Volume 22
Issue
2
Date
2024

Racial “Box-Checking” and the Administrative State

by David E. Bernstein

Americans have grown accustomed to checking ethnic and racial boxes when applying for colleges, requesting a mortgage, filling out medical paperwork, and more. “Where do these boxes come from?,” Justice Gorsuch asked in his concurring opinion in Students for Fair Admissions. “Bureaucrats. A federal interagency commission devised this scheme of classifications in the 1970s to facilitate data collection.”1 Indeed, the classifications reflected in those boxes are the product of an obscure bureaucratic process that reflected “a combination of amateur anthropology and sociology, interest group lobbying, incompetence, inertia, lack of public oversight, and happenstance.”2

The federal Office and Management and Budget enacted Statistical Directive No. 15 in 1978 to create uniform racial and ethnic classifications so that data could be efficiently shared and compared across federal agencies.3 The relevant classifications decided upon were American Indian, Asian or Pacific Islander, Black, Hispanic–the only ethnic, not racial classification–and White. Each classification came with an official, somewhat arbitrary definition.4

For example, “Hispanic” was defined as “of Spanish origin or culture,” thus excluding Brazilians but including Spanish Americans.5 South Asian Americans, like their “Asian” Middle Eastern counterparts, were originally slated to be in the White category. A last-minute lobbying campaign by a small Indian American organization resulted in South Asians being classified as Asian Americans.6

At the time, the classifications received very little public attention. No one seemed to anticipate the vast influence the classifications would come to have. OMB explicitly warned that the classifications were not to be used to determine eligibility for any government program, nor did they purport to be scientific or anthropological in nature.7

Those warnings and caveats have been ignored. The result has been that these classifications have had a profound effect on American life, especially on how Americans identify themselves and others. Identities that barely existed in 1977, such as “Hispanic” and “Asian American,” are now mainstream. Identities not recognized by Directive 15, such as “Italian American” or “Chicano,” have fallen into disuse.

The social influence of government racial classifications is constantly reinforced by public discussion of academic and other studies that rely on the Directive 15 classification scheme. Some uses of these classifications, such as by pollsters, have arisen as matter of custom. In many other situations researchers have little choice but to rely on government-collected data to do their research, because it would be too expensive to collect their own. Government-collected data, in turn, relies on the Directive 15 classifications. So, for example, if a researcher wants to undertake research on group educational achievement in the U.S., he will almost inevitably rely on Department of Education data, which is broken down by Directive 15 classification.

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1.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 291 (2023) (Gorsuch, J., concurring).

2.

DAVID E. BERNSTEIN, CLASSIFIED: THE UNTOLD STORY OF RACIAL CLASSIFICATION IN AMERICA xi (2022).

3.

Directives for the Conduct of Federal Statistical Activities, Directive No. 15, Race and Ethnic Standards for Federal Statistics and Administrative Reporting, 43 Fed. Reg. 19269 (May 4, 1978).

4.

The categories, at id., were defined as follows:

American Indian or Alaskan Native. A person having origins in any of the original peoples of North America and who maintains cultural identification through tribal affiliation or community recognition.

Asian or Pacific Islander. A person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands. This area includes, for example, China, India, Japan, Korea, the Philippine Islands, and Samoa.

Black. A person having origins in any of the black racial groups of Africa.

Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race.

White. A person having origins in any of the original peoples of Europe, North Africa, or the Middle East . . . .

5. Id.

6.

BERNSTEIN, supra note 2, at 90–91.

7.

Race and Ethnic Standards for Federal Statistics and Administrative Reporting, 43 Fed. Reg. at 19269. 19260.