Article | Anti-discrimination Law
The Modern American Law of Race
by David E. Bernstein*
From Vol. 94, No. 2
94 S. Cal. L. Rev. 171 (2021)
Keywords: Anti-discrimination Law, Public Policy
Most Americans believe that a person’s ethnic or racial identity is currently a matter of self-identification in the United States, but that is not entirely true. Government agencies and courts have established rules for what makes someone African American, Asian, Hispanic, Native American, or white, and for how one proves that one meets the relevant criteria.1 One can get a sense of the scope of these rules by considering how authorities would resolve some recent public controversies over individuals’ racial and ethnic identities.
For example, is golf star Tiger Woods, who calls himself “Cablinasian,” legally classified as Asian based on his predominant ethnic origin,2 African American based on his appearance and the principle of hypo-descent,3 or something else? Until 2019, in Washington State, a government employee would have determined Woods’ ethnic status by looking at his picture.4 Under federal law, Woods could claim Asian American or African American status based on his partial Asian and African ancestry, but he would need to affirm that he holds himself out as a member of the group.5 Whether identifying as “Cablinasian” counts as holding oneself out as Black or Asian is not clear. To successfully claim Native American status based on his Native American great-grandparent, Woods would generally need to show membership in a federally recognized tribe.6 There is, of course, no official Cablinasian category, nor could Woods claim a Thai or Chinese identity separate from the general Asian category.
Is George Zimmerman, charged with murder—and ultimately acquitted by a jury—in the controversial shooting of Trayvon Martin, best described as Hispanic, half-Hispanic, mixed-race, white Hispanic, or something else?7 With a Peruvian mother, assuming he self-identifies as Hispanic, Zimmerman likely qualifies as Hispanic under every extant relevant federal and state law, unless, perhaps, his mother’s ancestors immigrated to Peru from a non-Spanish-speaking country.8 Some government agencies might also question Zimmerman’s Hispanic-ness based on his German-sounding last name and his (arguably) white appearance;9 some agencies would require him to present affirmative evidence that he considers himself, and is considered by others, to be Hispanic.10
Whether Zimmerman could successfully claim African American status based on his mother’s purported partial African ancestry is less clear.11 Federal law suggests that any amount of African ancestry is sufficient to qualify someone as African American,12 but there is recent judicial precedent to the contrary.13 Some states rely on the National Minority Supplier Development Council (“NMSDC”) for racial and ethnic classification, and the NMSDC requires that a person be one-quarter African American to claim that status.14 Federal agencies would likely accept Zimmerman’s claim of African American status based on an affidavit from him, though he would have to affirm that he holds himself out as African American.15 The NMSDC would demand documentation, such as a driver’s license or birth certificate, listing Zimmerman’s race as African American.16 California, meanwhile, would require birth certificates specifying race from either Zimmerman, his parents, or his grandparents, or three letters from certified ethnic organizations attesting to Zimmerman’s group membership.17 There is no official mixed-race status to claim in any jurisdiction, though the Department of Education now has a category in its statistics for children whose parents say the children belong in two or more racial categories.
Was former NAACP official Rachel Dolezal, the offspring of two parents of European origin, pretending to be Black by identifying as an African American woman? Or was it acceptable for her to adopt an African American identity, given that race is a socially constructed concept and she sincerely adopted an African American identity?18 Under federal and the vast majority of state laws, Dolezal’s lack of African ancestry means that she would be classified as white.19 In Massachusetts, however, the fact that she held herself out as a Black woman and others treated her as such would allow her to classify herself as Black in some contexts.20
Was Senator Elizabeth Warren justified in identifying herself as Native American based on family lore that she has Native American ancestry,21 or was she engaging in “ethnic fraud”?22 Under federal law, Warren’s lack of membership in a recognized tribe means that she is not Native American for most purposes.23 Warren also likely does not come within the definition of “Indian” in statutes that don’t require tribal membership.24 For statistical purposes, including for enforcement of antidiscrimination legislation, the government includes individuals with Native American ancestry who “maintain cultural identification through . . . community recognition.”25 In some states, family lore plus self-identification is likely enough for the government to recognize someone as Native American.26
Some of Vice President Kamala Harris’s political opponents have questioned her Black identity. 27 Harris, the child of an Indian immigrant mother and a father of mixed-race heritage from Jamaica, has identified as Black her entire adult life (including attending a historically Black university, Howard University), is identified by others as such, and has African ancestry.28 Given those facts, legal authorities throughout the United States would recognize her as Black and/or African American.
