Friday, July 28, 2017

 Luis Angel Toro

excerpted from:  "A People Distinct from Others": Race and Identity in Federal Indian Law and the Hispanic Classification in OMB Directive No. 15,  26 Tex. Tech L. Rev. 1219 (1995).

What is race? Who decides where a person fits in the racial, ethnic, or cultural landscape of America, and upon what criteria do they base their decision? Too often these fundamental questions about race and identity are left unaddressed by those attempting to speak about the relationships among cultural groups in modern America. While society commonly assumes that a consensus exists on the relationship of race to identity in the United States, there are competing views on this issue. Under the traditional view, race is a biological trait, susceptible of classification into four general types, and (in our more enlightened era) known to have no significant relation to culture. Emerging views of "race," however, recognize the untenability of biological or anthropological definitions of the term, but also assert that race reflects a social construct that affects people's lives.

. . . .

Despite the apparent demise of scientific racial theory and official rejection of white supremacist ideology as the organizing principle for the United States, the idea that race is a fixed and inherited identity remains widely accepted and reflected in the law. Indeed, the rejection of supremacist and biological determinist theories of race have led many, including some members of the United States Supreme Court, to conclude that race is merely a matter of skin color with no connection to any other aspect of society; therefore, government should almost never take note of it. Take, for example, Justice O'Connor's majority opinion in a case involving race- conscious congressional redistricting.  In Shaw, white plaintiffs challenged the creation of two "majority-minority" districts designed to allow Black voters the opportunity to participate in elections in those districts in which they formed the majority.

Shaw. . . importance lies in its illustration of the idea that race is fixed and inherited, simply a matter of skin color with no recognizable relation to cultural identity. Justice O'Connor's majority opinion equates the practice of identifying a Black community and attempting to facilitate its members' exercise of the right to vote through redistricting to "political apartheid" because it lumps together persons "who may have little in common with one another but the color of their skin." In her view, the practice reflects prejudice and can only reinforce "impermissible racial stereotypes" such as the "perception that members of the same racial group ... think alike, share the same political interests, and will prefer the same candidates at the polls." For O'Connor, "[r]acial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin."

These statements reveal a number of assumptions about race, culture, and community. First, race is constructed as simply a physical, inherited trait disconnected from matters such as political interests. Second, the only reason to lump together persons of the same race into a legislative district is because one assumes that the persons in the district "think alike" and"will prefer the same candidates at the polls." The proper government role can be only as a model of nonracial thought; government should be permitted to consider race only when identifying past racist practices with precision and only to the extent necessary to address the identified injuries. To do otherwise would necessarily be to reinforce the very prejudices that lie at the root of the problem.

The beginnings of an alternative view of race and community can be found in Justice Souter's dissenting opinion. Souter recognized that "[a]s long as members of racial groups have the commonality of interest implicit in our ability to talk about concepts like 'minority voting strength' and 'dilution of minority votes,' ... and as long as racial bloc voting takes place, legislators will have to take race into account in order to avoid dilution of minority voting strength in the districting plans they adopt." Souter does not question the equation of "race" with "skin color," but he does recognize that Blacks may have something in common besides physical appearance. He describes this as "the reality that members of the same race often have shared interests." Souter fails to acknowledge that these shared interests arise from African-Americans' relationship of racial subordination to the white majority.

Given this reality, the political debate in North Carolina's Black community might be quite different from the debate elsewhere in the state. For example, candidates might argue over the best means to promote Black educational opportunity, while an election in a mixed district might be dominated by a dispute over whether promoting Black educational opportunity is a worthwhile or even recognizable goal, or a dispute over which white candidate will pay less heed to the concerns of the Black "special interest group." Believing this is not the same as believing that all Blacks share the same political views; to the contrary, this view recognizes that political debate in a majority-minority district might proceed from different points of reference and with different assumptions, but will still involve strong philosophical differences among candidates vying to represent that community. The vocabulary of that debate would proceed from a set of assumptions informed by African-Americans' experience as members of a racially subordinated minority group with a unique history.

To recognize that debates can proceed based on different cultural assumptions and values in different communities is to recognize that there are different cultural communities within the larger American society. It is also to recognize that terms such as "Black" and "Chicano" describe groups whose members recognize some persons as members of their cultural group, a group with a common history and traditions, and other persons as members of other groups. This common ground gives members of these groups a vocabulary based upon their (roughly) shared experiences of existing at their group's particular location in society. The different histories of groups such as Chicanos and African-Americans means that despite the many similarities in the treatment and status of these groups, their members speak with different vocabularies of experience.

