Mixed Race Studies

Half/Full

UC Irvine Law Review
University of California, Irvine Law School
Volume 3, Forthcoming
Online: 2013-04-07
pages 101-125

Nancy Leong, Associate Professor of Law
University of Denver, Sturm College of Law

Research suggests that multiracial identity is uniquely malleable, and I will focus here on the significance of that malleability for mixed-Asian individuals. At various times, mixed-Asian individuals may present themselves as “half” Asian; other times, they may present themselves as “full” Asian, “full” White, or, in some instances, fully ambiguous. Mixed-Asian racial identity negotiation, I will argue, often presents considerable challenges for mixed-Asian individuals. And mixed-Asian individuals are often targets of what I have elsewhere called “racial capitalism” by White individuals and predominantly White institutions. Still, I conclude that the malleability of mixed-Asian racial identity provides unique opportunities for destabilizing existing views about racial identity, reinvigorating stale conversations about race, and ultimately facilitating progress toward a racially egalitarian society.

Contents

• Introduction
• I. Mixed-Asian Identity
  • A. Sociology
  • B. Legal Discourse
• II. Using Mixed-Asian Identity
  • A. Commodification
  • B. Exploitation
  • C. Entrepreneurship
• III. Harms
  • A. Intrinsic Harms of Commodification
  • B. Harms to Individual Mixed-Asians
  • C. Harms to Society
• IV. Half Full

INTRODUCTION

About one out of six new marriages in America takes place between two people of different races—an all-time high. And Asian Americans are ahead of the curve: about one in three Asian Americans marries someone of a different race. Such relationships precipitate what commentators have described as an “interracial baby boom.”

Research suggests that multiracial identity is uniquely malleable, and I will focus here on the significance of that malleability for mixed-Asian individuals. At various times, mixed-Asian individuals may present themselves as “half” Asian; other times, they may present themselves as “full” Asian, “full” White, or, in some instances, fully ambiguous. Mixed-Asian racial identity negotiation, I will argue, often presents considerable challenges for mixed-Asian individuals. And mixed-Asian individuals are often targets of what I have elsewhere called “racial capitalism” by White individuals and predominantly White institutions—that is, these individuals and institutions derive value from mixed-Asian racial identity. Still, I conclude that the malleability of mixed-Asian racial identity provides unique opportunities for destabilizing existing views about racial identity, reinvigorating stale conversations about race, and ultimately facilitating progress toward a racially egalitarian society.

In Part I, the Essay examines the social scientific literature regarding mixed-Asian racial identity. As the result of a wide range of factors, including phenotypic characteristics, life experiences, and family dynamics, mixed-Asian individuals often view their racial identity differently from members of any of the traditional socially ascribed racial categories. In particular, mixed-Asian identity is often more fluid and dynamic, shifting from one context to the next. Such fluidity and dynamism is facilitated by a social view of mixed-Asian individuals as occupying a unique racial space. Part I also briefly notes the relative dearth of legal discourse relating to mixed-Asians.

Part II explores the way mixed-Asian racial fluidity is used, manipulated, exploited, and leveraged. Mixed-Asian individuals often engage in what scholars have described as “identity performance” or “identity work,” so as to present themselves in the manner most favorable in a particular social or employment context. For example, mixed-Asian individuals may be able to present themselves in a way that is more palatable to employers by displaying greater assimilation into dominant White norms of behavior and self-presentation. But mixed-Asian racial identity is also exploited by White individuals and predominantly White individuals. For example, an employer might count a mixed-Asian person for purposes of its diversity numbers even if that person does not personally consider herself a minority, or might incorporate photos of a mixed-Asian person on its website or in its promotional literature in order to advertise its nominal commitment to diversity without engaging harder questions of structural disadvantage and remediation.

