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 Excerpted from: Khiara M. Bridges, The Dangerous Law of Biological Race, 82 Fordham Law Review 21 (October 2013) (Footnotes) (Full Document)

Khiara BridgesIn April 2012, Boston University's daily newspaper, BU Today, ran a story with the eye-catching headline, BU Takes on Cancer: Racial Disparities. It is the headline beneath the headline, however, that is truly provocative: Genetics Can Trump Income, Access to Care. The article tells a tale that has become almost hackneyed in recent years: black people are dying at disproportionately high rates from an illness, and genetic difference is offered as the explanation for the racial disparity in health. This particular article explains that a team of researchers at Boston University has been probing “the role of genetics” in black women's experiences with cancer. They concluded that “cancers can behave differently in different populations, so the medical establishment needs to stop treating them as if they were the same.” The story educates the reader:

The phrase cancer disparities refers to more than racial or socioeconomic gaps in access to cancer diagnosis and treatment. As it turns out, all other things being equal, race and ethnicity account for significant differences in the incidence and survivability of certain cancers and in how well people respond to standard treatments. . . . [C]umulative findings from several studies indicate that, regardless of their incomes and how early they are diagnosed, African American women are more likely to die from breast cancer than their white counterparts. “At all ages mortality from breast cancer is higher for black women, and it's clear now that it's not due to differences in access, care, or treatments,” [one researcher] says.

According to these researchers, there is a genetic truth to race. Different racial groups possess different genes. Biological race--an idea of race within which racial groups are distinct, genetically homogenous or genetically similar units not a myth; instead, it is a truth that may be “counterintuitive” to the medical community who, up until this point, had not studied the role of genetics in producing different cancer behaviors in different racial groups.

Yet, it is commonly understood that the U.S. Supreme Court has rejected the idea that races are genetically uniform groupings of individuals. Almost a century ago, in United States v. Thind, the Court famously appeared to recognize the socially constructed nature of race. In deciding that the term “white person” within the naturalization law at issue did not refer to persons who would be considered white according to “science” (i.e., Caucasians), the Court appeared to disbelieve racial “science.” Moreover, the jurisprudence since then appears to reaffirm this skepticism: within law, race is understood to be a social construction, having no biological truth to it at all. Upon closer examination, however, the Court's apparent disbelief of racial biology is revealed to be as mythical as racial biology itself.

This Article argues that, while the Court uses the term “race” to refer to sociocultural and sociopolitical groupings of individuals who are not thought to share the same biology or genes, the Court allows for the possibility that race may actually be a biological entity. Thus the Court treats race as a legal term of art, using the term in a “technical” way to reference populations of people who are not presumed to be biologically or genetically homogenous. In treating race as a legal term of art, however, the Court hedges its bets by preserving the possibility that race, in its “scientific” usage, describes persons who are united by biology or genotype. Thus, the Court has demonstrated a commitment to racial biology, albeit an implicit one.

Differently stated, while the Court has rejected racial biology in law, it has never rejected the possibility that, outside of law, race is actually a biological entity. By not shutting the door completely to biological race, the Court, and the law more generally, is complicit in the resuscitation of one of the most dangerous inventions of the modern era. Biological race is a dangerous invention because it has dangerous consequences. The extermination of racialized groups of people thought to be biologically inferior is one such consequence. Biological race is also dangerous because it argues that racial minorities--namely, black people--remain subordinated because of genetic inferiority, and not because of structural and institutional processes. When the explanation for enduring social subordination is genetic, the state and society are absolved of the responsibility for fixing the problem.

In acknowledging and critiquing the idea of racial biology that courses through the Court's jurisprudence, this Article finds company in an abundance of scholarship. It importantly diverges from the predominating literature, however, in at least one critical way: most scholars argue that, at some point, the Court abandoned biological race and accepted race as a social construction. This Article adds an essential gloss on this point, which has become a truism in the scholarship on the issue: while the Court abandoned the idea, in the law, that the term “race” encompasses biological race, it has nevertheless remained committed to the possibility that race “really is” a biological fact outside of the law.

The Court's implicit commitment to biological race is evidenced most clearly by two areas of its jurisprudence: (1) case law concerning American Indians, in which the Court explicitly uses race to mean biological race, and (2) Title VII cases, in which discrimination on the basis of biological characteristics (i.e., skin color, hair) is identified as discrimination on the basis of race, and discrimination on the basis of nonbiological characteristics (i.e., language, accent) is identified as discrimination on the basis of national origin.

The Article proceeds in three Parts.

