The Elizabeth Warren Mystery

Why did Elizabeth Warren – Democratic candidate for the United States Senate seat from Massachusetts currently held by Republican Scott Brown – list herself as a member of a minority group in the directory of law teachers published by the Association of American Law Schools (AALS)?

Brown suggests that Warren claimed minority status to gain an advantage in the law school faculty employment market. But almost certainly Brown – as well as other Republicans, and most of the media following the story – are barking up the wrong tree.

In this post, I shall set forth my theory about what happened.

First, full disclosure: I am an Elizabeth Warren supporter. I believe she will make significant contributions to the Senate and the nation if she is elected, and I have contributed to her campaign.

Here’s a brief review of the relevant facts. When Warren applied to the Rutgers School of Law in Newark, New Jersey, as a student, she listed herself as white and didn't claim minority status. In 1978, Warren began her career as a law professor at the University of Houston. After three years there, she made a transition to the University of Texas, one of the nation’s top law schools. During this time, Warren continued to identify herself as a non-minority.

In 1986, Warren’s name appeared for the first time in an appendix to the AALS directory that lists law teachers who designated themselves as minorities. Each year, law professors at AALS-member schools fill out a form to update information – degrees earned, positions held, books published, and the like – for the directory. The form also asks whether the faculty member is a member of a minority group. Warren apparently identified herself as Native American. She does have some Native American blood in her veins – but only a few drops. Warren’s great-great-great mother was Cherokee, which makes Warren 1/32 Native American. Warren’s name continued to appear in AALS published list of Minority Law Teachers until 1995. It then disappeared from that list.

In 1987, the year after she first designated herself as a Native American, Warren left Texas and began teaching at the University of Pennsylvania Law School. In 1995, she left Penn for Harvard Law School. Scott Brown and other Republicans suggest that Warren listed herself as a minority in order to help get these appointments. But that is almost certainly not the explanation.

First, if that were the case Warren would not have stopped listing herself as a minority immediately after joining the Harvard faculty. Doing so would have been tantamount to telling Harvard: I told you I was Native American to make you hire me; now that you've done so, I’ll stop the charade. Had Warren intended to make herself more attractive to Harvard by claiming minority status, or believed that Harvard considered her minority status in its hiring decision, she would have continued to list herself as a minority for at least many more years.

Second, Warren did not need to make herself more attractive on the job market by designating herself as a Native American. When Penn hired her, she was a rising super-star. When Harvard hired her, she was a fully-risen super-star – one of, if not the, preeminent scholars in her field. Any law school – even Harvard or Yale – would have considered itself lucky to land her.  

Third, and even more importantly, claiming status as a minority is, by itself, not helpful in the law school employment market. Law schools are indeed seeking to increase minority representation on their faculties. They do so for legitimate and sometimes for less than fully commendable reasons. On the legitimate side of the ledger, schools want minority teachers to increase the diversity of experiences and views on their faculties, and to serve as role models for minority students. In some cases, law schools also want to demonstrate their progressive values. No law school today, for example, would want a photo of its faculty to include only white male faces. But Warren’s minority status was not evident in her appearance, name, or published writings. Nor did Warren’s experiences as a Native American enrich discussions in classrooms or faculty lounges. No one suggests that she was talking about life on the reservation. Unless one consulted an appendix at the back of the 1,900-page AALS directory, no one would have known that Warren was a member of a minority group.

That listing was, therefore, the whole point.

Who benefited from that listing? The University of Pennsylvania Law School benefited because Warren’s listing as a member of a minority group improved its statistics, that is, the percentage of minorities on its faculty. The AALS tracks and cares about such things, and in a variety of ways encourages – some might even say pressures – law schools to increase minority representation on their faculties. Being able to list Warren as a minority was not valuable enough to affect a faculty appointments decision, but it was nice to have. 

So here’s my theory. (And I stress this is only a theory.) At some point during the hiring process, Warren mentioned to one of the people from Penn that she had a great-great-great grandmother who was Cherokee. She didn't mention this because she thought it would make Penn hire her. She knew it was too inconsequential to matter. She also knew that claiming to be Native American when she was only 1/32 Cherokee, if examined by a hiring committee, would make her look foolish and be more likely to hurt rather than help her chances of being hired. She mentioned her great-great-grandmother simply because it was interesting. When Penn extended an offer of employment, however, it asked her to list herself as a minority. This wasn't of earth-shaking importance; but it did improve Penn’s statistics for AALS. Though she privately wasn't happy about it, Warren agreed. She listed herself as Native American on her next AALS form, while she was still at Texas but on her way to Penn, and continued to so list herself for the nine years she was at Penn. As far as she knew, no one at Harvard was even aware of that listing; so when she moved to Harvard in 1995, she immediately stopped listing herself as a minority.

