Mixed Race Studies

The Law and Genetics of Racial Profiling in Medicine

Harvard Civil Rights-Civil Liberties Law Review
Volume 39, Number 2 (Summer 2004)
pages 391-483

Erik Lillquist, Associate Provost for Academic Projects & Professor of Law
Seton Hall University School of Law, Newark, New Jersey

Charles A. Sullivan, Professor of Law and Senior Associate Dean for Finance & Faculty
Seton Hall University School of Law, Newark, New Jersey

Modern medicine has embraced the use of race. Race is routinely employed by medical researchers, clinicians, and community health officials. Moreover, medicine’s use of race is not done in the shadows, but right before our eyes. Physicians note our race when treating us and medical researchers routinely publish results that classify subjects based on race. Researchers debate the relative merits of using race in prominent journals and doctors have freely claimed in major newspapers that they use race.¹ Recently, the New York Times featured Dr. Sally Satel on the cover of its Magazine Section proudly proclaiming, “I am a racially profiling doctor.”² A year earlier, the same paper reported on FDA approval of clinical trials for a heart drug designed exclusively for African Americans.³

Curiously, the question of whether biological differences in the races should be taken into account by our health care institutions has gone largely unconsidered in the law journals. Given the pervasive role law plays in medicine and research, this is surprising. This omission is especially striking because race otherwise dominates law review articles.⁴ Whether the topic is affirmative action, employment discrimination, environmental justice or any of a myriad of areas where race encounters the law, the reviews have thoroughly canvassed the problem, often with a strong interdisciplinary focus. Accordingly, law journals have devoted significant space to race where it intersects health care in one area: the cause of racial disparities in the health status of African Americans and other minorities.⁵ But the conscious use of race to diagnose and treat individuals continues with almost no discussion, despite all of the attention paid to the topic in both the popular media and medical literature. This Article fills that void.

Taking race into account in medical treatment seems at least as objectionable as other, explicitly prohibited uses, especially given the egregious acts perpetrated against racial minorities in this country in the name of medicine. For example, in the notorious Tuskegee Syphilis Experiment, the United States Public Health Service deliberately failed to treat nearly 400 African American males suffering from late-stage syphilis.⁶ Further, the notion of genetic racial differences triggers associations with the eugenics movement⁷ and repeated “scientific” efforts to prove the intellectual inferiority of African Americans.⁸

Even more dramatic is the increasing acceptance among researchers and clinicians of race as an appropriate focus of medical study and treatment. Indeed, this may be an unintended byproduct of the medical and legal literature on racial disparities in health. For example, to explain why African Americans have higher mortality rates from heart disease, researchers have studied whether the disparity may be partially accounted for by genetic differences between African Americans and whites—differences that enlightened modern medicine can identify and then address.⁹ To that end, medical journals increasingly explore possible racial connections with diseases and treatments. In 2001, a pair of studies in the New England Journal of Medicine focused on possible differences in drug responses among black and white heart patients. One study found racial differences for one drug;¹⁰ the other found no such differences for another.” Other examples abound.¹²

The notion that medicine should reject a colorblind model in favor of taking race into account marks a significant shift in perspective. Proponents argue that, unlike many of their predecessors in the medical and scientific community, they will take race into account only when it is appropriate to do so.¹³ But that claim was also made by predecessors whose views are now widely condemned.¹⁴ Furthermore, it occurs at a time when researchers are documenting the role that unconscious or semi-conscious racism plays in the delivery of medical treatment. For example, recent research has suggested that physicians prescribe different treatment for patients solely as a result of the patient’s race and/or gender.¹⁵ One study showed that physicians recommended cardiac catheterization at a lower rate for African American female patients than for African American males, white males, or white females, even though the symptoms presented were exactly the same.¹⁶ Another study showed that physicians prescribed analgesics to patients at different dosages depending upon the race of the patient and the gender of the physician.¹⁷ All of these differences are in-appropriate in terms of the current state of medical knowledge. Even if physicians can be cured of conscious bias, they no doubt will be influenced by the unconscious biases that plague American society.¹⁸

