May an Individual Claim Minority Status Based on a DNA Test Showing a Small Amount of African Heritage?

No, yes, then no again said the State of Washington, ultimately upheld by the federal Ninth Circuit Court of Appeals

|The Volokh Conspiracy |

Statutes that define African Americans or Blacks typically define them as individuals with "origins in any of the Black racial groups of Africa." This raises the question of whether someone who has lived his life as a white person, but discovers that he has Black African ancestry, is entitled to minority status, which in turn presumptively qualifies a company he owns for disadvantaged business enterprise status, which in turns provides for preferential treatment in bidding for government contracts. Perhaps surprisingly, while there are several cases regarding whether simply having Spanish ancestry is sufficient to make one "Hispanic" for legal purposes (one SBA case, for example, concludes that Sephardic Jews are all "Hispanic" if they self-identity as such), I've only been able to locate one case discussing whether the statutory language should be taken literally, and any African ancestry is sufficient to make one legally African American. The case is Orion Insurance Group v. Washington's Office of Minority & Women's Business Enterprises 54 Fed. Appx. 556 (9th Cir. 2018), though you won't learn many of the facts of the case from reading that opinion. Below is a summary of the case, from a draft law review article (hint to law review-editor readers) I plan to submit soon:

Ralph Taylor, a Washington State resident, owns Orion Insurance Company. Taylor is of Caucasian appearance and lived his life as white man. Apparently inspired (or disturbed) by competitors that received certification as Minority Business Enterprise status based on owners with only remote minority ancestry, Taylor took a DNA test. The test concluded that he had 6% Indigenous American origin, and 4% Sub-Saharan African origin. The test had a 3.3% margin of error. Based on those results, Orion applied for MBE status for state contracting purposes with the Washington State Office of Minority & Woman's Business Enterprises (OMWBE), based on Taylor's African ancestry.

When determining MBE status, Washington state law (uniquely) decrees that a state official first look at the picture submitted with an application. A OMWBE official determined that Taylor did not look African American, and therefore requested further information from him documenting his minority status, including other documentation of ethnicity; a narrative and documentation regarding the "cultural community" he considered himself to be a part of and how he held himself out in that particular community; a narrative and documentation regarding how "his cultural community" viewed him; and a narrative regarding how he had experienced social and economic disadvantage. Taylor submitted his DNA results, along with.other evidence, and Orion was certified as an MBE.

Having been so certified, Orion applied with the state for DBE status for federally-funded contracts based on Taylor's Native American and African ancestry. A state official responded that the finding of state MBE status was not binding for federal DBE purposes, and requested further information documenting Taylor's minority status. Orion responded with Taylor's DNA test results, along with other evidence discussed below. Orion noted that the definition for "Black Americans" in the statute was solely "Having origins in any of the black racial groups of Africa," and argued that failing to recognize Taylor as "Black" would amount to discriminating against him based on his appearance and skin color.

Orion also presented evidence that Taylor's DNA test showed that he had more than ten times as much Native American heritage as the owner of a company that had been granted DBE status based on the owner's membership in a Native American tribe. Orion noted that under Washington law, Native American status is not dependent on membership in a tribe.

In discovery, OMWBE later acknowledged that it had never asked any applicant the sorts of questions it asked Taylor, and that it had no formal procedures or rules for determining race and ethnicity other than interpreting the relevant statute. Doing so, OMWBE ruled that Orion failed to show that Taylor was a member of a minority group, or that others considered him to be a member of such a group. In its letter rejected Orion's DBE application, OMWBE stated:

Mr. Taylor submitted a birth certificate that did not indicate race, so this document failed to prove that he is a member of a minority group. Mr. Taylor provided documentation of a Negro woman he claimed is an ancestor. This documentation is incomplete and does not prove that the individual is an ancestor of Mr. Taylor. Even if the individual is an ancestor of Mr. Taylor's, it fails to prove that he is a member of a minority group, or regarded as a member of a minority group.

Mr. Taylor submitted a DNA test to prove he is 4% Sub-Saharan African and 6% Native American. The test results for Mr. Taylor and his father are highly inconsistent and incomplete. Half of a son's DNA comes from his father and half comes from his mother. OMWBE acknowledges that the pieces of DNA from each parent are random and will not equal exactly half from each parent. The two DNA tests between father and son should, however, be related. Without a complete picture of Mr. Taylor's mother's DNA, OMWBE contends that the tests are not reliable to determine ethnicity. This information fails to prove that Mr. Taylor is a member of a minority group, or regarded as a member of a minority group.

Also, there is a 3.3% statistical noise associated with each test performed by Ancestry by DNA. Eliminating the statistical noise from the DNA test results provided would indicate that Mr. Taylor's ancestry is 2.7% Indigenous American and 0.7% Sub-Saharan African. [DB: This is not how it works, it instead means instead there is a 95% probability, assuming the test is otherwise sound, that Taylor is of between .7 and 7.3 percent African origin.] Additionally, from reviewing the information on the Ancestry by DNA website, it is unclear if the website's use of the term Sub-Saharan African corresponds to the definition of Black American in the CFR, which refers to "persons having origins in the Black racial groups of Africa." Regardless, the low figures combined with the inconsistencies with the results for Mr. Taylor and his father render the test as insufficient to prove that Mr. Taylor is a member of a minority group, or regarded as a member of a minority group.
Mr. Taylor submitted two letters where the authors state they consider Mr. Taylor to be of mixed heritage, however, they do not identify Mr. Taylor as Black or Native American. These letters do not establish that Mr. Taylor, who is visually identifiable as Caucasian, is a member of a non-Caucasian group. Mr. Taylor has failed to meet his burden that he is a member of a minority group, or regarded as a member of a minority group.

Mr. Taylor submitted insufficient evidence when he was asked in an additional information request about his membership in the Black and/or Native American group. The only substantive evidence provided was a statement that he is a member of the NAACP, has a subscription to Ebony magazine, and he is very interested in Black social issues. All individuals, regardless of minority status, may join the NAACP and subscribe to Ebony magazine, or be concerned about issues. This fails to prove that Mr. Taylor is a member of a minority group, or regarded as a member of minority group.

As federal DOT rules permit, Orion appealed the decision to the DOT. The DOT, in turn, upheld the state denial of DBE status, ruling that the OMWBE's decision did not fail the applicable "arbitrary and capricious" test because there was substantial evidence supporting it. The DOT ruling stated:

Orion does not demonstrate that its owner is a member of a group that is presumed to be socially and economically disadvantaged under § 26.67(n). The uncontroverted evidence is that Ralph Taylor is as much as 99.3 percent non-Black. The same evidence shows Mr. Taylor to be, minimally, 92.7% non-Black. [OMWBE] states that the bulk of available evidence indicates that Ralph Taylor is Caucasian or at least primarily, overwhelmingly, Caucasian. Accordingly, the Department agrees with [OMWBE] that the seeming inconsistencies (including between Mr. Taylor's appearance and his notarized statement claiming group membership) gave rise to a question under § 26.63 which required [OMWBE] to make further inquiries of the kind described in that provision.

[OMWBE] consequently had grounds ("a well founded reason to question group membership") under § 26.63(a) to request additional information under § 26.63(b). By operation of § 26.63(b)(1), Orion's owner must demonstrate that he meets the § 26.67(d) requirements for individual social and economic disadvantage. Under the latter provision, the guidance found at Appendix E applies. As noted in the preceding section, Orion did not produce the evidence that Appendix E requires for an individual showing, of social and economic disadvantage. Accordingly, the firm is ineligible for certification. Orion protests this result as burdensome and discriminatory, but it accurately reflects the analysis that the Regulation requires.

