Racial Commodification in the Era of Elective Race: Affirmative Action and the Lesson of Elizabeth Warren
University of Southern California Legal Studies Working Paper Series
Working Paper 92
Camille Gear Rich, Associate Professor of Law
Gould School of Law
University of Southern California
This Essay uses the current controversy over the racial self-identification decisions of former Harvard Law Professor Elizabeth Warren as an occasion to explore incipient cultural and legal anxieties about employers’ ability to define race under affirmative action programs. The Essay characterizes Warren’s racial self-identification decisions as proof of what I call “elective race,” a contemporary cultural trend encouraging individuals to place great emphasis on their “right” to racial self-identification and a related desire for public recognition of their complex racial identity claims. I argue that our failure to attend to the importance placed on racial self-identification by Americans today places persons with complex racial identity claims at special risk for racial commodification. The Essay further suggests that the Warren controversy gives us an opportunity to rethink the way we conceptualize racial diversity. I argue that we must shift away the current model, which conflates race and cultural difference, toward a model that assumes racial diversity initiatives are sampling for employees that can teach us about the diverse ways that race is actualized and experienced. The Essay suggests that diversity initiatives that stress race’s use value as a source of insight into the social process of racialization avoid the cultural commodification risks posed by current affirmative action programs, reorient employers away from thin concepts of diversity, and give employers a basis for making principled distinctions between employees’ racial identification claims. The Essay concludes by identifying and defending a three-part inquiry that can be used to identify proper beneficiaries of diversity-based affirmative action programs.
TABLE OF CONTENTS
- PART I. THE POLITICS OF RACIAL IDENTIFICATION IN THE ERA OF ELECTIVE RACE
- A. The Right to Racial Self-identification In the Era of Elective Race
- B. Employer Discretion In the Era of Elective Race
- PART II. REVISITING MALONE IN THE ERA OF ELECTIVE RACE
- A. Authenticity Tests Versus Functionalist Inquiries About Race
- B. Functionalist Inquiries About Race and the Risk of Racial Commodification
- C. Re-writing Malone : Understanding the Social Processes of Racialization
- 1. Physical Race or Phenotype-Based Race
- 2. Documentary Race
- 3. Social Race
- PART III. DEFENDING FUNCTIONALIST INQUIRIES INTO RACE
- A. The Dangers of Laissez Faire Approaches to Race
- B. The Dangers of Liberty- Based Approaches to Race (or the Return of the Honestly Held Belief Standard)
- C. Applying the Functionalist Inquiry to Warren and Malone
Over the past fifty years, despite periodic Supreme Court skirmishes, Americans have lived under a negotiated peace with affirmative action programs. Meanwhile employers have labored in the trenches, attempting to implement affirmative action programs in a principled fashion. Employers’ primary challenge in this process is balancing employees’ dignity interests in racial self-identification and employers’ countervailing interest in making so-called racial “authenticity” judgments to ensure the benefits of these programs are properly allocated. This normally invisible struggle was put on national display when we learned that Harvard Law School seemingly had manipulated the complex racial identification claims of law professor Elizabeth Warren after Warren disclosed that she was part Native American, based on family lore indicating that she had a biracial Native American grandfather. Given Harvard Law School’s reported difficulty in finding minority faculty candidates, the school was quick to bracket Warren’s primary claim of whiteness, and categorize her as a Native American professor to improve the school’s diversity record. Years later, when Warren’s Senate campaign led political muckrakers to uncover the tenuous basis for her claim of Native American identity, Warren was quick to point out that she was an “innocent victim” of Harvard’s racial categorization decisions, as she neither sought nor received any affirmative action benefits based on her decision to identify as Native American. However, Warren’s caveats did little to assuage the concerns of race scholars about the harms threatened by her case. For the Warren controversy revealed that there was no protective force that stood between Harvard’s strategic diversity interests, its related desire to commodify Warren by race, and Warren’s personal interest in racial selfidentification. The Warren controversy warns about the ways in which an employee’s complex, racial identification decisions can be drafted to serve an employer’s purposes.
Concerns about the Warren controversy intensify when her treatment is contrasted against that of the Malone Brothers, two men who in 1977 self-identified as Black in their employment applications for the Boston Fire Department and were hired under an affirmative action program. Although the brothers previously had identified as white in their employment applications, they switched their racial identification to Black after they failed the Department’s standard entrance exam and learned of the more generous standards for Blacks under the Department’s court-ordered affirmative action program. The brothers felt entitled to make the switch, as family lore established that they had a Black greatgrandmother. In stark contrast to Warren, the Malone brothers were fired when the tenuous basis for their claims of Blackness were discovered, and they were adjudged to have committed “racial fraud.” The different results in the two scenarios, more than forty years apart, again raise complex questions about how to negotiate employees’ interests in “elective” or voluntary self-identification by race, employers’ discretionary power to define racial categories, and authenticity contests under affirmative action. For the fire department employer in Malone, just like Harvard in the Warren case, felt entitled to exercise its discretion to determine the character and content of racial categories, but this time employed a stricter, more rigorous authenticity-based standard that required further testing beyond the Malones’ simple act of self-identification.
