Mixed Race Studies

I readily acknowledge some overlap between what we might call monoracial and multiracial animus: a racist who dislikes people who she views as Asian might well dislike an individual whom she identifies as part-Asian for some of the same reasons. But viewing someone as part-Asian also lends itself to unique forms of animus not directed at those perceived as monoracial. A mixed-race person may be viewed as polluted, defective, confusing or confused, passing, threatening, or—in our diversity-obsessed society—as opportunistic, gaining an advantage by identifying with a group in which he is at best a partial member. These negative associations may be distinguished from those directed at people perceived as monoracial.

Nancy Leong, “Judicial Erasure of Mixed-Race Discrimination,” American University Law Review, (Volume 59, Number 3, February 2010) 483-484. http://www.wcl.american.edu/journal/lawrev/59/leong.pdf.

Judicial Erasure of Mixed-Race Discrimination

American University Law Review
Volume 59, Number 3
February 2010
pages 469-555

Nancy Leong, Associate Professor of Law
Sturm College of Law, Denver University

Table of Contents

• Introduction
• I. “What Are You?”: Cueing Perception of Racial Mixing
• II. “A Mongrel Breed of Citizens”: Animus Against Multiracial People
  • A. Historical Origins
  • B. Contemporary Attitudes
• III. “Discrete and Insular”: The Problem with Categories
  • A. Categorical Foundations
  • B. Judicial Treatment of Multiracial Plaintiffs
    • 1. Categorical reformulation of multiracial identification
    • 2. Limited acknowledgment of mixed-race discrimination
    • 3. Discrimination against interracial couples: related but distinct
  • C. Academic Omission
• IV. “Invisible People”: The Erasure of Multiracial Discrimination
  • A. Causes of Unacknowledged Multiracial Discrimination
  • B. Consequences of Unacknowledged Multiracial Discrimination
    • 1. Damage to individual narratives of discrimination
    • 2. Inhospitality to claims of multiracial discrimination
    • 3. Instantiation of racial categories and associated stereotypes
• V. “The Eye of the Beholder”: Reconciling Antidiscrimination Law and Multiracial Identification
• Conclusion

Introduction

The ideal of America as a racial and ethnic melting pot is a fundamental archetype in our national mythology. But discomfort with the idea of miscegenation and with the individuals born to parents of different races is equally fundamental to the American story. Indeed, one historian documents the punishment of Captain Daniel Elfrye for “too freely entertaining a mulatto” in 1632. Since then, racial mixing has engendered a continuously evolving social unease, troubling different groups for different reasons at different times. But the underlying inquietude has persisted. At times, this discomfort has manifested itself through legal mechanisms—for example, as a statutory scheme designed to police the boundaries of racial classification based on blood quantum. At other times, the discomfort has emerged through direct social interaction—for example, as violence directed at interracial couples and at individuals viewed as racially mixed.

Despite the historical and ongoing hostility to racial mixing, our legal system consistently fails to recognize racism directed at those seen as racially mixed. Race discrimination jurisprudence relies heavily on a familiar set of racial categories that David Hollinger has termed the “ethno-racial pentagon” of Asian, Latino/a, White, Black, and Native American. Science has largely demonstrated that the boundaries of these crude categories are arbitrary and that the categories themselves are social constructs rather than biological realities. Nonetheless, the categories constitute the paradigm through which we view race. And antidiscrimination jurisprudence continues to reflect and reify those categories in recognizing and remedying claims of racial discrimination.

This Article aims to expose the shortcomings of the prevailing crude racial categories as a means to implement the core provisions of antidiscrimination law—constitutional and statutory provisions such as the Equal Protection Clause and Title VII, and the jurisprudence that has developed around these provisions. Such provisions are designed to address racial discrimination by prohibiting inequitable treatment of individuals based on race and by punishing such inequitable treatment when it occurs. The provisions are not intended to protect specific racial categories. Rather, categories are simply the mechanism that the judiciary has adopted for implementing the goals of our antidiscrimination regime…

Read the entire article here.

While “racial profiling” in medicine has generated significant discussion in medical and bioethics circles, it has thus far gained relatively little attention in legal literature. This Article aims to develop the discourse concerning this important topic. It argues that “race-based” medicine is an inappropriate and perilous approach. The argument is rooted partly in the fact that the concept of “race” is elusive and has no reliable definition in medical science, the social sciences, and the law.  Does “race” mean color, national origin, continent of origin, culture, or something else? What about the millions of Americans who are of mixed ancestral origins—to what “race” do they belong? To the extent that “race” means “color” in colloquial parlance, should physicians decide what testing to conduct or treatment to provide based simply on their visual judgment of the patient’s skin tone? “Race,” consequently, does not constitute a valid and sensible foundation for research or therapeutic decision-making.

