Race

Westview Press

Chapter One

In contrast to a recent (2003), highly acclaimed PBS documentarythat termed race "an illusion," a myth constructed by Europeans in theAge of Exploration to justify colonialism and slavery, we argue thatrace is real.

We begin the case for race by noting how one of the most contentiousfacets of our society, our legal system, has no trouble in recognizingeither the existence of race or the ability of the average citizen todo so. Further, DNA markers have been used to identified the race ofperpetrators.

We have an inborn tendency to sort people into groups. The latestevidence shows how this tendency can mirror biological reality.

Some twenty years ago, coauthor Vincent Sarich received a callfrom a San Francisco attorney who was serving as defense attorneyin a racial discrimination case brought by a man who claimedhe had been discriminated against because of his American Indianancestry. As part of their discussion, the question of legal"standing" arose; that is, did the plaintiff actually have the requisiteracial ancestry-was he, in fact, an Indian? Vince naivelyasked for the legal definition of "race" and was told there wasn'tone. Still, in the spirit of scientific inquiry, he observed the proceedingsuntil the first break, at which point he told the attorneythat, in his opinion, the attorney's client had no chance of arguingsuccessfully that the plaintiff lacked standing. To Vince's eyes,the plaintiff obviously "looked" Amerindian. End of case.

As we began working on this book, we discussed the issue ofthe legal definition of "race" and asked the opinion of an attorneywho specializes in civil rights law, which touches on this issue. Heinformed us that there is still no legal definition of "race"; nor, asfar as we know, does it appear that the legal system feels the needfor one. Thus, it appears that the most adversarial part of ourcomplex society, the legal system, not only continues to acceptthe existence of "race" but also relies on the ability of the averageindividual to sort people into races. Our legal system treats "racialidentification" as self-evident, whereas an increasing number ofanthropologists (the profession, one would think, with the pertinentexpertise) have signed on to proclamations that categoricallystate the term has long ago ceased to have any scientificlegitimacy.

Why this clash? To us the answer is simple: The courts havecome to accept the commonsense definition of race, and it is thiscommonsense view that, as we show, best conforms to reality. Alook at two recent (2000) cases is illustrative. In both Rice v. Officeof Hawaiian Affairs and in Haak v. Rochester School District, neitherside raised any questions about the existence of human racesor the ability of the average citizen to make valid judgments as towho belongs to which race (even if the racial categories are euphemisticallytermed "peoples" or "populations"). No special expertisewas assumed or granted in defining or recognizing raceother than the everyday commonsense usage, as given in the OxfordEnglish Dictionary, that a race is "a group of persons connectedby common descent" or "a tribe, nation, or people, regarded as ofcommon stock." The courts and the contending parties, in effect,accepted as givens the existence of race and the ability of the ordinaryperson to distinguish between races based on a set of physicalfeatures.

RICE V. OFFICE OF HAWAIIAN AFFAIRS-RACE BY ANY OTHER NAME IS STILL RACE

In the first case, the United States Supreme Court reversed ajudgment of the 9th Circuit Court of Appeals. The petitioner,H. F. Rice, had challenged the State of Hawaii for not allowinghim to vote in an election for the nine trustees of the Office ofHawaiian Affairs, an agency that administers programs designedfor the benefit of "Hawaiians."

Originally, "Hawaiian" was defined as "any descendant of theraces inhabiting the Hawaiian Islands, prior to 1788" [the yearthe first European, Captain James Cook, reached the islands].That was later changed to "any descendant of the aboriginal peopleswhich exercised sovereignty and subsisted in the HawaiianIslands in 1778, and which peoples thereafter have continued toreside in Hawaii." The term "Native Hawaiian" was defined as"any descendant of not less than one-half part of the races inhabitingthe Hawaiian Islands previous to 1778-provided that thedefinition identically refers to the descendants of such bloodquantum of such aboriginal peoples which exercised sovereigntyand subsisted in the Hawaiians in 1778, and which peoples thereaftercontinued to reside in Hawaii."

