What’s DNA Got to Do with It

Posted in Articles, Health/Medicine/Genetics, History, Media Archive, Politics/Public Policy, United States on 2019-02-17 18:09Z by Steven

What’s DNA Got to Do with It

The Progressive: A voice for peace, social justice, and the common good

Starita Smith
Denton, Texas


I see similarities between Elizabeth Warren’s situation and that of many black people.

As U. S. Senator Elizabeth Warren, D-Mass., campaigns for a possible 2020 presidential run, she reminds me of some long-standing issues about racial identification.

Warren, whom President Donald Trump has pejoratively labeledPocahontas” for claiming she has American Indian heritage, took a DNA test to prove it. When the results showed she has hardly any, she was criticized for falsely claiming native ancestry. Some speculate this may hurt her presidential aspirations.

Warren’s predicament points up the historical, legal and cultural arbitrariness of racial categories. For example, if Warren had proclaimed she had even one African ancestor, she would be defined as black legally and socially in most of the U.S. That’s because our nation uses the one-drop rule, or hypodescent, as the definition of who is black…

…The rule has been used in court repeatedly. One of the most famous cases involved Susie Guillory Phipps, a Louisiana woman, who presumed she and all her ancestors were white, yet when she tried to get a passport, she discovered that she was listed as black on her birth certificate. According to The New York Times, because she had a black ancestor – an enslaved woman, 222 years back in her family history – she was black…

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The DNA Industry and the Disappearing Indian

Posted in Articles, Health/Medicine/Genetics, Law, Media Archive, Native Americans/First Nation, Politics/Public Policy, United States on 2018-12-03 01:40Z by Steven

The DNA Industry and the Disappearing Indian

TomDispatch.com: A regular antidote to the mainstream media

Aviva Chomsky, Professor of History; Coordinator of Latin American, Latino and Caribbean Studies
Salem State University, Salem, Massachusetts

DNA, Race, and Native Rights

Amid the barrage of racist, anti-immigrant, and other attacks launched by President Trump and his administration in recent months, a series of little noted steps have threatened Native American land rights and sovereignty. Such attacks have focused on tribal sovereignty, the Indian Child Welfare Act (ICWA), and the voting rights of Native Americans, and they have come from Washington, the courts, and a state legislature. What they share is a single conceptual framework: the idea that the long history that has shaped U.S.-Native American relations has no relevance to today’s realities.

Meanwhile, in an apparently unrelated event, Senator Elizabeth Warren, egged on by Donald Trump’s “Pocahontas” taunts and his mocking of her claims to native ancestry, triumphantly touted her DNA results to “prove” her Native American heritage. In turning to the burgeoning, for-profit DNA industry, however, she implicitly lent her progressive weight to claims about race and identity that go hand in hand with moves to undermine Native sovereignty.

The DNA industry has, in fact, found a way to profit from reviving and modernizing antiquated ideas about the biological origins of race and repackaging them in a cheerful, Disneyfied wrapping. While it’s true that the it’s-a-small-world-after-all multiculturalism of the new racial science rejects nineteenth-century scientific racism and Social Darwinism, it is offering a twenty-first-century version of pseudoscience that once again reduces race to a matter of genetics and origins. In the process, the corporate-promoted ancestry fad conveniently manages to erase the histories of conquest, colonization, and exploitation that created not just racial inequality but race itself as a crucial category in the modern world.

Today’s policy attacks on Native rights reproduce the same misunderstandings of race that the DNA industry is now so assiduously promoting. If Native Americans are reduced to little more than another genetic variation, there is no need for laws that acknowledge their land rights, treaty rights, and sovereignty. Nor must any thought be given to how to compensate for past harms, not to speak of the present ones that still structure their realities. A genetic understanding of race distorts such policies into unfair “privileges” offered to a racially defined group and so “discrimination” against non-Natives. This is precisely the logic behind recent rulings that have denied Mashpee tribal land rights in Massachusetts, dismantled the Indian Child Welfare Act (a law aimed at preventing the removal of Native American children from their families or communities), and attempted to suppress Native voting rights in North Dakota

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Before Arguing About DNA Tests, Learn the Science Behind Them

Posted in Articles, Health/Medicine/Genetics, Media Archive, Native Americans/First Nation, Politics/Public Policy on 2018-10-25 00:51Z by Steven

Before Arguing About DNA Tests, Learn the Science Behind Them

The New York Times

Carl Zimmer

Senator Elizabeth Warren’s DNA test results indicated that she had a Native American ancestor several generations ago.
Bridget Bennett for The New York Times

Our genetic code cannot be treated as a matter of simple fractions.

