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Filings raise more questions on Warren’s ethnic claims

Elizabeth Warren has not proven she has a Native American ancestor, instead saying she based her belief on family lore. Elizabeth Warren has not proven she has a Native American ancestor, instead saying she based her belief on family lore. (DAVID L. RYAN/GLOBE STAFF/FILE 2001)
By Mary Carmichael
Globe Staff / May 25, 2012
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US Senate candidate Elizabeth Warren has said she was unaware that Harvard Law School had been promoting her purported Native American heritage until she read about it in a newspaper several weeks ago.

But for at least six straight years during Warren’s tenure, Harvard University reported in federally mandated diversity statistics that it had a Native American woman in its senior ranks at the law school. According to both Harvard officials and federal guidelines, those statistics are almost always based on the way employees describe themselves.

In addition, both Harvard’s guidelines and federal regulations for the statistics lay out a specific definition of Native American that Warren does not meet.

The documents suggest for the first time that either Warren or a Harvard administrator classified her repeatedly as Native American in papers prepared for the government in a way that apparently did not adhere to federal diversity guidelines. They raise further questions about Warren’s statements that she was unaware Harvard was promoting her as Native American.

The Warren campaign declined Thursday to answer the Globe’s specific questions about the documents. In a statement, Warren’s spokeswoman, Alethea Harney, said that “over the past month Elizabeth has answered countless questions openly while the people who recruited her have made it clear it was because of her extraordinary skill as a teacher and a groundbreaking scholar.’’

In recent weeks, Warren has repeatedly said that her race was not a factor in her hiring at Harvard or elsewhere, a point that several colleagues and supervisors at the schools have publicly supported. There is nothing in the federally required documents that contradicts those statements.

Warren, who has been dogged with questions about her ancestry since late April, was again grilled by reporters during a campaign stop in Brookline Thursday, but she refused to answer most of the queries, instead trying to shift the focus to Senator Scott Brown’s economic record.

The US Department of Labor requires large employers to collect diversity statistics annually and suggests they be based on employees’ classification of themselves. In cases in which employees do not self-identify, federal regulations allow some administrators to make judgment calls on the correct categories using “employment records or observer identification.’’

The administrator responsible for Harvard Law School’s faculty diversity statistics from 1996 to 2004, the period in question, was Alan Ray, a citizen of the Cherokee Nation who, like Warren, has fair skin, blue eyes, and Oklahoma roots.

But Ray, now president of Elmhurst College in Illinois, said in a statement that he “did not encourage the Law School to list any faculty member as one particular race or ethnicity, including Professor Warren.’’ He further said through a spokeswoman that he “never encouraged any faculty member to list himself or herself in a particular way.’’ Ray added that Harvard “always accepted whatever identification a faculty member wanted to provide,’’ a characterization another highly placed former Harvard administrator backed up.

In a statement to the Globe Thursday, Harvard disavowed any wrongdoing, saying that it “adheres to the Department of Education and Department of Labor regulations and guidance concerning the reporting of race and ethnicity.’’

In the years before Warren first came to Harvard Law, the school was under intense pressure to diversify its faculty. In 1990, Derrick Bell, a prominent black law professor, went on a one-man strike, taking an unpaid leave of absence to protest the fact that the law school had not yet brought a black female academic permanently on board. He was dismissed from the faculty.

The same year, the Department of Labor audited Harvard’s diversity practices based on its affirmative action plan, the thick census and policy document all major employers are required to compile each year and make available to the department on request. Also in 1990, 12 students sued the law school, alleging it discriminated against academic job applicants on the basis of race and gender.

The suit was ultimately dismissed when a judge ruled the students had not demonstrated that they were “persons aggrieved.’’ Harvard agreed to remedy 10 violations the Labor Department identified, bringing the audit to an end. But the controversy over diversity at Harvard Law did not cease.

Warren arrived as a visiting professor in 1992, but left a year later. By then, she had been listing herself for seven years as a minority in a legal directory often used by law recruiters to make diversity-friendly hires. She continued to list herself in the book until 1995, the year she took a permanent position at Harvard.

She has said she listed herself in the directory in hope of meeting others with a similar background, but stopped when she realized it was not working.

A year later, in 1996, Harvard Law brought on Alan Ray to oversee academic affairs, including diversity statistics and faculty hiring.

As the son of a full-blooded Cherokee mother, Ray was especially interested in that group.

He held several positions in the school’s Native American program and aggressively tried to boost the number of Native Americans on campus. He personally e-mailed at least one prospective student, Carrie Lyons, a registered Cherokee from Oklahoma, encouraging her to attend. She did, although Ray’s efforts did not always succeed; the first-year class at the law school in 2001 had no Native American students in it.

Recruiting a diverse law school faculty proved more difficult, given the lack of turnover. Ray did establish a visiting law professorship in Native American studies in 2003 with funding from the Oneida Indian Nation.

That year, the director of Harvard’s Native American program was quoted in the law school newspaper bemoaning the university’s “lack of Native faculty in any of the schools.’’

But the school had begun describing Warren as Native American in the media soon after she was hired.

In 1996, law school news director Mike Chmura, speaking to the Harvard Crimson, identified Warren as a Native American professor.

In 1997, the Fordham Law Review, citing Chmura, referred to Warren as Harvard Law’s “first woman of color.’’

In 1998, Chmura wrote a letter to the New York Times, saying the law school had appointed or tenured “eight women, including a Native American.’’ Three days later, the Crimson again touched on the issue: “Harvard Law School currently has only one tenured minority woman, Gottlieb Professor of Law Elizabeth Warren, who is Native American.’’

Warren has said she was unaware of the media accounts. Asked when she found out the law school was describing her as a minority, Warren said, “I think I read it on the front page of the [Boston] Herald.’’

Chmura, now at Babson College, has refused phone and e-mail requests for an interview over the last week and a half.

In 1999, Harvard started publishing its full affirmative action plan on its website in the belief that it might be considered a public document.

The report from that year lists one Native American senior professor at the entire university. A section devoted specifically to the law school also lists a single Native American senior professor, presumably the same one. Both entries specify that the professor is female.

The Harvard document defines Native American as “a person having origins in any of the original peoples of North America and who maintains cultural identification through tribal affiliation or community recognition.’’ It notes that this definition is consistent with federal regulations.

It is not a definition Warren appears to fit. She has not proven she has a Native American ancestor, instead saying she based her belief on family lore, and she has no official tribal affiliation. The current executive director of Harvard’s Native American program has said she has no memory of Warren participating in any of its activities.

Harvard continued to publish its affirmative action plans online in 2000, 2001, 2002, 2003, and 2004. The school has analogous documents for the other years during Warren’s tenure, but has not published them online.

The Globe was not able to obtain hard copies of those reports on Thursday.

All of the available documents list a single female Native American senior professor at the university and specify that she is at the law school.

After 2004, when there was a debate about whether the document should be public, the university stopped publishing the full annual documents on its website, instead releasing summaries with less specific data.

In 2011, in another diversity census based on self-reported racial classification, Harvard Law listed a single Native American professor. It has not identified that professor’s name or gender.

Brown has called on Harvard to release records that could shed light on how Warren and the school classified her heritage. But the law school bans divulging personal information about its employees, including race or ethnicity.

Noah Bierman and Stephanie Ebbert of the Globe staff contributed to this report. Mary Carmichael can be reached at mary.carmichael@globe.com.

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