my name is walter olson. i am a senior at cato's. robert olivier center for constitutional studies. and welcome to our book forum this afternoon on david bernstein's book classified, the

untold story of racial classification in america. before we begin, few words about our format. it is streaming over the internet and thank you to internet streaming watchers for your patience. it's unusual for an event to start at 1220, but that's it is is doing many other is simply watching it afterward via archive and we are also very honored to welcome c-span, which is taping it for broadcast on that network. i'll introduce first to our author and speaker and then say a few words about our panelists, both of whom if technology is our friend, will be joining us remotely on the screen to comment on david's the david bernstein holds a university professor chair at george mason university's antonin scalia law school. arlington, virginia is also an adjunct scholar here at the cato

institute. david is the author of several books, the one who are we talking about today classified the untold story racial classification in america copies are available out there. and i'm sure david is willing to sign one for you. he will be talking for a while and our commenters afterward and i'll give them a bit more of a build up later are scheduled to be robert cottrol, a professor of law at george washington university law school and a specialist in race in american legal history and host of the new york times podcast. the argument i'll look forward to there joining us later and for now, david bernstein. thank you, ali. always good to be here with my friends at cato racial classifications law have been as american as apple pie since at least 19th century. modern tend to shake their heads

with revulsion, even when they think about or read this length, their government authorities when to back in the day to who is black for purposes of jim crow laws or who is asian for purposes of racist immigration laws and naturalization laws. but the irony is that we all while we don't really think about it very often. classification dictated government rules is more common today than probably ever before in american history. so many activities when you register your kid for school, when you apply for a job, when you apply for a mortgage, when you get a covid vaccine and many other activities involve checking a box, saying, first, whether you're hispanic or not and then are a member of racial group, you consider yourself to be. these modern racial classification norms do not arise spontaneously, but are a product of maybe one of the most important, consequential government rules. you've never heard of. a rule called statistical number

15, which was promulgated by the office management and budget in 1977. this was considered at the time to be sort of a modest change. and the reason is that the various federal agencies have been gathering data about various groups in the united states, but the data was inconsistent. just for example, there at least eight different ways of identifying the groups that we now call hispanic. back in the 70. so you had apples, oranges. you couldn't really tell. you couldn't really compare data from one agency to another because is no consistent classification means and definitions of the classification. so the omb said, okay, we just have a regular business. they formed a committee to do so. there was very little attention paid to it. and eventually they came with our modern classifications. and when omb put these into the federal register they warned the way just so everyone just so we don't have a misunderstanding

say that you're not supposed to be anthropological classifications. they're not supposed to be racial. that's what we scientifically anyway. they're not to be used for eligibility for any government programs. they're really just to have consistent statistics among. nevertheless, in a very short period of time, they became used for all sorts of government programs and government mandated disclosure rules, ranging from affirmative action. one area where most of us are very familiar with to some areas that we don't probably recognize that i didn't know existed, that, for example, the nih, fda, by government dictate require all researchers their jurisdiction to break up the people who are who they who are subjects of scientific and medical research by these unscientific racial categories. so have you ever wondered what tribal membership plays in determining whether someone gets the legal status of american indian to be eligible? for example, for bureau of indian affairs programs?

or why, if you're an american, a mixed racial heritage, there is no multiracial category to check and in fact, until 1987, you were only allowed to check one category. or why us government will classify person of south america ancestry whose family moved to asia and then came to the united states as solely hispanic. but if you're from an asian background and you moved to latin america and then to the united states. you are both asian and hispanic, or why the government classifies immigrants from pakistan as asian. but their literal first cousins who may live across the river and across the border in afghanistan are classified as being white or why, as noted, individual researchers are required to break down by crude racial category the research subjects that they use, even though those categories have acknowledges no real scientific validity. classified. my book addresses those questions more.

i dive into the complex and sometimes surreal world of government imposed racial classification. now these classifications, i suppose, because i go into how they developed in the book, but really the easy way to develop them without creating too much controversy was just to use classifications similar to what people are already familiar with. and therefore, again, it's sort of ironically these classifications which had good intentions were actually direct, lineal descendants of the racist classifications that anthropologists had come up with in the 19th century, meaning the general, like black, yellow, brown, white, red groups. that's basically exactly the same which i know again, no scientific bases are based purely on color and physiology. me wind up being the classifications that we know today. some of these classifications like take the asian-american classification, combine groups that are incredibly internally diverse and distinct that match

in a classification that includes everyone in from the western border of pakistan to the philippines. that 65% of the world's population. there are groups that don't look alike don't have the same don't have the same culture, and perhaps importantly, really don't think of themselves even in the united states as belonging to the same category like only about 35% of so-called asian-americans, except the asian-american classification as a secondary identity. but those are the legal classifications we deal with. but at least you might say to yourself, we don't have what they used to have in the 19th and early 20th century. race trials, where someone is arguing that someone really white or really not white, and then we have a whole trial to determine on a variety pseudo anthropological and scientific bases what race they really are. it's all just self-identified. ultimately, right no, unfortunately not. it's true that for the most part, no one will question your self-identification when you fill out a form. but there are cases, especially cases involving people who want

