By Chris Hansen (Click here to view the entire P&R issue)
Buried in the debate begun by Lawrence Wright’s provocative New Yorker article and continued in the January/February issue of Poverty & Race are two extremely important and related, but nevertheless distinct, questions about the central domestic issue of our time-race. First, should we continue to collect data on the race/ethnicity of people living in the United States? Second, if we are to continue to collect those data, how should the categories be structured? The answer to the first question is easy; the second, less so.
Of course we should continue to collect data on race/ethnicity. The ACLU’s Voting Rights Project uses race data every day in analyzing the impact of changes in voting rules on minority voters. Surely we can all agree that the data are needed to determine if proposed changes will have a discriminatory effect. The ACLU has used race data in school desegregation cases, most notably Brown vs. Board of Education. Topeka kept no race data from 1956-1966. If it hadn’t started keeping those data in the 60s, we would never have been able to establish that the schools there are still not desegregated. Even more recently, as Samuel Myers suggested in his commentary, federal data on mortgage lending supplied by the Home Mortgage Disclosure Act (HMDA) have firmly established the existence of race discrimination in lending and helped identify those most culpable, many of whom are now being more intensively investigated for possible litigation. Because of the value of the HMDA data, the ACLU and other civil rights groups have recently urged the federal government to collect and make public additional race/ethnicity data concerning community lending and secondary market lending. Continued collection of race/ethnicity data is essential.
If we do continue to gather data on race/ethnicity, Wright raises several legitimate questions about the categories. The “one drop” rule does have a troubling racist tinge to it. In addition, civil libertarians should be concerned when the government forces an individual to accept a racial classification that that individual finds inaccurate. These problems arise because, for lawyers, the question is not whether there is any objective component to race but rather whether people are treated differently based on certain characteristics, and if so, how the law should react to that different treatment. As many of the articles in the last Poverty & Race indicate, race/ethnicity is often not one-dimensional. As noted, Hispanics can be from many different races. Identity also has aspects of self-definition (do I consider myself Black?), perception (am I considered Black by others?) and treatment (am I treated as if I were Black?). These different aspects are not always congruent. (By contrast, sometimes race/ethnicity isn’t even one-dimensional. A few years ago, I was probing definitions of race/ethnicity in a deposition in a case charging the New York City foster care system with racial and religious discrimination. After describing my background to the deponent-white, northern European, Protestant-I asked what ethnic group she would assign me to. She testified I didn’t have an ethnicity.)
At the same time, existing civil rights laws are dependent on the ability to define limited, discrete categories of people who have been subject to prejudice and are therefore protected from further discrimination. Discrimination is not merely an act against an individual; it is also usually an act against a discrete category of individuals. That is why civil rights lawyers do not limit themselves to individual cases, but also bring class actions seeking redress for all in the protected category. If the categories become too numerous or too ill defined, they will become meaningless.
Perhaps one solution would be to borrow from disability law. People are protected against discrimination on the basis of disability if they are disabled or, even when they are not, if they are perceived as disabled. Perhaps people would be protected if they self-identify as Black, or if they self-identify as multiracial or other but are perceived/treated as Black. In any case, the difficulties of categorization should not prevent us from continuing to coliect the data.
Chris Hansen is a Senior Staff Counsel with the national office of the American Civil Liberties Union (132 W. 43rd St., New York, NY 10036.
