Mixed Race Studies

Why Affirmative Action Remains Essential in the Age of Obama

Campbell Law Review
Volume 31, Issue 3 (2009)
pages 503-533

Reginald T. Shuford, Senior Staff Attorney, Racial Justice Program
American Civil Liberties Union Foundation

With the election of Barack Obama to the most powerful position in the world, the presidency of the United States of America, many opined that America finally conquered her racial demons, some trumpeting the term “post-racial” as though it were a fait accompli. That an African-American man-much less one with such a nontraditional name-could ascend to the highest office in the land, they argue, clearly signals that America’s racist history is a thing of the past. Gone. Over. Kaput. Slate wiped clean. Concomitant with their notion of a post-racial America is the strong belief that complaints of racism lack merit, and measures to remedy past and current exclusionary practices are no longer necessary. But saying it is so does not make it so. There can be no doubt that Obama’s election represents a singular moment in American history and demonstrates significant and welcome progress in America’s notoriously fraught racial relations. That said, claims that America is truly post-racial are decidedly premature. Indeed, during this very election season, some voters conceded that Obama’s race was an issue impacting whether they would vote for him.

It also bears noting, at the risk of stating the obvious, while it is true that Obama’s victory shattered the ultimate political glass ceiling, he, black or otherwise, is not your “Average Political Joe.” As such, whether his election portends a future where African-American candidates, and other candidates of color, will be elected to the highest office in the land with any degree of regularity is debatable. For generations, African-American parents preparing their children for the harsh realities of racism have told them that they are required to be twice as good and work twice as hard as everybody else, just to stand a fighting chance at leading successful and productive lives. President Obama may personify that concept better than most. Among his many notable accomplishments, Obama is the graduate of two Ivy League schools, Columbia University and Harvard Law School, where he graduated magna cum laude. At Harvard, he served as the first African- American president of the Harvard Law Review. Obama is also the author of two best-selling books, Dreams from My Father and The Audacity of Hope. He was a constitutional law professor at the University of Chicago. His well-known political successes include his career-defining delivery of the keynote address at the 2004 Democratic National Convention, which catapulted him onto the national and, perhaps, international stage. During his tenure in the Senate, Obama was the sole African-American.

Beyond his academic and professional accomplishments, President Obama possesses a combination of personal traits-powerful oratorical skills, discipline, equanimity, self-confidence, and the ability to connect with and inspire a broad range of people-that undoubtedly have contributed to his phenomenal success and uniquely qualified him to be the right person for the job at this particular moment in our history. Even Obama’s biracial background advantages him, for example, with the ability, evident in his Speech on Race, to speak credibly from both sides of the racial divide. His background might also have benefited him in another way: Perhaps, he was not “too black” for certain skittish voters. In light of his eminent qualifications, many wondered whether Obama’s racial background at least partly accounted for the relative closeness of much of the race between him and John McCain…

Read the entire article here.

Lawsuit Challenging Obama’s Qualifications Is Tossed Out In Federal Court

AlaskaPublic.org
2012-09-12

Matt Miller, KTOO – Juneau

An Alaska-based federal judge has thrown out a lawsuit challenging President Barack Obama’s qualifications to appear as a candidate on the November general election ballot.

Gordon Warren Epperly of Juneau claims that Obama does not have the political right to hold federal office because he’s of mixed race. Epperly filed an objection with the state Division of Elections in April and sued in state Superior Court in July…

…The case was moved to U.S. District Court where Judge Timothy Burgess on August 24th dismissed the lawsuit ‘with prejudice.’ That means it can never be brought up again…

Read the entire article here.

Elections division turns aside Obama nomination challenge

KTOO News: Public Radio at 104.3
Juneau, Alaska
2012-03-06

Matt Miller

The state Division of Elections has turned down a challenge of President Barack Obama’s qualifications to be on the election ballot in Alaska. The challenge was filed by a Juneau resident who says the Democratic candidate is not qualified to run for re-election because he’s of mixed race.

It’s not a lawsuit filed in any court. Actually, it’s what’s called a nomination petition objection that was filed directly with the Division of Elections.

Division director Gail Fenumiai referred the objection to election attorneys within the Department of Law for further review.

“This is first time that we’ve received something like this,” says Fenumiai.

Gordon Warren Epperly is a retired bus driver in Juneau. He challenges Barack Obama’s qualifications to be on the ballot during Alaska’s presidential primary and general election. He says that Orly Taitz and others who’ve challenged Obama’s qualifications of being a ‘natural born citizen’ because of an alleged birth outside of the country went at it all wrong. He says there is no real requirement for a candidate to produce a birth certificate.

