Mixed Race Studies

The Law and Genetics of Racial Profiling in Medicine

Harvard Civil Rights-Civil Liberties Law Review
Volume 39, Number 2 (Summer 2004)
pages 391-483

Erik Lillquist, Associate Provost for Academic Projects & Professor of Law
Seton Hall University School of Law, Newark, New Jersey

Charles A. Sullivan, Professor of Law and Senior Associate Dean for Finance & Faculty
Seton Hall University School of Law, Newark, New Jersey

Modern medicine has embraced the use of race. Race is routinely employed by medical researchers, clinicians, and community health officials. Moreover, medicine’s use of race is not done in the shadows, but right before our eyes. Physicians note our race when treating us and medical researchers routinely publish results that classify subjects based on race. Researchers debate the relative merits of using race in prominent journals and doctors have freely claimed in major newspapers that they use race.¹ Recently, the New York Times featured Dr. Sally Satel on the cover of its Magazine Section proudly proclaiming, “I am a racially profiling doctor.”² A year earlier, the same paper reported on FDA approval of clinical trials for a heart drug designed exclusively for African Americans.³

Curiously, the question of whether biological differences in the races should be taken into account by our health care institutions has gone largely unconsidered in the law journals. Given the pervasive role law plays in medicine and research, this is surprising. This omission is especially striking because race otherwise dominates law review articles.⁴ Whether the topic is affirmative action, employment discrimination, environmental justice or any of a myriad of areas where race encounters the law, the reviews have thoroughly canvassed the problem, often with a strong interdisciplinary focus. Accordingly, law journals have devoted significant space to race where it intersects health care in one area: the cause of racial disparities in the health status of African Americans and other minorities.⁵ But the conscious use of race to diagnose and treat individuals continues with almost no discussion, despite all of the attention paid to the topic in both the popular media and medical literature. This Article fills that void.

Taking race into account in medical treatment seems at least as objectionable as other, explicitly prohibited uses, especially given the egregious acts perpetrated against racial minorities in this country in the name of medicine. For example, in the notorious Tuskegee Syphilis Experiment, the United States Public Health Service deliberately failed to treat nearly 400 African American males suffering from late-stage syphilis.⁶ Further, the notion of genetic racial differences triggers associations with the eugenics movement⁷ and repeated “scientific” efforts to prove the intellectual inferiority of African Americans.⁸

Even more dramatic is the increasing acceptance among researchers and clinicians of race as an appropriate focus of medical study and treatment. Indeed, this may be an unintended byproduct of the medical and legal literature on racial disparities in health. For example, to explain why African Americans have higher mortality rates from heart disease, researchers have studied whether the disparity may be partially accounted for by genetic differences between African Americans and whites—differences that enlightened modern medicine can identify and then address.⁹ To that end, medical journals increasingly explore possible racial connections with diseases and treatments. In 2001, a pair of studies in the New England Journal of Medicine focused on possible differences in drug responses among black and white heart patients. One study found racial differences for one drug;¹⁰ the other found no such differences for another.” Other examples abound.¹²

The notion that medicine should reject a colorblind model in favor of taking race into account marks a significant shift in perspective. Proponents argue that, unlike many of their predecessors in the medical and scientific community, they will take race into account only when it is appropriate to do so.¹³ But that claim was also made by predecessors whose views are now widely condemned.¹⁴ Furthermore, it occurs at a time when researchers are documenting the role that unconscious or semi-conscious racism plays in the delivery of medical treatment. For example, recent research has suggested that physicians prescribe different treatment for patients solely as a result of the patient’s race and/or gender.¹⁵ One study showed that physicians recommended cardiac catheterization at a lower rate for African American female patients than for African American males, white males, or white females, even though the symptoms presented were exactly the same.¹⁶ Another study showed that physicians prescribed analgesics to patients at different dosages depending upon the race of the patient and the gender of the physician.¹⁷ All of these differences are in-appropriate in terms of the current state of medical knowledge. Even if physicians can be cured of conscious bias, they no doubt will be influenced by the unconscious biases that plague American society.¹⁸

The problems of using race in health care have not gone unnoticed in the medical community. In 2001, the New England Journal of Medicine ran two editorials—one praising the research¹⁹ and the other claiming that attributing medical differences to race “is not only imprecise but also of no proven value in treating an individual patient.”²⁰ The New England Journal of Medicine reprised the 2001 dispute with a pair of articles in March 2003. Esteban Gonzalez Burchard of the University of California at San Francisco and Neil Risch of Stanford University argued that ignoring race will “retard progress in biomedical research,”²¹ while an opposing article by Dr. Richard S. Cooper warned that scientists have been too quick to view genetics as the reason for greater susceptibility of African Americans to certain diseases when the real reason may be social factors.²² The reality is that more and more articles in scientific journals are reporting results by racial groups, a result federal regulations encourage.²³

