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 Posted: Wed 23 Mar 2005 18:18 Post subject: Prove You're Not White: Affirmative Action & Racial "Fraud" |
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http://www.time.com/time/archive/preview/0,10987,968798,00.html
| Quote: | Color Them Black
Two brothers trick Boston's affirmative action program
Oct. 31, 1988
After the Boston fire department rejected them because of poor exam scores in 1975, identical twins Philip and Paul Malone did not think of giving up. Back they went in 1977 with new applications and a new strategy: they declared that they were black. As such, the Malones were hired by the department, which was under pressure to take on more minority firemen. Under a court-ordered affirmative action plan, it no longer mattered that the brothers, with exam scores of 57% and 69%, fell far short of the passing grade of 82% required for whites.
For ten years no one officially questioned the Malones' self-proclaimed blackness. Then in February the twins were put on a list of blacks among firemen proposed for promotion to lieutenant. The list went to fire commissioner Leo Stapleton. He knew the Malones were the department's only identical twins, and if they weren't white, it was news to him. Stapleton asked the state's department of personnel administration to check out the twins' status. The emerging issue was pointedly expressed by black city councilman Bruce Bolling: "How could twins with Irish names, Caucasian features and no black identification from any perspective get onto the force and stay on without collusion?"
Good question, especially since the fair-haired, fair-skinned Malones had identified themselves as white on their first applications. Eventually the twins, now 33, claimed that they did not learn they were black until 1976, when, they say, their mother discovered a sepia photograph of a pale-looking woman she said was their black great-grandmother. Last month, after an investigation of their claim, they were fired.
The dismissal, which the Malones have appealed to the State Supreme Judicial Court, has Boston churning. Amid rumors that there have been other phony claims of minority status, mayor Ray Flynn ordered a review of the hiring practices in the fire and school departments. Two weeks ago, Flynn disclosed that at least five other fire fighters will be asked to prove they are not white. |
| Quote: | July 28, 2003, 8:45 a.m.
Black Like Me
Winks and nods as admissions policy.
By Peter Kirsanow
Who gets a preference?
Yes, we know that the Supreme Court permits selective colleges to award a "plus" to black, Hispanic, and Native-American applicants. But just who, exactly, qualifies as black, Hispanic, or Native American?
Absurd Supreme Court decisions can produce seemingly absurd questions. But as silly as the above query sounds, it's one courts have wrestled with for much of our history, particularly during the Jim Crow era. Fortunately, those days are gone. But now the Grutter case has once again revived the distasteful relevance of racial identification.
Colleges that award a plus to applicants from preferred minority groups confer a significant benefit admission to an institution that can ease the pathways to success. Indeed, we're told by preference supporters that graduation from an elite school can add hundreds of thousands of dollars to one's income over the course of a lifetime.
The competition for admission to these schools is ferocious. Students struggle for years to compile the kind of GPAs, extracurriculars, and board scores that will increase the probability of admission. Yet each year, thousands of high-school seniors with stratospheric grades and scores are rejected by their schools of choice. Getting the "plus," a preference on the basis of an applicant's race, allows one to vault to the front of the admissions line. As a Center for Equal Opportunity study demonstrates, a black applicant to the University of Michigan is 174 times more likely to be admitted than his white counterpart. A Hispanic applicant is 133 times more likely to be admitted. Indeed, beyond an average level of qualifications, the plus/preference nearly guarantees admission to many select schools.
When the state dispenses a benefit on the basis of an individual's status, it requires validation of such status. Some of these benefits are arguably as valuable as the "plus"; others are not but proof of eligibility is invariably required. For example, a person applying for Social Security disability must supply an array of information: names of treating physicians, types of treatments used to diagnose the disability, medications, etc. Applicants for driver's licenses must establish proof of age. And in New Hampshire, where the legally blind are entitled to free fishing licenses, an applicant must furnish the results of an eye exam approved by the state ophthalmologist.
The University of Michigan, however, requires no objective proof that an applicant is, in fact, eligible for the "plus" by virtue of being a member of a preferred minority group. Paragraph 11 of the Michigan Law School application states, in pertinent part:
[I]f one race or ethnicity that you think best applies to you. Your decision to answer or not answer this question will not influence law school's decision on admission.