While gross physical similarities are used as shorthand for the differences among at least some of these groups, it is economic, political, and social forces, and not physical differences, that act to keep these groups internally similar and externally somewhat separate from the rest of society. "Race" is a common term to describe the difference between minority groups and the majority society, because racial difference has been the traditional justification for racial subordination. If "race" is the product of historical relationships among groups, rather than an inherited trait, those attempting to describe the social landscape should focus on the relationship among cultural groups rather than searching for an innate characteristic that can serve as an identifier for members of groups.

This point escapes Justice O'Connor, who frets in Shaw that majority-minority legislative districts "may balkanize us into competing racial factions." O'Connor takes as a starting point for analysis the assumption that there is no such thing as systematic racial subordination; American society is culturally homogenous and becomes "balkanized" along racial lines only when government or an individual improperly recognizes "skin color" as signifying something other than the color of one's skin. Her analysis assumes a uniformity of social interaction. More bluntly, her analysis assumes that "race" does not matter in this society.

This assumption is completely unsupported by American history. Never has the population of this country been culturally homogenous, and the laws of this country (with the possible exception of today's formally color-blind jurisprudence) have never been applied without regard to "race." However, Justice O'Connor is right to wonder whether making physical appearance or ancestry the sole yardstick of cultural identity might tend to reinforce the idea that some people are inherently different (and possibly inferior) simply on that basis. The practice of tracing bloodlines to determine cultural identity has drawn criticism from other Justices. For example, in one case, Justice Kennedy noted that the Federal Communications Commission had traced a license applicant's bloodline back to 1492 as part of the determination that he was "Hispanic," and compared this practice to the racial purity laws of Nazi Germany and South Africa under apartheid. These justices may be saying that the American government is like an alcoholic who cannot be trusted; once it drinks of the forbidden wine of racial classification, it cannot help but take the concept to a destructive extreme. Those who care about improving the racial climate in this country should not lightly overlook the likelihood that this observation has truth in it.

The challenge facing the OMB, then, is to formulate a "racial/ethnic" classification scheme that does not rely on an inquiry into a person's bloodline to determine his or her cultural identity. To recognize that "race" is a matter of cultural definition would not be a radical shift in American law. From time to time, cultural definitions of race have been invoked. For example, a line of cases excluded some persons of "Caucasian" origin or fair complexion from citizenship under an act limiting naturalization to white persons on the grounds that Hindus, Japanese, or persons of mixed European and indigenous ancestry were not commonly understood to be "white persons." While these results are rightly viewed as noxious manifestations of white supremacy, as are the immigration laws these cases interpreted, these cases recognized that biology alone cannot define the contours of the white population. These cases also illustrate that a social definition of race is not necessarily one that operates to the benefit of members of racially subordinated groups.

More recently, the Supreme Court's decision in Keyes v. School Dist. No. 1 utilized a cultural view of race, ethnicity, and culture in describing Denver, a typical Southwestern city, as "a tri-ethnic, not a bi-racial, community." The Court noted that "in the Southwest Hispanos and Negroes have a great many things in common" and held that the two groups must be considered as one when determining whether Denver's schools were racially segregated.

Justice Brennan's opinion shows a far more sophisticated understanding of race and ethnicity than evidenced in more recent Court decisions. Race, in Keyes, is not a fixed trait, disconnected from other aspects of society. Rather, racial and ethnic definitions are a matter of local culture and historical development. In the Southwest, Brennan noted, the hard, literally black-white racial distinction found in the East did not hold. Rather, there were three primary ethnic groups, one of whom, the Anglo, held sway over the other two.

Crucially, the Court's description of Denver Blacks as an "ethnic" group was not offered to imply that discrimination against Blacks in that area was not racial discrimination, nor that Blacks were in the process of assimilating into Anglo society. Rather, the view of racism in Keyes was that racial discrimination could be found wherever the dominant white or Anglo group viewed other groups as separate and inferior and acted on those beliefs with exclusionary practices. This view does not depend on an inquiry into bloodline, but into the realities of social interaction and politics. Like the view I have identified as an indigenous construction of cultural identity, the key inquiry under this view is whether a group is accepted and recognized as part of the majority society.

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