Reverse Passing

Posted in Articles, Law, Media Archive, Passing, United States on 2018-04-09 01:39Z by Steven

Reverse Passing

UCLA Law Review
Volume 64, Issue 2 (2017)
pages 282-354

Khaled A. Beydoun, Associate Professor of Law
University of Detroit, Mercy School of Law

Erika K. Wilson, C. Ivey II Term Professor of Law, Associate Professor of Law
University of North Carolina, Chapel Hill

Throughout American history untold numbers of people have concealed their true racial identities and assumed a white racial identity in order to reap the economic, political, and social benefits associated with whiteness. This phenomenon is known as passing. While legal scholars have thoroughly investigated passing in its conventional form, the corollary process of reverse passing—the process in which whites conceal their true racial identity and present themselves as nonwhite—has not been closely investigated within legal scholarship.

Rachel Dolezal provides a timely study of the process of reverse passing. Dolezal—an Africana Studies Instructor and head of the Spokane, Washington NAACP—was outed as being white after years of phenotypically and culturally presenting herself as a Black woman. Dolezal’s “outing” generated much popular debate and scholarly discourse, most of which tended to frame her actions as a one-off occurrence by a deviant actor. This Article takes a contrary position.

Though reverse passing is often framed as deviant or irrational, this Article demonstrates how the U.S. Supreme Court’s affirmative action jurisprudence creates tangible and intangible incentives for white actors to identify as nonwhite. It suggests that the Court’s entrenchment of the diversity rationale as the primary compelling state interest that can be used to justify race-conscious affirmative action programs generated situational value in nonwhiteness. That situational value in nonwhiteness now creates incentives that previously did not exist for whites to reverse-pass in order to obtain access to opportunities in education, employment and beyond.

This Article is the first to coin, analyze, and propose a theory of reverse passing. It also deepens the rich and rising scholarship examining performance theory and the pliability of racial identity. Finally, given the reconsideration of the diversity rationale by the Supreme Court in Fisher v. University of Texas at Austin, this Article also provides an opportunity to critically examine the merits and shortcomings of the diversity rationale.

Read the entire article here.

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Red: Racism and the American Indian

Posted in Articles, Law, Media Archive, Native Americans/First Nation, United States on 2013-11-12 22:50Z by Steven

Red: Racism and the American Indian

UCLA Law Review
Volume 56, Issue 3 (February 2009)
pages 591-656

Bethany R. Berger, Thomas F. Gallivan, Jr. Professor of Real Property Law
University of Connecticut

How does racism work in American Indian law and policy? Scholarship on the subject too often has assumed that racism works for Indians in the same way that it does for African Americans, and has therefore either emphasized the presence of hallmarks of black-white racism, such as uses of blood quantum, as evidence of racism, or has emphasized the lack of such hallmarks, such as prohibitions on interracial marriage, to argue that racism is not a significant factor. This Article surveys the different eras of Indian-white interaction to argue that racism has been important in those interactions, but has worked in a distinctive way. North Americans were not primarily concerned with using Indian people as a source of labor, and therefore did not have to theorize Indians as inferior individuals to control that labor. Rather, the primary concern was to obtain tribal resources and use tribes as a flattering foil for American society and culture. As a result, it was necessary to theorize tribal societies as fatally and racially inferior groups, while emphasizing the ability of Indian individuals to leave their societies and join non-Indian ones. This theory addresses the odd paradox that the most unquestionably racist eras in Indian-white interaction emphasized and encouraged assimilation of Indian individuals. It also contributes to the ongoing effort to understand the varying manifestations of racism in a multiracial America. Most important, it provides a new perspective on efforts to curtail tribal sovereignty in the name of racial equality, revealing their connection to historic efforts to maintain the inferiority of Indian tribes by treating them as racial groups rather than political entities with governmental rights.

Read the entire article here.

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A separate category for mixed race is necessary to redress the unique harms targeting mixed-race persons.

