The re-emergence of race as a biological category: The societal implications-Reaffirmation of race

Iowa Law Review

Volumn 94, Issue 5, 2009, Pages 1547-1587

  Johnson, Alex M ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 70349931724     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (253)

1. The conference was convened on April 18, 2005, and was sponsored by the University of Minnesota's Consortium on Law and Values in Health, Environment and the Life Sciences with the University of Minnesota's Center for Bioethics. The conference was co-sponsored by the Office of Minority and Multicultural Health at the Minnesota Department of Health.
2. More than twenty-five articles were presented and discussed at the conference.
3. See generally Susan M. Wolf, Are We Making Progress in the Debate over Racial and Ethnic Categories in Biomedical Research?, 37 NATURE GENETICS 789 (2005) (summarizing the content of the conference speeches).
4. See generally WILLIAM JULIUS WILSON and RICHARD P. TAUB, THERE GOES THE Neighborhood: Racial, Ethnic, and Class Tensions in Four Chicago Neighborhoods and THEIR MEANING FOR AMERICA (2006) (investigating the ethnic, racial, and class dynamics of the city of Chicago, which has a large Latino and African-American population).
5. Although Barack Obama is widely regarded as the first African-American president, given today's racial taxonomy, Barack Obama is more accurately characterized as biracial; he has a white mother and a black father. Of course, under the "one drop of blood" rule, discussed infra at notes 46-49 and accompanying text, it is clear that American society classifies Obama as black.
6. See Jessica Yellin et al., U. S. Celebrates as President Obama Vows New Era, CNN. COM, Jan. 20, 2009, http://www.cnn.com/2009/POLITICS/01/20/obama. inauguration/index.html (discussing the country's celebration of its "first African-American president").
7. See generally Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401 (1993) [hereinafter Johnson, Bid Whist];
8. Alex M. Johnson, Jr., The New Voice of Color, 100 Yale L. J. 2007 (1991);
9. Alex M. Johnson, Jr., Racial Critiques of Legal Academia: A Reply in Favor of Context, 43 STAN. L. REV. 137 (1990).
10. As I've previously written: Race continues to exist as a classification mechanism because of the highly visible and easily identifiable features of color, hair, and bone-what Professor Appiah characterizes as the "grosser" morphology of an individual. Elsewhere, this classification scheme has been characterized as "racialism," which posits "that there are heritable characteristics," including, but not limited to, skin color, bone structure, and hair, "possessed by members of our species, which allow us to divide them into a small set of races, in such a way that all the members of these races share certain traits and tendencies with each other that they do not share with members of any other race."
11. Alex M. Johnson, Jr., Destabilizing Racial Classifications Based on Insights Gleaned from Trademark Law, 84 Cal. L. Rev. 887, 911 (1996) [hereinafter Johnson, Destabilizing Racial Classifications] (quoting KWAME ANTHONY APPIAH, IN MY FATHER'S HOUSE: AFRICA AND THE PHILOSOPHY OF CULTURE 36 (1992)).
12. Id.; see also Alex M. Johnson, Jr., How Race and Poverty Intersect to Prevent Integration: Destabilizing Race as a Vehicle to Integrate Neighborhoods, 143 U. Pa. L. REV. 1595, 1650-55 (1995) [hereinafter Johnson, How Race and Poverty Intersect] (advocating supplanting racial categories with ethnicity to eliminate the stigmatic effects of race and embrace the positive characteristics of ethnicity).
13. My observation is not unique: The finding that the demographic group called "African American" has a higher prevalence of prostate cancer, obesity and hypertension is not to be denied. This does not mean, however, that this is a "racial" phenomenon, as disease is probably due to gene-environment interaction and not linked to the physical traits assumed to covary with this population.
14. (Pubitemid 41103833) S. O. Y. Keita, R. A. Kittles, C. D. M. Royal, G. E. Bonney, P. Furbert-Harris, G. M. Dunston and C. N. Rotini, Conceptualizing Human Variation, NATURE GENETICS SUPPLEMENT, Nov. 2004, at S17, S19. (Pubitemid 41103833)
15. One of the leading pancreatic-cancer risk factors is being African-American (others include being diabetic, developing pancreatitis, family history of pancreatic cancer, increasing age, being male, and smoking). Nat'l Cancer Inst., What You Need to Know About Cancer of the Pancreas: Pancreatic Cancer: Who's at Risk?, http://www.cancer.gov/cancertopics/wyntk/pancreas/page4 (last visited July 14, 2009).
16. Carrie Johnson and Rob Stein, Ginsburg Undergoes Surgery for Cancer, WASH. POST, Feb. 6, 2009, at A1.
17. And when I say no matter what level of attainment, I mean it One of the richest women in the world had what she has described as a black experience. I am of course speaking of that noted and extremely wealthy entertainer Oprah Winfrey who discovered that you can be very rich and very famous, but to a Hermes storeowner you are just a black woman trying to shop at a store that you probably cannot afford. This incident has been referred to as "Oprah's "Crash" moment'-a reference to the film in which racism unfolds in complex, subtle and surprising interactions." Robin Givham, Oprah and the View from Outside Hermes' Paris Door, WASH. POST, June 24, 2005, at C1.
18. To be more accurate and consistent with my thesis, I think it fair to say that I find it plausible that one who perceives himself or herself as black, and is also perceived by others as black, suffers the micro-aggressions that, when internalized, can lead to a higher rate of hypertension. In this sense, then, the fact that "blacks" may have a higher rate of hypertension is not a function of their race, but the function of race, (the effect of race) as socially constructed, in our society. As I hope to demonstrate, those very tilings that cause blacks, for example, to be grouped together (their grosser morphological traits), results in their treatment in society, and their internalization of that treatment results in hypertension. It is not their race that predisposes them to hypertension, but their discriminatory treatment that is predicated on their grosser morphological traits. I cannot believe that there is anything in their genetic makeup that predisposes "blacks" to have a higher rate of hypertension, because there is no identifiable genetic definition of a black person, only a societally constructed, morphologically based definition. Consider the following observation:
19. The causes of health disparities among groups are not well understood, but genetic explanations are frequently the default position for a variety of reasons, including a tradition of biological determinism. Although genes probably play a role, we must realize that some environmental influences can be so subtle and occur so early in life as to be missed, thereby facilitating acceptance of a genetic explanation that is probably false. The fetal programming and early childhood insult hypotheses for the origins of adult disease may have a role in explaining health disparities.
20. Keita et al., supra note 10, at S19 (citations omitted). For further discussion of this
21. see infra notes 134-37 and accompanying text
22. In the all-important study that lead to the approval of the drug BiDil, which is targeted for heart failure in black patients and is regarded as the first racially targeted drug (for more discussion see infra note 33 and accompanying text), the race of the participants was selfidentified or referential.