American Indian/Alaskan Native tribal affiliation
American Indian
Black/African American
Hispanic/Latino
Asian American/Pacific Islander
White, not of Hispanic origin [emphasis added]
So the only "proof" of membership in the preferred class is mere self-identification. But self-identification presents at least two problems. The first is fraud. The Michigan Law application also contains the following certification:
I hereby certify that all statements and representations on this application and all accompanying materials are true and accurate to the best of my knowledge. I understand that false statements may result in revocation of an offer of admission or expulsion or rescission of my degree. [emphasis added]
So, if a white applicant is caught trying to improve his chances of admission by a multiple of 133 by claiming to be Hispanic, he could be expelled, or if he isn't caught until he's already practicing law his degree could be revoked.
Skepticism that either of the above scenarios would ever come about is understandable. After all, how many hypersensitive, politically correct college administrators would dare question a student's race?
But racial fraud is far more pervasive than some might suspect. Minority set-aside programs throughout the country have been marred by scandals involving fraudulent racial identification. And applicants for civil-service positions that accord racial preferences pursuant to consent decrees have also been known to fudge race.
One of the earliest and most publicized examples of the affirmative action era is the case of the Malone brothers. As Christopher Ford notes in his 1992 California Law Review article, "Administering Identities; The Determination of 'Race' and Race-Conscious Law," the Malone twins, white-skinned and fair-haired, took the 1975 civil-service test to become Boston firefighters. They self-identified as white and were not accepted because of low scores. Shortly thereafter, the Boston fire department became subject to a consent decree requiring preferences for black firefighter candidates. The Malones retook the test, this time identifying themselves as black. Although their scores weren't high enough for acceptance as white candidates, they did qualify under the standards for blacks and were hired. They worked as Boston firefighters for the next ten years. Only when they came up for promotion did higher-ups notice that the Malones had identified themselves as black; they were duly fired for falsification. This prompted the Boston fire department to investigate nearly a dozen other cases of suspected fraudulent racial identification.
The second and more important problem concerns the colleges' critical-mass formulation. As I noted in an earlier article (see "Michigan Impossible"), the Supreme Court permits a selective college to award a plus to preferred minorities so that the college can reach a "critical mass" of such minorities. Critical mass is the fabled point at which the number of preferred minorities on campus causes the four purported benefits from diversity to flow: (i) breaking down racial stereotypes; (ii) promoting cross-cultural understanding; (iii) providing the exposure needed to prepare for the global marketplace; and (iv) promoting spirited classroom discussions.
The Court accords colleges a presumption of good faith in their use of racial classifications. In other words, the Court gives admissions officers the benefit of the doubt that their "critical mass" produces the educational benefits noted above.
Moreover, the Court allows the preference only because these educational benefits constitute a compelling state interest. Now, keep in mind that before Grutter, the only things that qualified as compelling state interests justifying the use of racial classifications were the remediation of actual instances of past discrimination and national security, i.e., pretty important stuff.
So reaching a college's critical mass can't be a matter a college treats cavalierly otherwise it forfeits the presumption of good faith and its preference program is rendered unconstitutional.
And there's the rub. The presumption of good faith that entitles colleges to use racial preferences is revoked where the critical-mass calculation is a sham. And critical mass is necessarily a sham if college gatekeepers take no credible steps to ensure that they're actually admitting the "right" minorities to reach the critical-mass threshold.
The post-Grutter Internet is already bristling with calls for racial-identity rebellions designed to confound admissions offices. A few rogue applicants employing Malone-like tactics could easily scramble a college's critical-mass numbers. (And, presumably, the educational "benefits" of diversity would then be lost racial stereotypes would abound, cultural ignorance would prevail, graduates would be unable to function outside the Ann Arbor market, and minority students would be suddenly struck mute).
But again, the more pressing issue is not about rampant racial fraud, but about numbers. For if we are to take seriously the diversity argument that the mere presence of preferred minorities in certain numbers is intrinsically beneficial to the educational experience then the question necessarily arises: Who does a college consider to be black, Hispanic, or Native American?
Is an applicant of Moroccan descent an African American entitled to a plus or is he an Arab American, who gets none? Does an ethnic German applicant recently emigrated from Peru get a Hispanic plus? Does a white applicant with a black great-grandfather get an African-American plus? And why doesn't a native Hawaiian get a Native-American plus, as do Alaskan natives?
Admissions officers will be pleased to know that plenty of guidance is available to answer some of these questions. (The 1910 Louisiana case of State v. Treadaway, 126 La. 300, 52 So. 500, is a handy guide.)
