How to Improve the Trump Administration’s Tepid Proposal to Remove Race and Ethnicity from the Decennial Census

John F. Early

In an important baby step toward stopping racial discrimination, the Census Bureau has issued a notice in the Federal Register of its intent to add to Title 15 of the Code of Federal Regulations a new section 70 that would exclude questions about residents’ race or ethnicity as part of the decennial census short-form questionnaire. This is a first step in fulfilling President Trump’s Executive Order to end “demeaning and immoral race- and sex-based preferences,” but the rule under consideration is much too weak and narrow. (The same notice also proposes changes to how the decennial Census identifies “usual residence,” but that is an entirely different topic not discussed here.)

Of course, advocates for growing government power to manipulate and control are hysterical about even this modest reduction in racial discrimination in official statistics. They claim that distinction by race has been an important part of the decennial census as mandated by the Constitution since the first census in 1790. But this objection reveals the inherent flaw in continuing to count people by race. 

The only racial distinctions in 1790 were inherently discriminatory: (1) don’t count Indians who are not taxed and (2) count enslaved persons as only three-fifths of a person. With the 14th Amendment and the Indian Citizenship Act of 1924, these legal but unethical distinctions disappeared, and there is no constitutional or ethical reason for the government to classify people by race. Advocates for racial data also make the argument that without these data, the government will lose a tool to erase disparate outcomes. Of course, that argument is one reason the data must be eliminated. 

The Constitution guarantees equal rights and opportunity, not equal outcomes. Individual outcomes differ for thousands of reasons, and sorting people by race and ethnicity provides no useful answers and often makes matters worse.

Classifying people by race is inherently unethical because it enables government to discriminate for or against individuals or groups based on their race. At its most extreme, the Nazis in Germany and the Vichy government in France used official statistics as part of their genocide campaigns. The French have learned that lesson and forbid almost all data collection by race. Less extreme use of race to discriminate is widespread in the United States today, from college admissions to housing subsidies and hundreds of other applications. (For extensive documentation of such abuses, see David E. Bernstein, Classified: The Untold Story of Racial Classification in America.)

The inherent discriminatory basis for racial classification in official statistics was unwittingly revealed in the Biden administration’s issuing and implementing a new Statistical Policy Directive 15 (SPD 15) from the Office of Management and Budget (OMB) that mandated how government agencies must collect racial data. While it repeated the long-standing claim that these data would not be used for determining eligibility for federal programs and benefits, it let slip the claim that establishing new racial and ethnic classifications “could be used to allocate needed resources … and enforcement.” And in the final rule it proclaimed, “These standards must be used by all Federal agencies for civil rights and other compliance reporting from the public and private sectors and all levels of government.”

The revised SPD 15 and the Census Bureau implementing instructions are not only an assault on human rights. It is also nonsense. The racial and ethnic classifications it uses are, in its own terms, “socio-political constructs and are not an attempt to define race and ethnicity biologically or genetically.” It tries to give these constructs a patina of rigor by using a formal definition of each race or ethnicity in the form: “X are individuals with origins in any of the original peoples of Z.” The group named X is all those descended from the “original peoples” that lived in Z. This approach is absurd. With the possible exception of a few remote islands, the 200,000-year history of Homo sapiens has been one of continual migration, replacement, subjection, and elimination. We have no idea who the original people were, and many, if not most, of the definitions offered by SPD 15 and the Census Bureau are historically wrong.

The “English” are classified as original peoples of the Island of Britannia when, in fact, the very term “English” is derived from the Angles, who did not arrive before the 4th century, replacing or subjugating earlier Celts and Britons, not to mention Paleolithic peoples. Turks are designated as the “original peoples” of Turkey, when they did not politically control that territory until 1453, when they finally subjugated and then expelled, over centuries, the last Greek inhabitants, after doing the same to Armenians, Kurds, and several other ethnicities. Beginning in the seventh century, Arabs moved out of the Arabian Peninsula and across North Africa, displacing the predecessor populations of Berbers, Sahrawis, and other groups. Yet the Census lists Arabs, Moroccans, Algerians, Tunisians, and Libyans as “original peoples,” despite their recent arrival and displacement of the Berbers and their kin. 

Of particular concern are the racial classifications based on religion, which are in direct violation of 13 US Code § 221(c): “Notwithstanding any other provision of this title, no person shall be compelled to disclose information relative to his religious beliefs or to membership in a religious body.” The differences among Serbs, Croats, and Bosniaks are solely one of religion (Orthodox Christianity, Roman Catholicism, and Islam, respectively). They speak the same language, and until the ninth century, all shared the same geography and culture. There are likely other such examples among the 6,676 races that also violate the plain black-letter legal requirement.

But even this sloppiness understates the absurdity of the classification scheme. The racial category assigned to a person is what he or she says it is. We have current examples of public officials and civic leaders making claims about their ethnicity that are false, so how accurate are the claims of 340 million people about their ethnicity? This is just a public opinion poll. Where does one find that in the Constitution? For more details about the flaws in SPD 15 and related implementation, see two earlier Cato at Liberty posts on the Census Bureau implementation of SPD 15 and the continuing adverse effects.

While the current administration has delayed mandatory implementation of the revised SPD 15, it remains the statistical policy for all agencies, with the Census Bureau implementing instructions identifying 6,676 distinct races and ethnicities to be used in classification and coding. The current proposed rulemaking proposes only to stop this absurd and unethical racial classification for the decennial Census. In fact, the proposal includes a provision that “The Census Bureau also is not proposing any restrictions on its ability to ask demographic questions on the American Community Survey or other surveys that are not used for the enumeration of the population. The Census Bureau is proposing restrictions only for the short-form decennial census questionnaire.” [pp. 57527–28]

Hopefully, during the rule-making process, the Census will reconsider this short-sighted exception and eliminate all data collection on race and ethnicity.