The dangerous law of biological race

Fordham Law Review

Volumn 82, Issue 1, 2013, Pages 21-80

  Bridges, Khiara M ^a  

^a USA   (United States)

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EID: 84887363374     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (191)

1. Eduardo Bonilla-Silva, Praise for DOROTHY ROBERTS, FATAL INVENTION: HOW SCIENCE, POLITICS, AND BIG BUSINESS RE-CREATE RACE IN THE TWENTY-FIRST CENTURY (2011) (inside flap of dust jacket).
2. Susan Seligson, BU Takes on Cancer: Racial Disparities, BU TODAY (Apr. 9, 2012), http://www.bu.edu/today/2012/bu-takes-on-cancer-racial-disparities/.
3. See Deborah A. Bolnick, Individual Ancestry Inference and the Reification of Race As a Biological Phenomenon, in REVISITING RACE IN A GENOMIC AGE 70, 73 (Barbara A. Koenig, Sandra Soo-Jin Lee & Sarah S. Richardson eds., 2008) (observing that while "traditional notions of race" are variable, "most describe racial groups as equivalent, biologically distinct units").
4. 261 U. S. 204 (1923).
5. Professor Haney López's work on Thind is probably the most definitive account of the case. See generally IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1997).
6. Thind, 261 U. S. at 208 ("[T]he words 'white persons'... are words of common speech and not of scientific origin. ").
7. See, e.g., Saint Francis Coll. v. Al-Khazraji, 481 U. S. 604, 613 (1987) (calling the program at issue racially discriminatory "whether or not it would be classified as racial in terms of modern scientific theory") ;
8. Morrison v. California, 291 U. S. 82, 85 (1934) ("White persons, within the meaning of the statute, are members of the Caucasian race, as Caucasian is defined in the understanding of the mass of men. " (internal quotation marks omitted)).
9. See Osagie K. Obasogie, The Return of Biological Race? Regulating Innovations in Race and Genetics Through Administrative Agency Race Impact Assessments, 22 S. CAL. INTERDISC. L. J. 1, 6 (2012) (describing biological race as the foundation of eugenic policies and noting the devastation that such policies had on vulnerable, racialized populations) ;
10. Statement on "Race", AM. ANTHROPOLOGICAL ASS'N (May 17, 1998), http://www.aaanet.org/stmts/racepp.htm (describing the Holocaust as a demonstration of biological race at its "logical" conclusion).
11. See Dorothy E. Roberts, Is Race-Based Medicine Good for Us?: African American Approaches to Race, Biomedicine, and Equality, 36 J. L. MED. & ETHICS 537, 542-43 (2008) (noting that "a renewed belief in inherent racial differences provides an alternative explanation for persistent gross inequities in blacks' health and welfare despite the end of de jure discrimination" and observing that "[p]lacing the responsibility for ending health disparities on individual health decisions or on taking race-based medications will weaken the sense of societal obligation to fix systemic inequities").
12. See, e.g., Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C. R.-C. L. L. REV. 1 (1994) ;
13. Luis Angel Toro, "A People Distinct from Others": Race and Identity in Federal Indian Law and the Hispanic Classification in OMB Directive No. 15, 26 TEX. TECH L. REV. 1219 (1995).
14. E.g., Natasha L. Minsker, "I Have A Dream-Never Forget": When Rhetoric Becomes Law, a Comparison of the Jurisprudence of Race in Germany and the United States, 14 HARV. BLACKLETTER L. J. 113, 126 (1998) (arguing that, at present, the Court's opinions "reflect[] the notion that race is socially constructed and in no way based in biology") ;
15. Christian B. Sundquist, The Meaning of Race in the DNA Era: Science, History and the Law, 27 TEMP. J. SCI. TECH. & ENVTL. L. 231, 256 (2008) (claiming that federal courts have rejected biological definitions of race and instead look for "racial markers" like self-identification, language, experiences, and physical traits).
16. In an important article, Donald Braman, an anthropologist and legal scholar, departs from the literature by arguing that the Court has never accepted the idea that biological race exists. See generally Donald Braman, Of Race and Immutability, 46 UCLA L. REV. 1375 (1999).
17. 539 U. S. 558, 575 (2003) (striking down Texas's criminal sodomy law because, among other reasons, "[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres").
18. 429 U. S. 190, 199 (1976) (holding that intermediate scrutiny is the appropriate level of review for laws that contain a gender classification because "[i]n light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it [is] necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sexcentered generalization actually comported with fact").
19. See Khiara M. Bridges, When Pregnancy Is an Injury: Rape, Law, and Culture, 65 STAN. L. REV. 457, 458 (2013) (discussing the dialectical relationship between law and culture) ;
20. see also Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 HASTINGS L. J. 805, 839 (Richard Terdiman trans., 1987) ("It would not be excessive to say that [law] creates the social world, but only if we remember that it is this world which first creates the law.").
21. WINTHROP D. JORDAN, WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD THE NEGRO, 1550-1812, at 3-7 (1968) (describing the circumstances that first brought Europeans to Africa in the sixteenth century and noting that most descriptions that Europeans gave of the Africans they encountered focused on their physical bodies and how they differed from those of the observers) ;
22. see also Nicholas Hudson, From "Nation" to "Race": The Origin of Racial Classification in Eighteenth-Century Thought, 29 EIGHTEENTH-CENTURY STUD. 247, 249-51 (1996) (same).
23. Holly Long, DNA Profiling: The Ability To Predict an Image from a DNA Profile, in NONHUMAN DNA TYPING: THEORY AND CASEWORK APPLICATIONS 185, 187 (Heather M. Coyle ed., 2008).
