Race: The Reality of Human Differences--Chapter 1: Race and the Law

In Chapter 1 of Race: The Reality Of Human Differences, Sarich and Miele begin their treatment of race in earnest. Entitled "Race and the Law," this chapter seeks to justify the biological reality of race by showing that it is a commonsense concept that everyone intuitively understands. Although this chapter provides useful illustrations of the concept of race, as I said in my discussion of the book's opening statement, it is one I think will not be convincing to race-deniers.

The authors note that there is no legal definition of "race," yet the legal system accepts it and relies on average people's ability to identify race. Their point seems to be that if our legal system, the most contentious system within our society, has no problem accepting the reality of race, then it must be real. But of course, this will not sway the race deniers, whose belief that race has no biological basis in reality but is merely a "social construct" does not imply, in their minds, that race does not exist. They think it exists as a concept, but that that concept can be quite powerful and have a great deal of meaning and determinative effect on a person's life. They would say "yes, we can usually recognize when a person would be considered white, black, or Asian, but these are not clear-cut categories for which we can test for membership and make any predictions about the individuals based on them."

The authors describe two court cases in which race came into play and was accepted by all parties involved. The first, Rice v. Office of Hawaiian Affairs, involved Hawaiian laws defining "Native Hawaiian" as a person descended from the indigenous people of Hawaii. These laws originally used the word "races" repeatedly, but were later amended to substitute the word "peoples." An Office of Hawaiian Affairs was created, designated for the benefit of "Hawaiians," and one H.F. Rice brought suit against it for not allowing him to vote in an election for its trustees since he was not a "Native Hawaiian."

The 9th Circuit Court of Appeals (often called the "9th Circus" for its liberal rulings) found in favor of the OHA, since Rice, while a resident of Hawaii, did not meet the legal definition of a "Native Hawaiian." The US Supreme Court reversed the decision, citing the 15th amendment to the US Constitution; in other words, finding that Rice was being denied a vote on account of his race. Now, anyone could have told you that this was inevitable, as soon as the OHA attempted to decide voter eligibility based on race. But the word "race" in the original statues was changed to "people" in order to get around a possible 15th amendment objection. In the end, however, this was unsuccessful, because the Supreme Court recognized the common sense definition of race.

In the second case, Haak v. Rochester School District, the parents of a white fourth-grade student named Jessica Haak had attempted to transfer their daughter from their home district to a mostly white district, through a transfer program that existed for the purpose of lessening racial separation among the districts involved. Their case was based on the notion that forbidding her to transfer because of her race violated the much-abused "equal protection" clause of the 14th amendment. The district court ruled for the plaintiff, but the 2nd Circuit overturned their decision.

The purpose for which the authors mention this case is to show how the Haaks, the school district, and the courts all took the existence of race, and the possibility of racial classification, for granted. The program involved a definition of a "minority pupil" as "a pupil who is of Black or Hispanic origin or is a member of another minority group that historically has been the subject of discrimination." It also specified that a program administrator could question the student's race on the basis of "name, manner of speaking and phrasing, and personal appearance during an interview or orientation." The point is that no one disputed that the school or anyone else was able to correctly identify Haak's race.

Again, as consistent as these two examples may be with the reality of race, they do not satisfy the race-denier. Race-deniers do not deny that there are some phenotypic features that correlate with self-identified race; they just claim that because there is no definitive genetic test to determine which race a person belongs to, and there is more genetic variation within races than between races, race is not biologically valid and racial differences are only skin deep.

The authors seem to recognize this when they proceed to question whether the courts "recognize the existence of race as a mere social construct or as an underlying biological reality." We can allow that the courts might recognize that race is real, but only because the social construct is so powerful, not because it has a biological basis. To bolster their case for the biological reality of race, they give an example in which genetic testing was used to determine the race of a killer on the loose, the case of Derrick Todd Lee.

You can read about the case from any number of online sources, so I won't bother rehashing the details. I recommend, though, that if you search for "Derrick Todd Lee" you include the name "Frudakis" in your search, because most online sources don't even mention the most salient aspect of this case, which is to be expected, because it proves the genetic reality of race. In a nutshell, police were looking for a white suspect until Tony Frudakis of DNAPrint Genomics told them he could determine the race of the killer via genetic testing. I recommend Wired Magazine's story, which has this to say:

In early March, 2003, investigators turned to Tony Frudakis, a molecular biologist who said he could determine the killer's race by analyzing his DNA. They were unsure about the science, so, before giving him the go-ahead, the task force sent Frudakis DNA swabs taken from 20 people whose race they knew and asked him to determine their races through blind testing. He nailed every single one.

Still, when they gathered in the Baton Rouge police department for a conference call with Frudakis in mid-March, they were not prepared to hear or accept his conclusions about the killer.

