One night at a watering hole outside of Seattle, Ralph Taylor overheard a man a few beers in bragging about how easy it was to get certified as a minority business owner, thus gaining access to potentially millions of dollars’ worth of state contracts.
Taylor’s ears perked up. He asked the man exactly how this all went down, and the man told him the Office of Minority and Women’s Business Enterprises (OMWBE) ― the Washington state office that certifies small businesses for these government contracts ― had a relatively lax application process. All Taylor had to do to get a Minority Business Enterprise (MBE) certificate, the man said, was provide a sworn affidavit that he belonged to a specific minority class and submit a photo ID. Then he’d get approved.
There was a potentially huge payoff: Washington state agencies have a budget of almost $3 billion per year to contract with businesses. Right now, small businesses with white owners get more than six times as much money as small businesses with black owners. But as part of an initiative by Washington Gov. Jay Inslee (D), the state is attempting to level the playing field and award more money to women and people of color. Last year, minority- and women-owned businesses were awarded around $154 million, with nearly $90 million spent on contracts with certified MBEs.
A few years after that bar conversation, Taylor, who works in the risk management industry, applied to have his own business, Orion Insurance, certified as minority-owned. And in 2014, Washington state awarded him an MBE certificate. It was a remarkable turn of events because, for most of his life, Taylor has been treated as a white man.
That hasn’t stopped Taylor from launching a crusade to be legally recognized as Black, based on his own sense of identity and the results of a genealogy test that revealed that he has 4% African DNA.
When Taylor applied to the very same office for a similar federal certificate (a Disadvantaged Business Enterprise, or DBE), his application was rejected on the grounds that he didn’t meet their criteria of someone belonging to a minority group.
In a letter to Taylor informing him of the denial, the office wrote, “The laws governing the state and federal certification are different. While OMWBE has certified an application by your Firm to the Washington State MBE program, that certification is not binding on the Federal DBE certification program.”
Flummoxed, he says he contacted the OMWBE by email and phone to fight the denial. “I asked, ‘What is the Black culture?’” he recalls one afternoon in Seattle when we meet downtown outside the federal courthouse, at his behest, so he can demonstrate to me how his racial status changes from Black on state property to white on federal property. He asked the OMWBE to clarify why they excluded him from the program ― even after, he says, he provided additional evidence of his proposed blackness, including his DNA test results.
According to Taylor, the office questioned whether he was truly part of a minority group. Taylor says he tried to clarify again: “‘Is it Condoleezza Rice, is it Snoop Dogg? Is it Dr. Dre? Or is Ludacris? Or is it Colin Powell? I mean, that’s a wide variety of people there, so what is Black culture?’ They said something to the effect that, ‘If you don’t know what it is, that’s because you’re not Black.’”
So, he sued the OMWBE. Beyond his own racial status, Taylor claims to be fighting for a greater good, exposing flaws with affirmative action programs.
DNA tests complicate perceptions of race.
DNA test kits are often marketed as novelty items ― something fun to bring up at a dinner party or romanticized as a means to unlock fairy tales hidden in our past. Or they’re the subject of true-crime sagas, with podcasts like “Serial” inspiring Reddit pages fixated on convicted murderer Adnan Syed’s case. DNA tests have even gotten glossy Netflix treatment with documentaries like “Making A Murderer.”
More recently, these kits entered our politics when Democratic presidential candidate Elizabeth Warren revealed the results of a genetic ancestry test to back up earlier claims of indigenous heritage. Warren was criticized by some tribal leaders for implying a relation between DNA and tribal citizenship, and she subsequently apologized.
These controversies aside, DNA kits have become cheaper and more popular; 23andMe, for instance, was originally priced at $999 when it came to market, but now kits cost around $99. And yet, University of Pennsylvania sociologist Wendy Roth says we still don’t fully understand what happens when we send our saliva off to a laboratory ― and we don’t know how to properly interpret the results.
“Right now I don’t think that [companies selling at-home genealogy kits] are generally doing a good enough job of explaining how these tests should be interpreted and what the limitations are and what some potential negative impacts could be,” says Roth, whose work is focused on DNA as it intersects with culture and identity.