Epperly declined to talk on tape for this story. But in his filing he references the infamous Dred Scott decision which he says has never been overturned by the Supreme Court. He says Negros or Mulattos (he pronounces it mull-EYE-ttos) were not eligible to be citizens until the Fourteen Amendment was ratified in 1868. Even then, what Epperly calls ‘purported’ ratification of the amendment only allowed for civil rights, not political rights that allowed them and their descendants to hold federal office…

Read the entire article here.

Making The Application

Valley Spirit
Franklin County, Virginia
1867-10-02
page 1, column 8

Source: Valley of the Shadow: Civil War Era Newspapers, University of Virginia Library

Relates a ficticious story about a conversation between two white men, one Republican the other Democrat, in which the consequences of black suffrage are discussed.

Several days ago a Republican and a Democrat got into conversation on the subject of making voters out of negroes. The Republican contended that negroes should be allowed to vote as a matter of right.

“But,” replied the Democrat, “that will lead to social equality.”

“Let it,” rejoined the Republican, “the only difference between the negroes and the white is the color of skin and in the hair.”

“Then you think,” said the Democrat, “that the negroes should have the same social, as well as the same political privileges the whites enjoy.”

“Certainly,” replied the Republican.

“Now, suppose a negro and your daughter should conclude to contract marriage, what would you do in regard to that?” asked the Democrat.

“Why, I should let her, of course,” responded the Republican.

“And you would enjoy dandling on your knee a mulatto grand-child, would you?” queried the Democrat.

“Oh, no. I should not do that. If my daughter married a negro, I should discard her,” replied the Republican with spirit.

“What,” asked the Democrat, “discard your daughter for believing and practicing the doctrines you teach? Come neighbor, don’t you think you are carrying this negro business too far? If there is no difference really between a negro and white man, excepting the color of hi skin and in the matter of hair, why would you discard your daughter for marrying a negro instead of a white man?”

The Republican hung his head thoughtfully. This is a point all men should thoughtfully think over before they vote on the subject of making the negroes the political equals of the whites. Political equality inevitably leads to social equality, and social equality lays the foundation for the intermarriage of the races.

Cameron reshuffle brings critic of legal aid cuts into ministry of justice

The Guardian
2012-09-05

Owen Bowcott, Legal Affairs Correspondent

New Conservative minister Helen Grant criticised coalition policy on Guardian website last year

One of the new ministerial appointees to the Ministry of Justice (MoJ) has previously been highly critical of the government’s key policy decision to axe £350m from the civil legal aid budget.

Helen Grant, Conservative MP for Maidstone and The Weald, practised as a legal aid solicitor for 20 years and established her own firm in Croydon helping clients through family and social welfare cases. On Tuesday, she was made a justice minister.

Writing for the Guardian’s law website last year, as the green paper on legal aid began its passage through the Commons, Grant declared: “Our country’s financial health is a priority, but not at the cost of basic social justice.

“It cannot be right that those most in need of support are left without it … We must ensure we protect those most vulnerable here at home and treat this debate with the care it deserves.” She eventually voted for the Legal Aid, Sentencing and Punishment of Offenders Act after it was altered through successive amendments.

Grant, 50, who has a Nigerian father and English mother, should be able to defend herself ably in political infighting: she was under-16 judo champion for the north of England and Scotland. She was briefly a member of the Labour party before becoming the Conservative party’s first black female MP. She has worked with Iain Duncan Smith’s Centre for Social Justice…

Read the entire article here.

The Aborigines Act, 1911 [Australia]
1911-12-07
Number 1048
Source: Australian Institute of Aboriginal and Torres Strait Islander Studies

An Act to make provision for the better Protection and Control of the Aboriginal and Half-caste Inhabitants of the State of South Australia.

1. This Act may be cited as ‘‘ The Aborigines Act, 1911.”
2. The Ordinance No. 12 of 1844, being an Ordinance to provide for the protection, maintenance, and up-bringing of orphans and other destitute children of the aborigines, is hereby repealed : Provided that such repeal shall not alter the effect of the doing or omission of any thing before the passing of this Act, and shall not affect any right granted, obligation imposed, liability incurred, or any offence committed by, under, or against the said Ordinance, or any proceedings commenced before or after the passing of this Act with respect to any of such matters or things…

• …10. (1) The Chief Protector shall be the legal guardian of every aboriginal and every half-caste child, notwithstanding that any such child has a parent or other relative living, until such child attains the age of twenty-one years, except whilst such child is a State child within the meaning of ‘‘ The State Children Act, 1895,” or any Act amending or substituted for that Act. (2) Every Protector shall, within his district, be the local guardian of every such child within his district. (3) Such local guardian shall have and exercise the powers and duties prescribed…

Read the entire act here.