Almost completely ignored to date have been the legal implications of medicine’s use of race. Existing law, primarily the Equal Protection Clause, 42 U.S.C. § 1981 and Titles II and VI of the Civil Rights Act of 1964, renders many of these actions legally suspect. For instance, the use of race in selecting participants for clinical trials and in deciding the treatment of patients, we believe, may violate federal constitutional and statutory law. While nonclinical research that utilizes race is probably legal, it faces threats from proposals such as the California Racial Privacy Initiative,²⁴ rejected this past year.

Given the disconnect between what medicine does and what the law appears to allow, what should be done? We believe that, in quite limited circumstances, the law should permit the use of race in medicine. Race, although socially constructed, is a useful proxy for both a person’s ancestry and for environment.²⁵ As we explain in more detail in this Article, both ancestry and environment can play an important role in determining a person’s health. Of course, race is never more than a proxy, and other and better methods can usually be used to obtain the same information about ancestry and environment. But, in a few cases, race may be the best, and perhaps only, means of obtaining this information. When and if this is true, the use of race can be justified.

We acknowledge that the use of race in medicine, as anywhere else, is fraught with peril. Researchers and clinicians in the past have visited grave injustices on individuals in the pursuit of race-driven medicine. The continued use of race by physicians and other health care professionals may only reinforce the unconscious biases that infect medicine, and it may tend to validate the racism of others in society more generally. These costs have to be weighed before the use of race should be permitted. But even after considering them, we still believe that there are some very limited circumstances where the use of race ought to be permitted. This Article is, in large part, designed to define carefully the rare circumstances in which the use of race will be appropriate.

The Article proceeds as follows. Part I sets the stage by sketching the underlying debate about racial disparities in health status and health care and the ways in which the question of race in health is likely to arise. It also addresses the special problems of using race. Part II then turns to the threshold question for any such discussion, “What is Race?,” concluding that “race” as it is currently used in America is socially constructed. While race, as a biological construct, has no meaning, modern human evolutionary theory tells us that, in quite limited circumstances, differences in the frequency of some genes may arise between different races as they have been socially constructed. This is (generally) not because of natural selection, but rather the result of an evolutionary force known as genetic drift, which causes population groups that are separated from one another to diverge in the frequency of genes.

Part III then canvasses the scientific literature to assess the limited situations when “race” may be suitable for medical use because of genetic factors that cannot otherwise be efficiently taken into account. Race, when used as a proxy for ancestry, may tell us something about both disease susceptibility and drug sensitivity. In addition, when seen as a proxy for environment, race can also tell us something about disease susceptibility. Part IV moves from science to law, reviewing the various legal regimes that bear on the use of race in the medical context. We conclude that, in general, the use of race in medicine raises serious legal issues. The main exception is that race-based studies, with no clinical component, would appear to be legal. Finally, Part V brings together the themes of social construction of race, genetically related populations, and the existing legal framework in order to draw normative recommendations for the law’s approach to “racial profiling” in medicine. In particular, we propose the creation of a defense for the limited use of race in treatment, which we describe as a bona fide treatment rationale defense. In addition, we suggest that efforts to include (but not to exclude) racial groups in clinical trials ought to be permitted, and that efforts to exclude groups ought to be resisted. Finally, we accept—for now—the continued use of race in non-clinical studies…

Read the entire article here.

(Re)defining Race: Addressing the Consequences of the Law’s Failure to Define Race

Cardozo Law Review
Volume 38, Number 5 (June 2017)
pages 1817-1877

Destiny Peery, Associate Professor of Law; Associate Professor, Department of Psychology, Weinberg College of Arts and Sciences (Courtesy)
Northwestern University, Evanston, Illinois

