Mixed Race Studies

The Multiracial Category Movement originated in the 1980s when parents of biracial children began to challenge identification criteria on school data forms. By the 1990s, multiracial category advocates had shifted most of their energy to a campaign to secure the addition of a multiracial category on decennial census forms for the year 2000. Their efforts were ultimately unsuccessful. The debate concerning racial categories, however, extends well beyond census classifications.

Although it is difficult to reduce such a controversial and complex topic to a few words, multiracial category proponents appear to believe that the category will: (1) challenge the use of racial categorization by forcing society to acknowledge that race is too fluid to monitor in an increasingly diverse society; (2) promote racial harmony by identifying a group that is capable of bridging the gap between Blacks and Whites; and (3) allow mixed-race persons to self-identify and to acknowledge all aspects of their racial heritages. Although one can understand the appeal of and the potential merit to these claims, proponents fail to engage sufficiently the complex history and present reality of colorism.

The first argument—that a multiracial category will eliminate racial classification altogether and move society beyond racial divisions—is debatable. The adoption of a multiracial category is equally likely to contribute to the proliferation of racial categories rather than to their elimination. Even assuming, arguendo, that a multiracial category will cause society to recognize that race is too fluid to monitor, this claim assumes that along with racial classifications, discrimination will also disappear. But, one event need not follow the other. The fact that racial labels may no longer be handy does not mean that discrimination will disappear. Rather, the virus of discrimination may simply mutate or find another host. Because skin color has been used historically as a basis for subordination in this country, skin color may provide an alternative site. That is, in the future, skin color differences may increasingly perform the role played by racial categories today. In this new social context, multiracial individuals and other persons of color will still be subject to discrimination on the basis of skin color to the extent that their skin is too dark or too light.

The second argument—that a multiracial category will produce an identifiable class of people who will facilitate interracial communications between Blacks and Whites—sounds like a modern-day appeal for a buffer class (a class distinguishable by its lighter skin tone). In the United States, however, buffer classes have not historically acted as catalysts for interracial harmony. Rather, they have served to increase the status of those in the middle (the buffer class) without fundamentally challenging the status quo for those on the top and bottom.1 In Brazil and Latin American countries where buffer classes have existed historically, the same dynamic has occurred. Thus, while tending to improve the lot of some, buffer categories fail to challenge existing racial and color hierarchies. In future discussions, proponents of a multiracial category must come forth with evidence that history will not repeat itself in the current context. In short, they must explain how a multiracial category will avoid simply reinforcing the existing racial and color hierarchy.

The third argument—that a multiracial category will allow mixed-race persons to self-identify and to acknowledge the totality of their racial heritages—is intuitively appealing. It seems that a goal of multiracial category proponents is to challenge the continued application of the one-drop rule (e.g., the notion that a person is Black if she has a trace of blackness in her physical appearance or in her ancestry). Again, this goal seems fair, neutral, and perhaps even laudable. However, as I explain below, an unintended consequence or negative externality of this objective must be considered: mixed-racial heritage and skin color may operate to elevate the status of lighter-skinned multiracial individuals, while doing nothing to alleviate the subordination of those who are darker or to change the idea that Black is undesirable.

Trina Jones, “Shades of Brown: The Law of Skin Color,” Duke Law Journal, Volume 49, Number 6 (April 2000): 1521-1525.

Anti-Miscegenation Laws in the United States

Duke Bar Journal (Duke Law Journal)
Volume 1, Issue 1 (1951)
pages 26-41

James R. Browning (1918-2012)

The word “miscegenation” is not included in the everyday vocabulary of a large part of our citizenry, but there are nonetheless laws in twenty-nine states prohibiting miscegenation. Etymologically, the term means intermarriage of persons of different races; when used in this paper, however, the word has reference to marriage between whites and non-whites.

