Mixed Race Studies

Judicial Erasure of Mixed-Race Discrimination

American University Law Review
Volume 59, Number 3
February 2010
pages 469-555

Nancy Leong, Associate Professor of Law
Sturm College of Law, Denver University

Table of Contents

• Introduction
• I. “What Are You?”: Cueing Perception of Racial Mixing
• II. “A Mongrel Breed of Citizens”: Animus Against Multiracial People
  • A. Historical Origins
  • B. Contemporary Attitudes
• III. “Discrete and Insular”: The Problem with Categories
  • A. Categorical Foundations
  • B. Judicial Treatment of Multiracial Plaintiffs
    • 1. Categorical reformulation of multiracial identification
    • 2. Limited acknowledgment of mixed-race discrimination
    • 3. Discrimination against interracial couples: related but distinct
  • C. Academic Omission
• IV. “Invisible People”: The Erasure of Multiracial Discrimination
  • A. Causes of Unacknowledged Multiracial Discrimination
  • B. Consequences of Unacknowledged Multiracial Discrimination
    • 1. Damage to individual narratives of discrimination
    • 2. Inhospitality to claims of multiracial discrimination
    • 3. Instantiation of racial categories and associated stereotypes
• V. “The Eye of the Beholder”: Reconciling Antidiscrimination Law and Multiracial Identification
• Conclusion

Introduction

The ideal of America as a racial and ethnic melting pot is a fundamental archetype in our national mythology. But discomfort with the idea of miscegenation and with the individuals born to parents of different races is equally fundamental to the American story. Indeed, one historian documents the punishment of Captain Daniel Elfrye for “too freely entertaining a mulatto” in 1632. Since then, racial mixing has engendered a continuously evolving social unease, troubling different groups for different reasons at different times. But the underlying inquietude has persisted. At times, this discomfort has manifested itself through legal mechanisms—for example, as a statutory scheme designed to police the boundaries of racial classification based on blood quantum. At other times, the discomfort has emerged through direct social interaction—for example, as violence directed at interracial couples and at individuals viewed as racially mixed.

Despite the historical and ongoing hostility to racial mixing, our legal system consistently fails to recognize racism directed at those seen as racially mixed. Race discrimination jurisprudence relies heavily on a familiar set of racial categories that David Hollinger has termed the “ethno-racial pentagon” of Asian, Latino/a, White, Black, and Native American. Science has largely demonstrated that the boundaries of these crude categories are arbitrary and that the categories themselves are social constructs rather than biological realities. Nonetheless, the categories constitute the paradigm through which we view race. And antidiscrimination jurisprudence continues to reflect and reify those categories in recognizing and remedying claims of racial discrimination.

This Article aims to expose the shortcomings of the prevailing crude racial categories as a means to implement the core provisions of antidiscrimination law—constitutional and statutory provisions such as the Equal Protection Clause and Title VII, and the jurisprudence that has developed around these provisions. Such provisions are designed to address racial discrimination by prohibiting inequitable treatment of individuals based on race and by punishing such inequitable treatment when it occurs. The provisions are not intended to protect specific racial categories. Rather, categories are simply the mechanism that the judiciary has adopted for implementing the goals of our antidiscrimination regime…

Read the entire article here.

