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:

1) A selective university might want a system of affirmative action to educate the future leaders of discrete, established communities. "African-Americans" are a large, established, and fairly discrete community. Here the question is whether immigrant blacks have become or are likely to become plausible future leaders of that community—are they similar to native-born blacks for purposes of community leadership?

2) A university might believe that racial discrimination is an important social issue that merits academic study and want to be sure that some people who have experienced that discrimination are represented in its student body. (Sandra Day O' Connor's opinion in Grutter v. Bollinger—the recent Michigan affirmative-action case—endorses such a rationale: "By virtue of our Nation's Struggle with racial inequality,[minority] students are both likely to have experiences of particular importance to the Law School's mission and are less likely to be admitted in meaningful numbers on criteria that ignore those experiences." [Emphasis added.]) Here we'd want to ask whether immigrant blacks are likely to have experienced the same or similar types of discrimination as native blacks.

3) A university might believe that racial discrimination has depressed the grades and standardized test scores of black applicants and wish to correct for this bias in the available data. (O'Connor's Grutter opinion also suggests this rationale: The quotation above indicates that minority students "are less likely to be admitted in meaningful numbers" because of "our Nation's Struggle with racial inequality.") Here, we'd want to know whether discrimination has had a similar adverse effect on the performance of the immigrants as on native-born blacks.

None of these questions are answered or even clarified by any abstract definition of "African-American." And conversely, the answer to the affirmative-action question may not be relevant in other contexts in which race is at issue. For instance, suppose you decided that immigrant blacks don't count as African-American (of course I'd discourage you from putting it this way) for affirmative-action purposes. You could arrive at this conclusion—under rationale No. 3 above—based on a belief that whereas high-school grades and standardized-test scores typically underpredict the potential of native-born blacks, they are an accurate predictor of the potential of immigrant blacks. That position would still not commit you to agreeing with Alan Keyes that Barack Obama—the child of an African immigrant—is not African-American. It would be perfectly consistent to say that although Obama doesn't qualify for affirmative-action preferences, you consider him "African-American" in the context of his candidacy for the U.S. Senate.

Here, the real question is whether Obama's experience as someone whose appearance will have exposed him to his share of antiblack racism (regardless of his cultural or ancestral heritage) is likely to make him more sympathetic to the political concerns of others victims of racism. Frequently, the words "African-American" are just shorthand for such a presumption.

Arguing about who qualifies for a racial label is not only unnecessary, it also flirts with perils best left in the past. For instance, while Harvard's controversy focused primarily on immigrant blacks, to a lesser extent it called into question the identity of the children of interracial couples. Such an inquiry threatens to revive—under a new rationale—the odious 19th-century ideas of "blood quantum" and racial purity.

Perhaps what's most unfortunate about these pointless debates about the meaning of racial identity is their sloppy and volatile mix of the personal and the political. For instance, Keyes (channeling the spirit of liberal multiculturalism to perfection) emotes: "My ancestors toiled in slavery in this country. ... My consciousness, who I am as a person, has been shaped by my struggle, deeply emotional and deeply painful, with the reality of that heritage." This might be a moving first sentence in an autobiography, or an important revelation to one's psychotherapist, but in the context of national politics, who cares? Subjective accounts of personal identity are at best distractions from more tangible and objective issues of racial injustice—such as employment discrimination, residential segregation, and an often racially biased criminal justice system. At its worst, the narcissism of identity politics threatens to mire the struggle for racial justice in intractable conceptual debates and ineffectual emotionalism.

The correct definition of racial identities seems important to a lot of smart people. But that doesn't make it at all important in fact. Maybe if we argued about it long enough, we could all agree on an omnibus definition of racial identities. And maybe there are angels, they do dance on the heads on pins, and if we thought about it long enough, we could figure out how many could crowd on before one would topple off the edge. Because nothing whatsoever depends on the answer to the latter inquiry, we've all quite reasonably stopped caring. I expect the angels will forgive us. And soon enough the nation's blacks, whites, Latinos, Chicanos, Hispanics, Asian-Americans, Orientals, Negroes, colored people, and African-Americans will thank us, if we stop caring about the terminology and definition of races and get on with the important work of fighting racism.

Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.

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