to qualify as minority business for purposes of government or affirmative action programs. where the government does say, wait a second, your name is smith and you don't look like you're quote unquote, hispanic, whatever supposed to mean prove to us that you're hispanic, asian or whatever the case may be. and then there are, in fact, hearings or trials or appeals where judges say in sort of pseudo anthropology, legal ways or what really makes someone an hispanic and, even if we have official definitions, like, for example, if it says you have to be of spanish descent or culture or spanish origin or culture to be hispanic or the federal rules, how far could that spanish origin go? is one quarter enough? is one eighth enough? is the one drop rule the way we had a one drop rule for race in the jim crow south. disturbingly, the way courts go about this actually bears striking and disturbing resemblance to the way courts went about having race trials in

the 19th century. the official classifications can be especially troubling for people who come from foreign countries to the united states because the united states is idiosyncratic. a racial classification scheme is really unique. so when people ask me sometimes, well, what led you to write the book? and there are a bunch of incidents and academic research i did that led me to a but one incident that occurred was our peruvian nanny was applying for a green card, and i was there helping her and she had a form to fill out at at the immigration office and she had no trouble checking hispanic as opposed to non-hispanic. but then asked the race and she goes, what do i put down? and i said, rest, blanca she doesn't know. so blanca so to no address -- not black, as she said, no soy negras, soy mestizo i'm mestizo mixed spanish indian there is no mestizo category, of course, on american forms, even though that's a very common identity in latin, they might say, well, she's part indian.

can she put down that? she's native american or india? but no, because lobbying from american indian groups who don't want share the resources of the bureau of indian affairs, american indians or native americans are defined as be of canady and or or u.s. tribal origin. latin american indians don't count. now, one reason why these classifications are so crude and arbitrary is that no one really thought too much about them at the time because again, these were made in the 1970s. if you go back to 1970, the last census year before there active 15 came into being the united states, still largely had a black white binary, about 12 or 13% of the population was african-american and over 80% was non-hispanic whites. but then even the 5% of the population that was hispanic, although it wasn't called hispanic then, were generally classified as also being white. so basically you had a majority of whites, a significant minority of blacks, then you had

less than 1% of the population as native american or asian. and at the time, again, it was a significant social just so people thought to being considered african-americans. so people thought, well, no one's going to claim to be african-american if they're really not. and we could tell who is or not generally by looking at them and knows who's white, therefore know, these other groups are so small no one really cares. so no one was really paying all that much attention again. they wanted to do was regularize the statistics keeping by the government. now today thanks mass of a mass amount of immigration and also intermarriage, we have a much larger hispanic population. they have been removed from the generic white category. they're about 18% of the population. asian-americans are about 7% of the population. south identify native americans have gone up somewhat and we also have a pacific islander and native hawaiian classification. in any event, they together comprise about twice as big a population as african-american population. so now we have a lot more cases

on the borderline than we used. and even within the african-american community, there's a lot more immigration from places like africa and the caribbean and there's always questions about how they should be classified as a lot more interracial marriage than used to be. it's gone up from less 5% to 22% in the statistics. so there are a lot more edge cases and no one is really thinking about back in the seventies. and you say, well, why haven't they updated the classifications and those of you we frequently attend k2 events could probably figure this out once these classifications come into being interest form around them and are very protective of their boundaries. my book addresses the following questions about official ethnic classifications in the u.s. are the standard racial categories coherent? does it make sense to classify all people who have origins in spanish speaking countries in the same hispanic classification, regardless of skin hue, race, national origin and even whether their ancestors ever spoke spanish? because some people, like basques from northwestern or

indigenous people in various countries, never actually spoke spanglish. it's certainly not as a first language. is there a defensible reason to classify european from spain, but no other national or ethnic group as a minority group due south south asian americans such as pakistanis and indians. east asians such as chinese or cambodians and austrian asians, which is the anthropological that most filipinos belong to, belonging the same singular asian-american, even though they have different cultures, religions and ancestry. and if so, why? how should by a multiracial people be classified? if a parent who black identify in a parent horse identified have a child, should that child be classified as black, white, multiracial or something else? some laws dictate this is a little bit of a shock to me. someone with one quarter indian blood to be a native american, an american indian for programs benefiting american indians.

is that a permissible racial political classification? is it an illegal racial classification? and by the way, one little shocking thing i learned in the book is that if you do have one quarter or less or more indian blood, you could go to the bureau of indian affairs and get a certificate of blood of indian blood, quantum you can find this on the web. i'm not making this up that that says exactly what blood quantum you have, which you know, frankly reminded me of nazi laws about michelins and so forth and so on. they if someone identifies as white in their life and suddenly takes dna test and discovers that they have nonwhite ancestry, say, some distant african american, an african ancestry can now lawfully identify as an african american. and if how much dna is or are there some other cultural attributes that you have to acquire to be able to claim african-american status? and there is one case about this, by the way, which we could discuss in the comments if anyone wants.

