Romero on the Emergence of a Tri-Ethnic Jurisprudence at the End of the 20th Century

Tom Romero II, Hamline University School of Law, has posted a new article, ¿La Raza Latino?: Multiracial Ambivalence, Color Denial, and the Emergence of a Tri-Ethnic Jurisprudence at the End of the Twentieth Century. It appeared in the New Mexico Law Review. Here's the abstract:

This article is a recent legal history concerning the complicated, inconsistent, and dramatic transformation in the jurisprudential meaning and legal consequence of race, color and ethnic categories in the last decades of the 20th century. Linking school desegregation, bilingual education, and affirmative action jurisprudence to the dramatic growth of the nation's Latina/o community in the second half of the 20th century, the article documents the reasons behind the inability of American law to understand conceptually the idea of a Latino race.

In particular, the article argues that three United States Supreme Court equality of education cases - Keyes v. School District No. 1 (1973), Lau v. San Francisco Unified School District (1974) and University of California v. Bakke (1978) - formed the foundation of a tri-ethnic jurisprudence. As the issues in each case came to be formulated in the lower courts as a direct result of the presence of Latino and other students of color in the litigation, the article argues that the emerging tri-ethnic jurisprudence minimized or completely obscured the importance of color privilege to the legal analysis. For Latina/os, who historically had been legally racialized as other White and other Black, such a development provided an inconsistent and loosely coherent body of jurisprudence through which to assure equal rights. Ultimately, the article details how such cases reinforces the dichotomies of U.S. law (i.e., Black/White, minority/non-minority, English/non-English, American/non-American) without confronting the distinct racialization of Latina/os in American culture and without acknowledging the emergence of a more complicated color line in a multiracial nation.