In 1791, South Carolina’s court of last resort held that falsely describing an individual as a mulatto was actionable “because, if true, the [plaintiff] would be deprived of all civil rights.”

Posted in Excerpts/Quotes on 2012-11-28 01:46Z by Steven

The use of defamation law to reinforce privately held class-based animus traces back at least to the eighteenth century. In 1791, South Carolina’s court of last resort held that falsely describing an individual as a mulatto was actionable “because, if true, the [plaintiff] would be deprived of all civil rights.” False imputations that white persons were nonwhite or otherwise racially “impure” remained actionable in parts of the United States well into the twentieth century, particularly across the South. In 1957, South Carolina, for example, reaffirmed the precedent set in 1791. In Bowen v. Independent Publishing Co., the South Carolina Supreme Court held that allegations of racial impurity remained per se defamatory because, in light of the “social habits and customs deep-rooted in this State, such publication [alleging nonwhite lineage] is calculated to affect [one’s] standing in society and to injure [one] in the estimation of [one’s] friends and acquaintances.” Bowen and other decisions like it used the judicial arm of the state to reinforce Jim Crow under the guise of “neutrally applied” common law. By sanctioning these causes of action, the state reinforced notions of white supremacy and “affirmed the honor of whites by authoritatively denying status to blacks.”

Anthony Michael Kreis, “Lawrence Meets Libel: Squaring Constitutional Norms with Sexual-Orientation Defamation,” The Yale Law Journal Online, Volume 122, Issue 2 (November 2012):125-141.

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Racial Classification in Assisted Reproduction

Posted in Articles, Health/Medicine/Genetics, Law, Media Archive, United States on 2012-04-12 21:24Z by Steven

Racial Classification in Assisted Reproduction

Yale Law Journal
Volume 118, Issue 8 (June 2009)
pages 1844-1898

Dov Fox, Academic Law Research Fellow
Georgetown University Law Center

This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the expressive dimension of wrongful discrimination. Even practices marked by innocent motives and benign effects can give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. Race-based differentiation in voting ballots, dating websites, and donor catalogs helps us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us.

Table of Contents

  • Introduction
  • I. Race and reproduction
    • A. Free Market Sperm Donation
    • B. Race-Conscious Donor Catalogs
  • II. the expressive dimension of racial discrimination
    • A. Discriminatory Intent and Discriminatory Effects
    • B. Discriminatory Expression
  • III. the moral logic of donor classification
    • A. The Social Meaning of Reproducing Race
    • B. The Architecture of Reproductive Choice
  • Conclusion


Few choices matter more to us than those we make about the person with whom we will share a life or start a family. When having children involves assisted reproduction, selecting an egg or sperm donor occasions similar gravity. Such decisions typically bring to bear a patchwork of preferences about the particular physique, disposition, or values we find desirable in a romantic or procreative partner. To many, race matters. Just as some people in the search for companionship are looking for a significant other who shares their racial background, many of those who wish to become parents would prefer a child whose racial features resemble their own.

To help those who use donor insemination have a child of a particular race, sperm banks routinely catalog sperm donors on racial grounds. Twenty-three of the twenty-eight sperm banks operating in the United States provide aspiring parents with information about donor skin color, and the largest banks organize sperm donor directories into discrete sections on the basis of race. This practice of race-conscious donor classification invites us to rethink those racial preferences we commonly take for granted within intimate spheres of association. Insofar as race tends to reproduce itself within the family unit, race-conscious donor decisionmaking serves as a promising point of departure from which to ask whether and how our multiracial democracy should seek to preserve or diminish our collective self-identification with racial solidarities.

This Note proceeds in three parts. Part I describes the practice of racial classification by the world’s largest sperm bank. Part II argues that antidiscrimination arguments about bad intentions and bad consequences struggle to make sense of the race-conscious way that sperm banks design donor catalogs and online search functions. This suggests that certain classes of discriminatory behavior require a richer moral vocabulary than traditional frameworks allow. In these cases, we do well to examine what might be called the expressive dimension of wrongful discrimination, which turns on whether a rule or action instantiates public values that characteristically erode worthy forms of social recognition.