"Your guy has substantial African ancestry," said Frudakis. "He could be Afro-Caribbean or African American but there is no chance that this is a Caucasian. No chance at all."

There was a prolonged, stunned silence, followed by a flurry of questions looking for doubt but Frudakis had none. Would he bet his life on this, they wanted to know? Absolutely. In fact, he was certain that the Baton Rouge serial killer was 85 percent Sub-Saharan African and 15 percent native American.

"This means we're going to turn our investigation in an entirely different direction," Frudakis recalls someone saying. "Are you comfortable with that?"

"Yes. I recommend you do that," he said. And now, rather than later since, in the time it took Frudakis to analyze the sample, the killer had claimed his fifth victim. The task force followed Frudakis' advice and, two months later, the killer was in custody.

Think about that: there was a "they were not prepared to hear or accept his conclusions" and "there was a prolonged, stunned silence" in response to them. All because he told them the killer was black. That is the degree to which the important institutions in our society--law enforcement among them--deny the reality of race.

Sarich and Miele mention the type of DNA profiling commonly used in forensics examines short tandem repeats (STRs), which are sequences of DNA where a short pattern is repeated several times. Using thirteen of these markers is considered valid for identifying an individual, because with thirteen the odds of misidentification are about one in a billion. Thirteen STR markers are not sufficient to identify race, however. The DNAPrint methodology used by Frudakis uses a different kind of marker, a single nucleotide polymorphism or SNP, in which there is a difference of exactly 1 nucleotide between individuals. They point out that academic research has confirmed that using 100 of these markers, a person's ancestry (Africa, Europe, Asia, or the Americas) can be determined with almost 100 percent accuracy, and that DNAPrint Genomics has reduced the number required to 73. They also point out that this methodology is correct at a rate equal to that of the DNA profiling that is considered legally valid for identifying individuals.

The authors conclude their discussion of the case thus:

Unless race is a biological reality that gives important information about an individual's degree of genetic resemblance to the various human populations and the sequence in which those populations evolved by separating from other populations, it would be inconceivable to achieve the level of accuracy obtainable through the DNAPrint methodology. Indeed, given a sufficient number of markers, such analysis is capable of not only identifying race but predicting skin tone as well.

The success of the DNAPrint methodology contrasts sharply with a faulty genetic testing experiment used in the PBS documentary "Race: The Power of an Illusion" to prove that race has no genetic basis. In that program, six students of different racial backgrounds made predictions about which of the other students would have DNA most similar to their own, based upon typical racial criteria. They then examined six markers of mitochondrial DNA (mtDNA) to see if the reuslts would match up with their predictions, and lo and behold, they did not. The program concluded that people in one race were not more genetically similar to each other than to those in another race. Sarich and Miele explain why this experiment was flawed: first, only six markers were used, less than one-half of the thirteen required for individual identification by DNA fingerprinting. Second, mtDNA is inherited only along the maternal line and thus is not fully indicative of a person's ancestry. Therefore, the PBS program dishonestly stacked the deck to make it appear that genetic testing could not be used to determine race, when it easily can.

The chapter concludes with a brief discussion of an experiment showing that children as young as three can classify people into races without having been taught to do so. In the experiments, anthropologist Lawrence Hirschfeld found that when presented with a series of drawings of people who differ by race, body type, and occupational uniform, young children identify race as being inherited over the other two categories. After many years of research along these lines, Hirschfeld has concluded that children believe that "race is an intrinsic, immutable, and essential aspect of a person's identity," and "they come to this conclusion on their own." According to the authors, this must be because the common ancestor we share with chimpanzees must have been able to tell those who belonged to his own group from those who did not. Whatever the explanation behind it, the phenomenon is apparently observable and should give the lie to the liberal idea that race is something children need to be taught.

As I've said, unfortunately, I don't believe that is true for most of the examples given earlier in the chapter. The fact that the legal system doesn't question race, and that most ordinary people can correctly identify race, will not sway race deniers--in fact, since leftists typically don't trust common sense and believe that truth can be elucidated only by highly trained "experts," they may be all the more likely on this basis to believe that race must be illusory. Nevertheless, in closing the chapter, Sarich and Miele mention the moralistic fallacy, which says that what ought to be is what is, or that if something is morally wrong, it cannot be a part of our nature. This fallacy is sometimes used to argue that since racism is wrong, and belief in biological race leads to racism, there must not be any such thing as biological race. This echoes the belief of Alan Goodman, which the authors mentioned in the opening statement and say they will rebut later in the book, that even if race does not exist, it should not be studied; essentially, we should pull the wool over our eyes, because if we don't, we might become racists.

In the next chapter, Race and History, we will learn of how ancient cultures, including non-Western ones, believed in race, a specific rebuttal to the PBS documentary's assertion that race is a recent European idea invented to justify colonialism and slavery.