Ethnicity not a factor in Elizabeth Warren’s rise in law
CAMBRIDGE — The 60-plus Harvard Law School professors who filed into an auditorium-style room on the first floor of Pound Hall on that February 1993 afternoon had a significant question to answer: Should they offer a job to Elizabeth Warren?
The atmosphere was a little fraught. Outside the hall, students held a silent vigil to demand the law school add more minorities and women to a faculty dominated by white men.
The discussion among Harvard professors inside that room is supposed to remain a secret, but it’s still being dissected a quarter of a century later because the resulting vote set Warren on her way to becoming a national figure and a favored target for conservative critics, among them, notably and caustically, President Trump.
Was Warren on the agenda because, as her critics say, she had decided to self-identify as a Native American woman and Harvard saw a chance to diversify the law faculty? Did she have an unearned edge in a hugely competitive process? Or did she get there based on her own skill, hard work, and sacrifice?
The question, which has hung over Warren’s public life, has an answer.
In the most exhaustive review undertaken of Elizabeth Warren’s professional history, the Globe found clear evidence, in documents and interviews, that her claim to Native American ethnicity was never considered by the Harvard Law faculty, which voted resoundingly to hire her, or by those who hired her to four prior positions at other law schools. At every step of her remarkable rise in the legal profession, the people responsible for hiring her saw her as a white woman.
The Globe examined hundreds of documents, many of them never before available, and reached out to all 52 of the law professors who are still living and were eligible to be in that Pound Hall room at Harvard Law School. Some are Warren’s allies. Others are not. Thirty-one agreed to talk to the Globe — including the law professor who was, at the time, in charge of recruiting minority faculty. Most said they were unaware of her claims to Native American heritage and all but one of the 31 said those claims were not discussed as part of her hire. One professor told the Globe he is unsure whether her heritage came up, but is certain that, if it did, it had no bearing on his vote on Warren’s appointment.
Warren’s political enemies have long pushed a narrative that her unsubstantiated claims of Native American heritage turbocharged her legal career, enabling an unlikely rise from being a commuter college graduate to holding an endowed professorship at the top of the Ivy League. They point to her career timeline and the fact that her major professional advances — to the University of Pennsylvania and then to Harvard — came after she began formally identifying as Native American, a distant descendant of Cherokee and Delaware tribes.
Warren, in a lengthy interview that started in the sparsely decorated Penn Quarter condo where she stays in Washington and ended in her hideaway office in the US Capitol, opened up for the first time about her claims to Native American heritage. She explained that it was passed on to her as a fact of family lore and that a generation of women in her family were aging, and dying, in the late 1980s. As they faced mortality, Warren said, they focused more on the family’s American Indian ancestry, and the impression stuck with her.
Her grandmother, who shared many stories about ties to the Cherokee and Delaware tribes, died in 1969. Her daughters — Warren’s aunts — then took on the central place in the family. “As the sisters became the matriarchs, they began to talk more about their background and about their mother’s background,” Warren explained.
Warren has long been wary of fielding questions about her heritage, a topic that has offered her adversaries — including the president, who calls her “Pocahontas” — an easy line of attack.
But this year, as she campaigns for reelection to the Senate and considers a 2020 presidential bid, she has taken a major step: releasing the contents of her university personnel files to the Globe after six years of rebuffing requests for them.
“You have what I have,” Warren said, pledging that she had turned over every record in her possession about her years as a teacher at five different law schools and a stint visiting at another. “My family is my family, but my background played no role in my getting hired anywhere.”
The release of the documents raises an obvious question: What took her so long?
“This is the kind of public servant I want to be — transparent,” said Warren in an interview last week, when asked why she only now went through the exercise of pulling together her personnel files. “I just, I’m ready for it all to be out there.”
The Globe closely reviewed the records, verified them where possible, and conducted more than 100 interviews with her colleagues and every person who had a role in hiring decisions about Warren who could be reached. In sum, it is clear that Warren was viewed as a white woman by the hiring committees at every institution that employed her.
Among the records were some never examined before by a newspaper, including one key form that a University of Pennsylvania professor kept tucked away for three decades.
That previously undisclosed report reveals that the hiring committee at Penn, where Warren worked from 1987 to 1995, viewed her as a white female applicant. Moreover, the committee went to some pains to explain on this form why she was selected over several minorities to fill a faculty position.
