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Excerpted From: Desirée D. Mitchell, Class of One: Multiracial Individuals Under Equal Protection, 88 University of Chicago Law Review 237 (January 2021) (Comment) (203 Footnotes) (Full Document)

DesiréeDMitchellFor centuries, mixed-race Americans have felt a sense of isolation as unique as their racial makeup. Whether society perceived a multiracial person as White or non-White could determine everything from whom they could marry to which jobs they could work to which areas and homes they could live in. The racially mixed nation that the United States has been since its foundation has resulted in a society in tension with entrenched notions of racial classification. The Equal Protection Clause of the U.S. Constitution-- passed to promote equality of former slaves-- says that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” Yet there is reason to believe multiracial individuals are not offered equal protection under the law.

Perhaps unsurprisingly, courts have largely failed in classifying the cases of the multiracial plaintiffs before them. Particularly in the context of White-Black relations during the centuries-long era of anti-miscegenation laws, courts abided by a “one-drop” rule in which anyone with any traceable amount of Black heritage was legally considered Black. But even since the days in which anti-miscegenation laws were deemed unconstitutional, courts have continued to falter in how they see multiracial people for legal purposes. Historically, courts have simply understood multiracial individuals to be akin to a single minority race of which they are at least partially composed. For instance, in the infamous race-based case Plessy v. Ferguson, the Supreme Court accepted the notion that the plaintiff--a man who was “seven-eighths Caucasian and one-eighth African blood”--was, for all legal purposes, Black. Because of this limited understanding of racial identity, the legal system has largely failed to identify multiracial plaintiffs as they identify themselves, leaving many plaintiffs feeling unrecognized and alienated from society.

Seeking to address this problem, some scholars have written about how courts might consider the multiracial identities of plaintiffs in ways such as ceasing to require some identification with a recognized racial category. Professor Taunya Lovell Banks, for instance, has joined scholars like Professors Nancy Leong and Lauren Sudeall Lucas in arguing that the law should recognize individuals' very personal multiracial identities. Relatedly, scholars like Professor John Tehranian and Bijan Gilanshah have called for a more fluid understanding of race under equal protection doctrine. This Comment largely builds off those arguments by asserting that courts should recognize multiracial plaintiffs as just that--multiracial. In doing so, I suggest that courts should adopt a mindset in which they use a framework similar to the recognized “class-of-one” equal protection doctrine.

The class-of-one doctrine allows an individual to be recognized as a class of her own for equal protection purposes. Through this doctrine, courts have been receptive to the argument that an individual who does not identify with a recognized class has nevertheless been subject to unlawful discrimination in need of judicial review. I argue the unique experience of multiracial individuals should allow them to allege discrimination because of their membership within a class of one. This option would be fitting in the context of plaintiffs who are not monoracial because the multiracial experience varies significantly by racial makeup and self-identification. It is those experiences that are worthy of recognition by courts.

Consider the following hypothetical example given by Leong:

A plaintiff claims that he was discriminated against because he was Asian. He alleges that his coworkers called him a “chink,” asked him whether he ate dogs, and mocked the shape of his eyes. He was ultimately fired for what he believes were pretextual reasons masking racial animus. The first sentence of the court's opinion is as follows: “Plaintiff alleges that he was discriminated against because he is Hispanic.” Undoubtedly, this plaintiff would feel that the court had disregarded his narrative. Not only did the court characterize him in a way that he had not characterized himself, but the way in which the court characterized him divests the other facts of their narrative impact because they are not associated with the category of “Hispanic” as they are with the category of “Asian.” My example is intentionally exaggerated, and the Reader's reaction is likely that the court's characterization was simply wrong. But that is exactly the point: just as an Asian plaintiff may believe it to be wrong for a court to characterize him as Hispanic, a multiracial plaintiff may feel it was wrong for a court to characterize him as monoracial.

A half-White, half-Black individual will have experiences of discrimination that differ in nature from the discrimination experienced by an individual who identifies as Black, White, Hispanic, or Asian. While these differences may not result in differing legal outcomes (meaning a multiracial plaintiff who is wrongly identified as monoracial may still succeed in her claim, irrespective of the court's error), each plaintiff before a court will still be unique and deserving of recognition. Further, as illustrated by Leong's example, to be meaningfully effective, courts must make an effort to truly understand the situations of claimants. Consequently, multiracial plaintiffs should have the option of having their unique discrimination claims heard and recognized as a class of one.

As described, articles chronicling the unique experiences of mixed-race individuals are not new. For the purposes of this Comment, I define “mixed-race” or “multiracial” individuals as anyone who identifies with more than one race. In Part I of this Comment, I explore the history of multiracial individuals in the United States, including how society, and courts specifically, have classified mixed-race people.

Part II then describes existing equal protection jurisprudence and how it has historically applied to multiracial people. I describe how courts have traditionally lumped multiracial individuals with other, clearer minority racial groups and ignored the unique identities of multiracial people.

The Comment then goes on in Part III to exemplify the harms multiracial individuals face under current equal protection doctrine. Most notably, I argue multiracial individuals are subject to isolation because of their “confused” identity and are subject to discrimination because of their multiracial composition itself, as opposed to the presence of some non-White heritage. Additionally, I discuss the psychological and symbolic significance of recognizing--or failing to recognize--multiracial identity.

Finally, in Part IV, I discuss courts' use of the class-of-one doctrine under equal protection and how its use could speak to the unique harms multiracial individuals face that are unaddressed under current application of equal protection.

[. . .]

As Professor of sociology G. Reginald Daniel explained, “[o]ur society is racially illiterate in general, and the greatest illiteracy is to be in the presence of a multiracial person.” So, too, are our courts racially illiterate when they misidentify mixed-race plaintiffs. Under the courts' current understanding and application of equal protection, the unique identities and experiences of mixed-race people go unrecognized and perhaps even unaddressed. As society changes and becomes increasingly more diverse, it is crucial that our courts, too, reflect the people they intend to protect through the law. An effective way in which courts can remedy this problem is to consider multiracial plaintiffs as a class of one when they sue under equal protection.

Some might argue that allowing class-of-one claims could completely undermine current understandings of race and discrimination. While this could certainly be a possibility, one must consider the possibility that we live in a society whose racial categorization schemes ought to be questioned. Rather than perceiving race as clear-cut (and often binary), it might be more useful and accurate to perceive racial categories as fluid. Nevertheless, existing categories would remain untouched by this new application of the class-of-one doctrine. The altered understanding of multiracial equal protection claims would serve as an addition to--not a substitute for--current equal protection jurisprudence.

In the past, the judicial system has played a vital role in shaping American thought and opinion on race. After the Court's holding in Brown, Americans thought about race differently and eventually adopted an overwhelmingly egalitarian attitude. Through a landmark decision, the Court set a model for society. I argue that by adopting a class-of-one approach, courts will once again lead society by acknowledging the often-marginalized identities of the multiracial plaintiffs before them instead of viewing the experiences of multiracial individuals as typical for those of the groups to which they belong. As a result and as will prove crucial to our ever-evolving society, courts--and conceivably society at large--might begin to affirm the self-identities of multiracial individuals.

B.A. 2018, Brigham Young University; J.D. Candidate 2021, The University of Chicago Law School.

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