23. See Robert Temple and Norman L. Stockbridge, BiDil for Heart Failure in Black Patients: The U. S. Food and Drug Administration Perspective, 146 ANNALS INTERNAL MED. 57, 57 (2006).
24. Furthermore, are these data accurate today given the racial classification scheme put in place by the Office of Management and Budget for the 2000 Census, in which there are six racial categories and individuals are allowed to check more than one box, indicating they identify themselves as multiracial or belonging to two or more races? As a result, Census 2000 contains "15 check box response categories and 3 write-in areas on the Census 2000 questionnaire" which means that "63 possible combinations of the six basic racial categories exist, including six categories for those who report exactly one race, and 57 categories for those who report two or more races." U. S. Census Bureau, Racial and Ethnic Classification Used in Census 2000 and Beyond, http://www.census.gov/population/www/socdemo/race/ racefactcb.html (last visited Mar. 30, 2009). Finally, assuming the subjects themselves do not identify their racial identity, who does and how accurate is that identification?
25. For example, in the black community, there is a well-known phenomenon of "passing" pursuant to which a person who would be characterized as black by the "one drop of blood" rule, but not by phenotype, passes as a white person instead of acknowledging and identifying him or herself as black. As I've previously written: This is perhaps the reason that "passing" was viewed so harshly by whites at the time when racial differences were reified and legalized. The phenomenon of passing had the effect of undermining the mark of whiteness. It allowed blacks to produce a product, a visibly white person when viewed phenotypically, that had the effect of undermining the product of whiteness, which was defined as the absence of blackness or any black ancestors. In a world in which passing existed liberally, the ultimate outcome would be the denigration of whiteness as a product because whites could no longer claim that they were different or distinct from blacks if (1) they could be produced by black parents or (2) if they could not be differentiated from the offspring of black parents.
26. Johnson, Destabilizing Racial Classifications, supra note 8, at 919-20 citations omitted.
27. Although there is no biological definition of race, race as a social construction encourages people to identify themselves as members of a racial group and to be identified as members of that racial group by other members of the racial group and those external to the group.
28. See infra notes 53-58 and accompanying text.
29. As one article notes: Some argue that the comparatively high rate of several rare genetic diseases in people of Ashkenazi Jewish descent (or in people of other ancestries such as Norwegian or sub-Saharan African) justifies using race as a variable in science and medicine. When the example of Ashkenazi Jewish people is used, the argument wrongly conflates race with a religious/cultural group whose Ashekenazi Jewish ancestors were a population in the narrow sense of that term-a group living within a relatively small geographical area and in which reproduction was largely restricted to pairings within the group. People of Ashkenazi Jewish descent have been routinely classified as members of the White race for most of the 20th century. Rather than providing an argument for the salience of race in research or medicine, this example suggests that historical events affecting small groups of people produced medically important patterns of genetic variation within races and mat small populations within races will often be the more relevant units of interest.
30. (Pubitemid 40131554) Pilar Ossorio and Troy Duster, Race and Genetics: Controversies in Biomedical, Behavioral, and Forensic Sciences, 60 Am. PSYCHOLOGIST 115, 118 (2005) (citation omitted).
31. According to the American Sickle Cell Anemia Association: Sickle cell anemia is caused by an error in the gene that tells the body how to make hemoglobin. The defective gene tells the body to make the abnormal hemoglobin that results in deformed red blood cells. Children who inherit copies of the defective gene from both parents will have sickle cell anemia.... The error in the hemoglobin gene results from a genetic mutation that occurred many thousands of years ago in people in parts of Africa, the Mediterranean basin, the Middle East, and India. A deadly form of malaria was very common at that time, and malaria epidemics caused the death of great numbers of people. Studies show that in areas where malaria was a problem, children who inherited one sickle hemoglobin gene and who, therefore, carried the sickle cell trait[] had a survival advantage. Unlike the children who had normal hemoglobin genes, they survived the malaria epidemics[,]... grew up, had their own children, and passed on the gene[] for sickle hemoglobin.
32. See Am. Sickle Cell Anemia Ass'n, What Is Sickle Cell Anemia?, http://www.ascaa.org/what-is-sickle-cell-anemia.asp (last visited Mar. 30, 2009).
33. See supra notes 13-14 and accompanying text.
34. My diesis, which is discussed infra, is that race, as socially constructed, is even more pervasive than most would believe. Its characteristics are so ingrained in our society that it mimics (perhaps creates) a biological category.
35. I leave aside for the moment the issue of why "normal," or the baseline, is always white in situations like this and assume for the sake of argument that that fact is uncontested.
36. See infra note 32 and accompanying text (discussing the release of BiDil).
37. For a discussion of those who occupy the bottom strata of our society
38. see generally Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C. R.-C. L. L. REV. 323 (1987).
39. This a complex question beyond the ken of the author. However, one should note that only African-Americans were treated as property and legally enslaved and later, under the guise of Plessy v. Ferguson, suffered the indignities of "Separate but Equal."
40. See infra Part III (discussing the societal cost of using race in biomedical research).
41. After all, it is still true that blacks continue to live in communities separate and segregated from whites, perhaps creating their own form of Ashkanazi Jewish communities
42. see supra note 19, geographically isolated from the larger societal masses, Indeed, I have no problem asserting or believing that, for example, segregation continues to exist with respect to housing patterns in most, if not all, major urban areas.
43. See Douglas S. Massey and Nancy A. Denton, Hypersegregation in U. S. Metropolitan Areas: Black and Hispanic Segregation Along Five Dimensions, 26 DEMOGRAPHY 373, 373 (1989) (demonstrating that blacks are the only racial group to suffer extreme segregation in the five dimensions measured-evenness, exposure, clustering, centralization, and concentration). The fact that people who are phenotypically categorized as black choose to, or are forced by a confluence of factors, to live in segregated neighborhoods is well-demonstrated and makes some sense given this society's history and the prevalence of racism and what has been characterized as white privilege.
44. See, e.g., Johnson, How Race and Poverty Intersect, supra note 9, at 1609-11 (arguing that poor whites choose not to live with poor blacks because of the relative preference and privilege they attain in the maintenance of their white identity, which is reinforced by segregated neighborhoods). Although my article was written ten years ago with the hope that segregation and segregated neighborhoods would ultimately be eliminated, my colleague, Myron Orfield, tells me that residential segregation is getting worse, not better.
45. See, e.g., Myron Orfield, Land Use and Housing Policies to Reduce Concentrated Poverty and Racial Segregation, 33 FORDHAM Urb. L. J. 877 (2006) ("Urban sprawl tends to exacerbate residential racial segregation. ").