There are scores of court decisions interpreting state laws regarding racial identity and school admissions. Prior to the 1950s, most states had statutes defining "blacks," "Negroes," "mulattos," and "coloreds." Those designated as such were excluded from white schools.
Some states employed the "one drop" rule any black ancestor, however remote, rendered one black. Alabama held that anyone at least 1/32 black i.e., who had at least one black great-great-great-grandparent was to be excluded from white schools. North Carolina, on the other hand, only went back four generations.
The most common racial-identity statute considered anyone with at least one black great grandparent to be black. (Unfortunately for admissions officers, the law provides scant guidance as to who is a Native American or Hispanic, although a recent case in Seattle suggests that anyone with at least one Native-American great-great-grandparent qualifies as Native American.)
But what about Michigan? An old Michigan constitutional provision pertaining to "colored" school admissions provides little guidance. However, an 1880s Michigan marriage statute defines a "colored" person as anyone who is "wholly or in part of African descent." (Some anthropologists would point out that we're all, in part, of African descent. Arguably, then, everyone's entitled to a plus.)
How would the University of Michigan determine whether someone is "wholly or in part of African descent"? The court that heard the Malone brothers' wrongful discharge claim helpfully instructs that racial identity must be determined by one of three criteria: (i) visual observation of the claimant's features (they all, you know, pretty much look alike); (ii) documentary evidence (shades of antebellum race passbooks); or (iii) reputation in the community (according to Critical Race theorists, "inauthentic" blacks you know who they are don't count).
All of which raises the delightful prospect of an earnest college-admissions officer in the next racial-preferences court case explaining to the jury how he determined that Tiger Woods is not entitled to a plus because Tiger's black ancestry is cancelled out by his Asian genes.
Everyone knows we'll never see this vignette play out. But if student-body diversity is indeed a compelling state interest on the level of national security then colleges can't play fast and loose with the plus factor. They can't simply rely on the serendipity of racial self-identification to meet the all-important critical-mass threshold. Racial identity must be confirmed; otherwise, a college can never be certain it's reached its critical mass, and the diversity rationale would be revealed as just a transparent, albeit elaborate, hoax a cynical mechanism to get some preferred minorities on campus.
The sad fact is that this is precisely what's going on, and everyone knows it. Even Justice Ginsberg suggests that colleges are simply arriving at predetermined numbers through "winks, nods, and disguises."
So, as long as colleges don't require proof of eligibility for the plus, we may one day see Prince William, pleased that his admission has helped the University of Michigan reach its critical mass, strolling across campus and wistfully reciting the old Langston Hughes poem:
Rest at pale evening...
A tall slim tree...
Night coming tenderly
Black like me.
Peter Kirsanow is a member of the U.S. Commission on Civil Rights.
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http://www.nationalreview.com/comment/comment-kirsanow072803.asp
| Quote: |
Can You Prove You're a Minority?
Tuesday, May 26, 1998 - Seattle Times
by Tom Brune
Seattle Times staff reporter
Elizabeth Lake says she has always thought of herself as a Native American.
So two years ago, when filling out a state-government job application that asked her race or culture, she didn't think twice about checking the box labeled "American Indian."
She eventually landed a job with the Department of Social and Health Services. But within the first week, a supervisor pulled Lake out of a training session.
"She said she could not visibly determine my race," recalls Lake, who has long, dark hair, dark eyes and a light complexion.
The supervisor told Lake she had been hired to meet an affirmative-action goal for American Indians, and that if she could not prove her race, the job offer would be withdrawn.
The next day, Lake brought in documents showing her great-grandfather was a member of the Chickasaw Nation.
But her supervisors told her she needed proof that she was a member of a tribe - and that she had a month to produce it.
She didn't. She lost her job.
Lake has since learned she is 1/128th Chickasaw Indian, enough for her to get a tribal-affiliation card, sufficient documentation for the state.
Now she's suing DSHS.
As her case illustrates, running and policing affirmative-action policies can be tricky.
Among the most challenging and uncomfortable tasks is verifying the race and ethnicity of applicants who get jobs through affirmative action.
Consider the questions a supervisor faces: When do you challenge or accept an employee's race or ethnicity? What proof do you accept? What do you do when you find out people aren't who they say they are?
"It is a very difficult and sensitive thing to do," acknowledged Roy Standifer, administrator of the Workforce Diversity Program of the state's Department of Personnel. "For example, how do you prove you're Hispanic?"
