Mixed Race Studies

Brazil’s Affirmative-Action Quotas: Progress?

The Chronicle of Higher Education
2012-11-05

Ibram H. Rogers, Assistant Professor of Africana Studies
State University of New York, Albany

Brazil recently passed what was probably the most sweeping affirmative-action law in the modern history of higher education. While the livelihood of affirmative action in the United States is in the hands of the Supreme Court, Brazil now requires its public universities to reserve half of their admission spots for its low-income students and compels its institutions to diversify significantly.
 
Yes, Brazil instituted what was firmly resisted by liberals and conservatives in the post-civil-rights-American push for affirmative action—quotas. The law comes after Brazil’s Supreme Court in April unanimously upheld the racial quota at the University of Brasilia, enacted in 2004, reserving 20 percent of its spots for black and mixed-race  students. The Law of Social Quotas will most likely face a challenge in the courts but, based on this earlier decision, it seems likely to stand.
 
The law forces the nation’s superior and largely free public universities to assign spots according to the racial makeup of each of the 26 states and the capital. Lawmakers and educators know that will lead to a surge in diversity in states with large black or mixed-race populations (well, surge may be putting it mildly). Officials expect the number of black students to jump nearly sevenfold, from 8,700 to 56,000.
 
The law gives public universities just four years to ensure that half of their entering classes come from public schools, which low-income students disproportionately attend. (Middle- and upper-class students, who are more likely to be white, typically attend private elementary and seconday schools.)
 
The law is nearly universally popular among Brazilian lawmakers. Only one out of 81 senators voted against it last month. President Dilma Rousseff signed it into law on August 29. Brazil’s former president, Luiz Inácio Lula da Silva told The New York Times he is “completely in favor” of quotas.
 
“Try finding a black doctor, a black dentist, a black bank manager, and you will encounter great difficulty,” Da Silva said. “It’s important, at least for a span of time, to guarantee that the blacks in Brazilian society can make up for lost time.”…

…For scholars of race, Brazil and the United States present a fascinating contrast, despite some similarities. The United States and Brazil have the two largest populations of people of African descent in the Western Hemisphere. A slight majority of Brazil’s 196 million people identify as black or mixed-race. Like in the United States, many of these black and mixed-race people are subjected to forms of racism that prevent access to higher education. Unlike in the United States, however, denial of this reality is not a problem. There is a vibrant national mainstream discussion of racism, and new dynamic legislators and laws to undo its effects…

Read the entire article here.

Aliens Admitted Here!

Evening Post
Wellington, New Zealand
Volume LVI, Issue 96
1898-10-20
Page 4
Source: Papers Past, National Library of New Zealand Te Puna Mātauranga o Aotearoa

The House cannot be congratulated on the treatment it meted out last night to the Immigration Restriction Bill, and the Premier showed a lamentable lack of power or of sincerity in allowing the debate to be shelved in the way it was. Doubtless some of the obstruction the measure experienced was prompted by the Premier’s arbitrary efforts to force Estimates through at the previous sitting. Such despotic procedure always has a bad effect upon members, and almost invariably leads to the delay of public business. Admitting this, however, we are still unable to understand the position taken up by the Opposition. It was so nearly one of factious disputation that it was calculated to play into the hand of an astute manoeuvrer like the present head of the Government. The whole point of the Bill was lost by the members who attacked it last night. In ignorance or of malice prepense they ignored for the most part the real nature of the measure, and devoted all their energies to the castigation of a more or less bogus side-issue. From the speeches of the Leader of the Opposition and some of hie followers it might have been supposed that the object of the Bill was to limit the immigration of Europeans who could not read or write. This view is an obvious distortion of the clause containing the so-called “educational test.” The history of the measure sufficiently disproves the erroneous assumption. Since the House has, as we believe, with quite inadequate reason blocked the passage of the Bill, it will be as well to give a short sketch of the events that led up to its introduction into our Parliament.

Considerable popular feeling has been displayed against the importation of Asiatics and other undesirable immigrants into the colony, and, however much one may honour the humanity of those who feel a distaste for the arbitrary exclusion of any particular race, it is undeniable that the evil effects of racial, mixing have again and again been exhibited in various parts of the world. The colour question in the United States is one of the most serious problems the American Republic has to face. South Africa is doubly troubled by native questions and Indian coolie difficulties, while, nearer home, Queensland has its Kanaka embarrassment, and in common with other parts of Northern Australia feels the danger of an influx of Japanese and Chinese. In matters of this kind the natural impulse of the generous minded is to give free access to the stranger, and to let him prove his right to settlement by his obedience to the local laws. But the hard facts of history and experience are against the sentiment. If we wish to make the future nation of New Zealand fit to hold its own in the world, we must preserve the integrity of our race. An influx of Asiatics might also at any time disorganise the labour market and throw back for years the good work done by trade combinations…

Read the entire article here.

