Symposium: Our Private Obsession, Our Public Sin: Forewor

Rutherford, Jeffrey H.

English

University of Minnesota Law School

Law & Inequality: A Journal of Theory and PracticeVolume 15 | Issue 1 Article 11997Reexamining Race and Racial Identity in theUnited StatesJeffrey H. RutherfordFollow this and additional works at: http://scholarship.law.umn.edu/lawineqLaw & Inequality: A Journal of Theory and Practice is published by theUniversity of Minnesota Libraries Publishing.Recommended CitationJeffrey H. Rutherford, Reexamining Race and Racial Identity in the United States, 15 Law & Ineq. 1 (1997).Available at: http://scholarship.law.umn.edu/lawineq/vol15/iss1/1FOREWORD:Reexamining Race and Racial Identityin the United StatesJeffrey H. Rutherford*It is not uncommon for a person to assume that his or herrace is fixed and predetermined. People often think of themselvesas being born into a certain race: that their race is genetically de-termined and is therefore free of social, economic and cultural in-fluence. While they may recognize that there are social and eco-nomic implications attached to a person's race, they assume thatthese implications are derivative of a prior racial assignment. Inother words, they assume that a person is Black by birth, and soci-ety happens to treat Blacks a certain way. Given this, a reexami-nation of the concept of race is viewed at best as an esoteric en-deavor.A strong argument can be made that race is not simply bio-logical, but that the very notion of race as we have come to under-stand it is socially constructed. The argument that race is a socialconstruct means that race derives its effective existence primarilyfrom political, social and cultural underpinnings. This recognitionat once dissolves some problems, while raising others.'Social constructions of race are part and parcel of our nation'sfoundation. From the institution of slavery and constitutionaliza-tion of the "three fifths" rule, 2 to the currency of the "one drop ofblood" rule,3 the introduction of "racism" 4 as a form of exclusion* Former Research and Programs Director, Institute on Race and Poverty;J.D. 1995, University of Minnesota; B.A. 1989, University of Michigan.1. For example, one significant way race affects people is the area of govern-ment entitlements. This raises the issue of the appropriateness of the governmentrelying on these categories to determine which group deserves what, and who isincluded in that group.2. U.S. CONST. art. I, § 2, cl. 3 ('Representatives and direct Taxes shall be ap-portioned among the several states which may be included within this Union, ac-cording to their respective Numbers, which shall be determined by adding to thewhole Number of free persons... three fifths of all other persons.").3. See, e.g., Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (upholding thestates' authority to segregate whites from persons having "any visible admixture ofblack blood").Law and Inequalityand the use of racial categories in law,5 race has come to affect pro-foundly how we think of ourselves, who our friends are, where welive, what privileges and entitlements we enjoy under the law andwhat life opportunities we expect. Race is, inescapably, central tothe discourses of rights, identity, fairness and community.Whether by design or by accident, our society is organized aroundthe concept of race.6 Race is fundamental to our personal, socialand institutional relationships, in that it is constitutive. Thereforeit always operates and it always transforms us and our relation-ships with others.Racial categories are a manifestation of the social construc-tion of race. 7 The racial categories currently utilized are an ag-glomeration of descriptive efforts-in part the product of linguisticheritage, cultural affiliation and biological references. While ac-tivists and public officials alike attempt to use rigid categories,8race is not an absolute. An individual's sense of "racial identity"can shift over the course of his or her lifetime, as can the labels as-signed by the government and other actors in society.4. See DAVID THEO GOLDBERG, RACIST CULTURE: PHILOSOPHY AND THEPOLITICS OF MEANING 62 (1993) (noting that the term "racism" adopted its modernmeaning in the 1940s).5. A great deal of post-1950s equal protection law has focused on racial cate-gories. See Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1766-67 nn.260-61 (1993) (discussing some high points of the affirmative action debate,which Andrew Hacker described as "an epithet for our time").6. Commentators have argued that whiteness is a form of property protectedby law. See, e.g., id. at 1712-13 (likening "passing' as white with theft); id. at1732-33 (examining the property attributes of alienability and productive capac-ity); id. at 1735-36 (examining the property right of reputation); id. at 1759 &n.224 (appraising the value of whiteness to individuals). Other commentatorshave pointed out that whiteness, although a valuable asset, can be a difficult onefor whites to recognize or admit. See, e.g., Peggy McIntosh, White Privilege: Un-packing the Invisible Knmpsack, HUNGRY MIND REV., Fall 1994, at 12 (identifyingtwenty-six advantages of Ms. McIntosh's white skin, much to her surprise).7. Examples of some racial categories used include: white, Black, AfricanAmerican, Asian, Asian American, Latino and Hispanic. This listing demonstrateshow racial categories are inaccurate descriptions of purportedly biological race. AnAsian (which could include someone with Sri Lankan ancestry or someone withKorean ancestry) is Asian unless they move to the United States. At that point,they switch racial categories from Asian to Asian American. The logic behind suchracial categorization is clearly defunct.8. Racial categories can be used by persons or entities seeking to exclude aracial minority and by persons or entities seeking to assist a racial minority.These categories can both confer a benefit, as in the case of a meaningful affirma-tive action admissions program at a college, and exclude, as in the case of federaltribal definitions that prescribe a means by which a person or community may beclassified as a member of a Native American tribe. See, e.g., Gerald Torres &Kathryn Milun, Translating Yonnondio by Precedent and Evidence: The MashpeeIndian Case, 1990 DuKE L.J. 625, 633-36 (criticizing a finding that the Mashpeelacked standing as a "tribe").