Mixed Race Studies

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.

A House Divided: The Invisibility of the Multiracial Family

Harvard Civil Rights-Civil Liberties Law Review
Volume 44, Number 1
2009
pages 231-253

University of Iowa Legal Studies Research Paper No. 09-26

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

Jacob Willig-Onwuachi, Assistant Professor of Physics
Grinnell College

This Article is an invited special projects paper for the Harvard Civil Rights-Civil Liberties Law Review. It examines how society and law work together to frame the normative ideal of intimate couples and families as both heterosexual and monoracial.

This Article sets out to accomplish three goals. First, it examines the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of interracial marriages and families within our society. Specifically, Part II of this Article uses the work of Professor Peggy McIntosh to identify unacknowledged monoracial, heterosexual-couple privileges and list unearned privileges, both social and legal, for such couples. It also uses Professor Kimberlé Crenshaw‘s theory of intersectionality to explicate how couples in general may experience societal benefits and disadvantages differently based upon various intersections of identity categories.

Second, this Article examines housing discrimination law to demonstrate the connection between the daily social disadvantages of interracial, heterosexual couples and families and the lack of legal recognition for interracial couples and families. Specifically, Part III of this Article utilizes housing discrimination law to show how law can ignore the existence of interracial, heterosexual couples, thereby reinforcing an ideal of marriage and family as monoracial. In so doing, this Part explains how housing discrimination statutes assume that plaintiffs will be monoracial, heterosexual couples, and fail to fully address the harms to interracial, heterosexual couples who are subjected to discrimination in housing and rental searches because of their interraciality (i.e., because they have engaged in race-mixing). Part III.A describes the legal framework for evaluating housing discrimination cases, including the means for analyzing discrimination by association cases in court.  Part III.B details the categories of plaintiffs who can allege discriminatory action “because of” race, familial status, or marital status under housing discrimination statutes. It then explicates how interracial couples who are victims of discrimination in housing because of their status as an interracial couple alone do not neatly fit within any of these categories.

Third, this Article calls for housing discrimination statutes to explicitly recognize interracial couples and families, thereby filling this hole in anti-discrimination law. Specifically, Part IV proposes that legislators add a new protected class category for “interraciality” to housing discrimination statutes. The Article argues that such an addition is the only means by which the law can address the “expressive harms” or lack of dignity that result from the current framing of family in housing discrimination statutes as monoracial.

This Article concludes with a call for statutes and rights to be legally framed in a manner that is inclusive, rather than exclusive.

Read the entire article here.

What Comes Naturally: Miscegenation Law and the Making of Race in America

Oxford University Press
December 2008
404 pages
ISBN13: 9780195094633
ISBN10: 0195094638

Peggy Pascoe (1954-2010), Beekman Professor of Northwest and Pacific History
University of Oregon

• Winner of the Ellis W. Hawley Prize of the Organization of American Historians (2009)
• Winner of the Lawrence W. Levine Award of the Organization of American Historians (2009)
• Winner of the William H. Dunning Prize of the American Historical Association
• Winner of the James Willard Hurst Prize of the Law and Society Association
• Winner of the Joan Kelly Memorial Prize of the American Historical Association
• Finalist, John Hope Franklin Prize of the American Studies Association

A long-awaited history that promises to dramatically change our understanding of race in America, What Comes Naturally traces the origins, spread, and demise of miscegenation laws in the United States–laws that banned interracial marriage and sex, most often between whites and members of other races. Peggy Pascoe demonstrates how these laws were enacted and applied not just in the South but throughout most of the country, in the West, the North, and the Midwest.  Beginning in the Reconstruction era, when the term miscegenation first was coined, she traces the creation of a racial hierarchy that bolstered white supremacy and banned the marriage of Whites to Chinese, Japanese, Filipinos, and American Indians as well as the marriage of Whites to Blacks.  She ends not simply with the landmark 1967 case of Loving v. Virginia, in which the Supreme Court finally struck down miscegenation laws throughout the country, but looks at the implications of ideas of colorblindness that replaced them. What Comes Naturally is both accessible to the general reader and informative to the specialist, a rare feat for an original work of history based on archival research.

Table of Contents

• Introduction
• Part I: Miscegenation Law and Constitutional Equality, 1863-1883
  • 1. Engendering Miscegenation
  • 2. Sexualizing Miscegenation Law
• Part II: Miscegenation Law and Race Classification, 1860-1948
  • 3. Configuring Race in the American West
  • 4. The Facts of Race in the Courtroom
  • 5. Seeing Like a Racial State
• Part III: Miscegenation Law and Its Opponents, 1913-1967
  • 6. Between a Rock and a Hard Place
  • 7. Interracial Marriage as a Natural Right
  • 8. Interracial Marriage as a Civil Right
• Part IV: Miscegenation Law, Civil Rights, and Colorblindness, 1964-2000
  • 9. Lionizing Loving
  • Conclusion: The Ghost of the Past

Won’t Somebody Think of the Children

Slate
2013-03-27

Brian Palmer, Slate’s Chief Explainer

Do opponents of marriage equality always claim that they’re merely worried about the kids?