The problems of using race in health care have not gone unnoticed in the medical community. In 2001, the New England Journal of Medicine ran two editorials—one praising the research¹⁹ and the other claiming that attributing medical differences to race “is not only imprecise but also of no proven value in treating an individual patient.”²⁰ The New England Journal of Medicine reprised the 2001 dispute with a pair of articles in March 2003. Esteban Gonzalez Burchard of the University of California at San Francisco and Neil Risch of Stanford University argued that ignoring race will “retard progress in biomedical research,”²¹ while an opposing article by Dr. Richard S. Cooper warned that scientists have been too quick to view genetics as the reason for greater susceptibility of African Americans to certain diseases when the real reason may be social factors.²² The reality is that more and more articles in scientific journals are reporting results by racial groups, a result federal regulations encourage.²³

Almost completely ignored to date have been the legal implications of medicine’s use of race. Existing law, primarily the Equal Protection Clause, 42 U.S.C. § 1981 and Titles II and VI of the Civil Rights Act of 1964, renders many of these actions legally suspect. For instance, the use of race in selecting participants for clinical trials and in deciding the treatment of patients, we believe, may violate federal constitutional and statutory law. While nonclinical research that utilizes race is probably legal, it faces threats from proposals such as the California Racial Privacy Initiative,²⁴ rejected this past year.

Given the disconnect between what medicine does and what the law appears to allow, what should be done? We believe that, in quite limited circumstances, the law should permit the use of race in medicine. Race, although socially constructed, is a useful proxy for both a person’s ancestry and for environment.²⁵ As we explain in more detail in this Article, both ancestry and environment can play an important role in determining a person’s health. Of course, race is never more than a proxy, and other and better methods can usually be used to obtain the same information about ancestry and environment. But, in a few cases, race may be the best, and perhaps only, means of obtaining this information. When and if this is true, the use of race can be justified.

We acknowledge that the use of race in medicine, as anywhere else, is fraught with peril. Researchers and clinicians in the past have visited grave injustices on individuals in the pursuit of race-driven medicine. The continued use of race by physicians and other health care professionals may only reinforce the unconscious biases that infect medicine, and it may tend to validate the racism of others in society more generally. These costs have to be weighed before the use of race should be permitted. But even after considering them, we still believe that there are some very limited circumstances where the use of race ought to be permitted. This Article is, in large part, designed to define carefully the rare circumstances in which the use of race will be appropriate.

The Article proceeds as follows. Part I sets the stage by sketching the underlying debate about racial disparities in health status and health care and the ways in which the question of race in health is likely to arise. It also addresses the special problems of using race. Part II then turns to the threshold question for any such discussion, “What is Race?,” concluding that “race” as it is currently used in America is socially constructed. While race, as a biological construct, has no meaning, modern human evolutionary theory tells us that, in quite limited circumstances, differences in the frequency of some genes may arise between different races as they have been socially constructed. This is (generally) not because of natural selection, but rather the result of an evolutionary force known as genetic drift, which causes population groups that are separated from one another to diverge in the frequency of genes.

Part III then canvasses the scientific literature to assess the limited situations when “race” may be suitable for medical use because of genetic factors that cannot otherwise be efficiently taken into account. Race, when used as a proxy for ancestry, may tell us something about both disease susceptibility and drug sensitivity. In addition, when seen as a proxy for environment, race can also tell us something about disease susceptibility. Part IV moves from science to law, reviewing the various legal regimes that bear on the use of race in the medical context. We conclude that, in general, the use of race in medicine raises serious legal issues. The main exception is that race-based studies, with no clinical component, would appear to be legal. Finally, Part V brings together the themes of social construction of race, genetically related populations, and the existing legal framework in order to draw normative recommendations for the law’s approach to “racial profiling” in medicine. In particular, we propose the creation of a defense for the limited use of race in treatment, which we describe as a bona fide treatment rationale defense. In addition, we suggest that efforts to include (but not to exclude) racial groups in clinical trials ought to be permitted, and that efforts to exclude groups ought to be resisted. Finally, we accept—for now—the continued use of race in non-clinical studies…

Read the entire article here.