Not until she had been teaching at Penn for two years did she authorize the university to change her personnel designation from white to Native American, the records show.
The Globe also reviewed, for the first time, a Harvard University human resources form showing that Warren first listed her ethnicity as Native American nearly five months after she started her tenured position at Harvard and 2½ years after she was there as a visiting professor and first offered the job.
“By the unwritten rules that most schools played by at the time, none of this should have happened,” explained Bruce Mann, Warren’s husband of 38 years, who joined her for the interview with the Globe. “Law faculties hired in their own image. . . except for those rare occasions when someone came along that was just so stunningly good that they couldn’t ignore her.”
Mann, a Harvard Law professor hired onto the school’s faculty a decade after his wife, gave his most extensive comments to date about how the attacks on his wife have affected him. He said they have been a source of pain and outrage. “It takes the extraordinarily distinguished academic career that she built up over a lifetime and reduces it to a slur,” Mann said.
Warren’s story starts in a place that many unfamiliar with her past don’t associate with her: Oklahoma.
She graduated from Northwest Classen High School in Oklahoma City in 1966 at the age of 16 and initially enrolled with a full scholarship for debate at George Washington University in Washington, D.C. She would win several collegiate tournaments in debate and extemporaneous speaking there.
At this stage of her education and career, her assertion of Native American heritage hadn’t come up. Not until much later would it intersect with her professional life.
Warren bounced around during these undergraduate years. She left George Washington when she was 19 to marry Jim Warren, her high school sweetheart. His job with IBM meant the new couple had to move to Houston, so Warren left GW without a diploma. She finished her studies at the University of Houston.
Her undergraduate record doesn’t foretell a brilliant career: At GW she earned mostly B’s. She excelled in “Persuasive Speaking” and received an A, but struggled with an Introduction to Russian Literature course where she earned a C, according to transcripts included in the records Warren released to the Globe.
Warren tested well, though.
She took the Law School Admission Test in October 1972 and scored a 703. It put her in the 96th percentile of test-takers that year, according to the Law School Admission Council.
“I have spent much of the last two years in self-directed study,” Warren wrote in neat print on her application to Rutgers Law School. “I have carefully analyzed my career and aspirations and have concluded that the study of law and a law practice would be consistent with my goals while best satisfying my intellectual hunger.”
The Rutgers application included a question about whether she was interested in applying for the “Program for Minority Group Students.”
Warren responded: “No.”
Law school opened Warren’s mind. She was drawn to Allan Axelrod, a legendary bankruptcy and commercial law professor at Rutgers who became a mentor. She credits this relationship as a big part of why she would focus on bankruptcy law and why she excelled.
“I took every class he taught,” she said in a November 2011 interview at Rutgers Law School. “He changed my life . . . he taught me how multi-dimensional the world is, about how neutrality is an illusion.”
Axelrod was the one who suggested, after she graduated, eight months pregnant, that Rutgers hire her to teach legal writing, a move that put her on a path to a professorship. The dean at the time, Peter Simmons, agreed.
“We knew she was a superb student,” said Simmons. He said he knew nothing of her Native American background but was glad to hire a woman.
“When you have large numbers of women students, you become very aware of the need for women faculty members,” Simmons said. “The women [students] speak up for that kind of thing.”
But after a year of her teaching, Warren’s husband’s position at IBM changed, which meant another move for the family. Houston was an option for him, so Warren reached out to her undergraduate alma mater and asked for a position on the University of Houston’s law faculty.
She got it and by September 1978 was an assistant professor of law making $20,500 a year.
In her application materials to the school, reviewed by the Globe, Warren was asked to specify her ethnicity and checked the box marked “other.”
It would seem, on its face, a curious choice, but the options on the form were limited to “black,” “Oriental,” “Mexican-American,” or “other.”
Warren’s life changed; she was now on a path toward a professional career that her husband hadn’t quite signed up for. “I was supposed to be 100 percent focused on our home and our children, but I was making a life outside that neither of us expected,” Warren wrote in “A Fighting Chance,” her 2014 memoir. “I loved every new adventure I took on — he didn’t.”
The couple separated in the spring of 1979.
Later that year she met Bruce Mann, who was teaching law at the University of Connecticut, while they both attended a conference in Florida. Warren proposed to him, and they married in July 1980.