During yesterday’s oral arguments over the constitutionality of California’s ban on gay marriage, Justice Antonin Scalia claimed that there is “considerable disagreement among sociologists” as to whether being raised by a same-sex couple is “harmful to the child.” The lawyers arguing the case repeatedly brought up the landmark 1967 decision Loving v. Virginia, which struck down interracial marriage bans. Did supporters of the ban argue that interracial marriage was harmful to children in that case, too?

Absolutely. The state of Virginia presented two arguments in support of its interracial marriage ban in 1967. The first was that the authors of the 14th Amendment to the Constitution explicitly stated that they did not intend to strike down anti-miscegenation laws, which were common in the 19th century. The second argument was that interracial marriages were uniquely prone to divorce and placed undue psychological stress on children…

Read the entire article here.

Clearly Invisible: Racial Passing and the Color of Cultural Identity

Baylor University Press
2012-08-01
285 pages
9in x 6in
5 b/w images
Hardback ISBN: 9781602583122

Marcia Alesan Dawkins, Clinical Assistant Professor of Communications and Journalism
University of Southern California

Everybody passes. Not just racial minorities. As Marcia Dawkins explains, passing has been occurring for millennia, since intercultural and interracial contact began. And with this profound new study, she explores its old limits and new possibilities: from women passing as men and able-bodied persons passing as disabled to black classics professors passing as Jewish and white supremacists passing as white.

Clearly Invisible journeys to sometimes uncomfortable but unfailingly enlightening places as Dawkins retells the contemporary expressions and historical experiences of individuals called passers. Along the way these passers become people—people whose stories sound familiar but take subtle turns to reveal racial and other tensions lurking beneath the surface, people who ultimately expose as much about our culture and society as they conceal about themselves.

Both an updated take on the history of passing and a practical account of passing’s effects on the rhetoric of multiracial identities, Clearly Invisible traces passing’s legal, political, and literary manifestations, questioning whether passing can be a form of empowerment (even while implying secrecy) and suggesting that passing could be one of the first expressions of multiracial identity in the U.S. as it seeks its own social standing.

Certain to be hailed as a pioneering work in the study of race and culture, Clearly Invisible offers powerful testimony to the fact that individual identities are never fully self-determined—and that race is far more a matter of sociology than of biology.

Contents

• Preface
• Introduction: Passing as Passé?
• 1. Passing as Persuasion
• 2. Passing as Power
• 3. Passing as Property
• 4. Passing as Principle
• 5. Passing as Pastime
• 6. Passing as Paradox
• Conclusion: Passing as Progress?
• Appendix
• Notes
• Bibliography
• Index

Appo Will Serve Six Months

The Brooklyn Daily Eagle
Thursday, 1895-10-03
page 12, column 2
Source: Brooklyn Public Library’s Brooklyn Collection

George Appo, the Chinese half-bred, who obtained notoriety especially through his testimony before the Lexow senate investigating committee, and who pleaded guilty to assault in the third degree in the stabbing of Policeman Michael J. Rein of the West Thirtieth street station on April 9, was this morning sentenced to six months in the penitentiary by Judge Cowing in Part II, New York general sessions.

The Urban Underworld in Late Nineteenth-Century New York: The Autobiography of George Appo

Bedford/St. Martin’s
2013
208 pages
Paper ISBN-10: 0-312-60762-8; ISBN-13: 978-0-312-60762-3

George Appo (1856-1930)

Edited with an Introduction by:

Timothy J. Gilfoyle, Professor of History
Loyola University, Chicago

Through the colorful autobiography of pickpocket and con man George Appo, Timothy Gilfoyle brings to life the opium dens, organized criminals, and prisons that comprised the rapidly changing criminal underworld of late nineteenth-century America. The book’s introduction and supporting documents, which include investigative reports and descriptions of Appo and his world, connect Appo’s memoir to the larger story of urban New York and how and why crime changed during this period. It also explores factors of race and class that led some to a life of crime, the experience of criminal justice and incarceration, and the masculine codes of honor that marked the emergence of the nation’s criminal subculture. Document headnotes, a chronology, questions for consideration, and a selected bibliography offer additional pedagogical support.