what is the boundary between white status and official minority status? there's a movement among iranian and arab-american groups to the government to classify them into separate middle eastern and north african classification, which the biden administration seems to be on the verge of endorsing. should hasidic -- who dress different and have all sorts of cultural, linguistic, religious barriers to participating, mainstream economic life be considered a separate category from the generic white? they almost became a classification for small business administration in the seventies, but they were deemed and remain a separate for the department of commerce and some federal housing and urban development programs are still still. if italian-americans are excluded from a jury in a case involving italian american defendants. is that an illegal, racial or ethnic classification, as some courts hold, or as, oddly enough, courts hold that well,

they're just generically white. so it doesn't really matter which ethnic group the white jurors are from. there's no discrimination. and that raises constitutional issues in such cases. who is hispanic? i already mentioned of the issues involving that. but should it extend to people of brazilian origin who are not currently covered in the hispanic classification because they are at least arguably latinos do people with sephardic jewish ancestry going back to 1492 count as hispanic because they are spanish origin. now some of these issues have been addressed by courts and federal and state agencies, not always coherently, not consistently oddly. the sephardic one is pretty consistent. there are at least three cases i know of in each case the courts or agencies have said that it is at least somewhat and perhaps dispositive of evidence that you qualify as hispanic. now, conservatives long been skeptical of government classifying people by race, at least in the modern period. they don't like some of the

programs that result from these classifications, but surprisingly from when started writing the book until now, there's been increased salience of these issues and these controversies because suddenly the left there have been a lot of questions raised about the coherence and competence and other issues revolving around the modern racial class. for example. of course, racial discrimination still exists, is still a barrier, but there are some times when it's beneficial to claim a minority racial identity, like when you're applying for government contracts. so this has led to the development of a category people that one of my fellow law professors identity entrepreneurs people go about their everyday life living as an ordinary person of european descent, but they have vague family rumors or family history of having spanish or mexican or or asian or some other ancestry and only for purposes of getting the government contracts do they

claim that minority identity in own world of the legal academy. someone actually did a study and found that a lot people check off the box claiming a minority category when they apply to law school than present themselves as being a member of those minority categories. once get into law school, many also have come to question whether lumping all members of official minority groups into the singular people of color category is makes makes a lot of sense and whether in particular distractions specific plight of african-americans and their centuries old struggle against state private violence existing classifications in many instances wind up diverting resources primarily to post 1965 immigrants and their descendants people who have not known jim crow or slavery indeed have only been in the united states in the after of the civil rights era with civil rights protections. this has led activists to increasingly we talk about anti-blackness instead of racism

as a substitute for people of color. the acronym bipoc black indigenous people of color so ambiguous. does that mean black and indigenous and people of or black and just people of color or something? or is it purposely ambiguous? by any event, the idea is to center the attention of the public on the plight of african-america historically and native americans who obviously were the groups that were most subject to racist state and violence and discrimination. meanwhile, some activists go even further, argue that the african-american classification itself should be split between a diverse american descendants of slaves and more recent immigrants who again have not had the historical experience of jim crow and slavery in the united states. meanwhile, most americans whom government classifies as asian-american reject that pattern. ethnic identity. and many americans of south asian ancestry indians pakistanis, bangladeshis are very uncomfortable the idea.

they're lumped into a category of asian where when they know it, most americans think of asians as being like chinese. japanese vietnamese, east asians, in other words. and they really don't have anything in common with those groups. so i looked this up out of curiosity every major university has a it has an asian pacific islander group and also has a separate south asian group. and sometimes they also have for foreign graduate students, separate pakistani and indian groups, because those two groups, if they're least from pakistan, india, don't get along with each other for some obvious regional reasons. in short, the time is ripe for a full reconsideration of the of racial classification in the united states. my book focuses on how the modern law of racial classification has developed, how the familiar categories and their boundaries were established by, the government, how they are enforced, and what might be done to reform the classification and also how we might use more nuanced demographics, not racial classifications, to better some of the same goals. they're now being pursued by

arbitrary racial classification for example, if you really want to have a genetically based medicine, you shouldn't use crude racial as a proxy for people's genetic heritage should actually use genetics, which you can do now because dna tests are relatively cheap and available. a final thought? there's long been an internal american struggle. the desire to maintain racial classifications as a necessary prerequisite for redressing harm from racism on the one hand and on the other hand, wanting to eliminate these classifications as unconstitutional illiberal, divisive and so forth. the other. and that has yet to be resolved, though i want to point out that many law professors, other academics, particularly those writing from a critical race theory perspective, start with a presumption that racial is a permanent part of life. and if that's true, then you can understand why you want to classify people. and then make sure each group is getting some of general resources. but i disagree.

all sorts of and religious confer lists that were once prominent in american life have faded into distant memory. this includes relatively obscure rivalries, such as germans versus scandinavians in the upper midwest. because we'd read sinclair lewis, if you want to learn more about that. and tensions between shepherds and ranchers of other ethnicities in the mountain west. it also includes better known and sometimes violent religious conflict. anti-mormon riots in the 19th century. the history of protestant hostility towards catholics that led, among other things, to a vigorous rebirth of the ku klux klan in, the 1920s, and also the attempt by various government authorities to suppress jehovah's witnesses was actually led a lot of our major first amendment cases in the 1940s. these have only the faintest echoes today, and i think most younger americans in particular think of them as being kind of ridiculous, like no one cares that we have a catholic president, catholic speaker, the