Warren’s critics focus on her future career jump to the Ivy League as proof that she was using her ethnicity to get ahead.
But, in reality, the biggest leap for Warren was her next move: going from the University of Houston Law School to the far more eminent University of Texas in Austin. Around that time, the University of Texas Law School was ranked 11th in the country, just one rung below the University of Pennsylvania.
The University of Texas school didn’t ordinarily hire professors with Warren’s not-so-lustrous academic pedigree. “It was like going to the European league to find a great basketball player,” explained Jay Westbrook, a law professor at the University of Texas who would later do ground-breaking research with her on consumer bankruptcy.
Westbrook recalled that a colleague, Russell Weintraub, recruited Warren after he saw her teach at the University of Houston. “Elizabeth is first class in every way,” Weintraub wrote in an October 1980 memo to the chairman of the appointments committee, urging that she be considered for a position. “She is bright, insightful, creative, and personable.”
Warren went to the University of Texas in 1981 as a visiting professor, essentially a yearlong job interview. She was hired full time in 1983.
Records from Texas show that Warren was consistent when asked to indicate her ethnicity: The box “white” is checked on personnel forms from 1981, 1985, and 1988.
This is the period in which Warren started making the connections that eventually brought her to Harvard. She dazzled Andrew Kaufman, a Harvard Law School professor who recalled meeting her at a conference she organized at the University of Wisconsin Law School in the mid-1980s.
“I was blown away,” Kaufman said, recalling his first interaction with Warren. “I thought she was a real whiz.”
Kaufman said he returned to Cambridge and immediately wrote to the law school’s appointments committee recommending that Warren be considered for a yearlong visiting position, the first step to a full-time job.
In what would be her final year at the University of Texas, Warren made a decision that would come to haunt her: She listed herself in the Association of American Law Schools annual directory as a minority law professor.
The organization debuted its list of minority law professors in the 1986-1987 edition, and Warren’s name appears in bold on page 1055 of the volume. It was listed the same way in each of the next eight editions.
In early 1987, Warren received an appealing offer: The University of Pennsylvania had positions for both her and her husband. After nearly five years of having jobs in separate cities, the two could finally be living and working in the same place at a university that was a step up for both of them.
The timing, to her critics, is suspect: The plum offers for the couple coincide with when Warren first listed herself as a minority.
But it wasn’t quite that simple.
Penn, records show, had been courting Warren for some time. In 1984, before she was listed by AALS as a minority, the school had offered to have her visit for a year, according to a document reviewed by the Globe. She declined. By November 1986, Penn had lost several of its legal history professors, which is Mann’s specialty, so it asked again, this time inviting the couple to come for a year.
But they said no. They weren’t interested in uprooting their lives just for a one-year opportunity, even if it was the Ivy League.
“We’d worked things out,” Warren said. “We were in a good place.”
Penn then relented and offered both of them full-time positions — without the traditional yearlong visit. For Mann, who was at Washington University in St. Louis at the time, it was a chance to teach in one of the best legal history programs in the country.
But for Warren it still wasn’t an obvious move. “When Penn offered, it wasn’t a ‘Yay!’ because for Elizabeth to go there she had to give up a lot,” Mann recalled. “We had to think a lot about the move to Philly.”
As Penn recruited Warren, one thing that was not a consideration was her race.
The Globe reviewed a never-before-reported 10-page faculty equal opportunity compliance statement form filled out by Penn’s law school’s affirmative action officer and the dean in April 1987. The form described the extensive efforts the school made to find a black, Hispanic, Asian, or American Indian candidate for the commercial law position Warren had landed.
The document, which was shared with the Globe by Stephen Burbank, a law professor at Penn who kept it for three decades in a box with other personnel files, concludes that Warren was the best for the job despite being, as they put it, “white.” Burbank was, at the time, a member of the appointments committee and on a subcommittee charged with reviewing all minority prospects.
Burbank took a break from his vacation on Cape Cod and allowed a reporter from the Globe to read and take notes on the file over lobster salad rolls at Bubala’s By the Bay, a Provincetown restaurant. But he wouldn’t let the Globe keep the file, saying he was concerned that physically handing over the document could compromise the privacy of those consulted in the hiring process and other candidates considered for the position.
