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GMU President Cites ‘Diversity’ to Justify Illegal Goal of Race-Based Hiring

GMU President Cites ‘Diversity’ to Justify Illegal Goal of Race-Based Hiring

“If you have two candidates who are both ‘above the bar’ in terms of requirements for a position, but one adds to your diversity and the other does not, then why couldn’t that candidate be better, even if that candidate may not have better credentials than the other candidate?”

The president of George Mason University wants to give minorities a big advantage in hiring until the faculty is as heavily minority as the school’s student body and the future, mostly non-white U.S. population. This is illegal, say lawyers and law professors. Indeed, GMU’s president, Gregory Washington, recognized that objection in an April 15 email to the university’s faculty, before saying it wouldn’t stop him from giving minorities a preference in hiring. Washington quoted a professor as saying:

“I am concerned about what it really means to hire faculty and staff that ‘reflect the student population.’ The university’s job as an R1 institution is to hire the best faculty and administrators, period. The type of target hiring of minorities proposed through ARIE is both prejudicial and illegal. I would like to have this addressed.”

In response, GMU’s president wrote, “If you have two candidates who are both ‘above the bar’ in terms of requirements for a position, but one adds to your diversity and the other does not, then why couldn’t that candidate be better, even if that candidate may not have better credentials than the other candidate? Study after study has proven that the most diverse organizations, which recognize the importance of maintaining a diverse and inclusive environment, are the best performing organizations.”

The first sentence asks the faculty to engage in illegal racial discrimination. The second ignores contrary research, and gets causality backwards.

GMU’s president is misdefining “diversity” to mean huge, unrealistic percentages of racial minorities. George Mason University’s faculty is already diverse, as most observers see it. “The racial diversity of the faculty is above average,” says College Factual.

But it is not “diverse” enough for GMU’s president. He complains that the faculty is not as diverse as the “society” students “will enter” by the mid-21st Century, which he says will not have a white majority. He notes that unlike GMU’s faculty, the “majority of our students are non-white and reflective of the nation’s expected ethnic make-up in the mid-21st century.”

The fact that the faculty are not as diverse as the student body is no reason to expand the use of race in faculty hiring. For example, the Supreme Court ruled that a school district could not lay off white teachers based on their race in order to keep black teachers, even though “the percentage of minority teachers was less than the percentage of minority students.” (Wygant v. Jackson Board of Education (1986)).

“Diversity” does not require that a school be mostly non-white, or anything close to it. Boston has a mostly minority student population, but a court ruled Boston could not use race in admissions to increase the percentage of blacks and Hispanics at a selective school, because colorblind admissions would already yield enough diversity: a student body that was over 15% black and Hispanic. As the Boston-based federal appeals court explained, diversity was already present where “under a strict merit-selection approach, black and Hispanic students together would comprise between 15% and 20% of each entering class, and minorities, in toto, would comprise a substantially greater percentage.” (Wessmann v. Gittens (1998)).

George Mason University’s faculty is diverse under that measure. College Factual says GMU’s faculty is about a quarter non-white (including 7.9% black, 6% Hispanic, and 9.1% Asian), and only 67% non-Hispanic white (some faculty are listed as “other race”).

Institutions can’t hire based on race to make their staff mirror society’s current racial composition, much less its future more heavily non-white racial composition. That would be “outright racial balancing, which is patently unconstitutional,” according to the Supreme Court.

An institution’s workforce need not be as “diverse” as the population it serves. For example, a federal appeals court ruled that a city could not promote blacks based on their race just because the police department was whiter than the city’s population. The city argued that “more African-American supervisors could better supervise African-American officers who in turn were needed to relate to the larger African-American population.” The court rejected that argument, ruling that it was illegal to promote employees based on their race “to give a better reflection of the racial composition of the city,” or “remedy racial imbalances in the police department.” (See Police Association of New Orleans v. City of New Orleans (1996)).

President Washington argues that a “diverse” candidate is simply “better” and thus should be hired over a white candidate; but a federal appeals court rejected that argument when it was made by the City of New Orleans. The City unsuccessfully argued that Blacks can “better supervise” and “relate to” other Blacks. The Supreme Court rejected an argument similar to President Washington’s in its Wygant decision, ruling that black teachers could not be given priority over whites just because they were “role models” for black students.

