This article appeared in the 23 September 1994 issue of New Law Journal, published by Butterworths in London. It may be cited as M. R. Franks, Seeing in Black and White, Part II, 144 New Law Journal 1287 (Sept. 23, 1994).

*Maurice R Franks is Associate Professor of Law at the Université de Cergy-Pontoise, Paris, France, and Assistant Professor of Law at Southern University, Baton Rouge, Louisiana. He holds his Bachelor of Science and Juris Doctor degrees from Memphis State University.

Maurice R. Franks continues his examination of discrimination by definition. Part 1 appeared on September 16.

The Supreme Court has said that classifications based upon race are inherently suspect and must be subjected to strict scrutiny.²⁵ The "one-drop-contaminant" definition of black is ipso facto a classification based upon race because it treats persons of part-African ancestry differently from persons of other mixed ancestries. As such, the classification violates the due process and equal protection clauses of the fifth and fourteenth amendments to the United States Constitution.

Numerous older cases exist in which the definition of "black" or "coloured" or "Negro" has been considered by American courts, often in the context of a child seeking admission to a school reserved for whites,²⁶ in the context of determining the validity of a marriage for estate or family law purposes,²⁷ or in the context of determining the applicability of racially restrictive covenants on real property.²⁸ In some of these cases, courts have applied statutory definitions of race,²⁹ but in the majority of cases the courts simply applied the common, one-drop definition.³⁰

The pre-Civil War Ohio Supreme Court case of Van Camp v Board of Education of the Incorporated Village of Logan³¹ is noteworthy. In that case, children of predominantly white parentage were denied admission to a school reserved for whites. Justice Peck, writing for the majority, began his opinion by noting:

Justice Peck then proceeded to deny the plaintiff's children the right to attend a white school, relying upon the dictionary:

Dissenting in that 1859 case, Justice Sutliff remarked that "caste-legislation, the inveterate vice of absolute governments, is inconsistent with the theory and spirit of a free and popular government like ours".³⁴

There is a paucity of recent American cases in which the definition of "black" has been challenged, and the few cases that are reported all come from Louisiana.

In State ex el Schlumbrecht v Louisiana State Board of Health,³⁵ the Louisiana Court of Appeal for the Fourth Circuit found inconsistencies in the words "mulatto", "free persons of colour", and "colored" sufficient to make use of those terms suspect and inaccurate.

In State ex rel Plaia v Louisiana State Board of Health,³⁶ a parent sued for a writ of mandamus to compel issue of a birth certificate showing his child's race to be white. The Louisiana Court of Appeal for the Fourth Circuit determined that birth and census records of the child's forbears were unreliable, and granted relief. Said the court:

The Supreme Court of Louisiana affirmed in part and reversed in part, upholding the relief awarded but reversing on the constitutional issue. The supreme court in Plaia rejected challenges that the statute was void for vagueness and created an invidious racial discrimination. In holding the statute constitutional, however, the court failed to subject it to strict scrutiny.

The statute in question, since repealed, provided:

In Doe v Department of Health and Human Resources,³⁹ the plaintiffs sought changes in the racial designations of their deceased parents on state records. The Civil District Court for the Parish of Orleans found the evidence insufficient to justify mandamus, and the plaintiffs appealed. The Louisiana Court of Appeal for the Fourth Circuit affirmed, holding:

The court specifically commented that the voluminous record contained "fascinating evidence of race as a matter of physical appearance, heredity, self-perception, community recognition, and cultural bias."⁴¹ The court noted:

The appellate court noted that the racial designations on the birth certificates had been made not by public officials but by the parents themselves or by the attending midwife.⁴³ Evidently in practice a person's race in Louisiana may be determined by a midwife.⁴⁴

Judge Armstrong, concurring in part and dissenting in part, would have found the repealed statute relevant as creating a "suspect" classification in violation of the equal protection clause, even though no state official designated the plaintiffs' race.⁴⁵ In her view, the statute impermissibly prohibited persons of certain genealogical status from being classified as black.⁴⁶ On rehearing, the court considered the plaintiffs' challenge to the constitutionality of La Rev Stat Ann § 40:34(A)(1)(k), which requires the race or races of the parents to be included on all birth certificates. The court found that the requirement does not infringe the plaintiffs' constitutional rights because no racial classification is made by the state. The court, applying an intermediate standard and not strict scrutiny, noted that the state registrar of vital records is merely the custodian of information reported by the individuals whose race is recorded, that the information is confidential and not listed on certified copies of birth certificates, and that the information serves an important governmental purpose by providing statistics that are an invaluable tool for planning and monitoring public health programs, affirmative action and other anti-discrimination measures.⁴⁷ The Supreme Court of Louisiana denied writs,⁴⁸ and the Supreme Court of the United States dismissed the appeal.⁴⁹

Persons in Louisiana may now be issued birth certifications on which their race is not indicated;⁵⁰ but the registrar's confidential records continue to indicate both parents' races.⁵¹ The races reported supposedly represent the opinion of the reporting parent, but the applicable regulations and practices of the Louisiana Division of Records and Statistics place the burden on hospital personnel and the attending physician to assemble and record the medical and personal data to be entered on the birth certificate.⁵² In practice, this means the form is filled in for the reporting parent's signature by hospital personnel or the attending physician.⁵³

Throughout life, persons also must indicate their race on numerous forms and applications, beginning certainly with enrolment in school. Applicants may be charged with fraud if they "misstate" their race on applications for admission to school or for benefits from particular programmes in which race is relevant. A person who is one-sixteenth black conceivably could be charged with fraud for indicating his race to be white, even though he is in fact fifteen-sixteenths white. Conversely, that same person in the North conceivably could be charged with fraud for calling himself black. The knee-jerk reaction of most judges and jurors in trying such a case would be to apply community understandings of the definitions of black and white - definitions based on the one-drop theory. These definitions no longer exist by statute; they now exist by custom.

