Tuesday, September 26, 2017

Osagie K. Obasogie

Excerpted from: Osagie K. Obasogie, Can the Blind Lead the Blind? Rethinking Equal Protection Jurisprudence Through an Empirical Examination of Blind People's Understanding of Race, 15 University of Pennsylvania Journal of Constitutional Law 705 (January, 2013) (131 Footnotes)


Leonard Rhinelander was the socialite son of a wealthy New York family. In the fall of 1921, he met Alice Jones through her sister Grace and the couple quickly became quite fond of each other. On at least two occasions during their first few months together, the couple--Alice was then twenty-two, four years Leonard's senior--secluded themselves for days in New York City hotels where they were intimate. Over the next few years, Leonard took several extended trips at his father's request that separated the couple, but they remained in touch through frequent letters proclaiming their love for one another. Leonard returned to New York in May of 1924, and the couple secretly married that October, as Leonard's family was not fond of the former Ms. Jones. The couple lived in secret with Alice's family for about a month, until a story appeared in the Standard Star, a local paper in New Rochelle, titled: “Rhinelanders' Son Marries the Daughter of a Colored Man.” Thus, a wealthy White man from 1920s New York high society was exposed as having committed one of the biggest social faux pas one could imagine at the time: marrying a Black woman.

Alice Jones with her mother and father.

Alice was the biracial daughter of an English mother and a father described as “a bent, dark complexioned man who is bald, except for a fringe of curly white hair.” A few days after the story broke, Leonard was shown a copy of Alice's birth certificate that documented her race as Black. Two weeks later, Leonard filed suit for an annulment. The reason? Fraud: Leonard alleged that Alice misrepresented that she was not colored to trick him into marrying her. The stage was now set for what some might characterize as, up until then, the race trial of the century: a legal determination of whether Alice committed fraud by “passing” as White or if Leonard knew Alice's race before their marriage. Put differently, the question became what did Leonard know and, more importantly, what should he have known?

The strategy developed by Isaac Mills, Leonard's attorney, portrayed him as mentally challenged and Alice's physical features as racially ambiguous. The defense from Alice's counsel, Lee Parsons Davis, was quite simple: there was no fraud as Alice's blackness was visually obvious. Davis mockingly said to the jury:

I think the issue that Judge Mills should have presented to you was not mental unsoundness but blindness. Blindness . . . [Y] ou are here to determine whether Alice Rhinelander before her marriage told this man Rhinelander that she was white and had no colored blood. You are here to determine next whether or not that fooled him. Whether or not he could not see with his own eyes that he was marrying into a colored family.

After raising serious doubts about Leonard's cognitive disability, much of Davis' defense rested on showing that Alice's race could be known by simply looking at her body. This became a central theme in Davis' argument; he repeatedly asked Alice and her sisters to stand up and show the jury their hands and arms. But to hammer home this point, Davis wanted the jury to see all of Alice's body--not just hands and arms that might darken over time with routine exposure to sunlight. Given the couple's pre-marital relations, Davis argued that Leonard had seen all of Alice before being married, and that it was crucial for the jury to see the same intimate details of Alice's body that Leonard did before marrying her. Against objections from Leonard's attorneys, the judge allowed it. And what transpired was one of the biggest race spectacles of the twentieth century. From the Court record:

The Court, Mr. Mills, Mr. Davis, Mr. Swinburne, the jury, the plaintiff, the defendant, her mother, Mrs. George Jones, and the stenographer left the courtroom and entered the jury room. The defendant and Mrs. Jones then withdrew to the lavatory adjoining the jury room and, after a short time, again entered the jury room. The defendant, who was weeping, had on her underwear and a long coat. At Mr. Davis' direction she let down her coat, so that the upper portion of her body, as far down as the breast, was exposed. She then, again at Mr.Davis' direction, covered the upper part of her body and showed to the jury her bare legs, up as far as her knees. The Court, counsel, the jury and the plaintiff then re-entered the court room.