President Washington also attributes GMU’s limited number of black and Hispanic staff to the effects of “structural racism.” But the fact that GMU’s faculty are whiter than its student body does not show discrimination. The faculty have special qualifications that students do not, and most faculty were hired at a time when applicants were whiter than they are today, due to America’s changing demographics. Comparing the faculty’s racial composition to students’ is an apples-to-oranges comparison, in the eyes of judges. The Supreme Court ruled that discrimination is not shown by comparing the racial breakdown of different components of an institution that have different qualifications. It rejected a discrimination lawsuit against an employer that had an overwhelmingly white skilled workforce, and an overwhelmingly minority unskilled workforce, saying that didn’t show any racial “disparate impact.” (See Wards Cove Packing Co. v. Atonio (1989)).

While Virginia once discriminated against blacks, this long-ago discrimination is not a reason to give them a preference today. Discrimination that occurred 14 or more years ago is not a reason for giving a minority group a preference today, according a federal appeals court. (Brunet v. City of Columbus (1993)).

Virginia’s history of segregation is not a reason to give a preference to minority groups like Hispanics and Asians that were never subjected to segregation the way black people were. Courts have struck down racial set-asides when they included minority groups that hadn’t been victimized the way black people were. (See L. Feriozzi Concrete Co. v. Casino Reinvestment Dev. Auth. (2001)).

Yet under GMU’s “ARIE Task Force Recommendations,” GMU will “recruit, hire, and retain faculty” and “staff to reflect” its “student population,” which includes many Asians and Hispanics. It will fund “diversity cluster hire initiatives” and mandate “search plans” and “diversity of applicant pool[s]” to eliminate “gaps” between “the demographic diversity” of its faculty and its student body.

It doesn’t violate employment discrimination statutes for an employer to give minorities a racial preference to fix what the Supreme Court calls a “manifest racial imbalance” in “traditionally segregated job categories.” (See United Steelworkers v. Weber (1979)).

But GMU does not have such an “imbalance,” as defined by the Supreme Court. True, GMU’s faculty is whiter than its student body, or the unskilled labor force in its region. But that’s irrelevant, and doesn’t mean GMU has a “racial imbalance” in the legal sense. Whether a racial imbalance exists is legally determined by comparing the demographics of GMU’s workforce to the “relevant qualified area labor pool,” which only includes those people “actually qualified for the position.” (See Janowiak v. South Bend (1984)). As the Supreme Court has explained, “the comparison should be with those in the labor force who possess the relevant qualifications.” (See Johnson v. Transportation Agency (1987)).

So if there aren’t many blacks with PhDs, it’s not a “racial imbalance” for GMU not to have lots of black faculty. In more than a dozen academic fields, “not a single black student earned a doctoral degree in 2017,” notes The Atlantic. So the fact that GMU’s faculty is about 8% black is not a sign of discrimination against black people.

Moreover, before an institution can give minorities a racial preference, there must be not just a “racial imbalance” but a “manifest” and “conspicuous” one. For example, the Supreme Court found a manifest racial imbalance where “only 1.83% (5 out of 273) of the skilled craftworkers at” a steel plant “were black, even though the work force in the Gramercy area was approximately 39% black.” (United Steelworkers v. Weber (1979)).

GMU, by contrast, already has more minority faculty than most colleges. GMU also has a far more diverse faculty than similar schools in Virginia, like James Madison University, whose faculty is 85% non-Hispanic white.

In addition to the fact that GMU has no “manifest racial imbalance” that would justify using race in hiring or promotions, its faculty positions are not “traditionally segregated job categories” that can be targeted toward minorities.

“Traditionally segregated job categories” are jobs from which minorities have been systematically excluded in the relatively recent past. In its Weber decision, the Supreme Court treated steel craftworkers as a “traditionally segregated” job, “because blacks had long been excluded from craft unions,” including in the prior decade. Similarly, in its Johnson decision, the Supreme Court cited the fact that “women had not traditionally been employed in [the] positions” for which affirmative action was being used. By contrast, minorities have been employed in college faculties for many years, including at GMU. For example, the black economist Walter Williams was a professor at GMU for over 40 years.

