Mixed Race Studies

Multiracial Malaise: Multiracial as a Legal Racial Category

Fordham Law Review
Volume 86, Issue 6 (2018)
pages 2783-2793

Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence
University of Maryland Francis King Carey School of Law

The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only on government “racial” definitions. Multiracial individuals should enjoy the freedom to self-identify as they wish—and, like others, be afforded the protections of anti discrimination law. The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection” protecting the interests of white Americans from usurpation by non whites and, unless the creation of a separate multiracial legal category advances this goal, change will be resisted. Commentaries grounded in Fourteenth Amendment Equal Protection Clause and federal statutory anti-discrimination jurisprudence shape the construction of racial categories in U.S. law. This jurisprudence influences the racial categories and definitions used for the census. The next Part briefly discusses the attempt to get a multiracial category on the U.S. census.

[R]ace is at once an empty category and a powerful instrument. —Melissa Nobles¹

Racism is about race: more races can lead . . . to changes in the way racism is presented, and ultimately to more, rather than less, racism. —Paulette M. Caldwell²

INTRODUCTION

The fiftieth anniversary of Loving v. Virginia,³ which struck down Virginia’s antimiscegenation statute, provides an opportunity to reflect on Loving’s impact. A 2017 Pew Research Center analysis of U.S. Census Bureau data found that interracial marriages constitute 17 percent of all marriages,⁴ which represents an increase of 14 percent since the U.S. Supreme Court decided Loving in 1967.⁵ One byproduct of the increase in interracial marriages is the growing number and prominence of multiracial children. For example, a July 2017 Brookings Institution report characterizes Barack Obama, born six years before Loving, as the person who gave growing “prominence” to the emergence of multiracial people in America.⁶

Increasingly, there is interest in the offspring of interracial unions and how they compare to monoracial individuals. The Brookings Institution, for example, reported that “there is no test score gap between white and multiracial high school students.”⁷ The report seems to define “multiracial” very narrowly as people with parents from different racialized groups.⁸ Yet the multiracial population in the United States is not a new phenomenon. By limiting multiracial “to first-generation children of interracial couples,”⁹ as others have, the report fails to acknowledge older and larger generations whose genealogical mixture is more distant. Many of the people within this older multiracial population are racially classified by government and custom as black or African American, and they constitute “around 40 [percent] of the total population.”¹⁰ In contrast, according to the 2000 census, firstgeneration multiracial individuals (including those with remote African ancestry) make up roughly 2 percent of the total population and are more likely to be seen as multiracial.¹¹

Proponents of a multiracial legal category complain that multiracial individuals are harmed by not being recognized under law as multiracial. Specifically, they argue that the law neither recognizes their personal identity nor protects their right to self-identify racially and to have that identity accepted.¹² Despite the long history of multiracial people in the United States, Fourteenth Amendment equal protection constitutional jurisprudence, statutory antidiscrimination laws, and the census do not formally recognize a separate multiracial category. Thus, the question is whether legal recognition is needed to remedy race-based discrimination experienced by multiracial individuals.¹³

Historically, courts grappling with racial-identity questions looked at three factors, phenotypical characteristics, ancestry, and racial reputation in the community, to resolve the issue.¹⁴ The courts relied on a binary classification system of white and nonwhite; the underlying issue in these cases being whether one party had any nonwhite ancestry. Thus, until recently, Barack Obama, despite his white mother, would be classified racially as black, since twentieth-century notions of race held that any known African ancestry made one black.¹⁵

Admittedly, since Loving, conventional notions of race in the United States have “destabilized” as a result of “increases in immigration, intermarriage, and cross-racial adoptions.”¹⁶ Reflecting the era of racial self-identification,¹⁷ racial categories are more fluid in the twenty-first century, even for people who, historically, racially classified as black. These attitudinal changes are reflected in a 2007 Pew Research Center finding that “[n]early four-in-ten African Americans (37%) say that blacks can no longer be thought of as a single race” because of increasing diversity within that community.¹⁸

Conventional blackness, where one is “black” if one’s African ancestry is visible or known,¹⁹ is on the wane. As critical race theory legal scholar Neil Gotanda posits, race—particularly the racial category “black”—while a consistent and constant “social divider,” is not a “stable, coherent legal and social concept.”²⁰ Today, people with some African ancestry may move away from blackness and, in some respects, the legal multiracial category movement is an example.²¹

The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only on government “racial” definitions. Multiracial individuals should enjoy the freedom to self-identify as they wish—and, like others, be afforded the protections of antidiscrimination law. The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection”²²— protecting the interests of white Americans from usurpation by nonwhites and, unless the creation of a separate multiracial legal category advances this goal, change will be resisted.