The form includes a chart showing that 424 candidates were considered. Sixty-three were females. And 16 were minorities — all black. The university reported that it didn’t consider a single Asian, Hispanic, or American Indian for the job.
The form includes a written defense for the decision. “The members of the appointments committee, in discussing the appointment of Elizabeth Warren with external referees, specifically asked whether there were any minority candidates of equal or better stature,” according to a paragraph on the form. “None of the persons indicated that there was an equal or better minority candidate.”
Nearly three years after Warren accepted the job at the University of Pennsylvania, university records show that she asserted her Native American heritage again: She had Penn switch her listed ethnicity from “white” to “Native American.”
It is a move that, especially for her critics, raises the question: If Warren didn’t make the change to get ahead professionally, then why do it at all?
The senator, in the interview with the Globe, offered to fill out this part of her personal story. Yes, her career was taking off, she said, but she was also losing her family.
Warren said she had always identified closely with her mother’s side of the family: a sprawling and rowdy group with scant resources who looked after one another, and who, according to family lore, have Cherokee and Delaware blood.
When her grandmother died in 1969, Warren’s mother and three aunts led the family and further impressed on her their proud Cherokee connection.
Then in the late 1980s, around the time that Warren began identifying professionally as Native American, she began losing them, too. Her aunt Mae Reed Masterson died in October 1989. Her aunt Alice Ann Reed Carnes died in August 1990. That left her mother and her aunt Bess Veneck, (aka Aunt Bee), who lived with Warren and helped her raise her children.
“The two women in my life who have always been my guides through the world began to focus even more on the past,” Warren explained.
This is also when Warren was leaving the West behind, for good. And she wasn’t sure she wanted to try and fit in to the new East Coast culture.
“When I get to Penn and Harvard, I look around and think this is not a club that I’m likely to be able to join,” said Warren, who noted she was a woman, a mother, and from a humble background and from Oklahoma. “I had different heritage than most of the people there. . . . You can try to keep your head down or say: This is who I am. Different from the rest of you, but this is who I am.”
Mann recalled the struggle his wife had initially when adjusting to Penn, a move they made more for his career than hers. “It was really hard for Elizabeth to leave Texas,” Mann said. “At Texas, they just energized her, and the East Coast was just a very, very different place.”
Warren’s mother died in July 1995, the same month Warren started her tenured job at Harvard Law School. Bess Veneck — her Aunt Bee — died in December 1999.
“They were dying,” said Warren. “I lost them all in that time period.”
Warren, as she has in prior interviews, said that she does not remember telling Penn to change her ethnicity on their forms. “I can’t recall specific conversations,” Warren said. “The best I can do is tell you the overall. There is no one thing that stands out in that time period.”
Warren’s colleagues at Penn at the time recall that she liked to make a point of talking about her Western heritage by referring to herself as an “Okie” and comparing her Western sensibility to their Eastern habits.
And in interviews during those years, she also talked extensively about her Oklahoma background. “I think the best thing that I can do for Penn students is be a woman and be from Oklahoma and to come from at best a working-class background,” Warren said to the Penn Law Forum in a November 1990 interview.
The University of Pennsylvania chose not to tout in the press their newly minted Native American professor. But her minority status was duly noted: The university’s Minority Equity Report, published in April 2005, shows that Warren won a teaching award in 1994. Her name is in bold and italicized to indicate she was a minority.
“In Philadelphia, having somebody with some distant connection to the Cherokee tribe just wasn’t a very big deal,” explained Colin Diver, a Boston resident who was the dean of the law school at the time.
“It counts for way more if you are visibly, recognizably a person of color. There was nothing about her that was visibly, recognizably a person of color.”
The law school was happy to have her count as a diversity statistic, however, and for at least three of the years she taught there — 1991, 1992, and 1994 — an internal publication drawing on statistics from the university’s federal affirmative action report listed one Native American female professor in the university’s law school.
But Penn didn’t do much to try to convince the world that the law school now had a more diverse staff.
Harvard would handle the matter very differently.
Warren had never set foot on the Harvard campus before the fall of 1992, when she and Bruce Mann arrived for yearlong stints as visiting professors. But anyone looking around wouldn’t have had a difficult time detecting a diversity problem.
