Name games.

The law, lawyers, and the court.
Sept. 16 2004 6:21 AM

Name Games

The folly in the attempts to define "African-American."

Among the many indignities racial minorities must endure are the perennial debates over the meaning of racial identity. Are the people formerly known as "Negroes" or "colored people" to be called people of color, black, Afro-American, or African-American? Are people of Mexican and Central-American ancestry Hispanic, Latino, Chicano, or Latin-American? Is it still OK to call people "Oriental," or is that a term best limited to rugs and geographic locations? More urgent than the nomenclature itself are the questions about who "counts" as a member of these groups, with their ever-increasing string of aliases.

A recent version of this controversy involves immigrants from Africa or the Caribbean and whether they are "African-Americans." Harvard professors have publicly worried that over half of Harvard's "black" students did not descend from American slaves but are, rather, immigrants or the children of immigrants from Africa or the Caribbean. Though it started off on the right track, this debate predictably became as much about the "identity" of these immigrants as the direction of Harvard's admissions policies.

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Meanwhile Republican Alan Keyes complained that the Democratic Party's rising star, Barack Obama—the son of a Kenyan immigrant—"[wrongly] claims an African-American heritage." In reaction to which UC-Berkeley linguist John McWhorter quite reasonably pointed out that immigrants from, well, Africa, who are now residents of the United States of America, have a stronger claim to the term "African-American" than most American blacks, whose connection to Africa is generations old. Others worried that defining "African-American" as rooted in geographic origin seems to suggest that Teresa Heinz Kerry, born in Mozambique, and Charlize Theron, born in South Africa, are "African-American."

The nation anxiously awaits the answers to these urgent social questions.

It shouldn't. Arguments about the correct definition of racial identity are this century's version of medieval scholastic theologians' debates about how many angels can dance on the head of a pin. They seem to be of vital moral and spiritual importance, involving many contested terms, conceptual puzzles, and facts not in evidence. They're a great way for smart people to pass the time until the bartender pours the next round. But there's no way to resolve these questions or even to agree on common grounds for debating them.

Do we even need official definitions of racial identity to apply antidiscrimination laws or race-conscious policies? Actually, no. Antidiscrimination law prohibits decisions driven by suspect motivations. What matters is the intent of the decision-maker—not the racial identity of those affected by the decision. An employer who discriminates against an employee based on a mistaken belief about that employee's ancestry is just as liable for discriminating as if he had been correct.

In some instances the plaintiff in a discrimination suit must nevertheless establish that she is a member of a protected racial group—raising the possibility that formal racial definitions actually matter. But it's telling that neither Congress nor the courts have ever established official membership criteria. Instead, courts successfully rely on uncontested social conventions in most cases, and when those social conventions fail, the identity of the plaintiff as a member of a protected group is determined by the courts on a case-by-case basis.

We frequently rely on self-reporting to establish racial identity as well. The U.S. Census Bureau, for instance, has long abandoned any attempt to assign individuals to a racial group based on objective criteria—relying exclusively on the self-identification of individuals. The same is true for affirmative-action purposes—the obvious subtext of the Harvard controversy. Although it would seem that institutions must first agree on a definition of racial identity to administer such race-based policies, they needn't and haven't. Like the Census Bureau, those universities that consider the race of applicants rely largely on self-reporting. Of course, a university might rescind the admission of a student who made an obviously disingenuous claim to an underrepresented racial group, just as it could with respect to a student who claimed to be from an unrepresented region of the nation but in fact had only visited there on vacation. But universities need not and do not apply specific objective criteria to racial identification.

As such, in the Harvard controversy the real question was never who is or isn't "African-American." The real issue is the narrower—and more answerable—question of whether African and Caribbean immigrants and their children—whatever their "race"—should enjoy affirmative-action preferences. There are real dilemmas here, but they simply don't involve the correct definition of "African-American." They involve the correct rationale for affirmative action.

So, let's consider three rationales commonly advanced:

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