24. See JOHANN FRIEDRICH BLUMENBACH, On the Natural Variety of Mankind, in THE ANTHROPOLOGICAL TREATISES OF JOHANN FRIEDRICH BLUMENBACH 99-100 n. 4 (Thomas Bendyshe ed. & trans., 1865).
25. See Statement on "Race", supra note 16 ("[Race] became a strategy for dividing, ranking, and controlling colonized people used by colonial powers everywhere.");
26. See Statement on "Race", supra note 16 ("Thus 'race' was... a growing ideology of inequality devised to rationalize European attitudes and treatment of the conquered and enslaved peoples.").
27. Rose M. Brewer, Thinking Critically About Race and Genetics, 34 J. L. MED. & ETHICS 513, 513 (2006) (arguing that the racial hierarchies that were constructed were used to "explain the so-called inferiority of those with whom [Europeans] came into contact" and that non-European people "were ultimately conquered, colonized, enslaved, and drawn into European empires").
28. See Statement on "Race", supra note 16 ("During World War II, the Nazis under Adolf Hitler enjoined the expanded ideology of 'race' and 'racial' differences and took them to a logical end: the extermination of 11 million people of 'inferior races' (e.g., Jews, Gypsies, Africans, homosexuals, and so forth)....") ; Braman, supra note 20, at 1424 ("[T]he rise of Nazi racial politics helped to crystallize much of the dissatisfaction with consistently unproven theories of racial difference.").
29. Garland E. Allen, Eugenics and Modern Biology: Critiques of Eugenics, 1910-1945, 75 ANNALS HUM. GENETICS 314, 314 (2011).
30. Press Release, Ashley Montagu, United Nations Educ., Scientific & Cultural Org., Statement By Experts on Race Problems 3 (July 20, 1950), available at http://unesdoc.unesco.org/images/0012/001269/126969eb.pdf. The author of the statement, Ashley Montagu, was one of the more famous students of renowned granddaddy of anthropology, Franz Boas.
31. See Kamala Visweswaran, Race and the Culture of Anthropology, 100 AM. ANTHROPOLOGIST 70, 72 (1998).
32. Boas is fairly described as not only the granddaddy of modern anthropology, see GEORGE W. STOCKING, JR., THE ETHNOGRAPHER'S MAGIC WAND AND OTHER ESSAYS IN THE HISTORY OF ANTHROPOLOGY 118-19 (1992) (arguing that Boas "more than anyone else shaped the character of American anthropology in the twentieth century"), but is also fairly described as being on the forefront of the intellectual movement to distance the discipline of anthropology from its racist past.
33. See Paul Rabinow, For Hire: Resolutely Late Modern, in RECAPTURING ANTHROPOLOGY 59, 60 (Richard G. Fox ed., 1991) ("Boas' case against racial hierarchies and racial thinking has thoroughly carried the theoretical day.... Of course, racism has hardly disappeared, but it no longer is a scientifically credible position. "). His primary move was to assign race to biology while arguing that biological/racial differences among humans were irrelevant; the more relevant human differences (indeed, the only relevant human differences) were cultural.
34. See JENNY REARDON, RACE TO THE FINISH: IDENTITY AND GOVERNANCE IN AN AGE OF GENOMICS 29-31 (2005) (noting that the second UNESCO Statement on Race, unlike the first iteration, asserted "the possibility that traits pertaining to 'intellectual and emotional response' could vary according to genetic differences between races").
35. See Statement on "Race", supra note 16.
36. Other jubilant sound bites include the head of the program's statement that "I'm happy that today the only race that we are talking about is the human race." Id. The happy declaration that "the only race worth talking about is the human race" (and its logical sequitur that race should be ignored in biological science) sounds eerily similar to Justice Scalia's declaration that "we are just one race... American" (and its logical nonsequitur that race should be ignored in law). Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 239 (1995) (Scalia, J., concurring).
37. Nicholas Wade, For Genome Mappers, the Tricky Terrain of Race Requires Some Careful Navigating, N. Y. TIMES, July 20, 2001, at A17. The article further noted that the question geneticists faced was whether to map differences across "population groups", and further defined the "principal population groups" as "Africans, Asians, and Europeans."
38. Sally Satel, I Am a Racially Profiling Doctor, N. Y. TIMES MAG., May 5, 2002, at 56, 56.
39. Sharona Hoffman, "Racially-Tailored" Medicine Unraveled, 55 AM. U. L. REV. 395, 414 (2005) ("[I]ntra-group genetic variation is dramatically greater than inter-group variation. For instance, Black people originating in Africa demonstrate more genetic variation than do people with recent ancestry from any other continent, so that two Black individuals are likely to be more dissimilar genetically than two members of any other 'race.'") ;
40. Erik Lillquist & Charles A. Sullivan, The Law and Genetics of Racial Profiling in Medicine, 39 HARV. C. R.-C. L. L. REV. 391, 409 (2004) ("But with only a few exceptions, the variation within a race for a given trait is much greater than the variation across races.") ;
41. Race & Genetics FAQ, NAT'L COALITION FOR HEALTH PROF. EDUC. GENETICS, http://www.nchpeg.org/index.php?option=com-content&view=article&id= 142&Itemid=64 (last visited Sept. 20, 2013) ("[P]opulations that are geographically closer together tend to be genetically more similar to one another.... [G]eographic neighbors are more likely to have historical connections and to exchange mates."). As Professor Roberts explains, Evolutionary biologists posit that geographic distance is a good predictor of genetic distance, and parts of Africa and Europe are swimming distance from one another. The intimate intertwining of Europeans and Africans in the ensuing centuries through trade, conquest, enslavement, and migration make it absurd to consider them opposites from a genetic standpoint.