Of the 66 professors on the Harvard Law School faculty eligible to vote on appointments, there were only five minorities, all black men. And there were just seven women, all white. Fifty-four members of the faculty were white men.
These were the people who would evaluate Warren and determine whether she was a good fit to be a full-time Harvard Law professor. They visited her classroom when she taught. They read her books and scholarly work. And, under the system employed at the law school, two-thirds of the tenured faculty would have to vote in favor of hiring her in order for her to get a job.
By early February 1993, about five months after Warren arrived on the campus, the Harvard Law School appointments committee was convinced she’d be good for Harvard. The group — typically five to seven professors — unanimously voted to offer her a full-time position. The next step was for the faculty to vote. They debated her qualifications over the course of two meetings.
“I thought she was going to be a whiz-bang in the classroom,” said Andrew Kaufman, a Harvard law professor who supported her. “You just have to be in the room with her to see it. It was electric. She would call on 40 people in the hour. The atmosphere was highly charged. The questions were good. She made people think. That is a big thing at law school — to make people think. And not to just soak in what the teacher is saying and spit it back.”
There was less consensus over her brand of scholarship, in which she had pioneered a way of using surveys and actual bankruptcy records to determine how laws affected real people. Warren’s approach was a little too practical, and not intellectual enough, for some.
“The views had a lot to do with the methodology she was using,” recalled David Wilkins, a Harvard Law professor who voted to offer Warren a job. “Was it the right methodology?”
If Warren benefited from affirmative action at Harvard, it had to do with her gender, according to several members who said the desirability of hiring a woman was discussed.
Harvard Law School’s internal statistics from the time showed the institution was looking for female professors and had set a goal of hiring a tenured woman that year. Oddly, the law school’s internal metrics found that they believed they had sufficient minorities on staff, despite employing only five.
One area that 30 of the 31 professors interviewed by the Globe agreed on: There was no talk about her Native American claims during the meetings over her appointment. One professor emeritus, Lloyd Weinreb, said he believes her Native American ancestry was discussed. But, in an e-mail he questioned his own recollection: “I am not sure enough for you to rely on me,” he wrote.
Perhaps most telling was the role of Randall Kennedy, a law professor who was on the Harvard appointments committee at the time, and was in charge of recruiting minority candidates.
“She was not on the radar screen at all in terms of a racial minority hire,” Kennedy told the Globe. “It was just not an issue. I can’t remember anybody ever mentioning her in this context.”
This view is shared by those on the faculty who aren’t close with Warren, ideologically or personally.
“This is a made-up issue,” said Alan Dershowitz, a Harvard Law professor emeritus and occasional Trump defender, when asked if her heritage played a role. “This is not an issue that’s worthy of the president or anyone else.”
Others sounded a note of exasperation that the Globe was examining this question again.
“It had nothing to do with our consideration and deliberation,” said Charles Fried, the former solicitor general to president Ronald Reagan and a member of the Harvard Law School appointments committee at the time. “How many times do you have to have the same thing explained to you?”
It’s not even clear that Warren would have been accepted as a true minority hire if she’d been pitched to the faculty that way. “It wouldn’t have even worked in the most diehard communities,” said Wilkins, who was one of the only black law professors on staff. “Let’s be blunt. Elizabeth Warren is a white woman. She may have some Native American roots, but so do most people.”
The Harvard Law School students who were clamoring for more diversity also did not view her as a woman of color when she was offered a job.
“In order to show a real commitment to diversity they need to do more than pass a resolution and bring in white women,” said Julie A. Su, then a second-year Harvard Law student who was quoted in the Harvard Crimson the day after Warren was offered the job.
And, remarkably, Warren doesn’t even remember getting the offer. “I guess it should have been a big moment,” Warren said, reflecting on her inability to recall the details.
Warren initially turned down the job; it would mean her family would have to be separated again, because Mann didn’t get an offer.
Assertions that Warren benefited from her Native American claims also assume that the Harvard Law School dean at the time, Robert Clark, was pushing for diversity. But it’s not at all clear that this was at the top of his mind.
While discussing affirmative action with the law school’s first black tenured professor, Clark famously said: “This is a university, not a lunch counter in the Deep South.” (Clark later apologized for the remark.)
Clark, who still teaches at Harvard, declined multiple interview requests. He has said in the past that he became aware of Warren’s Native American claims after she was offered a job.
