Mixed Race Studies

How Fluid Is Racial Identity?

Room for Debate
The New York Times
2015-06-17

Heidi W. Durrow, Novelist

Amanda Kay Erekson, President
MAVIN

Angela Onwuachi-Willig, Charles M. and Marion J. Kierscht Professor of Law
University of Iowa

Nancy Leong, Associate Professor of Law
University of Denver

Mark Hugo Lopez, Director of Hispanic Research
Pew Research Center

Kevin Noble Maillard, Professor of Law
Syracuse University

It’s been a busy month for exploring boundaries of identity. Should Emma Stone play an Asian character in the movie “Hawaii?” Is Caitlyn Jenner a “real” woman? Did Rachel Dolezal commit racial fraud? The chatter accompanying these examples underscores a fundamental suspicion of personal ambiguity.

Meanwhile, multiracial couplings and births are at an all time high. People may view themselves as multiracial, monoracial or they change their identity over time. How fluid is racial identity, and where will we be in 50 years?

Read the discussion here.

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.

Identity Entrepreneurs

2015-03-05
87 pages

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

In my previous article Racial Capitalism, I examined the ways in which white individuals and predominantly white institutions derive value from non-white racial identity. This process results in part from our intense social and legal preoccupation with diversity. And it results in the commodification of non-white racial identity, with negative implications for both individuals and society.

This Article picks up where Racial Capitalism left off in three ways. As a foundation, it first expands the concept of racial capitalism to identity categories more generally, explaining that individual in-group members and predominantly in-group institutions—usually individuals or institutions that are white, male, straight, wealthy, and so on—can and do derive value from out-group identities.

Second, the Article turns from the overarching system of identity capitalism to the myriad ways that individual out-group members actively participate in that system. In particular, I examine how out-group members leverage their out-group status to derive social and economic value for themselves. I call such out-group participants identity entrepreneurs. Identity entrepreneurship is neither inherently good nor inherently bad. Rather, it is a complicated phenomenon with both positive and negative consequences.

Finally, the Article considers the appropriate response to identity entrepreneurship. We should design laws and policies to maximize both individual agency and access to information for out-group members. Such reforms would protect individual choice while making clear the consequences of identity entrepreneurship both for individual identity entrepreneurs and for the out-group as a whole. A range of legal doctrines interact with and influence identity entrepreneurship, including employment discrimination under Title VII, rights of privacy and publicity, and intellectual property. Modifying these doctrines to take account of identity entrepreneurship will further progress toward an egalitarian society in which in-group and out-group identities are valued equally.

Read the entire paper here.

Fake Diversity and Racial Capitalism

Medium
2014-11-23

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

For decades now, it’s been fashionable for institutions of all kinds to showcase their racially diverse constituencies. This is true even when the institution in question has been sued for discrimination on the basis of race, gender, or other protected categories:…

…But behind the smiling, diverse faces, many institutions also share a dirty little secret. A lot of the diversity is the result not of the institution’s inclusive practices when it comes to recruiting, hiring, admitting or whatever other word is appropriate. Rather, it’s the result of Photoshop…

…How can we explain this impulse to overstate diversity, either through Photoshop or through aggressive presentation of diversity? I examined this phenomenon in a 2013 article in the Harvard Law Review called “Racial Capitalism.” What I call racial capitalism is the process of an individual or group deriving value from the racial identity of another person. While in theory any group might derive value from the racial identity of another, in practice, since white people are historically and presently a majority in America, racial capitalism most often involves a white person or a predominantly white institution extracting value from non-white racial identity.

Racial capitalism explains why white people are so keen to tell you about their black friends. It explains why white people are so anxious to tell you about the diverse neighborhood they live in. And, more generally, it explains why people have a powerful incentive to display their affiliation with non-white people…

Read the entire article here.

Racial Capitalism

Harvard Law Review
Volume 126, Number 8 (June 2013)
pages 2151-2226

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

Racial capitalism—the process of deriving social and economic value from racial identity—is a longstanding, common, and deeply problematic practice. This Article is the first to identify racial capitalism as a systemic phenomenon and to undertake a close examination of its causes and consequences.

The Article focuses on instances of racial capitalism in which white individuals and predominantly white institutions use non-white people to acquire social and economic value. Our affirmative action doctrine provides much of the impetus for this form of racial capitalism. That doctrine has fueled an intense legal and social preoccupation with the notion of diversity, which encourages white individuals and predominantly white institutions to engage in racial capitalism by using non-white people to acquire social and economic value. An examination of these consequences is particularly timely given the Supreme Court’s recent grant of certiorari in Fisher v. University of Texas.

Racial capitalism has serious negative consequences both for individuals and for society as a whole. The process of racial capitalism requires commodification of racial identity, which degrades that identity by reducing it to another thing to be bought and sold. Commodification also fosters racial resentment by causing non-white people to feel used or exploited by white people. And the superficial value assigned to non-whiteness within a system of racial capitalism displaces measures that would lead to meaningful social reform.

