: We should take Justice Harlan’s advice and start challenging racial classifications by administrative agencies on the ground that they violate the Constitution.

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