Modern lawmakers and courts have consistently avoided discussing how to define race for legal purposes even in areas of law tasked regularly with making decisions that require them. This failure to define what race is in legal contexts specifically requiring such determinations, and in the law more broadly, creates problems for multiple actors in the legal system, from plaintiffs deciding whether to pursue claims of discrimination, lawyers deciding how to argue cases, and legal decision-makers deciding cases where race is not only relevant but often central to the legal question at hand. This Article considers the hesitance to engage with questions of racial definition in law. Drawing on findings from social psychology to demonstrate how race can be defined in multiple ways that may produce different categorizations, this Article argues that the lack of racial definition is problematic because it leaves a space for multiple definitions to operate below the surface, creating not only problematic parallels to a bad legal past but also producing inconsistency. The consequences of this continued ambiguity is illustrated through an ongoing dilemma in Title VII anti-discrimination law, where the courts struggle to interpret race, illustrating the general problems created by the law’s refusal to define race, demonstrating the negative impact on individuals seeking relief and the confusion created as different definitions of race are applied to similar cases, producing different outcomes in similar cases. This Article concludes that definitions of race should be intentionally, rationally selected by lawmakers and/or the courts, creating racial definitions that make sense in the context of the law or policy requiring the use of race, that are tied to the reasons for implicating race in the law, and that are informed by evidence about how racial perception and categorization processes operate.

Table of Contents

• INTRODUCTION
• I. THE COLORBLIND IDEAL AND RACIAL DEFINITIONS
  • A. Historical Colorblindness
  • B. Contemporary Colorblindness
  • C. Colorblindness in a Race-Conscious World
• II. LEGAL DEFINITIONS OF RACE
  • A. Historical Definitions
    • 1. Race Determination Cases
    • 2. Miscegenation Law
    • 3. Race Definition Statutes
  • B. Contemporary (Lack of) Definitions
    • 1. Refusals to Define
    • 2. Legacies of Definitions Past
• III. THE PROBLEM OF AMBIGUITY
  • A. Actual Versus Perceived Race, Ambiguous Plaintiffs, and Title VII
    • 1. Types of Misperceived Plaintiffs
    • 2. “Actual” vs. Perceived Race
  • B. Inconsistency and Confusion for the Courts
  • C. Determining Relevant Racial Definitions for Title VII
• IV. THE PSYCHOLOGY OF RACIAL CATEGORIES
  • A. Social-Cognitive Origins of Race
    • 1. Cognitive Development and Use of Race
    • 2. Social Cognition: Perceptual and Conceptual Processes
      • a. Perceptual Process: Responses to Stimulus Characteristics
      • b. Perceptual Process: Contextual Effects
      • c. Conceptual Process: Use of Racial Labels
      • d. Conceptual Process: Use of Stereotypes and Prejudice
      • e. Interaction of Perceptual and Conceptual Processes
• V. REDEFINING RACE: A NEW DEFINITIONAL FRAMEWORK
• CONCLUSION

Read the entire article here.

While advocates in the multiracial movement never explicitly indicate distaste for the minority that constitutes part of a mixed race individual, the insistence on the development of a new racial designation inadvertently associates this minority with inferiority. African-American studies professor Jared Sexton argues that the implicit rejection of the black race in multiracial discourse is due to the fact that the multiracial movement casts the black race as the reason for the woes of the multiracial ethnicity.¹⁷⁹ To compensate for these woes, the black race must be rejected and replaced with the multiracial ethnicity. Recognizing the negativity of the black race, and creating distance between black and multiracial alienates the marginalized minority.¹⁸⁰ As Sexton argues, the multiracial movement draws a line between black and multiracial, and allows privileges to one group over the other, similar to what occurred in Bacon’s Rebellion.¹⁸¹ By abandoning the black race rather than incorporating the struggle of blacks into the movement for respect for and recognition of mixed race individuals, self-identified multiracials position themselves parallel to the Irish who similarly excluded blacks from their struggle for labor rights.¹⁸²

Alynia Phillips, “The Multiracial Option: A Step in the White Direction,” California Law Review, Volume 105, Issue 6 (2018), 1875-1876. https://dx.doi.org/10.15779/Z38H98ZD1S.

Meet Haley Pilgrim: Penn’s first black woman president of GAPSA

The Daily Pennsylvanian
2018-04-11

Naomi Elegant

Photo from Haley Pilgrim

Sociology Ph.D. candidate Haley Pilgrim was elected to be the president of the Graduate and Professional Student Assembly on April 4, marking the group’s first black female president in its 70-year history.

Pilgrim, who will take up the post on May 1, is the current co-president of the Black Graduate and Professional School Assembly and chair of the Inclusion, Diversity, Equity, Access and Leadership Council. Pilgrim is also the first IDEAL Council representative to be elected president of GAPSA.

Pilgrim said that “the most exciting thing” after winning the election was being able to celebrate with the BGAPSA community…

Read the entire article here.