Fathers of Conscience with Bernie D. Jones

Research at the National Archives & Beyond
Blogtalk Radio
2012-11-08, 21:00 EST (2012-11-09, 02:00Z)

Bernice Bennett, Co-Host

Natonne Elaine Kemp, Co-Host

Bernie D. Jones, Associate Professor of Law
Suffolk University, Boston, Massachusetts

Fathers of Conscience: Mixed-Race Inheritance in the Antebellum South

Bernice Bennett and Natonne Elaine Kemp welcome author Bernie D. Jones for an engaging discussion about her book—Fathers of Conscience: Mixed-Race Inheritance in the Antebellum South. Jones is Associate Professor, Suffolk University Law School.  She is a graduate of the New York University Law School and the University of Virginia Department of History.

Fathers of Conscience examines high-court decisions in the antebellum South that involved wills in which white male planters bequeathed property, freedom, or both to women of color and their mixed-race children. These men, whose wills were contested by their white relatives, had used trusts and estates law to give their slave partners and children official recognition and thus circumvent the law of slavery. The will contests that followed determined whether that elevated status would be approved or denied by courts of law.

For more information, click here.

Racial Commodification in the Era of Elective Race: Affirmative Action and the Lesson of Elizabeth Warren

University of Southern California Legal Studies Working Paper Series
Working Paper 92
31 pages
2012-08-20

Camille Gear Rich, Associate Professor of Law
Gould School of Law
University of Southern California

This Essay uses the current controversy over the racial self-identification decisions of former Harvard Law Professor Elizabeth Warren as an occasion to explore incipient cultural and legal anxieties about employers’ ability to define race under affirmative action programs. The Essay characterizes Warren’s racial self-identification decisions as proof of what I call “elective race,” a contemporary cultural trend encouraging individuals to place great emphasis on their “right” to racial self-identification and a related desire for public recognition of their complex racial identity claims. I argue that our failure to attend to the importance placed on racial self-identification by Americans today places persons with complex racial identity claims at special risk for racial commodification. The Essay further suggests that the Warren controversy gives us an opportunity to rethink the way we conceptualize racial diversity. I argue that we must shift away the current model, which conflates race and cultural difference, toward a model that assumes racial diversity initiatives are sampling for employees that can teach us about the diverse ways that race is actualized and experienced. The Essay suggests that diversity initiatives that stress race’s use value as a source of insight into the social process of racialization avoid the cultural commodification risks posed by current affirmative action programs, reorient employers away from thin concepts of diversity, and give employers a basis for making principled distinctions between employees’ racial identification claims. The Essay concludes by identifying and defending a three-part inquiry that can be used to identify proper beneficiaries of diversity-based affirmative action programs.

TABLE OF CONTENTS

• INTRODUCTION
• PART I. THE POLITICS OF RACIAL IDENTIFICATION IN THE ERA OF ELECTIVE RACE
  • A. The Right to Racial Self-identification In the Era of Elective Race
  • B. Employer Discretion In the Era of Elective Race
• PART II. REVISITING MALONE IN THE ERA OF ELECTIVE RACE
  • A. Authenticity Tests Versus Functionalist Inquiries About Race
  • B. Functionalist Inquiries About Race and the Risk of Racial Commodification
  • C. Re-writing Malone : Understanding the Social Processes of Racialization
    • 1. Physical Race or Phenotype-Based Race
    • 2. Documentary Race
    • 3. Social Race
• PART III. DEFENDING FUNCTIONALIST INQUIRIES INTO RACE
  • A. The Dangers of Laissez Faire Approaches to Race
  • B. The Dangers of Liberty- Based Approaches to Race (or the Return of the Honestly Held Belief Standard)
  • C. Applying the Functionalist Inquiry to Warren and Malone
• CONCLUSION

INTRODUCTION

Over the past fifty years, despite periodic Supreme Court skirmishes, Americans have lived under a negotiated peace with affirmative action programs. Meanwhile employers have labored in the trenches, attempting to implement affirmative action programs in a principled fashion. Employers’ primary challenge in this process is balancing employees’ dignity interests in racial self-identification and employers’ countervailing interest in making so-called racial “authenticity” judgments to ensure the benefits of these programs are properly allocated.  This normally invisible struggle was put on national display when we learned that Harvard Law School seemingly had manipulated the complex racial identification claims of law professor Elizabeth Warren after Warren disclosed that she was part Native American, based on family lore indicating that she had a biracial Native American grandfather. Given Harvard Law School’s reported difficulty in finding minority faculty candidates, the school was quick to bracket Warren’s primary claim of whiteness, and categorize her as a Native American professor to improve the school’s diversity record. Years later, when Warren’s Senate campaign led political muckrakers to uncover the tenuous basis for her claim of Native American identity, Warren was quick to point out that she was an “innocent victim” of Harvard’s racial categorization decisions, as she neither sought nor received any affirmative action benefits based on her decision to identify as Native American. However, Warren’s caveats did little to assuage the concerns of race scholars about the harms threatened by her case. For the Warren controversy revealed that there was no protective force that stood between Harvard’s strategic diversity interests, its related desire to commodify Warren by race, and Warren’s personal interest in racial selfidentification. The Warren controversy warns about the ways in which an employee’s complex, racial identification decisions can be drafted to serve an employer’s purposes.