This dramatic revealing of Alice's body to the jury composed of all White married men was stunning, especially for 1920s sensibilities. Once back in the courtroom, Davis asked Leonard, “Your wife's body is the same shade as it was when you saw her in the Marie Antoinette [hotel] with all of her clothing removed?”Leonard responded affirmatively, to which Davis said “That is all.” Shortly after this display of Alice's body to the jury and Leonard's acknowledgement, the jury returned with a verdict in favor of Alice, finding that there was no fraud. To put a finer point on this: an all White male jury in 1925 ruled against a wealthy White male socialite and in favor of a working class Black woman because her race was found to be so visually obvious that there could have been no deception. The jury found that Alice's body, and race in general, visually spoke for itself. Alice did not have to take the stand at any point during the trial. Her body, and the jury's ability to observe it, was all of the evidence that was needed.

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This Article argues that the idea that race visually speaks for itself--a notion that I call “race” ipsa loquitur --is not something that is marginally relevant to law, or an idea that occasionally arises in cases such as Rhinelander v. Rhinelander. Rather, this notion that race is visually obvious and that its salience--in terms of its conspicuousness and striking nature--stems from self-evident visual distinctions fundamentally orients law's most robust mechanism for governing race and racial discrimination: equal protection. This jurisprudence has come to embrace a “race” ipsa loquitur sensibility that shapes the Court's approach to race and discrimination in at least three regards: (1) its scrutiny inquiry to determine the standard of review (strict scrutiny, intermediate scrutiny, or rational basis) to apply to certain groups' claims of discrimination; (2) using colorblindness as a framework to conceptualize equal protection's normative boundaries; and (3) the intent doctrine, which requires a demonstration of discriminatory purpose or malice to sustain equal protection claims. In each instance, an implied theory of race that is common among lay conceptualizations also orients the Court's approach: that the salience of race turns on and/or can be reduced to its visual obviousness, and that this salience is self-evident in a manner that is exogenous to any broader social or legal practice. It simply is, and is known by merely looking. By framing the salience of race as an ocular phenomenon and disaggregating it from any social context or structural notion of racial hierarchy, modern equal protection jurisprudence has produced a sociologically thin understanding of race that reduces it to a series of discrete, visually obvious physical traits whose striking nature and conspicuousness are thought to emanate from mere observation.

In this Article, I make a critical departure against the grain of this trend within equal protection jurisprudence by arguing that this influential--indeed, largely unquestioned--theory of race fundamentally misconstrues how race becomes salient, which deeply warps important aspects of this jurisprudence. I argue that the visual salience of race is not obvious or a self-evident observation that occurs anterior to any other social process. Rather, I contend that the very ability to see race is a social phenomenon: social practices produce the salience that allows us to discern racial differences in particular ways. This is the constitutive theory of race identified by this Article. The visual salience of race--why it is striking, how people are able to apprehend group difference--has little to do with individuals' visual capacities or certain traits' inherently striking nature. Rather, the salience and ability to see these differences is produced by social interactions.

My approach is theoretically informed by art history literature that examines how our visual experiences are not neutral engagements with the world, but are rather produced by social relations and forces. 1 These scholars argue that what we see, how we see, and the very ability to see certain things-- particularly race--are structured by social contexts that shape the way we pay attention to some things and not others. Art historian Martin Berger notes:

Despite the human propensity to privilege sight, and the long-standing Western tendency to root racial designations in observable traits, images do not persuade us to internalize racial values embedded within them, so much as they confirm meanings for which the discourses and structures of our society have predisposed us. Instead of selling us on racial systems we do not already own, the visual field powerfully confirms previously internalized beliefs. 1

I draw upon this literature to argue that the visual salience of race--why it is noticeable, why it stands out--has little to do with individuals' visual capacities or certain traits' inherently striking nature. Rather, this salience is produced by social interactions. I empirically demonstrate the socially productive rather than self-evident nature of this visual salience through an innovative research question that asks: how do blind people understand race?

It is largely assumed that individuals without vision have a diminished understanding of race. This assumption is inextricably tied to the “race” ipsa loquitur trope embedded in law and society; the inability to see the self-evident nature of race is thought to preclude any robust appreciation of its salience. But as a way to critique the dominant assumptions about race and vision in lay perspectives and doctrinal conversations, I engage in qualitative research with blind respondents concerning their understanding of and experiences with race. The findings from this research are both important and counterintuitive: not only do blind people have an understanding of race that is no less meaningful or substantive than sighted individuals', but they also understand it visually, i.e., in terms of facial features, skin complexion, and other visual attributes typically associated with race.