42. See Cheryl I. Harris, Whitewashing Race: Scapegoating Culture, 94 CALIF. L. REV. 907, 916-17 (2006) (describing white and black as having been discursively constructed as opposite races).
43. Kimani Paul-Emile, The Regulation of Race in Science, 80 GEO. WASH. L. REV. 1115, 1137 (2012).
44. See generally Elizabeth Arias, U. S. Dep't of Health & Human Servs., United States Life Tables, 2008, NAT'L VITAL STAT. REP., Sept. 24, 2012, at 3, available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61-03.pdf (showing different life expectancies for different racial groups).
45. See, e.g., U. S. Census Bureau, Money Income of People-Number by Income Level and by Sex, Race, and Hispanic Origin: 2009, 2012 STAT. ABSTRACT U. S. 459 tbl. 705, available at http://www.census.gov/compendia/statab/2012/tables/ 12s0705.pdf (showing different per capita income levels for different racial groups).
46. KAMALA VISWESWARAN, UN/COMMON CULTURES: RACISM AND THE REARTICULATION OF CULTURAL DIFFERENCE 71 (2010) ;
47. cf. Angel R. Oquendo, Re-Imagining the Latino/a Race, 12 HARV. BLACKLETTER L. J. 93, 93 (1995) ("[W]hat really unites Latino/as is their unique history of oppression. "). Professor Visweswaran is likely indebted to the definition of race offered by Professors Omi and Winant in their highly influential sociology of race: "race is a concept which signifies and symbolizes social conflicts and interests by referring to different types of human bodies."
48. MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 55 (1994).
49. Cf. Ian F. Haney López, Race, Ethnicity, Erasure: The Salience of Race to Lat Crit Theory, 85 CALIF. L. REV. 1143, 1196-97 (1997) ("Although racial victimization has been instrumental in the cultural formation of group identity... this is not the same thing as suggesting that racial group identities are solely determined by the negative forces of invidious racial discrimination. ").
50. See KHIARA M. BRIDGES, REPRODUCING RACE: AN ETHNOGRAPHY OF PREGNANCY AS A SITE OF RACIALIZATION 131 (2011) ;
51. Eric K. Yamamoto, Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America, 95 MICH. L. REV. 821, 848 (1997) ("Designations of cultural difference are used effectively by some in dominant power positions to justify excluding racialized groups from the polity.").
52. PAUL GILROY, POSTCOLONIAL MELANCHOLIA 39 (2005).
53. There is a current in the intellectual movement of Critical Race Theory that argues in favor of "black exceptionalism", a position that contends that the experience of black persons should be understood as the paradigmatic experience of race and racism in the United States. See Leslie Espinosa & Angela P. Harris, Afterword: Embracing the Tar Baby-Lat-Crit Theory and the Sticky Mess of Race, 85 CALIF. L. REV. 1585, 1596 (1997) ("The claim of black exceptionalism can be supported in at least two ways: by examining the historic and continuing centrality of African-American ethnicity to American political and social life; and by examining the centrality of anti-black racism to the patterns of domination we call white supremacy."). This position is based on the sense that, throughout history, antiblack racism was the stuff upon which race, as a concept, was built in the United States. Moreover, extant laws designed to address racial discrimination are not a response to racism, generally, but rather to antiblack racism, specifically. See id. at 1599-1600 ("American anti-discrimination law emerged in response to experiences of and with black people."). The problem with black exceptionalism is that it appears to intentionally fail to recognize the evolving nature of race, and therefore "misses" the experiences of other racialized groups, like Latinos, whose racial deprivations are justified on grounds different than those of black people (i.e., language, accent, nationality).
54. HOWARD WINANT, RACIAL CONDITIONS: POLITICS, THEORY, COMPARISONS 14 (1994).
55. That "Muslim" is a racial category raises the question of when, if ever, it is proper to classify religious groups as racial groups. Interestingly, the law has struggled with this question somewhat-specifically in dealing with Muslim and Jewish plaintiffs who have claimed that they were discriminated against on the basis of their race. For example, Shaare Tefila Congregation v. Cobb concerned a synagogue that had been spray-painted with anti-Semitic slogans and symbols. 481 U. S. 615, 615 (1987).
56. The synagogue sued under § 1982 of the Civil Rights Act, which prohibits racially discriminatory interference with property rights. See 42 U. S. C. § 1982 (guaranteeing all citizens "the same right... as is enjoyed by white citizens... to inherit, purchase, lease, sell, hold, and convey real and personal property").
57. The lower court had dismissed the synagogue's claim, reasoning that Jewish people were not a race, and, consequently, discrimination against Jewish persons was not racial discrimination. Shaare Tefila Congregation v. Cobb, 785 F.2d 523, 527 (4th Cir. 1986)
58. rev'd, 481 U. S. at 615.
59. The Supreme Court reversed, noting that at the time that § 1982 was passed, "Jews and Arabs were among the peoples then considered to be distinct races and hence within the protection of the statute. Jews are not foreclosed from stating a cause of action against other members of what today is considered to be part of the Caucasian race." Cobb, 481 U. S. at 617-18. Ultimately, it has been unnecessary for courts to determine whether Jewish people, Muslim people, and other ethnoreligious groups are races or religions, as both race and religion are commonly protected categories within antidiscrimination law. What is important is that the plaintiff falls into one of the protected categories and not into which precise category the plaintiff falls.
60. See Nomi Maya Stolzenberg, Righting the Relationship Between Race and Religion Within Law, 31 OXFORD J. LEGAL STUD. 583, 585 (2011) ("Because the civil rights statutes recognize all of these categories as creating'suspect' or protected classes, there is no need to sort out which protected group a particular plaintiff falls into, or what kind of discrimination he or she endured.").
