Tuesday, June 01, 2021

Authenticity and Honesty in the Strange Case of "The Native Scholar Who Wasn't"

 by Michael C. Dorf

A recent story in The NY Times describes the non-comeuppance of one Andrea Smith--a Native studies scholar who: (a) for many years claimed to be Native American (principally Cherokee in particular); (b) turns out not to be; (c) was found out in her apparent fakery years ago; but (d) nonetheless managed to hang onto her career as a Native scholar. The story is well worth reading for its many twists and turns, which I won't recount here. Instead, I want to try to understand why Smith (currently listed as on sabbatical at the University of California-Riverside) has thus far managed to weather a storm of adverse publicity. 

I begin with a disclosure. I had a passing acquaintance with Smith in college, where she was a few years behind me and a fellow member of the parliamentary debate team. I heard from some of my friends and fellow debaters from that era; none of us recalls her ever claiming any Native ancestry back then, but that doesn't mean she didn't do so at the time, because none of us knew her all that well.

The Times story provides pretty solid evidence that Smith in fact has no Native ancestors. I suppose it's possible that she actually does or that she doesn't but sincerely albeit mistakenly believes she does. I know nothing about the matter besides what I read in the story and via some Googling, so for purposes of today's musings I'll simply assume arguendo that Smith has been fraudulently misrepresenting herself as Native American for the better part of three decades.

Let's examine the reasons two universities gave for not dismissing or otherwise disciplining Smith and another "ethnic fraudster." I'll then offer a couple of hypotheses to explain Smith's gentle treatment by her employer.

The author of the Times story puzzles over the fact that despite knowing about Smith's ethnic fraud for years, UC-Riverside has taken no action against her. The story's author reportedly contacted a university official and was told

that it could not, by law, consider ethnicity when making hiring or promotion decisions. In response to my request for clarification regarding that statement, a spokesman told me that the “university does not comment on the ethnic backgrounds of specific employees.”

The story also recounts a similar explanation for why the University of Colorado-Boulder did not discipline or dismiss Ward Churchill for his likewise false claims about Native ancestry. Churchill was ultimately dismissed for unrelated research misconduct, although he argued and unsuccessfully sought judicial relief based on the not-entirely-implausible allegation that the real reason he was dismissed was his wildly intemperate statements about 9/11. I'm not now interested in the later developments in the Churchill saga. Instead, I'm interested in the claims by both UC-Riverside and CU-Boulder that subjecting a faculty member to any sort of penalty based on the faculty member's misrepresenting their ethnicity would violate a law (in California) or university policy (in Colorado) of not considering ethnicity in hiring, promotion, or retention. The claims strike me as wrong.

Consider a hypothetical analogy. Suppose that a community college has a strict policy of not considering whether someone seeking to be hired, promoted, or retained to teach in its computer science department has a doctorate. We can imagine the policy was adopted because of the difficulty of finding people with such degrees and because of the nature of the industry: whiz kids often don't even complete college because they leave to launch innovative companies, so in this field the absence of an advanced degree is not the concern it can be in some other fields. Now suppose that Jack Hacker applies to teach in the community college's computer science department. His CV says he has a PhD in computer science from a university with a highly-regarded doctoral program. He doesn't, but he has published a book that he claims is based on his dissertation. The department hires Hacker. A few years later, during a tenure review, it emerges that Hacker lacks a PhD and was never even enrolled in a doctoral program anywhere. Would that be a basis for denying him tenure?

Pursuant to the community college's policy, the lack of a PhD itself would not be a basis for tenure denial, but surely the lying about the PhD would be. Job applicants who falsely represent their credentials thereby demonstrate a character flaw that is highly relevant in academia (and many other fields): dishonesty. The community college's policy barring consideration of doctorates is not a policy barring consideration of dishonesty about doctorates.

Now think about the real cases. Might we distinguish the decision by UC-Riverside to retain Smith and the initial decision by CU-Boulder to retain Churchill on the ground that their respective governing law and policy about the irrelevance of ethnicity are stronger than the hypothetical policy in my example? After all, we might think that in my example, even though the PhD was technically not a job qualification, it helped Hacker get hired, whereas the California law and CU-Boulder policy really make ethnicity irrelevant. If we were to draw that distinction, we would be in effect saying that Smith's and Churchill's lying were not material (a standard that ought to be familiar from the law of evidence and various criminal laws involving crimes of dishonesty).

