Mixed Race Studies

Multiracial Malaise: Multiracial as a Legal Racial Category

Fordham Law Review
Volume 86, Issue 6 (2018)
pages 2783-2793

Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence
University of Maryland Francis King Carey School of Law

The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only on government “racial” definitions. Multiracial individuals should enjoy the freedom to self-identify as they wish—and, like others, be afforded the protections of anti discrimination law. The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection” protecting the interests of white Americans from usurpation by non whites and, unless the creation of a separate multiracial legal category advances this goal, change will be resisted. Commentaries grounded in Fourteenth Amendment Equal Protection Clause and federal statutory anti-discrimination jurisprudence shape the construction of racial categories in U.S. law. This jurisprudence influences the racial categories and definitions used for the census. The next Part briefly discusses the attempt to get a multiracial category on the U.S. census.

[R]ace is at once an empty category and a powerful instrument. —Melissa Nobles¹

Racism is about race: more races can lead . . . to changes in the way racism is presented, and ultimately to more, rather than less, racism. —Paulette M. Caldwell²

INTRODUCTION

The fiftieth anniversary of Loving v. Virginia,³ which struck down Virginia’s antimiscegenation statute, provides an opportunity to reflect on Loving’s impact. A 2017 Pew Research Center analysis of U.S. Census Bureau data found that interracial marriages constitute 17 percent of all marriages,⁴ which represents an increase of 14 percent since the U.S. Supreme Court decided Loving in 1967.⁵ One byproduct of the increase in interracial marriages is the growing number and prominence of multiracial children. For example, a July 2017 Brookings Institution report characterizes Barack Obama, born six years before Loving, as the person who gave growing “prominence” to the emergence of multiracial people in America.⁶

Increasingly, there is interest in the offspring of interracial unions and how they compare to monoracial individuals. The Brookings Institution, for example, reported that “there is no test score gap between white and multiracial high school students.”⁷ The report seems to define “multiracial” very narrowly as people with parents from different racialized groups.⁸ Yet the multiracial population in the United States is not a new phenomenon. By limiting multiracial “to first-generation children of interracial couples,”⁹ as others have, the report fails to acknowledge older and larger generations whose genealogical mixture is more distant. Many of the people within this older multiracial population are racially classified by government and custom as black or African American, and they constitute “around 40 [percent] of the total population.”¹⁰ In contrast, according to the 2000 census, firstgeneration multiracial individuals (including those with remote African ancestry) make up roughly 2 percent of the total population and are more likely to be seen as multiracial.¹¹

Proponents of a multiracial legal category complain that multiracial individuals are harmed by not being recognized under law as multiracial. Specifically, they argue that the law neither recognizes their personal identity nor protects their right to self-identify racially and to have that identity accepted.¹² Despite the long history of multiracial people in the United States, Fourteenth Amendment equal protection constitutional jurisprudence, statutory antidiscrimination laws, and the census do not formally recognize a separate multiracial category. Thus, the question is whether legal recognition is needed to remedy race-based discrimination experienced by multiracial individuals.¹³

Historically, courts grappling with racial-identity questions looked at three factors, phenotypical characteristics, ancestry, and racial reputation in the community, to resolve the issue.¹⁴ The courts relied on a binary classification system of white and nonwhite; the underlying issue in these cases being whether one party had any nonwhite ancestry. Thus, until recently, Barack Obama, despite his white mother, would be classified racially as black, since twentieth-century notions of race held that any known African ancestry made one black.¹⁵

Admittedly, since Loving, conventional notions of race in the United States have “destabilized” as a result of “increases in immigration, intermarriage, and cross-racial adoptions.”¹⁶ Reflecting the era of racial self-identification,¹⁷ racial categories are more fluid in the twenty-first century, even for people who, historically, racially classified as black. These attitudinal changes are reflected in a 2007 Pew Research Center finding that “[n]early four-in-ten African Americans (37%) say that blacks can no longer be thought of as a single race” because of increasing diversity within that community.¹⁸