There is one item that cuts a bit against my theory. In a Harvard Crimson article about a lack of diversity on the law school faculty, published in October 1996, a Harvard spokesperson is quoted as saying that "contrary to conventional wisdom" Elizabeth Warren is Native American. (You can access that article here.) Harvard Law School was being heavily criticized at the time because among the 71 members of its faculty, only eleven were women and, even counting Warren, only three were people of color. So someone did tell Harvard Law's public relations department that it could claim Warren as a Native American. While this could have been Elizabeth Warren or her husband, Bruce Mann, who is also a Harvard Law professor, it could also have been someone else. It's possible, for example, that someone at Penn's public relations office tipped off a counterpart at Harvard. But this does not undercut the main point of my theory, namely, that the motive for Warren's listing as a minority law teacher was institutional, not personal.

UPDATE (15 May 2012): Right-wing bloggers are now making much of the fact that genealogists cannot confirm that Elizabeth Warren’s great-great-great grandmother was Cherokee. But that is not directly relevant. What matters is whether Elizabeth Warren reasonably believed her ancestor was Cherokee. She says that is what her grandparents told her – and even her harshest critics concede that a 2006 family newsletter so stated. See, for example, this post.

UPDATE (31 May 2012): See a second piece -- The Elizabeth Warren Mystery II -- on this subject posted today.

 

image of edmund burkeEDMUND BURKE

 

Edmund Burke -- the great eighteenth century British statesman -- was both a liberal and a conservative.  For a relatively concise but complete profile of Burke, and an explanation of why by today's standards Burke may be considered either a liberal or a traditional conservative -- but emphatically not a libertarian, neoconservative, or social conservative -- read Professor Bogus' article Rescuing Burke, 72 Missouri Law Review 387 (2007).

Here are some quotes from Edmund Burke:

"We must all obey the great law of change.  It is the most powerful law of nature, and the means perhaps of its conservation."

"Society become a partnership not only between those who are living, but between those who are dead, and those who are to be born."

"The individual is foolish; the multitude, for the moment is foolish, when they act without deliberation; but the species is wise, and, when time is given to it, as a species it always acts right."

"Whatever each man can separately do, without trespassing upon others, he has a right to do for himself; and he a right to all which society, with all its combinations and skill and force, can do in his favor.  In this partnership all men have equal rights; but not to equal things."

 

EDMUND is a blog by Professor Carl T. Bogus.

 

Subscribe to EDMUND: A Blog

Recent Blog Posts

Burke's Importance T…

Oct 07,2013

Jesse Norman, a British Member of Parliament, has written an exciting new book about why Burke is important today. I reviewed Norman's book for the American Conservative....

More >>

Realistic Fantasy An…

Jun 08,2013

Q. Why doesn’t George R.R. Martin use Twitter? A. Because he killed off all 140 characters. Reading this excellent piece (from which I've copped the joke) by...

More >>

Notes on a Scandal-2…

May 20,2013

Here’s a concise legal briefing that may be helpful to understanding the so-called Associated Press scandal. Do journalists have a constitutional privilege that protects them from criminal investigations seeking...

More >>

Notes on a Scandal-1…

May 17,2013

The Washington Post op-ed page today has dueling columns related to the so-called Benghazi scandal – one by Ruth Marcus (here); the other by Charles...

More >>

Fever on the Right

May 15,2013

“My thinking was when we beat them in 2012 that might break the fever, and it’s not quite broken yet,” President Obama remarked at a...

More >>

Rats in Their Maze

May 07,2013

Rats in their maze. They are the giant food conglomerates: Kraft, General Mills, Post, Kellogg, PepsiCo, Campbell Soup, and others. We are the rats. I’ve just...

More >>

Defeat the Manchin-T…

Apr 15,2013

Today I checked the websites of leading gun control organizations, including the Violence Policy Center, Mayors Against Illegal Guns, the Law Center to Prevent Violence,...

More >>

"Burke Between Liber…

Apr 03,2013

Peter Berkowitz, a senior fellow at the Hoover Institution, has written a wonderful 16-page description of Edmund Burke’s thinking, entitled Burke Between Liberty and Tradition....

More >>

Gun Control and The …

Mar 31,2013

At least 83% of Americans favor universal background checks for gun purchases. At most, 15% oppose them. According to one survey, even 75% of NRA...

More >>