Social rights in the private setting flow from these state-originated definitions by custom. Such rights include eligibility to country-club memberships and patterns of personal friendships that to this day have roots in state-sanctioned discrimination of the past. Present-day legal rights also hinge on these definitions, as any parent or child living in a school district served by a court-ordered bussing plan can attest. In scores of cities across the country, one's eligibility to attend the neighborhood school versus riding the crosstown school bus depends on one's race as defined by unconstitutional custom.

Such definitions are no less unconstitutional because they are unwritten. The Ku Klux Klan Act of 1871 reaches more than just statutory legislation; it provides redress for illegal state action taken "under color of any statute, ordinance, regulation, custom, or usage of any State".⁵⁴ In the lunch-counter desegregation cases, the Supreme Court determined that an unconstitutional "custom" recognised by the state is repressible under 42 USC § 1983.⁵⁵ At the plaintiff's option, suits arising under § 1983 may be brought either in federal court or in state court.⁵⁶

It would seem that constitutional challenge could be mounted against the tacit practice of classifying persons of black and part-black ancestry by different criteria from persons of other races and racial mixtures. The one-drop-contaminant theory is a classification based upon race and should be subjected to strict scrutiny.⁵⁷ It can be argued, however, that there is a compelling state interest in the status quo, since the public perceives most persons of part-African ancestry to be black and since those who discriminate against blacks also discriminate against persons of fractional black ancestry.⁵⁸ Therefore, for statistical compilations to be useful for purposes of employment discrimination litigation or school desegregation efforts, it is necessary that such statistics be based on the popular, albeit one-drop, definition. Otherwise, persons of mixed race might be classified as "white" despite the fact that they too are members of the set being discriminated against and thus equally the rightful beneficiaries of the civil rights laws. In other words, continued use of racial classifications created and concocted by racists will help combat racism.

The answer to this circular argument, of course, is that questionnaires just as easily can ask persons whether they are white, black, or of mixed race. It should not unduly strain the judicial mind to have to work with three groups in the South, two of whom are the victims of discrimination, instead of working with just the present two groups. Courts and officials in the West have been working for many years with five groups (white, black, Oriental, Native American, and Hispanic), with no evidence of undue judicial confusion. The existing system, on the other hand, encourages many persons of mixed ancestry and chameleon-like proclivity to claim status sometimes as black and other times as white according to the convenience of the moment.

The ultimate goal should be to eliminate negative aspects of race consciousness in American society (the inability to see beyond colour and the forming of pre-judgments about a person's abilities or worth based upon colour), while retaining positive aspects of race consciousness (the taking of pride in one's cultural heritage and the use of racial indicia for purposes of remedying racial injustice).

Racial identity, of course, remains something uniquely personal that only the holder should be permitted to claim. Classification by race has no business being inflicted upon one by means of a birth certificate. The race of a child ought never be immortalised by the opinions of a midwife. Any person claiming to be black, white, or mixed, should be permitted so to classify himself. The classification should be recognised unless manifestly erroneous. A person of mixed ancestry is no more black than white, no more white than black. He should be permitted wide latitude in describing himself.

Only in America are demands made upon persons of mixed ancestry to "choose sides", and then only when one of those mixed ancestries is black. In contrast, persons of, say, mixed Oriental and Spanish ancestry are permitted even in America to enjoy the benefit of both of their heritages. Thus, black ethnicity does not stand on equal footing with other ethnicities: the disparate treatment accorded blackness is at once a remnant of the slave-master/slave mentality, a semantic tool necessary to perpetuate today's subjugation of the black race, and a symptom of our nation's tragically pathological social disorders.

Contaminism is not just discrimination against persons of mixed ancestry; it is discrimination against all blacks and all blackness, denying the black race equal stature and dignity with other races and ethnicities. It polarises.

Sceptics might suggest that "blacks prefer the races defined the way they are".⁵⁹ Others might taunt mixed persons of colour, asking, "Are you ashamed of your black roots?". The correct answer, of course, is surely not. Racial identity in a positive sense - the awareness of all one's roots - is beneficial to the self-esteem of every individual and works to the good of society. Certainly, racial pride in the black communities is important. The one-drop-contaminant mindset, however, does not foster racial pride in any positive sense. Professor Gotanda feels that:

Lack of a one-drop-contaminant theory has never deterred white Americans of mixed ethnicity from taking justified pride in their predominantly Italian-American, Irish-American, Greek-American or other ethnic backgrounds. The black communities have no more need than Italians or the Irish for a one-drop straitjacket to encourage persons to identify themselves as black and to take rightful pride in their African-American heritage.

The one-drop theory, rooted in discriminatory legislation of the past, derives succour and sustenance today only from repealed statutes and from tacit community definitions of the term black; it creates a constitutionally impermissible distinction between black ancestry and all other ancestries. This destructive semantic segregation and linguistically enforced polarisation is tacitly sanctioned by law, including custom and usage. The best interests of the republic require that racial polarisation be defused. One small step towards this goal is insistence that the races be defined and classified using race-neutral criteria that linguistically allow persons to be of mixed race - even when one of the races involved is black. The courts need to declare the one-drop method of racial definition unconstitutional.

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