2

I recently came across several unrelated articles discussing Afro-American topics in the USA. The topics were various, but generally around positive/negative discrimination, oppression (real vs felt), etc.

The exact details were not important - the point is that they were around "we" (say - African-Americans) versus "them (say - Asians). The ethnicity does not matter.

I was wondering whether under US law (I am French and we do not have racial concepts which are legally relevant) there is a legal definition of "African American".

Could I, a white person with mostly European nordic ancestry (blond hair, blue eyed) claim to be "African American"? And be held liable for that because of [the definition I am asking about]?

Beside the academic aspect of the question, I was wondering how "ethnicity" is measured when there are possible tangible advantages (positive discrimination in universities comes to mind). The exact ethnicity does not matter (I took African American because of the articles I read but any will do - provided they are all equivalent, legally speaking), it is more about how legally any of them are separated from the others.

Note: I initially used the word "race" in the title of my question, changing to "ethnicity" afterwards because I am interested in the legal, and not biological aspect. When reading Wikipedia, however, I noticed that they are sometimes used interchangeably, and sometimes one after the other ("... the largest ethnic and racial group ..."). I finally put both in case this is relevant

  • There was the case of a white teenager who moved from South Africa to the USA and became US citizen, whose school was very offended when he said that he was African American. Which in fact he was. – gnasher729 Apr 12 at 20:41
  • @gnasher729 While that teenager did so to be provocative and make a point about where he came from, most whites who move from South Africa to the USA would self-identify as white and not incorrectly because the deep ancestry is from Europe and they are also basically partaking in an expatriot outpost of European culture and language. This said, he is entitled to self-identify as he did under most U.S. laws. – ohwilleke Apr 12 at 22:33
  • We've addressed this issue here: law.stackexchange.com/questions/15051/… and here law.stackexchange.com/questions/30267/… – user6726 Apr 12 at 23:46
2

The Leading Current Definition

The U.S. Census Bureau in the United States Department of Commerce defines race as follows, in definitions often used in other areas of the law and in research studies:

What is race?

The Census Bureau defines race as a person’s self-identification with one or more social groups. An individual can report as White, Black or African American, Asian, American Indian and Alaska Native, Native Hawaiian and Other Pacific Islander, or some other race. Survey respondents may report multiple races.

What is ethnicity?

Ethnicity determines whether a person is of Hispanic origin or not. For this reason, ethnicity is broken out in two categories, Hispanic or Latino and Not Hispanic or Latino. Hispanics may report as any race.

Census screen shot

Thus, ultimately the question is how you sincerely self-identify, but guidance is provided regarding what is meant by each term, which is framed in terms of "origins" from various large geographic regions of the world.

The Definitions Have Changed Over Time

The definitions of race and ethnicity, and the terms used, by the U.S. Census, have changed somewhat with almost each new decennial census.

Practical Reality

In reality, our culture and society is such that most people have a self-identify that corresponds to the predominant place of their remote genetic ancestors, and very few people who have remote genetic ancestors who are predominantly only from one place will self-identify otherwise, because it is not what is socially expected.

Edge Cases

But, there are plenty of edge cases and ambiguous cases.

For example, famous golfer Tiger Woods has deep genetic ancestry from Africa, Southeast Asia and Europe in large proportions.

Empirical Reality

One of the leading scholarly work that shows the empirical relationship between racial and ethnic self-identification and deep regional genetic ancestry is a 2014 article in the American Journal of Human Genetics that used data from the consumer genetic self-testing firm 23andMe.

African Americans

Historical "one drop rule" notwithstanding, empirically, in the United States, people who are at least 75% European in deep genetic ancestry whose remaining ancestry is African usually to identify as "white". But, people whose remote genetic ancestors are, for example, 38% traceable to Africa and 62% traceable to Europe, tend to identify as black or African-American, even though they are mostly European in genetic ancestry. In theory, the vast majority of people who identify as African-American in the U.S. have, on average, about 75% deep genetic African ancestry with most of the rest of their ancestry being Northern European ancestry, and could legitimately in a formal reading of the "origins" idea, identify as of more than one race. But, few people actually identify as more than one race unless they have parents of different races or at least grandparents with different racial identities.

The African American designation, like most of the formal categories, also includes a multitude of subgroups. Descendants of U.S. slaves make up most African-Americans in the United States, but the category also usually includes recent immigrants from sub-Saharan Africa and Afro-Caribbean immigrates from sub-Saharan Africa.

The Intersection Of Race and Hispanic Origins

Many ambiguous cases regarding race arise among people who identify as Hispanic, in part, because socially accepted and bureaucratic understandings in race are different in the U.S. than in Latin America.

Most Hispanic identifying people in the U.S. would identify their race in Latin America as "mestizo", which usually means people with both European ancestry and a large component of pre-Columbian indigenous Central and South American ancestry. But, that isn't an option on census bureau forms, so many Hispanic people mark "Other" as their race, while many mark "white", some mark "black" (even in cases where they have little African ancestry), and a few mark Native American (even though this would be a logical choice for someone who self-identifies as "mestizo").

Hispanic people in the U.S. and people in Latin America identifying as "white" tend to have less European ancestry than people who are not Hispanic in the U.S. who identify as "white." Hispanic people in the U.S. and people in Latin America identifying as "black" tend to have less African ancestry than people who are not Hispanic in the U.S. who identify as "black."

Due to this muddle, many statistical and research studies distinguish between non-Hispanic whites and non-Hispanic blacks while lumping all Hispanic identifying people in one category regardless of their self-identified racial identity.