The Supreme Court has said that “diversity” is a reason for colleges to consider race in admissions. But the same may not be true in hiring. Under the Constitution, diversity is not a valid reason for using race in hiring, according to a federal appeals court. (See Lutheran Church–Missouri Synod v. FCC (1998)).

GMU’s faculty hiring also must comply with Title VII of the Civil Rights Act. Title VII’s ban on racial discrimination does not appear to contain a “diversity” exception. An appeals court ruled it violated the Title VII for a school to consider teachers’ race in employment decisions in order to achieve “diversity.” (See Taxman v. Board of Education (1996)).

[Featured image via YouTube]


Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. This article originally appeared at Liberty Unyielding and is reprinted with permission.


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The Friendly Grizzly | April 28, 2021 at 7:11 pm

A quota-hire hiring quota-hires.

George Mason joins the university to punchline path.

Is it not time for Whites to stand as the overwhelming majority in this country?

    The Friendly Grizzly in reply to gonzotx. | April 28, 2021 at 7:24 pm

    It is. It’s long overdue. (,Am I included, being Jewish?)

      JusticeDelivered in reply to The Friendly Grizzly. | April 28, 2021 at 7:52 pm

      Hell yes, Jewish culture should be admired.

        Thank you, but the question isn’t whether it’s admirable but whether it’s white, and the answer is no, it isn’t. There’s nothing wrong with that, but when you speak of “the overwhelming majority in this country” you’re not talking about us.

          Brave Sir Robbin in reply to Milhouse. | April 28, 2021 at 8:43 pm

          Deny being “white” all you want. They will put you in concentration camp all the same.

          Milhouse in reply to Milhouse. | April 29, 2021 at 12:05 am

          Um, they put us in the Camps because we weren’t white. (Well, not really. It’s a little known fact that for all the Nazi Party officially disliked black people, they did not persecute them, and certainly didn’t put them in the Camps. Black people were free from official discrimination, and were even allowed to join the Nazi Party. So the Camps weren’t for “non-whites”, but only for specific non-white races: Jews and Gypsies.)

          The Friendly Grizzly in reply to Milhouse. | April 29, 2021 at 7:37 am

          You don’t speak for me, Milhouse. I won’t downtick your remark, but I am not and have never been anything other than White.

          Brave Sir Robbin in reply to Milhouse. | April 30, 2021 at 10:13 am

          What I mean, Milhouse, is that race is a purely subjective notion and classification. If you remember, George Zimmerman became “white” when it was useful for the the media and fascists to make him so. The Democrat party, and the “left” have hugged fascism as their controlling ideology in all but name, and are becoming increasingly anti-Semitic. They will put you into what ever camp they desire. “White” equals the enemy to them. It works as a syllogism. If you are an enemy, you are “white.” The real intent is ideological persecution. They will lump all ideological opponents into an enemy category, which currently is “white.” Therefore you are white if you resist them, and will end up in a camp if you continue and they accumulate sufficient power.

          This is a long way of saying your thoughts are “white” (non-fascist) and so you are, too.

      Brave Sir Robbin in reply to The Friendly Grizzly. | April 28, 2021 at 8:41 pm

      I thought you were Moroccan.

        The Friendly Grizzly in reply to Brave Sir Robbin. | April 29, 2021 at 7:41 am

        Two to three percent. Some Nordic, and then a mix of Asian (Georgia/Ukraine kind, not the Stacey Abrams kind), Polish, Russian, German, Austrian, and Spanish. The Georgian, Morrocan, and Spanish parts come in handy when government-“requests” for ethnicity are asked for on things like loan applications. ;-{)}}}

    CommoChief in reply to gonzotx. | April 28, 2021 at 8:11 pm


    Pretty sure you are describing most of US History from the founding until:
    Slavery ended by civil war and Constitutional amendment
    Integrated Military 1948 by President Truman
    Integrated Education Brown v Board + President Eisenhower and President Kennedy
    Voting Rights Act of 1965
    Civil Rights Acts of 1957, 1964 and 1968

    All these ended historic injustice. Today the likes of BLM are spewing more hate based on ‘race’.

    I prefer to remain opposed to the descent into a new tribalism. Having seen the effects up close in Kosovo, Bosnia, Iraq, Afghanistan and Africa I can assure you the end results are not something we want in the US.

