The Legal Weaponization of Racialized DNA: A New Genetic Politics of Affirmative Action

• Author: Jonathan Kahn
• Position: J.D., Ph.D. Professor of Law and Biology at Northeastern University School of Law
• Pages: 187-229

The Legal Weaponization of Racialized DNA: A New

Genetic Politics of Affirmative Action

JONATHAN KAHN*

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I. RALPH TAYLOR’S STORY, PART ONE: USING DNA TO CLAIM

MINORITY STATUS 190

A. The New Role of DNA Testing in Determining Legal Racial

Categories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

II. GAMING THE SYSTEM WITH DNA (OR NOT). . . . . . . . . . . . . . . . . . . 195

. . . . . . . . . .

III. RALPH TAYLOR’S STORY, PART TWO: USING GENETICS TO CHALLENGE

THE FOUNDATIONS OF RACE-BASED AFFIRMATIVE ACTION 199

A. A New Genetic Politics of Affirmative Action? . . . . . . . . . . . . . . 202

. . . . . . . . . . . . . .

B. Judge Garza and Fisher v. University of Texas 205

. . . . . . . . . . . . . . . . . . . .

C. Garza’s Approach to Race Proliferates 209

D. The Liberal Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

IV. BEYOND AFFIRMATIVE ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

. . . . . . . . . . . . . . . .

V. LEGALLY RACIALIZING INDIGENEITY VIA GENETICS 217

. . . . . . . . . . . . . . . . . . . . . . . . .

A. The Indian Child Welfare Act 218

B. All Biopolitics is Local: Race, Genetics, and the Case of Plavix in

Hawai’i. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

CONCLUSION: THE TACTICAL DEPLOYMENT OF RACE AND GENETICS IN A

POST-GENOMIC ERA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

* J.D., Ph.D. Professor of Law and Biology at Northeastern University School of Law. I would like to

thank Patricia Williams, Aziza Ahmed, Kara Swanson, and Osagie Obasogie for their helpful comments on

earlier drafts of this article. © 2022, Jonathan Kahn.

187

INTRODUCTION

A white man in Washington State tries to use the results of his DNA ancestry test

to claim access to minority set-aside contracts.

1

Christine Willmsen, For Years He Identified as White. Now He’s Using A DNA Test to Claim Minority

Status for His Business, NEWS TRIB. (Sept. 23, 2018), https://www.thenewstribune.com/news/business/

article218754000.html.

A conservative federal circuit court

judge in Texas invokes the work of an anti-racist evolutionary biologist to argue that

since race is not genetic then racial categories are arbitrary and cannot be used as legit-

imate legal classifications for affirmative action programs.

2

A Democratic state attor-

ney general employs correlations between race and the frequency of certain genetic

variations affecting drug response to build a fraud case against a major pharmaceuti-

cal corporation.

3

Press Release, David Louie, Hawaii Department of the Attorney General, Attorney General Files Suit

Against Manufacturers and Distributors of the Prescription Drug Plavix (Mar. 19, 2014), http://ag.hawaii.

gov/wp-content/uploads/2014/01/News-Release-2014-09.pdf.

And a candidate for the 2020 Democratic presidential nomination

hires a MacArthur award-winning population geneticist to show the world that her

ancestry includes Native American roots.

4

Annie Linskey, Elizabeth Warren Releases Results of DNA Test, BOS. GLOBE (Oct. 15, 2018), https://

www.bostonglobe.com/news/politics/2018/10/15/warren-addresses-native-american-issue/YEUaGzsefB0gPBe2Abm

SVO/story.html.

In these cases and others, genetic knowl-

edge is increasingly being weaponized to make legal and political claims to racial

identity in ways that have profound implications for race and the law.

The relationship between race, biology, and law has a long and fraught history in

America.

5

In this latest chapter, we see some troubling and perhaps counter-intuitive

developments. On the one hand, new genetic technologies are being used by conser-

vatives to leverage the typically liberal understanding of race as a social construction

to attack policies aimed at ameliorating racial inequality. On the other, liberals are

making assertions about how race relates to genetics to pursue claims that, even as

they might seem to further progressive goals, are also reinforcing discredited notions

that race is genetic. In this “through the looking glass” world of genetic politics, con-

servatives are embracing the idea of race as a social construct while liberals are making

claims that reinforce the idea of race as a genetic construct.