The only indication that someone at Harvard was aware of Warren’s ethnic claims before she was offered the job comes from a 1993 Affirmative Action Plan that Harvard University compiled from data collected from deans at the 10 different Harvard schools.
Paul Upson, who was the assistant dean for finance and operations at Harvard Law School at the time, said that law school administrators would look at faculty lists and annotate them, manually marking who was a minority and sending those reports to the university offices where they’d be compiled and forwarded to the federal government.
The report shows there was a Native American woman teaching at the law school in the 1992 to 1993 academic year, when Warren was there as a visiting professor. No Native American is listed in the two years before Warren came or in the two years after her visiting professor stint ended and she returned to Penn.
But it’s not clear that this 1993 reference is to Warren: Oddly enough there was another woman with far stronger claims to Native American heritage teaching at Harvard when Warren was visiting there.
Susan Mary Williams, an enrolled member of the Sisseton-Wahpeton Oyate tribe, taught a one-month winter term course called American Indian Law every year from 1989 to 1993, according to Harvard Law School course catalogs.
Williams, reached at her home in New Mexico, told the Globe she didn’t know if Harvard Law School was aware of her Native American roots and counted her as such that year.
Also, if the Harvard Law School dean’s office was aware of Warren’s Native American heritage when the school offered her the job in February 1993, they forgot that detail when she started in July 1995.
Warren’s personnel file from Harvard shows that her ethnic status was first marked in the Harvard human resources system as Native American in November 1995. That’s more than four months after she started her position, and two years and nine months after she was offered the job.
“It tells me that we did not know. Or nobody had told us,” said Upson, who reviewed the forms at a Cambridge coffee shop.
A memo with Warren’s file shows the change in her ethnic status was noteworthy enough to merit additional paperwork.
“In compiling the statistics for the annual Affirmative Action report for the University, I spoke with Professor Warren about her ethnic status,” wrote Sue Robinson, who was the assistant dean for academic affairs, in December 1995. “She stated that she self-identifies as a Native American.”
Robinson adds: “Therefore, we have in our current statistics listed her as a Native American.”
Once Warren was working at the law school in a permanent job, her status as Native American wasn’t a secret. Administrators marked her down as a Native American from 1995 to 2004. Her colleagues gave her some guff about it, joking behind her back that her Native American name would have been “Talking Pot,” in homage to her oratorical skills.
Harvard Law School also used Warren’s ethnicity internally in December 1995 to bolster the case that they didn’t need to hire more minorities (even though publicly the law school continued to pledge support for diversity).
“The utilization for minority senior faculty is 9.94 percent, and the availability is 5.63 percent,” reads the dry language in Harvard’s 1996 Affirmative Action Plan in a section about tenured professors at the law school. “Minorities are not underrepresented in this job group.”
Harvard Law School’s spokesman at the time, Michael Chmura, then cited her as evidence that Harvard Law School was more diverse than most realized.
“Although the conventional wisdom among students and faculty is that the Law School faculty includes no minority women, Chmura said Professor of Law Elizabeth Warren is Native American,” according to an October 1996 article in the Harvard Crimson. Similar claims were made in at least three other news stories.
Warren doesn’t have a direct answer for whether her claims — even though they do not appear to have benefited her during her professional rise — might have harmed the efforts of others to press for more diversity at the overwhelmingly white institution.
She said she chaired the law school’s admissions committee for a decade and made it a mission to bring in more women and people of color. She’s also proud of her female students, who have gone on to become teachers themselves. But it wasn’t until 1998 that Harvard Law School added Lani Guinier, as the first woman of color on the tenured law faculty.
“I wish that I had been more mindful of the distinction between heritage and tribal citizenship,” Warren said, reflecting on the statistics and on her decision to list herself as Native American. “Only the tribes can determine tribal citizenship and I respect their right. That’s why now I don’t list myself here in the Senate as Native American.”
Warren’s answers won’t satisfy all of her critics, particularly the persistent gaps in her memory about the specific decisions to list herself as Native American. And both she and her husband seemed to understand that any new detail about her career is likely to spark another round of debates over her heritage.
“We both have thick skins,” said Mann at one point, as he sat on a couch in their Washington condo with his arm around Warren’s shoulder.
Warren, holding his hand, added: “This is how I want to be. I want it out there.”