Humans share 99.9% of the same genetic makeup, so at-home genealogy kits only look at a small fraction of our genetic materials. These tests are then further limited by the fact that the majority of people who have taken them have predominantly European ancestry (white people love this stuff!) ― so they are less accurate for other groups.
Still, companies are getting frighteningly good at identifying Americans of European descent who have never even taken a genetic test themselves. Law enforcement agencies, for example, use existing samples to triangulate information and solve crimes; it was a distant relative’s DNA that led to the capture of the suspected Golden State Killer.
Despite all this, Roth says these tests are not particularly accurate as a means of determining racial ancestry. “Race is not something that is just genetic. Genetics play a part, but only a part,” Roth explains. “The way that sociologists define race is something that is socially determined, that refers to aspects of your biology or your ancestry. But it’s only referring to them.”
Black cultural theorist and author Mychal Denzel Smith agrees. DNA “is not telling you your race, because race is not a biological fact,” he says. “Race is a social and political construct. It is something that is lived.”
For his part, Taylor tells me that he has always considered himself multiracial and sees race as fluid. DNA, he says, will prove that our racial makeup is “just genetic mutations at the end of the day.”
Roth says that understanding race as a social construct can sometimes lead people to think that they can pick and choose their race as they like, without consequence. In a qualitative study she conducted in 2018, Roth found that white respondents were most eager, of all respondents, to change their ethnic or racial identity. They wanted to discover ancestry that made them distinctive or exotic, or they wanted a more specific tradition to distinguish themselves. Roth called this phenomenon “symbolic race.”
People “want to be able to enjoy the privileges or the benefits of a racial group without any of the costs,” she says, adding that she’s working on quantitative studies to further explore these patterns. “They don’t experience any discrimination, and because they don’t have to tell anyone that they have this ancestry or this identity, they can just use it when it’s advantageous for them and hide it when it’s not.”
Could DNA impact affirmative action laws?
All 50 states have an OMWBE or equivalent. The amount that each state allocates to minority contractors varies, as does the impact of each program. One recent report commissioned by Washington state discovered that some MBEs “felt that certification was actually a detriment because it can be viewed by other firms and agencies as a stigma.”
But the majority of the country still sees a benefit to affirmative action, and the number of Americans saying they favor such programs has risen in the last few years.
“Affirmative action programs are trying to adjust for a specific form of oppression which has to do with racial hierarchies, the legacy of slavery, the legacy of Jim Crow, the legacy of lynching, the legacy of redlining. It is specifically meant to address that,” cultural theorist Smith explains, adding that race is “something that is lived.”
Similarly, writer and HuffPost Black Voices Editor Taryn Finley sees affirmative action programs like the OMWBE to be a sort of corrective to historic racial injustices. “It’s not a fix-all, but it levels the playing field for people of color, for marginalized people.”
Finley takes umbrage with Taylor’s method of exposing what he says are flaws with the system, and says the ends do not justify his means. “If you look at a lot of the loudest voices, the folks who are going up against affirmative action are people like Ralph Taylor, who don’t know how to use their privilege or relinquish their power in ways to actually help marginalized folks.”
So how might DNA tests impact who’s eligible for affirmative action programs? The truth is, the issue has not yet been legally tested.
In 2003, when these tests were in their infancy and still costly, Alan Moldawer, a father of adopted twin boys, made headlines when he said he was considering using the outcomes of a genealogy test to try and secure financial aid for his kids on the grounds of their minority status. While white-presenting, his twin boys were 9% Native American and 11% North African, according to the tests Moldawer commissioned. It was one of the first reported instances where DNA tests were raised as a possible entry point to affirmative action programs.
More recently, a judge this year allowed Princeton student Nicole Katchur’s lawsuit against the Sidney Kimmel Medical College of Thomas Jefferson University to proceed. Katchur, who is white, is suing for racial discrimination, claiming that an admissions officer told her that if she were to take a DNA test and discover Native American or African-American lineage, her chances of getting accepted into the medical school program would go up. (The medical school is seeking to dismiss the suit.)