Native American

People in the U.S. tend to identify as "Native American" without including other races at a fairly low percentage of deep genetic ancestry that is pre-Columbian indigenous American (many people who have 15% Native American ancestry, for example, would identify as exclusively Native American), and usually tend to do so only if their Native American ancestors are from North of the U.S.-Mexico border, even though indigenous Americas from the territory of the Continental U.S. and indigenous Americans from Latin America, are genetically very similar.

Many recognized Indian Tribes in the United States have blood quantum rules for membership that require members to have a certain proportion of ancestors who were members of the tribe, which is a genealogical test, rather than a genetic one, because Indian Tribes, like countries, can make someone a member via naturalization or adoption in addition to by birth.

But, one does not have to be affiliated with a specific Indian Tribe to be legitimately considered Native American under the law. And, a large share of people who do not physically appear to be Native American but claim a Native American ancestor many generations earlier as part of family lore, like Presidential candidate Elizabeth Warren and like many African Americans in the U.S., actually do have a distant Native American ancestor.

Asian-American

Asian American is one of the most heterogeneous U.S. racial categories. People who have origins in India, Southeast Asia, East Asia and Central Asia, who look very different from each other physically and have very different cultures, are currently lumped in one presumptive group. Historically, the U.S. distinguished between "Hindus" (meaning "South Asian" rather than as a religious identifier), and East Asians such as people from China and Japan, although it no longer does so.

This also illustrates the complication that while race is mostly a function of social and ethic background, genetic ancestry usually influences one's self-identification.

For example, in the U.S., someone adopted into a white family as a baby from China (there are probably hundreds of thousands of such people, at least, in the United States) usually self-identifies as Asian-American, despite having zero linguistic and first hand cultural connection to anyplace in China or Asia.

Why Self-Identification?

The self-identification rule is the powerful blunt instrument by which the edge cases are resolved in a basically unreviewable manner. As a result, the U.S. is not plunged into the arcane debates of racial identity that prevailed in the 19th century in U.S. Courts.

Blatant attempts to defy social convention by claiming a self-identification different from the one that would be ascribed socially to a person in what are not edge cases, are sometimes resolved on the grounds that the judge or jury, as the case may be, does not believe that the person's expression of self-identification in court is sincere based upon circumstantial evidence.

An example of the issues that judges and scholars sought to avoid with the self-identification rule is famous case Plessy v. Ferguson, 163 U.S. 537 (1896), in the U.S. which established that "separate but equal" satisfied the equality requirements of the 14th Amendment to the United States, started out as a test case, but turned in part into a racial classification case when it turns into a criminal prosecution, over whether the mixed race plaintiff in the case (who could "pass" as white and would probably identify as "white" in the U.S. today), was black or was white.

Homer Plessy, a free man who was seven-eighths white and one-eighth of African descent, agreed to participate in a test case to challenge a Louisiana law known as the Separate Car Act. This law required that railroads provide separate cars and other accommodations for whites and African-Americans. The Comite des Citoyens (Committee of Citizens) was a group of New Orleans residents from a variety of ethnic backgrounds that sought to repeal this law. They asked Plessy, who was technically African-American under Louisiana law, to sit in a whites-only car. He bought a first-class ticket and boarded the whites-only car of the East Louisiana Railroad in a train for Covington.

The railroad cooperated in the test case because it viewed the law as imposing unnecessary additional costs through the purchase of more railroad cars. It knew about the intention to challenge the law, and the Committee of Citizens also enlisted a private detective to detain Plessy on the train so that he could be charged under the Separate Car Act. When Plessy was told to vacate the whites-only car and sit in the African-American car, he refused and was arrested by the detective. The train was stopped so that he could be removed, and a trial proceeded.

Plessy's lawyers argued that the Separate Car Act violated the Thirteenth and Fourteenth Amendments. Their theory failed, and the judge found that Louisiana could enforce this law insofar as it affected railroads within its boundaries. Plessy was convicted and fined.

The self-identification rule has been popular with judges and scholars, in part, out of a desire to avoid returning to having courts decide those issues, which in light of contemporary American sensibilities seems unseemly.

There is also a sense that accuracy in classification isn't an important feature of a definition of race, because for many purposes, such as the purposes of discrimination laws in the U.S., the beliefs and intent and motives of the person discriminating are what matter legally, not some absolute Platonic truth regarding the person's genetic makeup or culture.

0

At one point there were such definitions in law. When Negros (as they were then called) could not become citizens (under Dred Scott) or were denied various other rights (including during the so-called "Jim Crow" period), there were legal definitions of "Negro" in various jurisdictions, often using the "one drop" rule that any African ancestor meant that the person was not "white". When the so-called "Chinese exclusion act" was in force, a legal definition indicated when it applied.

More recently, when "affirmative action" has been permitted or even mandated in some contexts, legal definitions were used to determine who it applied to.

Few such laws remain in force in the US, and so there are few if any such legal definitions in force now. The remaining affirmative action programs tend to be defined in terms of cultural and economic deprivation rather than ethnicity or race, as I understand it.

  • I should like to know what about this answer caused a downvote. I cannot improve the answer or deliver better ones in future if there is no indication of the issue or problem. – David Siegel Apr 13 at 19:25
-2

Honestly, the the organization you are receiving the advantage from would have to decide, unless you challenged it.

You could challenge the decision of that organization in court, if you felt you were not receiving the advantage you were entitled to then a judge or jury would have to decide if you were correct.

Also, universities and such are not required to take any African American under Affirmative Action, but they can not discriminate against them. It is not a guarantee, but a method to prevent them from barring or discriminating against anyone. https://en.wikipedia.org/wiki/Affirmative_action#United_States

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.