46. For an exhaustive analysis of the issues raised by the Food and Drug Administration's ("FDA") approval of BiDil that acknowledges the benefits to be gained by that approval as well as the costs created thereby
47. see generally Johnathan Kahn, How a Drug Becomes "Ethnic": Law, Commerce, and the Production of Racial Categories in Medicine, 4 Yale J. HEALTH POL'Y L. and ETHICS 1 (2004).
48. As discussed in more detail below, I believe ethnicity to be very different from race; the conflation of the two terms bothers me somewhat See infra notes 126-28 and accompanying text
49. For further discussion of this
50. see supra notes 19-20 and accompanying text.
51. See Maura Lerner, Heart Drug for Blacks Gets OK, STAR TRIB. (Minneapolis), June 24, 2005, at A1. Specifically, Lerner noted:
52. BiDil, a heart drug developed by a University of Minnesota professor, has become the first pill ever approved for a single racial group.
53. The Food and Drug Administration on Thursday (June 23, 2005] formally approved BiDil to treat Blacks with congestive heart failure. The decision, some say, will usher in a controversial new era in medicine, casting a spotlight on the racial and ethnic differences among patients. Id.
54. Nicholas Wade reported the following in 2005: In a finding that is likely to sharpen discussion about the merits of race-based medicine, an Icelandic company says it has detected a version of a gene that raises the risk of heart attack in African-Americans by more than 250 percent.
55. The company, DeCode Genetics, first found the variant gene among Icelanders and then looked for it in three American populations, in Philadelphia, Cleveland and Atlanta.
56. Among Americans of European ancestry, the variant is quite common, but it causes only a small increase in risk, about 16 percent.
57. The opposite is true among African-Americans. Only 6 percent of African-Americans have inherited the variant gene, but they are 3.5 times as likely to suffer a heart attack as those who carry the normal version of the gene........
58. Geneticists agree that the medically important issue is not race itself but the genes that predispose a person to disease. But it may often be useful for physicians to take race into account because the predisposing genes for many diseases follow racial patterns.
59. Nicholas Wade, Genetic Find Stirs Debate on Race-Based Medicine, N. Y. TIMES, Nov. 11, 2005, at A16.
60. See infra notes 97-103 and accompanying text (discussing my theory to destabilize race, which I first addressed in Johnson, How Race and Poverty Intersect, supra note 9, and later fully explicated in Johnson, Destabilizing Racial Classifications, supra note 8).
61. See Alex M. Johnson, Jr., Knots in the Law School Pipeline for Students of Color: The LSAT Is Not the Problem and Affirmative Action Is Not the Answer 57 (Aug. 7, 2008) (unpublished manuscript, on file with the Iowa Law Review) [hereinafter Johnson, Law School Pipeline].
62. Even though I advocate for and favor the destabilization of racial identification as a long-term solution to the problems of race and racialism in American society, I recognize that the immediate elimination of race (including the elimination of Affirmative Action) from consideration in remedying social problems would do more harm than good and result in the maintenance of white hegemony that was achieved through inappropriate and wrongful means.
63. It is obviously a short step to claim that the genetic differences that predispose one group to be treated with one drug, for example BiDil, while the other group is treated with a different drug, will inevitably lead some to claim that there are other differences between the groups caused by their differential genetic makeups. I predict that those alleged differences will not be beneficial for members of minority groups like African-Americans.
64. See infra notes 74-86 and accompanying text (discussing stereotypes and their harmful use as it pertains to minorities).
65. Brown v. Board of Education, 347 U. S. 483 (1954). For an excellent discussion of both the direct and indirect effects produced as a result of the Brown decision
66. see MICHAEL J. Klarman, Brown v. Board of Education and the Civil Rights Movement 105-48 (2007). For a personal reflection of Brown's impact on my own educational history
67. see generally Alex M. Johnson, Jr., Brown 's Ambiguous Legacy, in LAW TOUCHED OUR HEARTS 171 (Mildred W. Robinson and Richard J. Bonnie eds., 2009). 39. For further discussion of the Constitutional Principle of Equality, see infra note 60 and accompanying text 40. For further discussion of the moral principle of equality, see infra note 60 and accompanying text.
68. Given that I hope my audience includes biomedical researchers who are unfamiliar with my earlier work, it bears repeating in this context.
69. Although the reference to harmful categorizations should be self-evident, I claim that the existing racial categories upon which biomedical research is based are obsolete in light of the multiple racial classification scheme promulgated by OMB Directive 15 for the 2000 Census, which allows for multiple classifications. Existing NIH policy for reporting race and ethnicity data in biomedical and other research is based on what was previously the conventional definition of race with five categories of race: white, black or African-American, Asian, Native American or American Indian, and Hispanic or Latino.
70. See Nat'L Inst. HEALTH, NIH POLICY ON Reporting Race and Ethnicity Data: Subjects in Clinical Research (2001), available at http://grants.nih.gov/grants/ guide/notice-files/NOT-OD-01-053.html (providing data on race and ethnicity). For further discussion of this issue
71. see infra notes 115-20 and accompanying text (discussing these radical and ethnic classifications).
72. For an excellent historical exegesis of societal mores at the time Brown was decided
73. see generally MICHAEL J. KLARMAN, From Jim Crow TO CIVIL RIGHTS: The SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004).
74. I say "almost" because I hazard a guess that whites also believed that "Negroes" were athletically superior to whites, were more musically inclined, etc., once again proving that there are positive as well as negative stereotypes.
75. See infra notes 74-86 and accompanying text (discussing racial stereotyping).
76. See Klarman, supra note 43, at 368.
77. As I have explained elsewhere, the "one drop of blood" rule was a product of racism and sexism:
78. The confluence of racism and sexism, forged by the unique role that slavery played in the political and economic development of America, eventually led to the creation of the "one drop of blood" rule. Pursuant to this rule, an off-spring of an interracial union between a black and a white were relegated to the status of black, thus allowing white slave owners to preserve the balance of power over the slave community.
79. Johnson, Destabilizing Racial Classifications, supra note 8, at 890 (citation omitted).
80. Under the "one drop of blood" rule, any individual with one black ancestor was assigned the status of black even if all of the other ancestors were white. Hence, white as a racial category can actually be viewed as the absence of black. Accordingly, society categorized individuals as either one hundred percent white or black-there was no in-between for individuals of mixed ancestry.
81. See Paul Finkleman, The Crime of Color, 67 TUL. L. Rev. 2063, 2110 (1993).
82. Many mistakenly believe that the "one drop of blood" rules that were endemic in the South were enacted during or immediately after Reconstruction following the Civil War. However, the Southern "one drop of blood" rules are the products of the early twentieth century. Tennessee adopted the first "one-drop" statute in 1910, and several other Southern states, including Louisiana, Texas, and Mississippi, soon followed.
