Action in the era of elective race: Racial commodification and the promise of the new functionalism

Georgetown Law Journal

Volumn 102, Issue 1, 2013, Pages 179-218

  Rich, Camille Gear ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 84890027334     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (85)

1. For the most recent skirmishes involving affirmative action, see Grutter v. Bollinger, 539 U.S 306, 334-35 (2003) (permitting use of race as a plus factor in broader inquiry under affirmative action program)
2. and Gratz v. Bollinger, 539 U.S. 244, 255 (2003) (rejecting mechanical point system for racial groups in affirmative action plan). These debates have begun again recently as the Supreme Court considered challenges to the current affirmative action program at the University of Texas involving racial "critical mass."
3. See Fisher v. Univ. of Tex., 133 S. Ct. 2411 (2013).
4. Cases challenging affirmative action programs' definitions of race may be more common in the contemporary era than scholars currently believe. See, e.g., United States v. N.Y.C. Bd. of Educ., 85 F. Supp. 2d 130, 153 (E.D.N.Y. 2000) (reviewing plaintiff's challenge to allegedly over-inclusive employer definition of Latinos for affirmative action program that was based on racial self-identification);
5. Peightal v. Metro. Dade Cnty., 26 F.3d 1545, 1551 (11th Cir. 1994) (same); cf. Jana-Rock Constr., Inc. v. N.Y. State Dep't of Econ. Dev., 438 F.3d 195, 200 (2d Cir. 2006) (reviewing plaintiff's challenge to allegedly overly restrictive definition of Latino used to qualify for minority-owned-business program). For earlier examples, see CATHERINE R. SQUIRES, DISPATCHES FROM THE COLOR LINE: THE PRESS ANDMULTIRACIALAMERICA 75-124 (2007) (discussing similar challenges brought by putative beneficiaries of affirmative action benefits in the 1980s and 1990s).
6. See Lucy Madison, Warren Explains Minority Listing, Talks of Grandfather's "High Cheekbones," CBS NEWS (May 3, 2012), http://www.cbsnews.com/8301-503544-162-57427355-503544/ warren-explains- minority-listing-talks-of-grandfathers-high-cheekbones/. Subsequent reports indicate that Warren may not have Native American ancestry at all, as investigators have been unable to identify any documentary proof establishing that she has any Native American ancestor.
7. See Kelefa Sanneh, Elizabeth Warren's Family Ties, NEW YORKER (June 4, 2012), http://www.newyorker.com/online/blogs/newsdesk/2012/06/elizabeth-warren- who-is-native-american.html (discussing general claim of Native American ancestry).
8. See Mary Carmichael & Stephanie Ebbert, Warren Says She Told Schools of Heritage, BOS. GLOBE (May 31, 2012), http://www.boston.com/news/local/ massachusetts/articles/2012/05/31/elizabeth-warren-acknowledges-telling-harvard- penn-of-native-american-status/?page-2.
9. See id. Harvard made much of her Native American background, reportedly touting her as the University's first woman-of-color hire. See Hillary Chabot, Warren: I Used Minority Listing to Share Heritage, BOS. HERALD (May 2, 2012), http://bostonherald.com/news/politics/view/20220502warren-i-used-minority- listing-to-make-friends.
10. Scholars' concerns about employers' (and other institutions') strategic use of individuals' racialidentity claims tend to focus on the risk that institutional decision makers engaged in such conduct will squander the benefits offered under their affirmative action programs, either by providing these benefits to undeserving individuals with tenuous racial-identity claims, or by extending benefits to a subpopulation within a racial minority group that is least in need of assistance. See, e.g., Tseming Yang, Choice and Fraud in Racial Identification: The Dilemma of Policing Race in Affirmative Action, the Census, and a Color-Blind Society, 11 MICH. J. RACE & L. 367 (2006) (using the lens of fraud to discuss the conundrum faced by legal decision makers and administrators when an individual claims a racial identity that does not match how she is regarded in the community);
11. Sara Rimer & Karen W. Arenson, Top Colleges Take More Blacks, but Which Ones?, N.Y. TIMES (June 24, 2004), http://www.nytimes.com/2004/06/24/us/ top-colleges-take-more-blacks-but-which-ones.html?pagewanted-all&src-pm (discussing symposium remarks from Lani Guinier raising concerns about affirmative action benefits for African Americans being disproportionately allocated to African immigrants and West Indians);
12. cf. Taunya Lovell Banks, Black Pluralism in a Post-Loving America, in LOVING V. VIRGINIA IN A POST-RACIAL WORLD: RETHINKING RACE, SEX, AND MARRIAGE 155, 162-166 (Kevin Noble Maillard & Rose Cuison Villazor eds., 2012) (narrating various constituencies' authenticity concerns in debate over whether Afro-Cuban law professor Maria Hylton should have been recognized by Northwestern as a black law professor for diversity-hiring purposes).