Conventional blackness, where one is “black” if one’s African ancestry is visible or known,¹⁹ is on the wane. As critical race theory legal scholar Neil Gotanda posits, race—particularly the racial category “black”—while a consistent and constant “social divider,” is not a “stable, coherent legal and social concept.”²⁰ Today, people with some African ancestry may move away from blackness and, in some respects, the legal multiracial category movement is an example.²¹

The focus of this Article is the underlying assumption of the Brookings Institution report that multiracial individuals constitute a separate racial category. My discussion of legal racial categories focuses only on government “racial” definitions. Multiracial individuals should enjoy the freedom to self-identify as they wish—and, like others, be afforded the protections of antidiscrimination law. The question is whether a separate legal racial category is needed to provide that protection. Race in this country has been “crafted from the point of view of [white] race protection”²²— protecting the interests of white Americans from usurpation by nonwhites and, unless the creation of a separate multiracial legal category advances this goal, change will be resisted.

Commentaries grounded in Fourteenth Amendment Equal Protection Clause and federal statutory antidiscrimination jurisprudence shape the construction of racial categories in U.S. law. This jurisprudence influences the racial categories and definitions used for the census. The next Part briefly discusses the attempt to get a multiracial category on the U.S. census…

Read the entire article here.

Separate: The Story of Plessy v. Ferguson, and America’s Journey from Slavery to Segregation

W. W. Norton
February 2019
624 pages
6.6 × 9.6 in
Hardcover ISBN 978-0-393-23937-9

Steve Luxenberg

A myth-shattering narrative of how a nation embraced “separation” and its pernicious consequences.

Plessy v. Ferguson, the Supreme Court case synonymous with “separate but equal,” created remarkably little stir when the justices announced their near-unanimous decision on May 18, 1896. Yet it is one of the most compelling and dramatic stories of the nineteenth century, whose outcome embraced and protected segregation, and whose reverberations are still felt into the twenty-first.

Separate spans a striking range of characters and landscapes, bound together by the defining issue of their time and ours—race and equality. Wending its way through a half-century of American history, the narrative begins at the dawn of the railroad age, in the North, home to the nation’s first separate railroad car, then moves briskly through slavery and the Civil War to Reconstruction and its aftermath, as separation took root in nearly every aspect of American life.

Award-winning author Steve Luxenberg draws from letters, diaries, and archival collections to tell the story of Plessy v. Ferguson through the eyes of the people caught up in the case. Separate depicts indelible figures such as the resisters from the mixed-race community of French New Orleans, led by Louis Martinet, a lawyer and crusading newspaper editor; Homer Plessy’s lawyer, Albion Tourgée, a best-selling author and the country’s best-known white advocate for civil rights; Justice Henry Billings Brown, from antislavery New England, whose majority ruling endorsed separation; and Justice John Harlan, the Southerner from a slaveholding family whose singular dissent cemented his reputation as a steadfast voice for justice.

Sweeping, swiftly paced, and richly detailed, Separate provides a fresh and urgently-needed exploration of our nation’s most devastating divide.

Remembering Jane Bolin, the first African-American female judge in the U.S.

New Haven Register
2019-02-27

David L. Goodwin, Staff Attorney
Appellate Advocates, New York, New York

Van C. Tran, Assistant Professor of Sociology
Columbia University, New York, New York

Judge Jane Bolin shown at her home in New York after she was sworn in as a family court judge on July 22, 1939. She was the nation’s first black female judge and the first black woman to graduate from Yale Law School. She died in 2007 at age 98. Photo: Associated Press File Photo

The struggle for inclusion and diversity in politics has ensued for decades, but for the first time in U.S. history, the rising political power of black women took center stage in the 2018 election. Last November, Harris County [Texas] made history by electing 17 black female judges to the bench — a group of candidates widely known as “Black Girl Magic.”

