Census Bureau Seeks to Expand Racial Profiling

John F. Early

The Census Bureau has filed a Federal Register notice of its intent to change and expand its coding of race and ethnicity in the 2030 decennial census and the ongoing American Community Survey, with any comments due by February 18, 2025.[1] Census claims that it is “not seeking feedback on how the US Office of Management and Budget defined race/​ethnicity categories through Statistical Policy Directive No. 15.” That, of course, is a specious exclusion because a failing in SPD 15 may appear in the Census proposal and, as such, must be addressed irrespective of its origin. As this paper will show, the Census proposal actually conflicts with some provisions of SPD 15 and ignores opportunities in the directive to correct some existing failures, which requires reference to that source.

There are three classes of fatal flaws in the Census proposal that should motivate it to abandon this proposal in its entirety. They are as follows:

• Adopting this proposal would violate the principles of scientific objectivity that should be the foundation of all Census work.
• It is unconstitutional.
• It is wrong on multiple significant historical and scientific facts.

Each of these is discussed in detail below.

Violates Census Foundation of Scientific Objectivity

Historically, the Census Bureau has observed the foundational principle of scientific objectivity— counting and reporting the things that one can observe—the number of people, the amount of manufacturing production, household income, etc. The categories of race and ethnicity fail that test of objectivity. The SPD 15 from the Office of Management and Budget (OMB) says, “The categories in these standards are understood to be sociopolitical constructs and are not an attempt to define race and ethnicity biologically or genetically.”[2] In other words, the whole scheme is a collection of politicians’ and bureaucrats’ personal opinions, not objective scientific facts.

The subjectivity of the scheme is further demonstrated by the fact that race and ethnicity are classified by the personal opinions of the respondents as to their racial origins—a feature that has been observed to be highly inaccurate and even intentionally misrepresented. Unlike other features of Census surveys such as employment or income, there is no objective way to evaluate these responses and correct for nonresponse or misreporting because the classification is purely subjective in the first place. More examples of how this proposal violates the canons of science and objectivity are discussed later.

Census should reassert its long but recently weakened tradition of scientific objectivity and refuse to follow these subjective, inherently unverifiable classification schemes. It has the authority to regain its scientific respect by stopping all racial classification because (1) SPD 15 specifically says, “The standards do not require any agency or program to collect race and ethnicity data,”[3] and (2) the Census authorizing legislation has no such requirement.[4]

Unconstitutional

The decennial census is the only data project that is explicitly authorized in the United States Constitution. Article 1, Section 2 requires:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

With the elimination of slavery, the Fourteenth Amendment changed that language to:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

The 1924 Indian Citizenship Act effectively eliminated the class of “Indians not taxed.” As a result, while the original Constitution laid the basis for collecting census data for African Americans (although not all of them were enslaved) and Indians, the Fourteenth Amendment and the subsequent congressional act removed any justification whatsoever for any racial or ethnic distinctions in the collection of the Census data.

The “equal protection of the laws” provision of the Fourteenth Amendment has become foundational to the clear and strong prohibition of any discrimination by the government based on ethnicity, race, or national origin. As Chief Justice Roberts has famously said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[5] In issuing SPD 15, OPM seems to be aware of this injunction and says of the racial and ethnic classifications: “They are not to be used as determinants of eligibility for participation in any Federal program.”[6] But, SPD 15 is schizophrenic because later it says: [7]

• “These standards shall be used for all Federally sponsored statistical data collections that include data on race and ethnicity.”
• “These standards shall be used for all Federal administrative reporting or record keeping requirements that include data on race and ethnicity.”
• “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.”

So after saying these standards cannot be used to determine who is rewarded and who is punished, SPD 15 incoherently claims that if you nonetheless use any racial data to determine reward and punishment, then it must use these categories.

Such requirements directly support administrative and even criminal civil-rights proceedings by the government that will use these data to make determinations of some sort to favor or disadvantage individuals based on their race. That is unconstitutional and antithetical to the foundational beliefs and principles that underly our society and governance. 

The punitive intent and potential for these classifications are made even more objectionable by Census advertising prominently to respondents for data collection that includes race, “you are legally obligated to answer all the questions, as accurately as you can. The relevant laws are Title 18 U.S.C Section 3571 and Section 3559, which amends Title 13 U.S.C. Section 221.”[8] The consequences are staggering. Government can punish you for answering a subjective question if the answer does not comply with its subjective categories.

Wrong on multiple significant historical and scientific facts

The racial classification scheme begins with six “mandatory minimum” categories of American Indian or Alaska Native, Asian, Black or African American, Hispanic or Latino, Middle Eastern or North African, Native Hawaiian or Pacific Islander, and White. Each of these is defined with the formula: “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 racial formula is entirely wrong and inconsistent with history and biology. In one sense, the “original peoples” for every one of us human beings begins with the early Homo sapiens, the starting point of all “original people.” We all began from the same Homo sapiens (or according to some formulations the same earlier Homo habilis), all of which originated in the broad African Savanah in the vicinity of Olduvai Gorge. That most original of all original peoples cannot be found anywhere in the proposed classification. From those earliest humans, we spread out across the planet for the next 200,000 years. Invariably the “original peoples” on almost any square mile of earth were later replaced by another set of people as the huge global migration spread—sometimes motivated by weather or overcrowding, but often by slaughter, expulsion, or subjugation.