Such vexing questions are being raised in the national debate over the future of affirmative action - a debate now centered on Washington state, where voters face a decision this November on a ballot measure known as Initiative 200.
I-200 has the stated goal of ending preferences based on race, ethnicity and gender in state and local government employment, contracting and public education. If passed, it would end affirmative action as it is now practiced in state and local public agencies.
Rep. Scott Smith, R-Graham, co-chairman of the campaign for I-200, said the state wouldn't have to worry about verifying applicants' backgrounds if it didn't use preferences based on race or ethnicity.
"It's pitting one race against another," he said.
Accusations of `racial fraud'
State administrators are divided on the policy.
Supporters of the practice say it may be awkward, but it's necessary. They frequently cite the case of the Malone twins of Massachusetts.
In 1975, Philip and Paul Malone took Boston's civil-service exam to become firefighters, but weren't hired because their scores were too low. Two years later, after a court ordered Boston to hire more minority firefighters, the Malones again took the exam. Their scores remained the same, but this time they were hired - because they had switched their racial classification from white to black.
No one challenged them until 1988, when both applied for promotion. Reviewing their applications, a commissioner who knew them personally was surprised to see them identified as African Americans.
When questioned, the twins claimed that between 1975 and 1977, they learned their great-grandmother was a light-skinned black woman. The department rejected the claim and fired them for "racial fraud."
Black and Hispanic leaders blasted the Boston Fire Department, and one charged that as many as 60 firefighters had gotten jobs through racial fraud. The city investigated 11 firefighters who said they were Hispanic, and two of them resigned.
Most public agencies rely on applicants to be honest and accurate in identifying themselves, but all fear such incidents.
State asking questions
Washington state's six-page job application asks job-seekers to volunteer their race or culture on a page titled "Affirmative Action Information."
The page has a series of boxes an applicant can check. At the bottom, it defines the choices: American Indian or Alaskan Native, Asian or Pacific Islander, Black/African American, Hispanic, White/Caucasian, person with disabilities, disabled veteran and Vietnam-era veteran.
Except for the category of white, those seven - as well as women and people age 40 and over - make up the groups designated to benefit from affirmative-action policies.
The form lists definitions of each category, but says nothing about requiring applicants to prove who they say they are.
Most departments accept whatever race or culture the applicant checks. But in the early 1990s, the state began surveying its employees to check the accuracy of its ethnic and racial headcount.
That survey was begun in part because the federal Americans with Disabilities Act changed the definition of disability, making it stricter than before. But it was also in response to criticism by Native-American leaders and the state Commission on Hispanic Affairs.
"The criticism was that individuals were putting themselves down as being Native American and Hispanic and were not," said Margarita Mendoza de Sugiyama, the top aide on affirmative action for Govs. Booth Gardner and Mike Lowry. "And I am sad to say it was true."
At the conclusion of the survey, the numbers on the race and ethnicity of state employees changed, and the biggest drops were in the number of Native Americans and people with disabilities.
The Department of Labor and Industries, for example, where Mendoza de Sugiyama now oversees diversity and affirmative action, surveyed 2,600 employees in 1994. In cases in which employees could not - or chose not to - prove they fit into one of the nine affirmative-action categories, the agency changed their classification. More than 10 percent of the employees were changed, most for claiming disabilities or veteran status.
About a quarter involved race:
-- Twenty-nine changed from Native American to Caucasian.
-- Nineteen changed from Asian American to Caucasian.
-- Nineteen changed from Hispanic to Caucasian.
-- Six changed from African American to Caucasian.
Unclear, though, was whether applicants had lied or simply balked at providing proof of their race. Of the six whose classification changed from black to white, Mendoza de Sugiyama said: "When the verification process began, they chose not to participate or not to provide the documentation."
Nonetheless, the survey discovered some who had clearly cheated. Some non-Hispanic women, for example, would marry a man with a Spanish surname, then claim to be Hispanic.
Although some of the cheaters had benefited from affirmative action, none lost their jobs, Mendoza de Sugiyama said: "Absolution was given to every employee."
Accurate numbers are crucial to the goals and timetables of affirmative-action programs.
That's why Mendoza de Sugiyama has argued for verification.
But Rita Cooper, of the Department of Parks and Recreation, thinks that puts another obstacle in the way of people who already face plenty.
"This is very much about people who are disenfranchised who now have to prove their membership in a disenfranchised group," she said.