Part III examines some of the negative implications of such uses of mixed-Asian identity, which harm both mixed-Asian individuals and society at large. For example, mixed-Asian individuals suffer identity demands that harm the integrity of their racial identity and submerge their own complex processes of identity negotiation. More broadly, exploitation of mixed-Asian racial identity by White individuals and predominantly White institutions often essentializes mixed-Asian individuals, impoverishes our discourse around race, fosters racial resentment by inhibiting the reparative work essential to improved racial relations, and detracts from more meaningful antidiscrimination goals.

Despite the many negative implications of manipulating mixed-Asian identity in the ways I have described, the Essay concludes in Part IV by suggesting that the fluidity and malleability of mixed-Asian identity also has the potential to serve as a powerful tool for racial reform. Mixed-Asian racial malleability has the potential to destabilize entrenched beliefs about race, to lay bare hidden demands of racial identity performance, and to engender a dramatic improvement in our conversations and policies regarding race.

Read the entire article here.

Lecture: What Would Be the Story of Alice and Leonard Rhinelander Today?

UC Davis Law Review
University of California School of Law
Volume 46, Number 4, April 2013
pages 939-960

Angela Onwuachi-Willig, Charles M. and Marion J. Kierscht Professor of Law
University of Iowa

On November 8, 2011, I presented this lecture as part of the annual Brigitte M. Bodenheimer Family Law Lecture Series at the University of California, Davis School of Law. I extend sincere thanks to the Bodenheimer family for endowing this special lecture. I feel honored to he a small part of this wonderful lecture series in family law. I feel particularly grateful because the University of California, Davis School of Law was my “birthplace” as a professor. Dean Rex Perschbacher, then-Associate Dean Kevin Johnson, and the law school faculty welcomed me into academia by giving me my first job as a tenure-track law professor and serving as fantastic mentors to me along the way. I did not have the honor of knowing Professor Bodenheimer, but I was very fortunate to be a part of her legacy at the law school in two important ways. First, I followed in the footsteps of Professor Bodenheimer, who was the first tenured woman law professor at the University of California, Davis School of Law, when I joined the faculty as one of its many female law professors. I also was lucky to be a part of Professor Bodenheimer legacy at the law school by following her and Professor Carol Bruch as the institution’s family law professor. This Essay is based on materials from my forthcoming book According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family (Yale University Press 2013). It explores both how far we have travelled and how little we have travelled in terms of equality and interracial intimacy since the stunning annulment trial of Alice and Leonard Rhinelander in 1925.

Table of Contents

• I. Tragic Love: The Story of Alice and Leonard Rhinelander
• II. Lessons from Alice and Leonard Rhinelander
  • A. Marriage in Black and White
  • B. The Jim and Jane Crow of Love
  • C. Why Aren’t There More “Alices and Leonards”?
  • D. Race As an Acceptable Basis for Annulment Today?

Read the entire lecture here.

In new book, two Kentucky families discover surprising racial histories

Lexington Herald-Leader
Lexington, Kentucky
2011-05-15

Linda B. Blackford

Freda Spencer Goble of Paintsville knew that she hailed from a proud and hardworking clan that carved a life out of the hills and hollows of frontier Johnson County. What she didn’t know was that one of those frontiersmen, her great-great grandfather, was partly black.

William LaBach is a Georgetown lawyer and genealogist who has long studied his Gibson relatives, a clan of Louisiana sugar planters who made a second home in Lexington before the Civil War. He’d heard that a colonial forebear was part African, but could never confirm it.

These two Kentucky families are now the subject of a new book by Vanderbilt University law professor Daniel Sharfstein. The Invisible Line: Three American Families and the Secret Journey From Black to White reveals the complex and shifting history of race in America, a history about people’s most basic — and yet most unreliable — assumptions about their own identity…

…Thanks to books like Slaves in the Family by Edward Ball and revelations about President Thomas Jefferson’s black descendants, people have become more used to the idea that family trees branch with different ethnicities. However, the idea they might be a different ethnicity themselves is a new idea that is only recently emerging in genealogy and other historical studies.

“This is a more unsettling story. … The story really changes the way people approach race,” Sharfstein said. “For a lot of the descendants I spoke with, being white meant they really didn’t have to think about race for most of their lives. But now they’re really paying attention.”…

Read the entire article here.