The tortuous, convoluted text in the Hawaii statutes is not justthe usual legalese. Both the drafters of the amendments and thecourt in its decision admitted that the substitution of "peoples"for "races" was cosmetic, not substantive, and that "peoples" doesindeed mean "races." The sole reason for the changes was to banishany mention of the offending word, "race," and substitute apalatable euphemism.

Rice, everyone agreed, was a Hawaiian citizen but without therequisite ancestry to be recognized as "Hawaiian" under state law.The state therefore argued that denying Rice the vote in theOHA election was justified, and the 9th Circuit concurred whenRice challenged.

However, the U.S. Supreme Court reversed the 9th Circuit by a7-2 margin (Stevens and Ginsburg dissenting), citing in particularthe 15th Amendment: "The right of the citizens of the UnitedStates to vote shall not be denied or abridged by the United Statesor by any State on account of race, color, or previous condition ofservitude." The Court found the Hawaiian law unconstitutionalbecause it defined voter eligibility on the basis of race.

The 15th Amendment is explicit-race means what the averageperson thinks it means-and the majority of the SupremeCourt read it that way. In the end, the tortuous, convoluted verbiageintroduced into the Hawaiian statutes to avoid the offensiveterm "race" accomplished nothing.

HAAK V. ROCHESTER SCHOOL DISTRICT-WHAT WE SEE IS WHAT YOU GET

In the other case, the 2nd Circuit Court of Appeals ruled that awhite fourth-grade student named Jessica Haak could not transferfrom her home district to an adjoining, primarily white districtbecause the transfer program was enacted for the explicitpurpose of lessening racial isolation among the six districts involved.The plaintiffs, Haak's parents, challenged on the groundsthat denying the right to transfer based upon racial classificationviolated the clause in section 1 of the 14th Amendment, whichmakes it unconstitutional for any state to "deny any personwithin its jurisdiction the equal protection of the law." The districtcourt ruled in Haak's favor, but the 2nd Circuit overturnedthat decision, noting that although the U. S. Supreme Court hadhad many opportunities to rule that race could not be used as afactor in deciding who attended which school, it had never takenthe opportunity to establish a precedent by doing so.

In Haak, neither side even raised the issue of who belonged towhich group (race or ethnicity). A "minority pupil" was defined as"a pupil who is of Black or Hispanic origin or is a member of anotherminority group that historically has been the subject of discrimination."Interestingly, however, neither the application totransfer under the program, the program brochures, nor the acknowledgmentletter sent to parents who apply provides any standardby which to establish a student's race or ethnicity. Parentsare expected to self-screen their children. Once the applicant ismet in person by a program administrator, a question may beraised as to the student's race as a result of the student's "name,manner of speaking and phrasing, and personal appearance duringan interview or orientation." Even so, it seems that Haak, who iswhite, was accepted into the program by the school's assistantprincipal and sent an official letter of acknowledgment. That acceptancewas revoked after a second administrator saw Haak inperson and verified her race as Caucasian/White according tothe school district's records, therefore making her ineligible forthe transfer program.

The critical points here are that in both Rice and Haak, neitherside raised any questions about the existence of human races orthe ability of the average citizen to make valid judgments as towho belongs to which race. No special expertise was assumed orgranted in defining or recognizing race other than the everydayusage of the term. In Rice, the court, in effect, took judicial noticeof the commonsense definition of race. In Haak, the court acceptedphysical appearance as a valid means by which the averagecitizen can recognize races and distinguish among them.

The Hawaii statutes at issue in Rice were inventively drafted toinclude the word "ancestry" for fear that the term "race" would begrounds to strike down the law. Notwithstanding the convoluteddefinition of having Hawaiian "ancestry," the definition mapsquite well to the commonsense definition of "race." In short, thecourts accepted the existence of race, even if the legislature wasafraid to use the offending word. The Supreme Court struck downthe Hawaii law because its definition of being Hawaiian based onancestry was for all intents and purposes the equivalent of thecommonsense definition of race and so was expressly prohibitedby the 14th Amendment.

In Haak, the plaintiffs did not dispute that the school administrator(or anyone else, for that matter) correctly identified or wasable to identify Haak's race. Rather, they contested the constitutionalityof a law that discriminates on the basis of race. The abilityto determine race was assumed and accepted by both partiesand by the court.