Commentaries grounded in Fourteenth Amendment Equal Protection Clause and federal statutory antidiscrimination jurisprudence shape the construction of racial categories in U.S. law. This jurisprudence influences the racial categories and definitions used for the census. The next Part briefly discusses the attempt to get a multiracial category on the U.S. census…

Read the entire article here.

Funding Race as Biology: The Relevance of “Race” in Medical Research

Minnesota Journal of Law, Science & Technology
Volume 12, Issue 2 (Spring 2011)
pages 571-618

Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence and Francis & Harriet Iglehart Research Professor of Law
University of Maryland School of Law

Note from Steven F. Riley: See the articles, “Fracture Risk Assessment without Race/Ethnicity Information,” and “Taking race out of the equation in measuring women’s risk of osteoporosis and fractures” about the positive results of taking “race” out of medicine.

I. INTRODUCTION: ‘DEM BONES, ‘DEM BONES, ‘DEM “BLACK” BONES

In 1940 the State of North Carolina classified my friend as “colored” despite her “white skin, blue eyes, [and] curling blond hair.” She—like her parents, grandparents, and many other black Americans—is often mistaken for white. Sixty years later when she went for a bone densitometry test—a must for postmenopausal women—the technician asked her to fill out a form that asked her race. Surprised, she asked why. The technician explained that “since the bones of black people are different than the bones of white people, the doctor needed this information to interpret the scan correctly.”

The radiologist who analyzed my friend’s bone scan acknowledged that there is a debate within the radiology community about the scientific validity of interpreting an X-ray through the lens of race. But, he claimed, it is impossible to interpret the bone scan without factoring in race because the machines that analyze the bone scan can only produce an analysis if the race of the person being analyzed is included. The doctor could not explain how the x-ray machine defined “race,” replying that the definitions “were created by the companies that built the machines.”

My friend asked if there was any way she could get more helpful advice about the condition of her bones. The radiologist thought for a moment, then suggested that perhaps my friend should have her bone densitometry test performed twice, once as “white,” then as “black.” The condition of her bones, he told her, would lie somewhere between the two results. However, my friend concluded that “one-half of a fantasy definition of ‘white’ plus one-half of a fantasy definition of ‘black’ will only yield one whole fantasy: it will not provide a sound medical diagnosis.”  Thus she marked “black” or “African American” because that had always been her legal and social identity. So what did the results really tell her doctor?

For years my friend taught and wrote about the social construction of race and knew that her doctor’s explanation about the use of race as a biological term by the radiology community was flawed. She found it reminiscent of the World War II era when the Nazis kept “separate blood banks for ‘Jewish blood’ and ‘Aryan blood,’ [and] American blood banks were separating ‘white blood’ and ‘black blood’.” The United States has a long and continuing history of “unconscionable medical research” involving black Americans.

In 1950 the United Nations Educational, Scientific and Cultural Organization (UNESCO), mindful of race-science’s dark and not so distant history, drafted a statement on the use of race in modern science. This statement, developed by an esteemed group of anthropologists, psychologists, and sociologists, concludes: “[f]or all practical social purposes ‘race’ is not so much a biological phenomenon as a [damaging] social myth.” Today most scientists agree that race and ethnicity (ethno-race) classifications are the result of social and political conditions, as opposed to biological differences. There is, however, disagreement about the scientific validity of these categories.

Even though an increasing number of scientists believe that too often ethno-race is used as a surrogate for various socioeconomic and environmental factors, for most of the late twentieth century social science and medical researchers continued to use ethno-race in a biological context.

Nevertheless, there are times when ethno-racial designations have value in medical research. As one scholar writes, “using race as a social category” to study the impact of racism on health and access to medical care is critical to eliminating health inequities based on race. But, she cautions that using race as a biological category can reflect and reinforce racial stratification as well as racist notions of inherent human difference. Several commentators call this phenomenon the reification of race, where the social concept of race is transformed “into a specific, definite, concrete, and now presumably genetic category which can feed back into preexisting lay understandings of racial difference.”…

…This article proceeds from the assumption that there are few clear instances, other than perhaps access to health care or measuring equality in medical treatment, where the use of ethno-race in medical research is appropriate. Even in those limited situations the justification for using ethno-race, how the ethno-racial categories are defined, and the method for assigning ethno-race warrant close scrutiny and oversight, especially when these studies are funded with federal money. In the next section, this article explains the scientific basis for that assertion. First, it explores the debates within the medical community about the connection between race and biology in biomedicine. Then it examines literature on race-related stress to determine whether this might be an instance where ethno-racial labels help explain health outcomes, and argues that guidelines or regulation are needed.

