The One Drop of Blood Rule

Joanne Jacobs reports on an effort that predicts a sharp rise in self-reported Native Americans seeking minority status for things like college admission.

Last September I talked about this very issue in relation to the confirmation of now Chief Justice John Roberts. Quoting a New York Times article, I said

Multiracial students will present the greatest challenge for the country and the courts when it comes to affirmative action. Let us consider an extreme example. A multiracial child is born of parents in South Carolina. The white mother can trace her ancestry to slaveowners in plantation South Carolina. The black father can trace his ancestry to black slaves of the North Carolina tobacco country. The child is applying to colleges and is denied admission to her top choice schools for whatever reason. The child then says, because she is partially black, she is entitled to admission or at least reconsideration for admission under affirmative action. The question is, is she entitled to such treatment because she is 50% black?

What if we as a society say yes, the above mentioned child is entitled to affirmative action consideration? So here is another line question. If the above mentioned child qualifies for affirmative action treatment, where do we draw the line as far as mixed race children go. Does the child need to be 50% minority? 30%? 25%? What about technology that could prove minority genetic make-up despite the fact that the child looks predominantly white, or predominantly asian? Professor Rosen takes up the case:

As America becomes increasingly multiracial, there may be debates over who, precisely, gets to qualify for racial preferences. Akhil Reed Amar, a [professor] at Yale Law School, told me that people might eventually resort to genetic tests to prove their racial heritage. "I can imagine a predominantly white person who has been rejected because of an affirmative-action program saying, 'I should benefit from it because I am of mixed race, and I can prove it with sophisticated DNA analysis showing the percentage of my genes that came from Africa,'" he said. '"The university might respond: 'It's not a genetic test but a social understanding test, and since people don't perceive you as black, you haven't been subject to discrimination.'"

Rosen and Amar then postulate a legislative reaction in a state that says the social understanding test is too speculative, so you have to have a genetic test and anyone with a drop of minority blood would be eligible for affirmative action treatment. As Rosen writes:

"It would recall the shameful history in times of slavery and Jim Crow," [Yale law professor Paul] Schuck told me, "in which one drop of blood was sufficient to render an individual black for the laws of slavery. And it would be extremely distasteful for blacks and whites." Still, Schuck acknowledged, the problem of deciding who is eligible for affirmative action will grow only more urgent in an era of shrinking public resources. "I think as pressure on affirmative-action programs increases," he said, "affirmative-action programs will have to make refined judgments about eligibility."

If one drop of blood was sufficient to make a person a slave in Pre-Civil war America, allowing the same standard for qualification under affirmative action has not leveled the playing field, but made it more combative. The weapons of the combat will be based on which people can afford the most precise genetic tests. How, in a society that values equality of treatment under the law, do we justify such a concept? How, as a society of laws, will the legislatures and the courts deal with such line-drawing?

I honestly thought we were a few years away from this sort of regime, but when the competition to get into top schools is based as much on your ethnic and racial heritage as it is on your academic achievement, the fact that some people are seeking any advantage they can get is not all that surprising.