California Law Review
multiracial identity, equal protection, anticlassification, race discrimination
First Amendment | Law | Law and Race
The number of multiracial individuals in America, many of whom define their racial identity in different ways, has grown dramatically in recent years and continues to increase. From this demographic shift a movement seeking unique racial status for multiracial individuals has emerged. The multiracial movement is distinguishable from other race-based movements in that it is primarily driven by identity rather than the quest for political, social, or economic equality. It is not clear how equal protection doctrine, which is concerned primarily with state-created racial classifications, will or should accommodate multiracialism. Nor is it clear how to best reconcile the recognition of individual identity with the continuing need to address group-based racial discrimination and subordination. In this Essay, I explore the potential impact of multiracialism-and multiracial identity in particular-on the future of racial classifications under equal protection doctrine.
As a framework for its analysis, the Essay invokes two theories used to interpret the meaning of equal protection: antisubordination and anticlassification. Viewed solely through the lens of multiracial identity, the common normative understanding of these two approaches contorts. While antisubordination is often perceived as more beneficial for groups battling entrenched racial hierarchy, it may facilitate unique harms for multiracial individuals seeking to carve out a racial identity distinct from traditionally defined racial categories. And although anticlassification is often viewed by progressives as detrimental to the pursuit of true racial equality, it may lend more support to policies of racial self-identification and the recognition of a unique multiracial identity. A looming danger, therefore, is that anticlassification advocates wishing to dismantle frameworks rooted in traditional notions of race may exploit multiracialism to "undo" race and to undermine the use of racial classifications altogether.
In response to that possibility, this Essay argues that although law and identity inevitably inform and impact one another, they also serve distinct purposes that should not be improperly conflated in the context of multiracialism. The construction of identity is ultimately a very personal endeavor, and although legal recognition may be one aspect of identity, in the area of race, the law has a more powerful function to play in preventing racial subordination. Where possible, the law should accommodate multiracial individuals who wish to define their own racial identity, but as long as it remains more aspirational than realistic, the individual's perception of race should not be used or manipulated to undermine the use of racial classifications to counter societal race discrimination.
Undoing Race? Reconciling Multiracial Identity with Equal Protection, 102 California Law Review. 1243
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1386