Mixed Race Studies

The Value of Intersectional Comparative Analysis to the “Post-Racial” Future of Critical Race Theory: A Brazil-U.S. Comparative Case Study

Connecticut Law Review
Volume 43, Issue 5 (July 2011)
pages 1407-1437

Tanya Katerí Hernández, Professor of Law
Fordham University

This Commentary Article aims to illustrate the value of comparative law to the jurisprudence of Critical Race Theory (CRT), particularly with reference to the CRT project of deconstructing the mystique of “postracialism.” The central thesis of the Article is that the dangerous seductions of a U.S. ideology of “post-racialism” are more clearly identified when subject to the comparative law lens. In particular, a comparison to the Brazilian racial democracy version of “post-racialism” is an instructive platform from which to assess the advisability of promoting post-racial analyses of U.S. racial inequality. In Part I the Article introduces the value of comparative law to the future development of CRT. Part II provides an overview of Brazilian “post-racial” discourse. Part III then details the quantitative and qualitative indicators of racial discrimination and intersectional race and gender discrimination in Brazil. Part IV focuses upon the Brazilian legal opposition to post-racialism as evidenced by a recent intersectional anti-discrimination case. The Article then concludes that the critical comparative examination of the Brazilian version of “post-racialism” assists in elucidating the concrete counterintuitive harms of a “post-racial” perspective in the United States.

ARTICLE CONTENTS

• I. INTRODUCTION
• II. BRAZILIAN “POST-RACIAL” RACIAL DISCOURSE
• III. QUANTITATIVE AND QUALITATIVE INDICATORS OF DISCRIMINATION IN BRAZIL
• IV. THE INTERSECTIONAL POSITION OF AFRO-BRAZILIAN WOMEN
• V. THE INTERSECTIONAL CASE OF TIRIRICA

I. INTRODUCTION

In her article in this volume, Twenty Years of Critical Race Theory: Looking Back To Move Forward, Kimberlé Williams Crenshaw turns her attention to considering the “contemporary significance of CRT’s trajectory in light of today’s ‘post-racial’ milieu.” Post-racialism is characterized by a public policy agenda of colorblind universalism rooted in the assertion that society has transcended racism. Post-racialism incorporates colorblindness but is distinct in extending beyond the colorblindness retreat from race as primarily an aspiration for eliminating racism. In contrast, the rhetoric of post-racialism contends that racism has already been largely transcended.

In Crenshaw’s consideration of post-racialism she notes that the present challenge to Critical Race Theory (CRT) is to preclude an “overinvestment in the symbolic significance” of post-racialism as a racial frame that disregards manifestations of racial inequality in its celebration of formal equality and a colorblindness that equates the articulation of racial concerns with an act of racism. Crenshaw convincingly demonstrates the fallacy of post-racialism and the simultaneous difficulty in dispelling it, given the contemporary racial fatigue and public desire to foreclose any discussions of race. To combat the Obama mania that Crenshaw notes sanctions all talk of racism as a racial grievance itself, Crenshaw urges CRT to develop a broader project “to remap the racial contours in the way that people see the world that we live in—then in so doing . . . create a new set of possibilities for racial-justice advocates.” Crenshaw urges that the “next turn in CRT should be decidedly interdisciplinary, intersectional and cross-institutional.” In this Commentary Article, I would like to suggest that the next turn in CRT also focus more deeply on comparative law.

Because the post-racialism racial frame casts a veil which hinders the ability to see racial disparities and understand them as connected to various forms of racial discrimination, what is needed is a mechanism for refocusing the U.S. racial lens. Comparative law can make a useful contribution in the effort to refocus the racial lens. A key insight from comparative law is its “potential for sharpening, deepening and expanding the lenses through which one perceives law,” because of its ability to “challenge entrenched categorizations and fundamental assumptions in one’s own and others’ legal cultures.” Indeed, anthropologists have long noted that we cannot fully see and appreciate our own “culture” until we have compared it to that of another. A number of CRT scholars and related LatCrit [Latino Critical Race Studies] scholars have started the project of incorporating a comparative law component into CRT and the associated endeavor of applying CRT to non-U.S. legal jurisdictions. What I am underscoring in this Article is the particular usefulness that comparative law presents for the specific project of combating the post-racialism racial frame. This is because contemporary U.S. CRT scholars can only set forth conjectures about the future long-term dangers of post-racial rhetoric (such as hindering the pursuit of racial equality by shutting down any discussion of race in favor of equating racial disparities with cultural deficiencies and socio-economic disadvantages). In contrast, a comparative consideration of another region in which a form of post-racialism has long existed provides the opportunity to examine the actual adverse consequences of post-racial rhetoric.

