Race, Affirmative Action, and the Law

by Randall Kennedy

  It is possible that controversy over racial identification and ascription will emerge as an important subject in the American affirmative action debate. Opponents of affirmative action tried hard to conjure up a scandal involving Harvard Law School professor Elizabeth Warren during her historic, successful bid in 2012 to become the first female United States senator from Massachusetts. During that campaign, it was revealed that Harvard listed Warren as a Native American in its reports to the federal government regarding the racial demographics of its workforce. Rumor portrayed Warren as having gotten ahead illicitly in her professional career by posing as a Native American. Although the rumor was false, it did provide a predicate for sneering gibes against affirmative action (and an upsurge in grossly racist mockery of Indians).ab

  Another recent outcropping of interest in the matter of individual racial identification was displayed at the oral argument of Fisher v. University of Texas. Several of the justices asked questions indicative of impatience with a social policy that authorities are reluctant, if not altogether unwilling, to police. Hence, Chief Justice John Roberts asked the lawyer representing UT, “Would it violate the [university’s] honor code for someone who is one-eighth Hispanic … to check the Hispanic box?” Upon being told that that would not constitute a violation, the chief justice wanted to know whether the university checked the racial bona fides of affirmative action beneficiaries, how that was done, and, if it was not done, how the university could confidently posit the racial demographics of its student body.114

  Despite these episodes, however, controversy over racial identification remains marginal in the American debate over affirmative action. By contrast, in the Brazilian debate, disputation over individual eligibility is front and center. In his excellent book Race in Another America, Professor Edward E. Telles maintains that, among other things, the multiracial lineage and complex physiognomic cues of Brazilians makes racial boundaries there much more complicated than in the United States. Racial ambiguity in Brazil, he writes, “could present a major challenge to the implementation of racial quotas.”115 Brazilian universities have established committees that screen applicants seeking affirmative action assistance. These committees have denied eligibility to an appreciable number of applicants. Courts have reviewed these assessments, disagreeing with some of them in highly publicized instances. In one infamous instance, fraternal twins sought affirmative action assistance in attaining admission to the University of Brasília. Separate committees ruled that one of the siblings was eligible but that the other was not—a peculiar judgment that prompted a court to invalidate the program and moved detractors to point to this episode as a vivid illustration of what they perceive as the fatuity of affirmative action.116

  In the United States, public and private authorities have decided with striking uniformity to forgo intrusive policing of racial eligibility. Like the administrators of the federal census, they have depended upon an honor system of self-reporting pursuant to which individuals identify themselves racially. Nor do they typically question, refute, or otherwise look beneath individuals’ responses. Usually a person is taken at his or her word: if you say you are black, that is generally determinative—you are deemed to be black (or Native American, Latino, etc.). Some observers criticize the laissez-faire, non-investigatory posture that most organizations have taken in this regard. They see the failure to check the authenticity of claimed identity as negligence that permits the misallocation of valuable resources: opportunities that go to faux blacks, Latinos, or Native Americans leave fewer opportunities for real blacks, Latinos, or Native Americans. Notwithstanding that criticism, however, most institutions have continued to maintain a simple honor system of self-designation.

  There are, though, exceptional cases. The one that has received the most attention stemmed from the hiring in 1977 of two firefighters in Boston, twin brothers Paul and Philip Malone.117 They initially applied in 1975, noting on their applications that they were “white.” They were unsuccessful. Two years later, they reapplied. By then the Boston Fire Department was under a racial affirmative action plan to rectify anti-black racial discrimination. The second time around, they stated in their application that they were “black.” Because of affirmative action bumps given to their scores on the civil service examination, they received the jobs they sought. A decade later, after receiving information that led them to believe that the Malones had falsely claimed minority status, officials moved to end the brothers’ employment.

  Justice Herbert P. Wilkins of the Supreme Judicial Court of Massachusetts upheld the termination, finding that there was substantial evidence to support the conclusion that the Malones, in indicating that they were black, had knowingly made a material false statement when they applied for their jobs. According to Justice Wilkins, the Malones could have prevailed by supporting their claim of being black in any of three ways: by (1) visual observation of their features; (2) documentary evidence establishing black ancestry; or (3) evidence that they or their families held themselves to be black and were considered to be black in the community. According to Justice Wilkins, substantial evidence supported a hearing officer’s conclusion that the Malones had failed to meet any of these criteria. To the hearing officer, the Malones did not look black, meaning that to him, in terms of physiognomy, they did not have characteristics (complexion, hair, facial features) commonly associated with blacks. The Malones’ birth certificates reported them to be white. The birth certificates of their parents and grandparents reported them to be white as well. The only indication of black ancestry offered by the Malones was a photograph that, they claimed, showed that one of their maternal great-grandmothers was black. According to the Malones, they discovered that they were black when they learned belatedly of the existence of this African-American ancestor. The hearing officer believed, however, that there was no reliable means of verifying the identity of the woman in the photograph.

  Finally, the Malones’ record was bereft of any indication that, outside of trying to attain affirmative action benefits, they ever identified themselves as black. They never, for example, sought to join the Vulcan Society, an organization composed mainly of minority firefighters.