(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

Read the entire article here.

The Multiracial Option: A Step in the White Direction

California Law Review
Volume 105, Issue 6 (2018)
pages 1853-1878
DOI: 10.15779/Z38H98ZD1S

Alynia Phillips

It is estimated that within fifty years, the white race will lose its stronghold as the majority racial group in the United States. In recent years, this prediction has induced anxiety in everyone from lay citizens to conservative politicians. But this prediction may not come to fruition if the definition of whiteness expands as needed. Parallel to this mounting racial anxiety runs a social movement aimed at promoting the classification of mixed race individuals as “multiracial.” Though on its face this classification appears harmless, the reliance on “multiracial” indicates an implicit deracialization of mixed race individuals, and a tacit devaluation of minority heritage. This Note argues that based on the history of racial classifications in the United States and existing motivations to maintain the white majority, the push for a multiracial category functions as a means by which mixed race individuals can join the ranks of whiteness. With mixed race individuals comprising the fastest growing population in the United States, their acceptance into the white race could secure the white majority for decades to come.

Contents

• Introduction
• I. Relevant Terminology Explained
• II. Unmasking the Players in Today’s Multiracial Movement
  • A.  White Mothers as Racial Ventriloquists
  • B.  Republicans as Multiracial Crusaders
• III. An Evolutionary History of White America
  • A.  Bacon’s Rebellion and the Invention of Whiteness
  • B.  Conceptual Frameworks for American Assimilation
  • C.  Subscribing to Superiority
• IV. Multiracial Exceptionalism and the “Other” Within
• Conclusion

Read the entire article here.

Reverse Passing

UCLA Law Review
Volume 64, Issue 2 (2017)
pages 282-354

Khaled A. Beydoun, Associate Professor of Law
University of Detroit, Mercy School of Law

Erika K. Wilson, C. Ivey II Term Professor of Law, Associate Professor of Law
University of North Carolina, Chapel Hill

Throughout American history untold numbers of people have concealed their true racial identities and assumed a white racial identity in order to reap the economic, political, and social benefits associated with whiteness. This phenomenon is known as passing. While legal scholars have thoroughly investigated passing in its conventional form, the corollary process of reverse passing—the process in which whites conceal their true racial identity and present themselves as nonwhite—has not been closely investigated within legal scholarship.

Rachel Dolezal provides a timely study of the process of reverse passing. Dolezal—an Africana Studies Instructor and head of the Spokane, Washington NAACP—was outed as being white after years of phenotypically and culturally presenting herself as a Black woman. Dolezal’s “outing” generated much popular debate and scholarly discourse, most of which tended to frame her actions as a one-off occurrence by a deviant actor. This Article takes a contrary position.

Though reverse passing is often framed as deviant or irrational, this Article demonstrates how the U.S. Supreme Court’s affirmative action jurisprudence creates tangible and intangible incentives for white actors to identify as nonwhite. It suggests that the Court’s entrenchment of the diversity rationale as the primary compelling state interest that can be used to justify race-conscious affirmative action programs generated situational value in nonwhiteness. That situational value in nonwhiteness now creates incentives that previously did not exist for whites to reverse-pass in order to obtain access to opportunities in education, employment and beyond.

This Article is the first to coin, analyze, and propose a theory of reverse passing. It also deepens the rich and rising scholarship examining performance theory and the pliability of racial identity. Finally, given the reconsideration of the diversity rationale by the Supreme Court in Fisher v. University of Texas at Austin, this Article also provides an opportunity to critically examine the merits and shortcomings of the diversity rationale.

Read the entire article here.

