Affirmative Action Without Racial Preferences

Two cases challenging the use of racial or ethnic preference in higher education were heard by appeals at the Supreme Court. Most readers will be aware. Is it possible to salvage affirmative action which takes into consideration “background”, even if the Court doesn’t allow overt racial/ethnic preferences?

Classified, the Untold Story About Racial Classifications and American Racial Classifications, is my forthcoming book. I argue that it’s true, at least in relation to some Native Americans as well as most African Americans. The book does not address affirmative action but it is a book about racial classes.

This book explains how the categories that universities used to classify students by their race or ethnicity –Asian American/Black/African American Hawaiian/Pacific Islander, Hawaiian/Pacific Islander, Hispanic/Latino Native American and White –came about. They were created by the Office of Management and Budget to regulate statistics-keeping and reporting in the federal government. Although “black” and “white” are familiar terms, most people don’t consider themselves to have been Hispanic, Latino, or Asian before 1970. [as opposed to Mexican, Cuban, Chinese, Japanese, etc.]Although it wasn’t inevitable, white ethnic groups such as Cajuns or Poles were to be classified with generic whites.

These classifications were not intended to provide proxies for diversity in higher education, or anywhere else. They also explicitly stated that they should not be understood as scientific or anthropological. OMB cautioned that these categories should not be used to determine eligibility to participate in Federal programs, such as affirmative actions.

However, these were the categories that universities used to report their admission statistics to Department of Education. These became almost instantly affirmative action proxy groups. These categories are used in minority business enterprise programs.

The original beneficiaries of the minority business enterprise preference (MBE), were businesses owned by descendants of African slaves (ADOS). Nevertheless, members of all minority groups became equally eligible for these preferences….
Many MBE preferences are now given to companies owned by people who belong to official minorities and not descendents of enslaved Americans. Hispanics as well Asian Americans, Native Americans and black immigrant from Africa or the Caribbean make the ADOS population smaller demographically. Non-ADOS people not only have more black Americans than the ADOS population, but also possess more of what is needed for government contracts.

According to current norms and rules, any person with at least partial Asian and Hispanic ancestry can be admitted to these groups. Americans of mixed ancestry are generally willing to shift their self-identified racial or ethnic status to whatever currently benefits them….Within a generation or two, a large majority of Americans will be eligible for MBE preferences. Affirmative action preferences cease to have meaning if they are accessible to everyone. It may not be possible to save MBE preferences if there are fewer eligible people.

This suggests that MBE preferences should be limited to ADOS, and not to other beneficiaries. A smaller group should be considered, including members of Indian tribes recognized as living on or near reservations. This would bring many benefits. First, ADOS and residents of Indian reservations are the two American groups whose ancestors suffered the most by far from state and private violence, oppression, and exclusion, with continuing reverberations today….

Finally, government-granted preference for people based upon their ethnicity or racial background raises ethical, constitutional and practical questions. It is not a race, however. [see Morton v. Mancari]. Black Americans, born in Africa, would not be eligible to MBE preference. Los Angeles resident with one Native American great-grandparent who he inherits tribal membership would also no longer be eligible.

Then, I turn my attention to the racial preferences of higher education.

The only purpose for which the Supreme Court permits university-level affirmative action is to enhance the “diversity” of a school’s student body for the benefit of all concerned…. However, colleges’ methods of achieving ethnic and racial diversity are not logical if that is what they want.

Many elite schools attempt to match the percentages of students of different ethnicities with those of their applicant pools or other demographic base. About one-half to one percent of American citizens identify themselves as Native American. 18 percent are Hispanic. The one hundred and eightieth Hispanic students in a one-thousand student class is not more ethnically diverse that the sixth Native American.

Moreover, universities often give little or no consideration to the fact that members of official minority groups “may have no interest whatsoever in the culture popularly associated with the group….” Meanwhile, the relevant official minority categories are themselves internally ethnically diverse, often radically so…. [Meanwhile, a]Yemeni Muslim students can bring significant religious, cultural and ethnic diversity on campus. Admissions officers classify her as a non-Hispanicc white student for campus affirmative actions purposes. This is also true for an Egyptian Copt and a Hungarian Roma as well as a Bosnian Refugee, a Bosnian Roma, a Bosnian Roma, a Scandinavian Laplander. A Bobover Hasid.

The African American categories aren’t culturally identical for those who don’t qualify. [including everyone from an African immigrant with one white parent to descendants of American slaves]….
The Native American Category is very internally diverse. [and fraudulent claims of Native American status are common]….

Schools that are truly committed to attracting diverse students should stop relying solely on government-imposed racial or ethnic categories as an indicator of true diversity. Affirmative action preferences should not be pursued in the same way as MBE. They should only be available to descendants of African slaves or members of American Indian tribes that live on reservations. These preferences are not about diversity but about resolving historic injustices and helping marginalized people to the American mainstream.

The Supreme Court could decide that Indian reservation residents and the ADOS are proxies of racial classifications, and so presumptively not constitutional.