On appeal, Orion would change the inquiry. Orion relies exclusively on the technical argument that one portion of the § 26.5 definitional provision speaks simply of "origins," and Orion asserts that the Regulation nowhere prescribes an explicit percentage relating to ancestry. Orion is correct that Black Americans are defined to include persons with "origins" in the Black racial groups of Africa. Orion, however, neglects to note that the broader § 26.5 definition of "socially and economically disadvantaged individual" also requires that the person "have been subjected to racial or ethnic prejudice or cultural bias within American society because of his or her identity as a members [sic] of groups and without regard to his or her individual qualities." We find no substantial evidence of such bias. See generally § 26.67(d) and the Regulation's Appendix E.

Further, construing the narrower definition as broadly as Orion advocates would strip the provision of all exclusionary meaning. It is commonly acknowledged that all of mankind "originated" in Africa. Therefore, if any (Black) African ancestry; no matter how attenuated, sufficed for DBE purposes, then this particular definition would be devoid of any distinction-which was clearly not the Department's intent in promulgating it. There is little to no evidence that Mr. Taylor ever suffered any adverse consequences in business because of his genetic makeup.

Sections 26.61.; 26.63(b)(l), and 26.67(d), in any event, independently require the applicant to demonstrate social and economic disadvantage. Orion fails to make that showing on the record before us, by a preponderance of the evidence. There is little to no persuasive evidence that Mr. Taylor has personally suffered social and economic disadvantage by virtue of being a Black American.

Orion appealed to federal district court. The court, like the DOT, found that there was substantial evidence supported OMWBE's decision. With regard to Orion's claim that it was inherently improper and discriminatory for Washington State to investigate Taylor's background because he didn't 'look" Black or Native American the court responded that any discrimination by the state was based on Taylor appearance, not his genetic makeup, and that such discrimination was proper because it is not arbitrary and capricious way of determining whether Taylor was a member of the "Black or Native American groups." The court did not discuss the relevant statutory language, which seems to rely purely on ancestry rather than appearance.

Orion then appealed to the Ninth Circuit. Considering the interesting statutory and constitutional issues the case raises, the Ninth Circuit's affirmance of the district court was surprisingly conclusory: "OMWBE did not act in an arbitrary and capricious manner when it determined it had a 'well founded reason' to question Taylor's membership claims and, after requesting additional documentation from Taylor, determined that Taylor did not qualify as a 'socially and economically disadvantaged individual.'"

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  1. I guess this finding would also wipe out any hope for those seeking reparations.
    Mr. Orion’s ancestors may have been discriminated against, but that doesn’t qualify him for preferential treatment by the government.
    People seeking reparations may have had distant ancestors who were slaves, but since they themselves were never slaves, no reparations are owed.

    1. I think one line of argument is that people alive today have inherited the claims of their ancestors as part of those individuals’ estates. (Either that or the reparations are for more recent injury, which – conceptually – works too.)

    2. “I guess this finding would also wipe out any hope for those seeking reparations.”

      I don’t know how you could possibly reach this conclusion. The holding is that there are people who qualify for racial preferences, but Taylor isn’t one of them. The holding was based, in part, on the agency’s narrow interpretation of MBE so that it could distinguish people entitled to this (particular) racial preference, suggesting there are others who do qualify. And nothing in this holding has anything to do with hypothetical reparations, since a future reparations statute is free to define its beneficiaries however it wants, including in ways that qualify (or don’t) Taylor. A reparations spending bill need not limit itself to people who were slaves, or even people who had distant ancestors who were slaves.

    3. “a narrative and documentation regarding the “cultural community” he considered himself to be a part of and how he held himself out in that particular community; a narrative and documentation regarding how “his cultural community” viewed him”

      This is pretty much the linchpin of the case. Mr Orion holds himself out as part of the white community, and the white community accepts him as such

      Ironically Rachel Dolezal would qualify as black under the same rules (or would have, perhaps not anymore. Who says race is immutable? lol)

  2. So much for the One Drop Rule…

    1. FWIW, if I were the examiner, I would have just noted that the Taylor submitted his father’s results and his own results, and they were not consistent, which suggests that the DNA company he used is incompetent, which makes the DNA evidence not admissible, which means that the gov’t did not have to consider whether sound DNA evidence of African origins makes one African American for legal purposes.

      1. That’s a very hasty decision. Based on the language above (“The two DNA tests between father and son should, however, be related.”) suggests they may not be biologically related. Maybe that is merely sloppy wording on the court’s part but it’s unclear on this record what the court means. If the court is saying that the ethnic % don’t correlate very well…well there is another parent to consider. The court seems to not understand DNA or statistics as a general matter (you observe the court’s embarrassing error on the latter score).

        1. IIRC, the father’s DNA was something like 50% African, according to his DNA test. So either the father isn’t the father, or the DNA company is incompetent. Either way, I’m not sure why the attorney submitted the father’s DNA test, because it was harmful to the case.

          1. David,
            Can you explain this more? If I submit evidence that convinces you that my dad is 50% African, then doesn’t it stand to reason that (a) He is, indeed, “black” and (b) this means that I likely grew up in a family with at least one black parent, and *this* means that (c) I grew up in an environment where I–as the child–faced the same challenges that people of color often/usually face in this country?

            If I had been deciding this case, such evidence would have made it more likely that I’d rule in his favor, and not less likely. It would evidently have had the opposite effect on you as a decider, and I’m hoping that you can explain your reasoning.

            1. Because the two DNA tests contradict one another. If his father is 50% black that means he must be at 25% but his test said 4%. Even accounting for the maximum margin of error in the favorable direction still produces only 7.3% where 23.3% should be expected

              That means either A: He is not the plaintiff’s real father, or B: The DNA test is faulty and can’t be trusted

              1. Yes, my assumption was that his father was not, in fact, his biological father. But isn’t that irrelevant? If you grow up in a household where one of the two putative parents is black, then you likely see yourself as black (or, at least, blackish) and society probably sees you–and treats you–similarly, yes?

                (We don’t know the actual facts of this particular case. But the above happens quite often, and is a reasonable explanation. Absent evidence to the contrary, I still do not see how it weakens this guy’s case.)

                1. It doesn’t always work that way. My stepfather is Hispanic, yet of my 3 siblings only his biological daughter sees herself as Hispanic, despite all of us being raised within the same “cultural community.” And the case indicates that Mr Orion sees himself as white, and the white community accepts his as such

              2. I’m not sure this is right and I don’t think it’s just a function of dividing by 2. That’s now how genes work, and it’s not how the ancestry companies assign percentages. If the analyzed gene sequences from the father suggest 50% origin from Africa, there’s no guarantee that the father passed on those specific gene sequences.

                1. Forget measurement errors. It is (astronomically unlikely)^n that a child would get significantly less than 50% of his DNA from his biological father. There are three billion base pairs in the human genome.

                  1. Keep in mind here, that the companies aren’t reporting “DNA” but are reporting certain markers of ethnicity. And having a difference in those markers being passed on would be very possible. And that’s before you get to differences in the “tests”. But for more reading about the test differences, here’s a fun article.

                    https://www.vox.com/science-and-health/2019/1/28/18194560/ancestry-dna-23-me-myheritage-science-explainer

                  2. He could get ~50% of his DNA from his father and that still would not mandate that he “must be at [least] 25%” from Sub-Saharan Africa.

              3. DNA doesn’t work that way – it doesn’t flow down proportionately. To greatly simplify, view a person’s DNA as 100 marbles. If a parent has 50 black marbles and 50 white marbles, a child will get copies of 50, randomly chosen (and 50 randomly chosen marbles from the other parent). In this hypothetical it is highly unlikely the inherited marbles will be all white or all black, but it is possible. It is possible that one may get 5 black and 45 white from such a parent. Most likely is someplace in the middle (20-30 black marbles) but it’s all just probabilities.