    4fun in reply to gonzotx. | April 28, 2021 at 10:22 pm

    Good luck with all the white women who actually believe the crap being spewed by the media and others.
    But I’ll have to admit, I’ll laugh out loud if a super liberal white professor gets passed over for a lesser qualified affirmative action hire.

      The Friendly Grizzly in reply to 4fun. | April 29, 2021 at 7:42 am

      They will be making noises like an old outboard motor with fouled spark plugs: “but but but… but…!”

      gran2ten in reply to 4fun. | April 29, 2021 at 1:52 pm

      Many black men love white women, How does this ‘square with their black women. And, commercials are portraying black women with white husbands & kids, how does this ‘square with black men?’ What exactly is their anger and message? As an ethnic group, they project confusion regarding their love/hate of whites.

George Mason is a state university. There will be a lawsuit over this, and they will lose, and hopefully they will lose big.

    The Friendly Grizzly in reply to Observer. | April 28, 2021 at 7:25 pm

    With it being a state university, this quota hire is set for life.

      I am not sure that President Washington’s tenure is all that secure. Alan Merten was President for 16 years. He built the institution by being an excellent fundraiser, who to be honest, pandered to conservative donors. In 2012 he was followed by Ángel Cabrera who lasted until 2019. President Washington started in 2020, and he is very different in terms of his “diversity” views. Washington does not have a track record of successful fundraising, and articles such as this one torpedo his chances.

    henrybowman in reply to Observer. | April 28, 2021 at 9:12 pm

    But the state is Virginia.

    4fun in reply to Observer. | April 28, 2021 at 10:24 pm

    And the taxpayers will pay and pay and pay. And pay some more.
    Maybe we should make these guys personally responsible for these decisions.

      The Friendly Grizzly in reply to 4fun. | April 29, 2021 at 7:44 am

      Maybe it’s time to consider the idea of state higher education as having gone past its time. Back when they taught skills that offered the students a trade or profession where the state could make up the costs in income taxes, they were fine. Now, it’s studies majors or BS courses like Lesbian Dance Theory, or the ever-popular Underwater Basket Weaving.

Grrr8 American | April 28, 2021 at 7:50 pm

“Diversity” is the code-word for quotas, and used to provide cover for reverse discrimination.

“Above the bar” is one of the games they play (my employer doesn’t publicly announce it, but does the same): a) set a bar at “minimally qualified,” then b) deem all who score as minimally-qualified candidates or above as “above the bar,” c) all then are “equally qualified” as being at least minimally-qualified, then d) hand the position to a “diversity” candidate.

Ideally to the “most diverse” candidate – White + males are negative for they bring down gender and race ratios. A White female gets one diversity point for female. A Black female gets two diversity points, and so would be preferable to a White female. In some organization, a Black female homosexual would hit the diversity trifecta.

Dream on if you think that the EEOC or courts are going to stamp out such discrimination.

    Dimsdale in reply to Grrr8 American. | April 28, 2021 at 8:05 pm

    One wonders (not much) if one candidate’s “diversity” is used to artificially bring them up to “the bar,” instead of being used to “enrich” the faculty.

    I don’t see many white lefty professors quitting to make space for “more qualified diverse” candidates.

    “Diversity” is just doublespeak for “preferential hiring of the preferred minority of the day.”

He has to justify it! It’s the only reason he’s in the position he’s in. Ten months ago somebody else espoused the very same bullshit he’s espousing now and presto – just like that – he became president of GMU.

    Dimsdale in reply to UserP. | April 28, 2021 at 8:06 pm

    And now, the questionable qualifications are rearing their ugly head in racist decisions like this.

    lawgrad in reply to UserP. | May 1, 2021 at 11:54 pm

    Washington replaced Ángel Cabrera, who left in 2019 to become President of Georgia Tech.

What hath Sandra Day O’Connor wrought?

I was also puzzled by the argument that more diversity = higher performing organisation. If this was true, wouldn’t companies do this organically instead of force of government?

What kind of scholarly assets are these hires producing?

Could they add up to something that could have the “new” university stand on its own without needing the systemic structure that the university has been built upon over centuries?

What? What? What was that you said?

Study after study has proven that the most diverse organizations, which recognize the importance of maintaining a diverse and inclusive environment, are the best performing organizations.”