Employees with multiracial backgrounds find it particularly hard to prove their race, said Cooper, who is herself multiracial. She feels the problems created by requiring verification outweigh the benefits of finding a few people who are lying about their backgrounds.
"I don't find a lot of people standing in line to say they're black."
Verification - a touchy process
The debate has never been resolved - and resurfaces at times, as it did this month at a meeting of state affirmative-action officers.
A subcommittee looking into the issue sent out basic guidelines, suggesting claims of race, ethnicity or gender should be accepted on the same basis as claims of education and experience.
"In the absence of contradictory information, the protected-group status claimed on an employment application should be accepted," the guidelines state.
But they also suggest that for job candidates getting a boost over others higher on the eligibility list to meet an affirmative-action goal, "greater scrutiny is appropriate."
The only state agency to require verification by every employee who could benefit from affirmative action is the Department of Labor and Industries. Mendoza de Sugiyama says she sits down with each new employee, pulls out his or her file and asks for documentation.
"It's been fascinating for me," she said. "It's not like we're all card-carrying members of something."
For some, the records needed are clear: a Vietnam-era veteran must produce a military-discharge form; a disabled veteran must show a letter from federal Veterans Affairs; a person with disabilities must show a note from a doctor.
For African Americans, Asian Americans and Hispanics, Standifer's guidelines are vague: "Birth certificate stating ethnicity, or other verifiable proof."
That standard poses problems. The state of Washington stopped putting race on birth certificates in 1968. Even though it added ethnicity as a category in 1988, that information also is confidential. To divulge that information, the Health Department requires a court order.
And for Hispanics, the standard is even more difficult, since that term describes not a race but a culture.
Mendoza de Sugiyama said she also accepts naturalization papers, genealogy records, military papers, marriage certificates, even family Bibles. If a person has none of these documents, he or she can swear to circumstances and culture in a notarized affidavit.
Native-American status
The strictest and most specific documentation is required for Native Americans - a tribal-affiliation card or a letter from a tribe.
That requirement is based on the complex history of the issue of Native-American identity, according to James Nason, a University of Washington anthropology professor and curator of the Burke Museum.
At the turn of the century, the U.S. government began using the "blood quantum" rule - defining an Indian as someone who has at least one-quarter of his blood from one person from one tribe. For some federal services, that's still the official definition.
But long before Europeans arrived, the continent's 750 tribes already had their own rules of membership, many of which were based not only on birthright, but also on shared culture, behavior and participation, Nason said. Outsiders sometimes were adopted as members of the tribe. So affirmative action's litmus test for Native Americans has become the tribe's recognition that someone is a member.
Many people suddenly discover they had a great-grandparent who was a Native American, and they often call asking how they can claim benefits reserved for Indians, says Jennifer Scott, who directs the Governor's Office of Indian Affairs. She is suspicious of such revelations, and solidly supports affirmative action's litmus test of tribal recognition in one form or another.
Elizabeth Lake says that growing up in Thurston County, she and her family "just knew" they were part Native American.
She always stood up for Native Americans in class and among her schoolmates and friends, she said.
That's why she says she was stunned when her supervisor questioned her status and ultimately took away her job.
She filed a complaint with the state Human Rights Commission, an appeal with the state Personnel Board, and finally retained an attorney to file a federal lawsuit charging racial discrimination, invasion of privacy and emotional distress. She is seeking damages, but is unsure if she wants her job back.
Lake's claim meets skepticism from a surprisingly wide range of people, from state affirmative-action administrators to I-200 co-chair Smith, who said he is 1/32nd Cherokee but has never thought of himself as a Native American.
Lake is the only member of her family to reclaim that part of her heritage, and her attempts to reconnect that link and her lawsuit, her lawyer says, have been met with mixed emotions by her family.
But the incident has drawn Lake closer to the Chickasaw Nation, a 38,000-member tribe based in Ada, Okla.
Since losing her job, Lake, 22, has volunteered at a Head Start program for the Nisqually tribe, and has spent most of her free time researching her background, compiling genealogy charts and tracing her lineage.
"I don't want anybody to have to go through what I did," Lake said. "I think what they did was wrong, and it needs to be fixed. And I want my heritage back."
Carl Gutierrez-Jones
Department of English
University of California, Santa Barbara
e-mail: carlgj@humanitas.ucsb.edu |
http://aad.english.ucsb.edu/docs/proof.html |
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