Mixed Race Studies

Reflection: How Multiracial Lives Matter 50 Years After Loving

Creighton Law Review
Volume 50, Number 3 (2017)
pages 718-724

Lauren Sudeall Lucas, Associate Professor of Law
Georgia State University

Black Lives Matter. All Lives Matter. These two statements are both true, but connote very different sentiments in our current political reality. To further complicate matters, in this short reflection piece, I query how multiracial lives matter in the context of this heated social and political discussion about race. As a multiracial person committed to racial justice and sympathetic both to those pushing for recognition of multiracial identity and to those who worry such recognition may undermine larger movements, these are questions I have long grappled with both professionally and personally. Of course, multiracial lives matter—but do they constitute a sub-agenda of the Black Lives Matter movement, or is there an independent agenda the moniker “Multiracial Lives Matter” might represent? If the latter, is there a danger that such an agenda might be co-opted by other forces and used to further unintended purposes, such as the advancement of colorblindness? To the extent that agenda demands unique recognition of multiracial identity, how can it co-exist with broader identity-based racial justice movements?…

Read the entire article here.

Identity as Proxy

Columbia Law Review
Volume 115, Number 6 (October 2015)
pages 1605-1674

Lauren Sudeall Lucas, Assistant Professor of Law
Georgia State University

As presently constructed, equal protection doctrine is an identity-based jurisprudence, meaning that the level of scrutiny applied to an alleged act of discrimination turns on the identity category at issue. In that sense, equal protection relies on identity as a proxy, standing in to signify the types of discrimination we find most troubling.

Equal protection’s current use of identity as proxy leads to a number of problems, including difficulties in defining identity categories; the tendency to privilege a dominant-identity narrative; failure to distinguish among the experiences of subgroups within larger identity categories; and psychological and emotional harm that can result from being forced to identify in a particular way to lay claim to legal protection. Moreover, because the Court’s identity-as-proxy jurisprudence relies on superficial notions of identity to fulfill a substantive commitment to equality, it is susceptible to co-option by majority groups.

This Essay aims to engage readers in a thought experiment, to envision what equal protection doctrine might look like if it were structured to reflect the values identity is intended to serve without explicitly invoking identity categories as a way to delineate permissible and impermissible forms of discrimination. In doing so, it aims to incorporate directly into equal protection jurisprudence the notion that identities like race and gender are not merely a collection of individual traits, but the product of structural forces that create and maintain subordination. Under the “value-based” approach proposed herein, the primary concern of equal protection is not to eliminate differential treatment, but instead to deconstruct status hierarchies. Therefore, rather than applying heightened scrutiny to government actions based on race or gender, it applies heightened scrutiny to government actions that have the effect of perpetuating or exacerbating a history of discrimination or that frustrate access to the political process.

The clearest impact of such a model would be in the context of affirmative action, where a majority plaintiff could no longer simply claim discrimination on the basis of race. Yet, the potential of a value-based model extends to other contexts as well—for example, challenges to voter identification laws, in which political exclusion would displace discriminatory intent and disparate impact as the relevant measure for analysis; and the treatment of pregnant women, in which discrimination on the basis of pregnancy would no longer have to align with gender to receive heightened scrutiny.

This shift has several advantages: It allows the law to make important distinctions between groups and within groups; it alleviates the need for comparative treatment and solutions that favor taking from all over giving to some; it is less likely to generate identity-based harms; it is fact-driven rather than identity-driven and thus better suited to the judicial function; and it serves an important rhetorical function by changing the nature of rights discourse.

Read the entire essay here.

Here’s why Equal Protection may not protect everyone equally

The Washington Post
2015-09-23

Lauren Sudeall Lucas, Assistant Professor of Law
Georgia State University

Intersectionality is the acknowledgment that different forms of identity-based discrimination can combine to give rise to unique brands of injustice. For example, although women may generally face certain challenges in the workplace — unequal pay and the “motherhood penalty” are common — women of color may face different obstacles, including a bigger wage gap and the perception that they are too aggressive.

The Equal Protection Clause is the primary constitutional tool for addressing claims of identity-based discrimination. Finding out whether an incident of discrimination is legal typically begins with identifying the identity category — such as race or gender — on which the alleged discrimination is based. Depending on the category invoked, courts will apply varying levels of analysis to the claim, making it easier or harder for those accused of discrimination to defend their policies.

But for those who face discrimination at the intersection of multiple identity categories, it is not immediately clear how a court should respond. If someone claims that she has been denied the equal protection of the law because she is a black woman, should the alleged discrimination be examined with strict scrutiny, the most stringent standard of review in the court system, which is applied to classifications based on race? Or should it be treated with intermediate scrutiny, the lesser standard typically applied to gender classifications?…

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.

Join the Greatest Minds Society of Georgia State University for a Discussion on Racial Identity with Playwright Fanshen Cox DiGiovanni of “One Drop of Love“

Georgia State University Speaker’s Auditorium
44 Courtland Street, SE
Atlanta, Georgia 30303
Thursday, 2014-09-18, 13:30-15:30 EDT (Local Time)

Who are you? What’s your identity? Where do you come from? What’s your story? What’s your history?

Fanshen Cox DiGiovanni, Award-Winning Actress, Producer and Educator
“One Drop of Love”

Ashley Uzamere, Undergraduate Student, EVP
Student Goverment Association

George R. Greenidge, Jr., Ph.D. Student
Department of Sociology
President, Greatest Minds Society

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

Kyael Moss, Undergraduate Student, Student Senator
Student Goverment Association

Laschonda Pituk, Undergraduate Student
Member, Greatest Minds Society