83. See STATES LAW ON RACE AND COLOR (Pauli Murray ed., 1997) (laying out various race-based state laws).
84. As I have pointed out elsewhere: The seventh and last category is the ubiquitous and previously discussed "one drop of blood" rule unique to the United States and its treatment of blacks. As compared to the other classification schemes detailed above, this dichotomous racial construct is particularly offensive because it elevates whiteness or race over ethnicity as a unifying feature of the dominant group. In this way, the American scheme manages to constrain all those who are not purely white, either visibly, through ancestry, or both, to a subordinate status as a minority even though, in reality, no majority group exists.
85. Johnson, Destabilizing Racial Classifications, supra note 8, at 900-01.
86. The term "phenotype" is used to indicate the amalgamation of observable traits mat an individual possesses. JAMES C. KING, THE BIOLOGY OF RACE 20 (rev. ed. 1981).
87. Neil Gotanda, A Critique of Out Constitution is Color-Blind, 44 STAN. L. REV. 1, 24 (1991).
88. About a decade ago, a popular press item cogently (and I believe correctly) summarized the scientific debate about genetic and racial identification as follows:
89. About 70 percent of cultural anthropologists, and half of the physical anthropologists, reject race as a biological category.... Empirical evidence, woven into a theoretical whole, is what matters. The threads of the argument against the standard racial categories:
90. Genes: In 1972, population biologist Richard Lewontin of Harvard University laid out the genetic case against race. Analyzing 17 genetic markers in 168 populations such as Austrians, Thais and Apaches, he found that there is more genetic difference within one race man there is between one race and another. Only 6.3 percent of the genetic differences could be explained by the individuals' belonging to different races. That is, if you pick at random any two "blacks" walking along the street, and analyze their 23 pairs of chromosomes, you will probably find their genes have less in common than do the genes of a random "white" person. Last year the Human Genome Diversity Project used 1990s genetics to extend Lewontin's analysis. Its conclusion: genetic variation from one individual to another of the same "race" swamps the average differences between racial groupings. The more we learn about humankind's genetic differences, says geneticist Luca Cavalli-Sforza of Stanford University, who chairs the committee that directs the biodiversity project, the more we see that they have almost nothing to do with what we call race.
91. Sharon Begley, Three Is Not Enough: Surprising New Lessons from the Controversial Science of Race, NEWSWEEK, Feb. 13, 1995, at 67.
92. But see Wade, supra note 33 (claiming that there are genetic differences between whites and blacks that do support the development and use of medicines targeted to members of individual races).
93. This is not to say that there is unanimity of opinion that racial categories should no longer be used in biomedical research. On the contrary, this is the seminal issue in the debate: whether the value of continuing to use race in biomedical research outweighs the costs. However, to be clear, even those in favor of the continued use of race in biomedical research do not allege that there is a strong biological or genetic basis for differentiating amongst individuals on the basis of race when those racial categories are based on the individual's grosser, morphological traits.
94. Associate Professor of Law and Bioethics, Pilar Ossorio, and sociologist Troy Duster discuss the connection between race and genetics:
95. Recent population genetics studies and related media reports have produced confusion and a contentious debate within the natural sciences regarding the nature of human races and the role of race in biomedical research and clinical practice. Some prominent scientists have argued that race is not biologically real, that it is such a flawed, imprecise concept that it should not be used in research or medicine. Other equally prominent leaders in the fields of population genetics and clinical medicine have argued that retaining racial categories is important because (a) they can serve as useful proxies for ancestry and (b) using racial categories will improve research quality or decrease cost by reducing irrelevant background variability between cases and control.
96. Ossorio and Duster, supra note 19, at 115 (citations omitted).
97. Alex M. Johnson, Jr., The Destruction of the Holistic Approach to Admissions: The Pernicious Effects of Rankings, 81 IND. L. J. 309, 335 (2006) [hereinafter Johnson, Pernicious Effects of Rankings]. A quote from Professor Kwame Anthony Appiah's work both summarizes and buttresses this observation:
98. The evidence in the contemporary biological literature is, at first glance, misleading. For despite a widespread scientific consensus on the underlying genetics, contemporary biologists are not agreed on the question whether there are any human races. Yet, for our purposes, we can reasonably regard this issue as terminological. What most people in most cultures ordinarily believe about the significance of "racial" difference is quite remote from what the biologists are agreed on.... Every reputable biologist will agree that human genetic variability between the populations of Africa or Europe or Asia is not much greater than that within those populations, though how much greater depends, in part, on the measure of genetic variability the biologist chooses.... Apart from the visible morphological characteristics of skin, hair, and bone, by which we are inclined to assign people to the broadest racial categories-black, white, yellow-there are few genetic characteristics to be found in the population of England that are not found in similar proportions in Zaire or in China, and few too (though more) that are found in Zaire but not in similar proportions in China or in England. All this, I repeat, is part of the consensus.
99. APPIAH, supra note 8, at 35 (citations omitted). For a more in-depth discussion of this issue
100. see also Johnson, Destabilizing Racial Classifications, supra note 8, at 911.
101. See Thomas Sowell, Race and Culture: A World View 6 (1994) (arguing that race is a "social phenomenon with a biological component");
102. see also, Christopher A. Ford, Administering Identity: The Determination of "Race" in Race-Conscious Law, 82 CAL. L. Rev. 1231, 1239 (1994) (arguing that a person's racial identity is largely a social-rather than a biological-construct);
103. Masatoshi Nei and Arun K. Roychoudhury, Genetic Relationship and Evolution of Human Races, in 14 EVOLUTIONARY BIOLOGY 1, 44 (Max K. Hecht et al. eds., 1982) (discussing race and morphology). Furthermore, as Thomas Sowell notes:
104. The term "race" was once widely used to distinguish the Irish from the English, or the Germans from the Slavs, as well as to distinguish groups more sharply differing in skin color, hair texture, and the like. In the post-World War II era, the concept of "race" has more often been applied to these latter, more visibly different, categories and "ethnicity" to different groups within the broader Caucasian, Negroid, or Mongoloid groupings.... Neither race nor related concepts can be used in any scientifically precise sense to refer to the people inhabiting this planet today, after centuries of genetic intermixtures. The more generic term, race, will be used here in a loose sense to refer to a social phenomenon with a biological component, rather than make a dichotomy whose precision is illusory.