SHOULD THE CRIMINAL JUSTICE SYSTEM RECOGNIZE THAT RACE IS REAL?

A critical question is whether the courts recognize the existenceof race as a mere social construct or as an underlying biologicalreality. In taking statements from witnesses and in courtroom testimony,the criminal justice system routinely, and with little or nocomplaint, accepts statements such as "The perpetrator was identifiedas a male, Caucasian, about twenty-five years old," or "Thelittle girl I saw abducted in the parking lot looked like she wasHispanic or a fair-skinned African American." But consider a recentexample in which accepting the existence of race as a biologicalreality, rather than "race" as a social construct of Westernsociety, became a matter of life and death.

Throughout 2002 and the first half of 2003, Louisiana policewere hunting for a serial killer who had murdered at least fivewomen in the Baton Rouge area. Relying on tips and two eyewitnessaccounts of a white male allegedly driving a white pickuptruck containing the body of a slumped, naked white female on thenight of one of the murders, police focused the search on whitemales. A host of experimental research has demonstrated that eyewitnesstestimony of an unexpected event that is viewed onlybriefly is notoriously unreliable in far more than racial identification.Perhaps the best-known real-life example is the number ofobservers who report planes bursting into flames before they crash;later examination of the wreckage shows that there was no in-flightexplosion. However, in the Louisiana serial-killer case, anothereyewitness, a neighbor of one of the victims, frustrated that the policewere restricting their search to whites, circulated a flyer with acomposite sketch of the perpetrator the neighbor thought he saw-ablack male who it turned out closely resembled Derrick Todd Lee.

The state police crime lab had linked all five cases to the sameperpetrator by using the minimum of thirteen DNA markers requiredby the FBI forensic crime lab for individual identification.(DNA markers are sequences in the complete human genomethat can identify a person's ancestry or parentage.) If the thirteenmarkers in samples taken either from two of the victims or, morelikely, from a victim and a suspect, are the same, the probabilitythat they come from the same individual is virtually certain,about the same probability as flipping a coin thirteen times andgetting the same result or verifying a thirteen-digit credit card orbank account number. The odds of misidentification are effectivelyabout one in a billion.

In the Baton Rouge case, samples of the perpetrator's DNA(probably from semen, though not specified in the reports weread) were taken from the victims' bodies. Holding firm in theirbelief that almost all serial murderers are white, the policeswabbed the cheeks of more than 600 white male suspects forDNA analysis to see if they matched the samples taken from thevictims.

We should note here that this method of individual DNAmatching, sometimes called "DNA fingerprinting," has alsocleared suspects and provided grounds for appeal. Since 1992, theInnocence Project at Yeshiva University's Cardozo School ofLaw, headed by Barry Scheck and Peter Neufeld (best known asdefense attorneys in the O. J. Simpson criminal trial), alone hasfreed over thirty-five people wrongly convicted, including a numberof African Americans. DNA is also used in paternity testing;evaluating kinship in inheritance disputes; and missing-personscases, especially in identifying kidnapped children who may beunable or afraid to speak to the police on their own behalf. In1993 a two-year-old was returned to his parents two years afterbeing kidnapped only after police established scientifically whothe child was by using genetic fingerprinting. DNA profiling is soaccurate that it is highly recommended by law enforcement departmentsaround the United States to protect individuals in theevent of abduction or kidnapping.

Thirteen markers are sufficient to determine a reliable individualmatch, but more are needed to sort individuals by race correctly.Technically, the thirteen markers used by the FBI for individualDNA fingerprinting are termed "short tandem repeats" (STRs).They are repetitions of the same sequence of base pairs in junk(noncoding) DNA. Junk DNA is just that. It is not responsible, tothe best of our knowledge, for any trait or variation within a trait.There is more junk DNA than one might think. The current estimateis somewhere over 90 percent of the total. However, it is possiblethat science has yet to determine the function of some so-calledjunk DNA.



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Excerpted from Raceby Vincent Sarich Copyright © 2005 by Vincent Sarich. Excerpted by permission.
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