Administering Identity: The Determination of Race in Race-Conscious Law

Administering Identity: The Determination of Race in Race-Conscious Law

California Law Review
Volume 82, Issue 5 (1994)
pages 1231-1285

Christopher A. Ford

Modern American anti-discrimination law seeks to remedy the effects of racial and ethnic prejudice by ensuring equality in areas such as political access and employment opportunity. In this effort, the concept of race is central both to identifying and to rectifying the effects of prejudice. Various economic and social benefits, for example, are awarded based upon injuries and solutions defined with reference to racial categories. Race and ethnicity, however, are today recognized as being largely social constructs with little empirical or scientific basis. This dichotomy between the importance of race classification to anti-discrimination law and its fundamental indeterminacy creates what the author calls a core dilemma of modem race-conscious law: the difficulties of how we “administer race.” He explores two related questions bearing on this dilemma. How should the law-indeed, can the law-intelligibly define the nature and boundaries of the groups to whom remedial preferences are addressed? Furthermore, can the law “accurately” sort individuals into these groups once they have been defined? The author explores the approaches several different group conscious programs and legal regimes have taken in attempting to deal with these questions, from methods employed in sex and Native American classification to the systems of classification used in the Jim Crow South, in modem India and in South Africa during the apartheid era.

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