Introduction

There are currently no US laws or court decisions specifically protecting multiracial people from discrimination (Daniel, 2006; Williams, 2006). In fact, multiracial Americans have long been left out of the antidiscrimination law loop as a result of their status as belonging simultaneously to multiple legally established racial groups and to no one legally established racial group in particular. This state of affairs is a problem for multiracial Americans because in order to bring a claim of racial discrimination, a prospective antidiscrimination plaintiff must identify as belonging to at least one and to only one legally established racial group.

In the early years of antidiscrimination law, a person raising a claim of unconstitutional racial discrimination had to be a member of a particular monoracial minority group with a history of having been discriminated against. In constitutional parlance, the plaintiff first had to identify as being a member of a “suspect class.” “Suspect class” has many definitions in the case law. One definition is a group of people with a history of having been discriminated against in the US. Another way of defining a “suspect class” is as a “discrete and insular minority group.” Yet another way is as a group that is politically powerless. Still another way is as a group in possession of an “immutable characteristic” on the basis of which discrimination would be unfair in a particular context. In practice, this meant that one had to be a member of a monoracial minority group or ethnic group with a history of having been discriminated against in the US (Asian, Latino/a, black, or Native American). If this requirement was met, the law or policy in question would be subject to a very strict level of judicial review, and the result would likely be that the law or policy in question would be struck down as unconstitutional.

Today, the barrier for multiracial plaintiffs is different. In the present day, while the barrier of belonging to multiple legally established racial groups remains a problem, the new, practical barrier for multiracial plaintiffs in antidiscrimination cases is that they belong to no particular racial group.