Mixed Race Studies

Before state’s high court: role of race in identifying a face

Seattle Times
2012-03-03

Ken Armstrong, Staff Reporter

In a case out of Seattle’s University District, the Washington State Supreme Court is being asked to determine whether jurors should be told that eyewitnesses who identify strangers across racial lines — for example, a white man identifying a black man — are more likely to be mistaken.

In State of Washington v. Bryan Edward Allen, two issues intersect that could hardly be of greater importance to the functioning of the criminal-justice system: the role of race, and the reliability of eyewitnesses.

The case, argued Thursday before the state Supreme Court, is also about sunglasses. We’ll get to that later.

On an August evening in 2009, in Seattle’s University District, Gerald Marcus Kovacs called 911 and said a stranger on the street had just threatened to kill him. Within minutes, police picked up Bryan Allen at a nearby bus stop. Officers took Kovacs to Allen and asked: Is this the guy? “Yeah, definitely, that is 100 percent him,” Kovacs told police.

Two months later, Allen was convicted of felony harassment. He received a sentence of 14 months.

Kovacs is white. Allen is black.

Allen’s appeal argues that when the case was tried in King County Superior Court, the judge should have instructed jurors that when someone from one race identifies a stranger from another race, the chances of a mistake go up.

An assemblage of professors and legal advocacy groups — including the Innocence Network, the Washington Association of Criminal Defense Lawyers, the American Civil Liberties Union of Washington Foundation, and the Fred T. Korematsu Center for Law and Equality — filed briefs in support, saying a wealth of research shows that people often struggle to distinguish faces outside their own racial group…

…Arguing the other side, Deborah Dwyer, a King County prosecutor, did not challenge the science on cross-racial identifications. Instead, she took issue with having a trial judge tackle the matter rather than having an expert witness testify.

The proposed instructions would not only violate the state’s constitution, Dwyer said, but invite all kinds of “practical difficulties.”

“Our society now is increasingly made up of mixed-race people. Well, what race are they? To take an example we could all relate to: President Obama. He is of mixed racial heritage. If he’s an eyewitness to a crime, is he presumed to be able to identify white people and black people? Or, perhaps, neither?”

Dwyer also asked: “Does race include ethnicity?” Some studies say Chinese people struggle to distinguish Japanese people, and vice versa. Would trial judges need to instruct jurors in cases like that? And if someone’s race isn’t entirely clear, how is a judge to figure that out?…

Read the entire article here.

AMST 294-03  Mixed Race America: Identity, Culture, and Politics

Macalester College
Saint Paul, Minnesota
Spring 2012

SooJin Pate

This course is an introduction to the animating debates, themes, and issues in Critical Mixed Race Studies. Utilizing critical race theory and postcolonial analysis, we will examine the identities and experiences of multiracial or mixed race people, as well as the ways in which they have played a fundamental role in constructing race and shaping race relations, politics, and culture in the U.S. Topics in this course address the following: conquest and slavery, miscegenation laws, debates about the U.S. Census categories, U.S. militarism, representations of “mixed” people in the media, cultural expressions of “mixed” Americans, transracial adoption, queering mixed race studies, and the Mixed Race/Multiracial Movement.

“Freedom By A Judgment”: The Legal History of an Afro-Indian Family

Law and History Review
Volume 30, Issue 1 (February 2012)
pages 173-203
DOI: 10.1017/S0738248011000642

Honor Sachs, Assistant Professor of History
Western Carolina University, Cullowhee, North Carolina

Forum: Ab Initio: Law in Early America

On May 2, 1771, John Hardaway of Dinwiddie County, Virginia posted a notice in the Virginia Gazette about a runaway slave. The notice was ordinary, blending in with the many advertisements for escaped slaves, servants, wives, and horses that filled the classified section of the Gazette in the eighteenth century. Like countless other advertisements posted in newspapers wherever slaves were held, Hardaway’s advertisement read: “Run away from the subscriber, a dark mulatto man slave named Bob Colemand, 25 years old, tall, slim, and well made, wears his own hair pretty long, his foretop combed very high, a blacksmith by trade, claimed his freedom under pretense of being of an Indian extraction.”

