Mixed Race Studies

While advocates in the multiracial movement never explicitly indicate distaste for the minority that constitutes part of a mixed race individual, the insistence on the development of a new racial designation inadvertently associates this minority with inferiority. African-American studies professor Jared Sexton argues that the implicit rejection of the black race in multiracial discourse is due to the fact that the multiracial movement casts the black race as the reason for the woes of the multiracial ethnicity.¹⁷⁹ To compensate for these woes, the black race must be rejected and replaced with the multiracial ethnicity. Recognizing the negativity of the black race, and creating distance between black and multiracial alienates the marginalized minority.¹⁸⁰ As Sexton argues, the multiracial movement draws a line between black and multiracial, and allows privileges to one group over the other, similar to what occurred in Bacon’s Rebellion.¹⁸¹ By abandoning the black race rather than incorporating the struggle of blacks into the movement for respect for and recognition of mixed race individuals, self-identified multiracials position themselves parallel to the Irish who similarly excluded blacks from their struggle for labor rights.¹⁸²

Alynia Phillips, “The Multiracial Option: A Step in the White Direction,” California Law Review, Volume 105, Issue 6 (2018), 1875-1876. https://dx.doi.org/10.15779/Z38H98ZD1S.

The Multiracial Option: A Step in the White Direction

California Law Review
Volume 105, Issue 6 (2018)
pages 1853-1878
DOI: 10.15779/Z38H98ZD1S

Alynia Phillips

It is estimated that within fifty years, the white race will lose its stronghold as the majority racial group in the United States. In recent years, this prediction has induced anxiety in everyone from lay citizens to conservative politicians. But this prediction may not come to fruition if the definition of whiteness expands as needed. Parallel to this mounting racial anxiety runs a social movement aimed at promoting the classification of mixed race individuals as “multiracial.” Though on its face this classification appears harmless, the reliance on “multiracial” indicates an implicit deracialization of mixed race individuals, and a tacit devaluation of minority heritage. This Note argues that based on the history of racial classifications in the United States and existing motivations to maintain the white majority, the push for a multiracial category functions as a means by which mixed race individuals can join the ranks of whiteness. With mixed race individuals comprising the fastest growing population in the United States, their acceptance into the white race could secure the white majority for decades to come.

Contents

• Introduction
• I. Relevant Terminology Explained
• II. Unmasking the Players in Today’s Multiracial Movement
  • A.  White Mothers as Racial Ventriloquists
  • B.  Republicans as Multiracial Crusaders
• III. An Evolutionary History of White America
  • A.  Bacon’s Rebellion and the Invention of Whiteness
  • B.  Conceptual Frameworks for American Assimilation
  • C.  Subscribing to Superiority
• IV. Multiracial Exceptionalism and the “Other” Within
• Conclusion

Read the entire article here.

The most unique disadvantage of formal identities, relative to ascriptive and elective ones, is that they are confounded by dynamic identities: identities that change over time or depend on context. Formalities leave documentary traces that “inhibit forgetting.” The idea that a past formality might estop an individual from claiming a different identity is based on an understanding of identity as impervious to change or reformulation depending on context. But people do not always experience identity in this static and acontextual way. Researchers have found that many multiracial individuals change their racial identifications in different situations and over their lifetimes. For example, consider a multiracial woman who is only willing to identify as such if she believes her employer’s diversity program is genuine as opposed to tokenizing. The effects can be passed down through the generations, as one whose ancestors did not sign the Dawes Rolls may not have a claim to tribal membership. Or a person whose parents brought her to the United States without pursuing immigration formalities may find herself estopped from claiming U.S. citizenship. This estoppel problem is a growing risk as technology facilitates better collection and retention of records.

Jessica A. Clarke, “Identity and Form,” California Law Review, Volume 103, Number 4 (August 2015), 882. http://www.californialawreview.org/1identity_form/.