A Pickpocket’s Tale: The Underworld of Nineteenth-Century New York

W. W. Norton & Company
2006
480 pages
5.5 × 8.2 in
Paperback ISBN: 978-0-393-32989-6

Timothy J. Gilfoyle, Professor of History
Loyola University, Chicago

In George Appo’s world, child pickpockets swarmed the crowded streets, addicts drifted in furtive opium dens, and expert swindlers worked the lucrative green-goods game. On a good night Appo made as much as a skilled laborer made in a year. Bad nights left him with more than a dozen scars and over a decade in prisons from the Tombs and Sing Sing to the Matteawan State Hospital for the Criminally Insane, where he reunited with another inmate, his father. The child of Irish and Chinese immigrants, Appo grew up in the notorious Five Points and Chinatown neighborhoods. He rose as an exemplar of the “good fellow,” a criminal who relied on wile, who followed a code of loyalty even in his world of deception. Here is the underworld of the New York that gave us Edith Wharton, Boss Tweed, Central Park, and the Brooklyn Bridge.

Preface

In 1840 New York City had no professional police force, a low murder rate, and no bank robberies. Within decades, however, this changed; serious crime proliferated and modern law enforcement was born. By 1890 Gotham’s police budget had grown more than sixteenfold and became New York City’s single largest annual expenditure. Detective work was transformed into a public and private specialty. The murder rate had doubled, and larceny comprised one-hall to one-third of all prosecuted crime in the state. Newspapers regularly reported that illegal activities were rampant, the courts and police powerless. New York City had become “the evillest [sic] spot in America.” For the first time, observers complained about “organized crime.”

A new criminal world was born in this period. It was a hidden universe with informal but complex networks of pickpockets, fences, opium addicts, and confidence men who organized their daily lives around shared illegal behaviors. Such activities, one judge observed, embodied an innovative lawlessness based on extravagance, greed, and the pursuit of great riches. A new “class of criminals” now existed. Many of these illicit enterprises were national in scope, facilitated by new technologies like the railroad and the telegraph, economic innovations like uniform paper money, and new havens for intoxication like “dives” and opium dens. For the first time both criminals and police referred to certain lawbreakers as professionals.

George Appo was one such professional criminal. At first glance Appo hardly seemed a candidate for any criminal activity; his diminutive size and physical appearance evoked little fear. By age eighteen he stood less than five feet five inches in height and weighed a slight 120 pounds. Everything about him seemed small: his narrow forehead, short nose, compact chin, and tiny ears that sat low on his head. Although Appo’s face displayed features of his mother’s Irish ancestry, his copper-colored skin reminded some of his father’s Chinese origins. Appo s brown eyes were less noticeable than his pitch-black hair and eyebrows, the latter meeting over his nose. The tattoos E.D. and J.M. were inscribed on his left and right forearms, respectively.

But Appo was one of New York’s most significant nineteenth-century criminals. A pickpocket, confidence man, and opium addict, he lived off his criminal activities during his teenage years and much of his adult life. On successful nights during the 1870s and 1880s, he earned in excess of six hundred dollars pilfering the pockets of those around him. equivalent to the annual salary of a skilled manual laborer. Even more lucrative was the elaborate confidence scheme known as the “green goods game.” The most successful operators—”gilt-edged swindlers” according to one—accumulated fortunes in excess of one hundred thousand dollars. By 1884 America’s most famous detective, Allan Pinkerton, identified the green goods game as “the most remunerative of all the swindles,” “the boss racket of the whole confidence business.

Appo made money, but his life was hardly a Horatio Alger tale of self-taught frugality and upward mobility. The offspring of a racially mixed, immigrant marriage, Appo was separated from his parents as a small child. Effectively orphaned, the young boy grew up in the impoverished Five Points and Chinatown neighborhoods of New York. He never attended school a day in his life. Appo literally raised himself on Gotham’s streets, becoming a newsboy and eventually a pickpocket and opium addict. This new child culture of newsboys, bootblacks, and pick-pockets, fed by foreign immigration and native-born rural migration, mocked the ascendant Victorian morality ol the era. New York needed no Charles Dickens to create Oliver Twist or Victor Hugo to invent Jean Valjean. Gotham had George Appo.