                You’re also mistaken on the margin of error. The MOE merely indicates that the likelihood that the estimate is within 3.3% of the given DNA estimate. It is highly unlikely to be more/less than 3.3% away, but still possible!

                To use myself as an example (with some simplification and rounding) as I have also used Ancestry, I have a parent who is 100% X and my other is 80% Y and 20% Z. My DNA shows as 59% X, 35% Y, 6% Z. I don’t like the obvious error of my results (I must be 50% X, because that’s all my one parent has to offer, genetically speaking). In my case, that estimate is really wrong (outside the MOE) but still statistically possible. It certainly doesn’t follow that it’s junk science. There are lively debates on the ability to distinguish certain populations with any real accuracy (eg as between European nations) but parsing African DNA from European DNA is easier.

                I don’t know if the plaintiff failed in presenting appropriate information on DNA testing but the rulings above are making all kinds of errors.

                The DNA results provided by Mr. Taylor could be substantially accurate! That might be off somewhat. But they demonstrate pretty well the existence of African ancestry.

                Contrary to Prof Bernstein’s point, and based on the foregoing discussion, I think the father’s DNA is not harmful! It was unnecessary, I think, but shows (1) parentage by person with significant African heritage; (2) that Mr. Taylor’s African DNA result wasn’t just a weird and erroneous fluke. I don’t know if that wasn’t made sufficiently clear in the record.

                1. Is it not safe to assume that the DNA results proved parentage absolutely?

                  1. Proving parentage by DNA is reliable. There are really odd/extreme cases (eg marrow recipients/chimerism) where DNA will not necessarily show parentage but those are vanishingly rare situations.

                  2. If you’re referring to this particular case, I don’t know was presented.

                2. It is possible that one may get 5 black and 45 white from such a parent. Most likely is someplace in the middle (20-30 black marbles) but it’s all just probabilities.

                  Well, yes, but some of the probabilities are so ridiculously low as to be zero for practical purposes.

                  1. What I find unwarranted is the OMWBE statement:

                    “The two DNA tests between father and son should, however, be related. Without a complete picture of Mr. Taylor’s mother’s DNA, OMWBE contends that the tests are not reliable to determine ethnicity.”

                    As I noted previously, there’s not enough here to know exactly what they’re referring to but if it’s that the %’s are markedly different (4% vs 50%) that is not an impossibility and certainly does not lead to the apparent conclusion that DNA ethnic results are worthless. It’s certainly not clear why OMWBE feels that the reliability of the tests would hinge on seeing his mother’s results. There is good evidence there that Mr. Taylor has verified African ancestry. The significance of that under the law is another matter. This is far from Elizabeth Warren’s demonstration of miniscule Native American ancestry.

                    OMWBE tries too mightily to dismiss all evidence.

                    1. As I noted previously, there’s not enough here to know exactly what they’re referring to but if it’s that the %’s are markedly different (4% vs 50%) that is not an impossibility

                      Have you calculated the probability of that?

                      To take your marbles example, suppose we have an urn with one hundred marbles, fifty black and fifty white. We draw out fifty of the marbles at random.

                      The chance of getting five or fewer black marbles is about 4.5 X 10^(-17), or 0.0000000000000045%.

                    2. I knew it was very unlikely (such math evaporated from my mind not long after I learned it) but I still find the reasoning of the OMWBE poor. I’m more persuaded that Prof Bernstein was right that including the putative father’s results was harmful at least because it serves as a needless distraction.

                      It looks like motivated reasoning at work, which is sort of understandable if anybody with a DNA test showing a relatively small amount of African ancestry would be able to claim a government benefit. And drawing a line would be ugly — would 9% be enough? 14%? Seeking to undermine the validity of tests (at least where %s are relatively small) is one way to avoid almost all cases where African ancestry isn’t already established without a DNA test. Fortunately the regulations (now that I’ve had a chance to look at them) do not require any such line drawing.

                      The DOT was much better in that it accepted, at least for argument’s sake, the DNA results (though wrong on the math). Pursuant to the regulation, there was sufficient reason (beyond the DNA test) to question the claim of membership, which then triggered additional inquiries.

                    3. @bernard11,

                      Even assuming you get ~ half your genes from your father (which you do), there’s no guarantee that the half you get is the “Sub-Saharan Africa” half. In the case, the purported father’s results were 44% Sub-Saharan, 44% European, and 12% East Asian. Taylor’s were 90% European, 6% Indigenous American, and 4% Sub-Saharan.

                      Run the same math on a jar with 100 marbles. Assume 50 each from mom and dad. Dad’s 50 have 22 “Sub-Saharan”, 22 “European” and 6 other. (We will assume the mother has zero Sub-Saharan.) I think that brings the odds closer to .0005, still unlikely, but not unfathomable. Factor in genetic recombination, and the fact that there is no “Sub-Saharan” gene (rather the companies are looking at clusters of genes), and this number gets closer to the realm of probabilities.

                      The OMWBE sort of got there because they even thought not having the mother’s test was relevant. If the likelihood of the results being reliable depended on having the mother’s test, it means the results weren’t impossible in the first place.

                    4. Run the same math on a jar with 100 marbles. Assume 50 each from mom and dad. Dad’s 50 have 22 “Sub-Saharan”, 22 “European” and 6 other.

                      This seems to assume you get 22 sub-Saharan marbles, but we are trying to assess some sort of probability.

                      It’s not clear to me what odds you are talking about, but maybe it’s this:

                      What is the chance that the son’s DNA is 4% or less “sub-Saharan, given the specified percentages for his father.

                      Well, he gets 50 marbles from his father. There are about 10^29 possible sets of 50 marbles out of 100. How many are there with four sub-Saharan marbles? There are about 1.6 X 10^17, and many fewer with 0 to 3. The overall probability now comes to 0.000000000165%. Higher than before, because there are only 44, rather than 50, relevant marbles, but still zero for any practical use.

                      And remember that this 100 marble example is highly simplified, and that the probability calculated in accordance with reality will be vastly lower.

                    5. @bernard11,

                      I am saying that he can get marbles from his father that are not “Sub-Saharan” marbles. His dad wasn’t 100% Sub-Saharan, he was 44% Sub-Saharan. Dad gives 50 marbles, mom gives 50 marbles to the jar. Are there 50 “Sub-Saharan” marbles in the jar before we begin picking? No. There are 22 of them (assuming the mom has zero “Sub-Saharan” marbles and 44% of dad’s marbles are Sub-Saharan).

                      “And remember that this 100 marble example is highly simplified, and that the probability calculated in accordance with reality will be vastly lower.”

                      I agree that the marble analogy is broken and oversimplified. But why would the fact that it’s hopelessly simple only make real probabilities lower?

                    6. I am saying that he can get marbles from his father that are not “Sub-Saharan” marbles. His dad wasn’t 100% Sub-Saharan, he was 44% Sub-Saharan. Dad gives 50 marbles, mom gives 50 marbles to the jar. Are there 50 “Sub-Saharan” marbles in the jar before we begin picking? No. There are 22 of them (assuming the mom has zero “Sub-Saharan” marbles and 44% of dad’s marbles are Sub-Saharan).