13. See Malone v. Haley, No. 88-339, slip op. (Mass. Sup. Jud. Ct. Suffolk Cnty. July 25, 1989) (appeal from Civil Service Commission decision to single associate justice). After the brothers lost, they attempted to have the Civil Service Commission reconsider its decision; when this was unsuccessful, they filed suit, but ultimately their claims were dismissed.
14. See Malone v. Civil Serv. Comm'n, 646 N.E.2d 150, 154 (Mass. App. Ct. 1995).
15. Id. at 18-20; see also Randall Kennedy, Racial Passing, 62 OHIO ST. L.J. 1145, 1191-92 (2001) (using the term "racial fraud").
16. Questions about affirmative action program administrators' discretion to define racial categories have been raised obliquely in earlier Supreme Court cases. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 393 (2003) (Kennedy, J., dissenting) (quoting a former dean of admissions at Michigan Law School as saying that "faculty members were 'breathtakingly cynical' in deciding who would qualify as a member of underrepresented minorities").
17. Christopher A. Ford, Administering Identity: The Determination of "Race" in Race-Conscious Law, 82 CALIF. L. REV. 1231, 1332-34 (1994) (using Malone as opportunity for cross-national comparison to identify ideal method of defining race in affirmative action programs);
18. Kim Forde-Mazrui, Live and Let Love: Self-Determination in Matters of Intimacy and Identity, 101 MICH. L. REV. 2185, 2196-97 (2003) (using Malone to explore risk of strategic deployment of race definitions by individuals);
19. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1785 n.319 (1993) (discussing case as evidence of potential racial status interest in nonwhiteness);
20. The multiracial movement has successfully convinced government to be more respectful of individuals' racial self-identification decisions. See Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity, 62 Fed. Reg. 58,782, 58,788-90 (Oct. 30, 1997) [hereinafter Revised Directive 15] (issuing Office of Management and Budget directive to federal agencies requiring future racial-data-collection efforts to rely on individual's racial self-identification decisions rather than third-party observation).
21. For discussion of the multiracial movement's efforts, see Tanya KateríHernández, "Multiracial" Discourse: Racial Classifications in an Era of Color-Blind Jurisprudence, 57 MD. L. REV. 97, 98 & nn.2 & 4, 99 n.7 (1998);
22. Naomi Mezey, Erasure and Recognition: The Census, Race and the National Imagination, 97 NW. U. L. REV. 1701, 1749-52 (2003).
23. For further elaboration of the concept of elective race, including its repercussions for individual claimants' Title VII workplace discrimination claims and multiracial families' discrimination claims, see Camille Gear Rich, Elective Race, 102 GEO. L.J. (forthcoming June 2014) (discussing role of elective race in workplace disputes);
24. Camille Gear Rich, Making The Modern Family: Interracial Intimacy and the Production of Whiteness, 127 HARV. L. REV. (forthcoming Jan. 2014) [hereinafter Rich, Making The Modern Family] (discussing role of elective race in interracial families).
