A House Divided: The Invisibility of the Multiracial Family

This Article is an invited special projects paper for the Harvard Civil Rights-Civil Liberties Law Review. It examines how society and law work together to frame the normative ideal of intimate couples and families as both heterosexual and monoracial. This Article sets out to accomplish three goals. First, it examines the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of interracial marriages and families within our society. Specifically, Part II of this Article uses the work of Professor Peggy McIntosh to identify unacknowledged monoracial, heterosexual-couple privileges and list unearned privileges, both social and legal, for such couples. It also uses Professor Kimberlé Crenshaw\u27s theory of intersectionality to explicate how couples in general may experience societal benefits and disadvantages differently based upon various intersections of identity categories. Second, this Article examines housing discrimination law to demonstrate the connection between the daily social disadvantages of interracial, heterosexual couples and families and the lack of legal recognition for interracial couples and families. Specifically, Part III of this Article utilizes housing discrimination law to show how law can ignore the existence of interracial, heterosexual couples, thereby reinforcing an ideal of marriage and family as monoracial. In so doing, this Part explains how housing discrimination statutes assume that plaintiffs will be monoracial, heterosexual couples, and fail to fully address the harms to interracial, heterosexual couples who are subjected to discrimination in housing and rental searches because of their interraciality (i.e., because they have engaged in race-mixing). Part III.A describes the legal framework for evaluating housing discrimination cases, including the means for analyzing discrimination by association cases in court. Part III.B details the categories of plaintiffs who can allege discriminatory action because of race, familial status, or marital status under housing discrimination statutes. It then explicates how interracial couples who are victims of discrimination in housing because of their status as an interracial couple alone do not neatly fit within any of these categories. Third, this Article calls for housing discrimination statutes to explicitly recognize interracial couples and families, thereby filling this hole in anti-discrimination law. Specifically, Part IV proposes that legislators add a new protected class category for interraciality to housing discrimination statutes. The Article argues that such an addition is the only means by which the law can address the expressive harms or lack of dignity that result from the current framing of family in housing discrimination statutes as monoracial. This Article concludes with a call for statutes and rights to be legally framed in a manner that is inclusive, rather than exclusive

A House Divided: The Invisibility of the Multiracial Family

This Article is an invited special projects paper for the Harvard Civil Rights-Civil Liberties Law Review. It examines how society and law work together to frame the normative ideal of intimate couples and families as both heterosexual and monoracial. This Article sets out to accomplish three goals. First, it examines the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of interracial marriages and families within our society. Specifically, Part II of this Article uses the work of Professor Peggy McIntosh to identify unacknowledged monoracial, heterosexual-couple privileges and list unearned privileges, both social and legal, for such couples. It also uses Professor Kimberlé Crenshaw\u27s theory of intersectionality to explicate how couples in general may experience societal benefits and disadvantages differently based upon various intersections of identity categories. Second, this Article examines housing discrimination law to demonstrate the connection between the daily social disadvantages of interracial, heterosexual couples and families and the lack of legal recognition for interracial couples and families. Specifically, Part III of this Article utilizes housing discrimination law to show how law can ignore the existence of interracial, heterosexual couples, thereby reinforcing an ideal of marriage and family as monoracial. In so doing, this Part explains how housing discrimination statutes assume that plaintiffs will be monoracial, heterosexual couples, and fail to fully address the harms to interracial, heterosexual couples who are subjected to discrimination in housing and rental searches because of their interraciality (i.e., because they have engaged in race-mixing). Part III.A describes the legal framework for evaluating housing discrimination cases, including the means for analyzing discrimination by association cases in court. Part III.B details the categories of plaintiffs who can allege discriminatory action because of race, familial status, or marital status under housing discrimination statutes. It then explicates how interracial couples who are victims of discrimination in housing because of their status as an interracial couple alone do not neatly fit within any of these categories. Third, this Article calls for housing discrimination statutes to explicitly recognize interracial couples and families, thereby filling this hole in anti-discrimination law. Specifically, Part IV proposes that legislators add a new protected class category for interraciality to housing discrimination statutes. The Article argues that such an addition is the only means by which the law can address the expressive harms or lack of dignity that result from the current framing of family in housing discrimination statutes as monoracial. This Article concludes with a call for statutes and rights to be legally framed in a manner that is inclusive, rather than exclusive

Girl, Fight!

