Tuesday, May 5, 2020

"The Modern American Law of Race"

By David Bernstein - May 05, 2020 at 08:20AM

My article is forthcoming next year in the Southern California Law Review. I've previewed some of the interesting cases I discuss on this blog, and I have a larger book project in mind. Here is the abstract for the article:

This article explores the modern American law of race.

Part I of this Article addresses the origins and development of modern racial categorizations–African American, Asian, Hispanic, Native American, White–in the United States. These categories arose from categories used for federal anti-discrimination enforcement and affirmative action policies. There has never been a coherent or comprehensive explanation from any federal source as to why some minorities are deemed to be "official" minority groups and others are not, or why groups have the precise, and often seemingly arbitrary, boundaries they do.

As documented in Part I of this Article, the scope and contours of official minority status have come about from a combination of which groups were deemed analogous to African Americans, bureaucratic inertia, lobbying campaigns, political calculations by government officials, a failure to anticipate future immigration patterns, and happenstance.

Part II discusses state variations on the scope of the standard ethnic categories, in particular in the states' Minority Business Enterprise (MBE) programs.

Having discussed the origin and scope of official minority categories at the federal and state level, this Article next turns to a second issue–what evidence individuals must provide to demonstrate membership in these categories. Conventional wisdom is that these categories are purely a matter of self-definition based on informal norms. However, various states require a wide range of proof of minority status to participate in MBE programs, ranging from providing an official document such as a birth certificate listing one's race, to providing letters of support from ethnic organizations, to relying on certification by the National Minority Suppliers Development Corporation.

Perhaps surprisingly, challenges to the under- or over-inclusiveness of a government's definition of the scope of racial or ethnic categories are rare. Part IV of this Article discusses the only three such cases this author found.

Part V of this Article reviews cases in which a denial of minority status to a petitioner seeking Minority Business Enterprise status has been adjudicated and resulted in a published opinion. Most of the cases discussed in Part V involve the question of Hispanic status, the boundaries of which have proved especially vexing to administrators and courts.

The next section of this Article, Part VI, turns from racial categorization in the Minority Business Enterprise context to adjudication of claims of minority status by individuals seeking to benefit from affirmative action in employment.

Part VII of this Article discusses two other contexts in which courts have had occasion to determine racial or ethnic identity; first, cases in which a plaintiff has needed to show he is a member of a protected class under anti-discrimination laws, and second, cases involving "Indian" status under the Major Crimes Act.

This Article concludes by noting that laws dictating ethnic and racial categories were designed primarily to assist African Americans overcome the legacy of slavery, Jim Crow, and discrimination. As the United States has become more demographically diverse, however, African Americans are now a shrinking minority of non-whites protected from ethnic and racial discrimination, and of those eligible for affirmative action programs. Given high rates of interracial marriage among other minority groups and the reality that mixed-race and mixed-ethnicity individuals can check whichever box most benefits them, the percentage of non-African-American individuals eligible for minority status for affirmative action purposes will continue to grow, putting increasing strains on the current method of categorization.


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