Their victory was extraordinary and unprecedented. Black female judges were the exception, not the norm, in the judiciary. In 1966, Judge Constance Baker Motley, appointed to the Southern District of New York by President Lyndon Johnson, became the first black woman to serve as a federal district judge. In 1979, Judge Amalya Kearse, appointed to the Second Circuit by President Carter, was the first black woman to be appointed to a federal Court of Appeals.

Three decades before these “first” appointments, Judge Jane Bolin (1908-2007) held the honor of being the first African-American female judge in the United States…

Read the entire article here.

Interracial Marriage in a Southern Area: Maryland, Virginia, and the District of Columbia

Journal of Comparative Family Studies
Volume 8, Number 2, ETHNIC FAMILIES: STRUCTURE AND INTERACTION (SUMMER 1977)
pages 217-241

Thomas P. Monahan, Professor of Sociology
Villanova University, Villanova, Pennsylvania

Representing the Southern tradition, Virginia and Maryland in Colonial times enacted strong laws against racial intermarriage, which continued in force until 1967. For over 100 years the District of Columbia, located between Virginia and Maryland at the North-South borderline, allowed the races to marry without legal restriction. Strong social restraints, nevertheless, existed. How frequently mixed marriages occurred in the District in the past, and in all three jurisdictions after 1967, when such marriages could legally take place anywhere in the United States, is a matter of special interest. What change has there been in the extent and nature of interracial marriage in this geographical area?¹

The Legal Control of Intermarriage

Shortly after the settlement of the English colonies in America, public opinion became antagonistic toward the interbreeding of whites with Negroes, mulattoes, or Indians, and laws were passed to control biological blending and intermarriage of the races (Ballagh, 1902; Johnson, 1919, Guild, 1936; Reuter, 1931:75; Scott, 1930; Wilson, 1965:20; Jordan, 1968:139).

Virginia

Ten years after the importation of a small number of Negro slaves into the colony, the Virginia Assembly in 1630 ordered the sound whipping of one Hugh Davis for lying with a Negress, a heathen (Hening, 1809:1-146; Hurd, 1858:1-229), and in 1640 a Robert Sweet was ordered by the Governor and Council to do penance in church for impregnating a Negro woman, who was to be whipped…

Read or purchase the article here.

Perpetual Suspects: A Critical Race Theory of Black and Mixed-Race Experiences of Policing

Palgrave Macmillan
2018
231 pages
Hardcover ISBN: 978-3-319-98239-7
eBook ISBN: 978-3-319-98240-3
DOI: 10.1007/978-3-319-98240-3

Lisa J. Long, Senior Lecturer in Criminology
Leeds Beckett University, Leeds, United Kingdom

• Provides a new, theoretical, intersectional and critical framework of race and policing
• Presents a powerful account on the continuing entrenchment of racialised policing in the UK
• Forwards thinking in the current, highly contested set of debates surrounding this issue

Grounded in Critical Race Theory (CRT), this book examines black and mixed-race men and women’s experiences of policing in the UK. Through an intersectional analysis of race, class and gender it analyses the construction of the suspect, illuminating the ways in which race and racism(s) shape police contact. This counter-story to the dominant narrative challenges the erasure of race through the contemporary ‘diversity’ agenda. Overall, this book proposes that making racism visible can disrupt power structures and make change possible. It makes a timely contribution to this significantly under-researched area and will be of interest to students, educators and scholars of Criminology, Social Sciences, Law and Humanities. It will also be of interest to criminal justice practitioners, communities and activists.

Table of contents

• Introduction
• Racialisation and Criminalisation of ‘Blackness’
• Policing the Racialised Other
• ‘Babylon Remove the Chain, Now They’re Using the Brain’: Race and the Perpetual Suspect
• The (Un)Victim of Crime: Racialised Victims and the Police
• Gendered Experiences of Racialised Policing
• Race, Class and Belonging
• A Critical Race Theory of Racialised Policing?