The third section of this article examines two sets of guidelines on the use of ethno-race in biomedical research: guidelines adopted by high impact medical journals, and federal guidelines on the use of ethno-race in federally funded biomedical research. Finding these measures inadequate, this article argues that the only way to quickly change research behavior in this area is through greater regulation and oversight of federal medical research grants. More stringent government regulation and oversight of federally funded biomedical research grants that use ethno-race may trigger changes in the medical culture faster than litigation.

In the fourth section this article proposes a regulatory scheme that offers a standard to measure the appropriateness of ethno-race in applications for federally funded biomedical research that will cause both researchers and grant reviewers to give more thought to how and why ethno-race is used in research protocols. This article concedes that this proposal is only a first step, and acknowledges that meaningful progress also requires strong and effective measures designed to change how biology is taught in undergraduate, graduate, and professional schools. But without a change in the medical culture, another generation of researchers and health care providers will be trained to think about ethno-racial differences inappropriately.

Before effective remedies for the problem described can be discussed, it is important to clarify both the meaning and use of the term “race” in scientific discussions. The next section of this paper looks at debates within the scientific community about the meaning of ethno-racial labels…

Read the entire article here.

Loving vs. Virginia in a Post-Racial World: Rethinking Race, Sex, and Marriage

Cambridge University Press
June 2012
300 pages
Hardback ISBN-13: 9780521198585
Paperback ISBN-13: 9780521147989

Edited by

Kevin Noble Maillard, Professor of Law
Syracuse University

Rose Cuison Villazor, Professor of Law
University of California, Davis

In 1967, the U.S. Supreme Court ruled that laws prohibiting interracial marriage were unconstitutional in Loving vs. Virginia. Although this case promotes marital freedom and racial equality, there are still significant legal and social barriers to the free formation of intimate relationships. Marriage continues to be the sole measure of commitment, mixed relationships continue to be rare, and same-sex marriage is only legal in 6 out of 50 states. Most discussion of Loving celebrates the symbolic dismantling of marital discrimination. This book, however, takes a more critical approach to ask how Loving has influenced the “loving” of America. How far have we come since then, and what effect did the case have on individual lives?

Table of Contents

• Introduction Kevin Noble Maillard and Rose Cuison Villazor
• Part I: Explaining Loving v. Virginia
  • 1. The legacy of Loving John DeWitt Gregory and Joanna L. Grossman
• Part II: Historical Antecedents to Loving
  • 2. The ‘love’ of Loving Jason A. Gillmer
  • 3. Loving in Indian territory: tribal miscegenation law in historical perspective Carla Pratt
  • 4. American mestizo: Filipinos and antimiscegenation laws in California Leti Volpp
  • 5. Perez v. Sharp and the limits of Loving: race, marriage, and citizenship reconsidered R. A. Lenhardt
• Part III: Loving and Interracial Relationships: Contemporary Challenges
  • 6. The road to Loving: the legacy of antimiscegenation law Kevin Noble Maillard
  • 7. Love at the margins: the racialization of sex and the sexualization of race Camille A. Nelson
  • 8. The crime of Loving: Loving, Lawrence, and beyond I. Bennett Capers
  • 9. What’s Loving got to do with it? Law shaping experience and experience shaping law Renée M. Landers
  • 10. Fear of a ‘Brown’ planet or a new hybrid culture? Jacquelyn Bridgeman
• Part IV: Considering the Limits of Loving
  • 11. Black pluralism in post-Loving America Taunya Lovell Banks
  • 12. Multiracialism and reparations: accounting for political blackness Angelique Davis
  • 13. Finding a Loving home Angela Onwuachi-Willig and Jacob Willig-Onwuachi
• Part V: Loving outside the United States Borders
  • 14. Racially inadmissible wives Rose Cuison Villazor
  • 15. Flying buttresses Nancy K. Ota
  • 16. Crossing borders: Loving v. Virginia as a story of migration Victor Romero
• Part VI: Loving and Beyond: Marriage, Intimacy and Diverse Relationships
  • 17. Black vs. gay: centering LBGT people of color in civil marriage debates Adele Morrison
  • 18. Forty years after Loving: a legacy of unintended consequences Rachel F. Moran
  • 19. The end of marriage Tucker Culbertson
  • 20. Afterword Peter Wallenstein

Black Pluralism in Post Loving America

Chapter in: Loving vs. Virginia in a Post-Racial World: Rethinking Race, Sex, and Marriage