Sharona Hoffman. “‘Racially-Tailored’ Medicine Unraveled,”American University Law Review. 2005, Volume 55, Number 2, pages 395-452. http://www.aulawreview.org/pdfs/55/55-2/hoffman.pdf.

“Racially-Tailored” Medicine Unraveled

American University Law Review
Volume 55, Number 2 (December 2005)
pages 395-452

Sharona Hoffman, Professor of Law, Professor of Bioethics, and Associate Director of the Law-Medicine Center
Case Western Reserve University School of Law

Table of Contents

• Introduction
• I. “Race-Based” Research and Therapeutic Practices
  • A. The Story of BiDil
  • B. “Race-Based” Research
  • C. A Growing Interest in “Race-Based” Medicine: Why Now?
• II. Does “Race” Mean Anything?
  • A. “Race” in the Medical and Social Sciences
  • B. “Race” and the Law
  • C. Shifting the Focus Away from “Race”
• III. The Dangers of “Racial Profiling” in Medicine
  • A. Medical Mistakes
  • B. Stigmatization and Discrimination
  • C. Exacerbation of Health Disparities
• IV. Violation of Anti-Discrimination Provisions
  • A. Constitution and Federal Civil Rights Laws
  • B. State Laws Prohibiting Discrimination in the Medical Arena
    • 1. Civil rights statutes
    • 2. Hospital and medical facility licensing requirements
    • 3. Patients’ bill of rights laws
    • 4. Public services regulation
    • 5. Insurance codes
  • C. Violation of Research Regulations and Guidelines
    • 1. NIH policy and guidelines
    • 2. Federal research regulations
  • D. Discrimination Theory
• V. Recommendations
  • A. Review of Research Studies by Scientific Review Boards and IRBs
    • 1. Scientific reviews
    • 2. Institutional review boards
  • B. Investigators and Health Care Providers
  • C. Public Discourse Concerning Attribute-Based Medicine:The Responsibilities of Investigators, Institutions, and the Media
• Conclusion

Introduction

F.D.A. Approves a Heart Drug for African-Americans. This June 2005 headline announced the arrival of BiDil, a heart failure edication that is approved for African-Americans only. BiDil is the first drug in pharmaceutical history that will constitute standard therapy for only one particular “race.”Health care professionals are becoming increasingly interested in “racebased” medicine in the research and therapeutic contexts. Many researchers are attempting to discern “racial” differences in disease manifestation, biological functioning, and therapeutic response rates. As this approach develops, physicians may prescribe different dosages of medication for people of separate “races” or may provide them with entirely different drugs. In light of the success of BiDil, investigators are also likely to pursue the development of additional “racially-tailored” medications. In fact, several academic and professional conferences have already devoted significant time to the discussion of “race-based” medicine. On April 18, 2005, the University of Minnesota hosted aconference entitled Proposals for the Responsible Use of Racial & Ethnic Categories in Biomedical Research: Where Do We Go From Here? Likewise, the Eighth World Congress on Clinical Pharmacology and Therapeutics, held in 2004 in Brisbane, Australia, devoted an afternoon to ethnopharmacology.While “racial profiling” in medicine has generated significant discussion in medical and bioethics circles, it has thus far gained relatively little attention in legal literature. This Article aims to develop the discourse concerning this important topic. It argues that “race-based” medicine is an inappropriate and perilous approach. The argument is rooted partly in the fact that the concept of “race” is elusive and has no reliable definition in medical science, the social sciences, and the law.  Does “race” mean color, national origin, continent of origin, culture, or something else? What about the millions of Americans who are of mixed ancestral origins—to what “race” do they belong? To the extent that “race” means “color” in colloquial parlance, should physicians decide what testing to conduct or treatment to provide based simply on their visual judgment of the patient’s skin tone? “Race,” consequently, does not constitute a valid and sensible foundation for research or therapeutic decision-making.