25. For examples of the post-racial account, see generally DINESH D'SOUZA, THE END OF RACISM: PRINCIPLES FOR AMULTIRACIAL SOCIETY (1995);
26. JOSEPH L. GRAVES, JR., THE RACE MYTH: WHYWE PRETEND RACE EXISTS IN AMERICA (2004).
27. See, e.g., J. Scott Brown et al., The Greater Complexity of Lived Race: An Extension of Harris and Sim, 87 SOC. SCI. Q. 411, 413 (2006) (explaining that "changing understandings of race in society have raised the legitimacy of multiracial identities");
28. Jennifer Lee & Frank D. Bean, America's Changing Color Lines: Immigration, Race/Ethnicity, and Multiracial Identification, 30 ANN. REV. SOC. 221, 222 (2004) (noting that one in forty people describes themselves as multiracial today and that current trends suggest that one in five will describe themselves as multiracial by 2050).
29. The first affirmative action programs were explicitly based on an antisubordination logic, and this antisubordination commitment continues to provide the strongest moral and ethical justification for the use of race-based affirmative action programs in the present day. See Exec. Order No. 10,925, 27 Fed. Reg. 1977 (Mar. 6, 1961) (creating the first government affirmative action program in order to "promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin");
30. see also President Lyndon B. Johnson, Commencement Address at Howard University: To Fulfill These Rights (June 4, 1965), available at http://www.presidency.ucsb.edu/ws/?pid-27021#ax222h4nU38in. As President Johnson explained: You do not wipe away the scars of centuries by saying: Now, you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "you are free to compete with all the others," and still justly believe that you have been completely fair. . This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result. Id. Importantly, in historical documents, the antisubordination logic tends to be represented as an attempt to counter the lingering effects of former de jure race discrimination, whereas the modern antisubordination commitment requires us to be aware of more subtle discrimination patterns such as aversive racism or implicit bias. These modern forms of prejudice, although less apparently virulent, still have significant material effects.
31. The various social processes of racialization are discussed in more detail in Part II. However, reduced to the most simple terms, my arguments are premised on the understanding that the experience of racialization is a product of involuntary racial assignment by third parties and voluntary choices made by the individual, either by publicly claiming a given racial identity or by engaging in certain behaviors (what I call race performance) that mobilize cultural signifiers and practices to signal that the individual is a member of a given racial group. For additional discussion, 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, 1145-49, 1158-66 (2004).
32. See Nancy Leong, Racial Capitalism, 126 HARV. L. REV. 2151, 2156, 2169, 2174 (2013).
33. Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CALIF. L. REV. 1, 32-36 (2000).
34. See, e.g., Jana-Rock Constr., Inc. v. N.Y. State Dep't of Econ. Dev., 438 F.3d 195, 199-200 (2d Cir. 2006) (discussing 14th Amendment challenge);
35. Peightal v. Metro. Dade Cnty., 26 F.3d 1545, 1548 (11th Cir. 1994) (discussing Title VII challenge).
36. Most of the discussion of voluntary or "elective" racial affiliation and affirmative action explores concerns about individuals making strategic racial-identity claims. See, e.g., Kennedy, supra note 10, at 1191. See generally John Martinez, Trivializing Diversity: The Problem of Over inclusion in Affirmative Action Programs, 12 HARV. BLACK LETTER L.J. 49 (1995);
37. Chris Ballentine, Note, "Who Is a Negro?" Revisited: Determining Individual Racial Status for Purposes of Affirmative Action, 35 U. FLA. L. REV. 683 (1983).
38. RICHARD THOMPSON FORD, RACIAL CULTURE: A CRITIQUE 91, 97-98 (2005) (arguing that "civil rights [laws] should focus on eliminating status hierarchies, while generally leaving questions of cultural difference to the more fluid institutions of popular politics and the market");
39. Cristina M. Rodríguez, Against Individualized Consideration, 83 IND. L.J. 1405, 1406, 1412 (2008) (raising concerns about essentialism in affirmative action selection decisions).
40. KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS 21-26 (2006) (arguing that civil rights law should protect against covering demands that require the individual to mute aspects of his or her authentic self).
41. SHELLEY FISHER FISHKIN, LIGHTING OUT FOR THE TERRITORY: REFLECTIONS ON MARK TWAIN AND AMERICAN CULTURE 134 (1996) (recording precise quote as: "the report of my death is an exaggeration").