Cambridge University Press
May 2012
300 pages
Hardback ISBN-13: 9780521198585
Paperback ISBN-13: 9780521147989

Edited by

Kevin Noble Maillard, Associate Professor of Law
Syracuse University

Rose Cuison Villazor, Associate Professor of Law
Hofstra University

Chapter Author

Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence and Francis & Harriet Iglehart Research Professor of Law
University of Maryland School of Law

The face of late twentieth and early twenty-first century America has changed, as have attitudes about race, especially about persons with some African ancestry. Since 1967, the number of multi-racial individuals with some African ancestry living in the United States has increased dramatically as a result of increased out-marriage by black Americans and the immigration of large numbers of multiracial individuals from Mexico, the Caribbean, as well as Central and Latin America. Many members of the post-Loving generation came of age in the 1990s with no memories of de jure racial segregation laws or the need for the 1960s civil rights legislation to combat overt racial discrimination. Accordingly, they see race, racism and identity through different lens. In other words, we are witnessing a significant generational shift in thinking that is beginning to be reflected in popular culture and scholarly literature about race and identity, but not in the courts. American judges and policy-makers, composed primarily of the children of Brown v. Board of Education, remain stuck in a racial jurisprudence and rhetoric of the late twentieth century.

This chapter analyzes the experiences of and public dialogues about children of interracial parentage and how their differential treatment by non-blacks, as well as blacks, raises legal issues courts are not prepared to address. One emerging question is whether mixed-race individuals are more likely to experience situational blackness—whether one can be black for some but not for other purposes, and if so, when one is black for anti-discrimination purposes. This question is even more sharply drawn when questions about “racial authenticity” arise for individuals whose African ancestry is less apparent. As this chapter explains, the overriding question in both cases is whether interracial parentage confers some type of benefit and disadvantage on Afro-descendant children not experienced by individuals whose formal racial classification is black, and if so whether anti-discrimination law should take these differences into account.

Read the chapter here.

Shades of Difference: Why Skin Color Matters

Stanford University Press
2009
312 pages
11 tables, 15 figures, 16 illustrations
Cloth ISBN: 9780804759984
Paper ISBN: 9780804759991
E-book ISBN: 9780804770996

Edited by:

Evelyn Nakano Glenn, Professor of Asian American Studies
University of California, Berkeley

Shades of Difference addresses the widespread but little studied phenomenon of colorism—the preference for lighter skin and the ranking of individual worth according to skin tone. Examining the social and cultural significance of skin color in a broad range of societies and historical periods, this insightful collection looks at how skin color affects people’s opportunities in Latin America, Asia, Africa, and North America.

Is skin color bias distinct from racial bias? How does skin color preference relate to gender, given the association of lightness with desirability and beauty in women? The authors of this volume explore these and other questions as they take a closer look at the role Western-dominated culture and media have played in disseminating the ideal of light skin globally. With its comparative, international focus, this enlightening book will provide innovative insights and expand the dialogue around race and gender in the social sciences, ethnic studies, African American studies, and gender and women’s studies.

Contents

Contributors
• Introduction: Economies of Color—Angela P. Harris
• Part I The Significance of Skin Color: Transnational Divergences and Convergences
  • 1. The Social Consequences of Skin Color in Brazil—Edward Telles
  • 2. A Colorstruck World: Skin Tone, Achievement, and Self-Esteem Among African American Women—Verna M. Keith
  • 3. The Latin Americanization of U.S. Race Relations: A New Pigmentocracy—Eduardo Bonilla-Silva and David R. Dietrich
• Part II Meanings of Skin Color: Race, Gender, Ethnic Class, and National Identity
  • 4. Filipinos and the Color Complex: Ideal Asian Beauty—Joanne L. Rondilla
  • 5. The Color of an Ideal Negro Beauty Queen: Miss Bronze 1961-1968—Maxine Leeds Craig
  • 6. Caucasian, Coolie, Black, or White? Color and Race in the Indo-Caribbean Diaspora—Aisha Khan
  • 7. Ihe Dynamics of Color: Mestizaje, Racism, and Blackness in Veracruz, Mexico—Christina A. Sue
• Part III Consuming Lightness: Modernity, Transnationalism, and Commodification
  • 8. Skin Tone and the Persistence of Biological Race in Egg Donation for Assisted Reproduction—Charis Thompson
  • 9. Fair Enough? Color and the Commodification of Self in Indian Matrimonials—Jyotsna Vaid
  • 10. Consuming Lightness: Segmented Markets and Global Capital in the Skin-Whitening Trade—Evelyn Nakano Glenn
  • 11. Skin Lighteners in South Africa: Transnational Entanglements and Technologies of the Self—Lynn M. Thomas
• Part IV Countering Colorism: Legal Approaches
  • 12. Multilayered Racism: Courts’ Continued Resistance to Colorism Claims—Taunya Lovell Banks
  • 13. The Case for Legal Recognition of Colorism Claims—Trina Jones
  • 14. Latinos at Work: When Color Discrimination Involves More Than Color—Tanya Katerí Hernandez
• Acknowledgments
• Notes
• Index

Read the Introduction here.

