One of the pitfalls of race-based affirmative action is that many disadvantaged people are less able to take advantage of it than the legal and economic elite.
Harvard Law Professor Elizabeth Warren, a well-paid academic, claimed Native American status based on supposedly being 1/32 Cherokee. But the “white” plaintiff who unsuccessfully challenged the University of Washington Law School’s affirmative action policy, Katuria Smith, had much more Native American ancestry than Warren — she was 1/8 Native American. (A federal appeals court upheld the University of Washington’s affirmative action policy, rejecting Smith’s class-action lawsuit, despite the fact that its law school admitted it used racial preferences in admissions to favor black, Hispanic, and Native American applicants, giving a very large preference to black and Native American applicants. I was one of Smith’s lawyers in that case.)
Katuria Smith came from a very poor family, and it never occurred to her that calling herself Native American would help in admissions. But Elizabeth Warren, a prosperous lawyer/law professor, surely knew better, repeatedly listing herself as Native American to game the system, before getting a job at Harvard (after getting a job there, she mysteriously stopped claiming to be Native American). Harvard Law School repeatedly and publicly described Warren as “Native American,” both while I was at Harvard, and afterwards, to address charges that it lacked racial diversity.
My faculty advisor (and later co-counsel), Harvard Law Professor Charles Fried, who was then on Harvard’s appointments committee, “claims that Warren’s Native American ancestry never came up in the hiring process, and that he only became aware of it later.” His recollection must be faulty. Fried was practically under siege at the time, and was keenly conscious of Harvard’s need to diversify the faculty based on race and sex to appease not just left-wing students, faculty, and journalists, but also to avoid serious potential legal consequences from the Massachusetts Commission Against Discrimination (MCAD), the notoriously anti-employer civil-rights agency that has jurisdiction over discrimination claims against Massachusetts employers like Harvard University.
The MCAD had issued a probable cause finding that Harvard discriminated against left-wing law professor Clare Dalton based on sex, despite her manifest mediocrity, after it denied her tenure; Fried told a Harvard secretary in my presence that he was glad Harvard settled that case and paid off Dalton, even though he himself thought her claim meritless, as did people like Fried’s colleague, Alan Dershowitz, who told me he was outraged by MCAD’s finding and seemed disgusted that Harvard settled. Even many liberal students though she was an awful professor — the liberal Richard Kahlenberg called Clare Dalton “the worst teacher I ever had” — but the politically-correct MCAD thought that she belonged on the Harvard faculty anyway. Harvard’s faculty badly wanted to racially and sexually diversify their ranks to show their commitment to diversity, so that MCAD would not view future denials of tenure to unqualified minorities and women as being motivated by a discriminatory animus.
The campus at the time was practically being torn apart in protests about the racial and sexual composition of the faculty. The African-American Professor Derrick Bell had publicly denounced the law school for its failure to hire a minority female professor. And left-wing students had reacted with rage and noisy and disruptive demonstrations to Harvard’s earlier decision to grant tenure to four white men and no minorities (never mind that the four included left-wing professors ideologically in sync with the protesters, like Joseph William Singer. The left-wingers on the faculty — members of the “Critical Legal Studies” movement (“crits”) and their allies — cleverly allowed tenure to be granted to these four men, who included their own ideological allies, so that they could use the resulting diversity backlash to come back for minority or female appointments later, knowing full well that those minority or female appointees would likely be ideological allies of the crits, since there are very few conservative black law professors).
To send a public message in support of diversity to the world, Harvard’s faculty in this period voted UNANIMOUSLY to grant tenure to Charles Ogletree, an African-American, despite his second-rate scholarship, which privately elicited disappointment and dismay from some of his colleagues. Increasing minority representation on the faculty was perceived as an institutional or legal imperative even among faculty who privately harbored misgivings about the wisdom of race-based affirmative action. (Accreditors at the American Bar Association also require law schools to use racial preferences in hiring and admissions, to the extent permitted by state law, threatening to pull the accreditation of schools like George Mason University’s law school over their failure to increase minority percentages.)
Note that in all my years of suing colleges and looking over thousands of college applications (produced in discovery), I have never seen an applicant being treated as Native American for purposes of admission (i.e., getting admitted despite lower-than-average grades and test scores) with less than 1/16 Native American ancestry, and I have never seen an applicant check just the “Native American” box based on less than 1/16 Native American ancestry. Warren has, at best, 1/32 Native American ancestry. Many “whites” have more Native American ancestry than that. The prominent law professor Glenn Reynolds is 1/16 Cherokee, but most would consider him white. (Although he apparently has “checked the [Native American] box sometimes” on surveys, contrary to what I had earlier incorrectly assumed.) George Zimmerman, who shot Trayvon Martin, reportedly has a black great-grandparent, but no one considers him black based on that, even though that would make him 1/8 black.
Ordinary people have been fired from their jobs in Massachusetts for falsely claiming to be minority. As law professor David Bernstein notes, the Massachusetts Supreme Judicial Court upheld the firing of two brothers from their jobs as Boston firefighters for racial fraud, since they had red hair and looked white, although they cited the existence of a black great-grandmother. But they weren’t law professors. Politically speaking, they were nobodies. It’s just one more illustration of how this country is becoming an “America of Inequalities,” as I discussed earlier.
(This a slightly revised version of the Hans Bader article posted earlier this afternoon.)