People have always told stories about their ancestral origins. But now millions of people are looking at their DNA to see if those stories hold up. While genetic tests can indeed reveal some secrets about our family past, we can also jump to the wrong conclusions from their results.

The reception of Senator Elizabeth Warren’s DNA results is a textbook case in this confusion…

…Slavery, too, led to an obsession with increasingly tiny fractions of ancestral blood, reaching the absurd extreme of the “one drop” rule. A single black ancestor — no matter how far back in the family tree, no matter how tiny the mythical drop of blood he or she contributed — was enough to make a person black…

…But DNA is not a liquid that can be divided down into microscopic drops. It’s a string-like molecule, arranged into 23 pairs of chromosomes, that gets passed down through the generations in a counterintuitive way.

Eggs and sperm randomly end up with one copy of each chromosome, coming either from a person’s mother or father. In the process, some DNA can shuffle from one chromosome to its partner. That means we inherit about a quarter of our DNA from each grandparent — but only on average. Any one person may inherit more DNA from one grandparent and less from another.

Over generations, this randomness can lead to something remarkable. Look back far enough in your family tree, and you’ll encounter ancestors from whom you inherit no DNA at all…

Read the entire article here.

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Why Elizabeth Warren’s refusal to take a DNA test to prove Native American ancestry was probably a smart move

Posted in Articles, Health/Medicine/Genetics, Media Archive, Native Americans/First Nation, Politics/Public Policy, United States on 2018-03-16 01:05Z by Steven

Why Elizabeth Warren’s refusal to take a DNA test to prove Native American ancestry was probably a smart move

The Washington Post

Tara Bahrampour

Sen. Elizabeth Warren (D-Mass.) rejected a call this week by a Massachusetts newspaper to take a DNA test to prove her Native American heritage, saying it is a cherished piece of family lore and noting that she has never used it to get ahead.

She might also add that such a test may not prove anything — or at least it couldn’t establish the absence of Native American ancestry her critics might be hoping to find.

If Warren were to take one of the widely available commercial “spit tests” and DNA related to a Native American tribe showed up, she would have positive proof that her family stories are true.

But if no such DNA were evident, that would not mean she didn’t have Native American ancestry…

Read the entire article here.

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Elizabeth Warren’s Native American problem goes beyond politics

Posted in Articles, Interviews, Media Archive, Native Americans/First Nation, Passing, United States on 2018-01-22 01:21Z by Steven

Elizabeth Warren’s Native American problem goes beyond politics

The Boston Globe

Annie Linskey, Chief national correspondent

Keith Bedford/Globe Staff
Senator Elizabeth Warren says now, as she has from the first days of her public life, that she based her assertions about her heritage on her reasonable trust in what she was told about her ancestry as a child.

WASHINGTON — There’s a ghost haunting Elizabeth Warren as she ramps up for a possible 2020 presidential bid and a reelection campaign in Massachusetts this year: her enduring and undocumented claims of Native American ancestry.

Warren says now, as she has from the first days of her public life, that she based her assertions on family lore, on her reasonable trust in what she was told about her ancestry as a child.

“I know who I am,” she said in a recent interview with the Globe.

But that self-awareness may not be enough, as her political ambitions blossom. She’s taken flak from the right for years as a “fake Indian,” including taunts from President Trump, who derisively calls her “Pocahontas.’’ That clamor from the right will only grow with her increasing prominence…

…Warren’s family has ties to Oklahoma dating from the end of the 19th century — before it was a state. Oklahoma is now home to more than 35 federally recognized tribes, and it’s common for people there to claim Native American ancestry, often based on little more than family mythology. That’s partially because there is, for some, a certain mystique in popular culture associated with American Indian ties and many families liked to include those ties in their lore.

