August 10, 2022

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Over the last half-century, America has concocted countless affirmative-action programs in government, academia, the military, and business, with many new ones hastily ginned up just since George Floyd’s demise.

But the bureaucratic details of how they work (or don’t work) tend to be kept rather secret from the public. After all, the less the victims of racial quotas hear about them, the less they will think about them.

Hence, there tend to be more urban legends than facts readily available on who exactly qualifies for which racial and ethnic preferences, and what boxes you could check on your application to gain an edge. Law professor David E. Bernstein’s instructive new book Classified: The Untold Story of Racial Classification in America recounts dozens of cases of audacious individuals who pushed the envelope to get the government’s thumb on the scale in their favor, often to the befuddlement of bureaucrats and judges.

“Most of the time, having one Hispanic grandparent makes you Hispanic, although it can’t hurt to show that you frequently cook your grandmother’s enchilada recipe, too.”

It’s important to keep in mind that one reason the American government’s system of racial and ethnic classifications is, in Bernstein’s words, “almost comically arbitrary” is because no rational master plan was ever fully conceived for it. Like Topsy in Uncle Tom’s Cabin, it just growed.

The U.S. isn’t France, where top bureaucrats who are 150 IQ graduates of the École Nationale D’Administration would have been tasked with coming up with a rationale of Cartesian elegance. (Of course, the French state doesn’t collect statistics on race and ethnicity at all, seeing classification as undermining the individualist and nationalist principles of the Republic.) Instead, starting during the Truman years, obscure federal bureaucrats put together some boxes to check on paperwork forms, and things just sort of growed from there.

Thus, there have been many contradictory policies over the decades, so Bernstein’s book can only serve as a rough guide to what to expect if you decide to undertake your own personal odyssey through the race classification process.

In America, race classifications work largely on a self-identification honor system: You check the box or boxes that you want to represent you.

But be aware, if you are too blatantly fraudulent, you can get caught, especially if you left a paper trail of previously checking the accursed white box.

The most famous case is the Malone twins, Paul and Philip, who initially applied as whites to be Boston firemen. But they weren’t bright enough to reach the minimum test score for white applicants. Yet they were clever enough to retake the exam as blacks and perform well enough to be affirmative-action hires.

But they weren’t smart enough to get their stories straight when finally challenged a decade later:

[Captain Stapleton] questioned each brother individually about their identity. Paul told Stapleton that his father was black; Philip reported that someone in his family was black, but he did not remember who.

They were fired.

The scandal led to a citywide effort to purge all the white phonies who must be passing themselves off as nonwhites in Boston government jobs. But few additional white hoaxers were found, and investigations wound up focusing on puzzling edge cases.

In truth, the American race classification apparatus manages to clank along as well as it does because most white people are strikingly honest about not cheating in matters of race. Of course, nobody, including Bernstein, notices that because we aren’t conditioned to be aware of patterns of whites behaving well.

Bernstein is a lucid and witty guide to a huge number of head-scratching marginal cases, such as the Poland-born Jewish media mogul who got a big tax break for buying a radio station as a Hispanic on the grounds that his ancestors were expelled from Spain in 1492.

Wait a minute, do Spaniards really qualify as Latinos for the purpose of quotas?

Yeah, they do, most of the time. For example, Bernstein has a long set of anecdotes about firemen and cops who switched their identities when affirmative action came along, such as Larry Giovacchini of the San Francisco Fire Department. He suddenly remembered that his grandparents were born in Spain. A Mexican fireman argued, “For someone to be an Italian for forty years and then become a Latino in the forty-first year is blatant opportunism.” Giovacchini was unruffled: “If the city wants to give me an advantage for being Hispanic, fine.”

It did.

But when NYPD officer John Lagrua similarly switched his classification from white to Hispanic because his mother was born in Gibraltar, which is ruled by Britain but is claimed by Spain, bureaucrats and judges threw out his new privileged status because Gibraltarians drink too much tea to be Hispanic.

Or something.

What if your father was born in Argentina, but his parents, like so many Argentines such as Pope Francis and soccer legend Lionel Messi, had been born in Italy?

In other words, is the Pope Hispanic?

No, said a New York state appeals court when the Marinelli Construction Company applied for a lucrative minority business enterprise certification. Why not? The law refers to “Spanish origin,” and Mr. Marinelli’s Argentine father was of Italian origin.

But I doubt this rather stringent interpretation is applied very often.

And then there was San Francisco fireman Alberto Da Cunha, a Portuguese raised in Macao near Hong Kong, who wanted to transubstantiate into a rare Asian fire captain. His bosses were all for it because that would make their diversity statistics look better, but the civil service commission rejected his ploy.

But what if this Portuguese fireman had tried to become Latino? Brazil is in Latin America, so while Brazilians might be Lusitanic rather than Hispanic, can’t they claim to be Latino? And if Brazilians are Latinos like Mexicans, then the analogy that Spaniards qualify for affirmative action would suggest that Portuguese do too.

I mean, it’s worth a shot.

Classified is helpful in disentangling a characteristic Great Awokening spat that broke out over the weekend when movie actor John Leguizamo, perhaps best known for playing Italian plumber Luigi Mario in Super Mario Bros., threw a tantrum over the news that James Franco (Pineapple Express) had been signed to play Fidel Castro in a biopic about Castro’s anti-Communist illegitimate daughter, Alina of Cuba.