Without suggesting an opinion on the desirability of anti-miscegenation laws, the writer proposes to sketch the provisions and effects of the present statutes on the subject. Various questions then arise: what is the purpose of such statutes and how effectively are they accomplishing that purpose? Also, what are the legal problems created in applying these laws?…

I. Provisions and Effects of Present Laws

The preceding chart presents a panorama of the statutory law of the twenty-nine states that have taken steps to prevent miscegenation. As one will note, the laws are about as varied as they are numerous; they disclose differing definitions of those in the prohibited class, the emphasis as to persons in this class significantly shifting with the geographical location of the states. All these states prohibit Negro-white marriages. Fourteen states, chiefly west of the Mississippi, forbid intermarriage of white and Mongoloid persons. Three states, Louisiana, North Carolina, and Oklahoma prohibit Negro-Indian intermarriage. Four states forbid Indian-white marriages. Six states consider racial intermarriage with such abhorrence that its prohibition is provided for in their Constitutions.

In contrast to the common law rule that issue of a void marriage are illegitimate, many states have statutes legitimating such issue. However, some legitimation statutes have been interpreted not to apply to children of miscegenous marriages; others, as indicated on the chart, have not been construed as to this point. Although the status of the issue is uncertain in many states, the marriages themselves seem generally to be void ab initio and not merely voidable…

The passing of the frontier, which provided one method of escape for the minority groups, and the ever increasing occasion for social contact in our present mobile society, serve as catalysts to the inter-group reaction and increase the awareness of the fact that some groups have not assimilated in certain areas. The opportunity of assimilation, which in the ultimate sense must include amalgamation, has been extended to Jewish, Italian and other white minorities; but colored groups-Black, Brown, Yellow and to a lesser extent Red-are considered unassimilable, and are denied intermarriage with whites.

The underlying animosity to colored minorities can be partially attributed to a desire in white groups to maintain economic and social advantages. Independent of this desire is a wish to avoid the physical consequences which are thought to flow from racial inter-marriage. Thus, as one court put it in upholding the constitutionality of an antimiscegenation statute:

“The amalgamation of the races is not only unnatural but is always productive of deplorable results.”

…The intimate relationship between the marital institution and the basic welfare of the States has been relied upon to justify close supervision by it of the matrimonial ventures of its domiciliaries. Without speculating as to the physical consequences of racial intermarriage, the writer suggests that the sociological effects upon the offspring must be considered. It may well be argued that the state, as parens patriae, has a privilege to bar marriage which would produce problem progeny. To apply this principle one can consider the situation of the child, of a mixed marriage.

If white and Negro intermarry, any children will normally be shunned by other whites if the child’s parentage is known; and the white parent may not be fully accepted by his child’s colored companions. Thus, a gap may develop in the home. More important, under the state segregation laws in many states the white parent will be barred by law from associating with his child in restaurants, theaters, and other public places. Will not the deprivation of the parent’s full companionship react adversely upon the child? This suggestion emphasizes that regulation of the family must take account of conditions of society with a view to producing normal children…

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Shades of Brown: The Law of Skin Color

Duke Law Journal
Volume 49, Number 6 (April 2000)
pages 1487-1557

Trina Jones, Professor of Law
Duke University

Because antidiscrimination efforts have focused primarily on race, courts have largely ignored discrimination within racial classifications on the basis of skin color. In this Article, Professor Jones brings light to this area by examining the historical and contemporary significance of skin color in the United States. She argues that discrimination based on skin color, or colorism, is a present reality and predicts that this form of discrimination will assume increasing significance in the future as current understandings of race and racial classifications disintegrate. She maintains that the legal system must develop a firm understanding of colorism in order for the quest for equality of opportunity to succeed.

TABLE OF CONTENTS

• INTRODUCTION
• I. DISTINGUISHING RACE AND SKIN COLOR
  • II. COLOR DISTINCTIONS THROUGH THE LENS OF TIME
  • A. Before the Civil War: 1607-1861
  • B. After the Civil War: 1865-2000
  • C. The Social Psychology of Contemporary Black-White Colorism
• III. COLOR IN CONTEMPORARY LAW
  • A. Statutory Support for Color Claims
  • B. Substantive Content of Color Claims
  • C. Race, Color, Mixed Racial Identity and Employment Discrimination Law
  • D. Colorism and the Quest for Equality of Opportunity
• CONCLUSION
• FOOTNOTES

INTRODUCTION

On the Saturday evening following my mother’s recent marriage, old friends and new gathered at a local restaurant to celebrate the occasion. While standing in the buffet line, I turned to introduce my new step-niece, Aaliyah (age 4), to the son of a family friend, LaShaun (age 5). Immediately following the introduction, LaShaun, who is clearly outgoing and charismatic, looked up at me with the innocent honesty of a child and said, “I know another Aaliyah at my school, but she’s brown.”