Concerns about the Warren controversy intensify when her treatment is contrasted against that of the Malone Brothers, two men who in 1977 self-identified as Black in their employment applications for the Boston Fire Department and were hired under an affirmative action program. Although the brothers previously had identified as white in their employment applications, they switched their racial identification to Black after they failed the Department’s standard entrance exam and learned of the more generous standards for Blacks under the Department’s court-ordered affirmative action program. The brothers felt entitled to make the switch, as family lore established that they had a Black greatgrandmother. In stark contrast to Warren, the Malone brothers were fired when the tenuous basis for their claims of Blackness were discovered, and they were adjudged to have committed “racial fraud.” The different results in the two scenarios, more than forty years apart, again raise complex questions about how to negotiate employees’ interests in “elective” or voluntary self-identification by race, employers’ discretionary power to define racial categories, and authenticity contests under affirmative action. For the fire department employer in Malone, just like Harvard in the Warren case, felt entitled to exercise its discretion to determine the character and content of racial categories, but this time employed a stricter, more rigorous authenticity-based standard that required further testing beyond the Malones’ simple act of self-identification.

Students of race look at the two cases and are puzzled. Why is it that Warren’s employer would embrace her tenuous claim of Native American ancestry today, but forty years ago the Malone Brothers similar claims about Blackness were the basis for termination? What happened in the four decades that separate the two cases to fundamentally change the employer’s orientation from one invested in restrictive definitions of race that test the racial authenticity of employees, to one prepared to accept the most tenuous act of self-identification as proof positive of racial status? Additionally, as a normative matter, what should we make of the extraordinary power we seem to have given employers to shape and mold an employee’s racial identity claims and draft them to its own purposes? Does an employer’s strategic approach to racial identity issues operate on a different moral or ethical plane than the strategic maneuvering of individuals? What role, if any, is there for law to play in negotiating these conflicts?

Indeed, contrary to post-racialists’ claim that Americans are being acculturated to ignore race, the sociological literature shows that individuals are actually being acculturated to demand that government and private employers respect and recognize their ever more complicated interests in racial self-identification. To document this trend, this essay explores contemporary changes in our views about racial identity over the past forty years and considers the consequences these changes have for the administration of affirmative action programs. After documenting the challenges our changed cultural views about racial
identity pose, the essay also warns that we must be mindful of the changed incentives of employers or affirmative action administrators in the era of elective race. In prior decades administrators might have opted for rather strict definitions of race; however, diversity demands and other factors have caused administrators contemporarily to prefer strategically deployed, flexible, and wide definitions for racial categories. Thus far, these changes in the understanding and treatment of race and their implications for affirmative action have gone unexplored…

…Part I of the Essay charts our path into the era of “elective race,” identifying the demographic, political and social changes that have encouraged Americans to regard the right to racial self-identification as a key dignity interest. This evolution has occurred simultaneous with employers litigating Title VII and Fourteenth Amendment affirmative action cases challenging their authority to define racial categories and the qualifications necessary to claim membership in a particular group. Although there is a rich scholarship on affirmative action and voluntary racial identification, no legal scholar has considered the impending conflict between employer’s discretionary definitional power over racial categories and the racial dignity interests of employees influenced by elective race understandings. I argue that, if employer discretion is left unbounded, employers will exercise broad power to shape race in ways that should give all Americans pause. Part II revisits the so-called racial authenticity inquiry conducted in Malone to reveals its functionalist foundations, and to retool this functionalist logic in ways appropriate for contemporary diversity-based affirmative action programs. I show that, by mining the inchoate concepts of race articulated in Malone, we gain insight into the diverse range of racialization processes that are the proper focus of diversity initiatives. Part II then considers Leong’s concerns about racial capital exchanges that occur in diversity-based affirmative action programs. I argue that the functionalist standard outlined here will clarify the proper terms on which racial status inquiries are conducted, and in this way ensure that we move away from the thin conceptions of diversity that lead to the commodification of race in its worst form.