The doctrinal implications of this research are significant. These findings empirically destabilize the “race” ipsa loquitur theory of race at the heart of equal protection jurisprudence, which provides intellectual and doctrinal space to rethink the parameters of inclusion and exclusion for higher forms of scrutiny, colorblindness as a normative framework for the scope of equal protection, and modern fixations on intent as the touchstone for demonstrating the discriminatory nature of facially neutral laws. It is important to clearly articulate that the claim being made is not one of cause and effect; I do not assert that the scrutiny inquiry, colorblindness, or the intent requirement exist the way that they do primarily because of what I have identified as “race” ipsa loquitur. Each of these jurisprudential developments have a distinct genealogy better explained by various social, legal, and historical developments. Rather, I identify a conceptual trend within equal protection doctrine linked to lay understandings of race that highlights a common emphasis on visibility across these three areas that may warp important aspects of the jurisprudence. In each of these three realms, the assumption that the social and interpersonal salience of race turns upon self-evident visual differences is a central (yet at times hidden) organizing principle that gives coherence to the jurisprudence, both in their individual parts and as a whole. Therefore, the critical role of this Article's empirical contribution is that qualitative data on blind people's visual understanding of race disrupts this centrality of visibility, which may allow for a normative reconceptualization of equal protection in a manner that takes seriously the social practices that produce the salience of race to encourage a more equitable and inclusive jurisprudence. Put differently, this may be one instance where the blind can lead the blind; qualitative data on the life experiences of those without the ability to see might give insight to a legal system that privileges vision in a manner that blinds it to the social practices that produce the visual salience of race.

It is also important to mark this Article's conceptual boundaries. The purpose here is not to revisit the idea that race has multiple influences such as language, culture, and ancestry. Nor is its purpose to rearticulate the now common claim that race is a social construction, or that the meanings that we attach to various human bodies do not stem from natural or inherent group differences, but rather grow out of broader social and political dynamics. Race scholarship in law, the social sciences, and the humanities have already eloquently and persuasively made these points. 1 Instead, this Article tries to critique a core aspect of race ideology that transcends almost all race scholarship and is embedded in equal protection jurisprudence: that “seeing race”--related to, yet apart from, any social construction that attaches meanings to bodies--is an unmediated visual experience whose salience is simply self-evident on its own terms. This paves the way for a constitutive understanding of race that, related to constructionist projects, draws attention to how social practices produce our ability to see society in particular ways. The qualitative portion of this Article provides empirical evidence that gives life to this critique. Although the salience of race is experienced as something that is visually obvious within the sighted community, blind respondents' experiences highlight the extent to which this salience is constituted by various social practices. As such, this Article challenges the dominant lay and legal viewpoints that vision is a prerequisite for having a complete understanding of race. These findings empirically destabilize equal protection's “race” ipsa loquitur trope and raise important questions about its current role in the administration of this jurisprudence.

This Article is divided into five parts. Part II provides an overview of the “race” ipsa loquitur trope in equal protection doctrine and scholarship, paying particular attention to its manifestations in the scrutiny inquiry, colorblindness, and the intent doctrine. Part III then describes the methodology and findings from the qualitative data collected through over 100 interviews with blind individuals about their understandings of and experiences with race. This Part provides robust qualitative data supporting my key argument: that the “race” ipsa loquitur trope embedded in equal protection law mischaracterizes the visual salience of race as an ocular rather than social phenomenon. The visually striking nature of race is produced by social practices rather than self-evidently observed. Part IV discusses these empirical findings' significance for three areas of equal protection jurisprudence--the scrutiny inquiry, colorblindness, and the intent doctrine-- to offer preliminary thoughts on how equal protection might be reimagined along lines that are sensitive to the socially productive rather than self-evident conceptions of racial salience. I conclude in Part V with a brief discussion of why it is important for equal protection jurisprudence to work from theories of race that are empirically robust. I then suggest, as a normative matter, that equal protection rid itself of “race” ipsa loquitur and re-orient its theory of race around the social practices giving rise to the visibility of race. This can re-introduce the important roles of social context and racial hierarchy in equal protection deliberations, which can lead to a more equitable and just jurisprudence.

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 Associate Professor of Law, University of California, Hastings College of the Law with a joint appointment at University of California, San Francisco (“UCSF”) Department of Social and Behavioral Sciences. B.A. Yale University; J.D. Columbia Law School; Ph.D. University of California, Berkeley.

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