Principled Expediency: Eugenics, Naim v. Naim, and the Supreme Court

The American Journal of Legal History
Volume 42, Number 2 (April, 1998)
pages 119-159

Gregory Michael Dorr, Visiting Assistant Professor in Law, Jurisprudence, and Social Thought
Amherst College

In March 1956, the Supreme Court refused to hear Naim v. Naim, a suit contesting the constitutionality of Virginia’s antimiscegenation statute, the Racial Integrity Act of 1924. The Court’s two per curiam decisions in this case sparked a debate surrounding Supreme Court adjudication. Did the Court act on legal “principle,” or in response to political “expediency,” in refusing to find a properly presented federal question in Naim? Examination of the available evidence shows that the court was not unanimous in avoiding Naim. Ultimately, Felix Frankfurter’s intra-court politicking preventing the Court from deciding Naim. Frankfurter convinced the brethren that avoiding Naim was possible, despite the fact that its appellate status tapped the Court’s “obligatory jurisdiction.” To understand the “principle” that undergirded Frankfurter’s “expedient” action, one must consider the background of Virginia’s Racial Integrity Act. Eugenical theory provided the state with a colorably rational basis for racial restrictions in Virginia’s marriage law. As counsel never directly challenged the reasonableness of the racial classifications—never challenged the eugenical precepts supporting the law—Frankfurter was able to convince his colleagues that the Court could not consider the constitutional issue in “clean cut and concrete form unclouded.” Then, following the Virginia Supreme Court of Appeal’s defiance of the Supreme Court’s remand order, Frankfurter urged that the Court could defer the case for lack of “a properly presented federal question.” In so doing, Frankfurter extended the life of miscegenation statutes eleven years—until the Court struck them down in Loving v. Virginia.

It is unlikely that Chinese sailor Ham Say Naim ever heard the word miscegenation before he jumped ship in 1942. Eleven years later Naim, still a Chinese national, sat in Judge Floyd E. Kellam’s Portsmouth, Virginia Circuit Courtroom. His wife of twenty months, Ruby Elaine Naim, a white woman, sought a divorce on the grounds of adultery. Choosing not to rule on the divorce action, Kellam granted Ruby Elaine Naim an annulment under part of the Virginia Code entitled, “An Act to Preserve Racial Integrity.” These statutes decreed interracial marriage—because of its result, miscegenation or racial intermixture—illegal and “void without decree” in Virginia. Ham Say Naim’s counsel appealed the case, through the Virginia Supreme Court of Appeals, to the United States Supreme Court in the October Term of 1955. In a surprising series of events, the case bounced between the Supreme Court and Virginia’s highest court. The case ended in March 1956 when the Supreme Court, in a cryptic memorandum decision, ruled, ‘The decision of the Supreme Court of Appeals of Virginia [reaffirming their support of Judge Kellam’s decision] leaves the case devoid of a properly presented federal question.” With this action, the United States Supreme Court effectively upheld a state’s right to restrict marriage between the races. A decade passed before the Court again considered racial classifications in marriage law. In Loving v. Virginia, another challenge to Virginia’s Racial Integrity Act, the Court struck down antimiscegenation statutes, removing the last legally-enforced barrier facing Americans of color.

June 12, 1997 marked the thirtieth anniversary of the Supreme Court’s landmark decision in Loving. As scholars commemorate Loving, it seems appropriate to reconsider Naim to understand the longevity of antimiscegenation statutes. Naim v. Naim represents more than a historical footnote to Loving: Naim reveals the complex interplay of eugenical ideology, constitutional jurisprudence, the internal politics of the Supreme Court, and the Court’s relationship to American society. Indeed, Naim illustrates that the line between “principle and expediency” in Supreme Court adjudication was less sharply defined and more hotly contested than many commentators have imagined. Both contemporary and subsequent historical treatments ascribe particular importance to Naim only in so far as its disposition appeared to reflect the Justices’ concern that any action on interracial marriage would exacerbate tensions created by the Brown decisions.