                      NTOJ,

                      I think you have it wrong. We are not picking from a jar with 22 s-s marbles. In your description, we’ve already picked. We are picking 50 marbles out of the father’s 100. We are trying to figure out the probabilities of various numbers of s-s marbles. Ignore the mother’s DNA. The father has 100 marbles, and we are going to take 50 of those to pass on to the son. What we want to know is what is the chance that those 50 include 0, or 4, or 22, or whatever number of s-s marbles. It turns out that the chance of there being 22 exactly is 16%, while 21 and 23 are a bit under 15% each. Move further away from 22 and the probabilities drop off sharply. The chance of there being 10 (or 34) is about 1 in a million, and of course it drops further as you move away from the middle.

                      “And remember that this 100 marble example is highly simplified, and that the probability calculated in accordance with reality will be vastly lower.”

                      I agree that the marble analogy is broken and oversimplified. But why would the fact that it’s hopelessly simple only make real probabilities lower?

                      Because, stated conceptually, the sample size is larger, hence the more extreme values become less likely.

                    7. Just a cautionary note: I think that you’d need a lot of detail about exactly how the testing company does its analysis that a person is 42.693% Afro-polish or whatever.

                      -I’d guess (open to correction!) that the vast majority of the human genome isn’t particularly correlated with race; I suspect they are using relatively few genes.
                      -those genes are unlikely to be evenly distributed; it’s probably not that a marble is either black or white. It’s probably a complicated distribution where the human population as a whole is 4.7% green, 2.6% blue, 11.3% magenta, etc, and Nigerians and Norwegians have slightly different distributions. You’d need that level of detail on the actual genes/populations used to do much useful math[1].

                      I didn’t read the decision. Did the court get into that level of analysis before drawing its conclusions?

                      [1]Heh. I wonder what the level of vetting for those places is, i.e. if anyone has taken several samples of their own blood and sent multiples off to each company and see how consistent the answers are.

                    8. Absaroka,

                      I don’t disagree at all. I was just using the marble example because someone else introduced it, and I thought it was a good illustration of how unlikely these extreme deviations from expectation are when you take any size sample at all.

                      As for your question about accuracy, I’ve wondered about that too. A few years ago my sister sent off to one of those companies, so I’ve always figured it was pointless for me to do it also. But it would be interesting if I did and they didn’t match.

                      There is certainly some room for error, since, as I understand it, they match the customer’s profile to a database to determine these things, and the databases are not perfectly accurate.

                      It’s not like segments of DNA have “Japanese” or “Spanish” written on them.

                    9. Well said. The truth will come out.

              4. Kevin, that is not how DNA works in the first place. You do not inherit exactly half from each parent. Just because dad’s DNA test said 50% African (and mom’s presumably 0%) does not indicate son’s DNA test will be 25% African because the parents’ contribution to son’s DNA is not necessarily equal. This is distinct from the margin of error.

                That said, a drop from 50% to 4% is very unlikely.

                1. Bearing in mind that we are talking about three billion base pairs, “very unlikely” doesn’t come anywhere near describing how unlikely that is.

                  Only a small portion of that three billion is used for paternity tests and ancestry measurement, but even that makes that kind of drop cosmically improbable.

              5. If his father is 50% black that means he must be at 25%

                No.
                https://support.ancestry.com/s/article/Unexpected-Ethnicity-Results

  3. This is an example of clingers trying to make a mockery of any attempt to right the wrongs of the awful history of the racisist in this country. You DNA does not make you black, or a minority. Even the amount of pigment isn’t enough. You only count as black if you have enough melanin, and vote for progressive democrats.

    1. You almost got me….the real Cuckland doesn’t make spelling errors and capitalizes differently. Bravo though, because without those I wouldn’t have looked at the name, it was that convincing.

    2. Reverend…Welcome back. So glad to see you.

      You really need to talk some sense into your alter ego. 🙂

      1. Open wider, Commenter_XY. Your betters are not through with you. Not nearly.

        1. You know Reverend, not that I want to bash you, but you need to come up with some new, fresher material. The ‘open wider clinger’ schtick is getting a little stale. Let’s try getting those creative juices of yours flowing and see if you can’t come up with some better material.

          I mean, your alter ego seems to do it effortlessly. Why can’t you?

          1. I could follow your advice — or I could remember a Hall of Fame baseball announcer’s observation that people who complain ‘you repeat the score too often’ are ‘fucking idiots on their best days;’ recognize that advertisers from GEICO and Ford to Capitol One and the Trump campaign spend endless millions over years or decades to repeat successful taglines; and acknowledge the Volokh Conspiracy’s longstanding reliance on repetitive content.

            Carry on, clinger.

            1. I know Reverend, it is tough. Never really having the ability to come up with something novel and interesting….sucks to be you. Pretentious and….unoriginal.

  4. I once knew a fellow who applied for, and received, a specific grant on account of being “African-American.” He was a Dutch ancestry Afrikaner. Note, they didn’t ask for a picture, and he felt zero guilt.

    That said, the science of human origin isn’t settled as we think: “Established story about how humans came from Africa may be wrong, claims controversial new study”

    https://www.independent.co.uk/news/science/humans-came-from-africa-crete-study-australopithecus-early-fossil-a7929521.html

  5. Elizabeth Warren hardest hit.

    1. ?
      You said she was faking her Native American ancestry. She took a blood test that proved you wrong. Forgotten! On to the next smear.

      1. “She took a blood test that proved you wrong.”

        What are you talking about? The test showed a maximum of 1/64 and perhaps as low as 1/1024. A trace, with maybe an ancestor 10 generations ago, not so much that her mom had to elope.

        Nothing showed she was a Cherokee which was her basic claim.

      2. You have really swallowed the Boston Globe narrative on this, haven’t you? It turns out that Elizabeth Warren’s DNA test results showed she had LESS native american ancestry than the Average american. A trace on the order of 1/64th to 1/1024th does NOT mean you have native american ancestry, particularly from an affirmative action perspective.

        Make no mistake, Elizabeth Warren is an Affirmative Action Thief.

  6. “Eliminating the statistical noise from the DNA test results provided would indicate…”

    Wouldn’t that be cool.

    A propos of nothing, I wonder if OMWBE has one of those hiring policies that discriminates against Asians.

  7. My DNA test results established that I am a Native American of the EWarren tribe. That is good enough for me.

    1. To this day; I can’t understand the attacks on Warren on this matter. Her point was, “I was told this family history my entire life. The fact that I accepted it as true, and repeated to others my family history, is entirely unremarkable . . . it would have been bizarre if I had *not* done this.”

      I, Santamonica, am an Ashkenazi Jew. My mom is Jewish (as was her mom and grandmom and great-grandmom. My dad was Jewish, as was his mom and dad, all 4 grandparents, etc etc). And for the entirely of my life (on the rare occasions where the subject came up), I’ve shared my family history with others. No one cared about this when I applied to grad schools, and then to law schools, and then when I started applying for law jobs. But if they had, I of course would have told the same story. Supposed I now decide to run for President (or am nominate to the Sup. Ct). People do a background check on me, and wait! . . . it turns out that I’m actually not Jewish at all. All of my great-great grandparents were Methodists (Mormons, Muslims, Pastafarians, etc). My parents just lied to me about my cultural heritage. Or maybe my great-grandparents lied to their own children, so my parents and also my grandparents just repeated this myth in good faith.

      It’s good to correct the record, I guess. But since everyone agrees that I *THOUGHT* I was Jewish and everyone agrees that I had no intent to deceive, would everyone have a cow about this revelation? God, I hope not.

      I think everyone agrees that Warren truly believed that she thought she had that Native American heritage. There certainly is no evidence that she ever knew or suspected that what she had been told her entire life was incorrect.

      One explanation for the hysterical reaction to Warren is simply political . . . she’s a political threat to Trump, so we’ll attack her, as we’d try to do to any potential opponent. I’m struggling to find any other good-faith reason to turn this attack on her up to an 11 . . . it just seems like such an innocuous incident, and that’s assuming the worst about her.