Posted in Excerpts/Quotes, Law on 2013-03-20 03:49Z by Steven

A separate category for mixed race is necessary to redress the unique harms targeting mixed-race persons. In order to be most effective any scheme proposing such a category must address many pitfalls and complexities in Title VII doctrine. Any categorization must be flexible, just as race can be fluid and contextual. The general argument against a separate category for mixed race ignores the fact that courts are in the midst of selectively choosing where to embrace it and that society already constructs such a category for some individuals. Instead, we must examine the treatment of individuals based on belonging to this category, not the harm of merely being categorized. Many participants of the contemporary discourse argue for why the category is beneficial as a general matter, and these arguments demonstrate possible benefits to adopting such a category in Title VII.

Scot Rives, “Multiracial Work: Handing Over the Discretionary Judicial Tool of Multiracialism,” UCLA Law Review, Volume 58, Number 5 (2011): 1334-1335.

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Multiracial Work: Handing Over the Discretionary Judicial Tool of Multiracialism

Posted in Articles, Census/Demographics, Law, Media Archive, United States on 2011-07-20 21:15Z by Steven

Multiracial Work: Handing Over the Discretionary Judicial Tool of Multiracialism

UCLA Law Review
University of California, Los Angeles School of Law
Volume 58, Number 5 (June 2011)
pages 1303-1341

Scot Rives, Article Editor

The rise of the mixed-race population and its implications for our society has received attention in current discourse and media coverage. Some see it as a portent of the postracial world to come; others see it as just another challenge to which anti-discrimination law must adjust. Despite this new attention, racial mixing is not a new phenomenon by any measure. What have changed are the methods of categorization. By realizing this fact, we can repudiate the claim that increased declarations of mixed-race identity signal a major shift and instead focus on readjusting outdated legal schemes that were predicated on old methods of monoracial categorization. This Comment addresses the conflict between new categorization methods for mixed race in data gathering as well as the non-cognizable mixed-race- based claims in current Title VII doctrine. Mixed-race individuals face unique harms themselves, and Title VII’s refusal to acknowledge mixed race results in dismissal of claims. After addressing two similar proposals that do not go far enough to remedy harms, this Comment proposes taking the discretion of framing race from judges and placing it in the hands of plaintiffs. Under this Comment’s proposal, plaintiffs can frame race as they experience the discriminatory use of race—including the mixed- race classification—against them, while allowing employers to rebut the plaintiffs’ claimed race by showing that they perceived the plaintiffs’ race differently.

Table of Contents

  • INTRODUCTION
  • I. CATEGORIZATION PAST AND PRESENT
    • A. Historical Perspective
    • B. Reemergence and Boom
      • 1. Loving, the Multiracial Category Movement, and the 2000 Census
      • 2. Legal Acceptance
      • 3. Legal Rejection in Title VII
        • a. Title VII Doctrinal Background
        • b. Rejecting Mixed-Race-Based Claims Under Title VII
  • II. MIXED-RACE HARMS
    • A. Unique Animus
    • B. Intersectional Obscurement
    • C. Situational Race and Performing White
  • III. PERCEPTION-BASED SOLUTIONS
    • A. Employer-Perception-Based Disparate Treatment Claims
    • B. Unfulfilled Aims
  • IV. A FLEXIBLE BUT SEPARATE CATEGORIZATION IN TITLE VII ACTIONS
    • A. Disparate Impact/Intersection Resolution
    • B. Objections
      • 1. General Concerns About Separate Categorization
      • 2. Excessive Power Grant to Multiracials
      • 3. Essentialization
  • CONCLUSION

INTRODUCTION

Recently, I was confronted with an example of the ongoing cultural debate over the proper categorization of multiracial persons. While filling out an equal employment opportunity form for job interviews, I found myself at a loss with what to mark. The form employed a two-tier system. The first tier required a Yes-or-No answer to whether the respondent belonged in the ethnic category of Hispanic or Latino. If the respondent marked No, he or she could move to the second tier and mark: White; Black or African American; Asian, Native Hawaiian or Other Pacific Islander; Native American; or Two or More. Each racial category in the second tier included the parenthetical admonition, “Not Hispanic or Latino.” As someone who identifies as a mixed-race person and has seen many of these forms, I was accustomed to formulations that allowed either selection of only a single monoracial category, selection of all monoracial categories that apply, or, more recently, a separate choice for Two or More. Here was something that I had never seen. As one of partial Latino background, I was locked out from a choice to pick multiple races even though I also identify as being of Asian and white (non-Latino) descent.

