What Elizabeth Warren Still Doesn’t Get

Sen. Elizabeth Warren addresses a town hall meeting in Roxbury, Mass., on Oct. 13, 2018.

On Monday morning, Sen. Elizabeth Warren, D-Mass., released a video in response to President Donald Trump, who has persistently mocked her as “Pocahontas.” For years, Trump has derided Warren for identifying as a Native American faculty member at Harvard Law School, and in other contexts, despite presenting as white. The implication by Trump and other conservatives has been that Warren secured her position at Harvard Law as a result of affirmative action, and that consequently, she was not qualified for the job.

He returned that line of attack on Tuesday.

Now that her claims of being of Indian heritage have turned out to be a scam and a lie, Elizabeth Warren should apologize for perpetrating this fraud against the American Public. Harvard called her “a person of color” (amazing con), and would not have taken her otherwise!

— Donald J. Trump (@realDonaldTrump) October 16, 2018

Warren’s response has been to insist that she does have Native American ancestry, but to deny that her racial background played a role in the hiring process. In Monday’s video, she recruited several Harvard Law professors involved in her hiring, including Randall Kennedy and Charles Fried, to corroborate that her race wasn’t considered during her hiring process. Warren also offered new evidence in the form of a DNA test, as well as testimony from her brothers, which appears to back up her claim that she has a distant Native American relative.

But whether or not Warren has some Native ancestry has never been the basis of any legitimate concern, and her video failed to address the only action for which she needs to answer: her role in enabling Harvard Law School to hold her out as a diversity hire.

Warren’s response unwisely focuses on bad-faith arguments — namely, the implication that she wouldn’t have achieved a tenured faculty position at Harvard without relying on her Native American heritage. But that claim is easily dismissed without trotting out former colleagues to attest to her merits. Warren wasn’t just any Harvard Law professor. Her reputation as one of the most distinguished law professors in recent history speaks for itself. Importantly, the partisan ideologues who insist she isn’t qualified aren’t likely to be persuaded by any volume of Ivy League testimony.

It’s not especially relevant whether Warren is of Native American descent

Warren’s video also devotes too much time to the claim that Warren lied about her identity. Conservatives have questioned the legitimacy of her Oklahoma family’s lore, that Warren’s parents had to elope because her father’s family objected to her mother’s Cherokee heritage. The bulk of the video is dedicated to backing up the story via testimony from multiple family members and a Stanford genetics professor, who delivers the results of Warren’s genetic analysis over the phone. “The president likes to call my mom a liar, what do the facts say?” asks Warren. While the genetic test doesn’t speak to Warren’s mother’s character, it did confirm that Warren has some Native American ancestry — a bit less than the average white American.

But it’s not especially relevant whether Warren is of Native American descent, or even whether she credibly believed the account of her family history. The only issue, from an ethical perspective, is that Warren held herself out as Native American, allowing Harvard Law School to use her as cover for its impotent diversity efforts.

According to a much-cited investigation by the Boston Globe, Warren consistently checked “white” on personnel forms throughout her career, including in 1981, 1985, and 1998 while employed at the University of Texas. But in the 1986-1987 edition of the Association of American Law School’s directory and eight subsequent editions, Warren listed herself as a minority. She began identifying as Native American on personnel forms three years into her post at the University of Pennsylvania. And while multiple professors have attested to the fact that Warren was considered white during the hiring process at Harvard University, in 1995 she self-identified as Native American, and the school’s statistics were updated to reflect as much. Harvard recorded Warren as Native American from 1995 to 2004.

Warren now claims that while her self-identification was insufficiently nuanced, she wasn’t being dishonest about her heritage, citing her genetic test and family history as proof. But by focusing on the hereditary aspects of identity, rather than the cultural or experiential ones, Warren undermines the stated objectives of diversity programs.

In response to a request for comment to this article, her spokesperson offered a statement Warren has used before: “I wish that I had been more mindful of the distinction between heritage and tribal citizenship. Only the tribes can determine tribal citizenship and I respect their right. That’s why I don’t list myself here in the Senate as Native American.”

The purpose of affirmative action is not to increase the numbers of people who merely self-identify as diverse. (If it were, Rachel Dolezal would be a qualified diversity applicant.) Nor is the point to celebrate minute blood quantum among faculty who otherwise present as white and who don’t engage with nonwhite cultural traditions in any meaningful way. Rather, the major goals of diversity in higher education are twofold: Affirmative action is an effort to level the playing field between white men and historically marginalized groups, such as people of color and women, who were denied access to equal education, higher education, competitive employment, housing, or even the ability to acquire credit cards until relatively recently. Racial diversity efforts are also intended to diversify intellectual perspectives with the understanding that race can be a proxy for experiences, and scholarship is enriched by a wide range of perspectives.