      1. Warren is the whitest person imaginable. If one had to create a boomer white woman in a lab, she would be the result.

        The remarkable thing is that no one called her on her obvious BS for decades.

        By the way, we are mocking her, not “attacking” her.

        “she’s a political threat to Trump”

        LOL

        1. Semantic different. And I call Bullshit anyway. Repeatedly calling someone “Pocahontas” in a clearly demeaning way *is* an attack. And it’s fine with me if you want to defend Trump’s deliberate behavior . . . politics is not softball, after all. But let’s not lie about it and pretend that it’s not a political attack. Accusing Cruz’s family of being implicated in an assassination is an attack, and not anything else.

          And, again, you should not lie about Warren. You surely are not saying that people who appear 100% white cannot and do not have legitimate Native American ancestry . . . only a moron would make that claim. Warren ran for the US Senate in a very spirited campaign. The reason that people did not attack (or mock) her at the time was that the concept of someone repeating family history she had been told for decades and decades and decades was commonplace and unremarkable.

          Your argument seems to be, “Any reasonable white person with the skin color of Warren *must* have known that her mum and dad and all her other relatives had lied to her all her life and she therefore *must* have known that she had no meaningful N.A. ancestry. And if so, then this is evidence that Warren was not merely mistaken . . . she was deliberately lying.”

          Where you see an impossibility of good faith mistake on her (and, presumably, all her family members’) part, I see as very very likely–in fact, the most reasonable and likely explanation.

          vive la difference!!!

          1. Here’s the thing about Warren: she only started identifying as Native American in employment in the mid-80s, when she was at University of Texas and by all accounts amibitious to move up. Now, this could have been a coincidence, she might have just have grown more interested in her purported Native American heritage at the time. Plausible. Except that she stopped identifying as Native American in her law school records exactly when she got the job at Harvard. If anyone has a good explanation beyond that she no longer thought it was useful for her career and could prove embarrassing if she kept it up and anyone inquired, as to why she would suddenly stop identifying as Native American as soon as she got to Harvard, I haven’t seen it yet.

            1. Easy explanation: She used her family history to her advantage to get a desired job. She had no need to use that fact (or, in this case, that presumed-but-incorrect “fact”) in the future, so she did not do so.

              When I applied to undergrad schools, I used my family history to my advantage. (ie, I talked about my grandparents’ struggles in one essay, in the applications to a few schools) But I did not do that when I applied to grad schools. Nor did I do so when applying to law school. Nor in any job applications? Why? Because those applications did not ask questions where I thought my family history relevant. And because–now 4 years later in my adult life–I had more real-world experience, and had more persuasive things to talk about. And a bunch of other innocuous explanations.

              David, I am happy to have provided you with a rational and commonsense possible explanation of why Warren might have used her family history at one point in her life and not in an earlier or later point. I am, frankly, quite surprised that you could not have come up with something similar yourself.

              I would think that a fair-minded investigator here would ask himself, “Hmmm…is this really a family history or is it something that Warren concocted herself.” And it seems that this is easily answered . . . if this is a story that she repeated her entire life, then it’s strong evidence that it was interesting-but-innocuous family history. If there is no evidence that Warren ever claimed NA ancestry–and no one else from her family ever claimed NA ancestry–until the time in her adult life where she could gain a competitive advantage . . . then that’s strong evidence that your concerns are valid.

              My understanding is that she DID, in fact, repeat this story over a long time…with 99% of those examples being Warren relating an interesting part of her family history. But I admit that my understanding is all 2nd- and 3rd-hand. It’s not like I went to birthday parties with her and heard her say this story myself. But for me, that is sort of the beginning and end of the necessary inquiry.

              1. “She used her family history to her advantage to get a desired job.” Yes. But that’s exactly what she has consistently denied.

              2. “not like I went to birthday parties with her and heard her say this story myself.”

                With so many, many words defending her, I assumed you were related.

              3. “Easy explanation: She used her family history to her advantage to get a desired job.”

                It’s great when the left and right can find common ground.

                1. She used her family history to her advantage to get a desired job.

                  First, according to Charles Fried, among others, who actually knows something about the hire, it didn’t matter.

                  Read this:

                  Even so, the Globe, in a separate, lengthy article about Warren’s rise in academia, said that it interviewed “a wide range of professors and administrators who recruited or worked with Warren” who all “said her ethnic background played no role in her hiring.”

                  Those interviewed included Stephen B. Burbank, a Penn Law School professor who recommended hiring Warren, Hank Gutman, the chair of the school’s appointments committee at the time Warren was recruited, and Robert H. Mundheim, the dean who hired Warren at Penn.

                  All three men said they were unaware that Warren, a nationally recognized scholar in bankruptcy and commercial law, claimed to be part American Indian.

                  Charles Fried, a former U.S. solicitor general under President Ronald Reagan, also vouched for Warren. Fried, a Harvard Law School professor who was on the appointments committee that recommended hiring Warren in 1995, told the Herald that Warren’s heritage never came up during the hiring process there.

                  Second, anyone who imagines that Warren dropped the claim in 1995 in anticipation of a Senate campaign in 2012 is really stretching. Do I know why she dropped it? No. Neither does David Bernstein.

                  Third, anyone who seriously thinks the attacks on Warren are not politically-minded nastiness is a fool.

                  Fourth, her claim was that it was family lore, which it was, and the much derided DNA test suggests that there was some truth to it, unlike Trump’s claims

                  But suppose her family history did help her get a job. Did George W. Bush use his family history to get a desired job? Did Donald Trump Jr.? Or senior, for that matter? Did many of children and grandchildren of prominent people – all the Treys and Quads running around – use their family history to get ahead, get into prestigious universities – how did Kushner get into Harvard? – or not?

                  1. You’re attempting to reason with birthers, stale bigots, and superstitious clingers?

                    You might as well yell at a lamp.

                    Except . . . some new-fangled lamps respond usefully to verbal command, or to clapping.

                    So . . .

                  2. “Third, anyone who seriously thinks the attacks on Warren are not politically-minded nastiness is a fool.”

                    I duuno, santamonica811 was making the same claims that the right makes, but to defend her. So it seems like both sides can look at the evidence and conclude that she used her family history to her advantage to get a desired job.

                    1. I should have been more clear. I am *not* saying that she definitely did this. I am saying that, AT WORST, she did this, and it ought to be seen as innocuous conduct, for the reasons I outlined earlier.

                      I think it’s also possible that she did Not user her NA ancestry to get her job. As Trump supporters usually mention, “Where is a single eyewitness who will testify that she got the job by using false ancestry as an advantage.” As at least one other person has noted, the only witnesses actually support Warren’s version of events.

                      So, in regards to Warren, the complete lack of eyewitnesses testimony against her does not suggest her innocence to the far right wing of the party . . . the lack of incriminating evidence is meaningless. Or, even, suggests guilt (somehow–I’m not really clear on this point).

                    2. Santamonica,

                      It is “not” innocuous conduct. It is in fact, some of the worst sort of hypocritical conduct.

                      Let us assume, if you will, that there is systematic, insidious discrimination against minorities, especially in their hiring at upper levels of management and university faculties. Let’s also assume you have a firm belief that universities should hire more minorities in order to eliminate such discrimination.

                      Meanwhile, you have held yourself out as white your entire career. You look white. Your entire family is white. You have an old family tradition about an native american ancestor, but no real ties to the native american community. You face no minority-based discrimination.

                      But then, in getting a high-placed faculty job, you “allow” the university to pass you off as a minority, despite being white. And now the university can crow about hiring a “minority female”.

