27 May 2018


With news that controversial figure Rachel Dolezal has been charged with welfare fraud I have revisited 'Reverse Passing' by Khaled A. Beydoun and Erika K. Wilson in (2017) 64 UCLA Law Review 282.

The authors comment
Throughout American history untold numbers of people have concealed their true racial identities and assumed a white racial identity in order to reap the economic, political, and social benefits associated with whiteness. This phenomenon is known as passing. While legal scholars have thoroughly investigated passing in its conventional form, the inverse process of reverse passing—the process in which whites conceal their true racial identity and present themselves as nonwhite—has not been closely investigated within legal scholarship. 
Rachel Dolezal provides a timely study of the process of reverse passing. Dolezal—an Africana Studies Instructor and head of the Spokane, Washington NAACP—was outed as being white after years of phenotypically and culturally presenting herself as a Black woman. Dolezal’s “outing” generated much popular debate and scholarly discourse, most of which tended to frame her actions as a one-off occurrence by a deviant actor. This Article argues instead that her actions were evidence of a deeper structure of incentives rooted in the U.S. Supreme Court’s affirmative action jurisprudence. Though reverse passing is often framed as deviant or irrational, this Article demonstrates how the Supreme Court’s affirmative action jurisprudence creates tangible and intangible incentives for white actors to identify as nonwhite. It suggests that the Court’s entrenchment of the diversity rationale as the primary compelling state interest that can be used to justify race-conscious affirmative action programs generated situational value in nonwhiteness. That situational value in nonwhiteness now creates incentives that previously did not exist for whites to reverse-pass in order to obtain access to opportunities in education, employment and beyond. 
This Article is the first to coin, analyze, and propose a theory of reverse passing. It also deepens the rich and rising scholarship examining performance theory and the pliability of racial identity. Finally, given the reconsideration of the diversity rationale by the Supreme Court in Fisher v. University of Texas at Austin, this Article also provides an opportunity to critically examine the merits and shortcomings of the diversity rationale.
They state
American history, and legal literature, is saturated with analysis of the customary “passing” narrative. Passing is the phenomenon whereby nonwhites present themselves as white, while their “underlying identity is not altered, but hidden.” Since the inception of slavery through the present day, passing has been prominent within the scholarly literatures, popular media, and indeed, the collective American imagination. 
Until recently, racial passing in the other direction—from white to nonwhite—has garnered little to no attention, particularly by legal scholars and commentators. Although precedents for “reverse passing” exist, Rachel Dolezal and her outing as a white woman thrust this burgeoning phenomenon and its corollary questions about and the fluidity of racial identity and the concept of “transracialism” to the forefront. Through this tragic archetype, the process of reverse passing was broadly exposed, became the subject of unprecedented attention, and sparked novel questions about the fluidity of race and the malleability of racial identity. 
To be sure, Rachel Dolezal provides a noteworthy case study. Dolezal was born a white woman. The daughter of two white parents from Lincoln County, Montana, Dolezal’s ancestry was “Czech, German and a few other things.” By her own account, Dolezal was fascinated by and identified with Black  culture from a very early age. She eventually obtained a graduate degree in fine arts with a focus on Black narrative painting from Howard University—a historically Black university in Washington, D.C. 
Despite her purported identification with Black culture, Dolezal’s tenure at Howard University was marred by controversy. She sued the University for discrimination, alleging that she was denied teaching positions and scholarship aid, received less favorable placements for her artwork, and was subject to a racially hostile environment because she was white. Dolezal’s lawsuit was ultimately dismissed after the Court of Appeals found that she failed to demonstrate that the treatment she received was because of her race, or that she was subject to a racially hostile work environment. 
After her lawsuit was dismissed, Dolezal’s relationship with Black culture shifted markedly from one of purported identification to one of full-fledged assumption. She gradually shed her white identity for one of a “light-skinned black woman,” but devoid of the ancestry, biological ties, and the “lived experience” associated with the latter. Dolezal left her past, parents, and former life behind, strategically piecing together a new identity with the experiences, opportunities, and profile “identifying as Black” offered. Exit Rachel Dolezal the white woman. 