Passing for White, Passing for Black

Transition
Number 58 (1992)
pages 4-32

Adrian Piper

It was the New Graduate Student Reception for my class, the first social event of my first semester in the best graduate department in my field in the country. I was full of myself, as we all were, full of pride at having made the final cut, full of arrogance at our newly recorded membership among the privileged few, the intellectual elite, this country’s real aristocracy, my parents told me; full of confidence in our intellectual ability to prevail, to fashion original and powerful views about some topic we represented to ourselves only vaguely. I was a bit late, and noticed that many turned to look at – no, scrutinize me as I entered the room. I congratulated myself on having selected for wear my black velvet, bell-bottomed pants suit (yes, it was that long ago) with the cream silk blouse and crimson vest. One of the secretaries who’d earlier helped me find an apartment came forward to greet me and proceeded to introduce me to various members of the faculty, eminent and honorable faculty, with names I knew from books I’d studied intensely and heard discussed with awe and reverence by my undergraduate teachers. To be in the presence of these men and attach faces to names was delirium enough. But actually to enter into casual social conversation with them took every bit of poise I had. As often happens in such situations, I went on automatic pilot. I don’t remember what I said; I suppose I managed not to make a fool of myself. The most famous and highly respected member of the faculty observed me for awhile from a distance and then came forward. Without introduction or preamble he said to me with a triumphant smirk, “Miss Piper, you’re about as black as I am.”

One of the benefits of automatic pilot in social situations is that insults take longer to make themselves felt. The meaning of the words simply don’t register right away, particularly if the person who utters them is smiling. You reflexively respond to the social context and the smile rather than to the words. And so I automatically returned the smile and said something like, “Really? I hadn’t known that about you.” – something that sounded both innocent and impertinent, even though that was not what I felt. What I felt was numb, and then shocked and terrified, disoriented, as though I’d been awakened from a sweet dream of unconditional support and approval and plunged into a nightmare of jeering contempt. Later those feelings turned into wrenching grief and anger that one of my intellectual heroes had sullied himself in my presence and destroyed my illusion that these privileged surroundings were benevolent and safe; then guilt and remorse at having provided him the occasion for doing so.

Finally, there was the groundless shame of the inadvertent impostor, exposed to public ridicule or accusation. For this kind of shame, you don’t actually need to have done anything wrong. All you need to do is care about others’ image of you, and fail in your actions to reinforce their positive image of themselves. Their ridicule and accusations then function to both disown and degrade you from their status, to mark you not as having done wrong but as being wrong. This turns you into something bogus relative to their criterion of worth, and false relative to their criterion of authenticity. Once exposed as a fraud of this kind, you can never regain your legitimacy. For the violated criterion of legitimacy implicitly presumes an absolute incompatibility between the person you appeared to be and the person you are now revealed to be; and no fraud has the authority to convince her accusers that they merely imagine an incompatibility where there is none in fact. The devaluation of status consequent on such exposure is, then, absolute; and the suspicion of fraudulence spreads to all areas of interaction.

Mr. S. looked sternly at Mrs. P., and with an imperious air said, “You a colored woman? You’re no negro. Where did you come from? If you’re a negro, where are your free papers to show it?” … As he went away he looked at Mr. Hill and said, ‘”She’s no negro.”
The Rev. H. Mattison, Louisa Picquet, The Octoroon Slave and Concubine: A Tale of Southern Slave Life (1861), 43.

The accusation was one I had heard before, but more typically from other blacks. My family was one of the very last middle-class, light-skinned black families left in our Harlem neighborhood after most had fled to the suburbs; visibly black working-class kids my age yanked my braids and called me “Paleface.” Many of them thought I was white, and treated me accordingly. As an undergraduate in the late 1960s and early 1970s, I attended an urban university to which I walked daily through a primarily black working-class neighborhood. Once a black teenaged youth called to me, “Hey, white girl! Give me a quarter!” I was feeling strong that day, so I retorted, “I’m not white and I don’t have a quarter!” He answered skeptically, “You sure look white! You sure act white!” And I have sometimes met blacks socially who, as a condition of social acceptance of me, require me to prove my blackness by passing the Suffering Test: They recount at length their recent experiences of racism and then wait expectantly, skeptically, for me to match theirs with mine. Mistaking these situations for a different one in which an exchange of shared experiences is part of the bonding process, I instinctively used to comply. But I stopped when I realized that I was in fact being put through a third degree. I would share some equally nightmarish experience along similar lines, and would then have it explained to me why that wasn’t really so bad, why it wasn’t the same thing at all, or why I was stupid for allowing it to happen to me. So the aim of these conversations clearly was not mutual support or commiseration. That came only after I managed to prove myself by passing the suffering Test of blackness (if I did), usually by shouting down or destroying their objections with logic…

