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Excerpted From: Sonika R. Data, Coloring in the Gaps of Title VI: Clarifying the Protections Against the Skin-Color Caste System, 107 Georgetown Law Journal 1393 (May 2019) (Student Note) (181 Footnotes) (Full Document)


SonikaDataThe answer to these questions has always been in the background: color. “Colorism”--the act of discriminating against a person due to differences in skin color--has been used to advance and oppress individuals for centuries, but has been masked by conversations of race. Colorism is the reason why the film Black Panther garnered high acclaim for shattering norms and showcasing dark-skinned Black women, and the purported reason why sisters Beyoncé and Solange Knowles have been so successful. As society approaches an ever more multiracial composition, skin color--one of the many proxies for race--is becoming a more noticeable basis for discrimination.

Although color and race have the same root--society's desire to categorize, oppress, and privilege individuals based on some set of characteristics--they are still distinct. Whereas race refers to a social construct that ascribes a certain social meaning to a person, color refers to an inherent physical characteristic skin color--and the resulting social meaning ascribed to that person. Colorism scholars debate about whether colorism is within the umbrella of or distinct from race; this Note is premised on the latter belief. If color is distinct from race, then the discussion of colorism must extend beyond our rigid construction of the Black-White racial dichotomy to a more multifaceted web of subordination that includes interactions between and within certain racial groups.

This Note's colorism discussion focuses on Title VI of the Civil Rights Act of 1964 (Title VI) because of the breadth of entities and programs the statute influences. Interestingly, legal scholars have yet to discuss colorism claims under Title VI, instead focusing their energy on other civil rights statutes. Unlike its sister provisions, Title VI affects a wide range of entities. Title VI prevents people from being discriminated against on the grounds of race, color, or national origin by “any program or activity receiving Federal financial assistance,” which includes state departments of public safety, colleges, boards of education, medical centers, and private corporations. This breadth is particularly important during a time when there has been a rise in discriminatory conduct. Recently, news magazines and outlets have reported an increasing marginalization of communities of color, resurgence of White supremacy, oppression of legal and undocumented immigrants, and disproportionate policing tactics targeting Black people. Moreover, recent considerations to eliminate disparate-impact regulations critical to civil rights laws may enable mortgage lenders, insurance companies, and large banks to adopt policies that are de jure neutral but de facto discriminatory. Although these current events may not be directly tied to Title VI, they contribute to a climate that may permit more “subtle” forms of discrimination, such as differential treatment on the basis of skin color rather than race. Title VI can be used as a tool to address and defeat this type of color discrimination by leveraging federal government funding to hold recipients accountable.

However, Title VI colorism case law suggests that the opposite practice is occurring: courts are dismissing meritorious color claims due to the lack of tools and knowledge necessary to understand colorism. An analysis of the case law indicates that a cycle is being perpetuated. The cycle begins with plaintiffs and courts; plaintiffs are not pleading color distinctly enough from race, and courts are ill-equipped to treat these claims using theories of colorism. Thus, courts generate poor precedent for future plaintiffs, either by rejecting color claims when they fail to meet the standard for race claims or by permitting ill-pleaded claims that blend issues of color and race without distinguishing between the two. Consequently, plaintiffs do not know how to properly plead colorism, and courts remain confused. Without any interventions in this ongoing cycle, the practice of alleging color discrimination will be seen as superfluous to race and these claims will consequently be dismissed even though meritorious color claims-- distinct from race

This Note serves as an introduction to this burgeoning Title VI color discrimination doctrine and provides an analysis of the litigation trends that perpetuate the cycle discussed above. Part I dives into colorism's past and present to demonstrate that colorism has long been a problem that must be resolved. Part II provides an overview of observations from current Title VI color discrimination case law. Lastly, Part III provides recommendations for how courts, plaintiffs, and civil rights lawyers can establish and expand this important body of law.

[. . .]

As our society becomes increasingly diversified and multiracial, it is inevitable that color discrimination will continue to rise in relevance and prevalence, and that litigation will be a tool for recourse. To ensure that the judicial system is prepared, we must ask ourselves how plaintiffs will bring their discrimination claims to court. As seen from the cases discussed throughout this Note, plaintiffs do not know how to allege a color discrimination claim under Title VI, sometimes misalleging their claims as race discrimination or omitting the colorism claim entirely, thereby only alleging race discrimination. There may also be cases where plaintiffs strategically allege only race discrimination because they know it is a more viable claim than color discrimination. Because more color discrimination cases lie ahead, it is imperative that courts evaluate meritorious Title VI color discrimination claims more fulsomely, while staying attuned to distinctions between race and color. Therefore, we must equip plaintiffs, civil rights advocates, ED, and courts with a clearer understanding of colorism, how it operates today, and trends in Title VI colorism adjudication. Arming these key players with this knowledge will bring us one step closer to deconstructing the skin-color caste system that permeates through all aspects of our society, from the courtroom to the workplace to the classroom. Only then will our society be truly fit for the Marcias and Millies among us. 

Georgetown University Law Center, J.D. expected 2019; Barnard College, Columbia University, B.A. 2013.