Examines the three prevailing concepts of race currently used in the American legal system: biological race, performed race and physical race. As America moves into the twenty-first century one basic legal controversy continues to claim center stage: what is race? Why do we use certain legal constructs to define racial identity? Recent years have been marked by the emergence of racially ambiguous characters making controversial claims for social, material and legal benefits under various race-conscious private and public programs. This class examines the three prevailing concepts of race currently used in the American legal system: biological race, performed race, and physical race. Discussions will cover a wide range of topics but will explore certain central themes. Each class will explore whether the particular racial construct employed by a given institution, law or regulation is based on “common sense” assumptions, statutory definitions, historical precedent, political pressure or contemporary functionalist justifications. Class members will explore whether we should define race in contingent, context-specific ways or seek more unified definitions for the various institutions that attempt to solicit, use and collect racial information. Discussions will also explore autonomy and privacy arguments individuals may raise about their social interests in claiming or disclaiming particular racial labels. The course explores the forms of agency exercised by individuals as they select between racial labels and pressure government institutions to create particular racial designations. Discussions will also explore the ways in which market pressures shape definitions of race and whether government institutions have a role to play in regulating the use of race in commercial spaces. Areas of law covered include Title VII, 14th Amendment immutability doctrine, Census restrictions, Directive 15, and other administrative regulations controlling various government agencies’ definitions of race. Discussions will also cover race-conscious public subsidy programs and affirmative action programs.