Identity and Form

California Law Review
Volume 103, Number 4 (August 2015)
pages 747-838

Jessica A. Clarke, Associate Professor of Law
University of Minnesota

Recent controversies over identity claims have prompted questions about who should qualify for affirmative action, who counts as family, who is a man or a woman, and who is entitled to the benefits of U.S. citizenship. Commentators across the political spectrum have made calls to settle these debates with evidence of official designations on birth certificates, application forms, or other records. This move toward formalities seeks to transcend the usual divide between those who believe identities should be determined based on objective biological or social standards, and those who believe identities are a matter of individual choice. Yet legal scholars have often overlooked the role of formalities in identity determination doctrines. This Article identifies and describes the phenomenon of “formal identity,” in which the law recognizes those identities individuals claim for themselves by executing formalities. Drawing on Lon Fuller’s classic work on the benefits of formality in commercial law contexts, it offers a theory explaining the appeal of formal identity. But it concludes that reformers should be skeptical of the concept. Formal identity may set traps for the unwary, eliminate space for subversive or marginal identities, and legitimize identity-based systems of inequality. Ultimately, this Article urges critical examination not merely of formal identity, but of the functions identity categories serve in the law.

• Introduction
• I. Models of Identity
  • A. Ascriptive Identity
  • B. Elective Identity
  • C. Formal Identity
• II. Functions of Formal Identity
  • A. Formal Citizenship
  • B. Formal Family
  • C. Formal Sex
  • D. Formal Race
• III. Dysfunctions of Formal Identity
  • A. Commodification
  • B. Bureaucratization
  • C. Discrimination
  • D. Pigeonholing
  • E. Legitimation
• IV. Rethinking the Legal Functions of Identities
  • A. Questioning Channels
  • B. Inducing Proportionate Caution
  • C. Assessing the Role of Evidence
• Conclusion

Read the entire article here.

To date, the multiracial movement has helped make great strides for multiracial individuals striving to define their own racial identity and made valuable contributions to a broader conversation about how we might reconceive of race and its role in society. It has also presented a danger—in the hands of those who would use it for specific political ends—of undermining other important movements. Here, I suggest that while the ability to define one’s own identity and adoption of a more fluid understanding of race are positive developments and should be embraced or at least explored, we should be wary of immediately reconfiguring legal doctrine in response. And while the debate of how and whether racial classifications can be used by the state will rage on post-Fisher, we should protect identity from being used as a tool to advocate for any doctrinal approach. Issues of racial identity need not necessarily be perceived as incompatible with the goals of the civil rights movement. A more cautious approach would divorce the quest for identity from the use of racial classifications, allowing for individuals to define their own racial identity, but also for the state to act, when deemed appropriate, based on a broader view of racial dynamics. While a post-racial world may be the ideal for some, for now, it is also aspirational; to ignore current realities in favor of future hopes may disguise regression as progress.

Lauren Sudeall Lucas, “Undoing Race? Reconciling Multiracial Identity with Equal Protection,” California Law Review, (Volume 102, Number 5 October 2014), 1302. http://www.californialawreview.org/6undoing-race-reconciling-multiracial-identity-with-equal-protection/.

Undoing Race? Reconciling Multiracial Identity with Equal Protection

Lauren Sudeall Lucas, Assistant Professor of Law
Georgia State University College of Law

California Law Review
Volume 102, Number 5 (October 2014)
pages 1243-1302

The number of multiracial individuals in America, many of whom define their racial identity in different ways, has grown dramatically in recent years and continues to increase. From this demographic shift a movement seeking unique racial status for multiracial individuals has emerged. The multiracial movement is distinguishable from other race-based movements in that it is primarily driven by identity rather than the quest for political, social, or economic equality. It is not clear how equal protection doctrine, which is concerned primarily with state-created racial classifications, will or should accommodate multiracialism. Nor is it clear how to best reconcile the recognition of individual identity with the continuing need to address group-based racial discrimination and subordination. In this Essay, I explore the potential impact of multiracialism-and multiracial identity in particular-on the future of racial classifications under equal protection doctrine.

As a framework for its analysis, the Essay invokes two theories used to interpret the meaning of equal protection: antisubordination and anticlassification. Viewed solely through the lens of multiracial identity, the common normative understanding of these two approaches contorts. While antisubordination is often perceived as more beneficial for groups battling entrenched racial hierarchy, it may facilitate unique harms for multiracial individuals seeking to carve out a racial identity distinct from traditionally defined racial categories. And although anticlassification is often viewed by progressives as detrimental to the pursuit of true racial equality, it may lend more support to policies of racial self-identification and the recognition of a unique multiracial identity. A looming danger, therefore, is that anticlassification advocates wishing to dismantle frameworks rooted in traditional notions of race may exploit multiracialism to “undo” race and to undermine the use of racial classifications altogether.