42. See, e.g., Mario L. Barnes et al., A Post-race Equal Protection?, 98 GEO. L.J. 967 (2010) (discussing discursive and analytic limitations of the construct);
43. Sumi Cho, Post-racialism, 94 IOWA L. REV. 1589 (2009) (same).
44. For further discussion of this phenomenon, see Camille Gear Rich, Elective Race, 102 GEO. L.J. (forthcoming June 2014).
45. See, e.g., Eric D. Knowles & Kaiping Peng, White Selves: Conceptualizing and Measuring a Dominant-Group Identity, 89 J. PERSONALITY& SOC. PSYCHOL. 223, 223 (2005) (discussing tendency for whites to focus more on white identity when interacting with persons of other races);
46. Brian S. Lowery et al., Concern for the In-Group and Opposition to Affirmative Action, 90 J. PERSONALITY & SOC. PSYCHOL. 961 (2006).
47. Aliya Saperstein, Double-Checking the Race Box: Examining Inconsistency Between Survey Measures of Observed and Self-Reported Race, 85 SOC. FORCES 57, 58 (2006) (demonstrating that self-reported race and third-party classification often yield dissimilar results despite government policies that treat these methods as producing similar findings).
48. For a discussion of the multiracial movement's effect on legal policy and national discourse, see Ann Morning, Multiracial Classification on the United States Census: Myth, Reality, and Future Impact, 21 REVUE EUROPÉENE DES MIGRATIONS INTERNATIONALES, no. 2, 2005, at 1, 2-19, available at http://remi.revues.org/index2495.html. Morning notes that once Directive 15 accommodated multiracials' needs, it led to a flurry of changes to all federal agencies' data-collection efforts to reflect this changed understanding. Id. at 3. Morning also explains that the growth of the multiracial movement is strongly linked to discursive claims about America's post-racial future, the permeability of racial boundaries, and the end of racism. Id. at 4.
49. See Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity, 62 Fed. Reg. 58,782, 58,782 (Oct. 30, 1997) ("Respect for individual dignity should guide the processes and methods for collecting data on race and ethnicity; ideally, respondent self-identification should be facilitated to the greatest extent possible, recognizing that in some data collection systems observer identification is more practical.").
50. MICHEL FOUCAULT, DISCIPLINE AND PUNISH 148, 177-84 (Alan Sheridan trans., Vintage Books ed. 1979) (1975). Foucault explains that when a person is subject to penal, bureaucratic, and administrative procedures, these procedures over time condition the individual to see herself in a particular way and to frame her interests in ways that are shaped by administrative and institutional norms. Applied to race, Foucault's insights suggest that the repeated government inquiries requiring individuals to make decisions about racial identity ultimately condition an individual to believe that racial-identification decisions are important, that she has a vested interest or right to determine her racial identity, and that the decisions made have institutional or social significance.
51. Joseph Z. Fleming, I Believe There Is Something Out There Watching Us; Unfortunately, It's the Government: An Analysis of the EEOC's "EEO-1" and OFCCP Reporting Requirements, in AMERICAN LAW INSTITUTE-AMERICAN BAR ASSOCIATION CONTINUING LEGAL EDUCATION: ADVANCED EMPLOYMENT LAW AND LITIGATION 1209, 1240-41 (2006).
52. see also Final Guidance on Maintaining, Collecting, and Reporting Racial and Ethnic Data to the U.S. Department of Education, 72 Fed. Reg. 59,266, 59,277 (Oct. 19, 2007).
53. See Camille Gear Rich, Decline to State: Diversity Talk and the American Law Student, 18 S. CAL. REV. L. & SOC. JUST. 539, 539 n.1 (discussing Final Guidance on Maintaining, Collecting, and Reporting Racial and Ethnic Data to the U.S. Department of Education, supra note 43).
54. See, e.g., Marie L. Miville et al., Chameleon Changes: An Exploration of Racial Identity Themes of Multiracial People, 52 J. COUNSELING PSYCHOL. 507, 511-13 (2005).
