Mixed Race Studies

(Re)defining Race: Addressing the Consequences of the Law’s Failure to Define Race

Cardozo Law Review
Volume 38, Number 5 (June 2017)
pages 1817-1877

Destiny Peery, Associate Professor of Law; Associate Professor, Department of Psychology, Weinberg College of Arts and Sciences (Courtesy)
Northwestern University, Evanston, Illinois

Modern lawmakers and courts have consistently avoided discussing how to define race for legal purposes even in areas of law tasked regularly with making decisions that require them. This failure to define what race is in legal contexts specifically requiring such determinations, and in the law more broadly, creates problems for multiple actors in the legal system, from plaintiffs deciding whether to pursue claims of discrimination, lawyers deciding how to argue cases, and legal decision-makers deciding cases where race is not only relevant but often central to the legal question at hand. This Article considers the hesitance to engage with questions of racial definition in law. Drawing on findings from social psychology to demonstrate how race can be defined in multiple ways that may produce different categorizations, this Article argues that the lack of racial definition is problematic because it leaves a space for multiple definitions to operate below the surface, creating not only problematic parallels to a bad legal past but also producing inconsistency. The consequences of this continued ambiguity is illustrated through an ongoing dilemma in Title VII anti-discrimination law, where the courts struggle to interpret race, illustrating the general problems created by the law’s refusal to define race, demonstrating the negative impact on individuals seeking relief and the confusion created as different definitions of race are applied to similar cases, producing different outcomes in similar cases. This Article concludes that definitions of race should be intentionally, rationally selected by lawmakers and/or the courts, creating racial definitions that make sense in the context of the law or policy requiring the use of race, that are tied to the reasons for implicating race in the law, and that are informed by evidence about how racial perception and categorization processes operate.

Table of Contents

• INTRODUCTION
• I. THE COLORBLIND IDEAL AND RACIAL DEFINITIONS
  • A. Historical Colorblindness
  • B. Contemporary Colorblindness
  • C. Colorblindness in a Race-Conscious World
• II. LEGAL DEFINITIONS OF RACE
  • A. Historical Definitions
    • 1. Race Determination Cases
    • 2. Miscegenation Law
    • 3. Race Definition Statutes
  • B. Contemporary (Lack of) Definitions
    • 1. Refusals to Define
    • 2. Legacies of Definitions Past
• III. THE PROBLEM OF AMBIGUITY
  • A. Actual Versus Perceived Race, Ambiguous Plaintiffs, and Title VII
    • 1. Types of Misperceived Plaintiffs
    • 2. “Actual” vs. Perceived Race
  • B. Inconsistency and Confusion for the Courts
  • C. Determining Relevant Racial Definitions for Title VII
• IV. THE PSYCHOLOGY OF RACIAL CATEGORIES
  • A. Social-Cognitive Origins of Race
    • 1. Cognitive Development and Use of Race
    • 2. Social Cognition: Perceptual and Conceptual Processes
      • a. Perceptual Process: Responses to Stimulus Characteristics
      • b. Perceptual Process: Contextual Effects
      • c. Conceptual Process: Use of Racial Labels
      • d. Conceptual Process: Use of Stereotypes and Prejudice
      • e. Interaction of Perceptual and Conceptual Processes
• V. REDEFINING RACE: A NEW DEFINITIONAL FRAMEWORK
• CONCLUSION

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The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them

Cardozo Law Review
Volume 32, Number 3 (2011)
pages 756-791

Nathaniel Persily, Charles Keller Beekman Professor of Law and Professor of Political Science
Columbia Law School

The 2010 Census, like its predecessors, represented a momentous logistical and technological undertaking with far reaching consequences for political representation and allocation of public resources. It also promised to spawn a series of legal controversies over how to count people, what information the government should gather, which individuals truly “count” for purposes of the census, and where they should be counted. This Article explores these present and past controversies surrounding the census. The issues of “sampling” and “statistical adjustment” pervaded much of the legal commentary and case law concerning the census for the past twenty years. The undercount will continue to be a common theme, although given new found ideological opposition to filling out the census form, it is unclear at this stage who is less likely to be counted. The 2010 Census raises new issues of relevance to redistricting claims under the Voting Rights Act, concerning the counting and distribution of data on both the non-citizen and prisoner population. At the same time, recent developments in voting rights law, which place a premium on the size of a minority community, have raised the legal stakes for this census. Despite the technical nature of many census related controversies, one’s position on how, what, whom, and where to count cannot be separated from the larger questions of how easy or difficult it should be for plaintiffs to bring and win civil rights claims, particularly with respect to the redistricting process.

The Framers of the American Constitution viewed the decennial census as providing a certain rhythm to American politics. Every ten years a state’s tax burdens and representation in the House of Representatives would change to reflect its share of the national population as revealed in the “actual enumeration,” the manner of which Congress “shall by law direct.” Much has changed since the first census, but the rhythm still remains. Perhaps unintended and unimagined by the Framers, however, is the rhythmic and ritualistic dance to the courtroom every ten years to argue over the census numbers themselves and the methods used to construct apportionment totals.

