The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Is Kamala Harris Legally African American, Indian, Both, Neither, or Something Else?

Harris' origins allow her to properly claim Asian or Black/African American legal status, and she has chosen the latter.


Kamala Harris, Joe Biden's pick to be the Democratic Party's vice-presidential nominee, is the daughter of an Indian immigrant mother and a Jamaican immigrant father. Her father, as I understand it, has ancestors of both European and African origin. [Welcome new Volokh readers. FYI, I've been working on a book on the American Law of Race, with this forthcoming article the first relevant output. My own opinion is that Ms. Harris should be deemed American, period, but there is no such box on government forms, and if you decline to state your race, someone will decide for you…]

First things first. There is no multiracial or mixed-race category in American law in any jurisdiction. Nor is there an Indian category. So Harris cannot be legally Indian, nor can she be legally "both."

Indians once had their own census category and at other times were considered legally white. These day, however, they are now firmly in the Asian category. African American or black is defined as anyone with origins in the black races of Africa, so she qualifies as African American as well, even if her father is mostly European genetically, and even though he is an immigrant, not a descendant of American slaves.

Under federal contracting law, which gives preferences to minority-owned companies, Harris could claim Asian American or African American status based on her partial Asian and African ancestry, but she would need to affirm that she holds herself out as a member of the relevant group. Harris asserts a black identity, so legally speaking in the contracting context she would be black/African American and not Asian. (She could also, I should note, properly check the "white" box if she identified as such.)

In some contexts, it would not matter if Harris had any African descent. A Massachusetts court has held that for affirmative action purposes, at least, one can lawfully claim African-American status if one holds oneself out to be African American and others identify you as such. Malone v. Haley, 2 Mass. Civil Service Rep. 1014 (1990).

For federal statistical purposes, however, cultural identification is not required. A person qualifies as "Black" regardless of cultural identification so long as he has origins in a "black racial group of Africa." So, for example, if Sen. Harris filled out a mortgage application and declined to list her race, leaving the mortgage lender with the legal responsibility of checking the right box, the lender would check "African American" if she "looks black," i.e., looks like she has any black African ancestry.

But let's say that Harris herself fills out a government-mandated form, and checks both Asian and Black/African American. Here things get a bit complicated. In the late 1970s, the government mandated that "the category which most closely reflects the individual's recognition in his community should be used for purposes of reporting on persons who are of mixed racial and/or ethnic origins."

In 2000, OMB provided guidance for civil rights monitoring enforcement regarding individuals who check off more than one racial category as follows:

• Responses that combine one minority race and white are allocated to the minority race.
• Responses that include two or more minority races are allocated as follows:
• If the enforcement action is in response to a complaint, allocate to the race that the complainant alleges the discrimination was based on.
• If the enforcement action requires assessing disparate impact or discriminatory patterns, analyze the patterns based on alternative allocations to each of the minority groups.

I've misplaced the citation, but I recall that other federal guidelines state that if a person checks black/African American and another box, she is deemed African American for statistical purposes.

In short, under American law, no one could deny Harris's right to assert that she is half-Indian and less-than-half of African ancestry, but so long as she considers herself, and is considered by others, to be African American, for legal purposes she is black. The major exception would be if she filed a discrimination complaint based on her Asian ancestry. In that case, she would be considered considered legally Asian for purposes of resolving the complain. What, at least at this point, she cannot be is legally Indian, legally mixed-race, or legally no race at all.

UPDATE: I suppose I should have expected that in the partisan thick of a presidential campaign, people would interpret this post as making some political point about Harris. Given that it's supposed to be a partisan "right-wing" site (even though almost none of the Conspirators voted for Trump in 2016), one might expect people to interpret this as an attack on her. It's not. My academic article on the subject, linked above, starts with a discussion of several people of mixed or ambiguous race/ethnicity whose racial or status has been publicly discussed, including George Zimmerman, Tiger Woods, and Rachel Dolezal, and discusses what their status would be under the law. I anticipated there would be similar discussion of Harris. While there was no political point here (other than the implicitly absurdity of having official race categories), I note that several commentators, mostly but not solely on he right, have attacked Harris as not "really" black/African American and is therefore some sort of fraud. Feel free to use this post in her defense. Under the law, which broadly if not precisely reflects (and indeed to a large extent creates) societal expectations and standards, Harris clearly qualifies as black/African American.