house, six catholic supreme court justices, except sometimes when abortion comes up, that becomes an issue in general. there's no no one's rioting in illinois over the catholic dominated u.s. government in future. perhaps we will look back on racial conflicts as a vestige of a less sophisticated and tolerant past. how the us government handles racial classification will pay play a major role in whether we reach that outcome. law played a significant role in establishing racial divisions in. the united states and law, or its absence can play a significant role, either maintaining or abolishing or at least diminishing those divisions in the future. thank you. you, david. joined for comment and please, i don't have a good view of the screen, but i believe that both of our commenters are ready on the screen. we're joined for comment by two distinguished guests and. i'll give a little bit fuller introduction to them now that

you can see them. jane coaston, the host of the new york times podcast, the argument. previously she was a politics reporter at vox and mtv2 logo. a for the human rights campaign and a former resident fellow at the university of chicago's institute of politics. she is a native believe of michigan, the best state to a native of robert cottrol is the harold paul green, professor of law at george washington university law school here in washington and a specialist in race and american legal history. he is the author of several books on that and other and is also known to many of us at cato as a prominent scholar on the second amendment and the history firearms law. he has just the book insurgent victory, heller, mcdonald and the rest of the second amendment. look forward very much to reading that one. so, jane, if you're ready. why don't we start with you? do you? first and foremost, i guess for

me. it's a pleasure to be here. and i just i also when i read walter reached out to me about this book, it was one of the first cato events that emmy really brought up, a memory of child hood, which for any mixed race person, is the first time you ever have to fill out a and you have to fill out your racial categorization. and if you grew up in the late 1980s or early 1990s, as i did, the options were black, white, hispanic or other. and i always had to fill out other which, you know, the myriad of possibilities, other contained, always were was very entertaining to me. but i was also struck by these racial classification are attempting to make a science out of a culture racial understanding of race. and then when science needs have a conversation about race,

science finds it difficult, do so. i was particularly struck in the book by the discussion about the role in which race does play in science, in which we have discussions about certain groups having lower birth weights or certain groups and experiencing some genetic anomalies that other groups don't. but with regard to other categories of asians, for example, the idea of being hispanic, that's not a racial categorization, that's an ethnic categorization. and yet it often treated by and by governments as being racial categorization. and i think that i was really interested, obviously, in the chapter mixed race identity. i do think that as someone who identifies as being a mixed race, but also as being african-american and caucasian, to deny either be to make one of my parents very upset. i think that it's contemplating how growth of that

categorization tells. i think a very story about race in america, about the work that has been done since loving versus virginia, in which the supreme court eliminated barriers to mixed race in america. and i think that some of this is an effort in which law and government it's catching up to where people are right now, and where people will continue to be. i think that racial categorizations are attempting to science sense out of culture at a part of how people see or how people see other or i also our innate desire to understand who we are and perhaps more importantly, who someone else. and so i that the story of racial classification and racial racial categorization is an effort to make sense out of an idea that doesn't actually make that much which is how we think

about race, how we think about whether or not does being 6% of african descent you african-american. i was very amused by the story. the man who attempted to argue that he was indeed african-american because. he wanted to get small business benefits, and in part he did so by the naacp and getting a subscription. ebony magazine, which great magazine, though. and so i that so much of these classifications are attempting to use numbers and data to make sense of something that perhaps be seen by numbers or data. are you know in in england for example, being asian that you are a south asian. it does mean that you are south korean. and these these categorizations and these attempts to use to make sense of how people see

themselves was always going be a fool's errand. i think, though, that i that this also offers us an opportunity to rethink how these categorizations guide our lives. and especially because we want categorizations to tell us something ourselves that perhaps they were always going to be unable to do so being african-american 2022 does not mean being african-american. in 1960, and particularly when there are people who just find themselves being african-american, who, as we discussed earlier, are descendants of folks who were able to immigrate after to the states after 1965, their historic experience of being african-american is going to be very different than my family's experience of being african-american. and i think that all this is to say that we are experiencing government data, attempting to catch up to culture and to catch

up to the movement of people as people's self definitions change and even slip as we see that only a certain small of people whose family comes from mexico check the hispanic box on forms we learn in the book. and so i think that all of this is to that racial classifications, attempting to make data sense out of culture. again, that was going to be a fool's errand, but i am hopeful that this book offers the time to you. start a new conversation about what these mean. this classification mean something very different in the world of science. but as we've time and time again having discussed things about race and science can a tendency to lead in a direction? no one really wants to go in. but one that's still worth having a conversation about. what does it mean for affirmative action. as we discussed in the book, when affirmative action can at

especially elite university is often helps people who are already 80 and better financial standing than many of the people perhaps thought they were intended to help. i'm really excited the conversations that this book open and just i'm glad it was written and i'm really glad that i can be here to talk about it. thank you, professor. thank the cato institute for the invitation and the opportunity to look at david bernstein really and provocative book and it's it's par with many of the quite interesting conversations that i've had with with david over the years. i'm going to quandary when i look at this book because i think of it does a good job of

exposing the nonsense that racial classification often is racial can be absurd they can be of nonsensical. i do a lot of comparative looking at the united and latin america and i think of the colonial cast of categories existed in latin america, which many of the people in latin america, including immigrants from latin america, heir to the the categories, had some 16 different racial and their cold slashed color definite that they used get to categorize the people's of colonial latin america the spanish empire, the span of child of a a spaniard was an indian woman is a

mestizo. the child of a mestizo with a spaniard as a caste. this the child of because so with the spanish woman is a spaniard on on for some 16 and in some cases more categories. none of these really made sense. and the actually the costa system or the classification system actually broke down as not representing the reality of. what life was like in the spanish empire, but nonetheless it became only part of the law. but indeed many cases, part of the culture and part of a culture that is still used or we have in the united states the infamous one drop rule with respect to certainly to people of african descent. the idea that any african ancestry makes you black.