105. Sowell, supra, at 6.
106. See John Berendt, How We R. I. P., WASH. POST, June 15, 2008, at BW5 (reviewing Marilyn Yalom, The American Resting Place: Four Hundred Years of History Through Our Cemeteries and Burial Grounds (2008)). Book reviewer John Berendt noted:
107. Segregation by race, religion and ethnicity has been reflected in cemeteries up to the present day, some of it benign, some not. Jews could not be buried in Massachusetts before 1840;
108. private cemeteries in California could refuse to accept blacks and Asians until 1959. The names of two African American cemeteries in Charleston, S. C., tell a tale of black-on-black prejudice. One is the Brown Fellowship Graveyard for Light-Skinned Blacks, consecrated in 1794, which barred membership and burial rights to anyone who did not have a light complexion and "blowing in the wind hair." The other, founded by a man who was rejected by Brown's fellowship in 1843, is Thomas Small's Graveyard for the Society of Blacks of Dark Complexion. Id.
109. See generally Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 HARV. L. Rev. 1003 (1995) (persuasively arguing that race discrimination is a product of group status production, which is predicated on maintaining the existing racial hierarchy with whites as the dominant elite and blacks as subordinates in American society);
110. infra note 107 and accompanying text.
111. SOWELL, supra note 55, at 6;
112. see also Johnson, Bid Whist, supra note 7, at 1414-20 (arguing that African-Americans have forged their unique "nomos," or community, as a result of their racial history and that community is the transmitter of community norms and values that deserve recognition and protection when integrated into mainstream, i.e., white, society);
113. Alex M. Johnson, Jr., The Underrepresentation of Minorities in the Legal Profession: A Critical Race Theorist's Perspective, 95 MICH. L. REV. 1005 (1997) (arguing that racial differences cause African-American attorneys to have a different group identity than white male attorneys, resulting in the underrepresentation of minorities in various aspects of the legal profession).
114. The Declaration of Independence states: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
115. The Deciaration of Independence para. 2 (U. S. 1776).
116. The second strand of integrationism is the Philosophy of Integration. It is premised on the notion of assimilation of minority groups into the hegemony of the majoritarian norms. For further discussion of the Philosophy of Integration
117. see infra notes 64-70 and accompanying text. The third strand of integration, which is often conflated with the Philosophy of Integration, is the Process of Integration or intermixture of the races with "all deliberate speed" as articulated in the Browm decision. The Process of Integration requires those being assimilated to occupy or inhabit the same physical or geographic space of the dominant group in percentage to their population of society. This Process of Integration is a precursor and necessary requirement for the articulation of a principled basis for Affirmative Action. For a discussion of Affirmative Action and its nexus in the Process of Integration
118. see infra notes 67-69 and accompanying text.
119. The fourth strand of integration is the "norm of equality" or the Moral Principle of Equality, which is closely related to the Constitutional Principle of Equality. The Moral Principle of Equality requires that everyone should be treated equally irrespective of race or other immutable characteristics or attributes. The Moral Principle of Equality is not the same as the Constitutional Principle of Equality, because one can mandate equal treatment notwithstanding the fact that one can simultaneously hold the view that those being treated equally are not equals. An example of this difference would be the view that some hold for women versus men-that women have or possess different attributes than men (or vice versa), yet women and men should be treated as equals under the law in our society. The Moral Principle of Equality is related to, but not synonymous with, the Process of Integration, which I denominate as "intermixture," which was the remedy sought and mandated in Brown v. Board of Education.
120. See infra notes 65-68 and accompanying text. The process of integration requires that members of racial groups achieve proportional representation or presence in meaningful facets of American society. On the other hand, proportional representation does not equate with treating all people equally. For an in-depth discussion of the four strands of integration, including the Constitutional Principle of Equality, the Moral Principle of Equality, the Philosophy of Integration, and the Process of Integration
121. see generally Alex M. Johnson, Jr., Why Integration Has Failed American Society Fifty Years After Brown v. Board of Education unpublished manuscript, on file with the Iowa Law Review.
122. The presidential race of 2008, which pitted an African-American, Senator
123. See, e.g., Tony Norman, Rendell Interjects Race into Pa. Race, PITT. POST-GAZETTE, Feb. 12, 2008, at A2 (reporting Governor Rendell's claim that certain Pennsylvania voters "are not ready to vote for an African-American candidate" simply because he is an African-American).
124. The fact that a black man (actually, a biracial man, see supra note 5) was elected President of the United States is proof that race is becoming less relevant in today's society. It is interesting, however, to note that the conservative, white candidate, John McCain, received a majority of the white votes cast in the election. Timothy Noah, What We Didn't Overcome, SLATE, Nov. 10, 2008, http://www.slate.com/id/2204251 (noting that President Obama received only forty-three percent of the total white votes cast).
125. See infra notes 71-72 and accompanying text.
126. Supra notes 43-49 and accompanying text.
127. Robert Cover defines "nomos" as a community's "normative universe," the "commonalities of meaning that make continued normative activity possible." For an in-depth discussion of "nomos" and what the term entails
128. see Robert M. Cover, The Supreme Court 1982 Term Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983). Of course, for "nomos" to have any meaning, one must define the community whose "commonalities of meanings" or values are addressed. Moreover, one must define and describe the normative activity of that community. For further commentary on Cover's notion of "nomos, "
129. see Frank I. Michelman, The Supreme Court 1985 Term Foreword: Traces of Self-Government, 100 HARV. L. REV. 4 (1986).
130. Johnson, Bid Whist, supra note 7, at 1431.
131. Elsewhere, I have argued that Brown's ultimate progeny is United States v. Fordice, 505 U. S. 717 (1992), which found discrimination in Mississippi's post-secondary education system through its continued support of historically black colleges and universities ("HBCU") and required those HBCU institutions in Mississippi to be "integrated" (merged) into the predominantly white colleges instead of (as they should have) adequately and equally funding the publicly funded HBCUs that existed in Mississippi at that time.
132. See Johnson, Bid Whist, supra note 7, at 1406-09. Fordice sounded the death knell of these colleges.
133. For a discussion of African-American ethnicity
134. see infra notes 117-120 and accompanying text.
135. See supra notes 65-68 and accompanying text.
136. The fact mat a majority of society has embraced the Constitutional Principle of Equality does not mean, however, that society has achieved (for want of a better term) equality between the races when measured by important metrics like educational attainment, quality of health and life expectancy, accumulation of wealth and the intergenerational transfer of wealth, or the attainment of test scores on high-stakes standardized tests like the Law School Admission Test ("LSAT"). For a discussion of the differential scores attained by whites and blacks on the LSAT
137. see Johnson, Pernicious Effects of Rankings, supra note 54, at 332-34;
138. Johnson, Law School Pipeline, supra note 35. No one has successfully made the case that the harms created by legitimized racism have been remedied in our society.
139. The exception to this is Affirmative Action (which, as a policy, I believe should be capitalized), which does award an entitlement to an individual based on his/her racial identification. Interestingly enough, the opponents to Affirmative Action claim that their opposition to Affirmative Action ("reverse discrimination" is the pejorative term they use) or racial preferences is premised on a belief that such a policy or preferences violates the norm of equality that is the philosophical basis for integrationism, i.e., that everyone be treated equally irrespective of race or other immutable characteristics or attributes. For further discussion of this issue
140. see Johnson, Pernicious Effects of Rankings, supra note 54, at 334-35.