Part III works out the social meaning of racial classification in assisted reproduction by reference to similar classifications in the more familiar settings of voting and dating. These analogies help us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. This Part argues that racial classifications marked by innocent motives and benign effects give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive-choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us.

Read the entire article here.

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The Negro Defined

Posted in Articles, Law, Media Archive, United States on 2011-12-17 20:10Z by Steven

The Negro Defined

The Yale Law Journal
Volume 20, Number 3 (January, 1911)
pages 224-225

In many of the states where a considerable portion of the population is colored, statutes define the term negro and establish his status where the same is considered, because of local conditions, as essentially different from that of Caucasians. Where legislatures have either negligently or intentionally left the terms “negro” and “colored” undefined, courts have faced difficulty in reaching exact decisions on the point of just what proportion of negro blood in a person of mixed racial descent will constitute him or her a “negro” or “colored.” The question is purely academic, and its settlement lies largely in the discretion of the court, in combining technical definitions of ethnological experts and accepted public opinion on the subject.

In the recent case of State of Louisiana v. Treadway, 52 So., 500, an exhaustive review of statutory and judicial law resulted in a divided court on the question in issue. Here the defendant, a male octoroon, was indicted, charged with having lived in concubinage with a female member of the Caucasian race. The statute governing the alleged offense made criminal, concubinage between members of the Caucasian race and members of the negro or black race.

The decision hinged on the question in issue: “Was an octoroon a member of the negro or black race?” The court decided, three to two, that the defendant, an octoroon, was not a negro within the meaning of the statute…

Read the entire article here.

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The Secret History of Race in the United States

Posted in Articles, History, Law, Media Archive, United States on 2011-01-04 05:05Z by Steven

The Secret History of Race in the United States

The Yale Law Journal
Volume 112, Issue 6 (March 2003)
pages 1473-1509

Daniel J. Sharfstein, Associate Professor of Law
Vanderbilt University

In the beginning, there was a man named Looney. George Looney’s world was Buchanan County, Virginia, a pocket of Appalachian hills and hollows that juts into Kentucky and West Virginia. In 1911, his place in this world was secure. Where lumber was the only industry in town, Looney owned a mill and a store. He had a thriving family. His home was near Looney’s Creek.

But Looney’s world was changing. Outsiders were moving to Appalachia to chop, saw, dynamite, and chisel the countryside. Among them were black people, never a common sight in Buchanan, “one of the whitest counties, not only in Virginia, but in the entire South.” The locals proved hostile to the newcomers. Although southwestern Virginia had an extremely small African-American population, more lynchings occurred there between 1880 and 1930 than in any other part of the state. The violence was most common in the more industrialized counties immediately to the east. Even so, in early 1893, after mobs lynched five blacks in neighboring Tazewell, vigilantes and rioters rode through Buchanan, declaring it “altogether a white county.”

About five years after the mob violence in Buchanan, a young man named George Spencer crossed the Kentucky line into Virginia. Over the next decade, he married a local woman, had six children, and settled near the Looneys. Spencer, a farmer, worked for Looney at times, and the families often ate together, stayed over at each other’s houses, and sent their children to the same schools. Their community was small; the local teacher was a third cousin to the Looneys and kin by marriage to the Spencers.

However, when Spencer’s brother was accused of killing Looney’s brother, the families stopped talking. And then Looney started talking, to just about anyone who would listen: “[The Spencers] are nothing but God damned negroes, and I can prove they are God damned negroes.” Adopting these words as a mantra, Looney—”thoroughly addicted to the abominable habit” of profanity—uttered them at the mill, at his store, at home, and in town. In the summer of 1911, his words flowed down the branches and forks and creeks wrinkling through Buchanan. Before the local school opened for the fall term, Looney approached his cousin, the teacher, told him to tell the Spencers that he called them “damned niggers,” and declared that he would take his children out of school. “They shan’t go with negroes,” he said.