                      What does that do? What does that say about your commitment to minority rights and fighting discrimination that you allow yourself to be passed off like that? You’ve basically just taken the place of a minority who is actually discriminated against, despite facing no minority discrimination yourself. Meanwhile the university gets to say they hired a minority, without actually haven’t done it. You set back those who actually fight against discrimination notably with this type of duplicity.

                    3. santamonica811 didn’t call her “Pocahantas,” and I find it pretty curious that all these Trumpists are so critical of what is, looked at in the worst possible light, a minor transgression, from which Warren did not in fact, yet defend or ignore Trump’s uncounted misdeeds.

                    4. @Armchair Lawyer

                      Let us assume, if you will, that there is systematic, insidious discrimination against minorities, especially in their hiring at upper levels of management and university faculties.

                      Then you’re admitting that universities, or at least law schools, are racist-as-fuck.

                      Which really makes me wonder why more lawyers don’t push back at this argument. I’d say it taints the whole profession, but they don’t really have a great reputation to start with.

                    5. Armchair gets it! Warren facilitated the university’s hypocrisy.

      2. “Her point was, “I was told this family history my entire life. The fact that I accepted it as true, and repeated to others my family history, is entirely unremarkable . . . it would have been bizarre if I had *not* done this.””

        We have only her word for that. Why should we take that claim at face value?

        1. Because it is very plausible given where she grew up.

          Certainly assuming it is a lie is overdetermining things.

          1. “very plausible ”

            LOL I hope your birth last night was not too painful.

            1. Why is it implausible, Bob? Because you hate Warren? That’s not enough.

              The criticisms of Warren over this are just more RWNJ noise, which you cheerfully listen to and repeat.

              1. I always find evidentiary pointers from the birther side of America’s divide to be quite entertaining.

              2. The criticisms of Warren are based on her lies. She didn’t just say that somewhere in the mists of time there may have been a NA ancestor, she claimed both “American Indian” and “Native American” on applications indicating ethnicity. My best friend is 1/4 Creek and doesn’t claim to be a Native American. Even taking what she says about her “ancestry” she couldn’t have been as much 1/64.

                1. warren even claimed her mom had to elope because of the scandal about her being an Indian. All a lie.

                  1. You’re outraged by liars? Is that right, Bob?

                    1. Clingers can’t abide liars.

                      Unless it advances their bigoted aims. In which case they become enthusiastic consumers and purveyors of lies.

                      With Republicans these days, essentially everything distills to bigotry.

                      Carry on, clingers. Until replacement, that is.

          2. Personally, I think it’s relatively safe to presume everything said by every politician ever is a lie.

        2. Because it’s plausible and you have no reason to doubt it.

        3. I suspect you know many white and black Americans who are otherwise of no particular “ethnic” ancestry believe they are descended from American Indians.

          My parents are of pretty distinct backgrounds. My dad’s family came from Lebanon and settled in Massachusetts. I know back to my great-great-grandparents their names, churches, and villages. Past that no one remembered. A much older cousin (of my grandparents’ generation) simply wrote it all down back in the 1980s.

          Not everyone else has such a strong grasp of their heritage and there are often room for a fantastic element.

          My mom’s family are pretty generic white southerners (except her uncle who married his WWII girlfriend in England, my Jewish aunt). I know back to my great-great-grandparents as well but not past that, and that took a lot of research at the courthouse to confirm what was written in family bibles and the like. My grandmother and mother insisted that there was an American Indian ancestor in the family though no one knew exactly who or when. “Oh, you see it in the nose! You see it in the cheekbones!”

          My mom eventually took one of those tests: no hit!

          My sister of course shares my ancestry. She married her high-school sweetheart whose family was from Oklahoma. My brother-in-law’s mom had the family nickname “Indian Princess.” Her height (she is nearly 6′) and strong build were reputed to have been inherited from some American Indian ancestor. That’s what they still call her back in Oklahoma, “Indian Princess.”

          She also took one of those tests: no hit!

          My nieces would probably have grown up thinking they had Indian ancestors and that explained their unexpectedly dark skin or something. Nope!

          My wife’s dad’s family moved out to Utah before the Mormons. Of course there’s a reputed Indian ancestor that my wife’s aunts and uncles believe in. “You can see it around the eyes!” But nobody’s going to bother taking the test because they are sensible, privacy-obsessed Westerners.

          Everybody above is white. Regarding blacks, Zora Neale Hurston wrote that she was the only black person she knew who was not descended from an Indian chief. The myth is strong.

      3. I think everyone agrees that Warren truly believed that she thought she had that Native American heritage.

        Well I don’t. I thought everyone agreed that Fauxahontas cynically manipulated the system about her ‘heritage’ and lied to get ahead. I mean, lying hypocritical self-serving socialists are nothing new.

        1. Of course you don’t, you bigoted, obsolete rube.

      4. If your mother was not Jewish, then neither are you. Unless of course, you convert.

      5. “No one cared about this when I applied to grad schools, and then to law schools, and then when I started applying for law jobs. ”

        Except that doesn’t seem to be the case with Warren, it is almost certain her claim of Native American heritage helped her in her career.

        Also, its how she handled it when it became an issue. Rather than just admitting she made a mistake and/or was misinformed she doubled down on her 1/1024th DNA test and made herself look even more foolish

        1. Kevin,
          Agreed re her last point. What we see in politicians far more than “normal” [LOL] people is the insistence on doubling down. When Trump is caught in an obvious lie, he never just admits it, apologizes and moves on. When he makes a mistake, he almost never admits it, apologizes, and moves on. When Hillary Clinton had her server scandal and missing emails revealed, she also handled that horribly. Instead of apologizing and moving on, she delayed, dissembled, and bent over backwards to look as guilty as possible.
          I’m a bit more forgiving of Warren, since I do get (from a psychological standpoint) how one’s family history is super-important to one’s self-image. So, I can see how someone might hang on to a bit of family history stubbornly…even after being told that it might not be 100% correct. Still, she could have handled it better.

          I remain unconvinced by Trump supporters, who seem to be saying, “Re Trump and Ukraine; I have seen 37 bits of evidence that suggest X. But until I get a firsthand eyewitness confirming X, I refuse to believe it.” And also saying, regarding Warren, “There are zero witnesses–and zero documents–that show that Warren did anything intentional. But we don’t need any witnesses or evidence to condemn her…she has the burden of proving a negative (proving somehow that she did everything in good faith).”

          I find this lack of consistency a bit disquieting.

        2. it is almost certain her claim of Native American heritage helped her in her career.

          Actually, it is quite certain that it didn’t, if you listen to those who made actual hiring decisions rather than ignorant right-wing blowhards

          1. ” if you listen to those who made actual hiring decisions”

            You expect them to admit it?

            1. Exactly. “The lack of evidence is evidence of her wrongdoing.”

              In other words, it is literally impossible to provide you with evidence that will change your mind. Would pumping them full of truth serum satisfy you? How about torturing them to see if they still give consistent answers? (Actually not a terrible idea. I’d love to see Rudy forced to testify, with several large objects inserted into various parts of his body, strictly to ensure honest testimony, of course. I promise to take no pleasure in watching that miserable sack of lying shit be subjected to ‘enhanced interrogation.’)

            2. You expect them to admit it?

              OK. That’s moronic. You just lost the argument.

              “The lack of evidence of a conspiracy is just proof of how effective and powerful it is.”

          2. It doesn’t matter whether it actually helped her. It did but it doesn’t matter because she thought it would help her. She claimed to be a Native American and Harvard claimed to have a NA on the faculty. If she didn’t think it would help her why would she do it? She knew she wasn’t a Native American.