Enter Rachel Dolezal the Black woman. Dolezal tanned her skin, rotated through several hairstyles traditionally associated with Black womanhood, helmed the Spokane chapter of the National Association for the Advancement of Colored People (NAACP), and obtained an adjunct lecturer position at Eastern Washington University in Africana Studies.19 She held herself out to the world as a Black woman. Short of explicit declarations of Blackness, her myriad roles and associations bespoke a racial identity that she was not assigned at birth. Dolezal’s racial presentation was successful until she was publicly outed on June 11, 2015 by a Spokane, Washington reporter who produced a picture of Dolezal’s parents and presented it to her on camera. This caused Dolezal to retreat from the lens, and in the coming days recoil from the racial duplicity she maintained for years. 
Even after being outed as white, Dolezal maintained—without biological or ancestral basis—that she was Black. “It’s not a costume . . . It’s not something that I can put on and take off anymore,” she proclaimed days after her public outing. On NBC’s Today Show, Dolezal stated that, “I identify as Black,” to Matt Lauer and a captive American audience, marking that her campaign to reverse pass—from white to Black—was complete. For Dolezal, Blackness is more than a racial costume. It is an identity she can fully assume on account of some deep-seated, existential affinity. Presumably, it is also an identity she can shed if her affinity towards Blackness wanes, or is trumped by a competing identity. 
The authors continue
Dolezal’s turbulent racial journey is arguably the most prominent and examined reverse passing vignette in American history. But it is hardly the only one. As illustrated in this Article, the Dolezal passage is one of many reverse passing stories and, moreover, is representative of only one form of many modalities of reverse racial deception. 
Reverse passing, this Article advances, is the process by which whites shed their white racial identity in exchange for a nonwhite racial identity. As noted by other legal scholars, most notably Cheryl I. Harris, whiteness confers tangible economic, social, and political benefits to those who are classified as white. Indeed, an institutional racial hierarchy exists “in which the closer one can approximate whiteness, the better off one is economically and socially.” Put another way, a racial hierarchy and valuation system exists in which white racial classifications are afforded the highest placement and value within the hierarchy while racial classifications that are the farthest away from whiteness, such as Blackness, are afforded the lowest placement and least value. 
Given this racial hierarchy, “passing” has traditionally been a process by which nonwhites have sought to perform and present themselves as white in order to escape slavery, circumvent racism, access new worlds of economic and employment opportunity, shop and dine, investigate lynching, and, for many passers, to seek liberation and ensure survival. Due to the tangible benefits associated with whiteness and the negative value associated with nonwhiteness, persons who are able to racially identity as white have every incentive to do so in most contexts. 
This Article suggests that there has been a shift in the valuation scheme within the racial hierarchy caused in part by modern affirmative action jurisprudence. The shift is a situational one in which — at certain times and in certain spaces — racial diversity is perceived as a valuable commodity. Importantly, within this framework, “racial diversity” is conceptualized to mean increasing the number of nonwhite persons in a particular space, particularly with respect to coveted university seats and employment opportunities. As Nancy Leong observes, the concept of racial diversity (or increasing the presence of nonwhite persons) gained widespread societal value as a result of the U.S. Supreme Court’s Fourteenth Amendment affirmative action equal protection jurisprudence. 
In particular, in the seminal affirmative action case Regents of the University of California v. Bakke, the Court held that rather than remedying the generalized lingering effects of past societal discrimination, diversity is the compelling state interest that justifies the consideration of race in college admissions programs. In reaching this conclusion, the Court extolled the virtues of racially heterogeneous groups while diminishing the relevance and propriety of using affirmative action programs as a remedial measure for historic discrimination against minority groups. Subsequent Supreme Court decisions grappling with affirmative action in higher education, namely Grutter v. Bollinger and Fisher v. University of Texas at Austin (Fisher I), reified the notion that racial diversity, rather than remedying the effects of lingering past societal discrimination, is the appropriate compelling state interest that justifies the use of race in college admissions programs. 