Today\u27s twenty and thirty-something women have grown up in a world that is strikingly different from their mothers. Unlike their mothers, many of these women played sports in high school because of Title IX. Indeed, this generation of women has the opportunity to play professional basketball in the United State as opposed to just in Europe. A number of these women attend and study at colleges and universities with female presidents. Such women include undergraduate and graduate students at Harvard University, where Drew Gilpin Faust recently became the institution\u27s first female President. Additionally, during the prime years of their careers, this generation of women has seen a black female, Condoleezza Rice, serve as Secretary of State for nearly three years. In November of 2008, these women also may witness the election of the first female President of the United States, Hillary Clinton. In light of these significant gains for women in society, one would expect this group of twenty and thirty-something women to embrace feminism. Yet, many do not

Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity

Justice Clarence Thomas has generated the attention that most Justices receive only after they have retired. He has been boycotted by the National Bar Association, caricatured as a lawn jockey in Emerge Magazine, and protested by professors at an elite law school. As a general matter, Justice Thomas is viewed as a non-race man, a Justice with a jurisprudence that mirrors the Court\u27s most conservative white member, Justice Antonin Scalia­, in other words, Justice Scalia in blackface. This Article argues that, although Justice Thomas\u27s ideology differs from the liberalism that is more widely held by Blacks in the United States, such ideology is deeply grounded in black conservative thought, which has a raced history and foundation that are distinct from white conservatism. In so doing, this Article examines the development of black conservative thought in the United States; highlights pivotal experiences in Justice Thomas\u27s life that have shaped his racial identity; and explicates the development of Justice Thomas\u27s jurisprudence from a black, conservative perspective in cases concerning education and desegregation, affirmative action, and crime

For Whom Does the Bell Toll: The Bell Tolls for Brown?

This review essay analyzes Derrick Bell\u27s provocative new book, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (2004). In Silent Covenants, Professor Bell reviews Brown v. Board of Education, and inquires whether another approach than the one embraced by the Brown decision might have been more effective and less disruptive in the always-contentious racial arena. Specifically, Professor Bell joins black conservatives in critiquing what he describes as a misguided focus on achieving racial balance in schools and argues that the quality of education for minority children, in particular Blacks, would have been better today had the Supreme Court instead decided simply to enforce the equal component of the separate but equal doctrine of Plessy v. Ferguson. In this book review, For Whom Does the Bell Toll: The Bell Tolls for Brown?, Professor Onwuachi-Willig recommends Professor Bell\u27s book as a thought-provoking critique of a decision that has been championed by persons of all races and ethnicities. Although agreeing with Bell\u27s interest-convergence theory, his thorough explanation of historical instances in which policymakers have sacrificed the rights of minorities in the United States, and his arguments concerning white resistance to integration, she disagrees with Professor Bell\u27s conclusion that enforcement of the separate but equal doctrine would have proved more effective than the strategy that civil rights lawyers employed in arriving at Brown. Overall, she argues that Bell\u27s approach to achieving such equality likely would have landed minorities in the same position as they are in today. In so doing, she details Bell\u27s explanation of the promise of Brown and the ways in which its failure is merely a continuation of the disregard for the rights of minorities (except when such rights coincide with the interests of Whites). She then demonstrates how Bell\u27s own interest-convergence theory does not support his criticism of Brown and his endorsement of the separate but equal strategy that he claims ultimately would have served minorities the best. Finally, she explores the potential for coalition building between minorities and poor Whites by examining recent events and occurrences surrounding the debate about the Texas Ten Percent Plan

For Whom Does the Bell Toll: The Bell Tolls for \u3cem\u3eBrown\u3c/em\u3e?