61. During the Great Depression, the United States deported massive numbers of persons classified as "Mexican. " See Nicholas P. De Genova, Migrant "Illegality" and Deportability in Everyday Life, 31 ANN. REV. ANTHROPOLOGY 419, 433 (2002).
62. Many of those deported were U. S. citizens and had a legal right to remain in the country. See U. S. COMM'N ON CIVIL RIGHTS, THE TARNISHED GOLDEN DOOR: CIVIL RIGHTS ISSUES IN IMMIGRATION 11 (1980) ("Among those caught up in the expulsion campaign were American citizens of Mexican descent who were forced to leave the country of their birth."). Thus, their "Mexicanness" endured despite their legal status as "Americans."
63. See Christopher David Ruiz Cameron, How the Garcia Cousins Lost Their Accents: Understanding the Language of Title VII Decisions Approving English-Only Rules As the Product of Racial Dualism, Latino Invisibility, and Legal Indeterminacy, 85 CALIF. L. REV. 1347, 1364 (1997) ("But Latinos, whether fluent Spanish speakers or not, all have some common connection with the [Spanish] language. If we do not speak it ourselves, then it is the language of our ancestors." (alteration in original)).
64. This is not to say that biology has never been used to define "Mexicans" as a group. Professor Kevin Johnson notes that race scholars once explained Mexicans' imagined propensity towards crime in terms of their biological composition. Kevin R. Johnson, Hernandez v. Texas: Legacies of Justice and Injustice, 25 CHICANO-LATINO L. REV. 153, 163 (2005) (describing the infamous Sleepy Lagoon murder case, in which the Los Angeles County Sheriff testified "about the biological propensity of Mexicans toward crime", stating that "because of their Indian roots, Mexicans had a 'total disregard for human life that has always been universal throughout the Americas among the Indian population,... [and] this character flaw could not be remedied because 'one cannot change the spots of a leopard'").
65. Jones-Shafroth Act, 48 U. S. C. §§ 731, 733 (2006) (creating a civil government for Puerto Rico and making residents of Puerto Rico U. S. citizens).
66. 260 U. S. 178 (1922).
67. 261 U. S. 204 (1923).
68. Ozawa, 260 U. S. at 190.
69. United States v. Thind, 261 U. S 204, 206 (1923).
70. Thind, 261 U. S. at 214-15.
71. (quoting LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 224 (2002))).
72. See Ozawa v. United States, 260 U. S. 178, 198 (1922) (noting that "the culture and enlightenment of the Japanese people" could be referred to in "complimentary terms").
73. 323 U. S. 214 (1944).
74. Of course, because many of the Japanese who were interned were U. S. citizens, their "nationality" was not "Japanese", but rather "American. " See Juan F. Perea, Ethnicity and the Constitution: Beyond the Black and White Binary Constitution, 36 WM. & MARY L. REV. 571, 583 n. 55 (1995) ("Many of the interned Japanese Americans were citizens because of birth in the United States. Their national origin was, therefore, the United States.").
75. Juan F. Perea, Los Olvidados: On the Making of Invisible People, 70 N. Y. U. L. REV. 965, 983 (1995) ("Under a broad definition, ethnicity refers to physical and cultural characteristics that make a social group distinctive, either in the group members' eyes or in the view of outsiders.").
76. Werner Sollors, Foreword: Theories of American Ethnicity, in THEORIES OF ETHNICITY: A CLASSICAL READER, at xii (Werner Sollors ed., 1996).
77. See Slaughter-House Cases, 83 U. S. (16 Wall.) 36, 72 (1872) ("If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, [the Fourteenth A]mendment may safely be trusted to make it void." (emphasis added)).
78. Korematsu, 323 U. S. at 223.
79. Alison Dundes Renteln, A Psychohistorical Analysis of the Japanese American Internment, 17 HUM. RTS. Q. 618, 621 (1995).
80. JOHN W. DOWER, WAR WITHOUT MERCY: RACE AND POWER IN THE PACIFIC WAR 34 (1986).
81. Korematsu, 234 U. S. at 235.
82. 347 U. S. 475 (1954).
83. See Hernandez v. State, 251 S. W.2d 531, 535-36 (Tex. 1952).
84. See Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, U. S.-Mex., art. IX, Feb. 2, 1848, 9 Stat. 922 ("Mexicans who... shall not preserve the character of citizens of the Mexican republic... shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the constitution...."). The naturalization laws that existed at the time, however, provided that only "white persons" could become citizens. An Act to Establish an Uniform Rule of Naturalization, 1 Stat. 103, 103-04 (1790) (limiting naturalization to "white persons"). Thus, Mexicans, as citizens, were legally considered white.
85. See Kevin R. Johnson, Racial Restrictions on Naturalization: The Recurring Intersection of Race and Gender in Immigration and Citizenship Law, 11 BERKELEY WOMEN'S L. J. 142, 143-44 (1996) ("[S]ome persons often classified today as 'non-Whites' were treated as 'Whites' for naturalization purposes. For example, persons of Mexican origin were classified as 'White' while Asians were not."). Of course, the position argued by Texas-that Mexicans are white-is absolutely consistent with present problematic racial logic. "Hispanics" or "Latinos" are not deemed to be a racial group; they are considered an "ethnicity."
86. See U. S. CENSUS BUREAU, U. S. DEP'T OF COMMERCE, FORM D-61, UNITED STATES CENSUS 2010 (2009), available at http://www.census.gov/2010census/pdf/ 2010-Questionnaire-Info.pdf.