White Creole Identity on Trial: The Haitian Revolution and Refugees in Louisiana

Age of Revolutions
2018-03-26

Erica Johnson, Assistant Professor of History
Francis Marion University, Florence, South Carolina

Louisiana, c. 1814

The flight of refugees from the Haitian Revolution intertwined the histories of Louisiana and Saint-Domingue. The story of one refugee, Pierre Benonime Dormenon illustrates how perceptions of the Haitian Revolution and racial prejudices within Louisiana affected an emerging white Creole identity. In Louisiana, Dormenon was the Point Coupée parish judge, but political opposition forces sought his disbarment based on alleged activities in the Caribbean. According to the Louisiana Superior Court Case court report, accusers contended that Dormenon “aided and assisted the negroes in Santo Domingo in their horrible massacres, and other outrages against the whites, in and about the year 1793.” What role Dormenon played in the Haitian Revolution is not clear, nor is it clear how slaves and free people perceived him. Nonetheless, claims of Dormenon’s actions during the Haitian Revolution called into question his own racial identity.

Dormenon’s accusers focused heavily on his racial sympathies. The most shocking portrayal of Dormenon as black was in the testimony of Antoine Remy. Remy recounted a discussion with an innkeeper, a Mr. Prat, in a southern parish of Saint-Domingue. “He [Prat] heard him [Dormenon] say several times that he hated whites and was ashamed to be one of them,” testified Remy. He added, “He [Dormenon] believed that by opening a vein he could take in some black blood.” This testimony is questionable, because Remy based it upon hearsay. However, it was still significant within Dormenon’s case, because it deepened Dormenon’s connection to and sympathy for people of color…

Read the entire article here.

Alaska’s Unique Civil Rights Struggle

JSTOR Daily
2018-03-26

Matthew Wills

Native Alaskan woman and child, 1929.
via Wikimedia Commons

A generation before the Civil Rights movement gained national attention, the struggle against Jim Crow was being fought…in Alaska. And women were at the forefront of the struggle.

Modern Alaskans, writes historian Terrence M. Cole, are “surprised and shocked to learn that racial segregation and Jim Crow policies towards Alaska natives were standard practice throughout much of Alaska” until the mid-1940s. Stores, bars, and restaurants posted “No Natives Allowed.” Movie theaters had “For Natives Only” seating. (Nome’s theater’s balcony was segregated for natives, commonly called “Eskimos,” and designated “Nigger Heaven” by whites.) And, by law and custom, Alaskans attended segregated schools…

…In the midst of the legislative battle over the equal rights bill, Alberta Schenck, a seventeen-year old with a white father and a native mother, was arrested for sitting in the “whites only” section of Nome’s movie theater in March 1944. (This was eleven years before Rosa Parks’s famous refusal to sit in the back of a Montgomery bus.) The furor over the incident galvanized support for Gruening’s bill after an earlier version had been stopped by an 8-8 vote in the Alaska House. The unprecedented election of two Tlingit legislators in late 1944 helped as well…

Read the entire article here.

Creative Producer, Passing by Indigo Griffiths

Arts Jobs
Arts Council England
March 2018

Closes: 2018-03-26
Location: London, England
Type: Part-Time
Salary: Paid (£10k-15k pro rata)
Artform: Theater
Contact: Gemma Aked-Priestley and Indigo Griffiths

Description

Chicago. 1941. Joey, John and Eliza are siblings but their lives are about to take different paths. Joey is embracing the New Negro Movement, John is breaking barriers at college and Eliza is preparing to pass as white. In a world where everything is determined by race, what can you gain by concealing who you are, and more importantly what can you lose?

Passing is a new play by Indigo Griffiths exposing the controversial practice of “racial passing” – the use of skin colour as social currency.

In August 2017 the project undertook Arts Council funded R&D at the Nuffield Southampton Theatres, culminating in an industry sharing at The Bunker. A rehearsed reading will take place on Wednesday 14th March in collaboration with Women@RADA: https://www.rada.ac.uk/whats-on/playreadings

The Creative Producer will lead a fundraising campaign, support budgeting, marketing, the formation of the creative team and be involved with all aspects of the production. Fee is funding dependant but will be in line with ITC recommended rates. Creative meetings will begin in May 2018 for a Spring 2019 production.