Read or purchase the article here.

We as Freemen: Plessy v. Ferguson

Pelican Publishing Company
2003
176 pages
5½ x 8½
20 photos – Notes – Index
ISBN: 1-58980-120-2
EAN: 978-1-58980-120-2 hc

Keith Weldon Medley

In June 1892, a thirty-year-old shoemaker named Homer Plessy bought a first-class railway ticket from his native New Orleans to Covington, north of Lake Pontchartrain. The two-hour trip had hardly begun when Plessy was arrested and removed from the train. Though Homer Plessy was born a free man of color and enjoyed relative equality while growing up in Reconstruction-era New Orleans, by 1890 he could no longer ride in the same carriage with white passengers. Plessy’s act of civil disobedience was designed to test the constitutionality of the Separate Car Act, one of the many Jim Crow laws that threatened the freedoms gained by blacks after the Civil War. This largely forgotten case mandated separate-but-equal treatment and established segregation as the law of the land. It would be fifty-eight years before this ruling was reversed by Brown v. Board of Education.

Keith Weldon Medley brings to life the players in this landmark trial, from the crusading black columnist Rodolphe Desdunes and the other members of the Comité des Citoyens to Albion W. Tourgee, the outspoken writer who represented Plessy, to John Ferguson, a reformist carpetbagger who nonetheless felt that he had to judge Plessy guilty.

Spoilt for choice?

New Law Journal: Leading on debate, litigation & dispute resolution
Vol 162, Issue 7498
2012-01-26

Adrian Jack, Barrister & Rechtsanwalt
Enterprise Chambers

Encouraging greater judicial diversity is no easy task, says Adrian Jack

The government is consulting on creating greater diversity in the judiciary. Where candidates for judicial appointment are of similar merit, membership of a “protected category” should be a trump card, allowing the candidate with that status to be appointed over the rival.

The idea is a simple one. If a white and a black candidate are of roughly similar merit, the black candidate should be appointed. Likewise, if there were a male and a female candidate, the female should go through.

Immediately though a problem arises. What if a black man is up against a white woman? Does the black man’s ethnicity trump the other candidate’s sex? Or vice versa?

One solution in such a case would be to disregard the protected characteristic of both candidates. However, this would not necessarily increase diversity. Take a woman applying for a tribunal post. In tribunals 38% of judges are women (against 51% in the population at large), whereas the percentage of black, Asian and minority ethnic judges is 10.5%—more than the nine per cent in the population (Report of the Advisory Panel on Judicial Diversity, para 18). A woman should surely be able to argue that the black male candidate’s ethnicity should be ignored (because the tribunal judiciary is already sufficiently ethnically diverse), so giving her the tie-break.

Indeed the problems do not stop there. The consultation implies that it will be readily apparent which candidates have protected characteristics. Yet this is not so. Who is “black”? Someone of mixed race must qualify. But what of someone who is one eighth of black heritage? Or one sixteenth?

In a case of race discrimination in the employment tribunal it is normally sufficient for claimants to self-describe their ethnicity. If a claimant has such a small proportion of black ancestry that they show no physical or cultural signs of that ethnicity, then the claimant is unlikely to show that he was treated less favourably on the ground of his race…

Read the entire opinion piece here.

Book Review: Go White, Young Man

Vanderbilt Law Review
Volume 65, En Banc 1 (2012-01-30)
10 pages

Alfred L. Brophy, Judge John J. Parker Distinguished Professor of Law
University of North Carolina School of Law

Daniel J. Sharfstein. The Invisible Line: Three American Families and the Secret Journey from Black to White. New York: Penguin Press, 2011. 415 pp. Hardcover ISBN: 9781594202827.

Sharfstein’s book follows three families whose members at some point crossed the color line separating black from white—or tried and failed to. These case studies tell us what it is to be American—how race is central to our identity, how we use race to take down opponents or to exclude—and how the line separating black and white is sometimes porous. However, is not the story of race and American legal history about the ways that race is defined by law and by norms? Race mattered because people policed the line separating blacks and whites. That many states classified people with a small percentage of African ancestry as white suggests that it was possible to move across the color line. Still, the cases where the color line was policed, rather than crossed, are significant.