…Trying to forgive and understand those of my relatives who have chosen to pass for white has been one of the most difficult ethical challenges of my life, and I don’t consider myself to have made very much progress. At the most superficial level, this decision can be understood in terms of a cost-benefit analysis: Obviously, they believe they will be happier in the white community than in the black one, all things considered. For me to make sense of this requires that I understand—or at least accept—their conception of happiness, as involving higher social status, entrenchment within the white community and corresponding isolation from the black one, and greater access to the rights, liberties and privileges the white community takes for granted. What is harder for me to grasp is how they could want these things enough to sacrifice the history, wisdom, connectedness and moral solidarity with their family and community they must sacrifice in order to get them. It seems to require so much severing and forgetting, so much disowning and distancing, not simply from one’s shared past, but from one’s former self—as though one had cauterized one’s long-term memory at the moment of entry into the white community….

Read the entire article here.

Shades Of Grey: Interracial Couples On TV

FlowTV
Volume 15, Issue 4 (2011-12-05)

Erica Chito-Childs, Associate Professor of Sociology
Hunter College, City University of New York

Showing interracial couples on television is not necessarily something new. In 1968, Star Trek aired what is widely regarded as the first black-white interracial kiss on television between William Shatner’s character, Captain Kirk, a white man and a black woman, Lt. Uhura, when the two were forced to kiss against their will by a galactic enemy.

Now, over thirty years later, media reports play up the idea that the numbers of interracial couples, both on-screen and off, are skyrocketing, and push the idea that these unions are so common that interracial relationships barely raise an eyebrow. Yet according to 2010 Census data, only eight percent of all marriages are interracial. While real-life interracial marriage remains low, interracial couples may be cropping up more frequently on television. Do the growing numbers of interracial couples on television signify increased racial acceptance and color-blindness or do these depictions overwhelmingly reproduce long-standing societal notions about the deviant nature of interracial sex and the location of these relationships in the margins of society?

Looking at the contemporary representations on television, interracial relationships are most often found as temporary relationships (lasting just a few episodes), in side-storylines or otherwise marginalized. These relationships are almost exclusively depicted as comical misadventures, introduced as part of a criminal case, used as symbolic of the different worlds that are being portrayed, or play on perceptions of difference, highlighting that racially matched characters are the norm.

Even among newer shows that are heralded for their diverse casts or cutting-edge approach, interracial representations are arguably problematic. There may be a trend to present interracial couples without mentioning race but that does not mean that these representations do not carry familiar racial messages. Still a number of television show producers maintain that they have adopted a colorblind strategy, which they argue transcends race. For example, on New Adventures of Old Christine, Christine is a divorced white woman who becomes interested in a black teacher at her daughter’s private school

…The question remains, if interracial coupes are portrayed in these problematic ways, then why do television shows feature interracial relationships at all? I argue that by showing interracial relationships yet parodying or fetishizing them at the same time, the shows can maximize their audience without alienating others. Difference sells, yet the presentation must be constantly adjusted to fit the contemporary discourses on race. Using interracial sex to push boundaries is widely recognized. Dana Wade, the president of advertising agency, Spike DDB, discussed this idea with television ads, arguing “certain brands might use interracial couples to convey a hip image” adding that “the whole personae of the brand is kind of risky, or on the edge.” Ironically these “hip” and “cutting-edge” depictions are actually just barely repackaged stereotypes…

Read the entire article here.

Racial melting pot won’t end social disparities

San Francisco Chronicle
2012-02-12

Brenda Payton, Lecturer in Journalism
San Francisco State University

I looked at the room full of San Francisco State University students and saw the beginning of the end of race as we have defined it.
 
