David Bernstein |The Volokh Conspiracy|1.24.2022 4:56 PM
The Supreme Court, as most readers surely know by know, has decided to hear appeals to two cases challenging racial and ethnic preferences in higher education. Assuming the Court is disinclined to allow the use of overt racial and ethnic preferences, is it possible that some version of affirmative action that takes ancestral "background" into account may be salvaged?
In my forthcoming book, Classified: The Untold Story of Racial Classification in America, I suggest that the answer is yes, at least with regard to most African Americans and some Native Americans. (The book is not about affirmative action, but obviously a book on racial classifications is going to address that issue.)
The book describes how the familiar categories universities use to sort students by race and ethnicity--Asian American, Black/African American, Hawaiian or Pacific Islander, Hispanic/Latino, Native American, and White--came to be. To make a long story short, they were invented by the Office of Management and Budget in the 1970s to regularize statistics-keeping and reporting within the federal government. While "white" and "black" were familiar categories, almost no one considered themselves or anyone else to be Hispanic, "Latino" or "Asian" before 1970 [as opposed to Mexican, Cuban, Chinese, Japanese, etc.] and it was by no means inevitable that white ethnic groups like Cajuns, Italians, Poles, and Jews would be classified as generic whites.
The classifications the government came up with were never intended to be proxies for "diversity" in higher education or elsewhere, and they explicitly came with the caveat that the "classifications should not be interpreted as being scientific or anthropological in nature." OMB warned that the categories also should not be "viewed as determinants of eligibility for participation in any Federal program," such as affirmative action programs.
Nevertheless, because universities had to use these categories in reporting admissions statistics to the Department of Education, they almost immediately became affirmative action proxy categories. In the book, I first address the use of these categories in Minority Business Enterprise programs:
Businesses owned by African American descendants of slaves (ADOS) were the original primary intended beneficiaries of minority business enterprise (MBE) preferences. Nevertheless, members of all minority groups became equally eligible for these preferences.Most MBE preferences now go to businesses owned by members of official minority groups who are not descendants of enslaved Americans. The ADOS population is dwarfed demographically by the combined population of Hispanics, Asian Americans, Native Americans, and black immigrants from Africa and the Caribbean and their descendants. The non-ADOS groups not only outnumber black Americans but on average have more of the economic, educational, and social capital needed to obtain government contracts.
Under current rules and norms, anyone with partial Asian or Hispanic ancestry going back at least to one's grandparents and perhaps indefinitely can claim membership in those groups. Americans of mixed ancestry are generally willing to shift their self-identified racial or ethnic status to whatever currently benefits them.Within a generation or two, a large majority of Americans will be eligible for MBE preferences. If almost everyone is eligible for affirmative action preferences, they cease being meaningful. Limiting MBE preferences to fewer people may be the only way the preferences can be saved.
All this suggests that to the extent MBE preferences continue, the government should limit them primarily to the original intended beneficiaries, ADOS. Members of recognized Indian tribes who live on and perhaps very close to reservations, a much smaller demographic, should also be included. Such a limitation would have several advantages. First, ADOS and residents of Indian reservations are the two American groups whose ancestors suffered the most by far from state and private violence, oppression, and exclusion, with continuing reverberations today.
Finally, government-granted preferences to people based on their racial or ethnic category raise constitutional, ethical, and practical concerns. But neither descent from American slaves nor membership in an Indian tribe and residence on an Indian reservation is a racial category, as such [see Morton v. Mancari]. Black Americans born in Africa would no longer qualify for MBE preferences, nor would a Los Angeles resident who has one Native American great-grandparent from whom he inherited tribal membership.
I then turn to racial preferences in higher education:
The only purpose for which the Supreme Court permits university-level affirmative action is to enhance the "diversity" of a school's student body for the benefit of all concerned. Yet the way colleges go about achieving racial and ethnic diversity makes little sense if diversity per se is the objective, as opposed to using diversity as a subterfuge while pursuing other objectives.
First, many elite schools try to match their percentage of minority students from various groups with their respective percentages of the applicant pool or other demographic baseline. Approximately one-half of one percent of the American population identifies as Native American, compared to 18 percent as Hispanic. In an entering class of, say, one thousand, the one hundred and eightieth Hispanic student surely does not make the class more ethnically diverse than would the sixth Native American.