The case was reminiscent of Fisher v. University of Texas, in which Abigail Fisher sued the University of Texas in 2008 for what she perceived to be anti-white bias in its admissions process. Fisher lost in 2016 when the Supreme Court upheld the university’s use of race in admission decisions.
What Taylor’s case and these college-based lawsuits have in common are the questions they raise about the gatekeepers of these programs ― who gets to decide whether someone is a deserving applicant or not. And more often than not, the first barrier to entry is phenotype (what we look like) rather than genotype (what our genes reveal).
When it comes to race, how we see ourselves isn’t always how others see us.
Despite attempts to codify race, it is not as static an idea as many would like. In her book “The Limits of Whiteness,” sociologist Neda Maghbouleh explores how Iranians and other Middle Eastern Americans moved across the color line and documents how the U.S. Supreme Court used Iranians as a racial litmus test to determine the classification of other Middle Eastern or Arab people. Drawing on work by Middle East historian Nina Farnia, Maghbouleh shows how between 1909 and 1939, Iranians’ skin color was classified and reclassified as white and nonwhite by claimants in eight separate Supreme Court cases.
In 1896, in the landmark case Plessy v. Ferguson that led to the infamous “separate but equal” principle, the Supreme Court drew the color line in a different place. Justice Henry Billings wrote a majority opinion that refers to the “one-drop rule”― or the idea that any person could be Black even if “not discernible” to the naked eye.
Taylor’s case somewhat oddly and uncomfortably evokes Plessy. A small amount of centiMorgans (the unit of measure of DNA) reveals some distant African ancestry, allowing him to claim access to an affirmative action program.
Smith cautions against this protocol. “That’s just getting us into another position in which we are trying to scientifically determine something that does not exist scientifically,” he says.
Roth further notes that the sheer volume of African-informed DNA has no bearing on how race is constructed socially. Should Taylor’s 4% be enough for society to accept him as Black? What if his results came back with 44%, or 64%?
“I think what makes the difference is how the person is seen by others within their community. If the person is seen by others within their community as a white person, then the percentage doesn’t matter,” Roth argues. “In the case of somebody who has a very small percent, like 4%, it’s very unlikely that that is going to be visible enough that it’s going to influence people’s interactions with them.”
Roth’s position is one that has historically guided government agencies.
Take the U.S. census. The census was originally filled out by an enumerator who went door to door and filled out the survey for you. As Roth points out, these people were often neighbors who may have known your family history ― “chances are, they might have known if your grandfather was a Mulatto or a person who was white” ― and so may have filled out the forms based on their knowledge of your family history, in addition to how they took in your appearance.
This changed in the 1960s and ’70s with mailouts ― and that simple shift in data collection had a more profound sociocultural impact. “The meaning of this race question just completely shifted without anyone really paying any attention to it at all,” Roth explains. “It really went from something that was all about how you’re seen by others to how you mark yourself.”
There are many more recent instances where how we are viewed by other people has been instructional as to how we’re viewed in the eyes of the law. A recent Los Angeles Times investigation revealed businesses in at least 18 states won certification as minority contractors by claiming Native American status, even though birth, census and other government records identified the firms’ owners or their ancestors as white. In response, two House committees are investigating.
In Brazil, eyeing someone’s racial makeup has been at the heart of a protracted legal battle, after the government introduced a quota system for federal jobs and made the postings public. People started hunting down and searching people’s Facebook and social media profiles, sleuthing and cross-checking to see if their named racial backgrounds matched with how they appeared in photographs.
Taylor went through a similar process in his quest to be awarded federal minority designation after he was denied. He attempted to submit scores of Excel spreadsheet data with the names of people who were awarded federal minority status alongside hyperlinks to the LinkedIn profiles or company websites, in an effort to reveal how many people were, he says, “gaming the system.” Taylor claims that his own research into states’ minority business owner programs shows that 65% of enrollees were white, based on his perception of their photos. The spreadsheet was ultimately disallowed by the 9th Circuit court as evidence.
When I asked the OMWBE over email about the validity of Taylor’s claims, they said: “This is not an area of fraud our program has seen.” When I asked about whether it ever turns down applicants, the office said, “Each year is different depending on the number of applications we receive.”