The Supreme Court’s affirmative action jurisprudence narrows the consideration of race, and more specifically, nonwhite racial identities, finding it compelling only for purposes of diversifying a student body. Indeed, recent Supreme Court jurisprudence addressing race generally, and affirmative action specifically, readily ignores the salience of race and the differences in lived experiences resulting from differing racial classifications. By supplanting discrimination remediation with diversity as the sole compelling state interest, the Supreme Court removed the import of actual “lived experiences,” particularly lived experiences of marginalization and discrimination experienced by people of color. The Court instead reduced nonwhite racial identity into phenotype and culture. 
Thus, identity-correlated cultural traits, along with phenotypes that appear to result in “adequate” racial representation—rather than the lived experiences marred by marginalization and discrimination—became the marker of access to the benefits afforded by affirmative action programs. Such a reduction of nonwhiteness makes it an identity that some whites can easily perform and present for purposes of capitalizing on racial identities coveted by diversity-driven programming. 
Today, because of the emphasis placed on racial diversity by the Supreme Court in its affirmative action jurisprudence, nonwhite racial classifications have increased in value to the extent they can be capitalized upon to bring about representational diversity. A critical mass of nonwhites is thought to add value through its performative contributions to classrooms, campuses, and society. These performative contributions are divorced from the broader lived and existential dimensions that remedial affirmative action programs previously took into consideration when considering nonwhite applicants for university admission. Before Bakke, university affirmative action programs for example often took measures to consider how membership in a particular racial or ethnic group affected an applicant’s life experience and opportunities. In particular, such programs sought to level the playing field by taking into consideration the effect that discrimination likely had on the applicant’s lived experience. As a result, these performative contributions flattened the meaning of nonwhite racial identities, and converted them into more accessible forms for whites to perform and into which they can pass. In short, prevailing affirmative action doctrine, by narrowing the applied definition of nonwhite racial identity, incentivizes whites who believe they can pass as nonwhites to do so to access coveted opportunities, particularly in education and employment. 
Consequently, the stakes to “reverse pass” are high for whites. Such “reverse passers” seek to access the associated (and perceived) legal and cultural benefits of nonwhite identity concomitant with increased mandates for more diversity. Although not an entirely new phenomenon, recent events—including the outing of Rachel Dolezal—highlight the possibilities for increased incidences of reverse passing. While discursively viewed in the media and by many scholars as a phenomenon born out of individual autonomy or “transracial” options and possibilities, this Article investigates the law’s—and specifically the Supreme Court’s affirmative action equal protection jurisprudence’s—role in enabling and incentivizing reverse passing. 
Notably, this Article is the first to formally define reverse passing and conceptualize its operation within the legal and cultural realms. Building on the rich legal and social science literature on traditional passing, where the “classic racial passer in the United States has been the ‘white Negro,’” this Article analyzes the process by which whites assume nonwhite identities to access valuable educational or employment opportunities, and spaces and communities preferring nonwhites, and to build nonwhite public profiles that augment political influence or social prestige. 
By introducing reverse passing—as concept and process—into the legal literature, this Article deepens the rich and rising scholarship examining performance theory and the pliability of racial identity. Several legal commentators, most notably Devon Carbado and Mitu Gulati, Kenji Yoshino, Camille Gear Rich, and Nancy Leong, have made significant contributions to the modern literature on racial performance theory. As such, their work is critical to this Article. Certainly, as affirmative action continues to be debated within the courts, including in the recent decision in Fisher v. University of Texas II, reverse passing—as a matter of scholarly, practical, and popular concern—will only become more pressing and prominent. 
This Article proceeds as follows. The construction of racial hierarchy and reverse passing theory are the focuses of Part I, which includes a description of the two primary forms of reverse passing: legal and cultural. Part II analyzes prevailing Fourteenth Amendment equal protection jurisprudence in relation to affirmative action, which extends the legal catalyst incentivizing reverse passing. Part III examines the principal forms of reverse passing—legal and cultural—through an analysis of prominent case law and pressing case studies. Part IV examines the dialectic between the law and transracialism, a theory of racial mobility that justifies reverse passing but practically restricts passing in the other direction (nonwhite to white).