But claiming Native blood without evidence cuts to the very core of Native American identity because it usurps the rights American Indians have to define their own people and nations, according to native advocates.

“The problem with Elizabeth Warren is she is not the average wannabe,” said David Cornsilk, a Cherokee historian and genealogist. “She is an academic. She has a higher level of aptitude to examine these issues. And a higher responsibility to examine them, and accept the research that is done, or to counter it with alternative research.”…

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The answer is that Warren, like millions of other Americans, is mixed-race, and percentages shouldn’t matter when we consider such ancestry.

Posted in Excerpts/Quotes on 2017-11-30 00:47Z by Steven

The answer is that [Elizabeth] Warren, like millions of other Americans, is mixed-race, and percentages shouldn’t matter when we consider such ancestry.

Martha S. Jones, “Why calling Elizabeth Warren ‘Pocahontas’ is a slur against all mixed-race Americans,” The Washington Post, November 29, 2017. https://www.washingtonpost.com/news/made-by-history/wp/2017/11/29/why-calling-elizabeth-warren-pocahontas-is-a-slur-against-all-mixed-race-americans.

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Why calling Elizabeth Warren ‘Pocahontas’ is a slur against all mixed-race Americans

Posted in Arts, History, Media Archive, Native Americans/First Nation, United States on 2017-11-29 21:43Z by Steven

Why calling Elizabeth Warren ‘Pocahontas’ is a slur against all mixed-race Americans

The Washington Post

Martha S. Jones, Society of Black Alumni Presidential Professor and Professor of History
Johns Hopkins University, Baltimore, Maryland

Elizabeth Warren’s embrace of her mixed-race ancestry has become a political weapon in the hands of her opponents. (AP)

It’s part of the long history of erasing people of mixed heritage.

President Trump’s assault on Sen. Elizabeth Warren descended to a new low Monday. Calling the Massachusetts leader “Pocahontas” during a ceremony honoring Native American code-talker veterans, Trump not only slurred Warren — he slurred all American families whose histories include ancestors of differing races.

By now Warren’s story is familiar. When registering with the American Association of Law Schools between 1986 and 1995, she checked an “Indian” box to describe her ancestry. When pressed by critics who questioned her background, Warren explained that she was “proud” of her Native heritage as passed down to her by stories told by her parents and grandparents.

Critics accuse Warren of leveraging her “minority” status to snag a job at Harvard Law School in 1992. Others charge that Warren’s self-identification was strategic and, even worse, illegitimate. How, they ask, could a woman who is by her own telling no more than 1/32 Native American claim to be anything other than white?

The answer is that Warren, like millions of other Americans, is mixed-race, and percentages shouldn’t matter when we consider such ancestry…

Read the entire article here.

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Elizabeth Warren and Tracee Ellis Ross on the Road to Activism

Posted in Articles, Arts, Media Archive, Politics/Public Policy, United States, Women on 2016-09-19 00:39Z by Steven

Elizabeth Warren and Tracee Ellis Ross on the Road to Activism

The New York Times

Philip Galanes

Senator Elizabeth Warren, left, and the actress Tracee Ellis Ross having dinner at the Hay-Adams Hotel in Washington.
Credit Justin T. Gellerson for The New York Times

Tracee Ellis Ross may be working 14 hours a day in Los Angeles on her hit TV show, “black-ish.” “But when Elizabeth Warren says she’ll have dinner with you,” Ms. Ross said, walking into a suite at the Hay-Adams Hotel in Washington, “you get on a plane. I have a million questions for her.”

And from the moment Senator Warren entered the lobby, friendly to all but racewalking toward the elevator, she was happy to offer answers: breaking down complex problems into plain-spoken choices, engaging everyone in sight. When a woman on the elevator said, “You look familiar,” Ms. Warren introduced herself, shook her hand and asked how her evening was going.

Of course, Ms. Warren, 67, comes by teaching naturally. A law professor for over 30 years, most recently at Harvard, she specialized in bankruptcy and commercial law. A strong advocate of consumer protection, she conceived and fought for the Consumer Financial Protection Bureau under the Dodd-Frank Act of 2010.