87. Hernandez, 347 U. S. at 479.
88. 100 U. S. 303 (1879).
89. See Hernandez, 347 U. S. at 477 (citing Strauder for the proposition that "the exclusion of a class of persons from jury service on grounds other than race or color may also deprive a defendant who is a member of that class of the constitutional guarantee of equal protection of the laws" (emphasis added)).
90. Hernandez, 347 U. S. at 479, 482 (finding that juries should be composed of "all qualified persons regardless of national origin or descent").
91. Hernandez, 347 U. S. at 480-81.
92. See Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell", 108 YALE L. J. 485, 496 (1998) (describing the Court's former requirement that, in order to be considered a suspect class, a group must have "obvious, immutable, or distinguishing characteristic[s]" and noting that these characteristics "stand as proxies for the concept of visibility").
93. 488 U. S. 469 (1989).
94. 448 U. S. 448 (1980).
95. Saint Francis Coll. v. Al-Khazarji, 481 U. S. 604 (1987).
96. See Al-Khazraji, 481 U. S. at 609 ("Although § 1981 does not itself use the word 'race', the Court has construed the section to forbid all 'racial' discrimination in the making of private as well as public contracts."
97. (citing Runyon v. McCrary, 427 U. S. 160, 168, 174-75 (1976))).
98. Professor Haney López has explained how ethnicity, which is supposed to be premised on shared culture, nevertheless remains conceptually tethered to biology and genetics: Yet even as ethnicity ostensibly offered an alternative to the vocabulary of race, it remained closely tied to the complex of racial ideas.... [E]thnicity sought to preserve the notion that descent powerfully shaped individual and group identity; it did so by emphasizing cultures closely associated with and indeed handed down generation by generation within distinct groups. Because ethnic culture depended on familial and kinship ties, ethnicity was not primarily a matter of volition but, like race, of blood. Ian F. Haney López, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985, 1007 (2007).
99. 438 U. S. 265 (1978).
100. (citing The Slaughter-House Cases, 83 U. S. (16 Wall.) 36, 71 (1873)).
101. See, e.g., Bakke, 438 U. S. at 293 ("[M]any of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white 'majority.'" (emphasis added)).
102. See, e.g., Saint Francis Coll. v. Al-Khazraji, 481 U. S. 604, 613 (1987) (stating that "racial discrimination" occurs when a law treats differently "identifiable classes of persons... solely because of their ancestry or ethnic characteristics").
103. 45 U. S. (4 How.) 567 (1846).
104. see also Gregory D. Smith, Note, Disparate Impact of the Federal Sentencing Guidelines on Indians in Indian Country Why Congress Should Run the Erie Railroad into the Major Crimes Act, 27 HAMLINE L. REV. 483, 492-93 (2004) (stating that the General Crimes Act, which stems "from the 1790 Indian Trade and Intercourse Act... expressly exempted from federal jurisdiction Indians who commit an offense against another Indian while in Indian country").
105. Rogers, 45 U. S. (4 How.) at 570-71.
106. Dred Scott v. Sandford, 60 U. S. (19 How.) 393 (1856) (holding that a black man was not a "person" within the U. S. Constitution), superseded by constitutional amendment, U. S. CONST. amend. XIV.
107. Rogers, 45 U. S. (4 How.) at 572.
108. See Frank Shockey, Note, "Individious" American Indian Tribal Sovereignty: Morton v. Mancari Contra Adarand Constructors, Inc. v. Pena, Rice v. Cayetano, and Other Recent Cases, 25 AM. INDIAN L. REV. 275, 285-86 (2001) (arguing that Taney's opinion in Rogers "interpreted the exception in the Trade and Intercourse Act as applicable only to a pseudo-scientifically defined race of Indians" and contending that "Taney saw American Indians in this case as a physically defined race").
109. Rogers, 45 U. S. (4 How.) at 573.
110. See Quintin Cushner & Jon M. Sands, The Outdated "Blood" Test To Determine Indian Status in Federal Criminal Prosecution, 59 FED. LAW. 31, 34 (2012) (describing the two-part test).
111. That "Indianness" is not comprised solely of a racial component has saved statutes that give preference to Indians from strict scrutiny review under the Equal Protection Clause. In Morton v. Mancari, 417 U. S. 535 (1974), the Court had to determine whether a law that gave a hiring preference to "Indians" within the Bureau of Indian Affairs (BIA) contained a racial classification that is properly reviewed with strict scrutiny. The Court answered in the negative. In holding that rational basis review was appropriate, the Court differentiated "members of quasi-sovereign tribal entities" from Indians as a race.
112. See Paul Spruhan, A Legal History of Blood Quantum in Federal Indian Law to 1935, 51 S. D. L. REV. 1, 48 (2006) (describing Rogers as constructing Indians as a "biological population").
113. The "special relationship" that American Indian tribes have with the United States is a product of the fact that they are considered to be "sovereign" nations within the tribal nation's borders. See Worcester v. Georgia, 31 U. S. (6 Pet.) 515, 560 (1832) (holding that the Cherokee Nation was a sovereign entity, "a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress"). The sovereignty of the American Indian tribes is compromised, however, because of the tribes' location within the borders of the United States; as a consequence, they are reduced to "domestic dependent nations" within the United States.
114. See Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1, 17 (1831) (denominating American Indian tribes "domestic dependent nations"). Accordingly, the United States has duties to them that it does not have to other sovereigns. See id. ("[American Indian tribes] are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.").
115. See Indian General Allotment (Dawes) Act, ch. 119, 24 Stat. 388 (1887)
116. (codified as amended at 25 U. S. C. §§ 331-358 (2006)).