there are people in this country alive today who have fair skin blond hair and blue eyes, who have or colored on their birth certificate and they regard themselves as such or they regard themselves as black or african-american to update the lexicon. but nonetheless, even though they are phenotypically totally different from what we would think of as a black person, they nonetheless regard themselves as such. we have other people for whom the racial mixture occurred, let's say, in the 1980s or 1990s who regard as mixed or who don't themselves as black or american at all. i think one of the things that we have is how do we integrate notions of racial categorization when we are, in fact faced with

immigration from other parts of the world where, people have perhaps a very different sense of how to categorize people or in some cases, i particularly how we deal with the hispanic category is particularly interesting. i happen to be a few in southern brazil well a few years ago and southern brazil is very interesting case. you haven't been there most of the population is of german or italian descent. there are still people, many people at home still speak german or italian as opposed to as opposed to portuguese. one town in southern brazil and santa catarina boasts of having the world's second largest octoberfest. i was in santa catarina and i was talking to a german brazilian woman who was a student, a university.

she asked, well, could she benefit from affirmative action as a hispanic in the united states? and my initial reaction was to say, well, no, that's that's absurd. you know, you're almost you're of pure german descent. but when i thought about it more and more, she probably could. which leads to the sort absurdity that we have so have a system of racial classifications that, i think is david, as ably pointed out, leads to absurdities and, some anomalies when we propose something though, it not be as easy. get rid of these as we might think. yes, it's absurd to classify somebody who has blond hair and blue eyed black.

yes, hispanics be of any racial and assume, you know, that's the rest of the population has to realize. i have encountered black hispanics, white, hispanic, chinese and japanese hispanics. you know, the term has no racial meaning as such. yes. the that we have leads absurdities. but let me pose what i think is the hard question. i have. they taken on a life, an importance of their own and a life in importance to own that goes way beyond any size, merit that classifications may have. for example if we say that there are people who are discriminated hated against because of race,

then it seems to me we have to have a vocabulary and perhaps we have to have an official vocabulary to describe what is being done. if we decide to say, look, racial categories are absurd, we can point to all sorts of anomalies and also not only but absurdities in terms of the way we use them. how do we then we in fact determine first one equal all inequality without even getting into the question of discrimination and then. don't we need classifications or how do determine whether or not discrimination is occurring and whether or not inequality is occurring or if we, in fact don't have the vocabulary that

allows us to say? there is a group. well, we might category that group as x that group suffers subsets and still inequalities in terms of education, social services, employment and other indices. we suspect that discrimination is a part of that. and even if we suspect that it's or even if we discuss that or say that discrimination lessening we believe, at least for some groups, remedial measures are necessary, i.e. affirmative action by whatever in an annual give it to remedy any quality, particularly if you're talking about entrenched in an intergenerational inequality for which just discrimination is certainly the

genesis of can we do that without a system of racial categorizations. and if so what would be the substitute for these questions? i think that we haven't really started look at in terms of okay recognizing that you know racial categorizations are unscientific and in many cases certainly at the far edges are absurd. do they nonetheless serve a useful purpose? that we may want to get rid of them? then can we find a substitute that will us do what we are trying to do today with? racial classifications, even for example, anti-affirmative activists who are now putting forth proposition that harvard and, other elite schools are discriminating against asians.

asian-americans are half do in fact use racial classifications in order to make the statistical case that this kind of discrimination is occurring. could they do without the exist of racial classifications? again, i'm not saying we necessarily want to keep them, but we might want to. in fact, and see, you know, do they now serve a useful purpose? and should we and do we can we find a substitute for equally serve that purpose? but let me just end by saying think david is done a tremendous service by raising the issue and highlighting the difficulties of racial classification and racial categories. i certainly learned a lot from reading his book and from conversations that i've had on this topic with him over the years. thank you.