Students of race look at the two cases and are puzzled. Why is it that Warren’s employer would embrace her tenuous claim of Native American ancestry today, but forty years ago the Malone Brothers similar claims about Blackness were the basis for termination? What happened in the four decades that separate the two cases to fundamentally change the employer’s orientation from one invested in restrictive definitions of race that test the racial authenticity of employees, to one prepared to accept the most tenuous act of self-identification as proof positive of racial status? Additionally, as a normative matter, what should we make of the extraordinary power we seem to have given employers to shape and mold an employee’s racial identity claims and draft them to its own purposes? Does an employer’s strategic approach to racial identity issues operate on a different moral or ethical plane than the strategic maneuvering of individuals? What role, if any, is there for law to play in negotiating these conflicts?
Indeed, contrary to post-racialists’ claim that Americans are being acculturated to ignore race, the sociological literature shows that individuals are actually being acculturated to demand that government and private employers respect and recognize their ever more complicated interests in racial self-identification. To document this trend, this essay explores contemporary changes in our views about racial identity over the past forty years and considers the consequences these changes have for the administration of affirmative action programs. After documenting the challenges our changed cultural views about racial
identity pose, the essay also warns that we must be mindful of the changed incentives of employers or affirmative action administrators in the era of elective race. In prior decades administrators might have opted for rather strict definitions of race; however, diversity demands and other factors have caused administrators contemporarily to prefer strategically deployed, flexible, and wide definitions for racial categories. Thus far, these changes in the understanding and treatment of race and their implications for affirmative action have gone unexplored…
…Part I of the Essay charts our path into the era of “elective race,” identifying the demographic, political and social changes that have encouraged Americans to regard the right to racial self-identification as a key dignity interest. This evolution has occurred simultaneous with employers litigating Title VII and Fourteenth Amendment affirmative action cases challenging their authority to define racial categories and the qualifications necessary to claim membership in a particular group. Although there is a rich scholarship on affirmative action and voluntary racial identification, no legal scholar has considered the impending conflict between employer’s discretionary definitional power over racial categories and the racial dignity interests of employees influenced by elective race understandings. I argue that, if employer discretion is left unbounded, employers will exercise broad power to shape race in ways that should give all Americans pause. Part II revisits the so-called racial authenticity inquiry conducted in Malone to reveals its functionalist foundations, and to retool this functionalist logic in ways appropriate for contemporary diversity-based affirmative action programs. I show that, by mining the inchoate concepts of race articulated in Malone, we gain insight into the diverse range of racialization processes that are the proper focus of diversity initiatives. Part II then considers Leong’s concerns about racial capital exchanges that occur in diversity-based affirmative action programs. I argue that the functionalist standard outlined here will clarify the proper terms on which racial status inquiries are conducted, and in this way ensure that we move away from the thin conceptions of diversity that lead to the commodification of race in its worst form.
