I’ve always admired Elizabeth Warren, if for no other reason than she graduated from a middling state law school and yet managed to make her way to the faculty of the world’s most storied law school. (Last time I checked, a few years ago, she seemed to be the only member of the faculty whose J.D. came from a non-elite American law school.) She’s a terrific scholar and, by all accounts, a wonderful teacher. Though I disagree with her about how competent the government is to do certain things, like drafting standard contract terms for private parties, she’s always been on a list of my “most admired” academics.
She still is, even with the brouhaha over her self-identification as “Native American.” I don’t want to either defend her or knock her; I once had an extremely white Jewish colleague from Ohio who listed himself as “Hispanic” because he was born in Nicaragua. (Details changed slightly to avoid identification.) We’re in a business in which inflated CVs and puff pieces on law school web sites are a currency of the realm. There, but for the grace of God, go many of us.
But I think Warren’s defenders are, from a tactical perspective, taking exactly the wrong tack. What they apparently fail to understand is that affirmative action is still a deeply divisive subject in America. Such public support as it enjoys rests on the notion that it benefits those who have felt the true sting of racism, poverty, and lack of opportunity in their lives. To the extent that it is viewed as a way of bringing all Americans to the table, it gets supported. To the extent that it is viewed as a tool to benefit a privileged class at the expense of poor whites, it provokes outrage.
That’s what is going on here. One of the whitest, richest, and most privileged women in America calling herself a “Native American” for “diversity” purposes is exactly the sort of thing that makes a mockery of everything law schools have been battling for. The University of Texas is about to pay a million dollars to have my old friend Maureen Mahoney of Latham & Watkins defend its use of race in admissions. Everyone agrees that law schools take race into account not only for admissions but for hiring. The vast majority of us in legal academia support that. But the very idea that someone like Professor Warren adds “diversity” to a law school because one of her great-great-grandparents was a Native American is so patently ludicrious that it makes a mockery of the whole effort.
Those of us in the legal community (trained as lawyers) may be able to keep separate the idea that (a) diversity is so important we must take race into account in making decisions, but (b) we actually don’t put any weight on diversity so the race you listed probably didn’t affect our decision. Both of these may well, in this situation, be true. But it’s tough to expect ordinary Americans who haven’t been through 3 years of the Socratic Method to be able to parse things like that. It sounds absurd on its face.
So I would hope the partisans of affirmative action would take a strong stand that it was wrong for Harvard to claim her as “Native American.” Whatever motivations Professor Warren may have had for so describing herself in the AALS Directory, Harvard’s motivation was clear. And it trivializes the whole goal of meaningful diversity in law schools. Coming down hard on perceived abuses of the system is exactly the way to assure ordinary taxpaying Americans that diversity is important and our efforts to promote it are serious.