What forces are enabling or reinforcing this dynamic? At its most basic, it appears

that conservatives are, in effect, arguing that if race is “merely” social, (that is if it is

not genetic, as the liberals claim), then it is not real. As such, it is an arbitrary category

that should not and cannot provide a legitimate basis for policies such as affirmative

action. It should be noted that this new approach stands in stark contrast to conserva-

tive efforts mounted to undermine affirmative action in the 1990s by the likes of

Richard Herrnstein and Charles Murray, whose controversial and influential book,

1.

2. Fisher v. Univ. Texas, 631 F.3d 213, 264 n.22 (5th Cir. 2011) (Garza, J., concurring).

3.

4.

5. The literature on this is voluminous. For some representative work, see, e.g., IAN HANEY LÓPEZ, WHITE

BY LAW: THE LEGAL CONSTRUCTION OF RACE (1997); ARIELA GROSS, WHAT BLOOD WON’T TELL: A

HISTORY OF RACE ON TRIAL IN AMERICA (2009); DOROTHY ROBERTS, FATAL INVENTION: HOW SCIENCE,

POLITICS, AND BIG BUSINESS RE-CREATE RACE IN THE TWENTY-FIRST CENTURY (2011); JONATHAN

KAHN, RACE IN A BOTTLE: THE STORY OF BIDIL AND RACIALIZED MEDICINE IN A POST-GENOMIC AGE

(2012) [hereinafter Race in a Bottle].

188 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 13:187

The Bell Curve, argued that inherent genetic differences could explain racial gaps in

IQ scores (among other metrics).

6

In the aftermath of the Supreme Court’s reaffir-

mation of affirmative action in the 2003 case of Grutter v. Bollinger,

7

it became evi-

dent that approaches grounded in assertions of inherent genetic difference among

the races had their limits. And so, some conservatives turned to the idea of race as a

social construct as opposed to a genetic trait as a means to carry forward the long run-

ning crusade against any form of racial preference or amelioration.

Liberals, in contrast, embraced advances in modern genetics and have looked to

observed correlations between varying frequencies of certain genetic variations (or al-

leles) and socially identified racial population groups to make claims in a manner

that, ironically, reinforce the very notions of genetic race that the liberal consensus

has been trying to dismantle since World War II.

8

American liberals often fall prey to

the seductive lure of neat technological fixes for complex and messy social problems

that leads them time and time again to appeal to science to resolve thorny problems

of racial justice.

9

In this strange apparent inversion of liberal and conservative stances

on race and genetics, we might do well to think back to the 19

th

century when many

abolitionists held firm to the Biblical idea of monogenesis for all the world’s races

while many of the leading evolutionary scientists of the day embraced polygenetic

theories of the different descent of racial groups often in the service of justifying slav-

ery.

10

Race and genetics make for strange political bedfellows in different eras.

Here we have a diverse array of actors vigorously constructing, contesting, and

deploying conceptions of the relation between race and genetics to make legal and

political claims. Understandings of race in relation to genetics are far from settled.

This article explores how actors from both the political left and the political right

have resorted to weaponizing racialized DNA to achieve their goals. This indicates

that articulating race as a social construct in itself is no guarantee of a racially progres-

sive agenda and employing genetic data to pursue seemingly racially progressive goals

is no guarantee against reinforcing the dangerous idea that the human races are ge-

netically distinct.

This article unfolds as a diagnostic exploration of this problem situated in the con-

text of the post-genomic era since the completion of the Human Genome Project in

2003. It aims less to suggest specific policies or legal solutions than to describe and

6. RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS

STRUCTURE IN AMERICAN LIFE (1995).

7. Grutter v. Bollinger, 539 U.S. 306 (2003).

8. For post-war discussions of the relation between race and genetics, see JENNY REARDON, RACE TO THE

FINISH: IDENTITY AND GOVERNANCE IN AN AGE OF GENOMICS 17–44 (2009); JOHN P. JACKSON &

NADINE M. WEIDMAN, RACE, RACISM, AND SCIENCE: SOCIAL IMPACT AND INTERACTION 163–204 (2004).

9. On the seductive lure of technological fixes for racial problems, see JONATHAN KAHN, RACE ON THE

BRAIN: WHAT IMPLICIT BIAS GETS WRONG ABOUT THE STRUGGLE FOR RACIAL JUSTICE 169–224 (2017)

[hereinafter Race on the Brain].

10. Jonathan Marks, Great Chain of Being, in ENCYCLOPEDIA OF RACE AND RACISM 68–73 (Patrick L.

Mason ed., 2d ed. 2008); TERENCE KEEL, DIVINE VARIATIONS: HOW CHRISTIAN THOUGHT BECAME

RACIAL SCIENCE (2018).

2021] THE LEGAL WEAPONIZATION OF RACIALIZED DNA 189