This paper, however, argues for a reassessment of Naim v. Naim‘s significance on two grounds. First, digging beneath surface impressions one sees that Naim, while sharing a kinship with other antimiscegenation cases, belongs also within the rarefied family of eugenics case law that began with Buck v. Bell and appeared to end with Skinner v. Oklahoma. Earlier antimiscegenation laws in Virginia, like many that persisted in other states, based their strictures not upon a “science” of racial improvement, but on the splenetic racism and negrophobia of the Redemption Era. Virginia eugenicists, however, promoted the Racial Integrity Act in the name of scientifically-validated social engineering. The Racial Integrity Act’s enactment as a scientific measure to preserve the state’s “health” supplied the legal justifications that upheld the statute in Naim. Eugenics provided the state with a “rational basis” for the exercise of its police power in restricting interracial marriage. Ultimately, eugenical social policy used science to garner legal imprimatur for the deep-seated southern cultural taboo against interracial sexuality.  This certification formed a bond between statutory social control and the law that proved difficult to break.

Legal debates concerning the confluence of judicial review and social policy suggest a second reason Naim should be reconsidered. Probing the records of various Supreme Court justices, it becomes apparent that their actions in disposing of Naim did not represent simply a collective dodge. Behind closed doors, the justices waged a pitched battle. Ultimately the issue was resolved not only in light of political considerations, but also as a result of the swirling jurisprudential debate over what Morton J. Horwitz terms “the central ideological question before the Supreme Court” in the twenty years after World War II: the debate between judicial activism and judicial restraint. In this intra-court battle, the personality and beliefs of Justice Felix Frankfurter take center stage. Examining the synergy between the Racial Integrity Act’s eugenical rationale and jurisprudential debates trammeling the Supreme Court helps explain why it took another eleven years to strike down antimiscegenation statutes.

This reconsideration of Naim v. Naim proceeds in four parts. First, a brief history of eugenics and the elite Virginians who integrated eugenical precepts into the legal, medical, and educational infrastructures of Virginia provides Naim‘s background. Parts II and III focus on the progress of Naim through the Portsmouth Circuit Court and the Virginia Supreme Court of Appeals, respectively. These sections develop the social and cultural history of Naim v. Naim, elucidating the ways in which southern sentiment regarding issues of class, race, and gender aligned with thirty year-old eugenical precepts and the law to determine the case. Special attention is given to how eugenical arguments cropped up explicitly in the statements of counsel, the state attorney general, and the opinion of the courts. Part IV takes up the battle over Naim within the United States Supreme Court, revealing the intra-court politics that decided the case. The paper concludes with a brief consideration of Naim v. Naim‘s role as precedent for the lower court decisions in Loving v. Virginia. The conclusion assesses how the Racial Integrity Act failed only when two conditions were met: 1) counsel directly challenged the “rational basis” of the eugenical underpinnings of the Racial Integrity Act; and, 2) the doctrinal/theoretical debate among the Supreme Court justices was resolved, in part as a result of Felix Frankfurter’s retirement, in favor of judicial activism for civil rights. The fulfillment of these two conditions set the stage for the recalibration of legal and cultural scales…

Read the entire article here.

HIST 574–Modern U.S. History: Miscegenation, Mixed Race, and Interracial Relationships

Simmons College, Boston, Massachusetts
Summer 2013

Ulli Ryder, Lecturer of History and Africana Studies

This class will explore the conditions for and consequences of crossing racial boundaries in the United States. It will take a multidisciplinary approach, utilizing historical scholarship, literature, legal scholarship, and communication studies, along with several feature and documentary film treatments of the subject. Students will gain a deeper understanding of the ways race has been socially constructed; the connections between race and power in the U.S.; and the possibilities of a non-racist future.

