Orin quotes Leiter as follows, in suggesting that Elizabeth Warren would not have listed herself as a Native American to benefit from affirmative action: “For affirmative action purposes, all law schools care about are African-Americans and Latinos.” But he also quotes Leiter as follows: “[B]ecause the AALS aggressively polices the racial and ethnic diversity of law faculties [editor's note: as does the ABA, which is of course in charge of accreditation], law schools are careful to make sure anyone who could count as an under-represented minority is so-listed.”
So if law schools are worried about not having “enough” underrepresented minority faculty to satisfy the AALS (and the ABA), and if Native Americans count as underrepresented minority faculty (they do), surely it gives a law professor a potential advantage to promote oneself as a Native American.
This is not to say that Warren’s hiring at Harvard had anything to do with her dubious claim of minority status. But that’s a red herring. The issue isn’t whether Harvard or anyone else would or would not have hired Warren otherwise. The issue is whether Warren claimed dubious minority status because she thought that on the margins it might benefit her. [The issue, in short, is Warren's integrity, not whether she "deserves" to be at Harvard based on her academic achievements. In fact, Warren has had an extremely impressive academic career, especially given that she started with the serious disadvantage of not in any way taking the traditional 'elite law school to elite clerkship to elite law firm' route that almost every professor at an elite law school has taken.]
Perhaps not. But all she has to do to clear things up is to answer the following question: “why did you list yourself as a minority professor when you were a professor at Texas and Penn, but then didn’t do so once you arrived at Harvard.” I can think of plausible explanations that would not reflect poorly on Warren, but she hasn’t as yet provided such an explanation. All she’s said is that she’s proud of her Native American heritage, which hardly explains why she listed herself at Penn and Texas and not at Harvard.
Note to Warren’s campaign: If you want to provide a written response to the query above, I’d be happy to post it on this blog.
UPDATE: Warren now claims that the answer the query raised above is that she hoped to meet and interact with other lawprofs who similarly had Native American ancestry. Professor Jacobson responds that this doesn’t make sense, because the AALS guide doesn’t tell one’s colleague which minority group one is claiming membership in. Read his post and decide for yourself.