Race itself also is increasingly a problematic concept in 21st-century America. The more we talk about Latinos, blacks, Asians and others as if they were easily distinguishable groups, the less Americans fit into such neat rubrics. In an age of intermarriage, assimilation and global immigration, almost every American family has been redefined by members who are one half this or one quarter that.
Yet if verifiable hyphenation is to be our touchstone to career or academic identity, how do we certify minority status in an increasingly intermarried and multiracial society where there soon will be, as in California, no majority ethnic group? Are we to wear DNA badges to certify the exact percentages of our racial pedigrees -- to prevent another Elizabeth Warren or Ward Churchill from gaming the system?
Affirmative action once was defended as redress for the odious sins of slavery and Jim Crow segregation. But almost 150 years after the end of slavery, and a half-century after the establishment of civil rights legislation, it is hard to calibrate the interplay between race, relative past oppression and the need for compensatory action.
In a zero-sum, multiracial society, how do we best appreciate past suffering? How do we compare the Jewish-American whose grandparents were wiped out in the Holocaust with the grandchildren of those Japanese who were interned during World War II?
If compensation is not historically based, what then are the criteria that calibrate ongoing victimization? Would a European-Argentinean immigrant with a Hispanic name better qualified for affirmative action than the Bosnian Muslim refugee?
Affirmative action was also predicated on America's history of discrimination. It was never intended to apply to those who had recently arrived in America without proof of past discrimination in this country.
Who among the newly arrived immigrants from South Korea, Oaxaca, the Punjab or Nigeria becomes eligible for affirmative action, and who does not -- and on what reasoning are their claims of hardship more valid than those of poor fourth-generation Americans of any ethnic background?
There is also not always consistency in the application of affirmation action. Late-night talk-show hosts are not proportionally racially diverse. Neither are Silicon Valley CEOs, the directorship of the Sierra Club, or employees of the U.S. Postal Service or the NBA.
The public is confused about why we might consider ethnic criteria in hiring in the college anthropology department, but not so much when selecting transatlantic airline pilots, neurosurgeons or nuclear plant designers.
Should gender considerations be used to encourage more males on campuses? Female bachelor degree recipients now far outnumber their male counterparts and are skewing notions of gender equality.
Given these complexities and contradictions, the public, the Supreme Court and state legislators increasingly believe that a multiracial United States is unique precisely because race and tribe -- unlike most other places in the world -- are incidental rather than essential to our American identities.
The advice of Martin Luther King -- judge Americans only by the content of their characters -- is not only the simplest but in the end the only moral standard.