Gemma’s directing credits include Gracie (Finborough Theatre) Grimm: An Untold Tale (Underbelly, Edinburgh Festival) and Tender Napalm (Karamel Club). She is the Assistant Director for The Mono Box. Assistant Direction includes Sam Hodges on the world premiere of Howard Brenton’s The Shadow Factory (Nuffield Southampton Theatres) and Daniel Goldman on Thebes Land (Arcola). She is the recipient of bursaries from the Mayflower Theatre, Barker-Mill Foundation and JMK Trust.

Indigo’s Writing credits include The Mulatto Girl (Nuffield Theatre Lab) and Passing (The Bunker/The Pleasance). She is a member of the Papatango Writers Course 2017-18 and in 2018 completed An Introduction to Screenwriting course (University of East Anglia). Indigo’s focus is on exploring unheard female voices and the mixed-race narrative. She is currently working on a trilogy of plays that explore mixed race heritage (Passing, The Mulatto Girl and The Island.)

Please send a CV and short letter of interest to Gemma.aked-priestley@hotmail.co.uk/ indigo.griffiths@hotmail.co.uk.

For more information, click here.

Detroit Housewife Kills White Husband

Jet
1953-03-05
page 20

A 29-year-old Detroit Negro housewife stabbed her white husband to death because he nagged her about not having his dinner ready. Mrs. Dorothy Homic told police she took a paring knife from her husband, Frank, 38, and stabbed him in the chest after he threatened her. She was arraigned on a first degree murder charge before Recorders Judge Paul E. Krause.

Frederick Douglass: a multi-racial trailblazer

The Baltimore Sun
2018-02-08

Tanya Katerí Hernández, Professor of Law
Fordham University School of Law

Gregory Morton purchased Frederick Douglass’ home in Fells Point and makes it available to rent on Airbnb. (Barbara Haddock Taylor / Baltimore Sun)

Last year President Trump made statements that left the impression he believed that abolitionist Frederick Douglass was still alive. In some respects, he still is. This month marks the 200th anniversary of Frederick Douglass’ birth, and his racial justice work continues to be relevant today. In fact, after President Trump was informed that Douglass died in 1895, the president signed into law the Frederick Douglass Bicentennial Commission Act to organize events to honor the bicentennial anniversary of Douglass’s birth.

While slave records mark Douglass’ birth month as February — he was born in a plantation on the shores of the Chesapeake Bay in Talbot County — his status as a slave meant he had no information about the exact day he was born. As an adult he chose Feb. 14th for himself as a birth date. He was also never told who his father was, but circumstances lead him to conclude that it was his white slave owner.

Despite his mixed-race heritage and likely connection to his owner, Douglass was separated from his mother at an early age and exposed to physical abuse from his owners…

Read the entire article here.

Looking at Indians, white Americans see themselves

The Economist
2018-02-10

Thinking about natives in an era of nativism

IN EARLY 1924 the blue-bloods of Virginia found themselves with a problem. To criminalise interracial marriage, the state had drafted a law that classified anyone possessing even “one drop” of non-white blood as “coloured”. Awkwardly, that would include many of the so-called First Families of Virginia, because they traced their descent to a native American woman, Pocahontas, who had been abducted and married by a member of the Jamestown colony three centuries before. This ancestry had been considered far from shameful. It was a mark of American aristocracy, the real-life Pocahontas having been reinvented (she probably did not save the life of a colonist called John Smith) as an “American princess”. To fix matters, a clause known as the “Pocahontas exception” was added to the racist law, to exempt anyone with no more than one-sixteenth Indian blood.

This episode, documented in a new exhibition at the National Museum of the American Indian in Washington, DC, on Indian myths and reality, helps explain a cultural puzzle. It has become clear that the pre-Columbian Americas were much more densely populated, by more sophisticated civilisations, than was previously thought. By one estimate North America, the more sparsely populated continent, had 18m people when Columbus sailed, more than England and France combined. Yet in the popular imagination it remains a vast wilderness, peopled by a few buffalo-hunters. The reason for this gigantic misunderstanding, suggest the Smithsonian’s curators, goes beyond bad schooling…

Read the entire article here.