Brazil Enacts Affirmative Action Law for Universities

The New York Times
2012-08-30

Simon Romero, Brazil Bureau Chief

RIO DE JANEIRO — Brazil’s government has enacted one of the Western Hemisphere’s most sweeping affirmative action laws, requiring public universities to reserve half of their admission spots for the largely poor students in the nation’s public schools and vastly increase the number of university students of African descent across the country.

The law, signed Wednesday by President Dilma Rousseff, seeks to reverse the racial and income inequality that has long characterized Brazil, a country with more people of African heritage than any nation outside of Africa. Despite strides over the last decade in lifting millions out of poverty, Brazil remains one of the world’s most unequal societies.

“Brazil owes a historical debt to a huge part of its own population,” said Jorge Werthein, who directs the Brazilian Center for Latin American Studies. “The democratization of higher education, which has always been a dream for the most neglected students in public schools, is one way of paying this debt.”…

…But while affirmative action has come under threat in the United States, it is taking deeper root in Brazil, Latin America’s largest country. Though the new legislation, called the Law of Social Quotas, is expected to face legal challenges, it drew broad support among lawmakers.

Of Brazil’s 81 senators, only one voted against the law this month. Other spheres of government here have also supported affirmative action measures. In a closely watched decision in April, the Supreme Court unanimously upheld the racial quotas enacted in 2004 by the University of Brasília, which reserved 20 percent of its spots for black and mixed-race students…

…Brazil’s 2010 census showed that a slight majority of this nation’s 196 million people defined themselves as black or mixed-race, a shift from previous decades during which most Brazilians called themselves white…

Read the entire article here.

Law and the Boundaries of Place and Race in Interracial Marriage: Interstate Comity, Racial Identity, and Miscegenation Laws in North Carolina, South Carolina, and Virginia, 1860s-1960s

Akron Law Review
Volume 32, Number 3 (1999)
pages 557-575

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

In North Carolina in 1869, Wesley Hairston, a black man, and Puss Williams, a white woman, went on trial in Forsythe County for “fornication and adultery.” They claimed they were married, but the judge instructed the jury that no such marriage could be valid in North Carolina. When the jury convicted both defendants, they appealed the judge’s instruction and the jury’s verdict. The North Carolina Supreme Court dashed their hopes when it declared: “The only question in this case is, whether the intermarriage of whites and blacks is lawful.” A unanimous appeals court rejected the “pretended marriage” and upheld the convictions.

Hairston and Williams did not see their convictions as consistent with the facts. They thought they had both contracted a marriage and found instead that they had each committed a felony. Other couples ran into similar problems. Brought to court, some argued that they had entered a valid marriage and, having moved into another state, they should not be subject to the enforcement of its laws against interracial marriage. Others, challenging the premise that they did not share one racial identity, argued that, since they were both black or both white, the miscegenation law should not reach their marriage.

This essay draws from case materials in three states to explore two of the main problems in enforcing—or escaping conviction under—laws in the United States against interracial marriage during the hundred years after the Civil War. Questions of interstate comity and racial identity, though not both involved in every miscegenation case, would remain issues in many such cases as long as laws against interracial marriage remained in effect. Only in 1967, when the U.S. Supreme Court decided Loving v. Virginia and declared such laws unconstitutional, would the boundaries of race and place no longer have any bearing on the law of marriage between a man of one race and a woman of another…

…3. But What Race Is She Really?

In October 1881, John Crawford and Maggie Dancey went on trial for violating South Carolina’s new law against interracial marriage. After courting in North Carolina, they had decided to marry. The couple had heard that North Carolina had a stringent law against their doing so but, believing that South Carolina had no such law, they thought they had a remedy. Crawford moved back south across the state line to his home in York County, and Dancey soon followed from her family’s home in Mooresville, just north of Charlotte. They approached a black preacher, Edward Lindsay, about their wishes, and he assured them that they could marry in South Carolina. The ceremony took place, and their arrests soon followed.

The newlyweds’ marriage did not involve the question of comity, but it definitely involved another thorny issue, the question of racial identity. John Crawford testified that the fair-skinned woman he had married came from a family that, back in her hometown, was regarded as mixed-race. He had seen his wife’s grandmother, a “bright mulatto,” he said. The family attended a black church, associated only with African Americans, and despite their color, seemed to fall on the black side of the great racial divide. The couple’s argument was that, even though Maggie was of “fair complexion,” with “flaxen or light auburn hair and light blue eyes,” she was black just the same as her “dark mulatto” husband. If proved, the couple had not, after all, broken the law.