Two years later, the political novice was elected a United States senator from Massachusetts. Ms. Warren has since emerged as a very popular figure in the Democratic Party and a fierce advocate for the middle class. In June, she endorsed Hillary Clinton for president, and has gone toe-to-toe with Donald J. Trump in a series of fiery Twitter exchanges.

Ms. Ross, 43, has also established herself as a powerful advocate, particularly for self-esteem among black girls in a series of TV specials, “Black Girls Rock,” and through social media. For eight seasons, beginning in 2000, she starred in the sitcom “Girlfriends,” for which she won two NAACP Image Awards.

But her greatest exposure and acclaim have come with her starring role on “black-ish,” about an extended African-American family, whose third season begins on Wednesday. For her performance, Ms. Ross was nominated for an Emmy for lead actress in a comedy. She is the first African-American woman to be nominated in the category in 30 years, and only the fifth in Emmy history. (The Emmys will be televised Sunday.)…

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Is Elizabeth Warren an Indian?

Posted in Anthropology, Articles, History, Media Archive, Native Americans/First Nation, Politics/Public Policy, United States, Virginia on 2012-10-29 17:23Z by Steven

Is Elizabeth Warren an Indian?

The Aporetic

Mike O’Malley

The ques­tion posed above is extremely hard to answer. She doesn’t “look like an indian.” But what do Indians look like?

Just to recap: Elizabeth Warren is run­ning for the Sen­ate in Massachusetts. She’s been widely mocked for claiming herself as “native Ameri­can” at var­i­ous points in her career. Warren grew up in what’s now Oklahoma, a vast region which the US government had originally reserved for Indian tribes relocated from the East…

…The racial past of Americans is far more complicated and ambiguous than Americans generally realize. My favorite example is very personal. According to Virginia, the state in which I now reside, I am a black man. Had my family stayed in VA, my father could not have attended white schools and my parents would not have been allowed to marry. It’s absurd, and ridiculous: I’m as white as any white man you’d ever imagine, and no one in my family even knew of this history till about a decade ago. But there it is, a mat­ter of record.

The man responsible, Walter Ashby Plecker, was convinced there were no “real” indians in VA. Instead, he argued, there lived a mongrel race of intermmarried people, the “WIN” tribe (White, Indian, Negro). If you listed yourself as “Indian” on official documents, Plecker would rewrite them, and change “indian” to “colored,” because there were no “real” indians. Had Warren grown up in VA, she would have been unable to prove any connec­tion to Indian ancestors, because Plecker destroyed the records. And yet, the descendants of Indians still live in Virginia today…

Read the entire article here.

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Racial Commodification in the Era of Elective Race: Affirmative Action and the Lesson of Elizabeth Warren

Posted in Law, Media Archive, Papers/Presentations, Politics/Public Policy, United States on 2012-10-26 22:00Z by Steven

Racial Commodification in the Era of Elective Race: Affirmative Action and the Lesson of Elizabeth Warren

University of Southern California Legal Studies Working Paper Series
Working Paper 92
31 pages

Camille Gear Rich, Associate Professor of Law
Gould School of Law
University of Southern California

This Essay uses the current controversy over the racial self-identification decisions of former Harvard Law Professor Elizabeth Warren as an occasion to explore incipient cultural and legal anxieties about employers’ ability to define race under affirmative action programs. The Essay characterizes Warren’s racial self-identification decisions as proof of what I call “elective race,” a contemporary cultural trend encouraging individuals to place great emphasis on their “right” to racial self-identification and a related desire for public recognition of their complex racial identity claims. I argue that our failure to attend to the importance placed on racial self-identification by Americans today places persons with complex racial identity claims at special risk for racial commodification. The Essay further suggests that the Warren controversy gives us an opportunity to rethink the way we conceptualize racial diversity. I argue that we must shift away the current model, which conflates race and cultural difference, toward a model that assumes racial diversity initiatives are sampling for employees that can teach us about the diverse ways that race is actualized and experienced. The Essay suggests that diversity initiatives that stress race’s use value as a source of insight into the social process of racialization avoid the cultural commodification risks posed by current affirmative action programs, reorient employers away from thin concepts of diversity, and give employers a basis for making principled distinctions between employees’ racial identification claims. The Essay concludes by identifying and defending a three-part inquiry that can be used to identify proper beneficiaries of diversity-based affirmative action programs.