In response to that possibility, this Essay argues that although law and identity inevitably inform and impact one another, they also serve distinct purposes that should not be improperly conflated in the context of multiracialism. The construction of identity is ultimately a very personal endeavor, and although legal recognition may be one aspect of identity, in the area of race, the law has a more powerful function to play in preventing racial subordination. Where possible, the law should accommodate multiracial individuals who wish to define their own racial identity, but as long as it remains more aspirational than realistic, the individual’s perception of race should not be used or manipulated to undermine the use of racial classifications to counter societal race discrimination.

• Introduction
  • I. Multiracialism and Multiracial Identity
    • A. Historical Treatment of Multiracialism
    • B. The Emergence of Multiracial Identity
      • 1. The Numbers: Measuring Multiracials
      • 2. The Multiracial Movement
    • C. The Nature of Multiracial Identity
    • D. Consequences of Identity
  • II. Equal Protection and Multiracial Identity
    • A. The Meaning of Equal Protection: Anticlassification and Antisubordination
    • B. Viewing Equal Protection Through the Multiracial Identity Lens
  • III. Reconciliation: Undoing Race?
    • A. The Temptation Toward Anticlassification
    • B. Untangling Identity from Doctrine
• Conclusion

Read the entire article here.

Equality Trouble: Sameness and Difference in Twentieth-Century Race Law

California Law Review
Volume 88, Issue 6 (2000)
pages 1923-2015

Angela P. Harris, Professor of Law
University of California, Davis

In this Essay, Professor Harris suggests that “race law” consists not only of antidiscrimination law, but law pertaining to the formation, recognition, and maintenance of racial groups, as well as the law regulating the relationships among these groups. Harris argues that a constant tension in the story of race law in the past century has been the effort to reconcile constitutional and statutory norms of equality with the desire for white dominance. In the first part of the century, it was assumed that the fact of racial difference required management through sound public policy; in the second part of the century, race gradually became understood as an arbitrary distinction that the law should ignore. Neither treating race as difference nor as sameness, however, has succeeded in accomplishing racial justice.

Read the entire article here.

Administering Identity: The Determination of Race in Race-Conscious Law

California Law Review
Volume 82, Issue 5 (1994)
pages 1231-1285

Christopher A. Ford

Modern American anti-discrimination law seeks to remedy the effects of racial and ethnic prejudice by ensuring equality in areas such as political access and employment opportunity. In this effort, the concept of race is central both to identifying and to rectifying the effects of prejudice. Various economic and social benefits, for example, are awarded based upon injuries and solutions defined with reference to racial categories. Race and ethnicity, however, are today recognized as being largely social constructs with little empirical or scientific basis. This dichotomy between the importance of race classification to anti-discrimination law and its fundamental indeterminacy creates what the author calls a core dilemma of modem race-conscious law: the difficulties of how we “administer race.” He explores two related questions bearing on this dilemma. How should the law-indeed, can the law-intelligibly define the nature and boundaries of the groups to whom remedial preferences are addressed? Furthermore, can the law “accurately” sort individuals into these groups once they have been defined? The author explores the approaches several different group conscious programs and legal regimes have taken in attempting to deal with these questions, from methods employed in sex and Native American classification to the systems of classification used in the Jim Crow South, in modem India and in South Africa during the apartheid era.

Read the entire article here.

The Black/White Binary Paradigm of Race: The Normal Science of American Racial Thought

California Law Review
Volume 85, Issue 5 (1997)
pages 1213-1258

Juan F. Perea, Cone, Wagner, Nugent, Johnson, Hazouri & Roth Professor of Law
University of Florida

This Article is about how we are taught to think about race. In particular, I intend to analyze the role of books and texts on race in structuring our racial discourse. I believe that much writing on racism is structured by a paradigm that is widely held but rarely recognized for what it is and what it does. This paradigm shapes our understanding of what race and racism mean and the nature of our discussions about race. It is crucial, therefore, to identify and describe this paradigm and to demonstrate how it binds and organizes racial discourse, limiting both the scope and the range of legitimate viewpoints in that discourse.

In this Article, I identify and criticize one of the most salient features of past and current discourse about race in the United States, the Black/White binary paradigm of race. A small but growing number of writers have recognized the paradigm and its limiting effect on racial discourse. I believe that its dominant and pervasive character has not been well established nor discussed in legal literature.

I intend to demonstrate the existence of a Black/White paradigm and to show its breadth and seemingly pervasive ordering of racial discourse and legitimacy. Further, I intend to show how the Black/White binary paradigm operates to exclude Latinos/as from full membership and participation in racial discourse, and how that exclusion serves to perpetuate not only the paradigm itself but also negative stereotypes of Latinos/as. Full membership in society for Latinos/as will require a paradigm shift away from the binary paradigm and towards a new and evolving understanding of race and race relations.