now i'd like to invite the panelists and professor bernstein generally offer anything that they'd like in response to each other's comments. one thing i'd point out about format here is that because we at the table can't see the commenters don't raise your or wait for us to catch your facial expression. you just jump in as if it were a phone call because that's the only way we're going to know that you want to speak. but do any of you have reactions do you have reactions to the comments? sure. with regard to the issue of trying to racially as a culture cultural phenomenon, i think that's right. i wanted to say that, as i say a little bit more about the use of race in medicine, because i think this was the most surprising, really maybe disturbing thing that i

encountered in my research. so in the 1990s, there was concern that women weren't being used sufficiently in academic medical and medical studies. biomedical studies. and the reason were reasons for that. but the reasons. but women do physiologically differ from men. and there was concern that testing things only on men was going to leave out possible side effects or better or lack efficacy on women. so congress decides to intervene. and civil rights groups have been very interested in this issue. but they sort of jumped on the bandwagon in the last as an amendment to a federal law that would also require that fda or nih grantees or regulated bodies would to consider race as well, but have to break down their subjects by race and make sure they're using enough of different racial groups, unlike women, there was really very little scientific reason to

believe that this would be a useful thing in general and specifically there was really no thought given to whether what racial categories one would then use, right? you could break up. i mean, africa, for example, is a very diverse continent. many somalis and ethiopians are more genetically related, arabs and --, and they are sub-saharan africans. so they required they required the fda. and i should do this without really any thought. fda and nih proceeded to request comments and the fda in particular every single biomedical group said this is a disaster. this is crazy. these are using the standard racial classifications would be a nightmare. but, you know, if you're in the fda's position, what are you going to do? you're actually going to gather anthropoid allergists, geneticists and so forth, have a conference on what is race that would just, you know, the political consequences. that would obviously be a nightmare. so they just use the crude classification lens, which has had, i think, tremendous negative. it has stifled because their

opportunity costs outweighs they are less likely to actually look at actual genetics. so it leads to stereotyping among doctors and medical researchers. when you go to the doctor, they you your race they really shouldn't because odds are your racial heritage is going to be actually useful in determining is pretty slim. and you know the fact that one self-identifies as native american or as bob was saying, you could have very little african ancestry, be african american. and so you're if there wasn't a usefulness confounding it because your self-identity necessarily match your genetic heritage. and so and so on and it's just shocking to me that. science writ large has sort of gone with this as opposed to saying, wait second, everyone knows even the government itself told us these are in scientific classifications. we can't be using these in scientific research. i rise to bob's point. people often say, well, why don't we go to the french system? the french both declined,

classify anyone by ethnicity other than french officially. and there's also a strong social norm against it. and the reasons that we're not going to do that is that whether you think that would ultimately be a good idea or not? exactly what bob was saying. it does prevent looking into inequality, enforcing discrimination laws. so in france on the one hand, they encourage assimilation and national solidarity by not having ethnic classification. on the other hand, there's almost no research on why certain north african groups have an integrated well, because no one's allowed to study that. when there was a wave of anti-semitic violence in france, largely coming from the from north african immigrants against north african --, it took a long time for the french government to be responsive because they said, well, they're just frenchmen. this is joe. just put these under normal criminal the criminal statistics. we shouldn't separate this out by who the attackers were or who their victims were. that's anti french.

so this is a complicated story and i don't spend much of the book talking about solutions but what i say at the end is that we have figure out what are the classifications being used for and then figure out what class should there be racial classifications at all? like in medicine, there shouldn't in my opinion. but in rights enforcement, the classifications we use are crude, but they're probably good enough. but first, for example, sociological research. you want to see inequality. it's a problem to just combine people into different groups. we see that asian-americans are doing well. you know, in education and economically. but it turns out that indians and chinese have way average incomes and burmese and malaysian americans have below average and averaging them out doesn't really tell you anything. the specific groups. it can also you know if nigerian immigrants doing well and they are one of the higher income groups and they're raising the african-american average that might mask the fact that other african-americans not doing well. so we do need, i think, to be much more finally grained and how we do research like that.

and any other comments from the commenters. okay before go into general? i'm sorry, go ahead. i think robert, also a thought, but i was struck by your with regard to race in medicine. and i think that this plays into something i think robert brought up about like how do we track and do we think about discrimination without using these categories because i think that that while race is not you while race should not like and race and racism obviously should not in the medical field it and i think that we're thinking about how to respond to discrimination in medicine which does take place even if. yes and i think that's an excellent point. talking about the body the amalgamate portion of humanity that is african-americans is actually a massive category. and i know that when my aunt did

23 in me, we that some of our relatives from benin which is a specific place with a specific genotype and yet i know african-americans within the medical within the medical profession have experi specific types of discrimination. for example being believed to be more resilient to pain. there's been also a lot of conversations about with regard to maternal mortality. so i think that that's that's the figures we are the has left the barn, so to speak when it comes to how we think about race in medicine and now we are in you know we are in this moment of trying to figure out a better way forward while also seeing the ramifications of decisions that were made previously. but i think, robert, you wanted to say something. yes. at the of adding yet another for people people of african americans of african descent. you know i've lived through about six or seven of them during the course of my lifetime

i've always found the term african somewhat problematic, like precisely because. it lumps those of us who are descendants of american slave in with recent immigrants. you know who. yes we may share some things but we have tremendous differences and i think you i've frequently tended to use in recent writings revived the term afro-american rather than to describe people who are. or from the americas who are native to the americas of descent, rather than to distinguish us from. people born in africa who then moved to the americas. but just as small point, but nonetheless know a problem with classifications of as they've developed and.