Leguizamo’s supporters in social media were outraged that a white man, Franco, had been signed to play a Latino, Castro.

Franco’s backers responded that Castro was a white man too (which is why Castro famously looked like Liam Neeson and Justin Trudeau). His father was born in Spanish Galicia just north of Portugal and his mother in the Spanish province of the Canary Islands. Similarly, Franco’s paternal grandfather was from the Portuguese island of Madeira.

But is Franco being 1/4th Portuguese good enough to qualify him for Hispanic affirmative-action benefits according to the U.S. government?

First, is being just 1/4th Latino enough to claim that potentially lucrative status?

Yes, most of the time, having one Hispanic grandparent makes you Hispanic, although it can’t hurt to show that you frequently cook your grandmother’s enchilada recipe, too.

What about being 1/8th Hispanic?

Apparently, that’s more of a challenge. According to Classified, a number of judges and officials have opined that getting affirmative action for being 1/8th Hispanic is absurd. But who knows, if you have enough of the Spanish version of chutzpah, you might get away with it.

Second, what about Franco being a little Portuguese? Is Portuguese close enough to Spanish for him to make the cut?

Bernstein reports that the main federal race classification agency, the Office of Management and Budget, does not consider the Portuguese a protected Latino group.

On the other hand, the Department of Transportation does count the Portuguese as one of our oppressed overlords. So, if you hear that, say, DoT secretary Pete Buttigieg has awarded James Franco, an enterprising man, a contract to build a new overpass on an interstate highway, you’ll know why.

The main plotline of Classified that partly unifies all these disparate examples is the rapid switch during the 1960s from America being a land of white privilege to one of legal nonwhite privilege. Thus, in the 1970s, immigrants from India, seeing themselves losing out to their officially Oriental rivals on government goodies like contracting quotas and low-interest Small Business Administration loans because they were counted as white, got the government to switch their categorization from unprivileged white to eligible Asian.

(One farsighted Indian activist group objected to this change on the grounds that someday being lumped in with high-performing East Asians might hurt them due to quotas. And indeed, Indians would be better off these days applying to Harvard if they were still considered white.)

As Bernstein notes, Indians and Chinese don’t have much in common, genetically or culturally. But government categories can more or less socially construct groups. These days, white people tend to assume that if the government calls them “Asian,” then they must have solid reasons to group them, like, say, they both eat rice and are good at math. The sordid story of why South Asians stopped being white—because being white doesn’t pay anymore—is not at all well-known among whites. This makes it easier for naive whites to fall for today’s reigning conspiracy theories such as “white privilege.”

Not surprisingly, West Asian and North African activists have been trying to bail out of the now-disprivileged white race ever since South Asians made their escape. The outgoing Obama administration granted “Middle Easterners and North Africans” their wish for the 2020 Census, but then the Trump administration reversed the plan.

Back in the days of actual white privilege, the League of United Latin American Citizens successfully pushed for Mexican-Americans to be counted as white on the 1950 and 1960 Censuses. But with the introduction of affirmative action in 1969, Latin pressure groups organized their jailbreak from whiteness.

Their problem, though, was that some Latins were white and many others liked to think of themselves as white—Latin American culture has truly been white supremacist since Cortez landed in Mexico 500 years ago.

How to qualify for racial affirmative action while still checking the box as white? Bernstein cites the witty Chicano essayist Richard Rodriguez’s allusion to Richard Nixon as “the Dark Father of Hispanicity.” The Nixon administration came up with the cunning notion of creating a new category orthogonal to race: ethnicity. People of Spanish cultural origin would be gifted with valuable “Hispanic ethnicity,” while everybody else got stuck with the booby prize of “non-Hispanic” ethnicity.

This Nixonian distinction between race and ethnicity is actually insightful. If you define a racial group as a partly inbred biological extended family, and an ethnic group as a collection of people united by traits, such as language, accent, cuisine, surnames, and so forth, that are usually (but not necessarily) passed down within biological families, then the subtle difference between race and ethnicity makes sense.

But like a lot of Nixon’s stratagems, it was too brilliant. Almost nobody got it. Instead, they just started thinking of everybody from south of the border as being of the Latino race. Due to Nixon’s brainstorm, we’ve now managed to socially construct a population that has a hard time seeing with their own eyes that Fidel Castro was white.

Over the coming generations, America’s classification system will slowly devolve into absurdity as intermarriage gives more and more individuals some kind of genealogical claim to eligibility for racial preferences. For instance, Bernstein reports, there are now official members of the Cherokee tribe who are only 1/4096th Cherokee by ancestry.

But his conclusion that the classification system is currently “generally good enough” is similar to mine when I looked into it at the turn of the century, almost a generation ago: “It’s good enough for government work.” So, we can’t expect it to collapse in the near future of its own accord.

Unexplained in Classified is why the United States discriminates against its native sons and instead showers taxpayer money on immigrants and their progeny for not being white.

In the last chapter, Bernstein makes the same argument as Ann Coulter: that immigrants shouldn’t qualify for affirmative action, which should be restricted to America’s two genuine historic victim groups, official members of American Indian tribes and descendants of American slaves.


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