As a vehicle for illustrating the value of comparative law to the CRT project of dismantling the post-racialism racial frame, I shall provide a comparative analysis of an instructive Brazilian intersectionality case. Because Brazil is a country that has long claimed that all racial distinctions were abandoned with the abolition of slavery, it is an instructive platform from which to assess the viability of contemporary assertions of postracialism in the United States. Yet, as shall be discussed below, growing discrimination jurisprudence in Brazil shows the longstanding post-racial assertion to be false. To the extent that a century-old claim to a form of post-racialism in Brazil is shown to be a fallacy, the many parallels that exist between Brazil and the United States enable a salient critique of U.S. post-racialism. In particular, because of their objectified and denigrated status, examining the treatment of Black women as an intersectional matter, helps to demystify the barriers to productive transnational comparisons of racial ideologies between the United States and Latin America. In order to be concrete, I shall focus on a recent intersectional discrimination case that was litigated in Brazil. But before discussing the case, it will be helpful to first explain the contours of the “post-racial” Brazilian racial ideology.

II. BRAZILIAN “POST-RACIAL” RACIAL DISCOURSE

Like the United States, Brazil is a racially diverse nation with a significant number of persons of African descent stemming from the country’s history of slavery. Yet Brazil’s involvement in the African slave trade was even longer and more intense than that of the United States. This accounts for the fact that, aside from Nigeria, Brazil is the nation with the largest number of people of African descent in the world. After emancipation, Brazil continued to be a racially divided nation, but occasionally provided social mobility for a few light-skinned mixed-race individuals. This social mobility was directly tied to the racist nationbuilding concepts of branqueamento (whitening) and mestiçagem (racial mixing/miscegenation), which can best be described as campaigns to whiten the population through a combination of European immigration incentives and the encouraging of racial mixture in order to diminish over time the visible number of persons of African decent. Indeed, the social recognition of the racially-mixed racial identity of mulato/pardo was a mechanism for buffering the numerical minority of white-identified elite Brazilians from the discontent of the vast majority of persons of African descent. Greater symbolic social status and occasional economic privilege were accorded based on one’s light skin color and approximation of a European phenotype, which simultaneously denigrated Blackness and encouraged individuals to disassociate from their African ancestry. It should be noted that in terms of concrete economic benefits, few mulattoes radically superseded the status of those Afro-descendants viewed as “Black.” Rather, the recognition of mulattoes as racially distinctive from Blacks served primarily as a kind of “psychological wage” associated with the prestige of approximating whiteness without any significant groupwide monetary benefit for such status. As a result, Brazil was able to maintain a rigid racial hierarchy that served white supremacy in a demographically-patterned society where people of African descent approximated and sometimes even outnumbered the white elite. This is in marked contrast to the demographic pattern in the United States, where, with just a few exceptions, Blacks have always been a numerical minority and have thus been more vulnerable to the white majority’s enforcement of Jim Crow racial segregation after emancipation from slavery. In Brazil, with its greater population of people of African descent, the ideological use of the “mulatto escape hatch” was such an effective tool of racial subordination that Jim Crow legal segregation was never needed and all racial justice movements were efficiently hindered. But it was the absence of Jim Crow in Brazil that later enabled the nation to promote itself as a country in which racial mixture had created a racially harmonious society. In fact, until recently, it has been a firmly entrenched notion that Brazil was a model of race relations that could be described as a “racial democracy” exemplified by racial fluidity in its racial classification practices. Hence, post-racialism in Brazil, and much of Latin America is characterized by a negation that racism exists after the abolition of slavery. The denial of racism is justified by the racial mixture of the population which has presumably “transcended” racism. Existing racial disparities are instead attributed to the cultural deficiencies and socio-economic disadvantages of Afro-Brazilians. As a result, those who raise the issue of racial discrimination are viewed as racist themselves. These facets of Brazilian post-racialism closely parallel the rhetoric of post-racialism in the United States and the related fascination with racial mixture as emblematic of racial harmony…

Read the entire article here.

Shades of Difference: Why Skin Color Matters

Stanford University Press
2009
312 pages
11 tables, 15 figures, 16 illustrations
Cloth ISBN: 9780804759984
Paper ISBN: 9780804759991
E-book ISBN: 9780804770996

Edited by:

Evelyn Nakano Glenn, Professor of Asian American Studies
University of California, Berkeley

Shades of Difference addresses the widespread but little studied phenomenon of colorism—the preference for lighter skin and the ranking of individual worth according to skin tone. Examining the social and cultural significance of skin color in a broad range of societies and historical periods, this insightful collection looks at how skin color affects people’s opportunities in Latin America, Asia, Africa, and North America.