    • A. The Right to Racial Self-identification In the Era of Elective Race
    • B. Employer Discretion In the Era of Elective Race
    • A. Authenticity Tests Versus Functionalist Inquiries About Race
    • B. Functionalist Inquiries About Race and the Risk of Racial Commodification
    • C. Re-writing Malone : Understanding the Social Processes of Racialization
      • 1. Physical Race or Phenotype-Based Race
      • 2. Documentary Race
      • 3. Social Race
    • A. The Dangers of Laissez Faire Approaches to Race
    • B. The Dangers of Liberty- Based Approaches to Race (or the Return of the Honestly Held Belief Standard)
    • C. Applying the Functionalist Inquiry to Warren and Malone


Over the past fifty years, despite periodic Supreme Court skirmishes, Americans have lived under a negotiated peace with affirmative action programs. Meanwhile employers have labored in the trenches, attempting to implement affirmative action programs in a principled fashion. Employers’ primary challenge in this process is balancing employees’ dignity interests in racial self-identification and employers’ countervailing interest in making so-called racial “authenticity” judgments to ensure the benefits of these programs are properly allocated.  This normally invisible struggle was put on national display when we learned that Harvard Law School seemingly had manipulated the complex racial identification claims of law professor Elizabeth Warren after Warren disclosed that she was part Native American, based on family lore indicating that she had a biracial Native American grandfather. Given Harvard Law School’s reported difficulty in finding minority faculty candidates, the school was quick to bracket Warren’s primary claim of whiteness, and categorize her as a Native American professor to improve the school’s diversity record. Years later, when Warren’s Senate campaign led political muckrakers to uncover the tenuous basis for her claim of Native American identity, Warren was quick to point out that she was an “innocent victim” of Harvard’s racial categorization decisions, as she neither sought nor received any affirmative action benefits based on her decision to identify as Native American. However, Warren’s caveats did little to assuage the concerns of race scholars about the harms threatened by her case. For the Warren controversy revealed that there was no protective force that stood between Harvard’s strategic diversity interests, its related desire to commodify Warren by race, and Warren’s personal interest in racial selfidentification. The Warren controversy warns about the ways in which an employee’s complex, racial identification decisions can be drafted to serve an employer’s purposes.

Concerns about the Warren controversy intensify when her treatment is contrasted against that of the Malone Brothers, two men who in 1977 self-identified as Black in their employment applications for the Boston Fire Department and were hired under an affirmative action program. Although the brothers previously had identified as white in their employment applications, they switched their racial identification to Black after they failed the Department’s standard entrance exam and learned of the more generous standards for Blacks under the Department’s court-ordered affirmative action program. The brothers felt entitled to make the switch, as family lore established that they had a Black greatgrandmother. In stark contrast to Warren, the Malone brothers were fired when the tenuous basis for their claims of Blackness were discovered, and they were adjudged to have committed “racial fraud.” The different results in the two scenarios, more than forty years apart, again raise complex questions about how to negotiate employees’ interests in “elective” or voluntary self-identification by race, employers’ discretionary power to define racial categories, and authenticity contests under affirmative action. For the fire department employer in Malone, just like Harvard in the Warren case, felt entitled to exercise its discretion to determine the character and content of racial categories, but this time employed a stricter, more rigorous authenticity-based standard that required further testing beyond the Malones’ simple act of self-identification.

Students of race look at the two cases and are puzzled. Why is it that Warren’s employer would embrace her tenuous claim of Native American ancestry today, but forty years ago the Malone Brothers similar claims about Blackness were the basis for termination? What happened in the four decades that separate the two cases to fundamentally change the employer’s orientation from one invested in restrictive definitions of race that test the racial authenticity of employees, to one prepared to accept the most tenuous act of self-identification as proof positive of racial status? Additionally, as a normative matter, what should we make of the extraordinary power we seem to have given employers to shape and mold an employee’s racial identity claims and draft them to its own purposes? Does an employer’s strategic approach to racial identity issues operate on a different moral or ethical plane than the strategic maneuvering of individuals? What role, if any, is there for law to play in negotiating these conflicts?

