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2 Colum. J. Race & L. 1 (2012)

handle is hein.journals/cjoral2 and id is 1 raw text is: COLUMBIA JOURNAL OF RACE AND LAW

RACE AS A LEGAL CONCEPT
JUSTIN DESAUTELS-STEIN*
Race is a /el cocpangie         a/Il corncepts, it is a matrix of rules. Althouh tb eglcneto
of race has shifted over time, up from slavey and to the present, one element in the matrix has remained
the same: the background rules of race have alwajs taken a view of racial identio as a natural aspect of
human biology. To be sure, caracteridations of the rule have oftentimes kept pace with developments in
race science, and the original invention of race as a rationale for the subordination of certain human
populations is now a rationale witi little currengy. The departure from this classic liberal conception of
race, and its attendant and disturbing view of the function of race, did not, however, depart from the idea
that race is a natural and organic part of being a human being. As this Article argues, this seminal
background rule that race is natural, neutral, and necessaqa-is deepl problematic and a substantial
obstacle in the fight against the Supreme Court's ascending anticlassification jurisprudence. Not to
mention, it is also false. In an effort to make some headway against the idea that race is a natural idea,
as opposed to a legal concept, the Article attacks the background rules of race via the unlikely field of
Conflict of Laws. Taking the Supreme Court's decision in Parents Involved in Community
Schools v. Seattle School District No. 1 as a bench6mark, the discussion first suggests an earjy
functionalist view of voluntay sch ool integration by way of an analogy to the earjy twentieth)-centugy
transformations occurring in Conflicts of Laws. Second, and in the alternative, the discussion then
situates the facts of Parents Involved as literaly aproblem of Conflict of Laws. In both instances, the
hope is to focus legal discourse on the background rules of race so as to empower a new and emancipatoiy
anti-subordination jurisprudence.
Associate Professor, University of Colorado Law School. I received helpful comments from Kristen
Carpenter, Ming Chen, Neil Gotanda, Matthew Hughey, Sarah Krakoff, Ralf Michaels, Helen Norton, and participants
at ClassCrits IV: Criminalizing Inequality held at Washington College of Law at American University. Jena Akin and
Shannon Avery Rollert provided excellent research assistance. Special thanks to Adrienne Davis, Dwight Mullen, and Ed
Katz.

2012

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