The fact that the only evidence in the case consisted of the defendants’ own testimony left the court perplexed. Because Maggie Dancey went on trial some distance from her family’s residence, no local witnesses could help the court with testimony regarding the Dancey family’s racial reputation. The judge called upon a white medical doctor, W. J. Whyte, to offer his expert testimony, but the doctor, after a brief examination in the waning light of day, reported the woman’s identity difficult to pin down. The judge held the trial over to the next morning. The doctor tried again but complained that the microscope with which he examined the woman’s hair and skin seemed inadequate to the task. If forced to choose, he held to his original opinion that Maggie Dancey was a white woman, but he could not be certain.

The judge put the matter in the hands of the jury. He told them that if they were unsure, they should resolve their doubt in favor of the woman. After an hour’s deliberation, the jury reported its verdict. Maggie Dancey was white, and John Crawford was not. Both were guilty…

Read the entire article here.

Disentangling “Race” and Indigenous Status: The Role of Ethnicity

Queen’s Law Journal
Volume 33, Issue 2 (Spring 2008)
pages 487

Sébastien Grammond, Dean and Associate Professor of Law
University of Ottawa

The notion of “race” is a social construction, discredited today by scientists as factually unsound. Individuals cannot be organized into discrete groups of people based solely on physical characteristics. An individual’s identity is now understood to consist of more than the contents of one’s blood. This more robust understanding takes account of other important elements of identity, such as the individual’s cultural and historical makeup. Despite this progress, the author argues, notions of race (sometimes in the form of blood quantum requirements) still define indigenous status in many countries, including Canada. The author posits that group identity would be best understood by reference to the concept of ethnicity, which leads to a broader understanding of identity that goes beyond the biological classifications associated with race.

The author analyzes the American Supreme Court case of Rice v. Cayetano, where the majority found that an ameliorative provision of the Hawaiian Constitution violated the Fifteenth Amendment of the U.S. Constitution due to its racial distinctions. The author contends that what separated the majority and dissenting judgements was the fact that the former took a racial view of indigenous identity and the latter an ethnic view. The majority focused on the word “race” in the impugned provision, thereby automatically labeling it as racist. According to the dissent, the intent of the provision was to recognize status on the basis of ancestry, and not on the basis of rigid blood purity requirements, as a racial distinction would. The author supports the dissenting view. He argues that while the concept of race is incoherent, ancestry might be a legitimate definition of identity, as it can reflect non-biological elements transmitted by descent. Rice v. Cayetano demonstrates how an inaccurate definition of indigenous status can undermine public policy initiatives meant to redress harm done to indigenous peoples. The author concludes by proposing that while ancestry may be a satisfactory determinant of ethnicity, group identity would be better understood with reference to other relevant sociological factors, such as language, residence, culture, participation in community events and self-identification.

Read the entire article here.

Pink and Blue in Black and White: Why Binary, Prescriptive Approaches to Human Categorization Still Won’t Yield the Desired Result

IIT Chicago-Kent College of Law
Honors Scholars Program
2010
23 pages

Karlyn Meyer

INTRODUCTION: SAME-SEX MARRIAGE AND MISCEGENATION

A Texas court asked “can a physician change the gender of a person with a scalpel, drugs and counseling- or is a person’s gender immutably fixed by our Creator at birth?” The Kansas Supreme Court echoed this inquiry. What the Texas Court characterized as a deep, philosophical question. others have called “loaded question.” The court’s framing of the issue previewed its ruling from the opinion’s first page. But the court’s Terminology indicated just how complicated The question was.

The question arose in a suit under Texas’ wrongful death statute. Christie Littleton lost her husband Jonathon in 1996. To have standing as his beneficiary, she had to be his surviving spouse. But Texas law threatened the validity of their marriage. This is because forty-four years earlier. Christie was bom a “physically healthy male” named Lee Cavalos, Jr. Thus the court posed. “[i]f Christie is a woman, she may bring this action. If Christie is a man. she may not.” When Christie was fifteen years old. Texas was one of fifteen states whose anti-miscegenation laws were overturned by the Supreme Court in Loving v. Virginia. In the years prior to this, the majority of states promulgated statutes preventing white people from marrying, or at least procreating, with people of color. In these states, the desire to prevent miscegenation was rivaled only bv the challenge of categorizing the races.

The Littleton opinion showed a court grappling with biological and social factors in an attempt to categorize Christie Littleton. The court framed the issue as determining her gender: male or female. But gender, like race, is a social construction. And like race, while it is heavily associated with biological characteristics, it lacks a true biological definition. Still, these constructions are firmly rooted in our society, and have served as a predicate to social citizenship. This citizenship, or the “status bestowed on those who are full members of a community. has been conditioned on race as well as conforming to a specific set of sexual norms. But the state’s continuous attempts to define its populace, thus regulating its citizens, are as complicated when the categories are male and female as when the categories are black and white…

Read the entire essay here.