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May 1, 2012

Elizabeth Warren: A Native American Now and Then

From what has been revealed so far, it appears that Elizabeth Warren, Harvard law professor and likely Democratic candidate against Sen. Scott Brown in Massachusetts, gave herself status as a Native American in the past, which led Harvard and a leading legal directory to identify her as such, but recently she has claimed that she forgot all about it, never used her self-defined minority status to advance her career, and that her minority status was in fact irrelevant to her being hired by several law schools.

Although the heated attention to whether Ms. Warren is a Native American or simply a garden variety American is certainly entertaining and may have some political legs in the Massachusetts Senate race, in my view most of the discussion of this tempest in a tepee (sorry, couldn't resist that) misses an important point: that affirmative action is rapidly sliding down an increasingly slippery slope from controversial to pathetic, more a target for comedians ("She certainly doesn't look Siouxish") than constitutional lawyers.

"The immediate issue," the New York Times reports, "is whether she allowed Harvard Law School to represent her as a minority member in the 1990s when the school was under attack for failing to hire a diverse faculty." That may well be the immediate issue, but the bigger, more significant issue of this kerfuffle is what it reveals of the commonplace wink-and-a-nod corruption of the entire affirmative action enterprise as it is currently practiced.

Consider, for example, the pontifications of the legal academy as it circles the wagons (oops, you'll have to excuse that one, too) in defense not only of one of its own but of one of its most sacred shibboleths, affirmative action itself. Warren's campaign, the Times reports, has just "released statements on Monday night from officials at all of the law schools where she has taught insisting that her hiring was based on merit, not ancestry."

On Monday night, officials involved in her hiring at Harvard, the University of Pennsylvania, the University of Texas and the University of Houston Law Center all said that she was hired because she was an outstanding teacher, and that her lineage was either not discussed or not a factor.

"To suggest that she needed some special advantage to be hired here or anywhere is just silly," said Jay Westbrook, chairman of business law at the University of Texas.

I'm having a hard time deciding whether these responses are unintentionally humorous or just plain pathetic. These highly regarded law schools are all proud of their race preference policies. (One of them, Texas, is spending a million dollars to defend its race-based admissions policy in the Supreme Court.) They all have minorities on their faculties, and I'm certain they would all insist equally loudly that each one of those appointments "was based on merit, not ancestry." Since presumably no one is ever hired "based on ancestry," their insistence on that point regarding Warren would be meaningless were it not so revealing of their discomfited recognition of the conflict--or at the very least, the public perception of a conflict--between merit and taking race or ethnicity into account at all.

I'm sure that not one of these worthy institutions hired Warren "based on" her ancestry, and for the sake of argument let us accept at face value that at all of them "her lineage was either not discussed or not a factor." This professed obliviousness to her "lineage," however, raises a big question that begs, screams for an answer: Why not? Surely none of these law schools had reached their quota goal of Native American professors. Why would all these schools emphatically deny that Warren's "lineage" was even discussed, was not, as they usually insist, only one factor of many but was not even "a factor" at all? (Whether her sex was "a factor" does not seem to have been investigated, although the Times does report that when Warren was hired at Harvard "[t]he Harvard Crimson hailed the move because she was a woman, with no mention of any ethnic lineage.")

One possibility, of course, is that at least some of them didn't know. And the Times does report that "[o]fficials at the University of Texas said earlier on Monday that electronic records listed Ms. Warren as white." Perhaps the University of Texas simply neglected to check her entry in the American Association of Law Schools Directory, which listed her as a minority.

But was it really didn't know, or didn't care? It's quite possible, that is, that Warren had so much "merit" that there was no need for her to be what is officially denied but universally known to exist: an affirmative action appointment. Indeed, this suspicion is supported by Jay Westbrook, chairman of business law at the University of Texas, who was quoted in the Times insisting that "[t]o suggest that she needed some special advantage to be hired here or anywhere is just silly."

What all these denials and insistences clearly reveal, however, is that, with the exception of a small handful of minority academic superstars, race and ethnicity and "lineage" is not only discussed, is not only "a factor," in hiring or admitting minorities, it is often a central factor. What is much sillier than any implication that Ms. Warren "needed some special advantage to be hired" are the pious denials that the very essence of affirmative action is to dispense those "special advantages" based on race and that there's nothing wrong with doing so. The Chronicle of Higher Education reports that "Ms. Warren's campaign has said she ... has not used her minority status to gain an advantage in seeking jobs." Again, Why Not? The important question here is not whether she is or is not a Cherokee and claimed that ethnicity as a benefit to her or her employer(s); it is whether she and the institutions that claim her "lineage" was and is irrelevant actually believe that there is something wrong with dispensing "special advantages" based on race or ethnicity.

If a reporter from the Times asked representatives of the law schools at Harvard, the University of Pennsylvania, the University of Texas, and the University of Houston whether they could affirm that race or ethnicity was "not discussed or not a factor" in the hiring of any of their minority faculty, what do you think they would say? No doubt all of these schools (or at least most of them) have some minority faculty who were or could have been hired "without regard" to their race, ethnicity, or "lineage," but it is unlikely that is the case for all of them.

Warren and her legal academy's insistence that she received no undue preference is a tacit admission of how much undue preference is routinely given to others, and perhaps that they feel a bit guilty about it.

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John S. Rosenberg blogs at Discriminations.

