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Excerpted From: Taunya Lovell Banks, Personal Identity Equality and Racial Misrecognition: Review Essay of Multiracials and Civil Rights: Mixed-race Stories of Discrimination, 34 Journal of Civil Rights & Economic Development 13 (Spring, 2021) (187 Footnotes) (Full Document)


TaunyaLovellBanksThere is a growing body of social science literature documenting multiracials as an “emergent minority group ... who ... have not always been recognized as either a separate racial group or as legitimate members of racial groups.” Tanya Hernández has been writing about aspects of American multiracialism for twenty years. Her 1998 article in the MARYLAND LAW JOURNAL focused on the multiracial discourse about racial categories on the 2000 U.S. census. In that article, she analyzes the multiracial identity movement's effort to get a multiracial category on the U.S. census. Although that movement failed, the 2000 census did permit responders to mark more than one race. Hernández's new book, Multiracials and Civil Rights: Mixed-Race Stories of Discrimination, explores another aspect of this movement: the growing scholarship of those she identifies as multiracial identity scholars (hereinafter identity scholars), a concept she first introduced in 2017. In her book, Hernández critiques these scholars' claims that legal recognition of a separate “multiracial” category is needed to address the discrimination multiracial plaintiffs face.

Professor Hernández uses anti-discrimination law to examine identity scholars' claim that the law and society misrecognize multiracials' self-identified personal racial identity and relies instead on their ascribed or legal identity. Thus, many multiracial identity scholars argue for a separate multiracial category. These scholars target anti-discrimination law for failing to protect a right to racial personal identity equality. As Lauren Sudeall Lucas writes: “To assume that identity and the law must serve the same ends may unfairly stunt identity formation and, perhaps more importantly, prevent the law from fulfilling an important function on behalf of subordinated racial groups.”

Mixed-race people vary in their racial identification. “[Some] described themselves as biracial”--meaning neither black nor white, or perhaps biracial but experiencing the world as a black person, where “their self-understanding is rejected by others who do not consider 'biracial’ a meaningful racial identification.” “[S]ome mixed-race people” have “several ways of identifying ... shift[ing] between Black, White, and biracial identities, depending on the racial composition of the group they are interacting within.” Other mixedrace people refuse to accept any racial definition - they considered themselves raceless. Canadian journalism scholar Minelle Mahtani writes: “Race does not exist, yet it remains a salient feature in the public imagination.” She adds that it “is almost irrelevant whether race is a social construction when the lived reality of race is so abundantly apparent in the lives of mixed race people.”

The view of race as malleable and fluid is at odds with the historic treatment of mixed-race individuals. The United States has historically treated all people as monoracial with mixed-race people being assigned the race of their non-white ancestor. This classification system presumed that racial purity exists, but, like race itself, is a myth. Racial classifications in this country typically are crafted as a means of protecting those classified as white from those raced as non-white. Thus, the multiracial identity movement purports to unravel or destabilize this approach to race.

Identity formation focuses on the role of society in defining race rather than the “'other’ status of the mixed race individual.” In an earlier article, I argued that because race is an artificial, unstable and unscientific means of classifying individuals and groups, legal recognition of a separate multiracial category only furthers racial subordination. This essay distinguished legal identity--imposed or societally perceived identity (ascribed identity)--from chosen or self-identity. It asked whether self-identification as multiracial undermines the subordinating use of race in America, particularly its anti-black animus, and whether it reinforces the negative aspect of the racing process in the United States.

A major contribution of Multiracials and Civil Rights is the empirical evidence Hernández compiles to support her argument that existing anti-discrimination laws, although flawed, can be used to resolve multiracials' claims of race-based discrimination; and that judges are able to comprehend what is driving discrimination complaints by mixed-race plaintiffs. Further, she uses the same cases as those she identifies as multiracial legal identity scholars to refute their claims.

Hernández's book also provides an opportunity for a conversation about the extent and degree to which the multiracial identity movement undercuts not only the rights of multiracial individuals to seek legal remedies for race discrimination in various aspects of their lives, but more importantly, the larger racial project--namely the dismantling of an American hierarchy grounded in an ideology of white dominance and anti-black animus. This essay explores the problem Hernández identifies and her suggestions for remediation. I also use Hernández's book to address whether recognition of multiracials' chosen, as opposed to ascribed, racialized identity minimizes or reinforces racial subordination in the United States. I end by reflecting on her suggestions for remediation. This essay starts with an exploration of multiraciality as a concept.

[. . .]

Social scientists Rockquemore and Arend, after studying individuals from five states with one black and one white parent, conclude: “[w]hile we observe new racial identifications among our mixed-race respondents, we continue to see the lingering constraints of physical appearance that make the range of identity choices differently available.” Their study took place almost two decades ago. Nevertheless, other social science studies suggest “that anyone who 'carries a visible “stigmas sign”’ becomes reduced from the view of a 'whole and usual person’ into one that is less desired and 'discounted.”’ This reality of race in America leaves one to understand why some multiracials support recognition of personal racial identify. They want to avoid the opportunity-limiting stigma of blackness.

One the other hand, we live in a time when law and society are recognizing greater fluidity with regard to gender and sexuality, considered by some as social constructs. Thus it may seem disingenuous to question the right to racially self-identify in a way different from the identity imposed by society. This attempted analogy, however, ignores the possibility that race is not socially constructed in the same way as sexuality and gender. Philosopher Tina Fernandes Botts emphasizes that unlike sexuality or gender, race is different “since American racial identity is primarily externally derived ... defined with reference to one's ancestry.”

People cannot change their ancestry. Therefore, requiring American society to recognize a racial identity that is inconsistent with how race is constructed in America is problematic. More importantly, the personal identity goals of many identity scholars seem at odds with the larger post-civil rights anti-subordination racial project.

Jacob A. France Professor of Equality Jurisprudence, University of Maryland Francis King Carey School of Law.

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