Separation of Race and State

I can unabashedly say that I am a huge fan of Richard Epstein, and it’s an honor to have him review my book Classified: The Untold Story of Racial Classification in America for CRB (“Dividing by Race,” Fall 2022).

If I am parsing the review correctly, Professor Epstein and I agree on the basic thesis of my book: the government-mandated racial classifications (Asian, Black, Native American, White, Hispanic) that are ubiquitous in American life are arbitrary and clumsy. It’s ultimately impossible to defend how they are commonly used—in everything from choosing subjects and reporting data in biomedical and sociological research to minority business enterprise and higher education preferences. Classified discusses the origins, definitions, application, and enforcement of these classifications in great detail to support this conclusion, and Epstein graciously praises my tenacity in uncovering and presenting these findings.

Where we disagree is that Epstein thinks my book should have had a “Part 2,” in which I start with the “proposal that an antidiscrimination norm should govern private parties only when they are analogous to common carriers and public utilities, whose monopoly position puts them under the nondiscrimination rules.” That is both a radical and intriguing idea, one that he brilliantly defended in his 1992 book, Forbidden Grounds. There is virtually no public support for such a proposal at this time, however, and I chose (wisely, I think) to assume the legal framework of antidiscrimination and affirmative action will likely remain similar to that status quo for the foreseeable future.

Epstein also suggests that “at no point does Bernstein address how private institutions might help tackle the challenges of racial and ethnic classifications.” I was perhaps unclear on this point, but when I suggest in the book that government classifications should be abolished in favor of more finely tuned classifications, almost always on a non-racial basis, I intended to propose that the matter be left largely to the private sector.

That said, two problems present themselves. The first is that so long as the government collects racial data in the census and elsewhere, the path of least resistance for everyone else is to rely on that data. The second problem is more subtle: even when the government does not dictate what classifications to use, private parties almost always blindly follow the government classifications. Until recently, I was under the misimpression that universities all rely on the standard racial classifications for affirmative action because they are required to report the relevant statistics to the government. That turns out to be incorrect; universities use the government-created classifications because they have, thanks to the government, come to see them as natural, and because relying on the government’s classifications provides something of a safe harbor from litigation.

It will take more than merely having the government refrain from dictating classifications to undo the damage that has been done. But a good start, as the book argues, is the separation of race and state.

David E. Bernstein
Antonin Scalia Law School
George Mason University
Arlington, VA

Richard A. Epstein replies:

As David Bernstein notes, the differences, such as they are, between us go to matters of exposition and tactics. They are not fundamental in any sense of the word.

I am glad he agrees that he should have made the role of private intervention more explicit. He then takes an (uncharacteristically) cautious stance by recognizing that the status quo ante on discrimination and affirmative action is not likely to change soon, which I fear is correct. But as I argue in Forbidden Grounds, major intellectual progress can be made only if scholars are prepared to take on the dominant paradigm, as I sought to do.

In a sense, his perceptive observations at the end of the letter, which note how government standards become ubiquitous by coercion and example, highlight the risk. Government standards become the focal point for all private behavior, which only entrenches the status quo ante. The sad consequence is that incremental steps are doomed to fail, even if they point in the right direction. Which is why I favor a frontal assault in order to make out the strongest intellectual case for dismantling that status quo, which Bernstein wants to do in his heroic efforts to separate race and state.

Fair and Free Elections

In response to Charles R. Kesler’s “The Red Wave Reconsidered” (Fall 2022), I would suggest that the main reason Florida’s Republican slate managed a Red Wave instead of a Pink Fizzle in 2022 had less to do with Florida’s Republicans and more to do with reforms undertaken after the 2000 presidential election, when Florida’s ballots were such a mess that the Supreme Court had to intervene. After becoming a laughingstock, with hanging chads and folks with magnifying glasses trying to guess the intent of the voter, Florida was motivated to fix its election process. Since then, the Sunshine State’s results are reported on election night, not two weeks later. (You can make of that what you will.)

So, before Mr. Kesler canonizes Governor DeSantis (I like him, too) and the rest of Florida’s Republican slate, he should keep in mind that the forces in play in 2022 will still be in play in 2024.

Elizabeth K. Gregory
Virginia Beach, VA