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.