However, that distinction doesn't work because it fights the hypo. I assumed in my example that the community college really doesn't consider doctorates. The policy is not doctorate not required but a plus factor. The policy is doctorate irrelevant.

Well sure, you might say, the department doesn't officially take account of doctorates, but in practice the hiring committee will weigh it as a plus factor. Again, this is a hypothetical example, so I can reject that claim if I want to, but even if I don't, I suspect that many people familiar with university hiring will say the same thing about the practices at UC-Riverside and CU-Boulder: officially ethnicity is irrelevant and may be treated as such in most employment contexts, but surely if someone is being considered for a position in which they will write about colonialism, indigenous peoples, and related subjects, Native ancestry will be counted as at least an unofficial plus factor. So the effort to fight the hypo, even if allowed, doesn't really distinguish the actual cases.

Nor is there a defense of immateriality available in the real cases. Let's focus on UC-Riverside. By misrepresenting her ancestry, Smith made claims that were material--not to the ostensibly irrelevant criterion of her ethnicity but to the very relevant criterion of her trustworthiness as a scholar. Consider Smith's book Native Americans and the Christian Right. In it, she announces that her methodology draws extensively on her own experience as an activist in Native causes. It is possible to be an activist for an ethnic group to which one does not belong, of course, but Smith does not portray her activism as an exercise in how to be a good ally to Native Americans. Instead, she repeatedly refers to Native peoples using the terms "we," "us," and "our." I haven't looked at Smith's other work, but it would not surprise me if it likewise represents her as Native in ways that are highly relevant to her overall credibility as a scholar.

Accordingly, I find the explanation that UC-Riverside could not take earlier action against Smith unpersuasive. It could have sanctioned her in some way based on academic dishonesty. I haven't looked into the Churchill case in any depth, but I suspect that it too would leave the same puzzle. Given that the universities would have been well within their rights to act against the individuals in question based on their dishonest scholarship, why didn't they?

I don't know the answer but I have two hypotheses (that are not mutually exclusive):

(1) In Smith's case, I wonder whether the university wants to make a great show of compliance with California law, which is the codification in the state constitution of the 1996 Proposition 209. That ballot initiative banned discrimination and affirmative action based on "race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Many people in academia (including me) thought that Prop 209 was misguided. Many people (including me) still do. Some people who are more supportive of Prop 209 (i.e., who oppose affirmative action) have long been suspicious that faculties and university administrators in California who never liked Prop 209 in the first place engage in covert actions that violate it. By allowing Smith to hold onto her position, UC-Riverside responds to those skeptics; it signals that it takes the prohibition on considering ethnicity very seriously.

How seriously? So seriously that the university goes beyond what Prop 209 requires.  I'm not an expert in California law, so I could have missed something, but my modest research in the California case law revealed no cases addressing the following question: Would it violate the state constitution to consider a scholar's ethnicity in evaluating the work of that scholar where that scholar's own work claims that it gives the scholar particular access or insight?

I think the right answer is "no," but I can imagine a zealous university counsel's office telling various departments that they should not give applicants for hiring or promotion extra credit of any sort for what we might call "authenticity" claims. The spirit of Prop 209 was color-blindness; thus, even if one thinks that other things being equal a Native scholar will be better situated to research and write about Native matters than a non-Native scholar, it's just barely possible to think that state law in California forbids giving such credit.

Accordingly, we can imagine university counsel saying that Smith's claims to being authentically Native were never relevant to an assessment of the quality of her work and that therefore the fraudulence of those claims is immaterial. We might question whether the relevant department really regards ethnic identity as truly irrelevant to the work of a scholar in ethnic studies, but the very fact that outsiders would be dubious about how the department really operates could lead the university to try to prove its fealty to the law by not taking action against Smith. Failure to act against Smith is a way to signal very strongly that the university regards ethnicity as irrelevant in all contexts.