In this example, the limited racial structure only affected my personal feelings and may have had a minor distorting impact on statistics that could be used to show or refute concerns about equal employment opportunity. But similarly fluctuating rules and discourse surrounding racial categorization also play out in settings with more tangible and immediate repercussions involving equally strange and varied rules. As this Comment shows, Title VII jurisprudence has operated in confusion regarding the definition and purpose of multiraciality, how multiraciality relates to and is differentiated from a biracial paradigm, and what various conceptions of identity mean for Title VII’s operation moving forward.

The majority of multiracial discourse in the United States has arisen in response to a perceived increase in interracial reproduction following the U.S. Supreme Court’s invalidation of anti-miscegenation laws in Loving v. Virginia as well as the increasing demand for a multiracial or mixed-race category, exemplified by the debate surrounding the 2000 Census. This discourse has generally been limited to addressing the benefits or detriments of creating a separate category in the census and other frameworks. However, while battling over the creation of a multiracial category, the debaters have generally overlooked the ramifications of such a category in areas of law where it has potential to further racial justice or hinder it.

Contrary to the assertions made in recent media coverage, racial mixing is not a new phenomenon, nor is the explicit categorization of mixed race as something separate. However, the periods of explicit categorization occurred briefly during times of de jure racial stigmatization; mixed-race categories were later absorbed into monoracial categories through the rise of the hypodescent rule, prompting elimination of mixed-race categorization. Over the past twenty years mixed-race identity has reemerged in general discourse and on the census in part because of the Multiracial Category Movement (MCM). Mixed-race identity has also received legal acceptance in some areas, even as Title VII jurisprudence has rejected it.

Despite the historical existence of racial mixing, most laws dealing with race are structured in a monoracial scheme. However, the ability to mark more than one category on the 2000 and 2010 Censuses and the subsequent effect on other federal programs via Directive 15, which seeks to unify categorization across the federal government, make it apparent that the monoracial conception of race is no longer consistent in law. Courts are increasingly confronted  with the conundrum of applying laws predicated on a monoracial conception to a growing mixed-race population’s claims to multiracial identity, which are emboldened by federal, state, and private data-gathering techniques that explicitly use a multiracial category or allow selection of multiple categories. Courts attempting to apply legal rules created for a monoracial scheme to mixed-race individuals have been inconsistent and often appear to use the mixed-race identity of an individual or a population as a legal tool to adjust or bolster arguments. One area in which mixed-race identity has been rejected is Title VII employment discrimination. This rejection involves not only refusal to acknowledge mixed race as a separate protected class, but also hindrance of mixed-race individuals claiming disparate treatment on the basis of a monoracial category. Instead, they are conscripted into other monoracial protected classes, defeating their own monoracial disparate treatment claims as well as claims by others who are replaced by someone of mixed race.

Title VII rejection is problematic because mixed-race individuals face unique harms, and courts seem unwilling to apply consistency and resolve the tension between this identity and current doctrine. The harms at issue are not only harms of categorization that much of the literature focuses on but harms attached to the category. Harms of categorization are those that arise from simply being classified by a system of rules, separate from any benefit or injury based on that categorization, such as being perceived as belonging to or forced to identify with an ill-fitting category. Harms attached to the category are the negative actions such as refusal to hire someone of that category or violence against those in the category. Individuals who are socially racialized as mixed race or embrace that identity face discrimination from a unique animus independent from the harms based on monoracial identities. Under current law, these unique harms in the employment context cannot be remedied even when attempting to bootstrap a claim onto a color claim or a traditional race claim. Additionally, there are instances in which a mixed-race identity functions to obscure discrimination similar to certain aspects of intersectionality. Despite membership in multiple racial categories, a mixed-race complainant must plead a specific protected class to allege discrimination on the basis of race. Courts will often restructure the claims of those seeking a multiracial class into traditional monoracial terms. Further, some courts have held that a mixed-race individual can be replaced by a member of any racial group to which the mixed-race person owes some of his or her heritage. A mixed-race individual can even be used as a foil to another individual’s traditional monoracial claim because they can be conscripted into the same protected class as that of the traditional claimant—if they share any racial heritage despite possible vast disparities in phenotypical indications of race, self-identification, and social perception. This can be especially problematic where colorism claims’ cognizability is limited.