If that sounds a little over-the-top, here’s some background. Last semester, I taught a class in the journalism department at S.F. State. It was entitled “The Social Impact of Journalism,” and between the Arab Spring, the BART protests and the Occupy movement, we had more than enough to talk about. (Even if it was like pulling teeth to get most of them to talk. That’s another story.)

The class was huge, 120 students, and hugely diverse. The first day, I took roll and managed to butcher most of their names. The Spanish names I handled OK. The Russian, Filipino and Chinese names were more of a challenge. They corrected my mispronunciations good-naturedly.
 
After a few meetings, I realized it wasn’t only the class that was racially diverse—a number of the students were also. They appeared to be, in traditional terms, racially mixed—the face of a future when race will be diminished as a distinguishing characteristic…

…People have been debating whether our country entered a post-racial phase after we elected President Obama. A number of ironies suggest we aren’t there yet. For one, we identify him as our first African American president when he is biracial, as white as he is black. Second level of irony: With an African father and American mother, he is more accurately African American than those of us born to two African American parents. OK, that’s confusing.
 
To add to the confusion: Most African Americans are mixed-race, descendants of whites who held Africans as slaves and overseers during bondage and many descendants of American Indians. When I was growing up, even kids who were biracial were considered black, make that Negro. I have first cousins whose mother is Chinese, and I never thought of them as anything other than Negro. For even more confusion, our other cousins are so light, at one time I thought they were white but didn’t think that meant we couldn’t be first cousins. We didn’t think of ourselves as a mixed-race family. We were proud Negroes.
 
The country has always been more racially mixed than we’ve pretended. That includes white people who have discovered (or not) black ancestors. “Black” people who were light enough passed for white to escape segregation and had children who knew nothing of their racial background. Asian and Latino communities also have been racially mixed…

Read the entire article here or here.

Why Are We Hung Up on Our Mixed Roots?

The Root
2012-03-06

Nsenga K. Burton, Ph.D., Editor At-Large

The latest controversy in Beyoncé Knowles news may be her breast-feeding Blue Ivy in public, but I’m still shaking my head about the recent fuss over her True Match commercial for L’Oréal, which highlights the singer’s mixed-race heritage. In the ad the star says, “There’s a story behind my skin. It’s a mosaic of all the faces before it.” Apparently this is controversial to some, who suggest that the singer is trying to distance herself from African Americans. Come again?

News flash: As revealed by Harvard professor Henry Louis Gates Jr. (who is also The Root’s editor-in-chief), the majority of blacks in this country are of mixed-race heritage, as are many throughout the Diaspora. I find it interesting when critics try to erase history in an attempt to promote the idea that we’re 100 percent black. The truth is that the history of African Americans is a history of mixed-race ancestry—some of it by choice, and much of it by force. Many blacks in America and throughout the Diaspora are no more 100 percent black than those who identify as white people are 100 percent white. Just because you say it doesn’t make it so…

Read the entire article here.

A Mixed Bag: Examining the College Experience of Multi-Racial Students

INSIGHT Into Diversity
April/May 2012 (2012-03-29)

Andrea Williams, Contributing Writer

To most American youth, college is the requisite rite of passage into adulthood, an experience marked as much by self-exploration and discovery as biology lectures and late night cram sessions.
 
From managing the excitement of living away from home for the first time, to coping with the stresses of time management, college can be simultaneously exhilarating and intimidating. And for biracial students who don’t fit neatly into the predetermined ethnic categories of many colleges and universities, the journey can be especially challenging.

For Theresa Lopez, the daughter of a white mother and a Latino father, the issues started with her application to the University of Illinois. “I was not given the option to be both white and Hispanic because the boxes were marked ‘White (Non-Hispanic)’ and ‘Hispanic (Non-White),’ making me feel as though whoever created the application was under the impression that white people and Hispanics could not have babies together,” says Lopez. “I would prefer, however, to call myself both white and Hispanic without denying either ancestry.”

