Elizabeth Warren and Fisher v. University of Texas

At least one point of interest having nothing to do with Warren herself has arisen from the controversy over Massachusetts Senate candidate’s Elizabeth Warren’s dubious self-identification as “Native American”, and whether she so self-identified to position herself to be a beneficiary of affirmative action.

One of Warren’s defenders, a law professor at the University of Chicago, formerly of University of Texas, claims that as a long-time member of Texas’s hiring committee he knows that Texas (Warren’s first “big-name” law school job), like other top law schools, is completely uninterested for affirmative action purposes in Native American heritage. He added that co-blogger and Warren critic Todd Zywicki would have known this if Todd had “participated in hiring at an elite law school.”

The argument that elite schools don’t care about Native American ancestry, even if true (and my own guess is that this varies considerably depending on the circumstances at each school), doesn’t help Warren–until she “participated in hiring at an elite law school” she would also have been ignorant that claiming Native American status would not be helpful to her.

Moreover, from a non-insider’s perspective, there’s no reason to think it wouldn’t. I can’t think of any standard rationale for affirmative action, lawful or unlawful (redressing past wrongs done to historically aggrieved groups, creating role models, ensuring “diversity” of perspectives, boosting the prospects of marginalized communities, making sure white students get exposed to students of different cultures, etc.) that would cause a school like University of Texas to, for example, give plus to a well-to-do light-skinned Mexican-American of pure Spanish ancestry to become Hispanic admittee number 300 but not to a Native American living on the Navajo reservation in Arizona to become Native American admittee ten.

But the broader point is that this all led me to be curious as to whether UT Law School has given preferences in admissions to Native Americans, a fact I figured I could discover by rereading the Fifth Circuit’s opinion in Hopwood v. Texas, invalidating UT Law School’s affirmative action admissions program. It turns out that UT (unlike University of Michigan in the Grutter case) did not give preferences to Native Americans, but did give them to Hispanics. And as near as I can tell, the University of Texas-Austin undergraduate college, which is currently defending its affirmative action program before the Supreme Court in Fisher v. University of Texas, also gives preferences to African Americans and Hispanics, but not to Native Americans.

Again, none of the normal justifications for affirmative action would lead to, for example, the children of my Argentine immigrant friends of German, Italian, and Jewish descent getting affirmative action preferences, but a Hopi Indian not getting such preferences. Yet that apparently is what happens, and has happened, at UT Austin.

Of course, there aren’t many Native Americans in Texas (.7% of the population). But perhaps that’s the answer to the puzzle. Affirmative action is generally justified by reference to the African American experience (a justification I have some sympathy with), but if you are running a university in a state like Texas, where Hispanics are a huge political force (and 37% of the population), you need to throw them into the mix as well for political reasons (largely at the expense of Asian Americans, who are a much smaller percentage of the population). Native Americans, however, as a tiny percentage of the electorate, can be safely ignored.

UT’s program of preferences, then, starts to look less like a pure “diversity” program that would surely want to encourage Native American admissions, and more like a program with two goals: (a) satisfy the strongly felt need of all major universities to have a significant African American presence (the post-Grutter program at issue doubled the percentage of African American students from 3 to 6%), for political, public relations, and ideological reasons; and (b) try to bring Hispanic politicians and voters into the pro-affirmative action coalition by extending preferences to them (I don’t have the exact statistics handy, but iirc the percentage of Hispanic students rose by about 1/3 from a percentage that was already in the teens, with Hispanics benefiting more in absolute terms from preferences than do African Americans).

In other words, it looks like UT, at both the law school and the undergraduate level, has been running what amounts to an ethnic spoils system. This does not bode well for its prospects before the Supreme Court.