Black mixed-race men’s perceptions and experiences of the police

Ethnic and Racial Studies
Volume 42, 2019 – Issue 2
pages 198-215
DOI: 10.1080/01419870.2017.1417618

Lisa J. Long, Senior Lecturer in Criminology
Leeds Beckett University, Leeds, United Kingdom

Remi Joseph-Salisbury, Senior Lecturer in Education Studies
Leeds Beckett University, Leeds, United Kingdom

For black people in Britain, policing has long been a site of oppression and resistance. Whilst substantive change has been lacking, institutional racism within the British police has at least been acknowledged. Concomitantly, Critical Mixed Race Studies (CMRS) has shown that much of the race and ethnicity literature ignores the experiences of mixed-race populations. In this paper, we utilize two studies to consider black mixed-race men’s perceptions and experience of policing in Britain. In total, we draw upon interviews with 17 black mixed-race men. Whilst we recognize that their experiences are often homogenized with blackness, in the context of police contact, we show that many black mixed-race men believe they are seen as part of a black monolith. We conclude that, in this context, mixedness does not bring about clearly differentiated experiences from that of black men. The absence of clear particularities to mixedness is of significance to CMRS.

Read the entire article here.

What is Racial Passing?

Digital Studios: Origin of Everything
PBS Digital Studios
Public Broadcasting Service
Season 2, Episode 13 (First Aired: 2019-02-27)

Danielle Bainbridge, Host, Writer, and Postdoctoral Fellow
Northwestern University, Evanston, Illinois

What motivates someone to disguise their race, gender, religion, etc.? Today Danielle explores the complicated history of passing in the United States.

People of Mixed Ancestry in the Seventeenth-Century Chesapeake: Freedom, Bondage, and the Rise of Hypodescent Ideology

Journal of Social History
Volume 52, Number 3, Spring 2019
pages 593-618
DOI: 10.1093/jsh/shx113

A. B. Wilkinson, Assistant Professor of History
University of Nevada, Las Vegas

This article examines the origins of mixed-race ideologies and people of mixed African, European, and Native American ancestry—commonly identified as mulattoes—in the seventeenth-century English colonial Chesapeake and wider Atlantic world. Arguably, for the better part of the century, English colonial societies in the Chesapeake resembled Latin America and other Atlantic island colonies in allowing a relatively flexible social hierarchy, in which certain mixed-heritage people benefitted from their European lineage. Chesapeake authorities began to slowly set their provinces apart from their English colonial counterparts in the 1660s, when they enacted laws to deter intimate intermixture between Europeans and other ethnoracial groups and set policies that punished mixed-heritage children. Colonial officials attempted to use the legal system to restrict people of mixed ancestry, Africans, and Native Americans in bondage. These efforts supported the ideology of hypodescent, where children of mixed lineage are relegated more closely to the position of their socially inferior parentage. However, from the 1660s through the 1680s, these laws were unevenly enforced, and mixture increased with the growth of African slaves imported into the region. While many mulattoes were enslaved during this period, others were able to rely on their European heritage or racial whiteness. This allowed them to gain or maintain freedom for themselves and their families, before Virginia and Maryland institutionalized greater restrictions in the 1690s.

Read or purchase the article here.

A Study of the Wyoming Miscegenation Statutes

Wyoming Law Journal
Volume 10, Number 2 (1956)
pages 131-138

William E. Foster

The first ban on interracial marriage was passed in Maryland in 1661.¹ Since that time, forty states have followed with statutory bans on interracial marriages.² Twenty-nine states still have such prohibitions.³ Six of these states have constitutional bans as well as statutory provisions prohibiting such marriages.⁴ However, Iowa, Kansas, Maine, Massachusetts, Michigan, New Mexico, Ohio, Pennsylvania, Rhode Island, and Washington have repealed the miscegenation statutes which were once in effect in those states;⁵ and the Supreme Court of California has held its statute unconstitutional.⁶ While all twenty-nine states which have miscegenation statutes have provisions barring marriage of a White to a Negro,⁷ twelve states also have provisions which would bar marriage of Whites to various classifications of Asiatics.⁸ Three states in their statutes bar marriages of Whites to “Africans,” and have no explicit mention of Negroes;⁹ this type of statute would technically apply to the Dutch Afrikanders as well as to the Negro.¹⁰…