Even when framing a complaint under a monoracial category, mixed-race individuals face problems of standing. First, they are especially susceptible to being perceived as belonging to a racial group completely unrelated to their personal identification or ancestry, or as identifying with a particular racial group because of the assumed mutability of their identity. Thus, when courts require proof of membership in a class, mixed-race people are often barred from bringing claims when they are discriminated against for belonging to a race with which they do not identify. Second, those of mixed backgrounds are more susceptible to mutability attacks. For example, a defendant in an employment discrimination suit may point to a mutable characteristic as the reason for the plaintiff’s dismissal when that characteristic may be what triggered an individual’s racialization in the first place. This defense works because the majority of courts still accept race as an immutable characteristic even as mixed-race persons challenge that conception.

Thus far, multiracial discourse has focused on the concept of separate categorization in data gathering, while ignoring ongoing experiences, problems, and harms created by social perception as mixed race. Two scholars, however, have examined these harms and have proposed to combat them through extensions of current law. While these proposals are helpful, they focus narrowly on disparate treatment claims using employer intent and perception. Focusing on employer intent and perception may remove the barrier of establishing membership in a specific class to which a mixed-race individual may or may not belong, but it also reinforces the perpetrator model of discrimination, eschews disparate impact claims, maintains a significant burden on a claimant to establish a prima facie case by showing employer perception, and does not fully solve intersectional harms.

While these proposals allude to use of a separate mixed-race category if one is perceived as such, this Comment argues explicitly that a mixed-race category is required in order to remedy ongoing discrimination. At the same time, in order to effectively address all discriminatory harms, mixed-race persons should not be locked into such a category. In this way, this Comment’s proposal echoes the perception-based proposals, but instead of focusing on employer perception, it allows a plaintiff to frame race as he or she desires for the initial complaint. A showing of an inconsistent perception can then be used by a defending party to refute that framing. Allowing plaintiffs to frame perception will make disparate impact claims accessible and assuage concerns over creating a separate category and further fractioning minority groups. Additionally, this proposal places the burden of establishing employer perception on the party best able to access the necessary evidence, instead of on a complainant who in most cases does not reach the discovery phase.

Several objections are likely to arise from this approach, many of which have been articulated in the debate over the creation of an independent mixed-race category for data gathering. These include concerns about reification of biological race, creation of a new in-between class to further subordinate groups on the bottom, fractioning of minority groups that can lead to losses of political power, and concerns that such a category does not reflect accurate perceptions or experiences. Beyond those articulated about the category generally, there is also a risk of granting greater protection to mixed-race individuals when other subordinated classes may be more or at least equally in need of it. Further, given the inherently diverse nature of mixed-race individuals, the proposal stands to be at greater risk of essentialization objections. However, keeping exclusive control of the categorization out of the hands of any one party and focusing on unique animus towards mixed-race individuals for any claims based on the mixed-race class can eliminate or mitigate many of these concerns.

Part I of this Comment begins by examining the historical existence of racial mixing and the myth of racial purity in an effort to disarm claims that racial mixing signals a coming racial utopia. It then looks at the meandering progression of separate mixed-race categorization from its initial use, to its absorption into monoracial categories, and its current limited reemergence in legal doctrine. From this point, Part II examines the specific harms that mixed-race individuals face, focusing on those at play in employment discrimination. Part III examines two previously proposed interventions for these harms and finds them to be an incomplete remedy. Finally, Part IV proposes a flexible but separate categorization as an alternative that best addresses the failure of current anti-discrimination jurisprudence to remedy the harms faced by mixed-race people…

Read the entire comment here.

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