141. See, e.g., Richard A. POSNER, Sex AND Reason 140 (1992) (discussing differences between whites and blacks regarding their sexual behavior);
142. Jan NEDERVEEN PIETERSE, WHITE on Black: Images of Africa and Blacks in Western Popular Culture 172-87 (1992) (discussing how whites have historically sexualized and eroticized black culture).
143. Michael S. Moore, The Interpretive Turn in Modem Theory: A Turn for the Worse?, 41 STAN. L. REV. 871, 872 (1989). Indeed, much of the philosophical discussion that follows is drawn from Professor Moore's article which provides an excellent vehicle for an examination of a complex philosophical debate and that is easily accessible to lawyers and law professors.
144. As discussed infra, a legal realist is not to be confused with a metaphysical realist. Quite the contrary. A legal realist is badly misnamed according to Professor Moore
145. see supra note 73, at 872, and is the legal equivalent of an antirealist. Although this conflation of terms is confusing, it is easy to see how legal scholars who embrace an antirealist philosophy are characterized as legal realists because that characterization is due to the method of interpretation of rules, statutes, and texts employed by these so-called, but badly misnamed, legal realists. 75. Id. at 878. 76. Id. 77. Id. at 879 n. 24. 78. Id. at 879 (citation omitted). 79. Moore, supra note 73, at 888.
146. Id. at 880-81 (citations omitted).
147. A succinct definition of Legal Positivism can be found in Brian Leiter, Positivism, Formalism, Realism, 99 COLUM. L. REV. 1138, 1140-42 (1999) (book review), in which he states: Positivism is a theory of law, i.e., about the nature of law. Such a theory aims to explain certain familiar features of societies in which law exists, and it proposes to do so by analyzing the "concept" of law. Conceptual analysis, of course, is not a mere exercise in lexicography.... Conceptual analysis is simply the primary tool that the Hartian Positivist employs to this end.... Positivist theories of law are distinguished by their commitment to the following two broad theses:
148. Social Thesis. What counts as law in particular society is fundamentally a matter of social fact
149. Separability Thesis. What the law is and what the law ought to be are separate questions.
150. Id. (footnotes omitted). The foundational basis of Legal Positivism appears in H. L. A. Hart's classic article, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958).
151. Moore, supra note 73, at 878-79.
152. Id. at 888-89 (citations omitted).
153. See Johnson, Destabilizing Racial Classifications, supra note 8, at 888-89 (contending that the U. S. system of racial classification is uniquely biracial and fixed when compared to other multiracial countries and societies).
154. Indeed, I have used the debate over whether to add a multiracial category to the Census as a vehicle to reexamine racial identification in order to destabilize racial identification.
155. See Johnson, Destabilizing Racial Classifications, supra note 8, at 889. One can, however, cynically and plausibly suggest that the debate to add a multiracial box to the Census is simply an attempt by those multi-or bi-racial individuals who would be placed in the "black box" pursuant to the one-drop rule to escape that fete and the associated burdens. Id. This escape would be achieved by creating a new box or racial category in recognition of the fact that the one-drop rule precludes their inclusion in the white box. For a fuller explication of this diesis
156. see id.
157. The racial Legal Realist believes that race and all of the attributes associated with that racial group are immutable and innate. This may involve the application of some positive, but mostly negative, stereotypes associated with an individual based on that individual's membership in the subject racial group. For a discussion of stereotypes and individual versus group based discrimination
158. see supra notes 74-86 and accompanying text.
159. I have argued: Race continues to exist as a classification mechanism because of the highly visible and easily identifiable features of color, hair, and bone-what Professor Appiah characterizes as the "grosser" morphology of an individual. Elsewhere this classification scheme has been characterized as "racialism," which posits "that there are heritable characteristics," including, but not limited to, skin color, bone structure, and hair, "possessed by members of our species, which allow us to divide them into a small set of races, in such a way that all the members of these races share certain traits and tendencies with each other that they do not share with members of any other race.
160. Johnson, Destabilizing Racial Classifications, supra note 8, at 911 (citations omitted).
161. These essential attributes that cause one to be classified as black and which all blacks by definition possess, can be divided into two types. The first and most obvious is phenotype, or what Professor Appiah refers to as the grosser morphology of individuals, which is discussed supra note 54 and accompanying text. The second, subtler type of essential attributes ascribed to blacks (and logically their omission from those who are categorized as white) are what I have elsewhere denominated "racial traits":
162. Although I have made no exhaustive attempt to compile the racial traits that comprise the trademark of "black" or "blackness," a few characteristics readily come to mind to define what I mean when I characterize the racial categorization of a person of color as black. First and foremost is the notion that blacks are intellectually inferior to whites due to some innate trait that is tied to their race ("intellectual inferiority attribute"). Somewhat related and almost compensatory is the notion that what is lacking in intellectual endowments is more than made up in the athletic endowments of blacks ("athletic superiority attribute")....
163. Connected or associated with the athletic superiority attribute is the attribution to blacks of sexual promiscuity and/or physical endowment of superior male sexual organs ("sexual superiority attribute"). In addition, indolence or laziness historically has been associated with black racial identification ("indolent inferiority attribute")...
164. The last attribute that I assign to the trademark of black or blackness is perhaps the most recent to develop and the most complicated to explain. A confluence of factors has created the view that blacks are more violent than whites and engage in a disproportionate amount of criminal behavior ("violence superiority attribute").
165. Johnson, Destabilizing Racial Classifications, supra note 8, at 908-09 (citations omitted).
166. See supra notes 63-70 and accompanying text (discussing Brown's role in the production of the Constitutional Principle of Equality).
167. For further discussion
168. see infra Part III.
169. "Twenty years" is a rough estimate of when the Constitutional Principle of Equality was first embraced. Although I believe no one, including me, can point to an exact date when the Constitutional Principle of Equality was socially attained, it is beyond doubt that said principle was not in vogue thirty years ago (1978) or forty years ago (1968). I do recall joining the Virginia faculty in 1984 as the only tenure-track black professor and all that it entailed-both positive and negative. I also recall a visit at the University of Texas in 1988-1989, and I can state with certainty that the Constitutional Principle of Equality had not been attained in Austin, Texas at that time. Recent visits convince me that race relations have changed in Austin, so I can attest that the Principle of Equality has been attained in Austin.