Really? I very much doubt it. It doesn’t stand to reason.

The relevant pieces are too many and spread too widely for me to easily copy and paste them into a blockquote, but it seems like the current state of the law is that diversity is a valid goal, but 15% is “diverse enough”. I have to ask, who says so? Once you admit the principle that diversity is good, what makes 15% enough? Surely 20% or 25% or 30% is better? Or if not, why not? Why isn’t 10% enough, or 5%? I realize that it is the Supreme Court saying so, but it seems like nothing but a case of ipse dixit, or plain old adhockery.

It seems to me that a much better position is that diversity in any amount is not a valid goal for the university to pursue, because it gives no advantage at all. If it just so happens that the best available faculty are 100% white, or black, or Chinese, then that is the correct mix. And if they aren’t then it isn’t. Skin color simply plays no role in a person’s teaching ability, which is the only thing that should matter.

    slagothar in reply to Milhouse. | April 28, 2021 at 8:44 pm

    Tried to give Mr. Millhouse a thumbs up, but couldn’t….

      Danny in reply to slagothar. | April 28, 2021 at 10:31 pm

      I couldn’t either so settled for giving your comment thumbs up

      The Friendly Grizzly in reply to slagothar. | April 29, 2021 at 7:49 am

      His comment contains a block quote. That seems to shut down the ability for at least some to give him thumbs-up scores. It happens to others as well.

    Observer in reply to Milhouse. | April 28, 2021 at 9:00 pm

    The NBA is overwhelmingly tall, black, and male. If diverse organizations really perform better, then clearly the NBA needs a lot more short, female, white, Asian, disabled, etc., folks on their teams. The NBA should look more like America, where tall black males are only a tiny portion of the population. The NBA needs to be much more inclusive!

      randian in reply to Observer. | April 28, 2021 at 9:28 pm

      I’ve read allegations that the NBA and NFL are openly racist towards white players.

      4fun in reply to Observer. | April 28, 2021 at 10:38 pm

      There is a meme out comparing lebron james to a female basketball player named Sue Bird.
      Both at 17 years as bb players.
      Both have 4 championships.
      Sue made 215,000 in 2020.
      lebron made 37.44 million in 2020.
      Sue’s bonus for winning the 2020 championship was 11,356.
      lebron’s bonus for winning the 2020 championship was 370,000.

      Always remember the H in democrat stands for honesty.

        The Friendly Grizzly in reply to 4fun. | April 29, 2021 at 4:36 pm

        Sue Bird. She missed her calling. What a great name for a slip and fall attorney!

    daniel_ream in reply to Milhouse. | April 28, 2021 at 9:35 pm

    Study after study has proven that the most diverse organizations, which recognize the importance of maintaining a diverse and inclusive environment, are the best performing organizations.

    This is complete bollocks. A fellow I know who went back to school to get his MBA did his dissertation on this and was unable to find any evidence of it at all, much less any actual studies. It’s just an article of faith based on nothing.

    I will say this, though: the “if it really was better, companies would do it themselves” argument isn’t a very good one. It’s used all the time to debunk the sex-based wage gap. The problem is that anyone who has worked anywhere for more than five minutes knows that companies do not make decisions based on perfect rational self-interest; everyone knows at least a dozen businesses that hire based on nepotism and cronyism even when those hires are a productivity disaster. The boss’ useless son-in-law; the college buddy with a drinking problem; etc., etc. I’ve worked for companies where the management has said out loud they won’t hire women, or Indians (for example). It absolutely happens.

      Milhouse in reply to daniel_ream. | April 29, 2021 at 12:36 am

      This is complete bollocks. A fellow I know who went back to school to get his MBA did his dissertation on this and was unable to find any evidence of it at all, much less any actual studies. It’s just an article of faith based on nothing.

      I’m not surprised. As I said, the claim just doesn’t stand to reason.

      And yes, if it were true then companies would do it themselves.

      Nepotism is not an argument against it, because nepotism is in the boss’s rational interest. He needs his son-in-law to have a job, so giving him one makes sense. Or, put another way, he’s going to be supporting his daughter and grandchildren no matter what, so he may as well get some work out of the good-for-nothing son-in-law. So long as the guy isn’t so useless that he causes damage, it’s worth hiring him.