Is skin color bias distinct from racial bias? How does skin color preference relate to gender, given the association of lightness with desirability and beauty in women? The authors of this volume explore these and other questions as they take a closer look at the role Western-dominated culture and media have played in disseminating the ideal of light skin globally. With its comparative, international focus, this enlightening book will provide innovative insights and expand the dialogue around race and gender in the social sciences, ethnic studies, African American studies, and gender and women’s studies.

Contents

Contributors
• Introduction: Economies of Color—Angela P. Harris
• Part I The Significance of Skin Color: Transnational Divergences and Convergences
  • 1. The Social Consequences of Skin Color in Brazil—Edward Telles
  • 2. A Colorstruck World: Skin Tone, Achievement, and Self-Esteem Among African American Women—Verna M. Keith
  • 3. The Latin Americanization of U.S. Race Relations: A New Pigmentocracy—Eduardo Bonilla-Silva and David R. Dietrich
• Part II Meanings of Skin Color: Race, Gender, Ethnic Class, and National Identity
  • 4. Filipinos and the Color Complex: Ideal Asian Beauty—Joanne L. Rondilla
  • 5. The Color of an Ideal Negro Beauty Queen: Miss Bronze 1961-1968—Maxine Leeds Craig
  • 6. Caucasian, Coolie, Black, or White? Color and Race in the Indo-Caribbean Diaspora—Aisha Khan
  • 7. Ihe Dynamics of Color: Mestizaje, Racism, and Blackness in Veracruz, Mexico—Christina A. Sue
• Part III Consuming Lightness: Modernity, Transnationalism, and Commodification
  • 8. Skin Tone and the Persistence of Biological Race in Egg Donation for Assisted Reproduction—Charis Thompson
  • 9. Fair Enough? Color and the Commodification of Self in Indian Matrimonials—Jyotsna Vaid
  • 10. Consuming Lightness: Segmented Markets and Global Capital in the Skin-Whitening Trade—Evelyn Nakano Glenn
  • 11. Skin Lighteners in South Africa: Transnational Entanglements and Technologies of the Self—Lynn M. Thomas
• Part IV Countering Colorism: Legal Approaches
  • 12. Multilayered Racism: Courts’ Continued Resistance to Colorism Claims—Taunya Lovell Banks
  • 13. The Case for Legal Recognition of Colorism Claims—Trina Jones
  • 14. Latinos at Work: When Color Discrimination Involves More Than Color—Tanya Katerí Hernandez
• Acknowledgments
• Notes
• Index

Read the Introduction here.

The Shifting Race-Consciousness Matrix and the Multiracial Category Movement: A Critical Reply to Professor Hernandez

Boston College Third World Law Journal
Volume 20, Number 2 (Spring 2000)
pages 231-290

Reginald L. Robinson, Professor of Law
Howard University

In this article, the author posits that race as an idea begins with consciousness that reinforces that race is real and immutable. The Multiracial Category Movement can shift our race consciousness away from traditional ways of thinking, talking, and using race. The Movement moves us beyond binary race thinking, and this new thinking shifts the extant race consciousness matrix. It also frees our consciousness so that we can personally and politically acknowledge our biracial and multiracial identities, and it perforce alters the traditional political meaning of race. Legal scholars like Professor Tanya Hernandez argue for the political meaning of race against a remediating balm against the color-blind jurisprudence, weakening of civil right protections, and pigmentocracy. While these new identities can promote color-blind jurisprudence by conservatives and pigmentocracy by those fleeing the oppressive constraints of traditional racial categories, the author argues against Hernandez and for the Movement’s paradigm shifting possibilities.

Introduction

Although we socially, historically, and psychologically co-create racism and white supremacy, race is not biologically factual. It is not real. As such, race does not have any meaning that survives its social and historical context. Race exists, if ever, in our individual and cultural consciousness. If we do not constantly and consciously meditate on it, race cannot exist. Unfortunately, we fuel this social construct with our mental kindling and intellectual logs. Race, racism, and white supremacy exist because we—individually and collectively—create it, enforce it, and sustain it. Thus, it is our race consciousness and its attendant behavior that remain the apt locus for racism and white supremacy. We consciously create race by externalizing what we think about, for example, blacks. This race-thinking—or externalizing—constructs our liberal world, and this world in turn constructs us. As Jerome Bruner would perhaps argue, race for all of us is the “out there” that first exists “in here.” In this way, race is not only constructed but is also a consciousness matrix.

