By Mike Dorf
My latest Verdict column wades into the controversy over Elizabeth Warren's past claim to be part Native American. (For a useful summary of the blawg coverage of this issue, click here.) My conclusion? That the issue is good for the Brown campaign because affirmative action is a useful wedge to divide minority voters from working class and middle class white voters. In the course of explaining how the controversy is really about affirmative action, I mention some common arguments both for and against affirmative action. One of the arguments against is that affirmative action utilizes a two-wrongs-make-a-right logic. Here I want to expand on that theme and also subject it to a little critical analysis.
The Warren controversy highlights the difficulty of deciding whether someone "counts" for purposes of entitling that person to whatever bonus he or she gets for being a member of the relevant group. And that determination can be uncomfortable. Even Supreme Court Justices now regarded as liberal or moderate have at one point taken note of the difficulty. In his dissent in the Fullilove case, Justice Stevens compared the method for determining eligibility for affirmative action benefits to Nazi race laws. Justice Kennedy quoted that language in his dissent in the 1990 Metro Broadcasting case, adding in a comparison to South African apartheid laws.
Yet it's relatively easy to distinguish these examples based on the uses to which the classifications were put. Nazi race laws were not appalling because they identified who was a Jew. They were appalling because, for the Nazis, identifying Jews was the first step to murdering Jews. Likewise, apartheid South Africa obsessed about degrees of whiteness, blackness, and colored-ness because of the legal privileges and disabilities that went with those statuses. Once Justice Stevens had migrated from the center-right of the Court to its left, he saw this important distinction, stating in his 1995 dissent in the Adarand case that such comparisons "disregard the difference between a 'No Trespassing' sign and a welcome mat." No rational person thinks that the classifications appearing in programs of affirmative action in higher education are a prelude to genocide or apartheid.
But even if the Nazi and South African comparisons are unfair, there remains something inherently troublesome about the government (or powerful private actors) trying to figure out whether someone is Black enough, Latino enough, or Native enough to qualify for an affirmative action program. Why? I think it's because doing so reminds us of why we object to racial and ethnic discrimination in the first place: It renders critical what should be an irrelevant criterion. If we're not even sure whether someone is African American, Latino, or Native American, then why, we find ourselves asking, should we be distributing various benefits based on that status?
There are answers to that question, of course, but I think that even most on-net supporters of affirmative action (like myself) are at least somewhat uncomfortable with the "who counts" inquiry. For one thing, it tends to pull apart different justifications for affirmative action. If we are interested in intellectual diversity, then someone who strongly identifies with a particular group should "count" more than someone who doesn't, even if the strong identifier is less connected to the group as a matter of genetics. By contrast, if we are concerned about role models or in combating stereotypes, then it matters whether someone will be clearly identifiable as a member of the relevant group.
Perhaps the "who counts" question is more or less problematic depending on the use to which it is put. Even opponents of affirmative action will have to engage in some determinations of "who counts," at least for the purpose of detecting old-fashioned discrimination. Suppose that a white plaintiff sues his employer claiming that he was passed up for a promotion in favor of a less qualified African American candidate. In order to make out a prima facie case, the plaintiff will need to establish his own race and the race of the candidate who received the promotion. That will not always be obvious.
But unless one wants to do away with antidiscrimination law itself, it is hard to see how one can avoid such "who counts" inquiries. (One might say that it doesn't matter what the promotion applicants' races were but whether the employer perceived them as belonging to different races, and acted on that basis, but as a practical matter, what the employer perceived will usually have to be proved by reference to the applicants' respective actual races, and so we'll be back to the "who counts" inquiry.)
Certainly it would go much too far to say that we ought to give up antidiscrimination law entirely because it requires certain classifications that are, in certain respects, reminiscent of classifications used by Nazi Germany and apartheid South Africa for wholly nefarious purposes. In the end, the discomfort that most of us feel when confronted with borderline cases--whether for affirmative action purposes or simply for antidiscrimination purposes--may just be part of the price we need to pay to build a more equal society.