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: Law at the End of the Day

The Governance Effects of Counting Race and Ethnicity--a Snapshot From the United States

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Kevin Brown has recently provided a window on the substantive governance effects of reporting in a recent posting to colleagues (reproduced with permission):.

Are you aware of the new federal Department of Education guidelines for the classification of race and ethnicity (Guidance) that went into effect for this fall's incoming class of law students? These regulations apply to all educational institutions, including law schools. In addition, the ABA Questionnaire Committee has also changed the requirements on race and ethnicity for law schools to comply with the Guidance. At the 20th Critical Race Theory Symposium, I mentioned this during one of the preliminary sessions because the Guidance is a game changer for everyone working with issues of race and ethnicity. I also talked about this at the AALS Post Racial workshop this past June in New York.

Historically, law schools lumped all blacks into a unified Black/African/African-American category. Law schools counted anyone who indicated that they were black in their counts of blacks. What the new regulations require is that when educational institutions seek to gather data on race and ethnicity, they must first ask "Are you Hispanic/Latino?" Then they must allow a respondent to mark one or more of five racial categories, (1) American Indian or Alaska Native; (2) Asian American; (3) Black or African American; (4) Native Hawaiian or Other Pacific Islander; and (5) White.

For purposes of reporting the race and ethnicity of their students to the DOE (and to the ABA), law schools must count anyone who answers "yes" to the Hispanic/Latino question in their count of Hispanic/Latino, regardless of which and how many racial categories they check. For non-Hispanic/Latino respondents who select more than one of the race categories, law schools must report all of them in a new "Two or More Races" category. Thus, law schools must report a person who answers "yes" to the Hispanic/Latino question and also checks the black racial box (Black Hispanic) in their counts of Hispanic/Latinos. In addition, law schools must report a non-Hispanic/Latino person who checks the black racial box and at least one other, say White or Asian or both (Black Multiracials) in a new Two or More Races category, along with other multiracials. In other words, as of now, law schools report Black Hispanics as Hispanic/Latino and Black Multiracials as Two or More Races.

The impact of the Guidance will have tremendous implications for both how many black students there are and the racial ancestry of those black students. Effectively, law schools can no longer count Black Hispanics and Black Multiracials as black. I should also note that Black Multiracials and, to a far lesser extent, Black Hispanics are placed in a precarious position by the Guidance that could significantly reduce their chances of admissions to selective higher education institutions as the impact of the Guidance unfolds. When admissions officials at selective higher education institutions consider racial classifications in their admissions process, they base those decisions on a holistic evaluation of a given applicant. Nevertheless, no doubt many admissions officials-at least in their minds-compare the standardized tests scores and grade point averages of a particular applicant from a given racial/ethnic group to other applicant?s of the same racial/ethnic group. The average LSAT scores for African Americans who took the test during the 2007-08 academic year was 142.2, for Hispanics 146.3, for Mexican Americans 148, for Native Americans 148.6, for Asian Americans 152 and for Caucasians 152.6. Thus, changing the comparative group on the SAT for Black Multiracials, from Black/African American to applicants in the Two or More Race category would move the average SAT score of their comparison group from 142.2 to a group that includes White/Asian multiracials that could have average LSAT scores 10 points higher!

Professor Brown illustrates the reality of a new governance. He has elaborated these ideas in an article well worth reading: Kevin Brown, "Now is the Appropriate Time for Selective Higher Education Programs to Collect Racial and Ethnic Data on its Black Applicants and Students" Thurgood Marshall Law Review 287 (2009).

This is soft governance, a governance of managed consequences rather than of command. It is a governance grounded in control of the body--defining its character and classification and through that organization of data, appear to be passive in the consequences that flow therefrom. It is a governance that manufactures acts which may then be fed through ostensibly neutral managerial systems by which the state may manage power relationship among peoples, and order the distribution of public goods, without appearing to do either. Or better put, this sort of governance through information permits the state to assume a passivity (the state can maintain that its actions are driven by the "facts" revealed in information harvesting whose character cannot be controlled) while actively setting up the parameters of the system to produce facts of a desired character to achieve managerial goals. Substantive outcomes can be discussed in the more neutral language of designing "appropriate" information harvesting systems that in turn will serve as the source of "facts" for the application of policy and the division of power. As a consequence, existence is reduced to an issue of bureaucratic system design. Professor Brown suggests the nature of those discussions

The new reporting requirements will allow higher education programs to collect data on self-identified Black Hispanics and self-identified Black Multiracials. However, the Guidance does not mandate the collection or reporting of data regarding the ethnicity of Blacks. This is not surprising since the Department of Education promulgated the Guidance out of a concern for the growing multiracial population in the United States, not the changing ethnic ancestry of Blacks in the United States. Some commentators on the Guidance urged the addition of other racial/ethnic reporting categories, including Middle Eastern, Southeast Asian and African (as different from African American), Indian/Pakistani (as a different category from Asian), Filipino and Cape Verdean (as different from African American), but the Department of Education rejected these additions. The discussion about this topic in the Guidance noted that these categories were rejected during the discussions that lead to the 1997 OMB Standards. From the comments discussing the adoption of the 1997 OMB Standards, there does not appear to have been much additional discussion about separating Africans from African Americans or West Indians from African Americans. (Kevin Brown, "Now is the Appropriate Time, supra, at 316).

The benefits of this system of control through indirect management rather than through the command of "law" in statutes rules or practices, is too tempting to resist. Regulation through information harvesting provides a vehicle for avoiding direct responsibility for the policy and behavior consequences of governmental action. After all--what is more innocuous than the collection of information. It also maintains a separation between legislature and the actual mechanics of collection and definition. Reduced to characterization as a mere mechanical or technical task, the most consequential aspects of political decisions can be avoided by those who are politically responsible. The legal characterization of race and ethnicity, and the determination of which are counted and which are ignored, has tremendous political and regulatory consequences in an environment in which individual and institutional actions are triggered by or through this counting exercise. While the legislature remains an important site for political action and the production of law for instrumental purposes, any battle won at the legislative level can be effectively undone where governance really occurs, within the interstices of the regulatory state that has been erected to manage its subject populations and by technical regulations that hide political choices made without direct legislative accountability.

Full post as published by Law at the End of the Day on September 30, 2010 (boomark / email).