  Apart from the points mentioned above was a fourth that was related but independent. The personnel administrator who discharged the Malones stated that even in the absence of meeting other criteria, they would have prevailed if they could have shown that they had acted in good faith. Justice Wilkins ruled that here, too, there was a firm basis for the administrator’s determination (though the justice’s explanation on this point is rather conclusory).

  Malone is a rarity; it is, thus far, the only adjudicated racial identification case that involves an individual in an affirmative action context. That other applicants have engaged in racial fraud to exploit affirmative action programs is beyond doubt. But the dearth of challenges reflects a deep hesitancy to police individuals’ racial self-identification. That hesitation stems from a fear of investigation into such a deeply personal area. It stems from respect for individual autonomy, a sense that, at least vis-à-vis the government, people should be able to freely express themselves in terms of racial affiliation, just as they are able to freely express themselves in terms of religious affiliation. It also stems from revulsion against racial policing in the past, when a ruling that a person was colored invariably meant dire consequences: enslavement, prison, the annulment of a marriage.118

  The doctrinal tools with which Malone was resolved similarly display an aversion to the policing of racial self-identification. Those tools gave the Malones an array of ways to justify their racial self-identification. The administrator stated that, notwithstanding the objective evidence that cut against the Malones, he would still rule in their favor if he could be convinced that they believed themselves to be black (even if observers rejected their self-identification). In other words, all the Malones needed to show in order to prevail was good faith in their racial self-description, an appropriately loose and l
ow standard that gives generous leeway to personal autonomy.

  Another reason for the relative paucity of affirmative action racial-identification disputes is the perpetuation of a distinctively American contribution to racial politics—a powerful tendency toward racial simplification that maintains a racial duality that sharply distinguishes white from black. Many multiracial societies have formally privileged fractional whiteness even while subordinating the intermixed to those “purely” white. In the United States, on the other hand, officials have been loath to reward formally the progeny of amalgamation. Rather, they have tended to promote and enforce a one-drop rule pursuant to which any discernible Negro “blood” makes one black. Under the one-drop rule, a person is either colored or white, a Manichean imposition that has made racial identification in America less complicated and contested than in other societies.119

  Yet another reason for the marginality of racial self-identification disputes is that racial fraud, though undoubtedly present, has remained at a sufficiently low level that officials have felt comfortable disregarding it, chalking it up to a necessary business expense. But why is the level of fraud low? Perhaps because the perceived benefits of affirmative action are less impressive than the perceived detriment of being seen as a racial minority. I suspect that the prospect of being outed has dissuaded some people from “going black,” even if doing so would open access to valuable preferences.

  What groups should be eligible for affirmative action assistance? Opponents of affirmative action stress the difficulty of making persuasive judgments and the certainty that any judgments made will be controversial and embittering. They cite the prospect of divisiveness as a strong reason to avoid affirmative action altogether. They portray it as a Pandora’s box of group conflict.120

  As with other objections, this one contains substantial points that should be attended to carefully. Affirmative action has exacerbated racial tensions in many contexts. The United States has been spared the violence that has flared in other countries.ac But a seemingly unavoidable side effect of affirmative action’s presence everywhere is a certain quantum of resentment.

  Much of the resentment in America is directed at blacks by whites. Many of the latter see themselves as innocent of any racial wrongdoing and see the former as undeserving opportunists bent on reaping a racial windfall. The anger escalates as affirmative action embraces additional groups, some of which have little or no connection with the history of American racial oppression. Some of the most derisive critiques of affirmative action mounted by Supreme Court justices are aimed at programs deemed to be overly broad. In the opinion for the Court striking down a minority set-aside program in Richmond, Virginia, Justice O’Connor noted that, in addition to blacks, the program preferred Eskimos and Aleuts, even though “it may well be that Richmond has never had an Aleut or Eskimo citizen.”121

  Conflict is not limited to disputes between whites and blacks; conflicts between different groups of colored people also simmer and erupt. The prevailing plaintiff who triggered one of the most anti–affirmative action judgments in American case law was a Hispanic student who challenged the constitutionality of a state-sponsored scholarship program that limited eligibility to African Americans.ad 122 This case is by no means idiosyncratic. In affirmative action and elsewhere, blacks and Latinos are bumping into one another jousting for power as blacks’ status as the largest ethno-racial–minority group is superseded by Latinos.

  Some champions of Asian American uplift and protection have complained that racial affirmative action, conventionally designed, has slighted or even hurt their communities. The slight is attributed to a tendency toward disregarding the breadth and variability of the Asian American community in ways that shortchange newer and poorer subgroups (e.g., persons of Laotian, Cambodian, and Hmong ancestry) in contrast to the older, more affluent subgroups (e.g., persons of Chinese, Japanese, and Korean ancestry). Some institutions, for example, forgo making affirmative action efforts on behalf of “Asian Americans,” perceiving them as sufficiently represented by dint of regular procedures. This conclusion is predicated, however, on a conception of Asian Americans that renders invisible discrete and vulnerable subgroups in that community.