Mestizaje and the Mexican Mestizo Self: No hay Sangre Negra, so there is no Blackness

Southern California Interdisciplinary Law Journal
Volume 15, Number 2 (Spring 2006)
Pages 199-234

Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence and Francis & Harriet Iglehart Research Professor of Law
University of Maryland School of Law

Many legal scholars who write about Mexican mestizaje omit references to Afromexicans, Mexico’s African roots, and contemporary anti-black sentiments in the Mexican and Mexican American communities. The reasons for the erasure or invisibility of Mexico’s African roots are complex. It argues that post-colonial officials and theorists in shaping Mexico’s national image were influenced two factors: the Spanish colonial legacy and the complex set of rules creating a race-like caste system with a distinct anti-black bias reinforced through art; and the negative images of Mexico and Mexicans articulated in the United States during the early nineteenth century. The post-colonial Mexican becomes mestiza/o, defined as European and Indian, with an emphasis on the European roots. Thus contemporary anti-black bias in Mexico is a vestige of Spanish colonialism and nationalism that must be acknowledged, but is often lost in the uncritical celebration of Latina/o mestizaje when advanced as a unifying principle that moves beyond the conventional binary (black-white) discussions of race. This uncritical and ahistorical invocation of mestizaje has serious implications for race relations in the United States given the growing presence and political power of Mexican Americans because substituting mestizaje for racial binarism when discussing race in the United States reinforces rather than diminishes notions of white racial superiority and dominance. Therefore legal scholars who write about Latina/o issues should replace their uncritical celebration of mestizaje with a focus on colonialism and capitalism, the twin isms that influenced ideological theories and racial formation from the late fifteenth through the twentieth century in the Americas.

Read the entire article here.

Dangerous Woman: Elizabeth Key’s Freedom Suit – Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia

Akron Law Review
University of Akron
Volume 41, Number 3 (2007-2008)
pages 799-837

Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence and Francis & Harriet Iglehart Research Professor of Law
University of Maryland School of Law

Elizabeth Key, an African-Anglo woman living in seventeenth century colonial Virginia sued for her freedom after being classified as a negro by the overseers of her late master’s estate. Her lawsuit is one of the earliest freedom suits in the English colonies filed by a person with some African ancestry. Elizabeth’s case also highlights those factors that distinguished indenture from life servitude – slavery in the mid seventeenth century. She succeeds in securing her freedom by crafting three interlinking legal arguments to demonstrate that she was a member of the colonial society in which she lived. Her evidence was her asserted ancestry – English; her religion, Christian; and the inability to be enslaved for life that stems from the first two statuses. These factors, I argue, determined who was the equivalent of white in seventeenth century Virginia.

I. Introduction

Elizabeth Key, an Afro-Anglo woman, was born around 1630 in the Virginia Colony. Twenty-five years later she sued for her freedom after the overseers of her late master’s estate classified her and her infant son as negroes (Africans or descendants of Africans) rather than as an indentured servant with a free-born child.  Unwilling to accept permanent servitude, Elizabeth sued for their freedom, and after protracted litigation she and her son were set free.

A few historians and legal scholars mention her case in passing as proof that by the mid seventeenth century people of African ancestry were held as slaves in Virginia.  Only feminist historian Kathleen Brown even mentions that Elizabeth’s lawsuit involved not only her freedom, but that of her son. To the rest of the historians she was simply a slave, her gender, son and mixed ancestry were irrelevant. None looked closely at the significance of her three interlinking legal arguments: (1) that she was a practicing Christian; (2) who was the daughter of a free Englishman; (3) who bound her out as an indentured servant for nine years which period had expired.

Arguably Elizabeth’s pleadings might be an early example of what Kenji Yoshino characterizes as “covering,” downplaying aspects of one’s identity. In crafting her legal argument around her father’s ancestry and subjecthood Elizabeth downplayed the African ancestry of her enslaved mother. Her argument also might be an example of “racial performance” where the extent one does things that English women and men did during the period becomes an important determinant of one’s legal status.  But as I explain in this article other cases decided during this period suggest otherwise…

Read the entire article here or here.