William F. Yardley

The Tennessee Encyclopedia of History and Culture (Version 2.0)
2009-12-25

Lewis L. Laska
Tennessee State University

William F. Yardley, an influential and powerful advocate for the legal rights of blacks, was the first African American to run for governor of Tennessee. Yardley was born in 1844, the child of a white mother and a black father and, therefore, legally free. He was literally left on the Knoxville doorstep of the white Yardley family, who took him in and gave him his name. Bound out to learn a trade, he attended school under the direction of an Episcopal minister. In 1869 he was teaching black children at the Ebenezer School and reading law with a white lawyer. By 1872 he had passed the bar exam and was licensed to practice. Apparently the first African American lawyer in Knoxville, he handled primarily criminal cases for black clients. In 1870 he married Elizabeth Stone, who was part Native American, and they had four children…

Read the entire article here.

Assuming Responsibility for Who You Are: The Right To Choose “Immutable” Identity Characteristics

New York University Law Review
Volume 88, Number 1 (April 2013)
pages 373-400

Anthony R. Enriquez
New York University School of Law

Golinski v. U.S. Office of Personnel Management, a district court case challenging the constitutionality of the Defense of Marriage Act, explicitly adopted a novel definition of immutability under the Equal Protection Clause. Now held in abeyance pending the Supreme Court’s decision in United States v. Windsor, Golinski’s discussion of immutability remains relevant because it articulated the rationale behind a number of recent lower court decisions in equal protection jurisprudence that reach beyond the context of sexual orientation. Such decisions turn away from talismanic protection of immutable characteristics determined by birth, and toward the right of all persons to choose fundamental aspects of their identity. They disavow “biological immutability,”—the traditional view of immutability which refers to a characteristic one cannot change, “determined solely by the accident of birth”—and instead rely on asylum law’s definition of immutability: not exclusively a characteristic one cannot change, but also a chosen characteristic that one should not be forced to change because it is fundamental to identity. This Note argues that asylum law’s “fundamental immutability” standard belongs in equal protection jurisprudence because it resolves inconsistencies in traditional equal protection jurisprudence caused by a biological immutability standard and because it harmonizes recent lower court opinions discussing race- and gender-related equal protection in an era of increased multiracial, intersex, and transgender visibility.

• INTRODUCTION
• I. THE SOMETIMES-MUTABLE NATURE OF RACE AND SEX REVEALS INCONSISTENCIES IN EQUAL PROTECTION DOCTRINE
  • A. Mutable Race
  • B. Mutable Sex
• II. ASYLUM LAW’S DEFINITION OF IMMUTABILITY CURES INCONSISTENCIES IN EQUAL PROTECTION DOCTRINE
  • A. A Closer View of Asylum Law’s Fundamental Immutability
  • B. A Number of Courts Recognize that the Equal Protection Clause Protects the Individual’s Right to Choose Fundamental Characteristics of Identity
• III. SEXUAL ORIENTATION IS A FUNDAMENTAL CHARACTERISTIC OF IDENTITY
  • A. Asylum Law Holds That Sexual Orientation is a Fundamental Characteristic of Identity
  • B. The Fundamental Liberty to Engage in Same-Sex Sexual Conduct Reflects the Constitutional Understanding that Sexual Orientation is a Fundamental Characteristic of Identity
• CONCLUSION

INTRODUCTION

Gay rights advocates and opponents tend to hold distinct views on homosexuality’s origins. Advocates commonly contend that sexual orientation is not a choice,1 while at least one political opponent of gay rights has insisted that “[h]omosexuality . . . [is] about sexual freedom, and they hate to be called on [it].” Coming from the camps that they do, these hardline views of homosexuality as pre-determined compulsion or free choice might strike some as ironic: Liberation was once a watchword of the gay rights movement and freedom isn’t commonly thought of as a dirty word when used by political conservatives. Regardless of the accuracy of either claim, the portrayal of homosexuality as an inborn condition likely serves legally strategic ends. It brings gays one step closer to suspect class status under the Equal Protection Clause of the Fourteenth Amendment, potentially imperiling any law in the nation that treats gays as a class differently than non-gays. This is because a law that treats people differently based on their membership in a suspect class is subject to heightened judicial scrutiny and must be at least substantially related to an important government interest to avoid being struck down as unconstitutonal…

…A. Mutable Race

The traditional belief that race is an immutable characteristic dependent solely on birth is rooted in the idea that race is defined by lineage, physiognomy, and other physical characteristics. Accordingly, a person born to Black parents is Black, or a person with a certain eye shape, hair texture, or skin color is White. This absolutist view holds less force today, however, because a substantial number of Americans of mixed racial lineage present racially ambiguous physical characteristics. These people can choose a particular racial identity that differs depending on the particular social, professional, or legal context.