The Census classification scheme seems unaware of human history, even modern history in this great age of literacy, printing, and electronic communication. The Census lists “Turks” as among the “original peoples” of Europe, and hence “White,” although only the small trans-Bosporus portion of Turkey lies within the usual definition of Europe. The United Nations, Turkey itself, and most reference works list Turkey as part of Asia, Asia Minor, or the Middle East, which areas constitute the vast majority of Turkey’s land mass and contain the capital Ankara as well as most of the population. 

But as silly as that designation of Turks as European may be, the claim that they are the “original people” of that land is pure fiction. Until the mid-fifteenth century, the “original peoples” of that piece of land included, among others, the Greeks, Armenians, and Kurds. The Turks moved in from the eastern-central Asian steppes and systematically replaced these populations of long-standing via slaughter, deportation, and suppression, which continued well into the 20th century and even to this day.

Shortly before the Turk destruction and replacement of the Asia Minor populations and still well within the literate historically documented times beginning in the seventh century, Arabs moved out of the Arabian Peninsula and across North Africa, displacing the predecessor populations of Berbers (also called Imazighen or Amazigh), Sahrawis, and other populations. Yet the Census lists Arabs, Moroccans, Algerians, Tunisians, and Libyans as “original peoples,” despite their recent arrival and displacement of the Berbers and their ken. The Census classification does list the Berbers independently but shoves the Sahrawis into the category “Middle Eastern or North African, Not Elsewhere Classified.”

The entry in SPD 15 for “White” would be hilarious if it were not so ignorant. It reads: “Individuals with origins in any of the original peoples of Europe, including, for example, English .…” English is the first “original people” listed in “White.” Julius Caesar in De Bello Gallico in 55 BCE described the people of what we now call England as “Britanni,” not English. He also described some of them as having come from Denmark. The term Briton endured in the local languages as their identity even after the Romans largely withdrew in the fifth century.

Genetic evidence shows that most “English” folks have strong strains derived from ancient stock that we now call “Celtic,” which exists in identifiably different strains in Ireland, Scotland, Wales, and England. The contemporaneous but somewhat separate Picts are also believed to derive from the same Paleo-Celtic stock. These Celtic peoples moved to what is now the British Isles about 12,000 years ago as the last great ice age retreated, replacing the Paleolithic people who had lived there at least 25,000 years ago until the extreme ice-age cold drove them out. Genetic studies show that the Celtic origins trace back to migrations from Iberia up the coast to Britania. (So, should one classify “English” as Hispanic since SPD 15 defines Hispanic as “of … Spanish culture or origin,” and “Iberia” is the geographic area of Spain?)

As the Roman legions slowly withdrew in the fifth century, they left behind gene pools from all over the Roman Empire, including the Middle East and Africa. Those were quickly layered over with additional Germanic invasions—the Angles (from whose name “England” was derived), Saxons, and Jutes. Those were followed by the Vikings—also separately identified as Danes, Norwegians, or Swedes—and the Norman French in 1066. Britania is not by any means unique. This vast sequence of succeeding populations in the same geography is 200,000 years old and continues up to our day.

Although humanity reached the American continents later than Europe or Asia, the various Indian populations also systematically replaced each other by the usual means of slaughter, displacement, or subjugation. The Sioux and the Crow chased and subdued each other. When Hernan Cortes conquered the Aztecs at Tenochtitlan, which is now the site of Mexico City, many neighboring tribes of different ethnicities that had suffered from Aztec domination, eagerly joined his efforts to expel and destroy their overlords.

The Serbs, Croats, and Bosniaks demonstrate a different variation in the failures of the racial classification scheme. Each of these three is identified and coded differently in the Census racial classification and each rolls up to a different subtotal. Yet, before the ninth century, all three were one people living in the same general area and totally indistinguishable. They still speak the same language, and even native speakers cannot usually distinguish the “native” tongue of their interlocutor. 

After the ninth century, as a result of geography, one group converted to Orthodox Christianity and became known as Serbs. A second group adopted Roman Catholic Christianity and designated themselves Croats. Later, in the 14th century, the Ottoman Empire conquered portions of both groups. That slice of the population converted to Islam and became known as Bosniaks. The three differ from each other only by their religious heritages. Because religious scriptures were the first widely available written documents, the secondary effect was that in written communication the Serbs used the Cyrillic alphabet, the Coats the Roman, and the Bosniaks a mixture of both, abandoning the Arabic script used during their occupation by the Ottoman Empire. 

Since the only distinction is a religious one, asking someone who identifies as one of these ethnicities is equivalent to asking them about their religious affiliation. That directly violates 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.”[9] This is one example known to the author, but there are likely similar cases in other geographies inhabited by hundreds of ethnicities. This feature alone should be enough to eliminate all racial and ethnic questions from government data collection.

The foregoing descriptions are illustrative only. There are undoubtedly hundreds more that make the same point, namely that there is virtually no place on earth where we know who the original inhabitants were, much less are able to trace any living person to one of them.[10] As part of our rich civic society, people celebrate all sorts of affiliations that they believe represent their ethnic and racial heritages. We should acknowledge and enjoy the richness that they bring, but designating just what categories should be observed is not within the government’s proper domain. Government by definition invokes violent force to gain compliance. 

Our individual understandings of who we are and where we come from are just that—individual and voluntary. When ethnic identities are defined and manipulated by government, they become instruments for oppression. The French learned that lesson from their Vichy genocide, and for most purposes they outlaw classifying official statistics by race or ethnicity. We should have learned the same lesson. It is now time to apply that learning.