Judicial Erasure of Mixed-Race Discrimination

Judicial Erasure of Mixed-Race Discrimination

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

Nancy Leong, Assistant 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…

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