Part III turns to the most common concerns about the functionalist inquiry, namely that it involves government in the elaboration and policing of the definition of racial groups. Specifically, Richard Thompson Ford and Cristina Rodriguez have warned against involving courts in disputes over the definition of racial categories, as they believe that in order to resolve these disputes government is required to give legal imprimatur to racial stereotypes and create “identity group subsidies” for putative racially-linked cultural practices. The revised functionalist analysis offered here is based on the understanding that we need greater demarcation between cultural diversity initiatives and racial diversity initiatives. I show that diversity initiatives that focus on diverse experiences of racialization largely avoid the stereotyping dangers that are the source of their concern. However, I also show that the law must recognize the link between race, culture and social subordination if it is to take account of the full range of racialization experiences that cause social subordination. Part III concludes by exploring Randall Thomas’s liberty-based arguments in support of relaxed approaches to racial identification, and the more contemporary manifestation of this argument in the work of Kenji Yoshino. This liberty-based approach to racial selfidentification again stresses the dignity injury employers and government inflict when they challenge employees’ racial identification decisions. The essay explains that this dignity interest must bow to queries about one’s experience of racialization when one claims, based on race, that one can advance an employer’s diversity goals…

…A. The Right to Racial Self-identification In the Era of Elective Race

Most Americans identify by race; however, the racial identity claims that most characterize the modern era are those made by multiracial Americans: persons who make complex claims regarding their racial ancestry and who in prior decades more willingly would have been absorbed into monoracial categories. Scholars such as Tanya Hernandez and Naomi Mezey have shown how in the 1990s multiracial advocacy groups shaped the national conversation on race as they petitioned for the addition of a new “multiracial” race category in the 2000 Census and 2010 Census. Multiracial advocates’ request for a separate multiracial category was ultimately rejected in favor of an option that allows multiracials to check off all racial categories with which they identify. Despite this setback, the multiracial movement still profoundly shaped federal policy and national discourse about race. Most significantly, the movement’s efforts caused the Office of Management and Budget to issue a revised “Directive 15,” the administrative guidance document that controls all federal racial data collection efforts. The new Directive 15 requires that all federal agencies respect an individual’s interest in racial self-identification and allow the exercise of this right or interest whenever possible in government-sponsored or solicited data collection processes…

…While Americans have been encouraged to see these moments of racial identity selection as important, the values and understandings that guide their decisions are surprisingly unclear. Some Americans may regard these inquiries as moments in which they are required to identify how they are racially perceived by others, regardless of whether their perceived race matches their personal racial identity commitments. Others answer these questions based on how they believe they are expected to answer these questions, either because of their family’s racial identity commitments or those of their cultural group. Still others answer these questions based on their symbolic commitment to particular communities, regardless of whether they have had any social experiences in which they were recognized as members of a given racial category. The wide variation in how individuals make their racial self-identification decisions makes these decisions ripe for misunderstanding, exploitation and abuse.

In addition to shaping federal racial-data-collection efforts, the multiracial movement also had a profound discursive impact on the language and constructs Americans use to articulate their relationship to race. For example, Census data shows that after the multiracial movement there was a surge in the number of persons that describe themselves as mixed race. Relatedly, a new group of “white multiracials” has emerged. These are persons who identify as white in certain circumstances, but also are willing to shift to a minority or multiracial identity when they enter a particular cultural context that makes minority background relevant, in response to significant life events, or even to gain potential strategic advantages in social interactions. Also, many more Americans are willing to challenge traditional, established racial categories and resist the default racial designation that would normally be assigned to them. For example, although persons who identify as Latino may regard this identity as a racial identity, federal law treats being Latino as a kind of ethnic designation and requires Latinos to further racially identify as white, Black or by using another federally recognized racial category. At present, large numbers of Latinos, particularly the young, resist this attempt to structure their racial identification choices and choose “other race” rather than select another option. Similarly, federal standards indicate that Middle Easterners should be categorized as white, but persons who identify as Middle Eastern may reject this proposition, citing their special experiences of discrimination as evidence that they are of a different race.

Further complicating matters, sociologists have raised questions about the integrity of peoples’ elective race decisions over time, as multiracials may change their responses to inquiries about race depending on the kind of form that is used, the order of the questions, and the context in which these questions are asked. Also, although the law review literature has devoted almost no attention to this issue, structural variables strongly influence racial identification decisions. For example, issues such as class, history of imprisonment and other experiences of social marginalization can trigger multiracials to “choose” to claim a minority identity. These insights are important, as they reveal that in many cases fluctuations in multiracials’ racial self-identification decisions are not driven by thin expressive interests or strategic considerations, but may be profoundly linked to grounding experiences of alienation and marginalization. Given the diverse array of influences that affect individuals’ racial self-identification decisions, we must develop legal analyses that treat elective race decisions in a manner that gives due weight to their complexity. Government has an obligation to develop an intelligent, coherent response on how to manage and interpret individuals’ shifting and sometimes conflicting racial identification choices as, in many cases,  individuals fail to fully appreciate the legal significance that attaches to these decisions.