            1. If she thought it would help her why didn’t she put it on her applications?

              Can you read her mind?

              This Warren subthread really has devolved into a reality-free hatefest.

              1. The Association of American Law Schools listed her as Native American from 1986 to 1995. The listing is based on her reporting it to them. To say that it played no role in Harvard hiring her is to accept assertions by people instrumental in getting her hired who would be very embarrassed if they claimed otherwise.

                It isn’t a hate fest to criticize her for this. It won’t disqualify her with the progressive base and maybe it shouldn’t. After all we have had plenty of self-serving liars as president.

        3. Except that doesn’t seem to be the case with Warren, it is almost certain her claim of Native American heritage helped her in her career.

          No. It’s not “almost certain.” According to those involved in the decision to hire her at Harvard, it didn’t matter at all.

          1. OK, Bernard, let’s think this through.

            Let’s assume claiming to be Native American didn’t help Warren at all.

            So, Harvard was getting pressure to hire more minority faculty. And they went to Warren, and said “you know, if you claim to be Native American, it won’t affect our decision to hire you at all. But, it would help us alleviate that pressure to hire an actual minority. You mind just saying you’re a minority, and that way we won’t have to hire an actual minority?”

            And Warren said “sure!”

            What does that say about Warren’s commitment to minority rights and antidiscrimination that she’d be willing to do this, to sabotage minority hiring, at absolutely no benefit to herself. In many ways, that’s way worse than just doing it to get a job.

            1. A.L.,

              Except that didn’t happen. Please don’t join the hatefest. She listed Native American ancestry starting in 1986, years before Harvard expressed any interest in hiring her.

              Why do you persist in making up lies about this?

              And talk about hypocrisy!! Trump fans criticizing Warren for this. Utterly astonishing.

      6. The real scandal in the Warren/Native American matter is not that Warren may have thought she was part Native American (even acc. to her story, it was only a small part, her great-grandmother, which would be 12.5%). It is that fact, even if true, should confer on her any advantage in getting a job as a law professor that is the real scandal.

        She grew up as a middle-class white woman, and her personal and professional experience were the same whether or not she happened to have a Native American great-grandmother. That anyone thought that that fact should give her a leg up is an absolute scandal that smacks of actual racism.

        Had she been an actual Native American who grew up on a reservation, practiced Native American Indian law, and had accomplished scholarship in that area of the law, then that would be a legitimate basis to advance her career, since that diversity of knowledge and experience might well be something a law school would legitimately value.

        And then it turns out that Warren may have lied about it, or at best manipulated a corrupt system to her advantage. So, no, the criticism is valid.

        1. But not according to the real Donald Trump. Remember, when he screwed hundreds and thousands of innocent and hardworking people by declaring multiple bankruptcies, he proudly pointed out that he was merely taking legal advantage of what the law provides. The fact that he deliberately fucked over countless people, and helped financially destroy/damage all their lives and businesses was irrelevant to his cleverness in using the law to the maximum advantage. And I’ve never seen you post anything remotely close to condemning him for this.

          So, assuming the realistic worst about Warren (she believed in what she has been told about her ancestry, and she had been raised with zero negative treatment re Indian heritage…and then used her ancestry to gain a competitive advantage), what did she do that was different from Trump’s actions in any meaningful way? Surely you are not saying that what she did (which certainly could have harmed the person who would have been offered that job) had more of a harmful effect than Trump screwing over all those innocent victims? And since you’re not making that claim; I’m still not seeing the reason for accepting/applauding Trump and criticizing Warren. Other than Warren = Dem and Trump = Rep. Or Warren = pro-choice judges and Trump = anti-choice judges.

          1. Going on and on about how Trump screwed all these people through bankruptcies makes you seem like a college kid who knows nothing of business realities. The reason these creditors got “screwed” is that they were willing to extend credit to Trump’s companies with no personal liability to Trump. My experience has been that the wealthiest people I know are the ones most likely to get credit with no recourse. Go figure. You would think that they would be the ones who would never get non-recourse loans. If a creditor is willing to do this then he is basing his calculations of success on the likely success of the company and if it fails the principal doesn’t owe him anything other than the liquidated assets of the company if any.

        2. Except it didn’t help her career. You can repeat Fox/Limbaugh BS or look at the facts.

          Which do you think is the wiser course?

      7. “I think everyone agrees that Warren truly believed that she thought she had that Native American heritage.”

        Do you think that the recipes that she published in “Pow Wow Chow”, plagiarized from contemporaneous sources, were old Cherokee family recipes? The weirdest thing is that her husband also claimed to be Cherokee.

        1. I used to date a woman from Texas. I went there for a long Thanksgiving weekend, and in that short time I met literally 50 different people who ALL claimed to have had a close relative who fought at the Alamo. (Apparently, at the Alamo, all one did was fight and procreate.)

          I suspect that if you scratch at the surface of people’s family histories, you’ll find a much larger-than-expected number of examples of truth-shading, exaggerating, and outright lies . . . all of which will have gained the aura of gospel over the generations.

          1. Warren has a history of lying. She has lied about several aspects of her background, usually in cases to advance her career or agenda, by making her seem downtrodden, disadvantaged, or – yes, – a minority.

            She lied about being Native American (Harvard Law School’s “first woman of color,” as the Fordham Law Review put it); this, from the Globe:
            US Senate candidate Elizabeth Warren – who said Friday she didn’t realize Harvard Law School had been promoting her as a Native American faculty member in the 1990s – was listed as a minority professor in American law school directories for nine years before she landed at Harvard, documents show.

            The Association of American Law Schools desk book, a directory of law professors from participating schools, includes Warren among the minority law professors listed, beginning in 1986 and continuing through 1995. The years include time she spent teaching at the University of Texas and the University of Pennsylvania, before she joined the faculty at Harvard Law.”

            As for claiming Native American status in minority law-school directories, she said she’d done it simply in hope of being “invited to a luncheon . . . with people like me.”

            she lied – plagiarized – in Pow Wow Chow;
            she lied about being fired for becoming pregnant;
            she lied about Michael Brown being an unarmed boy murdered by a police officer:
            “Citing the Justice Department report and 13 witnesses who saw Brown attack Mr. Wilson, The Washington Post “Fact Checker” Glenn Kessler gave Ms. Warren and Ms. Harris four “Pinocchios,” the worst rating he awards. ”

            she lied about sending her kids to private school;
            and so on.

            1. Your definitions of lie and plagiarize are pretty novel.

      8. One explanation for the hysterical reaction to Warren is . . .

        . . . that people think she was, at the very least, stretching the bounds of affirmative action early in her career, and the DNA test shows that her efforts were even less worthy than supposed by critics.

  8. This makes me think of those attempts to drug-test welfare recipients. Even if you bought the rhetoric that it was a good reason to kick someone off, the cost of enforcement was greater then the cost of the welfare benefits.

    Which is to say… I’d be fine with relying on social stigma to keep folks from fraudulently applying for these kinds of things, rather then enforcement. If I’m wrong (and social stigma is not sufficient) then that’ll bear out in the numbers soon enough. But it’s not unfair to hold off on strict enforcement until after we see if there’s enough abuse to warrant it.

    1. One fairly shocking number is that an ABA study found there are 10 times as many Native American graduates from law schools (i.e., those who told the school they are Native American) than lawyers who identify as Native American from that graduating cohort.

      1. And Mr. Taylor is about 50 times as much American Indian as Elizabeth Warren, who also identified as Native American.

      2. And what, pray tell, does that actually cost the law schools?

        If it costs them nothing, why should they care?

