(Re)defining Race: Addressing the Consequences of the Law’s Failure to Define Race |
(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
- A. Historical Definitions
- 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
- A. Actual Versus Perceived Race, Ambiguous Plaintiffs, and 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
- A. Social-Cognitive Origins of Race
- V. REDEFINING RACE: A NEW DEFINITIONAL FRAMEWORK
- CONCLUSION
Read the entire article here.
Tags: Cardozo Law Review, Destiny Peery