Our nation’s struggle with race is now about one-third of a millennium long. So there is a lot for Daniel Sharfstein’s epic work of American history, The Invisible Line, to engage as it sweeps across centuries—from Virginia in the 1600s to Washington, DC, in the 1950s—and as it details generations of lives, from humble farmers in Appalachia to heirs of Gilded Age merchants. Where most other people who have looked at such issues focus on the chasm between white and black, Sharfstein looks at people on the line separating black and white. He is able in this way to get at key—and often overlooked—issues, such as how people have crossed the color line in America and what efforts to cross and police it tell us about our national struggle with race and with equality.

To detail the sine curve of attitudes towards race, Sharfstein offers three case studies of how racial categorization has functioned and how it kept (or attempted to keep) African-Americans in their place. The book follows three families whose members at some point crossed the line separating black from white—or tried and failed to. Sharfstein’s elegant prose illuminates how the color line functioned for people on both sides of it. For those who could do so, there were great incentives to claim to be white rather than black. In one era, race could define who might be a slave; in later eras, it was central to who could live in desirable locations, who could go to the most desirable schools, who could have access to the best government jobs. From statutes to social norms, African-Americans were told that they were inferior and had to maintain their place. Thus, those who might pass for white—those who had light enough skin color and perhaps the geographic mobility to mask their family history—often did so.

Some of the story of passing is well known. President Warren G. Harding is said to have remarked in response to an allegation that he had African ancestry, “How do I know? One of my ancestors may have jumped the fence.” Some of the best-known literature of the Jim Crow era was about crossing the color line, like Nella Larson’s Passing. And even antebellum literature often addressed the crossing of the line from black to white. Uncle Tom’s Cabin, for instance, has a vignette about a light-skinned former slave who passed for white. Yet, even though we know that families crossed the color line (or attempted to), one wonders if the most important lessons from Sharfstein’s book are the ways the line was successfully policed rather than the ways it was crossed…

…We learn a great deal about the policing of the color line in Sharfstein’s book. Attempts to prevent passing sometimes failed, as in the Regulator Movement and in the Spencers’ Appalachia. In both of those cases, opponents of families who had once been identified as African-American unsuccessfully claimed that they were still African-American. But Sharfstein illustrates numerous occasions when the line was successfully policed: in Washington, DC, after Reconstruction, when O.S.B. Wall helped lead a western exodus movement; in the early twentieth century, when disfranchisement of blacks led to loss of representation in Congress and loss of civil service jobs, such as Stephen Wall’s at the Government Printing Office; and when an heir to the Field fortune—who, as a member of the Gibson family, had some African ancestry—put on a display at the Field Museum about the races of mankind.

We learn that statutes helped police the color line. For instance, statutes defined the blood quantum that permitted one to be considered white. Yet even when statutes defined one as black, social norms often classified a person as white. Sharfstein makes a bold statement about the porous nature of the color line in regard to slavery: “The difference between black and white was less about ‘blood’ or biology or even genealogy than about how people were treated and whether they were allowed to participate fully in community life. Blacks were the people who were slaves, in fact or in all but name; the rest were white.” This argument shifts the basis for being considered black from blood quantum to status—though the two were often highly correlated…

Read the entire review here.

Batson Revisited in America’s “New Era” of Multiracial Persons

Seton Hall Law Review
Volume 33, Issue 1 (2003)
Article 3
pages 67-108

John Terrence A. Rosenthal

Since two bloods course within your veins, Both Jam’s and Japhet’s intermingling; One race forever doomed to serve, The other bearing freedom’s likeness.
—Poem from Jacob Steendam to his multiracial son

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the government of the United States, which gives to bigotry no sanction—to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
—Letter from President George Washington to the Hebrew Congregation of Newport, Rhode Island (Sept. 9, 1790)

I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.
—Letter from Thomas Jefferson to Thomas Paine (1789)

INTRODUCTION

From the time of this country’s founding, America has always been a multiracial society. In the coming decades, America’s racial and ethnic diversity will continue to increase. The 2000 Census evidences the present and coming racial complexity. Mandated by the Constitution, this decennial census, for the first time allowed individuals to chose more than one race in identifying their racial heritage. The preliminary results of the 2000 Census show that the number of individuals claiming multiracial status is not insignificant. As many as 2.4 percent of our nation’s citizens consider themselves multiracial; and in California, the nation’s most populace state, the percentage is 4.7.