Further, this Article contends that “racial profiling” in medicine can be dangerous to public health and welfare. A focus on “race,” whatever its meaning in the physician’s eye, can lead to medical mistakes if the doctor misjudges the patient’s ancestral identity or fails to recall that a particular condition affects several vulnerable groups and not just one “race.” The phenomenon can also lead to stigmatization and discrimination in the workplace and elsewhere if the public perceives certain “races” as more diseased or more difficult to treat than others. In addition, “racial profiling” could exacerbate health disparities by creating opportunities for health professionals to specialize in treating only one “race” or to provide different and inferior treatment to certain minorities. It could also intensify African-Americans’ distrust of the medical profession. Finally, “race-based” medicine might violate numerous anti-discrimination provisions contained in federal law, state law, and federal research regulations and guidelines…

…The Article will proceed as follows. Part I of the Article will describe “race-based” research and therapeutic practices and will examine the growing interest in “race-based” medicine and the reasons for it. Part II will argue that “race” is a concept that has no coherent meaning and that is potentially pernicious. Part III will focus on the dangers of “raciallytailored” medicine, and Part IV will analyze a variety of anti-discrimination mandates that could potentially be violated by the practice. Finally, Part V will detail recommendations for the development of attribute-based medicine in a manner that will promote the health and welfare of all population groups…

…This Article argues against substantial use of the concept of “race” in medical settings. A primary reason for this restriction is that “race” has no coherent meaning, and therefore, reliance upon it for research or treatment purposes can be confusing at best and can lead to significant adverse consequences at worst. This section will build the argument that based on medical science, the social sciences, and the law, “race” has no reliable definition or real meaning. Moreover, it is a pernicious concept that has been used to suggest that human beings can be divided into subspecies, some of which are morally, intellectually, and physically inferior to others. Thus, medical professionals should focus on more precise and meaningful aspects of human identity rather than on the amorphous concept of “race.”…

Read the entire article here.

Identity Notes Part One: Playing in the Light

American University Law Review
Volume 45, Number 3 (February 1996)
pages 695-720

Adrienne D. Davis, Vice Provost; William M. Van Cleve Professor of Law
Washington University in St. Louis

What parts do the invention and development of whiteness play in the construction of what is loosely described as “American”?’

INTRODUCTION

There is now a well-developed and compelling body of scholarship challenging the notion that race is either a natural or a scientific category. Scholarly treatments regarding the social construction of race are still finding their way into law and legal scholarship. Most of these treatments argue that race is socially constructed. This Essay makes a different point. Using two cases from the early and midnineteenth century, I discuss how race is socially constructed, why it matters, and how the process can appear in issues as dry as an allocation of the burden of proof. In particular, I focus on the construction of whiteness, which, I argue, drives the process of legally classifying groups of color.

A focus on the politics of local contests invites an archaeological exploration of historic sites where a black/white paradigm of race was in crisis and vulnerable to correction. In each of these crises, however, the force of the paradigm itself prevailed, reinscribing itself with yet more force in law and the lives of all three groups implicated: African Americans, other groups of color, and whites. An historical assessment of the relationship of other groups of color to a black/white paradigm reveals the paradigm as not only undescriptive and inaccurate, but debilitating for legal analysis, as well as civil rights oriented organizing.

The two cases reveal distinct dynamics of the binary model, which I suggest is hegemonic for the following reasons. A primary mechanism of this model is its disciplining function on other groups of color seeking legal rights and recognition. It is an organizing principle for knowledge (here, law), it has an internal hierarchy of power, it masks this hierarchy through a seemingly neutral shell of “race,” and it operates as self-reinforcing through its disciplining mechanism. In addition, in classicly hegemonic fashion, the paradigm includes rules that prove to be internally inconsistent. The cases reveal the internal contradiction of the rules employed by courts to establish racial identity at law. In one opinion, jurists use mutually exclusive determinations of racial identity in resolving a single legal matter. The underlying facts and interests involved suggest that the court’s reasoning was driven not by the interests of the immediate parties, but rather by a larger, perhaps unconscious, desire to define white identity and secure white liberty interests.

Finally, I hope that the contrast of the two cases demonstrates that the black/white paradigm exercises influence on legal reasoning across time and geographic space, and also that the paradigm itself appears to be a natural ordering, obscuring the assumption of a white subject position. Though involving seemingly unrelated legal conflicts, the cases are linked together through the discursive structure formed by binarism. It orders the legal logic and rhetoric of the judges, as well as the arguments of the litigants. Both cases prove to be inescapably embedded with racial determinations and, inevitably, legal constructions.

What follows stems from a series of discussions, and remains an inquiry directed toward certain suggestive episodes within a much broader history that I leave to others to continue to explore and excavate…

Read the entire article here.