“Proof of Ethnicity”
New proposals prove what a bad idea racial and ethnic preferences are in the first place.

Mr. Clegg is general counsel of the Center for Equal Opportunity.
May 10, 2001 9:25 a.m.

n May 8, the U.S. Department of Transportation proposed "substantive changes" to its Disadvantaged Business Enterprise program. The DBE initiative grants a bidding preference in the award of government contracts to companies that are owned by "socially and economically disadvantaged" individuals. And it presumes that people belonging to certain racial and ethnic groups meet this criterion. None of this is new.

What is new in this week's proposals is one that DOT has labeled "Proof of Ethnicity." "There have been a few documented instances of individuals attempting to fraudulently participate in the DBE program by falsely asserting to be a member of one of the [favored] groups," says the administration, and so it proposes that "a signed and notarized statement of group membership" be required. Additional proof of ethnicity should not be necessary, the government adds reassuringly — unless, of course, there is "a well founded reason to doubt the veracity of the owner."

"We emphasize that great care must be taken in looking behind the individual's assertion of membership in one of the groups," but "if you have reason to believe that the owner of a firm seeking certification has misrepresented his/her group membership, then further information can and must be collected." (My italics.)

The federal government helpfully sets out the kinds of documentation that might be appropriate. "A driver's license or a birth certificate may be adequate types of proof of ethnicity," it says. "However, in cases where the required proof does not indicate specific races, such as Hispanic or Native American," then some other "single piece of evidence may be required." Examples include "naturalization papers, Indian tribal roll, tribal voter registration certificate, a letter from a community group, educational institution, religious leader, or government agency stating that the individual is a member of the claimed group, or a letter from the individual setting forth specific reasons for believing himself/herself to be a member of the designated group."

This is an excellent start. But, as a Supreme Court justice pointed out some years ago, "If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reichs Citizenship Law of November 14, 1935," which set out just who should and should not be considered a Jew.

The Small Business Administration is another long-time user of racial and ethnic preferences. A forthcoming book by Professor Jonathan J. Bean, Big Government and Affirmative Action: The Scandalous History of the Small Business Administration, quotes the SBA's own professed misgivings about such criteria: "There might be administrative problems in applying a purely racial or ethnic standard," said that agency in the mid-1970s. "Would a person who is one-quarter Indian be eligible? One-sixteenth? How is racial background proven? Who is a Spanish-speaking American?" Professor Bean concludes: "All of these were good questions that the agency, in practice, ignored on a daily basis."

It has only gotten worse since then, and the new DOT regulations promise to take us much further down an already very scary road.

Likewise, the education bill now pending before Congress will, in all likelihood, soon include within it the "Native Hawaiian Education Act," which takes up three full pages in the Congressional Record and is chock-full of preferences for those who can prove their blood descent from the state's "aboriginal people" by "(i) genealogical records; (ii) Kupuna (elders) or Kama'aina (long-term community residents) verification; or (iii) certified birth records."

No doubt it is perfectly reasonable to require proof of blood lineage if the government is going to grant preferential treatment based on race and ethnicity. But this simply proves what a bad idea it is to have such preferential treatment in the first place.

Instead, Ward Connerly has the right idea. Not only should the government get out of the business of granting preferences on the basis of race and ethnicity, it should remove the temptation to do so. Thus, Connerly's "Racial Privacy Initiative," which he hopes to place on California's March 2002 ballot, would provide: "The state should not classify any individual by race, ethnicity, color or national origin in the operation of public education, public contracting or public employment."

Get rid of those silly little boxes. Then you won't have to worry about making sure that each American can show by "proof of ethnicity" that he checked the right one.