The first thing LaShaun, whose skin is a rich Michael Jordan chocolate, noticed about Aaliyah was her light golden brown skin. LaShaun did not create or invent these differences. Without deliberate or conscious design, his statement merely reflects the fact that he operates in a social context where people learn early on that color is significant. Although some people may claim that color differences [*pg 1489] within racial groups are without meaning and that people do not notice or care about fine differences in skin pigmentation, the observations of a five-year-old child belie these statements. And so does history.

This Article examines the prejudicial treatment of individuals falling within the same racial group on the basis of skin color in the context of antidiscrimination law. In a 1982 essay, Alice Walker called this prejudicial treatment “colorism.” Although this terminology appears to be relatively new, colorism is not a recent invention. In the United States, this form of discrimination dates back at least as far as the colonial era. Yet, notwithstanding its long existence, colorism is often overshadowed by, or subsumed within, racism. As a result, courts are either unaware of the practice or tend to minimize its importance.  This state of affairs is unfortunate because, as I demonstrate in this Article, color differences are still frequently used as a basis for discrimination independently of racial categorization.

The analysis proceeds in three parts. Part I distinguishes colorism from racism. Because the ultimate result of race-mixing was the creation of tone or hue variations within racial groups, Part II explores the history of miscegenation in this country in order to demonstrate how society has used skin color to demarcate lines between racial groups and to determine the relative position and treatment of individuals within racial categories. This history illuminates contemporary discrimination on the basis of color. Part III examines the judicial response to contemporary claims based on color and explains why courts can and should permit color claims in the context of antidiscrimination law. Part III also investigates the suggestion that racial classification may become increasingly difficult in the future as the acceptability of the one-drop rule declines and as race-mixing increases. Assuming that there is merit to this suggestion, Part III probes whether legal recognition of claims based upon skin color will provide suitable redress for discrimination against persons who are neither visibly White nor visibly Black.

My hope is that this Article will assist in the development of a more nuanced understanding of the intricate ways in which people discriminate in this country. More specifically, by engaging in this investigation, I seek to prevent the law from becoming a source of injustice by showing how progress towards equality of opportunity may be overstated if colorism is ignored. Briefly, in the aftermath of the civil rights movement, employers have hired increasing numbers of Blacks into positions not previously available to them. The increasing number of Blacks in these positions suggests racial progress. Studies show, however, that Blacks in positions of prominence and authority tend to be lighter-skinned. Thus, some employers may be hiring only a subset of the Black population, a subset selected, in part, based on skin color. Because some Blacks are being denied access to employment opportunities due to colorism, the appearance of progress is more limited than we might assume. Legal recognition of color claims is one way to begin redressing this situation.

It is important to note that the analysis contained herein focuses on color dynamics among Black Americans. Although some scholars have criticized the tendency to analyze racial issues in terms of a Black/White dichotomy, I have chosen to concentrate on the Black community in order to limit the magnitude of this project without sacrificing its utility. In addition, this focus allows me to probe more directly the peculiar symbolism of black and white as colors. This symbolism suggests that although colorism is an important element of racism, it is equally its own distinct phenomenon. Finally, although I do not wish to endorse the reduction of race relations to a Black/White paradigm, I have chosen to focus on the dynamics of the racial group with which I am most familiar. I recognize that similar issues concerning skin color exist within Native American, Asian-American, and Latino communities, and believe that issues peculiar to those communities merit detailed study. Although such analysis is beyond the scope of this initial project, I hope this Article will nonetheless be of assistance to scholars in future investigations involving questions specific to other racial groups…

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