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Excerpted From: Tanya Katerí Hernández, “Multiracial” Discourse: Racial Classifications in an Era of Color-blind Jurisprudence, 57 Maryland Law Review 97 (1998) (391 Footnotes) (Full Document)


TanyaKHernándezThe debate, in short, is really not so much about a multiracial box as it is about what race means--and what it will come to mean as the society approaches the millennium.

For the past several years, there has been a Multiracial Category Movement (MCM) promoted by some biracial persons and their parents for the addition of a “multiracial” race category on the decennial census. The stated aim of such a new category is to obtain a more specific count of the number of mixed-race persons in the United States and to have that tallying of mixed-race persons act as a barometer and promoter of racial harmony. As proposed, a respondent could choose the “multiracial” box in lieu of the presently listed racial classifications of American Indian or Alaskan Native, Asian or Pacific Islander, Black, White, or Other. The census schedule also includes a separate Hispanic Origin ethnicity question. On October 29, 1997, the U.S. Office of Management and Budget (OMB) adopted a federal Interagency Committee recommendation to reject the multiracial category in favor of allowing individuals to check more than one racial category. Some MCM [Multiracial Category Movement] proponents are not satisfied with the OMB's decision, because multiple box checking does not directly promote a distinct multiracial identity. These MCM [Multiracial Category Movement] proponents are committed to continue lobbying for a multiracial category on the 2010 census. Further, an OMB official has indicated that the issue of a multiracial category might be reconsidered with an increase in mixed-race persons. Yet, the significance of the MCM [Multiracial Category Movement] extends beyond the actual decision of whether and how mixed-race persons should be counted.

The discourse surrounding the advocacy for a census count of mixed-race persons has social and legal ramifications apart from the limited context of revising a census form. The principle underlying this Article is that the law should be understood in terms of its social consequences. From a legal-realist perspective, it is important to scrutinize the neutral discourse characteristic among those proposing a legally mandated mixed-race census count. Such analysis exposes its moral and political significance and ramifications. “[L]anguage. . . can powerfully evoke and enforce hidden signs of racial superiority, cultural hegemony, and dismissive 'othering’ of people.” The power of discourse arises from its ability to construct a public narrative and then obstruct counter-explanations for social reality.

Multiracial discourse contends that a mixed-race census count is necessary because race has become too fluid to monitor. The theory posits that the inability to identify psychologically with just one racial category is inherent to mixed-race persons alone and that the growing number of mixed-race persons demonstrates the futility of racial categorization as a practice. For instance, MCM [Multiracial Category Movement] proponents often refer to the growing numbers of persons who choose the “Other Race” category to support the premise that the racial categories are inadequate for mixed-race persons. The multiracial narrative of modern race being more fluid than in the past corresponds with and reinforces the color-blind jurisprudence presentation of race as devoid of meaning. Thus, “multiracial discourse” has an immediate meaning as the rhetoric deployed in the campaign for a specific count of mixed-race persons, and a more expansive meaning as the approach to race that views the increasing diversity of society as deconstructing and transcending race. Multiracial discourse misconstrues the meaning of race used in the group measurement of racial disparity, with an individual-focused assessment of fluid cultural identity. Such a view of race negates its sociopolitical meaning and thereby undermines effective legal mechanisms to ameliorate racial discrimination. In fact, the MCM [Multiracial Category Movement] can be viewed as a metonym for the more general color-blind approach to race evident in recent Supreme Court cases.

Both the immediate and expansive meanings of “multiracial discourse” are interrelated and involve a highly politicized discourse. Accordingly, this Article shall question the assumptions that underlie both levels of meaning in order to assess the continuing significance of the racial classifications that multiracial discourse challenges. This analysis reveals that although multiracial discourse may seem benign and appealing on a humanitarian level, its implementation will produce counter-egalitarian results in the struggle for racial equality. The MCM [Multiracial Category Movement]'s campaign for color-blind treatment of racial hierarchy cloaks the racial significance of ostensibly race-neutral laws, as the Supreme Court's recent movement toward color-blind antidiscrimination jurisprudence has done.

