Tip:
Highlight text to annotate it
X
Good afternoon, ladies and gentlemen.
Today professor Hemmings will explain,
how courts in America decide someone's race.
Yes Karen.
It is a topic that people often find confusing or inconsistent.
I am sure that our viewers are looking forward to it.
To review prior material, most inhabitants of the New World
are a mixture of three colonial populations:
Europeans, Africans, and Native Americans.
But the United States is unique in preserving a distinct
endogamous genetic enclave of mostly African appearance.
This leads to conflict between dichotomous myth and genetic reality.
The dichotomous myth is that every American
is either of the Black race or not,
with no ambiguity nor middle ground.
The genetic reality is that virtually all Black Americans
carry genetic markers from European colonial ancestors,
and about one-third of White Americans show
detectable genetic markers from African slave ancestors.
As with most disputes, this conflict between myth and reality,
is resolved by the courts.
Since colonial times, about 300 appealed court cases
have been held to decide an American's race.
Why is this necessary? What yardstick do they use?
Before the 1955-65 civil rights movement, such trials were held
to decide if you could: incur slavery's burden of proof,
marry, testify, attend school, vote, inherit,
commit slander, carry a weapon, or incur carrier liability.
Nowadays, the most frequent reason is to determine entitlement:
affirmative action, workplace discrimination,
residential discrimination, Batson hearings.
Throughout the 19th century,
courts used three rules to determine "race":
appearance (whether you looked Black),
blood fraction (how many Black grandparents you had),
and association (which community accepted you).
Courts then used the one-drop rule
from the start of the Jim Crow era to the mid 1980's.
But the one-drop rule fell out of fashion in court
about 30 years ago, with the Louisiana case of Mrs. Susie Phipps.
She was a woman who had considered herself White all her life,
as did her husband, relatives, and friends.
But when she checked off "White" on a passport application,
the clerk rejected it, saying that she looked
like she had a touch of Black blood.
She sued and lost. She appealed and lost again.
According to Louisiana's one drop rule law,
the only defense against an accusation of Black blood
was to show that you had no African ancestry forever.
This is impossible, of course,
given that you had a thousand ancestors 10 generations ago in 1800,
and a million ancestors 20 generations ago in 1600.
She went to the U.S. Supreme Court and lost once and for all.
According to the Supreme Court,
racial classification was not a federal issue.
Since that case,
the one-drop rule has never been argued successfully in court.
Instead, courts today rely on acceptance by the leaders
of the African-American ethno-political community.
If you are accepted by local Black leaders,
then you are legally Black, no matter what you look like,
no matter your documented ancestry, no matter your DNA,
no matter your own choice of self-identity.
On the other hand, if you are rejected by local Black leaders,
then you are not legally Black, no matter what you look like,
no matter your documented ancestry, no matter your DNA,
no matter your own choice of self-identity.
Three cases show how racial classification works today:
Mostafa Hefny, Mary Christine Walker,
and twin brothers Phillip and Paul Malone.
Mostafa Hefny was a businessman in Detroit.
He was an immigrant from Africa, from Egypt in fact.
And he was working towards naturalization as U.S. citizen.
He heard that the federal Small Business Administration
was granting loans to Black-owned businesses. He applied.
But he was turned down on the grounds that he was not Black.
The Small Business Administration's explanation,
according to the Detroit office, is that
Black loans are intended only for those
whose ancestors suffered under slavery, and the Jim Crow era.
They said that Hefny could not simply
"waltz in from Africa" and claim to be Black.
Hefny demanded a formal hearing and lost.
The excuse changed during the hearing however.
The court ruled that federal regulations forbid immigrants
from North African nations (including Egypt)
from calling themselves Black, no matter what they look like.
Here are the actual regulations.
They were interpreted, in Hefny's case, as accepting as Black
anyone of sub-Saharan phenotype from France or Germany,
but insisting that if you are from North Africa,
then you are White by definition.
Obviously this makes no sense at all.
So one must read the testimony presented at Hefny's hearing
to learn what was the real problem with his application.
As it turns out, a parade of witnesses from Detroit's
African-American community had testified that he
lived in a White suburb, was a member of White social clubs,
went to a White church, and sent his kids to a White school.
He had no contact with the African-American community.
The hearing judge essentially ruled that "racial" membership
comes down to membership in a community,
and that mere physical traits are not decisive.
Now let us examine the case of Mary Christine Walker,
a 39-year-old Denver schoolteacher with fair complexion,
green eyes, and light brown hair.
In 1988 she claimed on a job application to be Black.
Her prospective employer obtained Ms. Walker's birth certificate,
found her listed there as White, and accused her of lying
to take advantage of minority-hiring policies.
The school, you see,
had announced that they would consider only Black applicants.