Indeed, contrary to post-racialists’ claim that Americans are being acculturated to ignore race, the sociological literature shows that individuals are actually being acculturated to demand that government and private employers respect and recognize their ever more complicated interests in racial self-identification. To document this trend, this essay explores contemporary changes in our views about racial identity over the past forty years and considers the consequences these changes have for the administration of affirmative action programs. After documenting the challenges our changed cultural views about racial
identity pose, the essay also warns that we must be mindful of the changed incentives of employers or affirmative action administrators in the era of elective race. In prior decades administrators might have opted for rather strict definitions of race; however, diversity demands and other factors have caused administrators contemporarily to prefer strategically deployed, flexible, and wide definitions for racial categories. Thus far, these changes in the understanding and treatment of race and their implications for affirmative action have gone unexplored…

…Part I of the Essay charts our path into the era of “elective race,” identifying the demographic, political and social changes that have encouraged Americans to regard the right to racial self-identification as a key dignity interest. This evolution has occurred simultaneous with employers litigating Title VII and Fourteenth Amendment affirmative action cases challenging their authority to define racial categories and the qualifications necessary to claim membership in a particular group. Although there is a rich scholarship on affirmative action and voluntary racial identification, no legal scholar has considered the impending conflict between employer’s discretionary definitional power over racial categories and the racial dignity interests of employees influenced by elective race understandings. I argue that, if employer discretion is left unbounded, employers will exercise broad power to shape race in ways that should give all Americans pause. Part II revisits the so-called racial authenticity inquiry conducted in Malone to reveals its functionalist foundations, and to retool this functionalist logic in ways appropriate for contemporary diversity-based affirmative action programs. I show that, by mining the inchoate concepts of race articulated in Malone, we gain insight into the diverse range of racialization processes that are the proper focus of diversity initiatives. Part II then considers Leong’s concerns about racial capital exchanges that occur in diversity-based affirmative action programs. I argue that the functionalist standard outlined here will clarify the proper terms on which racial status inquiries are conducted, and in this way ensure that we move away from the thin conceptions of diversity that lead to the commodification of race in its worst form.

Part III turns to the most common concerns about the functionalist inquiry, namely that it involves government in the elaboration and policing of the definition of racial groups. Specifically, Richard Thompson Ford and Cristina Rodriguez have warned against involving courts in disputes over the definition of racial categories, as they believe that in order to resolve these disputes government is required to give legal imprimatur to racial stereotypes and create “identity group subsidies” for putative racially-linked cultural practices. The revised functionalist analysis offered here is based on the understanding that we need greater demarcation between cultural diversity initiatives and racial diversity initiatives. I show that diversity initiatives that focus on diverse experiences of racialization largely avoid the stereotyping dangers that are the source of their concern. However, I also show that the law must recognize the link between race, culture and social subordination if it is to take account of the full range of racialization experiences that cause social subordination. Part III concludes by exploring Randall Thomas’s liberty-based arguments in support of relaxed approaches to racial identification, and the more contemporary manifestation of this argument in the work of Kenji Yoshino. This liberty-based approach to racial selfidentification again stresses the dignity injury employers and government inflict when they challenge employees’ racial identification decisions. The essay explains that this dignity interest must bow to queries about one’s experience of racialization when one claims, based on race, that one can advance an employer’s diversity goals…

…A. The Right to Racial Self-identification In the Era of Elective Race

Most Americans identify by race; however, the racial identity claims that most characterize the modern era are those made by multiracial Americans: persons who make complex claims regarding their racial ancestry and who in prior decades more willingly would have been absorbed into monoracial categories. Scholars such as Tanya Hernandez and Naomi Mezey have shown how in the 1990s multiracial advocacy groups shaped the national conversation on race as they petitioned for the addition of a new “multiracial” race category in the 2000 Census and 2010 Census. Multiracial advocates’ request for a separate multiracial category was ultimately rejected in favor of an option that allows multiracials to check off all racial categories with which they identify. Despite this setback, the multiracial movement still profoundly shaped federal policy and national discourse about race. Most significantly, the movement’s efforts caused the Office of Management and Budget to issue a revised “Directive 15,” the administrative guidance document that controls all federal racial data collection efforts. The new Directive 15 requires that all federal agencies respect an individual’s interest in racial self-identification and allow the exercise of this right or interest whenever possible in government-sponsored or solicited data collection processes…