To be clear, if that's what's going on, I think it reflects at least three errors. First, treating a scholar's ethnicity as sometimes relevant to their work should not be understood to violate California law. Second, as I tried to illustrate by analogy to my hypothetical computer science department, even if any consideration of ethnicity is truly barred, consideration of lies about ethnicity is not consideration of ethnicity. And third, even if false claims about ethnicity are often immaterial, because Smith clearly thought that her claimed identity was relevant to her scholarship, her willingness to make false claims about it bespeaks a character deficiency of academic dishonesty that is more broadly discrediting.

Thus, my first hypothesis about what the university has been doing with respect to Smith should be understood only as a possible explanation, not as a justification.

(2) That same caveat applies to my second hypothesis, which is this: institutions, no less than individuals, do not like to come across as dupes. By now claiming that Smith's claims about her Native ancestry were never relevant to UC-Riverside's prior appointment and retention decisions relating to her, the university avoids uncomfortable questions about the due diligence it may have failed to perform after she was denied tenure at the University of Michigan in 2008. At the time, questions about the veracity of Smith's ancestry claims had already arisen publicly.

It's possible that in hiring Smith, UC-Riverside faculty and administrators examined those questions and decided that Smith was nonetheless a sufficiently effective teacher and scholar that she should be hired anyway. Or perhaps the UC-Riverside decision makers had a controversially capacious understanding of what it means to be Native, in which merely claiming affinity suffices. But there's another possibility: the faculty and administrators who hired Smith read her work and interviewed her, liked what they saw, and didn't actually know that her claims of Native ancestry were false.

I don't want to justify or excuse UC-Riverside on the assumption that this hypothesis is true, but I do want to suggest that this sort of thing can happen from time to time. As a faculty member of three law schools, I have served on or chaired appointments committees that have made a great many entry-level and lateral hiring recommendations. We don't conduct background checks or attempt to verify the authenticity of transcripts or achievements listed on CVs. True, we check references, and for tenure and promotion cases we solicit evaluations from other scholars in the field, but those other scholars invariably write their assessments based on reading the candidate's work and perhaps relating an overall impression gleaned from conference interactions and the like. It is possible to get hired and promoted as a faculty member without anyone ever performing any due diligence. I suspect that in the vast majority of cases that practice has no cost, but the result is almost certainly that some number of faculty at colleges and universities around the country got their positions in part through material lies that were not detected.

If and when that sort of fact emerges, the department and university that made the hiring decision will understandably be embarrassed. What will they do? Coming clean and taking the hit is probably the best course, but that's not what institutions necessarily do.

In academia and in other institutional settings, there is another common pattern: an institution makes an initial error by hiring someone it should not have; the error is not immediately costly and so the institution invests in the hiree; at some point, an issue that manifests the initial shortcoming arises, but because of the initial decision and subsequent investment, the institution is reluctant to acknowledge its mistake; the institution may persist in this stubborn behavior even as the shortcomings of the problematic hiree become more and more obvious; in such circumstances, outside pressure might cause a change but it could also backfire; the higher the stakes are raised, the more it looks like admitting a mistake will be costly, so the initial error is compounded.

* * *

I don't know whether one or both of my hypotheses explains UC-Riverside's sticking by Smith. I do know that its public explanation makes little sense, so something else must be going on.


mhawrylchak said...

I can think of another pretty strong hypothesis. Colleges might want to stay well clear of adjudicating people's "true" ethnic identities.

When someone claims to have a doctorate, it's generally going to be pretty clear cut whether they're lying or not. Even if there are some grey areas (e.g. is X University a legitimate online college or just a diploma mill?), they usually lend themselves to categorical determinations.

Claims about ethnic identity are often not that clean.

Consider a man who is 1/8 African-American by ancestry, but who easily "passes" as white and has spent his entire personal and professional life in majority white communities where most friends and colleagues have no idea about his African heritage. If he self-identifies as "Black" on a hiring form, is he telling the truth? Or a woman who grew up mostly in the U.S., but was born and spent her early childhood in Argentina to parents who had themselves immigrated there some years earlier from Germany. Is she allowed to call herself "Hispanic" or "Latina"? What about someone who for years denied or hid their ancestry out of some sort of shame or embarrassment, who belatedly decides to embrace it? What about someone who was adopted as a child and grew up in a family with a different ethnic heritage? I suspect many people's answer to that one depends a great deal on exactly what ethnicity we're talking about. And things get even more complicated if you're talking about someone identifying as Jewish, which might be a claim about ancestry, religious affiliation, or some complex interplay between the two. It's not hard to multiply examples here.