Adrian Piper: The Thinking Canvas

The New York Times
2018-04-19

Holland Cotter, Co-Chief Art Critic

Adrian Piper’s “Self-Portrait Exaggerating My Negroid Features,” 1981. In all of her work, our critic writes, “her aim is not to assert racial identity but to destabilize the very concept of it.” The Eileen Harris Norton Collection, via Adrian Piper Research Archive Foundation Berlin

She’s an artist and scholar, and at “A Synthesis of Intuitions” you see thinking — about gender, racism, art — happening before your eyes.

“Adrian Piper: A Synthesis of Intuitions, 1965-2016” at the Museum of Modern Art is a clarifying and complicating 50-year view of a major American artist’s career. It is also an image-altering event for MoMA itself. It makes the museum feel like a more life-engaged institution than the formally polished one we’re accustomed to.

Despite the show’s retrospective cast, we find fiery issues of the present — racism, misogyny, xenophobia — burning in MoMA’s pristine galleries. The reality that art and its institutions are political to the core — both for what they do and do not say — comes through. And the museum, for once, seems intent on asserting this. For the first time it has given over all of its sixth floor special exhibition space to a single living artist. The artist so honored is a woman, who has focused on, among many other things, the hard fact of racism and the fiction of race.

Ms. Piper was born in New York City in 1948 to parents of mixed racial background. (Her father held two official birth certificates. In one he was designated white, in the other octoroon, one-eighth black.) Raised in a cosmopolitan environment, she studied at the Art Students League in her teens, and in 1966 enrolled at the School of Visual Arts. The MoMA show opens with a salon-style hanging of figurative paintings, including self-portraits, from that time, influenced by 1960 psychedelic graphics and by her youthful experiences with LSD…

Read the entire review here.

The Multiracial Option: A Step in the White Direction

California Law Review
Volume 105, Issue 6 (2018)
pages 1853-1878
DOI: 10.15779/Z38H98ZD1S

Alynia Phillips

It is estimated that within fifty years, the white race will lose its stronghold as the majority racial group in the United States. In recent years, this prediction has induced anxiety in everyone from lay citizens to conservative politicians. But this prediction may not come to fruition if the definition of whiteness expands as needed. Parallel to this mounting racial anxiety runs a social movement aimed at promoting the classification of mixed race individuals as “multiracial.” Though on its face this classification appears harmless, the reliance on “multiracial” indicates an implicit deracialization of mixed race individuals, and a tacit devaluation of minority heritage. This Note argues that based on the history of racial classifications in the United States and existing motivations to maintain the white majority, the push for a multiracial category functions as a means by which mixed race individuals can join the ranks of whiteness. With mixed race individuals comprising the fastest growing population in the United States, their acceptance into the white race could secure the white majority for decades to come.

Contents

• Introduction
• I. Relevant Terminology Explained
• II. Unmasking the Players in Today’s Multiracial Movement
  • A.  White Mothers as Racial Ventriloquists
  • B.  Republicans as Multiracial Crusaders
• III. An Evolutionary History of White America
  • A.  Bacon’s Rebellion and the Invention of Whiteness
  • B.  Conceptual Frameworks for American Assimilation
  • C.  Subscribing to Superiority
• IV. Multiracial Exceptionalism and the “Other” Within
• Conclusion

Read the entire article here.

Colin Kaepernick Wins Amnesty International’s Highest Honor

TIME
2018-04-21

Sean Gregory

Colin Kaepernick may not have a job on the football field, but much of the world is still cheering for him.

Amnesty International, the global human rights organization, gave Kaepernick its highest honor — the 2018 Ambassador of Conscience Award — in Amsterdam on Saturday. Past winners of the award, which “celebrates individuals and groups who speak out for justice,” include former South Africa president Nelson Mandela, Malala Yousafzai, the education activist from Pakistan who survived an assassination attempt by the Taliban, and rock group U2.

The organization recognized Kaepernick for his protest against police violence: his action, kneeling during the national anthem before NFL games, sparked a movement replicated across America and the world, starting a debate about free speech and patriotism that was inflamed by the President of the United States, one of Kaepernick’s most relentless critics…

Read the entire article here.

‘You Don’t Look Black’: How I’m Talking to My Kids About Being Mixed Race

CBC Parents
Canadian Broadcasting Corporation
2018-03-15

Kara Stewart-Agostino

Photo by @criene/Twenty20

“Mama, am I black or white?” This was the question I received one night before bed when my son was in grade 1. A boy in his class had been called the N-word at school and he was full of questions.

He wanted to know what it meant and if someone could call him that. Some of the kids had insisted that he is black because (to their eyes) I am black. Others insisted that he’s not because he doesn’t “look black.”