Comments (13)

Sam L.:

Why does the line, "Methinks the lady doth protest too much" come to mind?

tofubamboo:

If she has even a drop of Sioux blood in her veins, then I am a pine tree.

looking closely:

Paraphrasing the entire above article, if race or ethnicity isn't a factor in considering hire into their respective faculties, then why do the Universities in question even bother to ask about these things? Clearly it IS a factor, no matter how much they deny it retrospectively in this particular case.

If race isn't an understood factor in academic faculty hiring, why would Warren lie about it?

The opposite. . .that Warren actually believes she is Native American, yet later in her career "forgot" whether or not she designated herself as such is simply too ridiculous to take seriously. IE, if I'm legitimately Black, Hispanic, Zoroastrian, or Elvish, I don't think I'm going to "forget" about that coming into my third or fourth academic job.

In the meantime, have any of these Universities made statements to the effect that (whether or not Warren actually did so) lying about one's ethnicity to gain admission to a University faculty via affirmative action would be wrong? IE, IF she lied about that, would that be grounds for dismissal?

Let's say Warren can't come up with a shred of evidence connecting herself to the American indigenous peoples. Are these Universities THEN going to say something? Of course not. Why would they admit they'd been duped (knowingly or unknowingly) and give ammunition to those who think affirmative action is bad policy.

This episode raises another question. Are there OTHER faculty members who lied about their ethnicity on staff at these Universities, and if there are, would these Universities really have any interest in finding the truth here?


David Pittelli:

Unless no one knew that she had listed herself as a minority, if they didn't consider her minority status when hiring her they would have been breaking their own rules, which require them to seek racial diversity in hiring.

Lots of people have Native American ancestry but unless you have a CDIB card, you aren't legally an American Indian for federal benefits purposes.

Now someone claims Warren in 1/32, but even the Eastern Cherokee require 1/16, and most benefits are only given if you are 1/4 ancestry.

A lot of tribes are tired of people with no tribal ties stealing affirmative action benefits from those who really were disadvantaged and discriminated against.

Jimmy "Crack" Corn:

These institutions are infused with race consciousness and self righteous bigotry. Their reaction to having the cover pulled back in a wholly unexpected way is hilarious. More humorous is that it has provoked them to lie about their practices so transparently. It just doesn't get any better than this!

teapartydoc:

If I'm Brown I show up at the first debate wearing an Indian Chief's head dress.

jms:

Perhaps the best way to end racist preferences in academic hiring and admissions is the Warren method -- if race doesn't matter, then lying about it doesn't matter either. Who's to say that you aren't 1/32nd favored minority? If it means the difference between getting into a university and being rejected, why not claim a minority ancestor? Think of it as the 21st century version of "passing." Fair-skinned blacks used to try to "pass" as whites to get the racist benefits of being perceived as white. Why shouldn't whites try to "pass" as black in order to get the racist institutional benefits of being black?

Funny how these days it's the liberals who insist that everyone should know their race and know their place.

Nate:

So only a very small handful of minority professors are teaching in law schools on their own merit? Would having an overwhelming majority of white professors benefit the legal field? I can understand arguments against diversity for the sake of diversity but it seems as if you're suggesting that diversity in faculty doesn't enrich the legal field at all, which I don't think many in the field would agree with.

forrest:

Heck, I trace my lineage back to Kennewick Man, but I don't get a break! (look it up if you don't already know...smirk.) But seriously, didn't we all come from Africa to begin with? This is why we should adhere to the ideal that one should be judged on the content of their character rather than the color of their skin. I wonder if any lefty democrats even know who said that? (Probably about...none...sadly.)

forrest:

Heck, I trace my lineage back to Kennewick Man, but I don't get a break! (look it up if you don't already know...smirk.) But seriously, didn't we all come from Africa to begin with? This is why we should adhere to the ideal that one should be judged on the content of their character rather than the color of their skin. I wonder if any lefty democrats even know who said that? (Probably about...none...sadly.)

Jimbino:

I first found out from a talk show that I was Hispanic when I was already a first-year student at UT Law School. I had innocently thought I was Irish-English, just like my blue-eyed, fair-skinned parents. But, sure enough, I was Hispanic by virtue of having been born while they were sojourning in Paraguay. The government rep on the talk show said, "When someone hands you a silver spoon, you're entitled to use it."

I took his cue and wasted no time in applying for the only Affirmative-Action Hispanic scholarship of my class, which I won, no doubt because I had superior scores and had come to law school after a real education gained outside of Texas.

But before that, and sometimes afterwards, I checked off that I'm White, which I am. So I think the confusion over Elisabeth Warren's "ethnicity" is perfectly natural. All my Amerikan friends and all my Brazilian friends laugh whenever I say I'm Paraguayan, especially when Paraguay beats Brazil in soccer.

Anyway, UT Law pretends to promote "diversity," and what can be more diverse than blue-eyed, fair-skinned Latinos and American Indians?

Affirmative Action is a crock. So is diversity. If UT Law wanted to introduce a modicum of diversity, it might try to attract STEM majors, especially women STEM majors. That would bring the promise that someday our lawyers and politicians might make some scientific sense.

As it is, you won't find a scientist on SCOTUS, nor POTUS, and only some eight in all of COTUS. Ours laws and regulations reflect that scientific illiteracy. Diversity indeed!

bob sykes:

It is highly ironic that Warren claimed membership in the very tribe that is trying to expel its black members.

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