Indeed, the law may be on a collision course with the cultural default emphasizing the importance of the right to racial self-identification, for most individuals are unaware that, to the extent this right exists, it is a defeasible one. Census officials still rely on third party observation or other categorization methods when it is impossible or more likely inconvenient to get racial self-identification information. This rule may result in a census official racially categorizing an individual in a way that fundamentally contradicts the individual’s own understanding of her race. Similarly, employers also retain the ability to racially identify employees when the employee declines to state his or her race, when conditions make racial data collection impossible or impracticable, or when the employee appears to have engaged in racial fraud. Education officials enjoy the same discretion. Last, and perhaps most important for our discussion here, employers and public entities retain the ability to define racial categories and the ultimate authority to determine whether an individual’s racial identity claims will be respected. Indeed Malone, while not cited for this proposition, stands for the principle that a public employer may define the content of a racial category and its membership. Subsequent cases have made this point more explicitly, as employees have challenged the technical definitions of race used by employers or government agencies when these definitions would prevent them from accessing benefits…

Read the entire paper here.

Race, Religion and Law in Colonial India: Trials of an Interracial Family

Cambridge University Press
November 2011
286 pages
6 b/w illus. 3 maps
228 x 152 mm; 0.51kg
Hardback ISBN: 9781107012615
Adobe eBook ISBN: 9781139181242
Mobipocket eBook: ISBN:9781139184861

Chandra Mallampalli, Associate Professor of History
Westmont College, Santa Barbara, California

How did British rule in India transform persons from lower social classes? Could Indians from such classes rise in the world by marrying Europeans and embracing their religion and customs? This book explores such questions by examining the intriguing story of an interracial family who lived in southern India in the mid-nineteenth century. The family, which consisted of two untouchable brothers, both of whom married Eurasian women, became wealthy as distillers in the local community. When one brother died, a dispute arose between his wife and brother over family assets, which resulted in a landmark court case, Abraham v. Abraham. It is this case which is at the center of this book, and which Chandra Mallampalli uses to examine the lives of those involved and, by extension, of those – 271 witnesses in all – who testified. In its multilayered approach, the book sheds light not only on interracial marriage, class, religious allegiance, and gender, but also on the British encounter with Indian society. It shows that far from being products of a “civilizing mission” who embraced the ways of Englishmen, the Abrahams were ultimately – when faced with the strictures of the colonial legal system – obliged to contend with hierarchy and racial difference.

Features

• A singular court case from the nineteenth century is at the heart of this intriguing book on race and hierarchy in colonial India
• A rich and engaging multi-layered approach which interrogates legal documents and interviews with witnesses to unveil social history of the period
• For students and scholars of colonial India, and legal and social historians

Table of Contents

• Introduction
• 1. Remembering family
• 2. Embodying ‘Dora-hood’: the brothers and their business
• 3. A crisis of trust: sedition and the sale of arms in Kurnool
• 4. Letters from Cambridge
• 5. The path to litigation
• 6. Litigating gender and race: Charlotte sues at Bellary
• 7. Francis appeals: the case for continuity
• 8. Choice, identity, and law: the decision of London’s Privy Council.

Life, Liberty, and the Pursuit of Whiteness: A Revolution of Identity Politics in America

Columbia Journal of Race and Law
Volume 2, Issue 1 (2012)
pages 149-166

Andrés Acebo

An enduring motif in American political history reflects the nation’s slow progression towards inclusion of a once disenfranchised populace. In the annals of its jurisprudence, the nation recalls a time when citizenship was linked to race: a time when the racial perquisites for naturalization were not challenged based on its constitutionality, but on who could be professedly “white.” President Obama’s election ushered in a new chapter to this American narrative. His election and the response to it reveal how far we have come and how far we have left to travel on the path towards equality in citizenship.
 
This Article frames a longstanding debate concerning race consciousness in the political sphere and how it consequently influences an ever-changing electorate. It explores the impact that our courts and our policymakers have had on shaping what it means to be white in America, and accordingly to possess a majority voice in society. The Article further seeks to explicate how politicized social institutions are sustained from generation to generation by way of an unabashed preservation of the status quo. Those who come to power do so by protracting nostalgic yearnings, summoning persistent lore and mythos about a way of life that has not always benefited an entire electorate, and not threatening or offending the mainstay of the American political complex. Obama’s election revealed a model, embossed by a romanticized collective national history and a steadfast commitment to the ideals of American Exceptionalism, for transforming a minority candidate’s use of identity politics to garner support, influence and ultimately the ability to govern.