The law’s struggle to keep pace with the growing reality of racial self-identification is tied to the United States’s long history of racial subordination. Traditional absolute racial categorizations were essential to legal and social ordering in a society that divided rights by race, determining who was a person and who was property in antebellum America. Most American states prior to the Civil War implemented legal definitions of race, either statutory or judicially constructed, to codify underlying social understandings.

Still, long before contemporary trends of racial self-identification, the law acknowledged that racial identification was not shaped by lineage or physiognomy alone. In the decade leading up to the Civil War, for example, the Virginia legislature—facing increasing outside resistance to the use of slave labor and long prohibited from importing new slaves—debated a proposal to expand its enslaveable population by amending the state definition of Black from having one Black grandparent to having one Black ancestor at any time in history. Virginia’s legislative history provides but one example that race was never determined solely by birth; it was instead the combination of lineage and historically contingent, mutable social understandings which shape the meaning of that lineage, equating Black racial membership with a Black parent, a Black grandparent, or a distant Black ancestor, as the social context required.

Today, the United States government has essentially abandoned the practice of imposing racial identity on Americans, instead relying largely on voluntary self-identification to keep track of racial data. The government’s retreat has left Americans with two principal methods of racial categorization: voluntary self-identification and involuntary identification by third parties, a byproduct of social interaction resulting from an observer’s imposition of racial identity as associated with physiognomy. Voluntary racial self-identification is standard in the census, federal recordkeeping measures, and educational programs seeking to attract diverse entrants. Involuntary racial identification occurs when a third party presumptively correlates skin tone or other physical characteristics with an individual’s race.

For the majority of people, the presumption created by an onlooker’s perception will likely match an individual’s voluntary racial self-identification: Most people will likely accurately identify a person who self-identifies as White based on physical features alone. But for people of racially ambiguous physical characteristics, such as light-skinned Blacks and Latinos, voluntary racial identification is a regular phenomenon of social interaction. Extensive literature documents the accounts of light-skinned individuals who pass as White, voluntarily assuming racially coded patterns of speech and dress. The United States also has a storied legal history that records individuals’ attempts to manipulate racial identity through voluntary action, including one of the Supreme Court’s most infamous holdings: Plessy v. Ferguson.

Homer Plessy insisted in his petition to the Court “that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the White race by its Constitution and laws . . . .” Plessy’s claim was that the amount of “colored blood” he had—a singular Black grandparent—was so negligible that he was White. Today, modern Americans might assume someone with his physical characteristics—someone in whom “the mixture of colored blood was not discernable”—to be White. If Homer Plessy self-identified as Black and expressed it to others he could dispel that assumption, assuming belief of his claim. But he could just as easily keep silent and choose a White identity, or choose specific contexts in which to assert a White, Black, or mixed racial identity.

Here, it yields an absurd result to interpret the Court literally when it says that in order for a racial classification to be suspect, race must be an immutable characteristic traceable solely to birth: Because Plessy’s racial identity would be a matter of personal choice rather than dependant solely on birth, he would presumably fall outside of heightened scrutiny’s ambit. But “[r]acial discrimination . . . would not suddenly become constitutional if medical science developed an easy, cheap, and painless method of changing one’s skin pigment,” as one court has recognized; nor should it be constitutional as applied to the growing number of Americans who choose to identify as a particular race at their own discretion.

Just as indefensible is the suggestion that these Americans could avoid racial discrimination by keeping silent about their minority racial identity and passing as White. This would grant government the power to impose an individual’s racial identity by assigning a penalty to voluntary racial minority self-identification…

Read the entire article here.