It may be that Smith and Churchill are easy cases where there's no plausible good faith claim to Native status. But if a school chooses to decide the easy case, they're pretty much signing up to decide the hard case if somebody now alleges that Professor So-and-so claims to be (Black/Hispanic/queer/Christian/etc.) but really isn't. And once you've said you're willing to adjudicate some cases, then a later decision to abstain seems like an implicit judgment that the self-identification in question has at least some merit.

It's not ideal to let clear liars get away with it, but I can easily see why a college might think it's a good idea to stay far away from making this kind of determination.

CEP said...

Two somewhat disjointed comments:

(1) I would want to review Smith's manuscript — not just the published book — before drawing any conclusions about her direct self-identification "as a native." Having been on the dark side of the editorial desk for both law and non-law academia (at both article- and book-length), there's a distinct possibility that the editorial process "simplified" language for "clarity" or "impact." A possibility that deserves examination.

And, of course, I'd also simultaneously want to know more about how those in her academic field (both narrowly and broadly) refer to themselves. There may well be a norm in which allies and activists shorthand themselves as members; whether that is a "good thing" is for another time. Just as, ironically, is actual membership in a community that might not have been recognized thirty years ago.

(2) This type of inquiry is edging toward ad hominem attacks being extended not just to specific expressions, but to the ability to make those specific expressions. Perhaps, in some contexts, that's not fallacious — as Tom Lehrer referenced, consider the Christian Scientist pontificating on appendicitis — but in others, it is. A mathematician deconstructing the purported math behind the Laffer Curve and pointing out that it has divide-by-zero errors might well be accurately criticized "But you're not an economist!"

This gets particularly perilous when it isn't training/credentials at issue, as in the community-college hypothetical, but personal identity. This is especially problematic because identity changes over time. For that reason, I can see plenty of justification for a university declaring identity aspects off limits, even when "lying about that identity" might otherwise be relevant.

Asher Steinberg said...

Just a really obvious and uninteresting comment: the intuition-pumping force of your hypo about the doctorate depends, I think, on the relevance of doctorates in the typical academic-hiring setting. Even though you stipulate that relevance away, it's such an implausible stipulation that the intuition persists, which is what's clever about the hypo; it purports to show that immaterial misrepresentations can matter by positing a misrepresentation so material that its materiality is stuck in the back of our minds even when you stipulate it away. If your hypo involved a lie about something that normally isn't material to academic hiring, such as, say, sex at birth (an applicant is trans but wants to keep that fact private), we might feel differently.

Greg said...

mhawrylchak I think makes a very good point, and I think one that is a more plausible starting point than the ones brought forth by Prof. Dorf (although it is related to Prof. Dorf's first point.)

To give another example, my wife had a friend whose white family had lived in South Africa for several generations. This friend then came to the U.S. to go to college. While I think it's reasonable to say that the friend can't legitimately identify as Black, can they identify as African-American? They would seem to meet the literal definition of the term. In that case (20 years ago) an employee of the school explicitly told them that they could NOT claim to be African-American, which was actually fairly upsetting to the friend who was proud to have come from Africa. I wonder if the school would be more careful about that today, particularly in a setting that is more public.

Michael C. Dorf said...

Some interesting points here. I appreciate the virtues of a clear line to avoid dealing with hard cases even if it gets some easy cases wrong. Let me say, however, that I think these comments overlook the extent to which conventional anti discrimination law -- not affirmative action, mind you, just prohibitions on discrimination -- make these sorts of judgments necessary. Suppose that an applicant for a job (at a California university or really anywhere in the U.S.) loses out and sues, alleging that the adverse employment decision violated Title VII because it discriminated on the basis of race, color, religion, sex, or national origin (the statutorily proscribed categories). Part of the plaintiff's prima facie case will be showing the plaintiff's race, color, religion, sex, or national origin. If we had a body of antidscrimination law that was keyed only to perceived membership in a protected class, then that might obviate the need to determine the plaintiff's membership, but: (a) the lower courts are divided over whether such perceived membership qualifies; and (b) even if we shifted to a jurisprudence of perception, we now would have to make the awkward judgments about what counts as the core perception.