…While Americans have been encouraged to see these moments of racial identity selection as important, the values and understandings that guide their decisions are surprisingly unclear. Some Americans may regard these inquiries as moments in which they are required to identify how they are racially perceived by others, regardless of whether their perceived race matches their personal racial identity commitments. Others answer these questions based on how they believe they are expected to answer these questions, either because of their family’s racial identity commitments or those of their cultural group. Still others answer these questions based on their symbolic commitment to particular communities, regardless of whether they have had any social experiences in which they were recognized as members of a given racial category. The wide variation in how individuals make their racial self-identification decisions makes these decisions ripe for misunderstanding, exploitation and abuse.

In addition to shaping federal racial-data-collection efforts, the multiracial movement also had a profound discursive impact on the language and constructs Americans use to articulate their relationship to race. For example, Census data shows that after the multiracial movement there was a surge in the number of persons that describe themselves as mixed race. Relatedly, a new group of “white multiracials” has emerged. These are persons who identify as white in certain circumstances, but also are willing to shift to a minority or multiracial identity when they enter a particular cultural context that makes minority background relevant, in response to significant life events, or even to gain potential strategic advantages in social interactions. Also, many more Americans are willing to challenge traditional, established racial categories and resist the default racial designation that would normally be assigned to them. For example, although persons who identify as Latino may regard this identity as a racial identity, federal law treats being Latino as a kind of ethnic designation and requires Latinos to further racially identify as white, Black or by using another federally recognized racial category. At present, large numbers of Latinos, particularly the young, resist this attempt to structure their racial identification choices and choose “other race” rather than select another option. Similarly, federal standards indicate that Middle Easterners should be categorized as white, but persons who identify as Middle Eastern may reject this proposition, citing their special experiences of discrimination as evidence that they are of a different race.

Further complicating matters, sociologists have raised questions about the integrity of peoples’ elective race decisions over time, as multiracials may change their responses to inquiries about race depending on the kind of form that is used, the order of the questions, and the context in which these questions are asked. Also, although the law review literature has devoted almost no attention to this issue, structural variables strongly influence racial identification decisions. For example, issues such as class, history of imprisonment and other experiences of social marginalization can trigger multiracials to “choose” to claim a minority identity. These insights are important, as they reveal that in many cases fluctuations in multiracials’ racial self-identification decisions are not driven by thin expressive interests or strategic considerations, but may be profoundly linked to grounding experiences of alienation and marginalization. Given the diverse array of influences that affect individuals’ racial self-identification decisions, we must develop legal analyses that treat elective race decisions in a manner that gives due weight to their complexity. Government has an obligation to develop an intelligent, coherent response on how to manage and interpret individuals’ shifting and sometimes conflicting racial identification choices as, in many cases,  individuals fail to fully appreciate the legal significance that attaches to these decisions.

Indeed, the law may be on a collision course with the cultural default emphasizing the importance of the right to racial self-identification, for most individuals are unaware that, to the extent this right exists, it is a defeasible one. Census officials still rely on third party observation or other categorization methods when it is impossible or more likely inconvenient to get racial self-identification information. This rule may result in a census official racially categorizing an individual in a way that fundamentally contradicts the individual’s own understanding of her race. Similarly, employers also retain the ability to racially identify employees when the employee declines to state his or her race, when conditions make racial data collection impossible or impracticable, or when the employee appears to have engaged in racial fraud. Education officials enjoy the same discretion. Last, and perhaps most important for our discussion here, employers and public entities retain the ability to define racial categories and the ultimate authority to determine whether an individual’s racial identity claims will be respected. Indeed Malone, while not cited for this proposition, stands for the principle that a public employer may define the content of a racial category and its membership. Subsequent cases have made this point more explicitly, as employees have challenged the technical definitions of race used by employers or government agencies when these definitions would prevent them from accessing benefits…

Read the entire paper here.

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