Because of the manner in which the census context highlights the dangers of multiracial discourse to racial justice efforts, this Article will focus upon the census as a well-known paradigm for the way racial classifications function. In particular, to demonstrate the folly of color-blind approaches to race issues, the author enlists the debate centered on the demand for a census count of mixed-race persons. Because the census is the cornerstone of the federal statistical system, the battle over the reform of the census racial classifications is significant and far-reaching. The census reflects in large measure the nation's struggle over how human beings will be known politically in a racially stratified society. “The debate over a multiracial category reveals an intriguing aspect about how we conceptualize race.” An examination of multiracial discourse reveals that multiracial-category proponents misperceive the meaning of race relevant to the census inquiry by conflating a cultural approach to race with a sociopolitical approach to race. Therefore, this Article analyzes the widespread legal ramifications of the MCM [Multiracial Category Movement] and assesses whether the MCM [Multiracial Category Movement]'s proposal effectively advances its stated goal of promoting racial equality. After analyzing the legal import of multiracial discourse, the Article determines that the MCM [Multiracial Category Movement] misperception of race and its fluidity inadvertently furthers the progression of color-blind jurisprudence in direct contravention of the MCM [Multiracial Category Movement] goal of promoting racial equality. Part I provides background and identifies the motivating forces behind the MCM [Multiracial Category Movement] as a color-blind movement. Part II critiques the MCM [Multiracial Category Movement] for its adverse effects upon racial justice efforts in furthering the manner in which color-blind jurisprudence disregards actual experiences of racial discrimination in the promotion of White supremacy. Part III proposes a race-conscious classification system, which reflects the sociopolitical nature of race, to monitor racial discrimination more effectively and to dislodge the force of multiracial discourse.

[. . .]

No form of a mixed-race census count will be an effective mechanism for achieving the MCM [Multiracial Category Movement]'s stated goal of overcoming racism. The multiracial discourse that supports the MCM [Multiracial Category Movement] promotes color-blindness by asserting a cultural approach to race, which negates its sociopolitical import. Furthermore, the MCM [Multiracial Category Movement] employs a color-blind assessment of the effects of a mixed-race census count when it overlooks the historical uses of mixed-race, middle-tier buffers for purposes of subordination in Latin America and apartheid South Africa. The MCM [Multiracial Category Movement]'s promulgation of color-blind theory reinforces the current jurisprudential shift of negating the experiences of racial discrimination against persons of color, and in the process, maintains systems of race-based privilege. The danger that the MCM [Multiracial Category Movement] will be co-opted by the larger society as a mechanism for constructing a buffer class to maintain White privilege, in the midst of a growing concern with the demographic decline of White U.S. residents, further calls into question the soundness of implementing a mixed-race census count. Even without such a calculated appropriation of the MCM [Multiracial Category Movement], a mixed-race census count is not advisable, because it would not accurately reflect the racial caste system as it exists in the United States. Maintaining caste-conscious racial classifications permits us, as a nation, to acknowledge openly the existence of our racial hierarchy in order to work toward substantively eradicating it and countermanding the negative implications of multiracial discourse.

The most critical aspect of multiracial discourse, which this Article's race-conscious classification proposal addresses, is its characterization of race as too fluid to be adequately reflected by “monoracial” categories, as if the birth of mixed-race persons alone would undermine the existence of race-based privilege. The perception of mixed-race persons as ambassadors of racial harmony, indicative of multiracial discourse, resonates with the failed Brazilian race-mixture-as-“racial-democracy” approach to race relations. The confluence of multiracial discourse with discredited Latin American perspectives on race is especially alarming given its potential for furthering the course of color-blind jurisprudence. Civil rights efforts to rectify the color-blind jurisprudence premise that race should never be taken into account may be severely hampered by the use of multiracial discourse to assert that race is “too nebulous” to be utilized in governmental efforts to eradicate racism. This is the enduring legacy of the MCM [Multiracial Category Movement]--the facility for multiracial discourse to further a color-blind jurisprudential dismantling of civil rights, irrespective of administrative decisions about whether and how to conduct a mixed-race census count. At the same time, the MCM [Multiracial Category Movement] has also provided an invaluable opportunity to have a public discussion about the meaning of race and the need for a more concrete understanding of race in legal efforts aimed at addressing racial disparity. It is only with such a frank discussion of the continuing sociopolitical meaning of race that we as a society can develop a mechanism for effectively abolishing racial inequality--the ultimate goal of the MCM [Multiracial Category Movement].

Not until. . . we have faced the full human and personal consequences of self-serving, historically entrenched social and legal conventions that in fact undermine the privileged interests they were designed to protect, will we be in a position to decide whether the very idea of racial classification is a viable one in the first pla 

Assistant Professor, St. John's University School of Law. A.B., Brown University; J.D., Yale Law School.

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