Given our society’s historical penchant for discrimination against minority racial groups, persons of multiracial backgrounds do and will continue to face many of the same problems related to racial discrimination that other minority racial groups in our country have historically faced. These problems include, employment discrimination, housing discrimination, and discrimination in the administration of our criminal justice system. Due to the difficulty often associated with distinguishing which racial groups multiracial individuals belong to or derive from, the problems of discrimination will present these people with unique, and often unrecognized and unaddressed problems. This Article will address one of these potential problems, which is associated with the administration of the criminal justice system: discrimination based on race in the use of peremptory challenges during the selection of jurors.

This country has an extensive history of racial discrimination in the context of the jury selection process. Although both the courts and legislatures have attempted to deal with the problem of racial discrimination in the jury selection process, the solutions provided do not solve the problem for those persons of multiracial descent who may not be readily identified or perceived as racial minorities. In particular, it is a challenge for society to prevent the racially discriminatory use of peremptory challenges in the jury selection process, if only one side in the litigation recognizes a multiracial potential juror as being multiracial and discriminates based on that person’s racial makeup. What if a juror is dismissed from the jury pool by one side due to his or her racial heritage, but neither the other side nor the judge recognizes the discrimination because the racial makeup of the juror is not readily apparent to either?

The present jury selection process, mandated by Batson v. Kentucky to address racial discrimination in the use of peremptory challenges, depends upon the ability of the judge and the attorneys for both sides to perceive the racial makeup of the potential juror. Only then will one party be on notice of the possibility of racial discrimination and raise the proper challenge. If this party does not recognize the dismissed person as being of multiracial descent, then the constitutional violation goes undiscovered and unremedied. Therefore, Batson, as it is presently structured and enforced, may not, and most likely will not solve the problem of racial discrimination in the use of peremptory challenges to exclude multiracial persons from juries.

In Part I, the Article will review the legal and societal history of racial discrimination against multiracial individuals in our country. Part II will then examine the historical problem of racial discrimination in the context of the jury selection process and describe the present judicial remedy used to address this problem. In Part III, the Article will discuss the results of the 2000 Census, the implications of this data with regard to the racial make-up of juries, and how these data and anecdotal evidence suggest the existence of a unique problem of racial discrimination against multiracial individuals in the jury selection process. Finally, Part IV will suggest some potential remedies for this “vexing” problem…

Read the entire article here.

Loving and the Legacy of Unintended Consequences

Wisconsin Law Review
2007,  Number 2
Pages 241-281

Rachel F. Moran, Michael J. Connell Distinguished Professor of Law
University of California, Los Angeles

Table of Contents

• I. Introduction
• II. Making History Rest on Traditional Assumptions
  • A. The Significance of Race
  • B. The Meaning of Marriage
  • C. A Domestic Paradigm of Race and Intimacy
• III. Undoing Traditional Assumptions: The Unintended Consequences of Loving
  • A. New Frontiers in Race: Multiracialism and Colorblind Segregation
    • 1. The Mixed Promise of Multiracialism
    • 2. The Rise of Colorblind Segregation
  • B. New Paradigms of Intimacy: Same-Sex Marriage Advocacy and the Rise of Marriage-Minded Singlehood
    • 1. The Same-Sex Marriage Movement
    • 2. Marriage-Minded Singlehood
  • C. From the Color Line to the International Border
• IV. Conclusion

Introduction

If it can take a decade for a person to appreciate the implications of a major life event, it can take even longer to realize the significance of a turning point in the history of a nation. Perhaps for that reason, we hold commemorative events like this one.  An anniversary is an opportunity to reflect on a pivotal moment with distance and detachment and to weigh the consequences more fully than was possible at the time. On this fortieth anniversary of Loving v. Virginia, perhaps what is most striking is that a case deemed pathbreaking in its day now seems to have taken so much for granted.  Because the United States Supreme Court interrogated the meaning of neither race nor marriage, Loving has been invoked in a number of later struggles in ways that might have taken the Justices by surprise. This result, of course, is part of the law of unintended consequences: the more that is left unexamined, the more likely that a fresh look will reveal implications beyond those originally contemplated.