      I’m sure employers exist who won’t hire women or Indians, or whatever. But there are two possibilities. Either they believe this is a rational strategy, or they accept that it isn’t but to them the utility of not having to work with such people is worth the cost.

      In the first case, either they’re right or they’re wrong. Maybe $category really aren’t good employees, and refusing to hire them is a good idea. If so, they’ll succeed and everyone will copy them, and that will be a good thing. If they’re wrong they’ll do less well than their competitors, and other people won’t copy them.

      In the second case, that’s fine, but not many employers will be like that. Most employers, even those who don’t like $category, put a higher value on making money than on indulging their dislikes. Let alone the ones who happen not to share that dislike in the first place.

    The Friendly Grizzly in reply to Milhouse. | April 29, 2021 at 7:52 am

    I’m in 100% agreement. One hires those who can do the tasks needing to be done, in competent fashion and with someone who works well with the rest of the crew.

    Another thought on the diversity hustle: if, say, you have someone who is like me: technically Hispanic, Asian, and African (and born in America so “African-American”), do folks like us count as “three-fers” on the diversity roster demanded by Our Betters in The Bureaucracy? Or, is my being male something that cancels out the other three?

      henrybowman in reply to The Friendly Grizzly. | April 30, 2021 at 9:19 pm

      +1 for African, +0.5 for Hispanic, -1 for Asian, -1 for male.
      My advice is just not to bring it up.
      Or take enough estrogen and NSAIDS to pass for a Pacific Islander.

1) The check is in the mail.
2) I’ll respect you in the morning.
3) Diversity/AA “goals” are not racism or racial quotas.

“President Washington?“ Yikes.

At least they’re being honest about their racism, so I respect them for that.

Most colleges and universities have been filling “diversity” positions without honestly saying “No white males need apply.” When SCOTUS said colleges could take race into account for “diversity,” that applied only to students. But most colleges talk and act like it applies to hiring faculty as well.

I was on a committee to make one of these “diversity” hires, and we were told that if any of our top candidates was a white male, our search would be terminated. They wouldn’t come right out and say that in the ad, however. The clear implication was that if we committee members knew what was good for us, we would downgrade whites and males to make sure that only only the “diverse” candidates rose to the top.

Diversity, inequity, and exclusion. A Pro-Choice dogma.

Four new Gregory Washingtons on the Supreme Court and the Democrats will have gotten rid of the Civil War amendments that it cost 600,000+ lives to bind them to, and it will be the blacks whose ancestors we freed from slavery who execute this ultimate betrayal of their race and ours.

Let’s see how that decision works for GMU. They will be judged by future applicants and how their graduates do in the workplace. I can wait for results.

This vicious new racism practiced and implemented by the vile Dhimmi-crats, and, promoted, couched and rationalized under their Newspeak lexicon of “Diversity,” “Equity” and “Social Justice,” must be foot by sane and U.S. Constitution-respecting Americans, tooth, nail and claw, at every turn.

SeiteiSouther | April 29, 2021 at 11:22 am

So, he’s pulling an Eddie Jordan?

A co-worker’s mother was one on staff to be fired. Later on, during the trial, Eddie claimed it was his right to fire who he wanted and that he wanted a staff that was a reflection of the racial makeup of the city.

Yes, he actually used that as a defense…

civisamericanus | April 29, 2021 at 11:47 am

My position (not legal advice) is that you should put down whatever race or ethnicity is convenient on the application that is (1) remotely credible and (2) will allow you to circumvent and defeat affirmative action preferences. (I read that a dark-skinned Asian Indian put down “Black” to defeat anti-Asian preferences.) I do not regard this as lying on an application (as opposed to, for example, claiming to have degrees or qualifications you don’t have) because race, ethnicity, religion, gender, and sexual orientation are not bona fide job qualifications so what you put down is not relevant to the hiring decision. That is how I would see it as a juror, anyway. Note however that another person got caught, and rightly so, for claiming falsely to be a National Merit Scholar, which IS a legitimate qualification.

    Brave Sir Robbin in reply to civisamericanus. | April 30, 2021 at 10:28 am

    1st, is is against the law to discriminate in hiring on the basis of race. Second, classification of race is via self-identification under federal law and guidelines. So you can pick anything you want. It is not SUPPOSED to matter.