Is being Black about more than DNA?
Taylor is tall and surprisingly soft-spoken. He rarely raises his voice, even for emphasis. Nonetheless, he has loudly advertised his identity with contemporary stereotypes. To flex his Black culture bonafides, Taylor argued that he was a member of the NAACP, subscribes to Ebony Magazine and takes “a great interest in black social causes.” In 2017, he changed his birth certificate to reflect what he says is his multiracial status of “Black, Native American and Caucasian.”
He says he has received death threats as a result of his story. In order to prove to his detractors that he’s not pursuing his case for financial gains, he took a polygraph test, which he shared with me: “It was never about the money,” he says, adding he hasn’t benefitted financially from his MBE status.
When he talks to me about this in the bar, the conversation turns, inescapably, for a moment to Rachel Dolezal. Dolezal, who now goes by Nkechi Diallo, was the woman who sparked outrage in 2015 when it was revealed that she had been posing as a Black woman for most of her adult life, despite being born white. Taylor says he feels “sorry” for Dolezal, and “wished he could have told her that all she had to do was identify.” But this kind of physical code-switching is typically only a one-way street.
“Being able to tip-toe back and forth across a line between ‘now I’m Black, now I’m white, now I’m multiracial’ ― that’s not identity. You’re playing a game,” says Finley of HuffPost Black Voices. “It’s a very nefarious way of using your privilege, and I don’t think that you’re genuinely trying to expose a flaw in the system.”
Finley, who took a DNA test herself to uncover her own previously unknown family history, is 10% European. But, she says, “I’m a Black woman. My lived experience as a Black woman cannot be passed [as white].”
Smith also takes exception to Dolezal and Taylor’s claims to Blackness. He roots Black culture in a community of people with shared experiences.
“There’s the common experience that all of our ancestors had of slavery. They formed culture out of that. You have the common experience of segregation. They formed culture out of that,” he says. “If you cannot point to your life as a shared experience with those people, then how can you claim that status?”
Taylor, however, sometimes claims that affirmative action entry points shouldn’t be focused on race at all. Instead, he says equal opportunity programs should look more at socioeconomics ― in part because, in his telling, we are all multiracial. Simultaneously, Taylor claims that his 4% African DNA results mean that he should be considered Black enough to qualify for the OMWBE program anyway.
In December 2018, the 9th Circuit judges unanimously ruled against Taylor, and in favor of the OMWBE, which the court argued “did not act in an arbitrary and capricious manner when it determined it had a ‘well founded reason’ to question Taylor’s membership claims.”
Smith expresses some sympathy for the gatekeepers of these affirmative action programs. “What we’re trying to determine is if you are a part of a class of people that has been discriminated against and therefore you are eligible for the corrective program, right? It’s really, really confusing and tricky to do,” he says. “What we’re asking then is for you to prove a history of discrimination on the basis of how you look. That’s difficult for anybody to suss out.”
Is this just trolling to make a point?
Speaking with Taylor at the bar outside of Seattle, it’s hard not to wonder if, frankly, he isn’t just trolling us all and the government.
Taylor says he has already spent hundreds of thousands of dollars litigating his case. He jokes that he’s willing to live out of his car if it means seeing this through to the end, though what that end looks like is at this stage unclear. The U.S. Supreme Court declined to hear his case over the summer, and he has run out of appeals to the 9th Circuit. But he says he plans to reapply to the OMWBE for certification later this month.
In a June 2019 email to the director of the Washington state OMWBE, which he shared with HuffPost, Taylor inquired about resubmitting the paperwork to get his DBE certification and be recognized federally as a minority business owner. In the note, he states that he’s sending in his newly amended birth certificate, but asks “should I have the certificate amended to state that I am black without any other ethnicities” and adds “I can also have the certificate amended to state female if that will help.”
The glibness is part of Taylor’s point ― he wants to expose the flaws in the process of becoming minority certified, and more broadly with what he says is the somewhat arbitrary nature of the affirmative action system.
“The system the way it is now needs to break,” he says.
Kayvon Afshari, Lindsey Davis and Emily Bina contributed reporting.
This article originally appeared on HuffPost.