CONTENTS

• I. INTRODUCTION
• II. WHITENESS SOUGHT AND DEFINED IN AMERICAN JURISPRUDENCE
  • A. Contemporary Whiteness through Biology and Demographics
• III. 2008 PRESIDENTIAL ELECTION REVEALS NEW FORM OF RACISM
  • A. The Pursuit of the White Vote159
  • B. A Message of Change and the Opposition that Fears It
• IV. “REAL AMERICANS” INCITE RACISM WITH DIVISIVE RHETORIC
  • A. 2010 Candidates Followed Obama’s Example to Distinguish Themselves From Him
• V. AMERICAN EXCEPTIONALISM STIFLED BY NOSTALGIA FOR A MORE DIVISIVE ERA

I. INTRODUCTION

April 12, 2011, marked one hundred and fifty years since the Civil War’s first shots were fired at Fort Sumter. The war pinned brother against brother and forced an infant republic to confront its original sin of slavery. The sesquicentennial of that defining struggle provides this generation of Americans with the opportunity to reflect on how far we have come and how much further we must travel on the curving path toward our more perfect union. Despite undeniable progress, the nation’s wounds of bigoted conflict have not completely healed. Racism, albeit publicly renounced, has persisted and remained the scar that fervently reminds people of a much more divided time. In the twenty-first century, racism can no longer be classified as a social ill that plagues the ignorant and indifferent. Racism has transmuted from a “creature of habit” that sought to justify the subordination of some to a more nuanced political calculation for preserving the current racial political establishment. This phenomenon did not occur overnight, but it certainly did find the election of the nation’s first non-white president as the opportune moment to emerge. This new racism has been coupled with centuries-old nativism3 and has disguised itself under the banner of American Exceptionalism.

American Exceptionalism finds its roots in the romanticized emergence of the American democracy. Horatio Alger provided this narrative in parables about the American Dream, while John Winthrop’s famous speech painted America as the shining “city upon a hill.” What is so perplexing is that this idea, which helped form the tide that ushered Barack Obama to the presidency, has become the one that seeks to wash him out. The attack on the president has been one in which the racial epithets of yesteryear have been drowned out by the spewing of political rhetoric that claims to try to “take America back” for its rightful keepers. A growing sentiment in our political debate is that those who do not blindly accept America as the greatest civilization in history and those who admonish the present conditions as defiling the egalitarian principles enshrined in the Constitution are not true or real Americans. The emergent consequence is that race consciousness and, more specifically, what it means to be white in America is qualified by more politically conservative circles in terms of whether an individual subscribes to notions of American Exceptionalism. Groups enter the fold if they do not condemn, criticize, complain about, or campaign for any sort of fundamental change to the existing order. Essentially, for those once excluded, to now be white in America, they must not offend the structures that perpetuate white majoritarian influence.

The history of what is determinably white in the United States has been dictated by a fluid metric. It is not at all unusual that this redefinition has appeared at a time where Census projections reveal the rapid decline of the white majority in America. The U.S. Census Bureau has reported that, by 2050, minorities will be the majority in America. Minorities currently constitute one-third of the population in the United States, but according to census figures, they are projected to become the majority population by 2042. By 2050, minorities will constitute fifty-four percent of the population. The implications of what will come when these projections become reality are grave. With no majority white race, what will become of racialized existence in pluralist America? The prosperity and equality once drawn from the well of acculturation will be dried up. What will emerge in its place? Will a new dominant racial majority emerge or will accepted citizenship occur through enculturation? The answer is up for debate. However, history and judicial opinions alike reflect the absolute discriminatory intent behind separating citizens into groups of those deemed to belong and those who do not.

This Article proceeds in four parts. Part II explores and discusses the interplay of race and American jurisprudence. The privileges of American citizenship since the nation’s founding have been inextricably linked to racial classification. What it means to be white and who is white in America is constantly changing. Accordingly, the acquisition of rights has often been forged by racial reclamation. This section examines the decisions of the United States Supreme Court in Ozawa v. United States and United States v. Thind, where the nation’s highest court swiftly legitimized the practice of making whiteness more exclusive, harder to attain, and consequently more desirable. The Article postulates what will become of the remnants of the legacy of racial supremacy when the nation is redefined as a majority-minority electorate.

Part III evaluates President Obama’s 2008 election and examines how his pluralistic campaign revealed not just the progress that has been made in America’s journey toward racial equality, but also the new affronts to social harmonization. The 2008 presidential election, a transformative moment in American history, was not the watershed moment of racial reconciliation that it has been portrayed to be. This section offers that the election of the nation’s first non-white president established a new paradigm for identity politics in the United States. President Obama’s successful campaign revealed that America’s racial cacophony had not yet been keyed into melody. At the onset of a new century, with demographic trends envisaging a new racial electoral composition, the pursuit of whiteness has been relegated to romantic notions of American Exceptionalism. An uncertain future has birthed a movement emboldened by nostalgia that threatens that the ushering in of change will threaten the pillars of the republic.