117. See Lindsey Trainor Golden, Embracing Tribal Sovereignty To Eliminate Criminal Jurisdiction Chaos, 45 U. MICH. J. L. REFORM 1039, 1062-63 (2012) (discussing cases in which individuals with Indian blood quanta of fortyfive percent and four percent were found not to be Indian, and comparing these cases with others in which an individual with an Indian blood quantum of thirteen percent and an individual with an unknown Indian blood quantum were considered Indian).
118. Montoya v. United States, 180 U. S. 261, 266 (1901).
119. Gerald Torres & Kathryn Milun, Translating Yonnundio By Precedent and Evidence: The Mashpee Indian Case, 1990 DUKE L. J. 625, 634 (describing Montoya as "rooted in notions of racial purity").
120. Mashpee Tribe v. Town of Mashpee, 447 F. Supp. 940 (D. Mass. 1978)
121. aff'd sub nom. Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979).
122. Mashpee Tribe, 592 F.2d at 579.
123. Carla D. Pratt, Loving Indian Style: Maintaining Racial Caste and Tribal Sovereignty Through Sexual Assimilation, 2007 WIS. L. REV. 409, 448.
124. Montoya v. United States, 180 U. S. 261, 266 (1901) ("By a 'tribe' we understand a body of Indians of the same or a similar race....").
125. See, e.g., Garcia v. Spun Steak Co., 998 F.2d 1480, 1483 (9th Cir. 1993) (upholding employer's English-only policy because bilingual employees were capable of speaking English and Title VII's ban on national origin discrimination is not properly interpreted as actively promoting cultural expression) ;
126. Cosme v. Salvation Army, 284 F. Supp. 2d 229, 239 (D. Mass. 2003) (holding that bilingual plaintiff who could speak English was not a victim of disparate treatment under Title VII on the basis of national origin when her supervisor requested that she refrain from speaking Spanish at work).
127. See, e.g., Fragante v. City & Cnty. of Honolulu, 888 F.2d 591, 595-99 (9th Cir. 1989) (denying a Title VII national origin discrimination claim brought by a plaintiff who was not hired for a civil service job because he spoke with a "[h]eavy Filipino" accent, but stating that discrimination solely because of an employee's or potential employee's accent "does establish a prima facie case of national origin discrimination") ;
128. Berke v. Ohio Dep't of Pub. Welfare, 628 F.2d 980, 981 (6th Cir. 1980) (holding that a prima face case of national origin discrimination can be established by alleging that an employee suffered an adverse employment action because he spoke with a "foreign" accent).
129. See generally Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 YALE L. J. 1329 (1991) (exploring Title VII case law involving accent discrimination).
130. See, e.g., Fragante, 888 F.2d at 597-99 (finding no Title VII discrimination based on national origin because the plaintiff's Filipino accent made him hard to understand and his job required clear communication abilities) ;
131. Garcia v. Gloor, 618 F.2d 264, 270-71 (5th Cir. 1980) (finding that defendant's English-only policy did not violate Title VII by discriminating against Mexican American plaintiffs on the basis of national origin because the rule was limited to the time when they were on the clock and fulfilled legitimate business necessities) ;
132. Barber v. Lovelace Sandia Health Sys., 409 F. Supp. 2d 1313, 1334-35 (D. N. M. 2005) (finding no Title VII national origin discrimination in an employer's Englishonly policy because it had a legitimate worry that employees were making derogatory remarks in Spanish) ;
133. EEOC v. Teleservices Mktg. Corp., 405 F. Supp. 2d 724, 729 (E. D. Tex. 2005) (denying summary judgment on the plaintiff's claim of discrimination based on national origin under Title VII after he was fired due to his Sudanese accent because there was a dispute over whether or not this accent made him unable to do his job) ;
134. Prado v. L. Luria & Son, Inc., 975 F. Supp. 1349, 1354 (S. D. Fla. 1997) (finding no Title VII discrimination based on national origin against a bilingual plaintiff because the defendant had a legitimate interest in trying to get employees to approach customers primarily in English).
135. See, e.g., Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 (9th Cir. 1987) ("An employer can properly enforce a limited, reasonable and business-related English-only rule against an employee who can readily comply with the rule and who voluntarily chooses not to observe it as 'a matter of individual preference.'"
136. (quoting Garcia, 618 F.2d at 270)) ;
137. Garcia, 618 F.2d at 269 ("Save for religion, the discriminations on which the Act focuses its laser of prohibition are those that are... beyond the victim's power to alter.... No one can change his place of birth (national origin), the place of birth of his forebears (national origin), his race or fundamental sexual characteristics.... 'Equal employment opportunity may be secured only when employers are barred from discriminating against employees on the basis of immutable characteristics, such as race and national origin. '" (emphasis omitted)
138. (quoting Willingham v. Macon Tel. Publ'g Co., 507 F.2d 1084, 1091 (5th Cir. 1975))).
139. Civil Rights Act of 1964 § 703 (a), 42 U. S. C. § 2000e-2 (a) (2006).
140. Carlo A. Pedrioli, Respecting Language As Part of Ethnicity: Title VII and Language Discrimination at Work, 27 HARV. J. ON RACIAL & ETHNIC JUST. 97, 100 (2011) ("Federal protection against language-based discrimination by employers frequently, although not always, comes under the national origin category in Title VII.").
141. See, e.g., Fragante, 888 F.2d at 596 ("Accent and national origin are obviously inextricably intertwined in many cases.").
142. See 29 C. F. R. § 1606.7 (a) (2012) ("The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment." (emphasis added)). Notably, courts have refused to accept the EEOC's interpretation of Title VII.