55. See, e.g., Elizabeth Vaquera & Grace Kao, The Implications of Choosing "No Race" on the Salience of Hispanic Identity: How Racial and Ethnic Backgrounds Intersect Among Hispanic Adoles- selfcents, SOC. Q. 375, 389 (2006) (noting that two-thirds of Hispanic youth in their research sample refused to choose any of the established racial categories when told Latino would not be recognized as a racial category).
56. Wendy D. Roth, Racial Mismatch: The Divergence Between Form and Function in Data for Monitoring Racial Discrimination of Hispanics, 91 SOC. SCI. Q. 1288, 1289-91 (2010) (explaining that Latino or Hispanic is not a racial designation for federal data collection purposes and discussing problems with this rule);
57. See John Tehranian, Compulsory Whiteness: Towards a Middle Eastern Legal Scholarship, 82 IND. L.J. 1, 3-5 (2007).
58. See, e.g., David R. Harris & Jeremiah Joseph Sim, Who Is Multiracial? Assessing the Complexity of Lived Race, 67 AM. SOC. REV. 614, 619 (2002). These authors found that that 8.6% of youths identified as multiracial at home or at school, but only 1.6% identified as multiracial in both contexts, and just 1.1% selected the same combination in both contexts. Id. They found further that 2.8% of youths switched between different single-race identities depending on context. Id.
59. See Aliya Saperstein & Andrew M. Penner, The Race of a Criminal Record: How Incarceration Colors Racial Perceptions, 57 SOC. PROBS. 92, 92-93 (2010).
60. See Sarah S. M. Townsend et al., Being Mixed: Who Claims a Biracial Identity?, 18 CULTURAL DIVERSITY& ETHNIC MINORITY PSYCHOL. 91, 91 (2012).
61. EEOC Final Notice of Submission to OMB of Employer Information Report (EEO-1), 70 Fed. Reg. 71,294, 71,294-71,303 (Nov. 28, 2005) (granting employer leave to identify employee when an employee has "declined to self identify or in other undefined situations in which it was 'unduly burdensome' or 'otherwise is not practical or feasible' to extend an invitation to self-identify"). The report also indicates that ordinarily an employer is only allowed to decide the employee's race if the employee declines to self-identify. Id.;
62. See generally IAN HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996);
63. Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 YALE L.J. 109 (1998)
64. Angelina E. Castagno & Stacey J. Lee, Native Mascots and Ethnic Fraud in Higher Education: Using Tribal Critical Race Theory and the Interest Convergence Principle as an Analytic Tool, 40 EQUITY & EXCELLENCE EDUC. 3, 9-10 (2007) (discussing this phenomenon in the context of indigenouscommunities) . Castagno explains that "[a] policy guarding against ethnic fraud would potentially facilitate greater equity in the distribution of funds, jobs, and resources. But, because the price is too high for the university to require proof [of racial or ethnic identity], self-identification policies remain intact." Id.
65. See Derrick A. Bell, Brown v. Board of Education and the Interest Convergence Dilemma, 93 HARV. L. REV. 518, 523-28 (1980) (describing interest convergence as circumstances in which different interest groups find themselves united in pursuit of a single goal but for very different political reasons). Bell's primary goal in introducing this construct is to demonstrate how this phenomenon results in temporary unstable coalitions in the battle for racial equality. Id.
66. By sophisticated players, I am referring to those with experience negotiating racial-datacollection regimes and affirmative action programs in the workplace or other institutional settings. These individuals know that they can temporarily identify with a minority group in order to secure affirmative action benefits but later abandon this affiliation. See, e.g., A. T. Panter et al., It Matters When and How You Ask: Self-Reported Race/Ethnicity of Incoming Law Students, 15 CULTURAL DIVERSITY & ETHNIC MINORITY PSYCHOL. 51, 58 (2009) (noting that majority of students identifying as "other" on the LSAT were multiracial white students who subsequently identified as white after the law school admissions process ended).
67. E.g. United States v. N.Y.C. Bd. of Educ., 85 F. Supp. 2d 130, 153 (E.D.N.Y. 2000) (permitting employer to reject requests for benefits by putative Latino employees who failed to identify as Latino in employment forms).