little permutation that i did not before i wrote this book that 10% of people who are classified as african-american on the census were abroad. and if you combine in their children and grandchildren, i don't know exactly what the percentages, but it's much higher than i would have guessed. not having done this research. and again, if you're averaging the statistics or whatever you are potentially confounding the research you're trying to do by combining two groups that may have different attributes into one. well, thank you. soon we move to general question and answer from the audience. but i wanted to take the moderator's prerogative to ask a question or two myself first, if i could be a devil's advocate a little bit are david you do a brilliant job and what we used to call deconstruction in the law schools. you know, this was the i'm even going to call it a fad. this was the school of thought

that became tremendously influential said that take any old revered uncontroversial legal concept and you can that it's arbitrary and historically contingent and contestable and i have never seen anyone do such a number on legal concepts you have done with race here. they are all so far as i can say, arbitrary or a historically contingent and contestable a few of my favorite examples are mr. taylor from the state of washington who was blocked, when working on state funded contracts. but when the federal government was partially funding the work, he became what the situation of southern californians who are of armenian descent were protected groups so long they were in the city of pasadena and nowhere else. and if they moved to altadena or south pasadena went back to becoming an unprotected group. the the fact that all of this and this was new to me even though i been writing about these things for a long time,

the fact that we all of this not to any of the agencies that have have built up any expertise on discrimination but they office of management of budget of all agencies. you know the last place i would ever go to expect cultural sensitivity about who who you know and that's where we wound up getting it. and then just i could go on all day, but my my favorite last one is the guidance, the equal employment opportunity commission saying that i know and of people could count as being from of spanish culture, origin unless they were from spain itself, in which case they could not say they were of spanish cultural origin figure out i can anyway. so so it does. so if nothing else you will take away from this book, which i strongly recommend the realization that many of the words that you thought you knew have ten or 20 or 30 different definitions, depending on whether or not they come up. a context of housing

discrimination or employment discrimination or statistical gathering. and then i thought, wait a minute. you know, one of the things that i think part of the law school experience is realizing that this matter of having 28 different, inconsistent definitions is not just race words, kind of all words. if you turn to any legal term, whether it you to effect something or to, you know, whatever it is, property or whatever, will find that the definition for pattern the law is a little different from. the different from the definition in banking, which is a little different from landlord tenant law. and it's explained, you know, stop being so analytic thinking that all the definitions have converge. each definition serving a purpose because the law has somewhat different objectives in each of those areas. it's okay that the law is solving problems when it uses a slightly different definition in each context. couldn't you defend what brilliantly document in the book as saying this is just the law

is different? a way of solving problems in the different areas? sure. i mean even can see that the original if the rules had been limited to their original purpose primarily of helping government agencies enforce anti-discrimination rules. the classifications are still inexact and crude, but you know, if someone discriminates against you, hates hispanics or mexicans. let's say they may just your last name is lopez and they don't really care what you look like. they just go throw your resume into the trash and so forth. someone who discriminate, who doesn't like black people won't necessarily care whether you're a nigerian immigrant or whether your ancestors came to the united states in chains in the 1650s. so for some purposes, these classifications of you may actually be useful, but i think, you know, the question is we are using them for a lot of other now. and they also come to affect

people's self identity and see how we see other people. and the question is that is that productive in some way? that's good enough or is it counterproductive? and i guess my will ultimately be that it's counterproductive. i mentioned medical example or i think there's a lot of controversy. the moderna vaccine was actually delayed for a few weeks because the chair of nih, who had enough previously written in academic writings that we shouldn't use race in medicine. so that moderate didn't enough members of the hispanic and black classified patients to go forward with the vaccine even though there was absolutely no scientific reason to believe that my rna work differently on. certain groups and on others, especially non-hispanic or not, as we've said, are a distinct racial group to begin with. so then there's also, you know, let's say you're trying to study you want to you're concerned about inequality among the hispanic population of. so you get a government grant. government requires you to break down your research subjects. they have a definition of hispanic.

you have to use it so your you have so you you resolve that let's just say the hispanics are doing about average compared to the general. so there's nothing really to see here. well, however, of if you look at the actual hispanic population, florida, of cuban-americans who came in the 19th, early 1960s, some who came before, in fact, you have those who came to the mariel in the seventies who are sort of two distinct populations, then you have the venezuelans and argentines who more recently to escape economic and political turmoil in their home countries. and then you have i was once driving through central florida and some roads i didn't know existed. and it was you could have easily been in a small town in mexico. you have mexican laborers and part of florida. you've had a large scale immigration of puerto ricans recently into central florida. and each of these is a simile or at least there's no reason not to assume likely has different levels of educational

achievement, different levels of discrimination that they feel they face in society, different social, medical, other. and you would never know that just by averaging them together. so to a large extent, you know, i feel like these classifications often obscure more than they illuminate and why they're being counterproductive. so it's one thing to say, well, we can't be completely exact, which is undoubtedly true with legal definitions in many cases. it's another to say, well, we can't exact so we should just let any arbitrary classification stand regardless of the negative social consequences. and that's another story entirely. okay. we will be taking questions from both the in-person and the online. a lot of questions have come in from online watchers. if you are an online watcher, but do not know how to ask a question, you can enter it directly on the event web page, facebook, youtube or, twitter using the hashtag keto events, keto events. the way to ask a question.