143. See, e.g., Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993) ("Nothing in the plain language of [Title VII] supports [the] EEOC's English-only rule Guideline.").
144. See Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N. Y. U. L. REV. 1134, 1146 n. 31 (2004).
145. See, e.g., Garcia v. Gloor, 618 F.2d 264, 268-69 (5th Cir. 1980) ("Neither the statute nor common understanding equates national origin with the language that one chooses to speak.... National origin must not be confused with ethnic or sociocultural traits....").
146. See Deborah F. Buckman, Annotation, Requirement That Employees Speak English in Workplace As Violative of Federal Constitutional and Statutory Law, 24 A. L. R. FED. 2d 587, 603 (2008) (discussing a language discrimination case where "[t]he plaintiffs were two American-born bilingual medical assistants" subjected to an English-only policy).
147. See, e.g., United States v. Thind, 261 U. S. 204, 206 (1923) (noting in the syllabus to the opinion the defense counsel's argument that "[i]t has been pointed out by many scholars that identity of language does not necessarily prove identity of blood, for ordinarily anyone can learn a foreign language.") ;
148. Like plaintiffs asserting discrimination on the basis of language or accent, plaintiffs asserting discrimination on the basis of hairstyle tend to lose their claims. Paradigmatic of these cases is Rogers v. American Airlines, involving a black woman plaintiff who claimed racial discrimination under Title VII after her employer informed her that the cornrows in which she wore her hair violated the grooming policy. 527 F. Supp. 229 (S. D. N. Y. 1981).
149. See, e.g., Booth v. Maryland, 327 F.3d 377, 383 (4th Cir. 2003) (upholding a grooming policy that banned the plaintiff's dreadlocks against his Title VII race discrimination claim because he failed to show the policy applied unequally based on race) ;
150. *6 (M. D. Ga. Apr. 25, 2008) (finding no violation of Title VII due to racial discrimination in a policy that banned "Afrocentric" hairstyles because the plaintiff's choice to wear cornrow braids was not an immutable characteristic) ;
151. Eatman v. United Parcel Serv., 194 F. Supp. 2d 256, 264-65 (S. D. N. Y. 2002) (upholding a policy banning "unconventional hairstyles" that led to the firing of an African American plaintiff who wore his hair in dreadlocks because he failed to prove the policy was racially motivated, a requirement for Title VII race discrimination claims) ;
152. *3 (W. D. Va. Nov. 21, 1996) (rejecting an African American plaintiff's claim of Title VII race discrimination after her employer informed her she could no longer wear her hair in a braided style because she failed to show the employer acted with deliberate intention of having her quit) ;
153. Rogers, 527 F. Supp. at 232 (finding no Title VII racial discrimination against an African American plaintiff in a policy prohibiting all braided hairstyles because braids are not "worn exclusively or even predominantly" by African Americans).
154. Devin D. Collier, Don't Get It Twisted: Why Employer Hairstyle Prohibitions Are Racially Discriminatory, 9 HASTINGS RACE & POVERTY L. J. 33, 49-50 (2012) (describing how skin color is typically indicative of race, but when it is not definitive, a social "hair test" can be applied to visually gauge a person's race).
155. In an instructive article, Professor Onwuachi-Willig argues that courts ought to recognize as racial discrimination employers' penalizing black employees for wearing their hair in styles that employers believe violate their grooming codes. See generally Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 GEO. L. J. 1079 (2010).
156. See, e.g., Jill Gaulding, Against Common Sense: Why Title VII Should Protect Speakers of Black English, 31 U. MICH. J. L. REFORM 637, 637 (1998) ("[E]mployers who reject Black English speakers because of their speech patterns are in fact violating Title VII's prohibition against race discrimination. ").
157. 500 U. S. 352 (1991).
158. (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U. S. 252 (1977) ;
159. Washington v. Davis, 426 U. S. 229 (1976)).
160. Hernandez, 500 U. S. at 355.
161. Hernandez, 500 U. S. at 371.
162. C. H. Wolston & George F. Root, Jesus Loves the Little Children, in THE LIBRARY OF HYMNS 211 (Wayne Yankie ed., 2006).
163. See Am. Anthropological Ass'n, The Human Spectrum: Where Do You Draw the Line?, RACE: ARE WE SO DIFFERENT?, http://www.understandingrace.org/humvar/ spectrum.html (last visited Sept. 20, 2013).
164. see also Tracy López, Non-Spanish Fluent Latinas: "Don't Judge Us", NEW LATINA (March 9, 2012), http://newlatina.net/non-fluent- latinas-dont-judge-us/;
165. Carolina Moreno, Latinos Not Speaking Spanish, Does That Makes Someone A "Fake" Hispanic?, HUFFINGTON POST (Sept. 17, 2012, 2:21 PM), http://www.huffingtonpost.com/2012/09/17/latinos-not-speakingspanish-n-1890501. html;
166. Raul A. Reyes, Opinion: Not Speaking Spanish Doesn't Make You Less Latino, NBCLATINO (Sept. 10, 2012, 5:00 AM), http://nbclatino. com/2012/09/10/opinion-not-speaking-spanish-doesnt-make-you-less-latino/.
167. Cf. Hernandez, 500 U. S. at 371 ("Just as shared language can serve to foster community, language differences can be a source of division. Language elicits a response from others, ranging from admiration and respect, to distance and alienation, to ridicule and scorn. Reactions of the latter type all too often result from or initiate racial hostility.").