Part I gives a history of racial biology--describing the invention of the idea, its decline, and its recent resuscitation in medical science. It continues by offering an accurate definition of race, defining a race as a group of individuals that has been differentiated from other groups of individuals, often in ways that homogenize the group and reduce them to a few defining characteristics.

In this way, race is “essentializing.” Part II then considers the Supreme Court's use of race, demonstrating, via a tour through some of the Court's racial jurisprudence, that the Court clearly considers race to be a social construction representing a biologically heterogeneous grouping of persons who, because of historical, social, and political forces, have come to be thought of as a single race. This Part also demonstrates, however, that the Court understands race within law to be distinct from race within the biological sciences. Thus, the Court has created two conceptual entities: a legal race that denotes socially constructed groups, and a scientific race that denotes biologically similar groups. This Part contends that this rhetorical move functions to make the Court complicit in the resuscitation of racial biology, as it implicitly reaffirms the idea that there exist races that are not products of social construction, but rather are products of genetic homogeneity.

Part III discusses two areas of jurisprudence where the Court's implicit commitment to biological race is made explicit. First, this Part observes that American Indian jurisprudence is not shy about defining race as biological race, and that doing so has resulted in bad law (that is, law that is antithetical to the interests of the American Indians--the subjects of the law). Second, this Part explores cases in which plaintiffs have sued employers under Title VII for discriminating against them because they spoke a language other than English while at work or because they spoke English with an accent. In these cases, the discrimination at issue is understood to be a question of national origin, not race. This Part suggests that the reason why language and accent fail to be appreciated as racial characteristics and, instead, are appreciated as characteristics of national origin, is because courts are proceeding from the assumption that biological race exists. Because differences in language and accent were never fault lines along which races were divided in so-called scientific schemas (unlike differences in skin color, hair texture, nose width, lip size, and eye shape), language and accent are not considered racial characteristics in Title VII case law.

This Part concludes by observing that if the Court and lower courts actually wholly rejected biological race and accepted the accurate definition of race offered in Part I of this Article, then they would likely have to reconsider their Title VII jurisprudence. Rejecting biological race would likely result in more successful Title VII challenges for plaintiffs than under the current Title VII regime.

Before beginning the exploration, it might be beneficial to underscore just why the Court's implicit acceptance of bad science in the form of biological race matters. First, it is relevant because, in this particular instance, bad science produces bad law--as both the analysis of American Indian law and Title VII case law in Part III reveals. Second, it matters because of the discursive effects of the Court's acceptance of biological race. It is damaging and dangerous for the Court to communicate, albeit implicitly, that biological race is real--even if it proceeds as though racial biology does not exist. An analogy or two might be illustrative.

We should be particularly disturbed if the Court in Lawrence v. Texas communicated that, while it believed that homosexuality was profoundly immoral for the purposes of the law, it would proceed as though gay persons were not morally depraved individuals undeserving of equal protection of the law. Similarly, we should be disturbed if the Court in Craig v. Boren communicated that, while it believed that women were fundamentally inferior to men for the purposes of the law, it would proceed as though women ought to be able to participate equally in society. In these examples, while one effect of the decisions in Lawrence and Craig would be to protect Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) persons and women from discrimination, the decisions would also likely perpetuate problematic ideas about the same groups that they protect. The same is true about the Court and biological race. It is certainly accurate that the Court explicitly rejects biological race. The Court's implicit commitment to it, however--communicated most directly through American Indian law and Title VII case law--should not be ignored or dismissed as irrelevant. Indeed, the Court is communicating its commitment to an idea that is responsible for some of the greatest tragedies of the modern era.

Thus, this Article takes seriously the dialectical relationship between law and culture. Pursuant to this theory, law produces culture just as culture produces law. To the extent that the law communicates the idea that biological race is real, then it produces a culture that assumes that biological race is real. Furthermore, to the extent that this culture assumes that biological race is real, it will inevitably produce a law that communicates that biological race is real. And the dialectic turns. Thus, this Article is an important intervention into the dangerous cycle that has functioned to sustain the mythology of biological race. This Article calls upon the Court, and lawmakers generally, to recognize the fallacy of racial biology and to produce law that does not reproduce, either explicitly (as in American Indian jurisprudence) or implicitly (as in Title VII jurisprudence), this devastating modern myth. If law refuses to reproduce the myth, then perhaps culture will refuse to believe the mythology. In turn, we, as a society, would make great, essential strides away from a thought that is responsible for genocides, ethnic cleansings, and innumerable disenfranchisements--past and present.

Associate Professor of Law and Associate Professor of Anthropology, Boston University.


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