Here, I will explore Loving’s unintended consequences by considering why the Court took so much for granted and how the opinion later was deployed in unexpected ways. After briefly examining the facts and holdings in the case, I will show that the Justices accepted monoracial categories as a given, despite evidence of multiracial complexity. The Court’s treatment of race reflected the need to implement desegregation orders that turned on clearcut racial distinctions. The Justices also regarded marriage as a longstanding tradition. Already under attack for conjuring up unenumerated rights that did not appear in the Constitution, the Court was loath to suggest that marriage was anything other than an uncontroversial historical institution.

Ironically, the Court’s assumptions about race and marriage have been directly subverted by those who most openly lay claim to Loving’s legacy. Proponents of multiracialism and advocates of same-sex marriage argue that their reform proposals are a natural outgrowth of the Court’s conceptualization of freedom and equality. At the same time, Loving’s subtler consequences have gone largely unaddressed. The case arguably ushered in a jurisprudential philosophy that treats colorblindness and ongoing segregation as compatible. In addition, the decision entrenched the primacy of marriage in the law’s recognition of close personal relationships. Finally, Loving acquiesced in the presumption that romance happens only among Americans and so the decision has been of little import in dignifying and protecting the intimate attachments of noncitizens. Such a complex legacy demonstrates why a perfectly factual account of Loving simply will not do, and so it may take some time to appreciate the consequences.

Read the entire article here.

The Multiracial Epiphany of Loving

Fordham Law Review
May 2008, Volume 76, Number 6
pages 2709-2733

Kevin Noble Maillard, Associate Professor of Law
Syracuse University

The year 1967 becomes the temporal landmark for the beginning of an interracial nation. That year, the United States Supreme Court ruled state antimiscegenation laws unconstitutional in Loving v. Virginia. In addition to outlawing interracial marriage, these restrictive laws had created a presumption of illegitimacy for historical claims of racial intermixture. Not all states had antimiscegenation laws, but the sting of restriction extended to other states to forge a collective forgetting of mixed race. Defenders of racial purity could depend on these laws to render interracial relationships illegitimate. Looking back to Loving as the official birth of Multiracial America reinforces the prevailing memory of racial separatism while further underscoring the illegitimacy of miscegenations past. By establishing racial freedom in marriage, Loving also sets a misleading context for the history of mixed race in America. Even though Loving instigates the open acceptance of interracialism, it unintentionally creates a collective memory that mixed race people and relationships did not exist before 1967. To imagine and realize a pre-1967 miscegenated America directly challenges the legal legitimacy of the racial reality that antimiscegenation law attempted to enforce. I approach this subject by examining contemporary claims of mixed race that are rooted in the past. This conflict usually entails opposing narratives: one venerating the involvement of a prominent historical figure as party to an interracial relationship; the other steadfastly holds that such claims are unfounded as specious. Placing miscegenation upon narratives and figures that are faintly characterized and understood as racially white turns private claims of mixed identity into public contemplations of interracial intimacy. To imagine historic figures as “Founding Fathers” of another sort destabilizes an implicit understanding of ingrained racial limitations.

..This essay takes issue with the overemphasis on Loving as the enabler for mixed race in the United States, and concomitantly, its effect on legitimating a varied interracial past. Gary Nash’s thesis demonstrates a notable irony: if our just, democratic system openly permits and justifies the “happening thing” of mixed race, why is this same valorization and recognition not extended to the pre-Loving era? Turning to a single court case to celebrate a social phenomenon that has existed at the margins of American culture mistakenly erases the past of racial amalgamation that preexisted the legality that Loving provided. In the system of the racial binary that has been established in the United States, mixtures that disrupt the notion of racial purity, particularly those that originate in the time period before Loving, are presumed to be deviant and abnormal. The collective racial memory in the United States, unlike that of Mexico or Brazil, operates from an assumption of racial purity and sexual avoidance of miscegenation. This national culture of disbelief of racial intermixture has permeated our views of history and law.