Leo Branton Jr., Activists’ Lawyer, Dies at 91

The New York Times
2013-04-27

William Yardley

Associated Press Leo Branton Jr. with Angela Davis during her 1972 trial on murder, kidnapping and conspiracy charges. She was acquitted.

Leo Branton Jr., a California lawyer whose moving closing argument in a racially and politically charged murder trial in 1972 helped persuade an all-white jury to acquit a black communist, the activist and academic Angela Davis, died on April 19 in Los Angeles. He was 91.

His death was confirmed by Howard Moore Jr., another lawyer who represented Ms. Davis.

Mr. Branton, a black veteran of World War II who served in a segregated Army unit, represented prominent black performers, including Nat King Cole and Dorothy Dandridge, argued cases on behalf of the Black Panthers and the Communist Party, and filed numerous cases alleging police abuse. But the case with which he was most closely associated was that of Ms. Davis…

Read the entire obituary here.

Black, White, and Many Shades of Gray

Harvard Magazine
May-June 2013

Craig Lambert

Randall Kennedy probes the “variousness” of charged racial issues.

In The Bridge: The Life and Rise of Barack Obama, David Remnick relates a story from Obama’s first year at Harvard Law School, when he registered for “Race, Racism, and American Law,” a course taught by Randall Kennedy, now Klein professor of law. “Kennedy had caused some controversy, writing critically in The New Republic and elsewhere about some aspects of affirmative action,” Remnick relates. “At the first class, Obama [J.D. ’91] and [his friend Cassandra] Butts, [J.D. ’91] watched as a predictable debate unfolded between black students who objected to Kennedy’s critique and students on the right, almost all white, who embraced it. Obama feared a semester-long shout-fest. He dropped the course.” Thus Kennedy never taught the future president, although he did instruct Michelle LaVaughn Robinson [subsequently, Obama], J.D. ’88, who also did research for him.

A “semester-long shout-fest” may be hyperbolic, but Kennedy admits, “Yes, those classes were very contentious. I structured them that way.” It wasn’t hard: Kennedy, an African American himself, consistently introduced the kinds of racial issues—such as “reverse discrimination” against whites—that explode like hand grenades in an interracial classroom. “Should there be a right to a multiracial jury?” he asks, smiling. “Boom!”

Kennedy is “the kind of professor who thrives on iconoclasm, defying the embedded expectations of his students,” according to one of them, Brad Berenson, J.D. ’91, a member of the White House Counsel’s Office under George W. Bush and now a vice president of litigation and legal policy at General Electric. “Whether this comes from Randy’s convictions, or from playing devil’s advocate, it makes him hard to pin down or characterize. He’s a great example of the inquiring mind of an academic, someone who is willing to question dogmas and encourage his students to do the same.”…

… Two major themes run through Kennedy’s work. The title of his 2011 book on racial politics and the Obama presidency, The Persistence of the Color Line, summarizes the first. “The race question has been a deep issue in American life since the beginning and it continues to be a deep, volatile issue,” he says. “I’ve been most concerned about showing racial conflict as it affects the legal system, but you can also analyze how it manifests itself in literature, movies, patterns of dating and marriage, or housing.”

The second theme is that much commentary on race “can be boiled down to two schools of thought: optimistic and pessimistic. The pessimistic school believes that ‘We shall not overcome’—racial animus and prejudice are so deeply embedded that they will never go away. Thomas Jefferson, Abraham Lincoln, and Malcolm X fell into the pessimistic camp. The optimists, in contrast, feel that, notwithstanding the depth and horror of oppression, there are resources in American society that, deployed intelligently, will allow us to overcome. I put myself in that camp, along with Frederick Douglass, the great [nineteenth-century abolitionist] Wendell Phillips [A.B. 1831, LL.B. 1833], and Martin Luther King. I hope I don’t turn away from the horror, but also hope I try to be attentive to the real fact of change in American life.” …

Read the entire article here.