Basically, if race arises from a consciousness matrix, does race necessarily have an essential meaning outside of how we think, use and talk about race? I think not! Thinking, talking, and using give race its life force, content, and meaning (e.g., racism). Without our thinking, talking, and using, race loses its practical, social function, and we need never experience the individual and collective pain that follows consciously or otherwise when we force people to separate unnaturally from each other. Unfortunately, if we continue to think, talk, and use race, we—blacks, whites, and others—co-create these venal experiences. And then we become drunk and sickened by the nasty mead we have created, and in this drunken stupor, we forget that we originated race and racism, proclaiming instead that race and racism not only reside in a great unreachable beyond but also remain external, objective, and real.

We rarely ask if race’s meaning exists beyond our consciousness, and we rarely ponder how absolutely central our role is in race’s oppressive meaning. Ultimately, then, it is as if we—blacks, whites, and others—walk into a well-lit room, turn out the lights, forget about the light switch, and then curse the darkness. Because we turned out the light, the idea of darkness must already have existed within our consciousness. By dimming the light, we sought the dark. After we create darkness, then we alienate ourselves from each other by becoming vested in our racialized roles, all the while blaming the liberal state for solely creating race and for deliberately giving race its particularly venal content. Hardly! For dark, fearful reasons, blacks and whites prefer a race consciousness. Why? I think blacks and whites prefer thinking, talking, and using race and race consciousness because each group seeks power, innocence, control, irresponsibility, etc. Worst of all, we foolishly believe that “blackness” or “whiteness” represents our true, spiritual identity and our true beingness.

What nonsense! Again, blacks and whites act as if they cannot respond to how they have allowed themselves to think, talk, and use race. In the end, we become the “blackness” or “whiteness” and its venal content. If we account for a given culture’s collective consciousness, no great, oppressive force exists beyond our own consciousness. Perhaps Pogo was right: we have met the racists, bigots, and fools, and they are us. In this way, race’s meaning is always first “in here” (i.e., matrix consciousness).25

This matrix of race consciousness—race thinking and its meaning—comes under direct attack from the Multiracial Category Movement (MCM). With this MCM, we can weaken our narrow fixation on a singular racial identity, and by broadening our racial lenses, we can achieve at least five goals. First, we can shift our race consciousness. Second, we can destabilize racial categories completely. Third, we can think, talk, and use “race” categories toward a higher, Spiritual end. Fourth, we can eradicate all racial categories. Fifth, we can begin to relate to each other as Spirit beings, despite the different “color” garb we may choose in a given lifetime. In this critical essay, I evaluate Professor Tanya Katerí Hernández’s article, “Multiracial” Discourse: Racial Classifications in an Era of Color-Blind Jurisprudence, and I proceed in the following way. First, I briefly flesh out the problem of a race-consciousness matrix. Then, I argue that the MCM does not in and of itself privilege white over black. Third, the MCM creates a challenge and an opportunity for perhaps yet unimagined social liberty and legal equality. Fourth, the MCM does not perforce invigorate color-blind jurisprudence and thus white supremacy…

Read the entire article here.

Multiracial Matrix: The Role of Race Ideology in the Enforcement of Anti-Discrimination Laws, a United States – Latin America Comparison

Cornell Law Review
Volume 87, Number 5 (July 2002)
Cornell University Law School

Tanya Katerí Hernández, Professor of Law
Fordham University

This Article examines the role of race ideology in the enforcement of antidiscrimination laws.  Professor Hernández demonstrates the ways in which the U.S. race ideology is slowly starting to resemble the race ideology of much of Latin America.  The evolving U.S. race ideology is a multiracial matrix made up of four precepts: (1) racial mixture and diverse racial demography will resolve racial problems; (2) fluid racial classification schemes are an indicator of racial progress and the colorblind abolition of racial classifications an indicator of absolute racial harmony; (3) racism is solely a phenomenon of aberrant racist individuals; and (4) focusing on race is itself racist.  Because the multiracial matrix parallels much Latin American race discourse, Professor Hernández conducts a comparative analysis between U.S. and Latin American anti-discrimination law enforcement practices.  Professor Hernández concludes that the new race ideology bolsters the maintenance of race hierarchy in a racially diverse population.  Consequently, an uncritical embrace of the new race ideology will hinder the enforcement of antidiscrimination law in the United States.  Professor Hernández proposes that a greater focus on racism as a global issue that treats race as a political identity formation will assist in the recognition of the civil rights dangers of a multiracial matrix.

Read the entire article here.