In an ideal society, commodification of racial identity would not occur. Given the imperfections of our current society, however, the Article instead proposes a pragmatic approach of reactive commodification. Under this approach, we would discourage commodification of race. But if commodification did occur, we would identify it as commodification, call attention to its harms, and ensure that non-white individuals received compensation for the value derived from their racial identity. This approach would ultimately allow progress toward a society in which we successfully recognize and respect racial identity without engaging in racial capitalism.

TABLE OF CONTENTS

• INTRODUCTION
• I. Valuing Race
  • A. Whiteness as Property
  • B. Diversity as Revaluation
  • C. The Worth of Non-Whiteness
• II. A Theory of Racial Capital
  • A. Race as Marxian Capital
  • B. Race as Social Capital
  • C. Racial Capital
• III. Critiquing Racial Capitalism
  • A. Commodification
  • B. Individual Harms
    • 1. Fractured Identity
    • 2. Performance Demands
    • 3. Economic Disadvantage
  • C. Social Harms
    • 1. Impoverished Discourse
    • 2. Racial Resentment
    • 3. Displaced Reform
• IV. A Way Forward
• CONCLUSION

…This Article is the first to identify racial capitalism as a systemic phenomenon and the first to describe the way that non-whiteness, in particular, is capitalized. Of course, assigning value to race is nothing new for America. Whiteness has been a source of value throughout our history, conferring power and privilege on the possessor. Courts have recognized the value of whiteness—for example, they have held that calling a white person “black” constitutes defamation and therefore qualifies for legal redress. Litigants have also acknowledged the value of whiteness—for example, in Plessy v. Ferguson, Homer Plessy referred to his racial identity as the “most valuable sort of property.” And scholars have examined the value of whiteness—for example, Cheryl Harris’ acclaimed work Whiteness as Property posits that whiteness is a kind of “status property” that can be both analogized to conventional forms of property and literally converted to those forms…

Read the entire article here.

Antidiscrimination Law and the Multiracial Experience: A Reply to Nancy Leong

Hastings Race and Poverty Law Journal
Volume 10, Summer 2013
pages 191-218

Tina F. Botts, Assistant Professor of Philosophy, Pre-law Advisor
University of North Carolina at Charlotte

Nancy Leong’s thesis, in “Judicial Erasure of Mixed-Race Discrimination,” is that antidiscrimination law should make a switch from defining race “categorically” to defining it in terms of the perception of the would-be discriminator so as to better accommodate claims of multiracial discrimination and so as to better achieve what Leong sees as the goals of antidiscrimination law, i.e., the promotion of racial understanding, and the elimination of racism and racial discrimination. But, while Leong’s goals are admirable, the method she proposes for achieving these goals will not succeed. Antidiscrimination law cannot operate to promote racial understanding, or to eliminate racism and racial discrimination, because it was not designed to achieve these goals. Moreover, a switch in focus on the part of antidiscrimination courts from “categorical” race to “perceived” race will not render antidiscrimination law more accommodating to claims of multiracial discrimination. Such a shift would instead operate to further exclude multiracial plaintiffs from protection against discrimination. A more effective way of modifying antidiscrimination law so as to render it better able to accommodate claims of multiracial discrimination is to call courts (1) to remember that discrimination is something that happens to social groups and not to individuals, and (2) to include multiracial persons among the groups of persons specially protected from discrimination.

Read the entire article here.

Half/Full

UC Irvine Law Review
University of California, Irvine Law School
Volume 3, Forthcoming
Online: 2013-04-07
pages 101-125

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

Research suggests that multiracial identity is uniquely malleable, and I will focus here on the significance of that malleability for mixed-Asian individuals. At various times, mixed-Asian individuals may present themselves as “half” Asian; other times, they may present themselves as “full” Asian, “full” White, or, in some instances, fully ambiguous. Mixed-Asian racial identity negotiation, I will argue, often presents considerable challenges for mixed-Asian individuals. And mixed-Asian individuals are often targets of what I have elsewhere called “racial capitalism” by White individuals and predominantly White institutions. Still, I conclude that the malleability of mixed-Asian racial identity provides unique opportunities for destabilizing existing views about racial identity, reinvigorating stale conversations about race, and ultimately facilitating progress toward a racially egalitarian society.

Contents

• Introduction
• I. Mixed-Asian Identity
  • A. Sociology
  • B. Legal Discourse
• II. Using Mixed-Asian Identity
  • A. Commodification
  • B. Exploitation
  • C. Entrepreneurship
• III. Harms
  • A. Intrinsic Harms of Commodification
  • B. Harms to Individual Mixed-Asians
  • C. Harms to Society
• IV. Half Full

INTRODUCTION

About one out of six new marriages in America takes place between two people of different races—an all-time high. And Asian Americans are ahead of the curve: about one in three Asian Americans marries someone of a different race. Such relationships precipitate what commentators have described as an “interracial baby boom.”