We Are Not Going To Go Away

“Colonial Williamsburg” Journal
Spring 2013

Andrew G. Gardner

Virginia’s Pamunkey Indians Greeted the Jamestown Settlers, but They Are Still Waiting for National Recognition

Beyond Virginia’s borders, the Pamunkey Indians are remembered, when they are remembered at all, mostly for a princess named Pocahontas. England’s Queen Elizabeth II probably knows more about the tribe than the average American: in 2007 she met a Pamunkey delegation during celebrations of Jamestown’s 400th anniversary.

When the 1607 colonists landed, the Pamunkey— 1,000 warriors strong—were the most powerful of the thirty-two tribes in the Powhatan paramount chiefdom, the loose association of Native Americans that dominated the Chesapeake region. Hunter gatherers, they looked to the woodlands for meat, clothing, and the stuff of shelter, fished the rivers, and grew such crops as maize, beans, and squash. Fifteen to twenty thousand people, the Powhatan commanded more than six thousand square miles, a territory that ranged leagues inland from the bay, all its tribes tributary to the Pamunkey chief Wahunsonacock, Pocahontas’s father. Now the Pamunkey domain amounts to a 1,200-acre King William County reservation twenty-five miles east of Richmond. There, thirty-four families—fewer than eighty people—make livings from renting out land for farming and duck hunting. About 120 more Pamunkey are scattered across the country.

Nevertheless, they are “a people who refused to vanish,” as historian Helen Rountree says. One of eight tribes Virginia recognizes, only they and their neighbors the Mattaponi established reservations, each secured by seventeenth-century treaties with Charles I and Charles II. In a 1677 compact, the Pamunkey agreed to pay to the governor a rent of “twentie beaver skinns” each autumn, a fee later amended to “Fin, Fur, or Feather.” They say that in 350 years they have not missed a payment of fish, wild turkey, or venison, these days ceremoniously delivered to the steps of the governor’s mansion in Richmond…

…The next century would bring them a new challenge— one that would have profound repercussions— repercussions felt today.

Walter Ashby Plecker was a medical doctor by training. Born ten days before the Civil War began—his father fought for the Confederacy—Plecker became Virginia’s first state public health officer, eventually administering its new Vital Statistics Office for more than thirty years. Plecker, a white supremacist, was an enthusiast for the popular late nineteenth-century pseudoscience eugenics. Eugenicists believed in the racial inferiority of all non-Caucasians, and promoted strict segregation to forestall the procreation of whites with African Americans and others.

In 1924, Virginia adopted the Racial Integrity Act, a statute that decreed but two possible racial classifications: white or “colored.” Plecker, who lobbied for the measure, wrote in 1925 of “the considerable number of degenerate white women giving rise to mulatto children.” Keeper of the state’s births, deaths, and marriages records, he used his office to advance his beliefs and the state’s stringent racial codes, enactments that outlawed black and white marriages. Plecker embraced an extralegal “one drop rule,” which held that anyone with so much as a drop of “black blood” in his or her veins should be classified black—which he did.

Virginia’s Indians were not the primary targets of the racial restrictions—they were classified with whites—but they, Pamunkey included, became the law’s and Plecker’s victims anyway. In Plecker’s mind there was no longer such thing as a “pureblood” Virginia Indian. To him, all were descended of unions with free blacks. Suspecting that blacks were trying to pass as Indians to gain white status, particularly in the Chickahominy tribe, he ordered the state’s records of Indians revised to classify them all as “colored.” The legislature, however, adopted a “Pocahontas exception.” Realizing that prominent Virginians claiming Indian descent, including from the Pamunkey princess, would be now be classified as “colored,” the lawmakers excused individuals of one-sixteenth or less Native American ancestry.

“In Plecker’s mind we simply just did not exist,” Chief Kevin Brown says. “It was paper genocide pure and simple. Administratively, he was wiping us off the map.”

In 1969 the Supreme Court of the United States threw out the Racial Integrity Act. But for the Pamunkey and the other Virginia tribes, Plecker’s obsession still has a sting in its tail…

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