Appos youthful adventures persisted into adulthood. For more than three decades he survived by exploiting his criminal skills. Appo patronized the first opium dens in New York, participated in the first medical research on opium smoking, and appeared in one of Americas first the theatrical productions popularizing crime. On at least ten occasions he was tried by judge or jury. As a result he spent more than a decade in prisons and jails. Therein he experienced New York’s first experiment in juvenile reform with the school ship Mercury, as well as the lockstep, dark cells, and industrial discipline of American penitentiaries. He personally witnessed the lunacy found in the Matteawan State Hospital for the Criminally Insane, the easy escapes from the Blackwell’s Island Penitentiary, and the corruption associated with the nation’s largest jail: New York’s “Tombs.” During various incarcerations Appo’s teeth were knocked out, and he encountered a wide array of prison tortures. Life outside prison was even bloodier. On the street Appo was physically assaulted at least nine times, shot twice, and stabbed in the throat once. More than a dozen scars decorated his body.

Above all George Appo was a “good fellow,” a character type he identified and wrote about. A good fellow engaged in criminal activities while displaying courage and bravery, “a nervy crook,” in Appo’s words. Good fellows like Appo did not rely on strong-arm tactics to gel their way Instead they avoided violence, employing wit and wile to make a living. Theirs was a world of artifice and deception. When successful, a good fellow lavished his profits on others. He was “a money getter and spender.” Such mettle, pluck, and camaraderie implied a level of trustworthiness, mutuality, and dependability. Above all a good fellow was loyal, willing to withstand, in Appo’s words, “the consequences and punishment of an arrest for some other fellow’s evil doings both inside and outside of prison.”…

Read the entire Preface here.

Paralegal claims discrimination by law firm because of mixed-race heritage

The Southeast Texas Record: Southeast Texas’ Legal Journal
Beaumont, Texas
2013-03-25

John Suayan, Galveston Bureau

HOUSTON – Montgomery County resident Darren Chew claims he was subjected to racial discrimination while working for a collections law firm and has filed a lawsuit.

Recent court papers filed March 15 in the Houston Division of the Southern District of Texas allege Rausch Sturm Israel Enerson & Hornik LLC mistreated Chew because of his mixed heritage.

The plaintiff, whose father is of Chinese descent and mother white, worked as a paralegal/paraprofessional at the time of the events in question.

He states that derogatory racial terminology was often used at the respondent’s office and within the management’s earshot.

According to the suit, Chew was occasionally referred to as a “chink”, “chinaman”, “Uncle Tom” and “cracker”…

Read the entire article here.

Mixing it Up

Salon
2001-03-08

Suzy Hansen

Alabama just legalized black-white marriage. An expert talks about why it took so long and the American obsession with racial purity.

In November 2000, after a statewide vote in a special election, Alabama became the last state to overturn a law that was an ugly reminder of America’s past, a ban on interracial marriage. The one-time home of George Wallace and Martin Luther King Jr. had held onto the provision for 33 years after the Supreme Court declared anti-miscegenation laws unconstitutional. Yet as the election revealed — 40 percent of Alabamans voted to keep the ban — many people still see the necessity for a law that prohibits blacks and whites from mixing blood.

Werner Sollors, a professor of Afro-American studies at Harvard, was born in Germany and came to the United States in 1978. He has been studying and writing about the history of American interracial relationships since 1986. Sollors is the editor of the recently published “Interracialism: Black-White Intermarriage in American History, Literature, and Law,” a fascinating survey of legal decisions, literary criticism and essays by writers and scholars including Langston Hughes, W.E.B. Du Bois and Randall Kennedy. Salon spoke with Sollors by phone from his office in Cambridge about the mixed-race origins — and multiracial future — of the nation.

What took Alabama so long to overturn its anti-miscegenation law?

In the years after the Civil War, most of the Southern states made miscegenation bans part of their constitutions. And part of the constitutional provision was that no legislation should ever change them. These were not just ordinary laws that you could modify with a simple majority; they called for very complicated processes and very large majorities to be overturned.

In 1967, the Supreme Court invalidated these anti-miscegenation provisions with the Loving vs. Virginia case, and the Southern states began to adjust. But not right away. In the first 10 or 15 years, there wasn’t a lot of activism or popular support for having the laws changed — no politician wanted to be caught trying to remove those statutes. I think Mississippi did it in 1987 or 1988 — 20 years after the Loving vs. Virginia case…

…What’s been going on with racial categories in the census is also interesting.

The census had two rules. One is the 1997 rule that permitted everyone to mark more than one box in the 2000 census. Then came the 2000 evaluation procedure, which allowed the census to classify anyone who marked more than one box as part of the “people of color” category — if there was a white and color mix indicated.

Essentially, it’s one thing to say that a person can fall into multiple racial categories, but what happens to all the people in the old categories? It can have some disastrous consequences now because in some states, apparently many white Americans found it fashionable to indicate that they were Native American. In some counties where Native Americans were a minority they may now end up as a majority. There are lots of headaches with counting and civil rights and voting rights and districting that are going to come in the next two years as a result of this census decision…

Read the entire interview here.