The controversies discussed above were debated in the court of public opinion; no courts or regulatory bodies were asked to rule on the ethnic or racial identity of any of these individuals. Most Americans undoubtedly prefer it that way, understandably tending to blanch at the idea of having the government, at any level, dictate the boundaries of ethnic identity.29 Such determinations are reminiscent not only of Nazi Germany’s and South Africa’s racial obsessions,30 but of America’s sordid past.31 Not long ago, Southern states divided mixed-race individuals into categories such as “octoroons” and “quadroons” to determine whether they were “white” or “colored” by law.32 The U.S. government, meanwhile, engaged in pseudoscience and pseudo-anthropology to determine which people from Asia counted as “Asians” and were thus not legally eligible to immigrate to the United States or become naturalized citizens, and which people from Asia were sufficiently “white” or “Caucasian” to be classified as such.33
Despite Americans’ understandable modern squeamishness at official racial categorization, racial and ethnic classifications are ubiquitous in American life. Applying for a job, a mortgage, university admission, citizenship, government contracts, and much more involves checking a box stating whether one is white, Hispanic, Asian, African American, or Native American, among other extant classifications. 34
Those seeking information about individuals’ ethnicity typically rely on self-identification and voluntary compliance with general norms regarding such identification.35 As noted, however, legal rules dictate whether someone may claim “minority” status in some contexts. This should not be surprising, given that concrete benefits sometimes accompany one’s identification as a member of a racial or ethnic minority group. In the past, given Jim Crow laws, immigration and naturalization restrictions, and other forms of de jure and de facto race discrimination, it was generally considered beneficial to claim a white identity. Today, while invidious discrimination still presents impediments to minorities, claiming a non-white identity can make one eligible for affirmative action preferences.36 While university affirmative action policies receive far more public attention, there is a strong incentive to claim minority status to be eligible for racial and ethnic preferences that influence the award of hundreds of billions of dollars annually in government contracts.37
This Article addresses two distinct but related issues. This Article first discusses the categories that federal and state governments use to define the “official” racial and ethnic minorities in the United States for data gathering, civil rights enforcement, and affirmative action purposes; the boundaries of those categories; and how those categories came to be. The second issue addressed by this Article is what evidence individuals must provide to demonstrate membership in these categories, and how modern courts and agencies have adjudicated questions of racial or ethnic identity when an individual’s claim to minority status has been contested.
Most Americans take the categories of “African American,” “Native American,” “Asian American,” and “Hispanic” for granted.38 Yet there is no inherent logic to using these categories, nor to their precise scope,39 and the same, for that matter, is true of the category “[w]hite.”40 As a federal judge has pointed out, the categories are not consistent with one another: “one group [African Americans] is defined by race, another [Hispanics] by culture, another [Asians] by country of origin and another [Native Americans] by blood.”41
The Hispanic category generally includes everyone from Spanish immigrants (including people whose first language is Basque or Catalan, but not Spanish) to Cuban Americans of mixed European extraction to Puerto Ricans of mixed African, European, and indigenous heritage to individuals fully descended from indigenous Mexicans.42 Members of the disparate groups that fall into the “Hispanic” or “Latino” category often self-identify as white,43 often feel more connected to the general white population than to other Spanish-language national-origin groups, and sometimes diverge from members of other Hispanic demographic groups in political outlook as much or more than from the general white population.44 Moreover, “census data show substantial differences in levels of income and educational attainment among the national origin groups in which data about ‘Hispanics’ are usually classified.”45 Not all Hispanics, meanwhile, consider themselves to be part of a minority group, and “some who claim minority status for themselves would reject [that status] for . . . others” (for example, they might “reject it for well-educated professionals who immigrate from South American countries” and who are considered white in their home countries).46 People of Portuguese or Brazilian ancestry, who are not of Spanish culture or origin, are nevertheless sometimes defined as Hispanic by legislative or administrative fiat.
The Asian American category includes people descended from wildly disparate national groups,47 who have dissimilar physical features, practice different religions,48 speak different languages, vary dramatically in culture,49 and sometimes have long histories of conflict with one another.50 Various subgroups of Asian Americans have differing levels of average socioeconomic success in the United States51—Indian Americans, for example, on average have significantly higher-than-average incomes and levels of education, while on average the incomes of Hmong and Burmese Americans are well-below the American mean.52 Korean Americans have the highest rate of business formation for any ethnic group in the United States, while Laotians have the lowest.53 The Asian category meanwhile excludes people from the Western part of Asia, such as Muslim Americans of Yemeni origin, who may face discrimination based on skin color (often dark), religion, and Arab ethnicity.54 Only a minority of people in the Asian category identify with the “Asian” or “Asian American” labels.55
Under most federal rules,56 the Native American category includes someone of remote Indian ancestry who has inherited tribal membership, while excluding some people with much closer genetic and cultural connections to the Native American community who are not tribal members.57 The question of whether the category of African American should sometimes be limited to descendants of American slaves or include African and Caribbean immigrants and their descendants is increasingly debated, as is the question of whether multi-racial individuals with a non- Black-identified parent should be included in the African American category.58
Classification rules generally were not made by Congress or state legislatures, where they would have been subject to public discussion and debate, but by administrative agencies. These agencies have used their authority to determine which groups are covered by classification rules, as well as how to prove membership in those groups. The modern history of racial and ethnic categorization by the government is therefore an example of, among other things, administrative constitutionalism,59 with the bureaucracy creating important baseline rules for society with little input from elected officials and negligible public debate.
