Volume 102 - Issue 1 Georgetown Law Journal

Racial Commodification and the Promise of the New Functionalism

This Essay uses the current controversy over the racial self-identification decisions of former Harvard Law Professor Elizabeth Warren as an occasion to explore incipient cultural and legal anxieties about employers’ ability to define race under affirmative action programs. The Essay characterizes Warren’s racial self-identification decisions as proof of what I call “elective race,” a contemporary cultural trend encouraging individuals to place great emphasis on their “right” to racial self-identification and a related desire for public recognition of their complex racial-identification claims. I argue that our failure to attend to the importance placed on racial self-identification by Americans today places persons with complex racial identity claims at special risk for racial commodification. The Essay further suggests that the Warren controversy gives us an opportunity to rethink the way we conceptualize racial diversity. I argue that we must shift away from the current model, which conflates race and cultural difference, toward a functionalist model that ensures that racial diversity programs are designed to sample for employees that can teach us about the diverse ways that race is actualized and experienced. Specifically, the Essay suggests that diversity initiatives should be based on a functionalist understanding that stresses race’s use value as a source of insight into the social process of racialization. Programs structured in this fashion avoid the cultural commodification risks posed by current affirmative action programs, reorient employers away from thin concepts of diversity, and give employers a basis for making principled distinctions between employees’ racial-identification claims. The Essay concludes by identifying and defending a three-part inquiry that can be used to identify proper beneficiaries of diversity-based affirmative action programs.

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