Just as its rhythm has remained true to the Framers’ intent, so too the controversies surrounding the census have remained linked to the unique place of the census in the constitutional design. In the Constitution itself, the census is “about” representation, money, and race, so we should not be surprised to learn that courtroom controversies over the census have persisted with respect to these three themes. By tying both representation in the House and taxation to the census, the Constitution provided cross-incentives and an internal political check that might guard against manipulation of the census to overrepresent a state’s population. Today, dickering over the census numbers represents a critical stage in arguments states and localities make for more representation (concerning either apportionment among states of seats in the House of Representatives or within states with respect to redistricting) or for more money (given that funding for many federal and state programs is tied to the census). In addition, just as the first census necessarily had to categorize the population according to race in order to determine which people were “Indians not taxed” or “other persons” subject to the three-fifths rule, so too today the racial categories of the census and the racial implications of census counts become fodder for litigation over representation and funding.

This Article examines the law of the census: specifically, how to count, what to count, whom to count, and where to count them. For the most part this Article draws on my experience and research concerning the use of census data in the redistricting process; however, many of the topics discussed apply to federal funding decisions as well. The Article begins by describing the most recent legal controversies involving census methods, particularly imputation and statistical adjustment. When one thinks of the “law of the census,” these high-profile disputes probably come first to mind. In cases that have arrived at the Supreme Court at the beginning of each of the last three census cycles, undercounted cities and states have argued that census methods were deficient in that the procedures missed some people, double-counted others, or counted people that did not exist.

Second, this Article explores the legal implications of the decisions concerning what to include on the census form, paying particular attention to the topics of race and citizenship. For the second time, the 2010 Census allows respondents to check off more than one race, raising a host of interesting questions concerning the legal implications of alternative methods for categorizing the multiracial population. More significantly for the 2010 Census, the long form, which was previously asked of one sixth of the population, has been replaced by the yearly American Community Survey (ACS), distributed to 2.5% of households. The ACS is the only source for citizenship data from the census, raising questions about the reliability of citizenship estimates for purposes of VRA litigation.

Finally, this Article examines the related issues of who should be included in the census and where they should be counted. The section deals with special populations such as soldiers and other Americans living abroad, college students, the homeless, and prisoners. Prisoners, in particular, present an important case, as some have argued that the wholesale involuntary transfer of convicted criminals away from their communities toward more rural and often whiter areas has allowed for the padding of legislative districts in one part of a state at the expense of districts in other parts of a state. For the first time in 2011, the census will make data available in time for redistricting about the number of prisoners in each census block. Jurisdictions will now be able to subtract out prisoners from the census redistricting data file. Some states have even gone further and have reallocated prisoners to their pre-incarceration address for purposes of redistricting…

…The race question on the 2000 Census was the first to allow respondents to check off more than one race. In 1997, the Office of Management and Budget (OMB) issued “Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity,” a directive that changed the way federal agencies, including the Census Bureau, would categorize people according to race. By moving to a format that allowed respondents to check off any and all of the six principal racial groups on the census, the form effectively created one hundred and twenty six possible combinations of racial and ethnic categories. Although many social scientists worried about the policy implications at the time the OMB and the Census made these decisions, the actual political and legal effects of this change have been minimal. Even so, with each census, the share of the population identifying with more than one racial group will undoubtedly increase. At some point, the confusion caused by the data format, let alone the actual politics of multiracial identity, will present real political and legal challenges.

The first problem to recognize is a logistical one: How does one use the data with its 126 combinations in the process of redistricting? The short answer is that it is not easy unless one reaggregates the data into some more usable format. The OMB therefore promulgated a directive to do just that in the context of civil rights enforcement. The OMB issued Bulletin No. 00-02, which provides the following rules of aggregation:

“Federal agencies will use the following rules to allocate multiple race responses for use in civil rights monitoring and enforcement.

• Responses in the five single race categories are not allocated.
• Responses that combine one minority race and white are allocated to the minority race.
• Response that include two or more minority races are allocated as follows:
  • If the enforcement action is in response to a complaint, allocate to the race that the complainant alleges the discrimination was based on.
  • If the enforcement action requires assessing disparate impact or discriminatory patterns, analyze the patterns based on alternative allocations to each of the minority groups.”

The OMB approach maximizes the numbers for racial minority groups by recategorizing some multiracial respondents as some category other than white. Critics of the OMB guidelines have therefore described them as a modern version of the “One Drop Rule”—the Jim Crow-era law where one drop of black blood made someone black. Defenders, however, would point out that the reaggregation rules merely create a presumption for purposes of civil rights enforcement. That presumption places the data in the light most favorable for the civil rights plaintiff (usually non-white). The reaggregation rules, while smacking of the same racial essentialism that often follows from any categorization scheme, simply try to provide rules of thumb that prevent such plaintiffs from being disadvantaged by the new census format…

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