Part I of this Article addresses the origins and development of modern racial categorizations in the United States. These categories arose from categories used for federal antidiscrimination enforcement and affirmative action policies. The federal government has never provided a coherent or comprehensive explanation for why some minorities are deemed to be “official” minority groups and others are not, or for why the various categories have the precise, and often seemingly arbitrary, boundaries that they do.
As documented in Part I of this Article, the scope and contours of official minority status have arisen from a combination of groups being deemed analogous to African Americans in facing race discrimination; bureaucratic inertia; lobbying campaigns; political calculations by government officials; a failure to anticipate future immigration patterns; and happenstance. It was far from inevitable, for example, that Americans with ancestry in the Indian subcontinent or the Iberian peninsula would gain official minority status, but that Arab, Greek, Iranian, Italian, Jewish, and Polish Americans would not.
Part II discusses state variations on the scope of the standard ethnic categories, in particular in the states’ Minority Business Enterprise (“MBE”) programs. Federal law requires states that accept federal transportation funds—that is, all states—to have rules for certifying firms owned by members of designated minority groups as MBEs. MBEs are eligible for presumptive status as Disadvantaged Business Enterprises (“DBEs”) for federally funded contracts. States are permitted to use federal standards for this purpose, but may also create and enforce their own standards, both for participation in federally funded projects and for state purposes. Various states’ rules diverge from federal law in determining who is deemed African American, Asian, Hispanic, or Native American. For example, unlike under federal law, some states exclude persons with Portuguese and Spanish ancestry from the Hispanic category. Other states delegate authority to the
NMSDC to use its own idiosyncratic standards to certify minority status.
This Article next turns to the question of what evidence individuals must provide to demonstrate membership in these categories. Conventional wisdom is that these categories are a matter of self-definition based on informal norms. For federal purposes, this is largely true. Most federal programs require only a signed affidavit attesting that the petitioner for minority status is a member of the claimed group and holds himself or herself out as such.60
States, however, often require documentation before granting minority status. This documentation requirement can be met by providing an official document listing one’s race, providing letters of support from ethnic organizations, or relying on certification by the NMSDC. Part III of this Article discusses the evidence various states demand to support a claim that a petitioner is a member of a designated group.
Perhaps surprisingly, challenges to the under- or overinclusiveness of a governmental definition of the scope of particular racial or ethnic categories are rare. Part IV of this Article discusses the only four such cases this author found. In the first case, the Eleventh Circuit Court of Appeals held that, judged by the rational basis standard, a city’s Hispanic category was neither over- nor underinclusive for equal protection purposes.61 In the second case, the Second Circuit, also applying the rational basis test, held that it was not unconstitutionally arbitrary for New York State to exclude companies owned by people from Spain from its Hispanic MBE category, even though the federal government includes such companies.62 In the third case, the Seventh Circuit held that it was unconstitutionally overinclusive to include immigrants from Spain and Portugal and their descendants in the Hispanic category in Cook County, Illinois’ MBE Program.63 In the fourth case, the Sixth Circuit held that Ohio’s MBE law was both overinclusive in including groups that had not been victims of longstanding discrimination in Ohio, and underinclusive in not including groups that had been.64
Conventional wisdom is that there has been only one case in which an individual’s claim to minority status has been adjudicated in an affirmative action context. The case involved white firefighter brothers named Malone who claimed African American status based on dubious evidence that they had an African American great-grandmother.65 It turns out, however, that the Malone case is the tip of a (small) iceberg.
Part V of this Article reviews cases in which the minority status of a petitioner seeking MBE status for his or her company has been adjudicated. 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. Part VI of this Article turns from racial categorization in the MBE context to adjudication of claims of minority status by individuals seeking to benefit from affirmative action in employment.66
Part VII of this Article notes the existence of laws governing racial identity that are beyond the scope of this Article, in particular laws defining whom the federal government classifies as being an “Indian.”
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 those officially classified as members of racial and ethnic minority groups.67 Given high rates of interracial marriage among other minority groups68 and the reality that mixed-race and mixed-ethnicity individuals can check whichever box most benefits them in a given circumstance, 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. The Conclusion suggests several ways to handle these strains.
*. University Professor, Antonin Scalia Law School, and Executive Director, Liberty & Law Center; B.A. 1988, Brandeis University; J.D. 1991, Yale Law School. For their comments, suggestions, and research leads, the author thanks Charles Barzun, Roger Clegg, Jonathan Bean, George La Noue, Peter Schuck, Michael Rosman, John Skrentny, and John Sullivan. The author benefited from feedback received at faculty workshops at the Antonin Scalia Law School and Northwestern University School of Law. Emily Yu provided excellent research assistance.