This Article illustrates the kind of contribution to critical theory that the emergent Latino Critical Race Studies (LatCrit) movement may make. This movement is a continuing scholarly effort, undertaken by Latino/a scholars and other sympathetic scholars, to examine critically existing structures of racial thought and to identify how these structures perpetuate the subordinated position of Latinos/as in particular. LatCrit studies are, then, an extension and development of critical race theory (and critical theory generally) that focus on the previously neglected areas of Latino/a identity and history and the role of racism as it affects Latinos/as.

I identify strongly, and self-consciously, as a Latino writer and thinker. It is precisely my position as a Latino outsider, neither Black nor White, that makes possible the observation and critique presented in this Article. My critique of the Black/White binary paradigm of race shows this commonly held binary understanding of race to be one of the major impediments to learning about and understanding Latinos/as and their history. As I shall show, the paradigm also creates significant distortions in the way people learn to view Latinos/as.

I begin with a review of the principal scientific theory that describes the nature of paradigms and the power they exert over the formation of  knowledge. I then analyze important, nationally recognized books on race to reveal the binary paradigm of race and the way it structures race thinking. After reviewing these popular and scholarly books on race, I analyze a leading casebook on constitutional law. Like other books, textbooks on constitutional law are shaped by the paradigm and reproduce it. Then, by describing some of the legal struggles Latinos/as have waged, I will demonstrate that paradigmatic presentations of race and struggles for equality have caused significant omissions with undesirable repercussions. Thus, I demonstrate the important role that legal history can play in both correcting and amplifying the Black/White binary paradigm of race…

…In his chapter on “Malcolm X and Black Rage” [Cornel] West describes Malcolm X’s fear of cultural hybridity, the blurring of racial boundaries that occurs because of racial mixture. Malcolm X saw such hybridity, exemplified by mulattoes, as “symbols of  weakness and confusion.” West’s commentary on Malcolm X’s views gives us another statement of the binary paradigm: “The very idea of not ‘fitting in’ the U.S. discourse of positively valued whiteness and negatively debased blackness meant one was subject to exclusion and marginalization by whites and blacks.” Although the context of this quotation is about Black/White mulattoes, West’s observation is crucial to an understanding of why Latinos/as, neither claiming to be, nor being, White or Black, are perpetually excluded and marginalized. The reified binary structure of discourse on race leaves no room for people of color who do not fit the rigid Black and White boxes supplied by the paradigm. Furthermore, most Latinos/as are mixed race mestizos or mulattoes, who therefore embody the kind of racial mixture that Malcolm X, and, I would argue, society generally tends to reject. West’s observation about mixed-race people who do not fit within traditional U.S. discourse about race applies in full measure to Latinos/as…

Read the entire article here.

“Teachable Moments”: The Use of Child-Centered Arguments in the Same-Sex Marriage Debate

California Law Review
Volume 98, Issue 1 (February 2010)
pages 121-158

Ruth Butterfield Isaacson, Associate
Leland, Parachini, Steinberg, Matzger & Melnick LLP, San Francisco

Child-centered arguments have played a central role in debates over expanding marriage rights throughout history. Opponents of interracial marriage argued in Loving v. Virginia that “mixed race” children from interracial households were physically and psychologically inferior and suffered from social stigmatization. Over forty years later, child-centered arguments again took center stage in the debate over same-sex marriage. The arguments initially focused on the harms to children raised by same-sex parents—specifically, that such children suffer from stunted development and social alienation. Over the years, these arguments gradually morphed into claims that same-sex marriage harms all children, because the prevalence of same-sex marriage in society and its integration in school curriculum confuses children about gender roles and the “true” meaning of marriage. Tracing the evolution of child-centered arguments from Loving through the recent battle for same-sex marriage in California’s November 2008 election on Proposition 8 offers valuable lessons to same-sex marriage advocates about the propriety and consequences of using child-centered arguments in defining the marriage rights of adults.

INTRODUCTION

It really is what we call a teachable moment.
—Interim Director of the Creative Arts Charter School in San Francisco, describing a first-grade field trip to City Hall to watch a lesbian wedding.