Moreover, universities often give little or no consideration to the fact that members of official minority groups "may have no interest whatsoever in the culture popularly associated with the group." Meanwhile, the relevant official minority categories are themselves internally ethnically diverse, often radically so. [Meanwhile, a] Yemeni Muslim student may add significant religious, ethnic, and cultural diversity to a campus. For campus affirmative action purposes, however, admissions offices classify her as just another non-Hispanic white student. The same is true of an Egyptian Copt, a Hungarian Roma, a Bosnian refugee, a Scandinavian Laplander, a Siberian Tatar, a Bobover Hasid, and their descendants."
Those who qualify for the African American category also are not culturally uniform [including everyone from an African immigrant with one white parent to descendants of American slaves].The Native American category is also extremely internally diverse [and fraudulent claims of Native American status are common].
The best way forward for schools truly interested in attracting a diverse group of students would be to cease relying on crude government-imposed racial and ethnic classifications as a proxy for genuine diversity. As in the MBE context, affirmative action preferences, if pursued, should be limited to African American descendants of slaves and members of American Indian tribes who live on reservations. The goal of such preferences would not be diversity, but the righting historical injustices that have modern reverberations, and helping to bring marginalized groups into the American mainstream.
There is a risk, however, the Supreme Court would hold that the ADOS and Indian reservation resident categories are proxies for racial classifications and therefore presumptively unconstitutional.
Continued here:
Affirmative Action Without Racial Preferences - Reason
- Jackboot - Wikipedia - December 8th, 2016 [December 8th, 2016]
- The Federalist #51 - Constitution Society - January 8th, 2017 [January 8th, 2017]
- Free oppression Essays and Papers - 123helpme - January 25th, 2017 [January 25th, 2017]
- Labour movements in Congo Brazzaville: Between oppression and self determination - CADTM.org - February 7th, 2017 [February 7th, 2017]
- A Modern Choice on Life - Harvard Political Review - February 7th, 2017 [February 7th, 2017]
- Opinion: While true oppression exists, hypocrisy of some women is clear - Shelby Township Source Newspapers - February 7th, 2017 [February 7th, 2017]
- Understanding Information Oppression in the Era of Trump - MediaFile - February 7th, 2017 [February 7th, 2017]
- Angolans Bravery Broke Down Chains of Colonial Oppression - Minister - AllAfrica.com - February 7th, 2017 [February 7th, 2017]
- Hoosier attorneys travel to Rwanda on legal mission trip - Indiana Lawyer - February 8th, 2017 [February 8th, 2017]
- Bishop: Government has betrayed me over refugees - Premier - February 9th, 2017 [February 9th, 2017]
- Open Letter to NFL Players Traveling to Israel on a Trip Organized by Netanyahu's Government - The Nation. - February 9th, 2017 [February 9th, 2017]
- Police Disperse Shiite Protesters Demanding Release Of El-Zakzaky - SaharaReporters.com - February 9th, 2017 [February 9th, 2017]
- Turkey's HDP Women's Assembly issues feminist call-to-arms against 'one man rule' - Left Foot Forward - February 9th, 2017 [February 9th, 2017]
- Collin Nji: The first African to win Google's CodeIn Challenge - Pulse ... - Pulse Nigeria - February 9th, 2017 [February 9th, 2017]
- Student leader says 'black-on-black crime is not a thing,' wants to ... - The College Fix - February 10th, 2017 [February 10th, 2017]
- Sri Lanka: Tamil Insurgents Marxism Versus Nationalism - Sri Lanka Guardian - February 11th, 2017 [February 11th, 2017]
- Israeli Knesset 'legalizes' robbery of Palestinian land - Liberation - February 12th, 2017 [February 12th, 2017]