…The Wyoming miscegenation law is composed of two sections.¹⁸ The first, section 50-108, will be referred to as the prohibition section, and the second, section 50-109, will be referred to as the enforcement section. These statutes are both derived from one Act, chapter 57 of the Wyoming Session Laws of 1913, which was originally introduced as House Bill 153 of that year and was passed February 22, 1913, to take effect immediately upon its passage.¹⁹ The present statutes are unchanged from their original form. The Wyoming prohibition section reads: All marriages of white persons with Negroes, Mulattoes, Mongolians or Malays hereafter contracted in the state of Wyoming are and shall be illegal and void.²⁰

And the Wyoming enforcement section is:

Whosoever shall knowingly contract marriage in fact contrary to the prohibitions in the preceding section, and whosoever shall knowingly solemnize any such marriage shall be deemed guilty of a misdemeanor, and upon being convicted thereof, shall lie punished by a fine of not less than one hundred dollars, nor more than one thousand dollars, or imprisonment of not less than one year nor more than five years, or both, at the discretion of the court which shall try the cause.²¹

The Wyoming prohibition provision is characterized by its brevity; evidently the legislature did not see fit to define further any of the classifications set forth. Nor have there been any Wyoming cases dealing with racial intermarriages or interpreting this statute. However, when the Wyoming courts first deal with this problem, they will be faced with the formidable question of interpreting the prohibition provision. The very brevity of the statute gives rise to the largest problem-who comes within the prohibition of the statute?…

Read the entire article here.

Faculty Enrichment Lecture – Tanya K. Hernandez, “Multiracials and Civil Rights”

RLL Faculty Lounge
Beverly Rogers Literature and Law Building
University of Nevada, Las Vegas
2019-01-28, 12:00-13:30 PST (Local Time)

Tanya Katerí Hernández, is the Archibald R. Murray Professor of Law at Fordham University School of Law, where she teaches Anti-Discrimination Law, Comparative Employment Discrimination, Critical Race Theory, The Science of Implicit Bias and the Law: New Pathways to Social Justice, and Trusts & Wills. She received her A.B. from Brown University, and her J.D. from Yale Law School, where she served as Note Topics Editor of the Yale Law Journal.

Professor Hernández, is an internationally recognized comparative race law expert and Fulbright Scholar who has visited at the Université Paris Ouest Nanterre La Défense, in Paris and the University of the West Indies Law School, in Trinidad. She has previously served as a Law and Public Policy Affairs Fellow at Princeton University, a Faculty Fellow at the Institute for Research on Women at Rutgers University; a Non-resident Faculty Fellow at the Fred T. Korematsu Center for Law and Equality, and as an Independent Scholar in Residence at the Schomburg Center for Research in Black Culture. Professor Hernández is a Fellow of the American Bar Foundation, the American Law Institute, and the Academia Puertorriqueña de Jurisprudencia y Legislación. Hispanic Business Magazine selected her as one of the 100 Most Influential Hispanics of 2007. Professor Hernández serves on the editorial boards of the Revista Brasileira de Direito e Justiça/Brazilian Journal of Law and Justice, and the Latino Studies Journal published by Palgrave-Macmillian Press.

Professor Hernández’s scholarly interest is in the study of comparative race relations and anti-discrimination law, and her work in that area has been published in numerous university law reviews like Cornell, Harvard, N.Y.U., U.C. Berkeley, Yale and in news outlets like the New York Times, among other publications including her book Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response (including Spanish and Portuguese translation editions). Her most recent publication is the book “Multracials and Civil Rights: Mixed-Race Stories of Discrimination.”

For more information, click here.