H/T to Richard Primus, who made a version of the foregoing point on Twitter in response to my post.

PQuincy said...

I recall learning years ago, during graduate school, that many people in the town there chose to identify as "African American" or "White" depending on the relative benefits or costs that came through such identifications in matters such as eligibility for certain schools and after-school programs. Thus, some people of African descent who we'd call Black today chose to identify as White in state and local documents because of specific policies of the city, schools, libraries, etc (I can't remember the exact details, alas). The point of the discussion then, though, was that "African American" and "White" are (as other commenters emphasize) not clearly defined categories, but largely self-defined (as they are on the Census: no one asks those who answer census questions to defend their ethnic or racial self-definition, after all).

So I'd like to suggest an alternate hypothetical to the one about the community college and the PhD. How about a Christian college that is allowed to, and does, require job applicants to attest to their Christian faith. Believe me, many private religious colleges do that, with great seriousness. And after such an attestation, the college hires Professor X, confident that she is an orthodox adherent of their version of Christian doctrine. Some time later, in a discussion of the materiality of the Holy Spirit, it turns out that Professor X's views are (shock!) deeply heterodox, and indeed heretical, in the eyes of the college administration and denominational leadership. Professor X, however, insists that she is truly orthodox, a faithful believer in the true doctrine handed down by the Apostles.

Do Professor X's assertions during the hiring process that she was a faithful member of the denomination then function as "material lies" that justify her firing? She, after all, denies that they do. (A private college can fire her anyway, because they are the ones here with the authority to define 'orthodox', contra Locke's remark that "every man is orthdox to himself"). Still, I don't hear Prof. Smith's voice here, nor does the quoted material contain an explicit claim from here that could be empirically adjudicated. More importantly, do we really want administrators, or lawyers for that matter, investigating back 2, 3, 4 or more generations, and then issuing a certification of "Native ancestry", or not? (Cf. the disputes within casino-operating tribes about who is "really" a tribal member, here). Or, for an earlier historical parallel, there was a term for this kind of investigation in Germany in the 1930s, which resulted in the issuance of an Ahnenpass attesting to Aryan ancestry. That does not feel like a good way to proceed.

To be sure, these cases do expose lacunae, not to mention incommensurabilities, about how we talk about, define, and deploy categories like "race" or "indigenous" in different contexts – such as legal actions, employment, and scholarship. And recent movements among progressives, however worthy their calls for justice, sometimes appear to veer towards re-establishing 'essentialism' that a previous generation of 'progressive' thought spent fighting. My point here is simply that our language of identity is fractured, full of gaps and sometimes contradictions, and radically incomplete, and we should be very very hesitant to squeeze it into the Procrustean black-and-white structure of legal thinking.

My real question about professors like Smith, Churchill, etc., would rather be: can they demonstrate that they are effective and professional teachers? Is their research subject to peer-review, and published appropriately? Even if these are imperfect standards, they strike me as much more relevant than trying to adjudicate whether someone is "really" Native, or Christian for that matter.

tjchiang said...

I think your hypothesis 1 needs refinement, in that the university is not "signaling" that it takes Prop. 209 seriously any more than Brett Kavanaugh describing Roe v. Wade as "settled law" signals a commitment to abortion rights. A signal is something you hope at least some people will believe; which in these cases nobody does. Rather, what these people are doing is avoiding giving explicit ammunition to political opponents. Everybody knows that the UC Riverside faculty do not take Prop 209 seriously and do consider ethnicity under the hood, but there is a difference between everybody tacitly knowing and stark evidence in court.

Besides the intuition difference that Asher Steinberg already pointed out, another difference between your doctorate hypothetical and the present case is that a college that surreptitiously violates its own self-imposed policy faces no legal consequences, whereas UC Riverside firing Smith will likely provoke a wrongful termination suit, where--even accepting that firing someone solely for immaterial dishonesty is legally proper--a jury will have to make a factual judgment about UC Riverside's actual motivation, i.e., did they fire Smith because of dishonesty or for being the "wrong" ethnicity. I don't think it takes an overzealous general counsel's office to conclude that a jury is likely to disbelieve the "we fired Smith solely for dishonesty" story, even if that story is legally justifiable.