The Gray Area: Exploring the Black-white Binary’s Exploitation of the Multi-racial Identity

• Published date: 01 January 2020
• Date: 01 January 2020

The Gray Area: Exploring the Black-White Binary’s

Exploitation of the Multi-Racial Identity

LANDON MYERS*

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

I. A LESSON IN HISTORY: THE BLACK-WHITE BINARY. . . . . . . . . . . . . . . 62

II. THE STATE’S EXPLOITATION OF THE MULTI-RACIAL IDENTITY . . . . . . . . 65

III. STRUGGLING TO SIMULTANEOUSLY IDENTIFY AS MULTI-RACIAL AND

EQUITABLY ACCESS THE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

A. Multi-Racial Individuals’ Interest in Self-Identif‌ication . . . . . . . . 67

B. The Insuff‌iciency of the Current Equal Protection Approach . . . . . 68

1. An Example of the Equal Protection Clause’s Failure . . . . . 70

IV. THE POSSIBLE SOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

A. Step 1: A Change to the Census . . . . . . . . . . . . . . . . . . . . . . . . 73

B. Step 2: A Change in the Lens . . . . . . . . . . . . . . . . . . . . . . . . . 74

C. Will There be Drawbacks to a Distinct Multi-Racial Category? . . . 74

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

INTRODUCTION

As the United States developed as a nation, much of its history has been inundated

with polarizing racial categories that have resulted in widespread racism. Even before

the signing of the Declaration of Independence, America played host to various ver-

sions of subordination, ranging from indentured servitude

1

and convict leasing

2

to

becoming the largest contributor of many of today’s deep-seeded tensions through-

out the nation and its people: slavery.

3

The common unifying factor that each

instance has contributed to is the creation of the black-white binary.

4

Because this bi-

nary has become so ingrained in conversations about race in America, the binary

* Administrative Editor, GEO. J. L. & MOD. CRIT. RACE PERSP. (Vol. 12); J.D., Georgetown University

Law Center (2020); B.S., University of Florida (2017). Special thanks to Professor Sean Hill for providing an

engaging forum to explore this topic and providing me with meaningful guidance and suggestions as I wrote

this piece. © 2020, Landon Myers.

1. Indentured servants are individuals who were unwilling or unable to pay for their own passage to

America and subsequently became bond servants to a colonial master who, in exchange, paid for their cost of

passage. ABBOT EMERSON SMITH, COLONISTS IN BONDAGE: WHITE SERVITUDE AND CONVICT LABOR IN

AMERICA, 1607 - 1776 3 (1947).

2. “The heart of the system, though, lay not in the brute fact of incarceration, but in the leasing out of con-

victs as laborers.” Ian F. Haney Lopez, Post-Racial Racism: Racial Stratif‌ication and Mass Incarceration in the

Age of Obama, 98 CAL. L. REV. 1023, 1041 (2010).

3. See Raymond T. Diamond; Robert J. Cottrol, Codifying Caste: Louisiana’s Racial Classif‌ication Scheme

and the Fourteenth Amendment, 29 LOY. L. REV. 255, 259 (1983).

4. See Rachel F. Moran, Love with a Proper Stranger: What Anti-Miscegenation Laws Can Tell Us About the

Meaning of Race, Sex, and Marriage, 32 HOFSTRA L. REV. 1663, 1664 (2004).

61

frames the conversation around the conventions of black and white, even using this

approach when referring to the experiences of those of Hispanic, Chinese, Asian/Pacif‌ic

Islander, or any other racial or ethnic descent.

5

Although several classif‌ications fall out-

side he binary, I intend to focus on the racial classif‌ication that developed alongside the

binary but is oftentimes left out of the conversation: the multi-racial identity.

Recently, there have been increased conversations discussing multi-racial individu-

als and their ability (or inability) to benef‌it from the full and equal protections under

the law. Currently, the ways in which individuals self-identify are intertwined with

the state’s monitoring of race and the distribution of assistance based on race. The

implementation of Jim Crow laws,

6

anti-miscegenation laws,

7

and the “one-drop

rule”

8

have all reinforced the backbone notions of the black-white binary and the

dominant, yet detrimental philosophies of race within American culture. As a result,

these harmful laws and practices have interfered with the development of the multi-

racial identity. Therefore, a multi-step approach is necessary to combat the obstruc-

tion of the maturation of the multi-racial identity. Crucial to this approach is the

idea that although the state’s interest in race (and doctrine based on race) and an

individual’s interest in race are related interests, they are not identical, and the dis-

tinction between them must be made apparent.

In this paper, I will f‌irst explain how the black-white binary came into existence. I

will then demonstrate how the development and solidif‌ication of that binary led to the

exploitation of multi-racial individuals. In the third section, I will introduce the strug-

gles multi-racial individuals face when trying to self-identify and argue how current

legal classif‌ications of race and judicial interpretation of the Equal Protection Clause fail

to afford equitable rights to multi-racial people. And f‌inally, I will offer a solution to

this dilemma that comports with the goals of the multi-racial movement as a whole,

including moments in history that severely diminished the possibility of a multi-racial

category from forming. This solution includes the creation of a legally recognized

multi-racial identity and a push for the courts to consider racial, social, and historical

factors when reviewing anti-discrimination claims. The implementation of this solution

would allow multi-racial individuals to put forth their own narrative when bringing a

claim in a court of law and be afforded equal protection under the law. Additionally, I

believe this resolution will benef‌it multiple minority groups, not just multi-racial indi-

viduals, and help to advance race relations as a whole within American society.

I. A LESSON IN HISTORY: THE BLACK-WHITE BINARY

The black-white binary underpins race conversations in America. As Professor

Juan Perea puts it, the “black-white binary” is the concept that race in America only

revolves, or almost exclusively revolves, around two distinct racial categories: black

5. See generally Juan F. Perea, The Black/White Binary Paradigm of Race: The “Normal Science” of American

Racial Thought, 10 LA RAZA L.J. 127 (2015).

6. Diamond and Cottrol, supra note 3, at 264-65.

7. Jenifer L. Bratter & Heather A. O’Connell, Multiracial Identities, Single Race History: Contemporary

Consequences of Historical Race and Marriage Laws for Racial Classif‌ication, 68 Social Science Research 102, 102 (2017).

8. F. JAMES DAVIS, WHO IS BLACK? 5 (1991).

62 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 12:61