An additional goal of faculty diversity is to establish a support system for students who encounter identity-specific obstacles with which a similarly identifying faculty member may be better qualified to assist. As Lani Guinier, the first nonwhite female Harvard Law professor, has written, there exists a “hierarchy of perspectives” in law school. Students who identify with the institution experience less dissonance than other students “who do not see themselves in the faculty, who vacillate on the emotionally detached, ‘objective’ perspectives inscribed as ‘law,’ and who identify with the lives of persons who suffer from existing political arrangements.”

It’s hard to see how Warren’s minuscule amount of Native American DNA, even coupled with her family lore, furthers diversity objectives. She was not raised with Native American traditions and has not demonstrated any particular experience as a Cherokee woman.

Warren’s minuscule amount of Native American DNA does nothing to further diversity objectives.

Although a person’s appearance is not dispositive of their ethnicity, how a person is publicly perceived does affect whether they suffer discrimination. And in turn, whether a person experiences discrimination affects whether they deserve to benefit from the equalizing effects of affirmative action programs. Discrimination is hard to quantify, and it operates on a systemic level, as well as an individual one. But if Warren has been perceived as white over the course of her life, it’s difficult to credibly argue that she should be the beneficiary of a program intended to level a playing field made uneven by discrimination on the basis of identity.

The University of Pennsylvania tacitly acknowledged this when it declined to tout Warren’s minority status to the press — even while it identified her as nonwhite in the university’s 2005 Minority Equity Report by bolding and italicizing her name along with other minority faculty members. “It counts for way more if you are visibly, recognizably a person of color,” explained Colin Diver, dean of the law school at the time in an interview with the Globe.

By allowing herself to be held out as Native American, Warren enabled the university to leverage her identity as a pretext and decline to hire additional Native American faculty members.

This isn’t just a hypothetical claim: In a 1996 article in the Harvard Crimson, Harvard Law School’s spokesperson Michael Chmura used Warren to diffuse criticism directed at Harvard Law School for its diversity failures: “Although the conventional wisdom among students and faculty is that the Law School faculty includes no minority women, Chmura said Professor of Law Elizabeth Warren is Native American.”

Even though there is no evidence that Warren approved of her identity being used this way, it was naive of her to identify as Native American given the heated political environment of the time. In 1992, when Warren first taught at Harvard Law, the school was in the midst of a massive, student-led push for diversity. The students ultimately sued the law school for discrimination in faculty hiring, and were subject to a public trial by the school’s administrative board for participating in a sit-in at the dean’s office.

In 1990, Harvard Law’s first African-American tenured law professor Derrick Bell protested the lack of diversity among the tenured faculty by taking an unpaid leave of absence. After two years, Harvard had still not hired any minority women for tenured or tenure-track positions, and when Bell requested an extension of his leave, he was denied — ending his own tenure status.

Harvard University has struggled to recruit diverse faculty members over the decades since. It hired its first actual tenured Native American professor this year and didn’t hire its first nonwhite woman — Lani Guinier — until 1998. In the wake of historic on-campus tumult in response diversity complaints, it’s implausible that Warren didn’t understand the implications of identifying as a woman of color.

Warren has nothing to defend with respect to her qualifications. Not only is Trump’s repeated invocation of Pocahontas an offensive and perverse flattening of Native American history into one grossly misrepresented icon, any attack on Warren’s merit from conservatives is hypocritical: Only last week, Republicans championed the Supreme Court confirmation of Brett Kavanaugh, whose legacy status made him markedly more likely to be admitted to Yale, even while he claimed that he got in all on his own. In the 1980s, when Kavanaugh attended college, a quarter of Yale freshman had at least one legacy parent, and matriculating at the college significantly upped the odds of admission to the law school — 27 members of Kavanaugh’s class attended Yale College compared to 10 from Harvard and three from Stanford.

She empowered Harvard to exploit her identity and claim credit for diversity.

But Warren deserves criticism for failing to acknowledge that by holding herself out as Native American, she empowered Harvard to exploit her identity and claim credit for diversity without achieving any of affirmative action’s substantive goals.

If Warren wants to secure the moral high ground in this debate, she should defend the objectives of affirmative action and exert pressure on Trump to acknowledge what’s implied by his taunts about Warren’s authenticity: that campus diversity is a good thing, and genuinely diverse students and faculty members bring valuable experiences to the table. Instead, Warren has emphasized that she is qualified, tacitly suggesting that others whose race was a factor in their hiring are not — even though the Supreme Court has upheld affirmative action for qualified individuals only, not unqualified ones.

The issue has never been what Warren believes about her history, but what Warren believes to be ethically appropriate. She now acknowledges that it was wrong for Harvard Law to hold her out as a diverse member of its faculty. All that’s left is for her to take accountability for her role in Harvard’s misrepresentation and acknowledge that remedial efforts to make up for Native American oppression shouldn’t accrue to her benefit, and that she is an inadequate representative for Native American perspectives or interests on campus. Only then will she be able to transcend this controversy and prevent her biology from becoming her political destiny.