in the meantime, we will start with questions from. the in-person audience. if any of you okay, sir and if you could wait for a microphone. i think someone's going to bring you a microphone. do we have. yeah. and then when you get microphone, besides speaking clearly and directly into it, if you could state name and affiliation so we know you are. thank you. i'm leon weintraub. i'm a retired member of the foreign service. i wonder if it might be helpful if the author might think to give us a little bit of background concerning the controversy about elizabeth warren and allegedly her claim to indian ancestry and then backtracking on that. i'm wondering if how that all happened, how it occurred might help us understand how this whole works at a more granular level. so interesting that you ask that because in i have book introduction in chapter one, i

go through some famous individuals whose ethnic identification has been in some sense contested publicly, although not necessarily legally. tiger woods, who refers to himself as caleb an asian, is one example. elizabeth warren is another. and elizabeth warren mean, you know, my sense of it because i've written about it at at the time is that she went to a relatively mediocre law school not a bad school but not at the harvard law school. you would normally get a job from harvard, which is rutgers and she wanted an advantage. and had some vague family rumors or history that she might be native american. and she put down that she was and that helped her may or may not have helped her get to harvard, but she thought it would. and the reason i'm pretty convinced that this was her motivation was that as soon as she got to harvard, she stopped listing herself in the law professors guide as being native american. so i'm sure that anyone who's defended her has explained why would be unless she suddenly had an epiphany that these stories were not true.

but in any event, what i, i go through to show what the legal definitions be and i do have a separate chapter on native americans or really they're usually called american indians in federal law. it's a fascinating subject. the older they're asked the different laws. they have different definitions. some require the one quarter blood quantum, which she doesn't have some require they be a member of the tribe, which she is not. however, some say affiliation is sufficient, which she may or may not. you could argue. she has. she wrote a recipe. the book powwow chow recipe. and they have american recipes. maybe that's evidence she's accepted culturally as native american. and some just say, you know, give the criteria and other person recognized as an indian by the bureau of indian affairs. so as long as the government says you're an indian an indian. so it's a little bit more ambiguous than you might think. but in the end, i think she was in that classification of identity entrepreneur.

an online question from. eloy there are directed to professor cottrell, but really anyone on the panel can answer it. do you think the american system of racial classification will eventually fade away as a result of exposure to? other cultures with more flexible notions of identity? or will american ideas about race be exported gradually to the rest of the world. i think we will, as is necessary, see the same racial classifications that we've always or have now in perpetuity. but one of the things that is actually happening is at least in parts of latin america has is there has been an exportation of american notions of identity, particularly an which i find somewhat puzzle of the one drop

rule or something that among many afro-latin groups in in a number of nations what happens is the tradition in latin was to recognize the recognized various mixed categories mulattos of morris skull and other kinds of categories that indicate that you were partially of african and partially of other backgrounds of there's been a movement in latin america to replace those terms with the term afro descent or in brazil afro the idea i'm african descended and i don't necessarily thoroughly recognize the tradition regional mixtures that have been traditional in

latin america. and i think many afro-latin basically we want the unity that is occurred within the black population in the united where you don't yourselves by of racial mixture. but everybody says i'm black and. so there's a desire to pick that up for political purposes. the for the idea that produce a unity among a group and in some cases simply for. one nation that fascinates as argentina where there's a claim there's historically been a claim throughout the 20th century there are black argentines. well there are black argentines. there an even greater number of argentines who have some african ancestry, sorry. and the afro argentine movement is trying to claim them and essentially to use the one drop

rule to adopt it to basically increase numbers, invisibility. so there's been some export, you know, to varying degrees of strength of u.s. ideas, of racial identity. and and certainly we're assimilating other ideas, including that have developed in latin with our large hispanic population. i would also say that we've seen that happen in europe as well, where black lives matter became a catch phrase in france for french africans, which has been a real subject of some contesting this idea that american unquote wokeness has been exported. france. however, i think that that also gets to the idea that many people want a language in which to talk about race. but in a country such as france where you are french and it i

think that they are where you have people who are looking to america even if it's just in the sense of how can we talk about the fact that our experiences are different and our experiences are reflective of who we are in this particular. and so i think that that's something like the interchanging of how we talk about across cultures is always been really interesting to me, especially because as a mixed race person, i've looks to the history of mixed race people in brazil, for example, but also in folks new orleans and the history of new orleans. and that also gets into the history of folks are creole and also the history of race in france. so all of these ideas are very contested. they all flow out of international borders. we time for a super quick question. if has a super quick one. okay, gentlemen.

on the left there. got to be fast. okay. pat span, retired us government. one quick thing that the irony i somewhere on senator warren was that her ancestors were the soldiers that escorted the indians into oklahoma. but but that's an irony but i was wondering when did when i was when i was growing up in an old person in the 1560s going to school. those three races there was caucasian, negroid. when did it change that? we use it basically tribal and ethnicity has become identified as racial. it just seems very strange to me i'm going to say that to answer that question when did it change? you need to be devil's book because it's too long an answer for us to to to to pack in here before we have to. but thank you. it is a good question. lots of answers in david's book. i want to thank our audience for

attending in person. thank you to our large on stream audience. thank you to c-span televising and especially thank to our panelists to distinguished commenters and to professor david

tonight, it is my pleasure to welcome ambassador nikki haley back to the nixon library and to orange county. the ambassador the author of if you want something done, a brand new bestseller, iconic