Fifty years after the landmark decision Brown v. Board of Education, black comedian and philanthropist Dr. Bill Cosby astonished guests at a gala in Washington, D.C., when he stated, \u27Brown versus the Board of Education is no longer the white person\u27s problem. (Black people] have got to take the neighborhood back . . . . (Lower economic Blacks] are standing on the comer and they can\u27t speak English.\u27 Cosby, one of the wealthiest men in the United States, complained about lower economic Blacks not holding up their end in this deal. He then asked the question, \u27Well, Brown versus Board of Education: Where are we today? [Civil rights lawyers and activists] paved the way, but what did we do with it?\u27 Cosby\u27s comments drew both criticism and praise from the black community, stirring a raging debate about black elitism and the unfulfilled promise of Brown and forcing a release of the frustration that many minorities feel about its failed promise. In his new book Silent Covenants, Professor Derrick Bell expounds upon this very disappointment, questioning whether another approach than the one embraced by the Brown decision might have been more effective and less disruptive in the always-contentious racial arena (p. 6). In so doing, Bell joins black conservatives in critiquing what he describes as civil rights lawyers\u27 misguided focus on achieving racial balance in schools. The focus, Bell contends, should have been on enforcing the equal component of the separate but equal doctrine of Plessy v. Ferguson, in which the Supreme Court held that state-mandated racial segregation in railroad passenger cars did not violate the Equal Protection Clause of the Fourteenth Amendment so long as the separate facilities were equal

Representative Government, Representative Court? The Supreme Court as a Representative Body

In this Symposium Essay, I propose, as a thinking matter, that we expand the number of Supreme Court justices to increase the representation of various demographic groups on the Court. In Part I, I advance the argument that the Court should be regarded as a demographically representative body of the citizens of the United States, and in Part II, I argue that the Court should be enlarged to ensure diverse representation of all voices on the most powerful judicial body of our nation

This Bridge Called Our Backs: An Introduction to “The Future of Critical Race Feminism”

On April 1, 2005, the U.C. Davis Law Review hosted in its annual symposium an extremely distinguished group of scholars, who addressed central theories of Critical Race Feminism (“CRF”) in a daylong series of inspiring, thought-provoking, cutting-edge, and captivating presentations. The panelists at the symposium — in front of a packed room of students, professors, and local residents — delved into issues as diverse as the unique role of immigrant women in community economic development, societal failure to deal with domestic violence from a multidimensional perspective, the proposal of a contractual good faith claim based on Professors Devon Carbado and Mitu Gulati’s theory of working identity that puts foundational CRF theory into practice, the multidimensional nature of racial segregation as a system of subordination, and the recent ban on the headscarves worn by Islamic women in France. In so doing, they served as a tunnel through which knowledge and ideas concerning the intersection of racism, sexism, heterosexism, classism, and various other oppressions were transmitted

Note, Moving Ground, Breaking Traditions: Tasha’s Chronicle

This Note uses a fictional dialogue to analyze and engage issues concerning stereotypes, stigmas, and affirmative action. It also highlights the importance of role models for students of color and the disparate hiring practices of law firms and legal employers through the conversations and thoughts of its main character, Tasha Crenshaw

What About #UsToo?: The Invisibility of Race in the #MeToo Movement

Women involved in the most recent wave of the #MeToo movement have rightly received praise for breaking long-held silences about harassment in the workplace. The movement, however, has also rightly received criticism for both initially ignoring the role that a woman of color played in founding the movement ten years earlier and in failing to recognize the unique forms of harassment and the heightened vulnerability to harassment that women of color frequently face in the workplace. This Essay highlights and analyzes critical points at which the contributions and experiences of women of color, particularly black women, were ignored in the moments preceding and following #MeToo’s resurgence. Ultimately, this Essay argues that the persistent racial biases reflected in the #MeToo movement illustrate precisely why sexual harassment doctrine must employ a reasonable person standard that accounts for complainants’ different intersectional and multidimensional identities