The problems didn’t stop there for the college senior. In a society where people are confident in their own assumptions, even going to dinner becomes a lesson in cultural sensitivity. “When we go to eat at the local Mexican restaurant here in town, my friend, who is Columbian but does not speak Spanish, is always waited on in Spanish while I am always greeted in English because of the way I look,” says Lopez, whose blonde hair and blue eyes belie her Hispanic roots. “It makes me upset sometimes because even though I continue to speak Spanish to them, they seem to think I’m just some white girl who is trying to speak their language and be a part of their people. But I’m their people, too.”…

…Luckily for Matt Kelley, he discovered during the fall semester of his freshman year at Connecticut’s Wesleyan University that the school sponsored a mixed heritage student organization. “It was the first time I was made aware of ‘people like me’ who shared the experience of not fitting neatly into generally accepted racial boxes and boundaries,” he says. Kelley subsequently learned about similar clubs at other schools and in 1998 decided to launch a national magazine that would create a community among those organizations.

The publication – given the Yiddish name MAVIN, which means “one who understands” – was immediately well received, leading Kelley to form the nonprofit MAVIN Foundation in 2000 to further the work and reach of the magazine…

Read the entire article here.

Can Drake Save the Bar Mitzvah?

The Jewish Week
Blog: Well Versed
2012-04-12

Eric Herschthal

When Drake’s new video, “HYFR,” dropped [was released] over the weekend—in which the Jewish, biracial hip-hop superstar raps at a bar mitzvah—I was thrilled. Initially.

For years, pop culture references to the Jewish rite of passage have been stuck in the same mode of self-mockery.  Self-criticism is great, and in retrospect I partly appreciate the brutal truth that films like the Coen brothers’ “A Serious Man” show to us Jews—that this once incredibly powerful, meaningful rite had become totally cauterized, stripped of any real substance.  The bar mitzvah has become just another excuse to get the family together—half of which you may not even like—and torture a poor 13-year-old with a foreign tongue he’s probably less comfortable with than trigonometry.

But the Coen brothers didn’t invent that trope; it’s been around for years.  What felt so refreshing about Drake’s video, and still sort of does, is how it isn’t self-mocking at all.  Here’s a rapper so at ease in the self-conscious, status-driven world of pop star culture, that he can brandish his Jewish identity with little self-pity.  He brings his Jewishness to a world—the hip-hop world, and the millions who love it, myself included—that’s mainly known Jews as a stereotype.   The Jew, in hip-hop, is either the boss behind the scenes or, on the rare occasion (as with the Beastie Boys), the nerdy white kids who are lovingly embraced—but still, let’s be clear, as nerdy white kids.

Drake’s changed all that.  In large part that’s because his Jewishness is not the first fact about him.  Many see him mainly as a black rapper, if a light-skinned one.  And even when he broke onto the scene a few years ago and, when asked, would talk about his upbringing by a white Jewish mother in Canada—who sent him to a Jewish day school, and had him bar-mitzvahed—you didn’t get the sense he was trying to hide it.  But I’m actually less interested in what Drake’s openness about Judaism says about the changing world of hip-hop—and my sense is that, in many ways, it’s far more evolved in terms of black-Jewish relations than much of the country—than what it might say about Jews’ perceptions of themselves…

…As much as I want to stick up for Drake, I think Kuehne is right.  The song and the video still have many of the hallmarks of what’s problematic with hip-hop—mostly, the objectification of women.  Plus, there’s a ton of profanity.  “But she was no angel, and we never waited,” Drake raps at one point. “I took her for sushi, she wanted to f*** / So we took it to go, told them don’t even plate it.”

The song’s title, “HYFR,” stands for “Hell Yeah F***ing Right.”…

Read the entire article here.

Obama and the Elusive Idea of Race

The Root
2011-04-26

Mary C. Curtis

Scientists increasingly conclude that ethnicity cannot be defined scientifically, but that hasn’t stopped the racists, the Birthers and the confused from casting their insecurities onto the president.