  Other opponents of affirmative action maintain that representational baselines penalize “model minorities” like Jews and established Asian Americans who often do disproportionately well in open competitions for seats in the most selective spheres of higher education. For such groups, affirmative action regimes can be seen as threatening, in that they raise the prospect of group-based ceilings pursuant to notions of “overrepresentation” and “underrepresentation.”ae Some Asian Americans have lodged formal complaints alleging that their numbers of admittances to highly selective institutions have been wrongfully depressed to make room for less qualified whites and blacks. The story of Asian Americans in this context is decidedly mixed.123 Some Asian American intellectuals and activists strongly support affirmative action. Others see it as an impediment to their group’s full flourishing and prefer the consequences of an individualistic, laissez-faire model of race relations in which indifference is the attitude adopted by government toward the racial demographics of competition.

  Yet another locus of conflict involves the allocation of benefit between, on the one hand, the offspring of American-born black parents and, on the other, the offspring of interracial couples and foreign-born blacks. Apprehensive about this development, Professors Kevin Brown and Jeannine Bell observe that

  right now we are witnessing a historic change in the racial and ethnic ancestry of blacks who are the beneficiaries of affirmative action. Selective colleges, universities, and graduate programs are admitting increasing percentages of blacks with a white parent and foreign-born black immigrants and their sons and daughters.…As a result, blacks whose predominate ancestry is traceable to the historical oppression of blacks in the United States are likely more underrepresented in affirmative action than most administrators, admissions committees, or faculties realize.124

  Professors Brown and Bell note, for example, that, at least according to one report, in 2003, two-thirds of Harvard’s black undergraduate population, a substantial percentage of whom benefited from affirmative action, were children of mixed-race couples or of African or Caribbean immigrants.125 To Professors Brown and Bell, these figures suggest a misallocation of assistance detrimental to the “descendants of blacks originally brought to the United States as chattel slaves.”126 They argue in favor of institutions eliciting more information about familial background and using that information to redirect resources to the sorts of blacks for whom affirmative action was initially envisioned and who are also, in the critics’ view, best positioned to provide leadership in the continuing struggle against African American subordination. Professors Brown and Bell state that they are “mindful of the long and odious history … of classifications based on ancestry” and that they realize that distinguishing between blacks in the manner they suggest “calls into question black unity.” Still, they proceed, asserting that to avoid this matter would itself be a choice with consequences they would prefer to avoid.

  Determining which individuals should be eligible for affirmative action and which groups should receive special assistance poses difficult theoretical and practical problems. The absence of a fully worked-out blueprint for dealing with these problems, however, need not be viewed as an insuperable impediment to the continuation of racial affirmative action. Some of these problems are best dealt with by local authorities who, one hopes, will be attentive to the peculiarities of the given controversy. But some of these problems might prove to be irresolvable. If that is so, authorities should acknowledge the virtue, on occasion, of merely “muddling through” without theoretical clarity. That is essentially what has been done with respect to ascribing racial identity to individuals. There is no wholly satisfactory answer to the question of who is white or black or Latino for purposes of affirmative action. In the face of that defic
iency, however, thousands of affirmative action programs nonetheless proceed, muddling through well enough.af

  CONCLUDING THOUGHTS

  I am in favor of sensibly designed affirmative action for reasons elaborated upon above. I recognize, though, that there are weighty counterarguments and that reasonable people might find them, on balance, more persuasive than the arguments supporting the position I advance. I say that I support sensibly designed affirmative action, which means that I eschew affirmative action programs that are prejudiced or stupid. I refuse to support any program that is appreciably tainted by animus against any nonpreferred groups. Similarly, I refuse to support any program that needlessly accentuates the costs of affirmative action. Hence, I disavow any initiative that knowingly or negligently over-promotes beneficiaries, placing them in settings in which they are conspicuously less prepared than nonpreferred peers, a situation rife with risks of demoralization and the creation or reinforcement of racist stereotypes. I have taught in classrooms in which there existed a clearly discernible difference between “regular” students and beneficiaries of excessively strong racial affirmative action. The consequence is ugly.

  Not only is my support for racial affirmative action conditioned upon the suitability of particular program designs; it is also conditioned on the availability of alternatives.ag I am in favor of sensibly designed racial affirmative action in the absence of a superior replacement. I champion it if it provides a more likely vehicle than other possibilities for the realization of worthy ends. Many observers have asserted over the years that it would be better to offer to all children excellent schooling, from pre-kindergarten through high school, than to offer preferences to graduating racial minorities who often have been shortchanged throughout their primary and secondary schooling. I concur. I would be willing immediately to trade university-level affirmative action for an ironclad guarantee, no matter what the expense, of excellent primary and secondary schooling throughout the country. That deal, however, is unavailable. By contrast, racial affirmative action, with all of its deficiencies, is available. I will take what I can get for the purposes of making amends for past injustice, tapping into “diversity,” countering ongoing prejudice, and accessing the benefits of integration. It is possible that settling for what seems possible in the near term will assist in sabotaging the possibility of attaining what is optimal in the long term. Sometimes it is wise to forgo compromise in favor of unbending support for one’s preferred policy. These judgments are always difficult. My sense is that, under present circumstances, maintaining affirmative action is the best of the plausible options.