[Vol. 15:1REEXAMINING RACEAn investigation of the concept of race, then, is warranted.What can we know about people because of the way that we iden-tify them (or they identify themselves) by race? How do our con-ceptualizations of race implicate and affect our evaluation of soci-ety and our system of democracy? How does or should arecognition of the socially constructed nature of race affect ourperception of racial identity and our attempts to address issues ofracism?The Institute on Race and Poverty sought to answer some ofthese questions.9 The articles in this Symposium developed from aforum sponsored by the Institute on October 14, 1995 at AugsburgCollege in Minneapolis, Minnesota. The goal of this discussionwas to explore the concept of race and its implications for identityand community, for who we are and how we organize ourselvesand others, and for what race means to us individually and collec-tively. Particular to this discussion was the manner in which raceand racial categories intersect with class, politics and communityto determine who are the haves and have-nots, who has access andwho is excluded, what it means to be "raced" and how race func-tions both as a benefit and a burden.The lead article in this Symposium is written by the forum'skeynote speaker, Michael Omi, professor of Ethnic Studies andChair of the Asian American Studies Program at the University ofCalifornia, Berkeley. He addressed the evolution of race as a so-cial construction and its implications for how we organize andidentify ourselves, for how race and racial categories affect and areaffected by politics and power, and for how race and racial catego-ries affect the distribution of resources and entitlements. He is theco-author of Racial Formation in the United States,10 a ground-breaking reexamination of race and racism and their political, in-stitutional and social meanings in the contemporary UnitedStates.At the forum, Professor Omi's presentation was followed by apanel discussion during which John Calmore, Amy Stewart Wellsand john powell responded to Professor Omi's remarks. The paneldiscussed race as a social construction, racial identity, racial seg-regation and integration, and each concept's relationship to class.9. The Institute is a strategic research center located at the University ofMinnesota Law School, Minneapolis, Minnesota. Its goal is to explore ways to ad-dress more accurately and effectively the issues confronting poor communities ofcolor.10. MiCHAEL OMI & HOWARD WINANT, RAcIAL FORMATION IN THE UNITEDSTATES FROM THE 1960S TO THE 1990S (2d ed. 1994).1997]Law and InequalityProfessor Calmore, W. James Ford Fellow and professor of Law atLoyola Law School, has worked on race and poverty issues for overtwenty years as a civil rights litigator, housing advocate and foun-dation program officer. Professor Wells, of the University of Cali-fornia, Los Angeles, is an expert on segregation and integration inprimary and secondary education. She had just completed a two-year study of desegregation efforts in St. Louis, the site of one ofthe nation's largest city-suburb student transfer programs. 11 Pro-fessor powell, Executive Director of the Institute on Race and Pov-erty and professor of Law at the University of Minnesota LawSchool, has spent his career addressing issues confronting poorcommunities of color as a civil rights litigator, housing and com-munity development advocate and human rights activist. He isalso the former National Legal Director of the American Civil Lib-erties Union. For this Symposium, these scholars are joined byNancy Denton, professor of Sociology at the University of NewYork, Albany. Her book, American Apartheid: Segregation and theMaking of the Underclass,12 is widely considered the most influen-tial study of racial residential segregation produced in the lastthree decades.As the authors in this Symposium point out, race and racismare related through the purposeful use of apparent ancestry in theassignment of place or space in society. Residential segregation,as such, has major consequences for a person's life opportunities,affecting and determining access to employment, home equity,education and the personal contacts and networks that help makesocial mobility possible. The authors also demonstrate that thecost to society of racial exclusion has been a festering lack of un-derstanding between the separated groups, a growing segregationof the poor, and the loss of many of our brightest minds, thwartedby poverty and inadequate education.' 3 The authors note that"white" has defined the culture in this country, the norm by whichall are measured. The fact that the United States is highly segre-gated makes it possible for whites to construct explanations for the11. Professor Wells' presentation at the Symposium is not published in thisvolume.12. DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID:SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993).13. This is not to say that majority-minority schools are inherently incapableof teaching, or that minority students need white students in the classroom in or-der to learn. Rather, the problem is that our current system of segregation hasstacked the deck precipitously against the majority-minority schools by limitingaccess to critical resources and opportunities. See e.g., JONATHAN KOZOL, SAVAGEINEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS 149-60 (explaining some of thesacrifices poor urban schools must make).[Vol. 15:1REEXAMINING RACEexclusion of poor people of color without expressly raising the issueof race. For this reason, even the "colorblind" ideal has been usedas an instrument of white oppression.14As the authors note, reexamining the concept of race and howit affects us individually and collectively is an important part ofthe project of transforming the racial structure. This reexamina-tion need not dissolve the mosaic of our different ways of seeing,being and being seen, and it should not derogate into a claim ofsameness. Examining the ways we differ and the ways we affecteach other can increase our appreciation for one another as well aspaint a more accurate portrait of who we are and why. Only by as-sessing and challenging the concept of race and its role in ourlives, relationships and institutions can we bring the United Statesto the realization of its ideals of democracy and justice.14. See john a. powell, An Agenda for the Post-Civil Rights Era, 29 U.S.F. L.REv. 889, 900-01 n.55 (1995) (noting that virtually all Supreme Court opinions in-corporating the concept of "colorblindness" have furthered white interests).1997]

Reexamining Race and Racial Identity in the United States

bepress Legal Repository

https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1358&amp;context=lawineq

Reexamining Race and Racial Identity in the United States

Abstract

Similar works

Full text

Available Versions

University of Minnesota Law School

bepress Legal Repository