170. See Kahn, supra note 29, at 2-3;
171. Ossorio and Duster, supra note 19, at 15-16.
172. See supra note 32 and accompanying text.
173. See, e.g., Kahn, supra note 29, at 4 (describing the dangers of using racial categories in creating drugs);
174. Ossorio and Duster, supra note 19, at 116 (using BiDil as an example of the use of race in scientific research);
175. Temple and Stockbridge, supra note 15, at 61 (supporting the use of BiDil targeted for black patients);
176. Osagie Obasogie, One Step Forward One Step Back, S. F. CHRON., July 5, 2005, at B5 (decrying the approving of BiDil for the harms it will cause);
177. Press Release, U. S. Food and Drug Admin., FDA Approves BiDil Heart Failure Drug for Black Patients (June 23, 2005), available at http://www.fda.gov/bbs/topics/NEWS/2005/NEW01190.html (describing the FDA approval of BiDil).
178. By that I mean, as far as I know, no one is proposing legislation requiring or precluding the use of race in medical research. Strictly speaking, there is no debate over the legality of the use of race in medical research and no argument is made herein that such use is either required or should be made expressly illicit.
179. See Johnson, Destabilizing Racial Classifications, supra note 8, at 912-13 (describing biological race categories);
180. see also RUTH COLKER, Hybrid: BISEXUALS, MULTIRACIALS, and Other Misfits Under American Law 233-48 (1996) (arguing against using "bipolar" categories);
181. Tanya Kateri Hernandez, "Multiracial" Discourse: Racial Classifications in an Era of Color-Blind Jurisprudence, 57 Md. L. Rev. 97, 98 (1998) (describing the rise of "multiracial" race category);
182. Patrick F. Lincoln, Thinking Outside of the Box: The Multiracial Category and Its Implication for Race Identity Development, 44 How. L. J. 43, 49-53 (2000) (describing the "multiracial box" debate);
183. Naomi Zack, American Mixed Race: The U. S. 2000 Census and Related Issues, 17 Harv. BlackLetter L. J. 33, 37-41 (2001) (arguing that science does not support racial categories);
184. Kenneth E. Payson, Comment, Check One Box: Reconsidering Directive No. 15 and the Classification of Mixed-Race People, 84 Cal. L. Rev. 1233, 1240 (1996) (defining race using social, rather than biological, constructs).
185. See supra notes 84-90 and accompanying text (discussing the realist approach to racial identification).
186. Elsewhere I have defended the use of Affirmative Action as a temporary and transitory vehicle to eradicate societal differences that are themselves the product of racism. Hence, I view Affirmative Action as the remedy for racism and not as racism.
187. See Johnson, Pernicious Effects of Rankings, supra note 54, at 328-43 (offering justifications for Affirmative Action).
188. Quite simply, the principle is embodied in our Declaration of Independence, "[t]hat all men are created equal" (expanded in this context to include women as well). THE Declaration of Independence para. 2 (U. S. 1776).
189. See supra note 59-60 and accompanying text (defining the Constitutional Principle of Equality).
190. See supra note 8 (discussing race as a classification mechanism).
191. Racialism must be contrasted with aracialism, which I define as treating one's racial identification like hair color or eye color; something that is interesting and informative but upon which nothing of substance turns.
192. See Richard A. Wasserstrom, Racism, Sexism, and Preferential Treatment: An Approach to the Topics, 24 UCLA L. REV. 581, 586 (1977) (noting that to be black is to be a member of a different group, while eye color is an irrelevant category).
193. See supra note 61 and accompanying text (discussing the ascendency of the "Constitutional Principle of Equality," which is the belief that all people are created equally and that there are no real differences based on race or grosser morphological traits).
194. Johnson, How Race and Poverty Intersect, supra note 9, at 1641.
195. Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1743-44 (1993);
196. see also, Frances L. Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship, 74 CORNELL L. Rev. 993, 1024 n. 129 (1989) (arguing that under the current political, economic, and cultural system, whites "overwhelmingly control power and material resources").
197. See McAdams, supra note 57, at 1029 ("[I]ndividuals care particularly for esteem within socially connected groups. Even without a central authority, individuals tend to provide esteem to those who contribute to the welfare of such groups, and this process of esteem allocation facilitates wider social norms that bring about further cooperation. ").
198. Id.
199. Id. at 1082 (arguing that the recognition of differences based on phenotype (race) creates group identification and status that is enhanced by lowering the status of individuals possessing different phenotypical traits).
200. In another article I have argued that a racial-classification scheme based on phenotype has error costs that undermine the very classification scheme given mat individuals who are black (i.e., light-skinned blacks) may "pass" for whites.
201. See Johnson, How Race and Poverty Intersect, supra note 9, at 1645-47 (discussing how blacks can "pass" for whites).
202. Elsewhere I have argued mat being black, or blackness, is associated with several negative characteristics such as alleged intellectual inferiority, increased criminal conduct, sexual promiscuity, and athletic superiority, to name a few.
203. See Johnson, Destabilizing Racial Classifications, supra note 8, at 908-09 (analyzing the trademark of blackness).
204. For example, under the "rule of recognition" defined by Professor Gotanda, "[a]ny person whose Black-African ancestry is visible is Black." Gotanda, supra note 51, at 24.
205. Conversely, pursuant to the "[r]ule of descent: (a) Any person with a known trace of African ancestry is Black, notwithstanding mat person's visual appearance; or, stated differently, (b) the offspring of a Black and a white is Black." Id.
206. For further discussion of the doctrine of "shade confusion, "
207. see generally Jeffrey M. Samuels and Linda B. Samuels, Color Trademarks: Shades of Confusion, 83 TRADEMARK REP. 554 (1993).
208. See Johnson, Destabilizing Racial Classifications, supra note 8, at 926 (describing efforts by blacks to upgrade the quality of the mark through a campaign that embraced the norm that "Black is Beautiful").
209. Intepretivist discrimination is discrimination that is the product of visual or other inputs that allows the interpreter to assign attributes based on the classification she ascribes. Id. at 928.
210. See U. S. Census Bureau, Racial and Ethnic Classifications Used in Census 2000 and Beyond, http://www.census.gov/population/www/socdemo/race/racefactcb. html (last visited Mar. 31, 2009). The sixth category added to the traditional five (American Indian or Alaskan Native, Asian, Black or African-American) was Native Hawaiian or Other Pacific. Id.
211. Perhaps more importantly, for the first time, the 2000 Census allowed individuals to check more than one box in identifying their race resulting in more than sixty-three possible combinations of the six basic racial categories. Id.
212. Elsewhere I have detailed the benefits that will flow from the use of ethnicity rather than race. In brief, ethnicity is self-defined instead of defined by others. As such, ethnic identification can be shed and transformed when necessary. Ethnicity, like race, is socially constructed, but it is constructed as a result of shared values and cultures, and through the internalization of social norms rather than ascribed to by others. For an in-depth discussion of the benefits I contend would flow from an embrace of ethnicity and a rejection of race
213. see Johnson, Destabilizing Racial Classifications, supra note 8, at 936-39.