Part IV analyzes the 2010 elections and considers how the Obama model for identity politics was galvanized and successfully used by some of his staunchest detractors. Leading candidates attached their personal narratives to the republic’s chronicles. In doing so, acquiescence to the establishment’s will promulgated a new sentiment, which reaffirmed the racialized social order. By not simply subscribing to the existence of American Exceptionalism, but instead expressing anguish and disdain for those who not only deny its veracity but seek to weaken its condition, minority candidates have found a way to appeal beyond their immediate base of supporters.

In concluding, Part V of this Article observes that America’s demographic shift towards a majority-minority citizenry will make little difference if its politics remain unshaken. In the end, elections will amount to nothing more than isolated victories rather than breakthroughs until the legacy of racial supremacy is eradicated. The law’s memorialization of an ethereal demonstration of racial privilege and a modern electorate’s hope to garner a pluralist society in which all persons are treated equal are once more pitted against each other at the highest levels of our public discourse. Amidst the demagoguery and rhetoric is the often-overlooked axiom that America’s “Exceptionalism” lies in the nation’s ability to confront its inequality and maintain that a government of the people, by the people, shall always be for all the people. Elections that usher in both the face of groups long removed from influence and, more importantly, their voice are only the first step on a long road to redemption.

Read the entire article here.

Letter, W. A. Plecker to A. T. Shields. 9 May 1925. Typescript.

Commonwealth of Virginia, Bureau of Vital Statistics
Richmond, Virginia
1925-05-09

Source: Rockbridge County (Va.) Clerk’s Correspondence [Walter A. Plecker to A.T. Shields], 1912-1943. Local Government Records Collection, Rockbridge County Court Records. The Library of Virginia. 10-0477-003.

In a letter to A.T. Shields, Walter Plecker asserted that Judge Holt’s decision to categorize Atha Sorrells as white despite her Indian heritage had “emboldened” the Rockbridge tribe. Nonetheless, he advised against appealing the Sorrells case to the Supreme Court because the court might rule in her favor.

Walter A. Plecker, Registrar

Hon. A. T. Shields,
Rockbridge County Clerk’s Office
Lexington, Virginia

Dear Sir:

In reply to your letter of May 4th, which came during my absence from the, office, I beg to advise that the matter in reference to an appeal in the Atha Sorrells case was left to the Attorney General and the lawyer, Mr. Shewmake, employed by the Anglo Saxon Clubs. After going over carefully the evidence, in view of the fact that nothing new could be introduced,  they decided that it was unwise to appeal the case as the only evidence upon which we absolutely relied,  that of our records was set aside by Judge Holt, and we would not care to take the risk of having the Supreme Court render a similar decision.   Our hope is to drift along until the next legislature, and have them pass a bill prevent ing the marriage of the Indians with the whites.   In my judgement there are no native Indians in Virginia unmixed with negro blood…

Read the entire letter here.

The Crime of Being Married

Life Magazine
1966-03-18
pages 85-
Source: Library of Virginia

Photographs by Grey Villet

A Virginia couple fights to overturn an old law against miscegenation

She is Negro, he is white, and they are married. This puts them in a kind of legal purgatory in their home state of Virginia, which specifically forbids interracial marriage.

Last week Mildred and Richard Loving lost one more round in a seven-year legal battle, when the Virginia Supreme Court upheld the constitutionality of the state’s antimiscegenation law. Once again they and their three children were faced with the loss of home and livelihood…

Read the article here.

The New Virginia Law To Preserve Racial Integrity

Virginia Health Bulletin
Virginia Department of Health
Volume XVI, Extra Number 2 (March 1924)
pages 1-4
Source: Pamphlet: Rockbridge County Clerk’s Correspondence, 1912–1943. Local Government Records Collection. The Library of Virginia, (Racial Integrity Act Documents) 12-1245-005

W. A. Plecker, M. D.
State Registrar of Vital Statistics, Richmond, Virginia

Senate Bill 219, To preserve racial integrity, passed the House March 8, 1924, and is now a law of the State.

This bill aims at correcting a condition which only the more thoughtful people of Virginia know the existence of.

It is estimated that there are in the State from 10,000 to 20,000, possibly more, near white people, who are known to possess an intermixture of colored blood, in some cases to a slight extent it is true, but still enough to prevent them from being white.

In the past it has been possible for these people to declare themselves as white, or even to have the Court so declare them. Then they have demanded tho admittance of their children into the white schools, and in not a few cases have intermarried with white people.