        1. I suppose I can clarify with less snark.

          Race is a social/cultural concept. It’s ties to genetics, ancestry, and so-on, is tenuous at best, seeing as someone who is “black” in America can become “white” in South America.

          As such, any attempt to “enforce” racial boundaries through a rules-based process is going to have issues. If you’re lucky, you might be able to cover 95% of the cases. But there’s always going to be someone that fails your test but is genuinely whatever ethnicity you’re trying to deny them.

          So if you have a legitimate interest in policing racial/ethnic boundaries, then the only way to actually do so is socially. Any sort of “rule” is going to lead to a world of trouble. It’s like trying to decide if someone is “Jewish” enough to ask for kosher.

          1. As my law review article points out, these preference programs were designed to help African Americans. They are shrinking minority of those eligible for contracting preferences. If everyone with distant Hispanic or Indian or Asian ancestry gets to claim the benefits, African Americans will be an even smaller percentage of the beneficiaries, and indeed, almost everyone will be eligible. So people who actually support the programs, especially for African Americans should care, and indeed, they are the ones who tend to be most troubled by “ethnic fraud.” That’s also Warren’s programs–by claiming N.A. identity, she was helping to undermine the whole scheme.

            1. And if your intent is not met by your methods, then you should change your methods.

              But doubling-down on “well he doesn’t look Indian” is, beyond being racist as fuck, never going to work. Some Native Americans don’t look Native American. Some black people have light skin and can “pass as white” if they wanted to. Heck, some white people can “pass as black” with the right hairstyle.

              The answer is not to double-down racist rules that have already failed, it’s to find criteria that actually meets your intent. But criteria that depends on race? Will fail you.

              1. Washington is the only state that looks at a picture.

                1. … and?

                  In case you missed it, my point, across four posts now, is that this isn’t something you can successfully police with rigid rules. The “picture” is just one of the many failed methods people have tried to use.

                  So again: if your intent is not met by your methods, whether you’re talking about Taylor, Warren or Dolezal, then the answer is not to try and come up with new rules, because, beyond being inherently racist, they will fail you too.

          2. Wait Escher, I must differ about: Race is a social/cultural concept. It’s ties to genetics, ancestry, and so-on, is tenuous at best, seeing as someone who is “black” in America can become “white” in South America.

            Not the South America I have been in. And not the South America my DW comes from. That may be true in other places, but I don’t think that is true in South America, by and large. Not in my experience.

            1. In America the bar for “black” is so low that we have multiple cases of bona fide white women passing themselves as “black” without the use of make-up for many years.

              That doesn’t fly in South America, because the bar is higher. As such, even without deception, you have some lighter-skinned folk that, while unequivocally black in America, are seen as “white” on the other side of the equator.

              Where the lines are drawn between races is a cultural, not biological, rule.

          3. Race is socially constructed in the sense that everything is socially constructed. If a society promotes a culture where they deny the existence of gravity, it’s not like gravity stops affecting them. Race is certainly something you can qualify objectively. It’s not an all-encompassing identity like how racists want it to be, but it’s not purely a social construct the way postracialists want it to be either.

            1. Race is certainly something you can qualify objectively.

              If you think you have a way to objectively qualify “race”, you should publish.

              So far no one has succeeded at their attempts to do so.

  9. When a government agency can impose an an ad hoc and indeterminate process there is no real due process nor equal protection (setting aside the issues of proper rulemaking). I am curious if the agency normally enforces the sections that “independently require the applicant to demonstrate social and economic disadvantage.” Has it ever turned down an indisputably black applicant for not demonstrating such disadvantage? Or is the paperwork always complete and sufficient?

    This ruling strongly suggests that someone like Rachel Dolezal could qualify.

    Even if someone like Mr. Taylor should not qualify (I’m not sure), the process here is hopelessly flawed and the court displays gross ignorance of DNA science and statistics.

  10. So, the State wish to identify people by appearance, reestablishing classifications like ‘quadroon.’ Not really a giant step forward.

    1. news flash:
      “Progressives” aren’t really progressive, “liberals” aren’t really liberal.

      1. . . . but it must provide some comfort to you, Ed Grinberg, that right-wingers really are superstitious, half-educated, stale-thinking, intolerant clingers.

      2. News flash:

        Conservatives are ignorant assholes.

        1. My apologies for the above comment. I was responding reflexively to Ed Grinberg’s idiocy.

          While I do think there is a large faction on the right to whom the descriptions apply, there are those to whom they do not.

          1. Bernard11, No thank you for the non-apology apology.

            (You went from saying “all” are ignorant assholes, to virtually all.)

            1. If you guys want to stop being called bigots by your betters — because bigotry is no longer cool, as it was in the “good old days” — stop appeasing and/or embracing bigots.

              Until then, quit whining.

            2. Trying to be truthful, Publius.

              Not “virtually all,” but many, I would say. And my apology was aimed that those who aren’t. I don’t care what those who are think about it, or what well-informed assholes think either.

        2. Your support for dividing people up by race and treating them differently is duly noted.

          1. Was that line copy-pasted from an internal Republican memo on redistricting?

  11. I have birth and death certificates, plus family pictures to prove I am 1/16 Native American of the Chippewa tribe. Really who cares? I don’t. Then again I am not a contractor or politician trying to game the system.

  12. The citation in your original post (Orion Insurance Group v. Washington’s Office of Minority & Women’s Business Enterprises 54 Fed. Appx. 556 (9th Cir. 2018)) is wrong. You need to change it to: Orion Insurance Group v. Washington’s Office of Minority & Women’s Business Enterprises 754 Fed. Appx. 556 (9th Cir. 2018)

  13. It’s funny how the people who typically support these supposed pro-diversity measures are also trying to scientifically quantify race…

    I like the idea of giving every single American preferential status. Most of us are mutts anyways. Consider it a well deserved tax credit.

  14. “Taylor is of Caucasian appearance and lived his life as white man.”

    The latter part of this sentence struck me first, in suggesting that either he could have chosen some other identity or that there might be a singular way to be a “white man.” Or perhaps the problem is that a white man in the US generally doesn’t have to think about and identify by color, because it is so obviously an unimportant superficial characteristic unrelated to character. Then I pondered the descriptor “Caucasion.” It really says very little about appearance, given that there is far more diversity in appearance and everything else within races than between them.

  15. There’s an obvious solution to this problem.

    If we are going to have official institutionalized racism, we should get experienced professional racists to administer it.

    In South Africa, under apartheid, every citizen was officially classified by race. Some of the officials who performed these classifications are still alive, I’m sure. They should be brought to the US, to teach Americans the procedure.

    Incidentally, would Walter White qualify? (Head of the NAACP, 1929-1955). He was of predominantly white ancestry, and could easily “pass as white”; he has been referred as “the voluntary Negro”. In the 1920s, he travelled in the South, hanging out with white people to hear their talk about lynchings. His revelations were published in major national newspapers.

    What about Tiger Woods? He’s allegedly a quarter “black” (through his paternal ancestors, who were mixed race, with some American Indian and white), also 1/8 Chinese, 1/8 white Dutch, and 1/4 Thai. Yes, he has dark skin. So do many south Asians.

    What about someone of 100% African ancestry – who immigrated to the US from Nigeria in 2018?

  16. David, I am not sure why you are disavowing the polygraph test I sent you to show the truth. I am resubmitting the documents that the judges threw out. How can you argue the issue when you knew that I was offered the certification, but chose not to take the certification. The appeal will have everything in there now since it is not litigation, just adding to the file. I will get new depositions so I will be getting the personnel to admit the truth. I would have included the polygraph so citizens could see the truth, not sure why you chose to hold it back. If you would like to write a true story you have my contact, the truth is worth it in the end.

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