- LETTER: Evangelical Lutheran Church respond to political cartoon - The Dickinson Press - February 12th, 2017 [February 12th, 2017]
- Visiting Our Past: Odyssey of Clyde pioneer Jacob Shook - Asheville Citizen-Times - February 12th, 2017 [February 12th, 2017]
- Organize to defeat Trump's Muslim ban | Fight Back! - Fight Back! Newspaper - February 12th, 2017 [February 12th, 2017]
- Do we have a legitimate government? - Altoona Mirror - February 13th, 2017 [February 13th, 2017]
- Anti-Castro Cuban-American lawmakers see a champion in Trump - The Daily Progress - February 13th, 2017 [February 13th, 2017]
- Anti-Trump Swedish Government Accused of Hypocrisy for Kowtowing to Iran - Heat Street - February 13th, 2017 [February 13th, 2017]
- CSG President vetoes Israel-Palestinian lunch resolution | The ... - The Michigan Daily - February 14th, 2017 [February 14th, 2017]
- Sweden's 'Feminist' Government Defends Veiling in Iran After Attacking Trump - Breitbart News - February 14th, 2017 [February 14th, 2017]
- U. Mass Students Plot Strike Against 'Oppression' of Migrants - Breitbart News - February 15th, 2017 [February 15th, 2017]
- March on Washington: Drawing the Line between Empowerment and Oppression - The Index - February 15th, 2017 [February 15th, 2017]
- Ethiopian Athlete Who Made Anti-government Gesture in Rio Reunites With Family - Voice of America - February 15th, 2017 [February 15th, 2017]
- Mottley: Tax clearance certificate an 'instrument of oppression' - Loop Barbados - February 15th, 2017 [February 15th, 2017]
- Sweden's 'feminist' government criticized for wearing headscarves in Iran - Washington Post - February 15th, 2017 [February 15th, 2017]
- Turkey purge: dark cloud of oppression hangs over country's universities - Times Higher Education (THE) (blog) - February 16th, 2017 [February 16th, 2017]
- Fox News' Todd Starnes Redefines 'The Deplorables' - Forward - February 16th, 2017 [February 16th, 2017]
- Christophobia: a Global Perspective - AINA (press release) - February 18th, 2017 [February 18th, 2017]
- AzaadiFreedom from Indian Oppression - Economic and Political Weekly - February 18th, 2017 [February 18th, 2017]
- Iraqi forces advance on Islamic State-held western Mosul - Stars and Stripes - February 20th, 2017 [February 20th, 2017]
- Henry Rollins Doesn't Smoke Pot, But Demands The Right to Choose To - Weed News - February 20th, 2017 [February 20th, 2017]
- UC San Diego Students Protest Visit by 'Oppressive and Offensive' Dalai Lama - Heat Street - February 20th, 2017 [February 20th, 2017]
- Commentary | We must all stand with Tibet - The McGill Daily (blog) - February 20th, 2017 [February 20th, 2017]
- In Trump's America, Christian proselytizing is another form of oppression - LGBTQ Nation - February 20th, 2017 [February 20th, 2017]
- Elders share experiences with oppression from their youth - B.C. Catholic Newspaper - February 20th, 2017 [February 20th, 2017]
- Iran tells US chess champion to wear a hijab here's how she responds - TheBlaze.com - February 22nd, 2017 [February 22nd, 2017]
- Afro-Mexican people brought to light - The Daily Evergreen - February 23rd, 2017 [February 23rd, 2017]
- Online activism is leading the fight against oppression but at what cost? - Asian Correspondent - February 23rd, 2017 [February 23rd, 2017]
- Stephen Miller was no hero fighting left-wing oppression at Santa ... - Los Angeles Times - February 23rd, 2017 [February 23rd, 2017]
- Grass-roots leaders join call for 'disrupting' oppression that hurts many - Catholic News Service - February 23rd, 2017 [February 23rd, 2017]
- President Trump Breaks a Promise on Transgender Rights - New York Times - February 24th, 2017 [February 24th, 2017]
- Pussy Riot Protests Through Make America Great Again Viral Video - Conatus News - February 24th, 2017 [February 24th, 2017]
- Governor Treen brought sunshine to Louisiana governmental conservatism - Bayoubuzz - February 24th, 2017 [February 24th, 2017]