In many counties they exist as distinct colonies holding themselves aloof from negroes, but not being admitted by the white people as of their race.

In any large gathering or school of colored people, especially in the cities, many will be observed who are scarcely distinguishable as colored.

These persons, however, are not white in reality, nor by the new definition of this law, that a white person is one with no trace of the blood of another race, except that a person with one-sixteenth of the American Indian, if there is no other race mixture, may be classed as white.

Their children are likely to revert to the distinctly negro type even when all apparent evidence of mixture has disappeared.

The Virginia Bureau of Vital Statistics has been called upon within one month for evidence by two lawyers employed to assist people of this type to force their children into the white public schools, and by another employed by the school trustees of a district to prevent this action.

In each case evidence was found to show that either the people themselves or their connect ions were reported to our office to be of mixed blood.

Our Bureau has kept a watchful eye upon the situation, and has guarded the welfare of the State as far as possible with inadequate law and power. The condition has gone on, however, and is rapidly increasing in importance.

Unless radical measures are used to prevent it, Virginia and other parts of the Nation must surely in time go the way of all other countries in which people of two or more races have lived in close contact. With the exception of the Hebrew race, complete intermixture or amalgamation has been the inevitable result.

To succeed, the intermarriage of the white race with mixed stock must be made impossible. But that is not sufficient, public sentiment must be so aroused that intermixture out of wedlock will cease.

The public must be led to look with scorn and contempt upon the man who will degrade himself and do harm to society by such abhorrent deeds.

The Bureau of Vital Statistics, Clerks who issue marriage licenses, and the school authorities are the barriers placed by this law between the danger and the safety of the Commonwealth…

Read the entire article here.

Reaping the Whirlwind

The New York Times
Opinionator: Exculive Online Commentary From The Times
2012-10-17

Linda Greenhouse, Senior Research Scholar in Law, Knight Distinguished Journalist-in-Residence, and Joseph Goldstein Lecturer in Law
Yale University

On reading the transcript and listening to the audio of last week’s Supreme Court argument in the University of Texas affirmative action case, my primary reaction was one of embarrassment — for the court and also for Texas.

First the court. Of the four justices most intent on curbing or totally eradicating affirmative action — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas — the three who spoke (minus Justice Thomas, of course) failed to engage with the deep issues raised by Fisher v. University of Texas. Instead, they toyed with the case.

Chief Justice Roberts, after posing only one question to the lawyer representing Abigail Fisher, the rejected white applicant who filed a lawsuit claiming she was unconstitutionally discriminated against, flung 27 questions at the university’s lawyer, Gregory G. Garre, many seemingly designed to make the university’s commitment to assembling a diverse student body look silly. “Should someone who is one-quarter Hispanic check the Hispanic box or some different box?” the chief justice wanted to know. “What about one-eighth?” he persisted. “Would it violate the honor code for someone who is one-eighth Hispanic and says ‘I identify as Hispanic’ to check the Hispanic box?”

Justice Scalia piled on: “Did they require everybody to check a box or they have somebody figure out, oh, this person looks one thirty-second Hispanic and that’s enough?”

On it went, and it was impossible to avoid the conclusion that ridicule rather than a search for understanding was the name of the game. “How many people are there in the affirmative action department of the University of Texas?” Justice Scalia asked Mr. Garre. “Do you have any idea? There must be a lot of people to, you know, to monitor all these classes and do all of this assessment of race throughout the thing.” Justice Scalia mused that if the court invalidated the program, “there would be a large number of people out of a job,” a prospect that seemed to tickle his fancy.

It doesn’t take a genius to point out that it’s inherently problematic for the government to count people by race (“It is a sordid business, this divvying us up by race,” as Chief Justice Roberts famously expressed the thought during his first term on the court, dissenting from a 2006 Voting Rights Act decision that found that Texas had improperly diluted Latino voting strength). That’s why the Supreme Court has insisted that any affirmative action plan must meet the test of “strict scrutiny” — that is, that the plan must be “narrowly tailored” to serve a “compelling interest.”

But the fact is, as the justices obviously know, that the court has concluded that affirmative action in higher education admissions can clear that high bar — as it did nine years ago in Grutter v. Bollinger, the University of Michigan Law School decision. In other words, there was a context in which the Regents of the University of Texas, following upon the Michigan decision, chose to act, a history they sought to acknowledge, and a better future they hoped to achieve for their diverse state by supplementing the unsatisfactory and mechanical “top 10 percent” admissions plan with one that considers each applicant as an individual — with race as “only one modest factor among many others,” according to the university’s brief. It was this context that was almost entirely missing from the justices’ questions to the university’s lawyer. The questions were not so much hostile as trivializing…

Read the entire opinion piece here.