Racial "Box-Checking" and the Administrative State

• Pages: 377-384
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: David E. Bernstein
• Subject Matter: Administrative & Public Law

PAPERS

Racial “Box-Checking” and the Administrative State

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 concur-

ring 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 anthro-

pology 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 classi-

f‌ication 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,

*Distinguished University Professor, Antonin Scalia Law School, George Mason University. © 2024,

David E. Bernstein.

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.

377