On Friday, October 10, 2008, a group of first-grade children from the Creative Arts Charter School in San Francisco took a field trip to City Hall. The children’s first-grade teacher, a lesbian, was set to marry her longtime girlfriend that morning. The director of the charter school saw the wedding as a “teachable moment”—an opportunity for the children to witness firsthand the progression of civil rights in America.

Many same-sex marriage advocates heralded the first graders’ excursion as another step toward the full acceptance and integration of same-sex individuals in society. But other supporters worried that the field trip, while well intentioned, was ill timed and potentially damaging to the same-sex marriage cause. At that time, the debate over same-sex marriage had reached a significant crossroads. Earlier that year, the California Supreme Court issued a landmark decision declaring that a same-sex marriage ban violated both the due process and equal protection provisions of the California Constitution. Opponents of same-sex marriage responded quickly and forcefully with Proposition 8, a ballot initiative to amend the California Constitution to define marriage solely as a union between a man and a woman. On the day of the field trip, polls on Proposition 8 showed close to a dead heat on the issue. Many same-sex marriage advocates feared that the “teachable moment” played directly into the hands of their opponents, giving them new leverage that could ultimately shift momentum in favor of Proposition 8.

Not surprisingly, just one week later, the field trip became the target of new television advertisements supporting Proposition 8. The leading organization behind the Proposition 8 campaign, ProtectMarriage.com, had cautioned for months that state recognition of same-sex marriage would, among other things, force public schools to include teaching same-sex marriage in their curriculum. In their view, the field trip was concrete and visible evidence that their fears had been realized. Playing on those fears, their ad took advantage of news footage of the wedding, particularly footage of a first-grade girl who appeared sad, and almost confused, by her teacher’s lesbian wedding. This lasting image was paired with the warning that “children will be taught about gay marriage unless we vote yes on Proposition 8.” The ad first aired on October 28, 2008; Proposition 8 passed by a 52-48 margin exactly one week later on November 4, 2008.

Appeals to child welfare are neither new nor exclusive to the same-sex marriage debate. Such appeals have also been raised in other family law disputes, most notably the fight for interracial marriage during the era of Loving v. Virginia, the United States Supreme Court decision striking down Virginia’s ban on interracial marriage. Opponents of interracial marriage claimed that the “mixed-race” children produced by interracial couples were biologically inferior, suffered abnormal social and psychological development, and endured stigmatization by their peers. Similarly, opponents of same-sex marriage have wielded such claims for almost two decades, although the substance of their child-based fears has evolved. Like the early arguments used by interracial marriage opponents, the first child-centered arguments in the same-sex marriage debate focused on the harms to children raised by same-sex parents—specifically, that such children suffer stunted social and psychological development and face stigmatization by their peers. Over the years, these concerns gradually morphed into fears about how same-sex marriage harms all children, because the increasing prevalence of same-sex marriage in society and its integration into school curricula confuse children about gender roles and the true meaning of marriage.

This Comment examines modern views of marriage and how child-centered appeals have influenced the discourse on expanding marital rights, particularly within the context of Loving v. Virginia, Goodridge v. Dep’t of Public Health, Hernandez v. Robles, In re Marriage Cases, the battle over Proposition 8 in California, and supporting case law and legislation. These sources evince an evolution in judicial conceptions of marriage and the childbased arguments that have been used to expand or constrict such conceptions, from anxiety over “mixed-race” children during the fight for interracial marriage to concerns in the same-sex marriage debate about the psycho-social well-being of children raised by same-sex parents and, ultimately, the effects of same-sex marriage on public school curricula. The Comment concludes with an analysis of modern marriage as defined by courts and society today, the intersection of Proposition 8’s success with contemporary marital attitudes, and the role of the judiciary in the fate of same-sex marriage…

…In defending its ban on interracial marriage, Virginia appealed to many of the same child-centered arguments that motivated the enactment of the ban 276 years earlier. In its brief to the Supreme Court, Virginia declared that states have an interest in preserving the “purity of the races and in preventing the propagation of half-breed children.” Acknowledging the reality of persistent racism, Virginia claimed its interest in keeping the races “pure” stemmed not from the repulsion interracial children invoke in society, but rather from the idea that interracial children were seen as outcasts and would be “burdened . . . with ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’” Virginia also emphasized the socioscientific consequences to interracial children, including the domination of racial inferiorities within children of mixed race and the social tension that it claimed was created when races of different socioeconomic backgrounds formed a family. Interracial couples also experienced higher divorce rates, Virginia argued, which would have negative effects on the (interracial) children produced by and raised within these families…

Read the entire article here.