Part III turns to the most common concerns about the functionalist inquiry, namely that it involves government in the elaboration and policing of the definition of racial groups. Specifically, Richard Thompson Ford and Cristina Rodriguez have warned against involving courts in disputes over the definition of racial categories, as they believe that in order to resolve these disputes government is required to give legal imprimatur to racial stereotypes and create “identity group subsidies” for putative racially-linked cultural practices. The revised functionalist analysis offered here is based on the understanding that we need greater demarcation between cultural diversity initiatives and racial diversity initiatives. I show that diversity initiatives that focus on diverse experiences of racialization largely avoid the stereotyping dangers that are the source of their concern. However, I also show that the law must recognize the link between race, culture and social subordination if it is to take account of the full range of racialization experiences that cause social subordination. Part III concludes by exploring Randall Thomas’s liberty-based arguments in support of relaxed approaches to racial identification, and the more contemporary manifestation of this argument in the work of Kenji Yoshino. This liberty-based approach to racial selfidentification again stresses the dignity injury employers and government inflict when they challenge employees’ racial identification decisions. The essay explains that this dignity interest must bow to queries about one’s experience of racialization when one claims, based on race, that one can advance an employer’s diversity goals…
…A. The Right to Racial Self-identification In the Era of Elective Race
Most Americans identify by race; however, the racial identity claims that most characterize the modern era are those made by multiracial Americans: persons who make complex claims regarding their racial ancestry and who in prior decades more willingly would have been absorbed into monoracial categories. Scholars such as Tanya Hernandez and Naomi Mezey have shown how in the 1990s multiracial advocacy groups shaped the national conversation on race as they petitioned for the addition of a new “multiracial” race category in the 2000 Census and 2010 Census. Multiracial advocates’ request for a separate multiracial category was ultimately rejected in favor of an option that allows multiracials to check off all racial categories with which they identify. Despite this setback, the multiracial movement still profoundly shaped federal policy and national discourse about race. Most significantly, the movement’s efforts caused the Office of Management and Budget to issue a revised “Directive 15,” the administrative guidance document that controls all federal racial data collection efforts. The new Directive 15 requires that all federal agencies respect an individual’s interest in racial self-identification and allow the exercise of this right or interest whenever possible in government-sponsored or solicited data collection processes…
…While Americans have been encouraged to see these moments of racial identity selection as important, the values and understandings that guide their decisions are surprisingly unclear. Some Americans may regard these inquiries as moments in which they are required to identify how they are racially perceived by others, regardless of whether their perceived race matches their personal racial identity commitments. Others answer these questions based on how they believe they are expected to answer these questions, either because of their family’s racial identity commitments or those of their cultural group. Still others answer these questions based on their symbolic commitment to particular communities, regardless of whether they have had any social experiences in which they were recognized as members of a given racial category. The wide variation in how individuals make their racial self-identification decisions makes these decisions ripe for misunderstanding, exploitation and abuse.
In addition to shaping federal racial-data-collection efforts, the multiracial movement also had a profound discursive impact on the language and constructs Americans use to articulate their relationship to race. For example, Census data shows that after the multiracial movement there was a surge in the number of persons that describe themselves as mixed race. Relatedly, a new group of “white multiracials” has emerged. These are persons who identify as white in certain circumstances, but also are willing to shift to a minority or multiracial identity when they enter a particular cultural context that makes minority background relevant, in response to significant life events, or even to gain potential strategic advantages in social interactions. Also, many more Americans are willing to challenge traditional, established racial categories and resist the default racial designation that would normally be assigned to them. For example, although persons who identify as Latino may regard this identity as a racial identity, federal law treats being Latino as a kind of ethnic designation and requires Latinos to further racially identify as white, Black or by using another federally recognized racial category. At present, large numbers of Latinos, particularly the young, resist this attempt to structure their racial identification choices and choose “other race” rather than select another option. Similarly, federal standards indicate that Middle Easterners should be categorized as white, but persons who identify as Middle Eastern may reject this proposition, citing their special experiences of discrimination as evidence that they are of a different race.
Further complicating matters, sociologists have raised questions about the integrity of peoples’ elective race decisions over time, as multiracials may change their responses to inquiries about race depending on the kind of form that is used, the order of the questions, and the context in which these questions are asked. Also, although the law review literature has devoted almost no attention to this issue, structural variables strongly influence racial identification decisions. For example, issues such as class, history of imprisonment and other experiences of social marginalization can trigger multiracials to “choose” to claim a minority identity. These insights are important, as they reveal that in many cases fluctuations in multiracials’ racial self-identification decisions are not driven by thin expressive interests or strategic considerations, but may be profoundly linked to grounding experiences of alienation and marginalization. Given the diverse array of influences that affect individuals’ racial self-identification decisions, we must develop legal analyses that treat elective race decisions in a manner that gives due weight to their complexity. Government has an obligation to develop an intelligent, coherent response on how to manage and interpret individuals’ shifting and sometimes conflicting racial identification choices as, in many cases, individuals fail to fully appreciate the legal significance that attaches to these decisions.
Indeed, the law may be on a collision course with the cultural default emphasizing the importance of the right to racial self-identification, for most individuals are unaware that, to the extent this right exists, it is a defeasible one. Census officials still rely on third party observation or other categorization methods when it is impossible or more likely inconvenient to get racial self-identification information. This rule may result in a census official racially categorizing an individual in a way that fundamentally contradicts the individual’s own understanding of her race. Similarly, employers also retain the ability to racially identify employees when the employee declines to state his or her race, when conditions make racial data collection impossible or impracticable, or when the employee appears to have engaged in racial fraud. Education officials enjoy the same discretion. Last, and perhaps most important for our discussion here, employers and public entities retain the ability to define racial categories and the ultimate authority to determine whether an individual’s racial identity claims will be respected. Indeed Malone, while not cited for this proposition, stands for the principle that a public employer may define the content of a racial category and its membership. Subsequent cases have made this point more explicitly, as employees have challenged the technical definitions of race used by employers or government agencies when these definitions would prevent them from accessing benefits…
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