Research suggests that multiracial identity is uniquely malleable, and I will focus here on the significance of that malleability for mixed-Asian individuals. At various times, mixed-Asian individuals may present themselves as “half” Asian; other times, they may present themselves as “full” Asian, “full” White, or, in some instances, fully ambiguous. Mixed-Asian racial identity negotiation, I will argue, often presents considerable challenges for mixed-Asian individuals. And mixed-Asian individuals are often targets of what I have elsewhere called “racial capitalism” by White individuals and predominantly White institutions—that is, these individuals and institutions derive value from mixed-Asian racial identity. Still, I conclude that the malleability of mixed-Asian racial identity provides unique opportunities for destabilizing existing views about racial identity, reinvigorating stale conversations about race, and ultimately facilitating progress toward a racially egalitarian society.

In Part I, the Essay examines the social scientific literature regarding mixed-Asian racial identity. As the result of a wide range of factors, including phenotypic characteristics, life experiences, and family dynamics, mixed-Asian individuals often view their racial identity differently from members of any of the traditional socially ascribed racial categories. In particular, mixed-Asian identity is often more fluid and dynamic, shifting from one context to the next. Such fluidity and dynamism is facilitated by a social view of mixed-Asian individuals as occupying a unique racial space. Part I also briefly notes the relative dearth of legal discourse relating to mixed-Asians.

Part II explores the way mixed-Asian racial fluidity is used, manipulated, exploited, and leveraged. Mixed-Asian individuals often engage in what scholars have described as “identity performance” or “identity work,” so as to present themselves in the manner most favorable in a particular social or employment context. For example, mixed-Asian individuals may be able to present themselves in a way that is more palatable to employers by displaying greater assimilation into dominant White norms of behavior and self-presentation. But mixed-Asian racial identity is also exploited by White individuals and predominantly White individuals. For example, an employer might count a mixed-Asian person for purposes of its diversity numbers even if that person does not personally consider herself a minority, or might incorporate photos of a mixed-Asian person on its website or in its promotional literature in order to advertise its nominal commitment to diversity without engaging harder questions of structural disadvantage and remediation.

Part III examines some of the negative implications of such uses of mixed-Asian identity, which harm both mixed-Asian individuals and society at large. For example, mixed-Asian individuals suffer identity demands that harm the integrity of their racial identity and submerge their own complex processes of identity negotiation. More broadly, exploitation of mixed-Asian racial identity by White individuals and predominantly White institutions often essentializes mixed-Asian individuals, impoverishes our discourse around race, fosters racial resentment by inhibiting the reparative work essential to improved racial relations, and detracts from more meaningful antidiscrimination goals.

Despite the many negative implications of manipulating mixed-Asian identity in the ways I have described, the Essay concludes in Part IV by suggesting that the fluidity and malleability of mixed-Asian identity also has the potential to serve as a powerful tool for racial reform. Mixed-Asian racial malleability has the potential to destabilize entrenched beliefs about race, to lay bare hidden demands of racial identity performance, and to engender a dramatic improvement in our conversations and policies regarding race.

Read the entire article here.

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.

…One might argue that discrimination against multiracial people is merely a subset—perhaps even a milder one—of discrimination against monoracial individuals. In other words, a person who is identified as partially Black might be subject to the same kind of animus as one who is identified as fully Black. This Part aims to disprove that notion and demonstrate that animus against people identified as multiracial is a unique phenomenon.

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.

I use history, sociology, and jurisprudence to buttress my claim that animus against multiracial people is a unique form of animus that is distinguishable from animus directed at any monoracial group. In the process, I hope to demonstrate that animus against racially mixed individuals is anything but benign or mild.

Other scholars have attempted to illuminate the reason underlying the persistent discomfort with racial mixing and racial mixedness. My own view is that different groups’ discomfort with mixing is so heterogeneous that any theory attempting to explain animus toward multiracial people will by necessity be quite complicated. While I believe that development of such a theory is an important project, it is one I do not address in this Article. Instead, I focus on demonstrating that racism directed at people who are viewed as multiracial is a real phenomenon that may result in tangible negative consequences to the lives of the people thus identified…

Nancy Leong, “Judicial Erasure of Mixed-Race Discrimination,” American University Law Review, Volume 59, Number 3 (2010): 483-484.

Multiracial Identity and Affirmative Action

Asian Pacific American Law Journal
University of California, Los Angeles
Volume 12, Fall 2006 – Spring 2007
32 pages

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

The classification of multiracial individuals has long posed a challenge in a number of legal contexts, and the affirmative action debate highlights the difficulty of such classification. Should multiracial individuals be categorized according to how they view themselves, how society tends to view them, by some ostensibly objective formula based on their parents’ ancestry, or in some other fashion?

My article draws on sociological research to demonstrate that there are no easy answers to this question. The way multiracial individuals view themselves varies among individuals and, moreover, may vary at different times for the same individual. Society often lacks consensus on an individual’s racial status, and examining a person’s ancestry simply removes the question of categorization to prior generations. Although my article does not attempt to propose a better way to take race into account in the affirmative action context, I strive to raise the issues that must be confronted in developing a coherent system that furthers the goal of affirmative action.

Read the entire article here.