168. Philip C. Aka, Lucinda M. Deason, & Augustine Hammond, Measuring the Impact of Political Ideology on the Adoption of English-Only Laws in the United States, 13 SCHOLAR 1, 14 (2010) (attributing English-only laws to xenophobia and noting that such laws are more likely to be passed in states with high populations of foreign-born residents or residents whose first language is not English). Indeed, if one only scratches the surface of English-only movements, one can see the racism undergirding them. See Matsuda, supra note 198, at 1397 ("The recent push for English-only laws, and the attack on bilingual education, may represent new outlets for racial anxiety now that many traditional outlets are denied. The angry insistence that 'they' should speak English serves as a proxy for a whole range of fears displaced by the social opprobrium directed at explicit racism.").
169. NICHOLAS DE GENOVA & ANA Y. RAMOS-ZAYAS, LATINO CROSSINGS: MEXICANS, PUERTO RICANS, AND THE POLITICS OF RACE AND CITIZENSHIP 78 (2003) ("[N]either for African Americans nor for Puerto Ricans does birthright U. S. citizenship secure the status of 'American'-ness, which constitutes a national identity that is understood, in itself, to be intrinsically racialized-as White."). Professor Matsuda discusses a Wall Street Journal article exploring "accent reduction schools", which market themselves as essential to the success of persons "whose careers have stalled because of thick accents, even though their grammar and vocabulary skills are good."
170. W. E. B. DU BOIS, THE SOULS OF BLACK FOLK 11 (Henry Louis Gates, Jr. & Terri Hume Oliver eds., W. W. Norton & Co. 1999) (1903).
171. 876 F.2d 896 (9th Cir. 1989).
172. See Kahakua v. Hallgren, No. 86-0434, slip op. at 23 (D. Haw. 1987) ("[T]here is no race or physiological reason why Kahakua could not have used standard English pronunciations." (emphasis added))
173. aff'd sub nom. Kahakua v. Friday, 876 F.2d 896 (9th Cir. 1989). That race is paired with physiology, a branch of biology concerning the bodily functions of living organisms, suggests that the District of Hawaii believes that race has some relationship to biology.
174. See, e.g., Fragante v. Honolulu, 888 F.2d 591, 593 (9th Cir. 1989) (alleging disparate treatment after plaintiff was not hired due to his accent) ;
175. Kahakua v. Hallgren, No. 86-0434, slip op. at 23 (D. Haw. 1987) (same)
176. aff'd sub nom. Kahakua v. Friday, 876 F.2d 896 (9th Cir. 1989).
177. There are two possible avenues that plaintiffs may pursue in Title VII cases: disparate treatment and disparate impact. See Ricci v. DeStefano, 557 U. S. 557, 577-78 (2009) (explaining that while Title VII has always prohibited disparate treatment on the basis of protected statuses, the disparate impact prohibition came later). Disparate treatment occurs when an employer has "treated [a] particular person less favorably than others."
178. Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 985-86 (1988).
179. See Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971).
180. See Fragante, 888 F.2d at 596-97 ("An adverse employment decision may be predicated upon an individual's accent when-but only when-it interferes materially with job performance. There is nothing improper about an employer making an honest assessment of the oral communications skills of a candidate for a job when such skills are reasonably related to job performance.").
181. See Rogers v. Am. Airlines, Inc., 527 F. Supp. 229, 231 (S. D. N. Y. 1991) (upholding the defendant's policy prohibiting the wearing of braided hairstyles against a Title VII challenge because the policy "does not regulate on the basis of any immutable characteristic of the employees involved") ;
182. See Int'l Bhd. of Teamsters v. United States, 431 U. S. 324, 335 n. 15 (1977) ("'Disparate treatment'... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. ").
183. See 42 U. S. C. § 2000e-2 (e) (1) (2006) (Title VII's "bona fide occupational qualification" exception applies to all Title VII bases except race and color).
184. For example, Professor Matsuda notes that during the Fragante v. City and County of Honolulu trial, Mr. Fragante testified for two days, under the stress of both direct and crossexamination. The judge and the examiners spoke to Fragante in English and understood his answers. A court reporter understood and took down his words verbatim. In the functional context of the trial, everyone understood Manuel Fragante's speech. Yet the defendant's interviewers continued
185. See, e.g., Garcia v. Spun Steak Co., 998 F.2d 1480, 1485 (9th Cir. 1993) (finding that plaintiffs could bring a disparate impact claim after an employer instituted an Englishonly rule although the rule only affected the "terms, conditions, and privileges of employment" and did not impose a barrier to hiring or promotion).
186. See, e.g., Garcia v. Gloor, 618 F.2d 264, 272 (5th Cir. 1980) (rejecting a disparate impact claim brought by a plaintiff who was fired after he spoke Spanish on the job, thus violating an English-only rule).
187. See, e.g., Spun Steak Co., 998 F.2d at 1483 (explaining that the employer instituted the English-only rule after employees complained that some Spanish-speaking coworkers were making derogatory, racist comments about them and noting that the policy was intended to promote racial harmony in the workplace).
188. 42 U. S. C. § 1981 a (a) (1) (2006) ("In an action brought by a complaining party under [Title VII] against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact)... the complaining party may recover compensatory and punitive damages... from the respondent.").
189. First Amended Complaint in Intervention at 8-10, EEOC v. Cent. Cal. for Health, 2012 WL 2872791 (E. D. Cal. Mar. 4, 2011) (No. 1:10-cv-01492-LJO-JLT).
190. The litigation was later settled, and the defendants agreed to pay the plaintiffs $975, 000 in addition to other injunctive relief. Proposed Consent Decree at 10, Cent. Cal. for Health, 2012 WL 2872791 (No. 1:10-cv-01492-LJO-JLT).
191. First Amended Complaint in Intervention, supra note 266, at 2.