It’s not surprising to get involved in a heated discussion about race when you’re strolling through a museum exhibit called “Race: Are We So Different?” And wouldn’t you know that President Barack Obama would get caught right in the middle of it.

Not all charges that the president isn’t who he says he is come from Donald Trump’s “Birther” fantasies or a California GOP official’s crude email. A young mother and fan had her own issues with Obama when we talked while strolling through the latest attraction at Discovery Place, Charlotte, N.C.’s hands-on science museum.

“Race: Are We So Different?”—with its science-based displays showing that human beings are more alike than any other living species, and its assertion that no one gene or set of genes can support the idea of race—shouldn’t be controversial or particularly revelatory. That the exhibit is, in fact, both reveals how invested so many people are in racial differences and in the ranking of one race over another. The show—which closes May 8—has inspired discussions by school and business groups in a city with an African-American mayor whose residents have nonetheless scored low on measures of trust among the races.

The mother, with a young daughter at her side and a son in a stroller, couldn’t contain her disappointment—anger, even—that the president had marked “black” instead of indicating “biracial” or one in the long list of multiracial alternatives on the 2010 census form. She was white; her husband—not in attendance that day—was black. And their children were the reason she was upset at the president of the United States and why it was personal. “He’s president. He could have been an example,” she insisted.

I tentatively engaged her. Since she and her children had the right to choose, wasn’t it hypocritical for her to criticize others for their choices? And since—as the exhibit around us made clear—race is an uneven line that has shifted throughout history, depending on political and economic expediency, why does a check mark on a page matter so much?

Suppose, at some later date, one or both of her children checked “black” on that census form. Would she love them any less? I asked her…

Read the entire article here.

Rutgers Student, a German ‘Brown Baby,’ Helps Others Search for their Identities and Creates Community

Focus: News for and about Rutgers faculty, students, and staff
Rutgers University
2012-05-01

Carrie Stetler

She grew up in Willingboro, New Jersey, as Wanda Lynn Haymon, the only child of an African-American mother and father who made her feel special and loved.
 
But when relatives whispered at family gatherings, she knew they were talking about her. One day she asked her parents if she was adopted.
 
 “Do you feel adopted?’’ they answered.
 
She did, but had no proof until 1994 when Wanda Lynn discovered that she was born Rosemarie Larey in Viernheim, Germany, the daughter of a black soldier and German mother. Although she was born in 1956, just 11 years earlier, Nazis, who regarded blacks as racially inferior, sent some of the estimated 25,000 Afro-Germans to concentration camps. Many were subject to medical experiments or were forcibly sterilized. Others simply disappeared.
 
After the war, the stigma of bearing a bi-racial child was so great that many mothers brought their children to orphanages, which often placed them with African-American families in the United States.
 
Today, Rosemarie Pena  (her married name) is completing her master’s degree at the Rutgers-Camden, in the Department of Childhood Studies, researching the history of “brown babies,’’ as they were known at the time of their birth, as well as people who identify as Afro-German around the world.
 
Pena also heads the Black German Cultural Society of New Jersey, an academic organization that connects Afro-Germans internationally. Its mission is to document and inform others about black Germans and their history. For post-war adoptees like Pena, the society helps them find closure and connects them with others who share their experience…

Read the entire article here.

Race is a hierarchical social construct that assigns human value and group power. Social constructions are human inventions, the products of mind and circumstance. This is not to say that they are imaginary. Racialized taxonomies have real consequences upon biological functions, including the expression of genes. They affect the material conditions of survival-relative respect and privilege, education, wealth or poverty, diet, medical and dental care, birth control, housing options and degree of stigma.

Patricia J. Williams, “The Elusive Variability of Race,” GeneWatch, (Volume 21, Issue 3-4, July-August 2009). http://www.councilforresponsiblegenetics.org/GeneWatch/GeneWatchPage.aspx?pageId=197