- I want an international probe into failed Turkey coup Fethullah Glen - Citifmonline - February 24th, 2017 [February 24th, 2017]
- Lateral Oppression Hurts Us All - The Lakota Country Times - February 24th, 2017 [February 24th, 2017]
- On finding freedom from oppression, fear - Davisclipper - February 24th, 2017 [February 24th, 2017]
- Supreme Court denies bail to leading anti-base activist in Okinawa; government accused of oppression - The Japan Times - February 24th, 2017 [February 24th, 2017]
- Disobedience Checks Unjust Laws - The Oberlin Review - February 24th, 2017 [February 24th, 2017]
- Cycles and Oppression - Patheos (blog) - February 24th, 2017 [February 24th, 2017]
- Another Jewish cemetery desecrated; what will the President say? Isn't the government supposed to help? - San Diego Jewish World - February 27th, 2017 [February 27th, 2017]
- Transport groups hold nationwide transport strike to protest government's PUV modernization program - CNN Philippines - February 27th, 2017 [February 27th, 2017]
- Opinion: The Relevance of Orwell's 1984 - Emertainment Monthly (registration) (blog) - February 27th, 2017 [February 27th, 2017]
- Monitoring group documents Turkey-backed profiling in Netherlands - Turkey Purge - February 27th, 2017 [February 27th, 2017]
- What should we see in the ashes of the Standing Rock protest camp? - Liberation - February 28th, 2017 [February 28th, 2017]
- Opinion: Focusing on religious oppression in China misses the big ... - CNN - February 28th, 2017 [February 28th, 2017]
- Trump Vows Teamwork with 'Allies in the Muslim World' to 'Demolish and Destroy ISIS' - Breitbart News - March 1st, 2017 [March 1st, 2017]
- Freedom House: Chinese Communists Intensifying Religious ... - Voice of America - March 1st, 2017 [March 1st, 2017]
- ISIS Threatens China In New Video Showing Chinese Jihadists - Vocativ - March 1st, 2017 [March 1st, 2017]
- Focusing on religious oppression in China misses the big picture - Gant Daily - March 1st, 2017 [March 1st, 2017]
- This Is Why The Youth Is Picking Up Arms In Kashmir - Youth Ki Awaaz - March 2nd, 2017 [March 2nd, 2017]
- Saudi Arabia: Music video and government initiatives split society - Freemuse - March 3rd, 2017 [March 3rd, 2017]
- From Latin America to South Africa: it's time for effective solidarity towards Palestine - The Daily Vox (blog) - March 3rd, 2017 [March 3rd, 2017]
- Focusing on religious oppression in China misses the big picture - CNN International - March 3rd, 2017 [March 3rd, 2017]
- Articles: Islam, the Veil, and Oppression - American Thinker - American Thinker - March 3rd, 2017 [March 3rd, 2017]
- UK's student union rebukes officer for Israeli embassy plot - The Electronic Intifada (blog) - March 4th, 2017 [March 4th, 2017]
- Public needs to help get government back on track - Fairfield Daily Republic - March 4th, 2017 [March 4th, 2017]
- Shahbaz Bhatti's legacy six years on - DAWN.com - March 6th, 2017 [March 6th, 2017]
- The Readers' Forum: Monday letters - Winston-Salem Journal - March 6th, 2017 [March 6th, 2017]
- Focusing on religious oppression in China misses the big picture - CNN - March 6th, 2017 [March 6th, 2017]
- How America Became a Colonial Ruler in Its Own Cities - Vanity Fair - March 7th, 2017 [March 7th, 2017]
- Plurality of Americans are right: "dissatisfaction with government" worst problem facing country - Hilltop Views - March 7th, 2017 [March 7th, 2017]
- The Oppression of Eve: Was Patriarchy Actually The First Sin? - Patheos (blog) - March 7th, 2017 [March 7th, 2017]
- Thousands in women's rights march in Polish capital - National - thenews.pl - March 7th, 2017 [March 7th, 2017]
- Probe: Artist Blacklist Antidemocratic Oppression - KBS WORLD Radio - KBS WORLD Radio News - March 7th, 2017 [March 7th, 2017]
- Peoples' Tribunal Indicts Myanmar Leaders for Genocide Against Rohingya, Atrocities Against Kachin - The Chicago Monitor - March 8th, 2017 [March 8th, 2017]