Then Looney sharpened his attack. He traveled to nearby Johnson County, Kentucky. “[T]hrough strenuous efforts, involving costs and expenses,” Looney found men who knew Spencer’s grandfather—old men, on either side of eighty, who lived in places with names like Paintsville, Jennies Creek, Burnt Cabin, and Lick Fork, and knew Jordan Spencer, Sr., “[e]ver since the war, and before too.” These men remembered his thin lips, blue eyes, and “tolerably straight,” long red hair, quite possibly “painted,” with “a kind of a slick rim where his hat went.” One recalled that “a wild, drinking kind of a dissipated man” named Letcher Davis used to tell the Johnson County locals that Spencer had mixed blood, and others talked about nagging rumors that would pop up every now and then. Looney paid for a school official to accompany him on his expeditions. With affidavits in hand, Looney convinced the Rock Lick School District to expel Melvin Spencer from the third grade. George Spencer then sued Looney for slander, seeking damages of ten thousand dollars.

Spencer v. Looney was one of dozens of cases decided in the eras of slavery and segregation that hinged on the question of whether a plaintiff or defendant was white or black. During the past decade, legal historians have begun to excavate these bygone disputes, which involved wills, marriage and divorce, transportation, immigration and naturalization, and libel and slander. With few exceptions, two goals have motivated recent scholarship: proving that race is a social construction and showing how courts in the nineteenth and early twentieth centuries helped build America’s racial infrastructure.

This Essay presents a more complex picture of race in the post-Reconstruction South in an attempt to develop a richer understanding of how the law of race worked. Cases that required a determination of a plaintiff’s or defendant’s racial identity provide rare glimpses into the private lives and worldviews of real people. Although contained within the conventions of briefs, legal opinions, and direct and cross examination, their voices vividly express a largely unexplored degree of self-consciousness about what race does and does not mean. Making sense of the private beliefs aired in courtrooms is an essential task of the legal history of race. Cases like Spencer v. Looney show people who exercised a surprising degree of tolerance in their everyday lives at a time of massive racial hysteria and who had a basic awareness that racial identity was something that could be disputed and creatively argued, at least in the courtroom.

After surveying the legal historiography, I explore what current scholars, with a few notable exceptions, have missed: that many of the historical actors understood that race is a social construction. For most legal historians, the actors in cases such as Spencer v. Looney—parties, lawyers, witnesses, judges, spectators, and contemporaneous commentators—have been useful only to the extent that their doings, presumably unconscious or unintentional, reveal inconsistencies about, and thus the socially constructed nature of, race. In fact, at the turn of the twentieth century, there was widespread discussion of the artificiality of the color line, in courtrooms, legal commentary, social science literature, journalism, and fiction. It is no exaggeration to say that at the height of Jim Crow, people—even and perhaps especially the most rabid of racists—understood what a legal fiction was.

At the root of at least some of this self-consciousness is a phenomenon in American social history that the law, as a forum where family secrets were uttered aloud, is uniquely positioned to reveal. Over the course of the nineteenth century, the United States shifted from an identity regime that recognized “mulattoes” as a distinct racial category to one that divided the world strictly into black and white. Although this transition has been generally regarded as a time when mulattoes were absorbed into a black world, it was also a time when many established themselves as white. That is to say, across the South at the turn of the twentieth century, ostensibly white people who were socially accepted as white had African ancestry.This racially porous status quo was at odds with the extreme and often violent politics of segregation. While the most paranoid ideologies of “racial integrity” sought to classify every person with any African ancestry as black, this “one-drop rule” had the broad potential to be destabilizing for the white South. If no one’s racial status was secure without an exhaustive genealogy, the governmental apparatus of segregation and white supremacy would be perpetually threatening to whites. Instead, statutory definitions of race reflected the status quo, defining as white those people who had as much as one-fourth or one-eighth “Negro blood.” Formalistic judicial enforcement of the color line preserved this status quo, making it difficult to prove that people who were accepted as white were in fact black and encouraging actions for damages such as Spencer v. Looney.

As a result, extreme segregationists sought to push the color line toward a one-drop rule by arguing that the more generous statutory definitions of race were absurd, illogical, and socially constructed—an ironic contrast to quite similar observations made by progressive scholars today. This complicated picture of race in the turn-of-the-century South has been absent from legal scholarship. At the heart of this Essay is an attempt to take race beyond conventional legal history and view cases about the color line as portals into a world of secret histories—whispered gossip, unstated understandings, and stories purposely forgotten.  

Read the entire article here.

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