Walker promptly filed suit in State District Court.
Walker was born a White child into a White family but in
adolescence found herself more at home among African Americans.
She joined a Black church and Black social clubs;
her friends and boyfriends were Black.
She claimed to be Black, despite her looks. She sued and won.
The school board appealed and she won again,
this time with increased damages levied against the school.
The Colorado Supreme Court was apparently persuaded
by the large number of influential Black leaders
(politicians, ministers, etc.), who testified that
Mary was truly a member of the African-American community.
On September 6, 1989, Judge John Brooks Jr. ordered the state
Department of Vital Statistics to issue the woman
a new birth certificate listing her as racially Black.
Finally, lets consider the case of the Malone Brothers.
The case of the Malones of Boston went the other way.
Twin brothers Phillip and Paul Malone applied
to become Boston firefighters in 1975 but
were rejected due to low civil service test scores.
After the city instituted an affirmative action program
that added test points for Blacks,
the Malone brothers claimed that their mother suddenly
revealed that a great-grandmother was Black.
They thereupon re-applied as Blacks in 1977
and successfully completed the examination due to the extra
points that they received for their newly discovered Blackness.
For ten years, they led successful careers and their names
were submitted to the Boston Fire Commission
for promotion to lieutenants in 1987.
Both men passed the qualifying examinations with
exceptional scores (without affirmative action points).
Then, a fire commissioner
who had been reviewing promotion paper-work observed
the Malones and accused the brothers of racial fraud.
The accusation sparked a political firestorm.
One minority leader claimed that as many as 60 of Boston's
351 Black and 51 Hispanic firefighters were actually lying Whites.
Another complained that the authorities had
"looked the other way" for ten years.
"If a black person came waltzing into the fire department
in the '70s and it was in his interest to claim he was white,
I have no doubt the Boston Fire Department would say,
'Wait a minute, you're not white.'
But when a white person said he is black, they look the other way."
Stung by the attacks, Boston's enraged Mayor Flynn ordered
investigations into all city departments (fire, police, schools)
to root out other Whites who may have
fraudulently claimed minority status.
A frenzy of bureaucratic evil-seeking ensued.
The fire department's investigation turned up
eleven Spanish-surnamed individuals who were accused of
not being "racially" Hispanic enough. Seven were exonerated;
two resigned under pressure; the other two remained
under investigation until the firestorm dwindled away.
Two departments (Police and Schools)
refused to participate in the widening hunt for "racial" frauds.
The following year, a 23-page ruling by Justice Herbert Wilkins
of the state Supreme Judicial Court
convicted the Malones of fraud and upheld their expulsion.
His decision referred to the position taken
by the Black political leadership.
Had the Black community supported the Malone brothers
(and presumably the disgraced Hispanic firefighters as well),
they would have been allowed to keep their jobs.
To recap.
Mosfafa Hefny was ruled to be legally White,
despite being an African of African appearance.
Mary Christine Walker was ruled to be legally Black,
despite having no documented African ancestry.
And the Malone brothers' ancestry was never investigated,
being seen as irrelevant to their racial classification.
In conclusion, U.S. courts today apparenty see race
as resembling membership in a club or society.
If the leaders of that society accept you, then you are a member.
If they reject you, then you are not a member.
Of America's three historical rules of racial determination,
appearance, blood fraction, and association,
only the third survives in today's U.S. legal practice.
That is the end of my presentation for today.
Thank you for listening.
Karen: Thank you, professor.
I am not sure that I understand this topic.
Why must courts of law decide what race you are in America?
You said there have been hundreds of such cases.
Surely, it should be obvious to the eye.
Look at us, for instance. Anyone can see
that I have more visible African ancestry than you do.
And so, anyone would say, in day-to-day language
that I am Black and you are White.
Why should courts become involved?
Professor Hemmings: It does seem strange, doesn't it?
Well, Karen. There are two reasons.
The first is the U.S. doctrine
that African Americans come in all colors.
This means that millions of U.S. citizens consider themselves
to be African American because they were born into the ethnic
community, even though they look European or Hispanic.
If U.S. society went only by appearance,
then racial determination court cases might not be necessary.
The second reason is that, since about 1690, North Americans
have granted special privileges or imposed special restrictions
based on racial classification.
Until about 1985,
it was usually advantageous to be accepted as White.
Since then, it has often been advantageous to be seen as Black.
And so, the notion of invisible Blackness,
wherein some European-looking people consider themselves Black,
plus the policy of granting or withholding rights based on race,
together make the issue contentious.
And in civilized societies, contention must be resolved
in the court of law.
Karen: Well, ladies and gentlemen,
that is all of our time for today.
This is Karen Sharpe.
Professor Hemmings: And Randolph Hemmings
Karen: signing off until next time.