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

AuthorJonathan Kahn
PositionJ.D., Ph.D. Professor of Law and Biology at Northeastern University School of Law
Pages187-229
The Legal Weaponization of Racialized DNA: A New
Genetic Politics of Affirmative Action
JONATHAN KAHN*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. RALPH TAYLORS 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 TAYLORS 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 glassworld 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 merelysocial, (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 WONT 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 1744 (2009); JOHN P. JACKSON &
NADINE M. WEIDMAN, RACE, RACISM, AND SCIENCE: SOCIAL IMPACT AND INTERACTION 163204 (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 169224 (2017)
[hereinafter Race on the Brain].
10. Jonathan Marks, Great Chain of Being, in ENCYCLOPEDIA OF RACE AND RACISM 6873 (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

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