68. See, e.g., Lopez-Galvan v. Mens Wearhouse, No. 3:06CV537, 2008 WL 2705604, at *7 (W.D.N.C. July 10, 2008) (rejecting employee's claim of race discrimination because plaintiff solely alleged antiblack animus but self-identified as Latino and conceded his national origin was Dominican);
69. Green v. Swain Cnty. P'ship for Health, 342 F. Supp. 2d 442, 451 (W.D.N.C. 2004) (employer challenging plaintiff's claim to be Native American because she did not identify as Native American on her employment application and was not an enrolled member of a tribe).
70. See Malone v. Haley, No. 88-339, slip op. at 16 (Mass. Sup. Jud. Ct. Suffolk Cnty. July 25, 1989).
71. Reva B. Siegel, Discrimination in the Eyes of the Law: How "Color Blindness" Discourse Disrupts and Rationalizes Social Stratification, 88 CALIF. L. REV. 77, 91 (2000).
72. See id. For a more expansive discussion of the ways in which documentary race can trigger discrimination, see generally Angela Onwuachi-Willig & Mario L. Barnes, By Any Other Name?: On Being "Regarded as" Black and Why Title VII Should Apply Even If Lakisha and Jamal Are White, 2005 WIS. L. REV. 1283 (discussing studies showing race discrimination was triggered in written application process because of applicants' racially marked first names).
73. Cf. Carol T. Kulik & Loriann Roberson, Diversity Initiative Effectiveness: What Organizations Can (and Cannot) Expect from Diversity Recruiting, Diversity Training, and Formal Mentoring Programs, in DIVERSITY AT WORK 265, 265 (Arthur P. Brief ed., 2008) (discussing the business case for diversity).
74. Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1293-97 (2000).
75. cf. J.M. Balkin, Free Speech and Hostile Environments, 99 COLUM. L. REV. 2295, 2319 (1999) (explaining that as a general rule, "[employers] will even tolerate employee behavior that is racist, sexist, unjust, or anti-social, as long as it promotes workplace cohesion and morale and is not bad for business").
76. See Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458, 460 (2001). (Pubitemid 33651459)
77. But see Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1, 2-3, 10 (2006) (criticizing Susan Sturm, Tristin Green, and others for structural turn). 99. Sturm, supra note 98, at 460-63.
78. Malone v. Haley, No. 88-339, slip op. at 17 (Mass. Sup. Jud. Ct. Suffolk Cnty. July 25, 1989).
79. See GEORGE YANCEY, WHO IS WHITE?: LATINOS, ASIANS, AND THE NEW BLACK/NONBLACK DIVIDE 37-44 (2003) (noting that the growth of Asian and Latino populations in the United States has moved discussions of race away from the black-white paradigm).
80. Jonathan B. Freeman et al., Looking the Part: Social Status Cues Shape Race Perception, 6 PLOS ONE 1, 2 (2011), available at http://www.plosone.org/ article/info%3Adoi/10.1371/journal.pone.0025107.
81. See Siegfried Ludwig Sporer, Recognizing Faces of Other Ethnic Groups: An Integration of Theories, 7 PSYCHOL. PUB. POL'Y & L. 36, 48, 72-73 (2001) (noting that greater exposure to different racial groups leads to greater accuracy in categorizing faces into racial groups).
82. Malone v. Haley, No. 88-339, slip op. at 18 (Mass. Sup. Jud. Ct. Suffolk Cnty. July 25, 1989).
83. See generally Robert A. Hahn et al., Inconsistencies in Coding of Race and Ethnicity Between Birth and Death in U.S. Infants: A New Look at Infant Mortality, 1983 Through 1985, 267 JAMA 259, 259 (1992) (explaining that Asian and Latino babies have the highest rates of inconsistent reports of race between the two events). In both groups, over 40% of deceased babies were recategorized. Racially ambiguous babies in both racial categories tended to be recategorized as white. Id.
84. Malone v. Haley, No. 88-339, slip op. at 16 (Mass. Sup. Jud. Ct. Suffolk Cnty. July 25, 1989).
85. See DEVON W. CARBADO & MITU GULATI, ACTING WHITE?: RETHINKING RACE IN POST-RACIAL AMERICA 25-33 (2013).