214. As I thought further about the issue, I came to the conclusion that biomedical researchers, like just about everyone else in American society, are constrained in their approach to this issue by their own internalization and understanding of race. By starting from a definitional construct premised on current norms of racial identification that are seriously flawed and biased, biomedical researchers and others are building upon and adding to a racial dynamic that is reified and dichotomous rather than flexible and mutable like ethnicity.
215. See Johnson, Destabilizing Racial Classifications, supra note 8, at 931.
216. Id. at 932.
217. Michael Omi and Howard Winant, Racial Formation in the United States: From THE 1960s TO THE 1980S 14-15 (1994).
218. The etymology of the word "race" is worth noting: The term 'race' probably derives from the old French word rasse and the Italian word razza, which roughly translate into breed and strain. It is difficult to say exactly when the term was first used to refer to differences in appearance between human populations. Some scholars believe that the term became widespread in Europe in the sixteenth and seventeenth centuries.
219. Michael Bamshad et al., Deconstructing the Relationship Between Genetics and Race, 5. NATURE Reviews Genetics 598, 599 box 1 (citations omitted).
220. Although, it is true that American society was one of the last societies to enslave lawfully another group of people based solely on their geographic origin and the color of their skin.
221. In his 1775 book On the Natural Varieties of Mankind, Joham Blumenbach defined the following five races: the Caucasian, or white, race, which included most European nations and those of Western Asia; the Mongolian, or yellow, race, which included China and Japan; the Ethiopian, or black, race occupying most of Africa (except North Africa), Australia, Papua and other Pacific Islands; the American, or red, race comprising the Indians of the North and South America; and the Malayan, or brown, race, which included the islands of the Indian Archipelago. The use of these "traditional" terms is often context-dependent, and therefore controversial; for example, a person who is described as black in one society might be considered non-black in another.
222. Bamshad et al., supra note 121, at 599 box 1.
223. See McAdams, supra note 57, at 1007, 1023-33 (arguing that, in order to succeed, groups create intra-group status rewards to induce individual members to contribute to the group's welfare-this status motivation causes group members to seek to raise their own statuses by lowering the status of other groups-and that this status-production model explains, to a significant degree, the existence of racial prejudice from an economic perspective).
224. See generally David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards, 79 GEO. L. J. 1619 (1991) (arguing mat employment discrimination laws should be designed to give employers incentives to hire and promote members of minority groups in proportion to their representation in the relevant population).
225. See supra note 65 for a definition of "nomos."
226. See Johnson, Bid Whist, supra note 7, at 1415.
227. Id.
228. This argument for destabilization of racial categories via the use of ethnicity is presented in great detail in Johnson, Destabilizing Racial Classifications, at 894.
229. Scientists are already obtaining benefits from using ethnicity in their studies. However, in their attempt to do so they are inaccurately referring to ethnicity as race as a product of their own acculturation into American society, which is divided along racial as opposed to ethnic lines.
230. Johnson, Destabilizing Racial Classifications, supra note 8, at 894.
231. See generally Johnson, Bid Whist, supra note 7 (contending that ethnicity rather than race should be embraced to achieve racial equality);
232. Johnson, Destabilizing Racial Classifications, supra note 8, at 894 (arguing that destabilizing hard-line racial classifications in favor of multiracial ethnicity identifications favors cultural identity and heritage over the negative implications of race).
233. On the contrary, race is something that I and others have argued that others ascribe to individuals as opposed to being defined by the individual who is the subject of the classification. Indeed, psychological literature reveals that people categorize other people based primarily on three visual referents: gender, age, and race.
234. See Susan Fiske, Social Cognition and Social Perception, 44 ANN. REV. PSYCHOL. 155, 166 (1993).
235. See supra notes 13-14 and accompanying text (detailing the micro-aggressions that blacks face in America).
236. Although elsewhere I have defended the use of the term African-American instead of black to refer to people of color who were once referred to as Negro
237. see Johnson, Destabilizing Racial Classifications, supra note 8, at 888-89 n. 6, I use black throughout this Article because that appears to be the primary nomenclature used in the field of biomedical research.
238. See Appendix A.
239. Robert Schwartz notes: After 400 years of social disruption, geographic dispersion, and genetic intermingling, there are no alleles [pair of genes] that define the black people of North America as a unique population or race. Nevertheless, the prevalence of certain alleles does vary among populations. In some cases, these variant genes originated as mutations that proved advantageous under particular environmental conditions. In central and western Africa, for example, several independent mutations in the B-globin gene gave rise to different sickle hemoglobins, each with a distinct geographic distribution and phenotype. These mutations spread through the population because they protect against malaria; they were dispersed in Greece, Saudi Arabia, Turkey, Iran, and elsewhere by migration and slavery.
240. Robert S. Schwartz, Racial Profiling in Medical Research, 344 New Eng. J. MED. 1392, 1393 (2001).
241. I think a medical study should compare the medical status of black children adopted by white, middle-class parents with black children raised in the inner-city. A longitudinal study focusing on these two groups will, I hope, demonstrate that it is nurture rather than nature that causes blacks to have differential medical outcomes when compared to whites in American society.
242. Pamela Sankar and Mildred K. Cho, Toward a New Vocabulary of Human Genetic Variation, 298 SCI. 1337, 1337 (2002) (internal endnotes omitted).
243. Professor Raj Bhopal distinguishes ethnicity from race.
244. See Raj Bhopal, Glossary of Terms Relating to Ethnicity and Rule: For Reflection and Debate, 8 J. EPIDEMIOLOGY and Community HEALTH 441, 441-42 (2004), available at http://jech.bmj.com/cgi/reprint/58/6/441.
245. Raj Bhopal, University of Edinburgh, Current Proposals for Responsible Use of Racial and Ethnic Categories; Proposal 3, Address to the Division of Community Health Services, University of Edinburgh (on file with the Iowa Law Review).
246. Id.
247. (Pubitemid 41728262) Charles Agyemang, Raj Bhopal, Marc Bruijnzeels, Negro, Black African, African Caribbean, African American, or What? Labelling African Origin Populations in the Health Arena in the 21st Century, 59 J. EPIDEMIOLOCY and COMMUNITY HEALTH 1014, 1017 (2005), available at http://jech.bmj.com/cgi/reprint/59/12/1014.pdf. (Pubitemid 41728262)
248. Id. at 1014.
249. Id. at 1017.
250. Id. at 1014.
251. Id.
252. Margaret A. Winker, Measuring Race and Ethnicity: Why and How? 292 JAMA 1612, 1613 (2004) (footnotes omitted).
253. See generally Massey and Denton, supra note 28 (demonstrating that blacks are extremely segregated).