This essay argues that looking to Loving as the birthplace of interracialism reinforces the legal authority and resultant legacy of the antimiscegenation regime that it replaced. In addition to outlawing interracial marriage, these restrictive laws created a lasting presumption of illegitimacy for historical claims of racial intermixture. Defenders of racial purity could depend on these laws to render interracial relationships, whether married or unmarried, improbable and illegitimate. Not all states had antimiscegenation laws, but the sting of restriction extended to other states, forging a collective forgetting and denial of the existence of mixed race. The absence of a national, judicial acceptance of mixed race facilitated a collective belief in racial purity. Because it was illegal and immoral, it could not have occurred. As states were withholding the marital right from biracial couples, they attempted to deny and erase the intimate reality of persons, like Richard and Mildred Loving,who would have sought alternatives to the prohibitive law…

Read the entire article here.

The Loving Story

Home Box Office (HBO)
2012-02-14, 21:00 EST

Nancy Buirski, Director and Producer

In June 2, 1958, a white man named Richard Loving and his part-black, part-Cherokee fiancée Mildred Jeter travelled from Caroline County, VA to Washington, D.C. to be married. At the time, interracial marriage was illegal in 21 states, including Virginia. Back home two weeks later, the newlyweds were arrested, tried and convicted of the felony crime of “miscegenation.” To avoid a one-year jail sentence, the Lovings agreed to leave the state; they could return to Virginia, but only separately. Living in exile in D.C. with their children, the Lovings missed their families and dearly wanted to return to their rural home. At the advice of her cousin, Mildred wrote a letter to Attorney General Robert F. Kennedy, who wrote her back suggesting she get in touch with the American Civil Liberties Union.

Two young ACLU lawyers, Bernard S. Cohen and Philip J. Hirschkop, took on the Lovings’ case, fully aware of the challenges posed at a time when many Americans were vehement about segregation and maintaining the “purity of the races.” In interviews filmed at the time, the two lawyers dissect the absurdities of the laws and the difficulties of trying a case over five years old. Today, Hirschkop recalls that Mildred was quiet and articulate, while joking that his initial impression of Richard was that he looked like a crew-cut “redneck.” As they came to know them, however, it became apparent that the couple was deeply committed to each other. With an eye towards taking their case to the highest possible court, Cohen filed a motion to vacate the judgment on the Lovings’ original conviction and set aside the sentence. Local Judge Leon Bazile denied the motion, stating that God had separated people by continents and did not “intend for the races to mix.” After the Virginia Supreme Court responded with similarly antiquated and racist sentiments, Cohen and Hirschkop seized the opportunity to take the case to the U.S. Supreme Court.

Although the odds of getting a case heard by the Court were slim, Cohen and Hirschkop learned that Loving v. Virginia would be heard on April 10, 1967. Aware that their case had the potential to set a landmark precedent, the two green lawyers (Hirschkop was only two years out of law school and had never argued before the Supreme Court) prepped in New York before heading to the famous Supreme Court building in D.C. In oral arguments heard on audiotape, the State compared anti-miscegenation statutes to the right to prohibit incest, polygamy, and underage marriage, claiming that children are victims in an interracial marriage. The plaintiff’s lawyers, by contrast, included legal arguments interspersed with references to sociology and anthropology. And though the Lovings chose not to attend, Cohen may have made the most compelling case by relaying to Chief Justice Warren and his fellow judges Richard’s simple message: “Tell the court that I love my wife, and it is unfair that I can’t live with her in Virginia.”

After a two-month wait, the U.S. Supreme Court ruled unanimously in favor of the Lovings on June 12, 1967. This precedent-setting decision resulted in 16 states being ordered to overturn their bans on interracial marriage. Alabama was the last holdout, finally repealing its anti-miscegenation law in 2000.