Although the kids on the school yard perceive me as black, I am the child of a Jamaican born mother and a Scottish/Irish-Canadian born father who met in Winnipeg in the 1970s. As a mixed child, questions of racial identity are not new to me. I think of my kids as second generation mixed Canadians — the cultures of their grandparents are layered and entwined. Their skin is fair enough that they could “pass as white” but both have a head full of curls and tan to a golden brown in the summer sun. Meanwhile their Italian-Canadian born father will burn on a partly cloudy June day…

Read the entire article here.

Artist At Work: Mequitta Ahuja Wins A Guggenheim

BmoreArt
Baltimore, Maryland
2018-04-16

Cara Ober, Founding Editor

An Interview with Mequitta Ahuja About Success, Heartbreak, and a Recent Guggenheim Award by Cara Ober

The July 24, 2017 issue of the New Yorker described Mequitta Ahuja‘s work, then on view at the Asia Society Museum, as “whip-smart and languorous.” According to the John Simon Guggenheim Foundation, where she was just named a 2018 Fellow, Mequitta Ahuja’s works have been widely exhibited, including venues such as the Brooklyn Museum, Studio Museum in Harlem, Saatchi Gallery, Minneapolis Institute of Art, Crystal Bridges, Baltimore Museum of Art and Grand Rapids Art Museum. Ahuja, a Baltimore-based artist whose parents hail from Cincinnati and New Delhi, has long employed her own image to challenge historic traditions of portrait painting.

I caught up with the artist to ask about her momentous Guggenheim award, announced April 5, 2018, and to discuss the new opportunities and ideas abounding in her studio…

Read the entire interview here.

Q&A with Daniel Livesay, author of Children of Uncertain Fortune: Mixed-Race Jamaicans in Britain and the Atlantic Family, 1733-1833

The Junto: A Group Blog on Early American History
2018-04-20

Christopher Jones, Visiting Assistant Professor of History
Brigham Young University, Provo, Utah

Daniel Livesay

Daniel Livesay is Associate Professor of History at Claremont McKenna College in Claremont, CA. His research focuses on questions of race, slavery, and family in the colonial Atlantic World. His first book, Children of Uncertain Fortune: Mixed-Race Jamaicans in Britain and the Atlantic Family, 1733-1833 was published in January 2018 by the University of North Carolina Press for the Omohundro Institute. Casey Schmitt reviewed it yesterday here at The Junto. Daniel’s research has been supported by an NEH postdoctoral fellowship at the Omohundro Institute of Early American History and Culture, the Fulbright Foundation, the Institute of Historical Research, and the North American Conference on British Studies, as well as number of short-term fellowships. He is currently working on a book manuscript about enslaved individuals of advanced age in Virginia and Jamaica from 1776-1865 entitled, Endless Bondage: Old Age in New World Slavery. He graciously agreed to sit down and answer a few questions about his research.

JUNTO: Congratulations on the publication of your book, and thank you for taking the time to answer a few questions about it for readers of The Junto. Let’s start with a broad question: Where did the idea for this book begin?

DANIEL LIVESAY: First off, thanks for inviting me to The Junto. I really enjoy the site, and I’m very excited to be part of it.

The idea for the book effectively landed at my feet. When I started graduate school at the University of Michigan in 2003, the Clements Library—which, as many readers know, is a stellar manuscripts archive at the University—had just purchased the papers of John Tailyour, who was a slave trader in Jamaica at the end of the eighteenth century. The library needed someone to do an initial catalog of the collection, and since I was interested in the history of slavery, I spent several months working through the papers. The collection is really a jewel of economic history because Tailyour took up so much space writing about slave trading in Kingston. But the thing I became obsessed with were his letters back to family in Britain. In particular, he was asking if his relatives could find boarding schools in England for his four mixed-race children whom he had with an enslaved woman named Polly Graham. I had certainly heard of white men manumitting their children, but I had never heard of those same men sending their offspring of color to expensive institutions in Britain. It seemed like a strange level of parental responsibility from a man who also sold thousands of Africans without the slightest hesitation. I felt that I had to know more about the motivations behind this, what the experiences of these migrants were, and what all of it meant for conceptions of race in the Atlantic World. So, I decided to write a graduate seminar paper on the Tailyour family. I went to Britain for a couple of months, found a few stray references to other migrants of color, but ultimately grew worried that it would be almost impossible to find more families who undertook the journey. I finished the seminar paper, and then put it all away thinking that I would need to find another project for my dissertation…

Read the entire interview here.