Professor Taunya Banks made the presentation "Colorism in the 'Post-Racial' Obama Era: Moving Beyond the Hypo-Descent Rule – The Role of Skin Tone in the Disaggregation of Blackness" at the AALS Mid Year Workshop on "'Post Racial' Civil Rights Law", June 8-10 in New York City.
In her article "Colorism: A Darker Shade of Pale," 47 UCLA Law Review 1705 (2000), Prof. Banks argues that the growing empirical evidence strongly suggests that black Americans with lighter skin tones are preferred by white employers over black Americans with darker skin tones and that anti-discrimination law's failure to recognize that black Americans may experience different levels of discrimination based on skin tone disproportionately impacts the economic fortunes of darker skinned black Americans. Thus, she argued, blackness in the post-civil rights era is being disaggregated. (Her argument was expanded in two other publications: "Multi-Layered Racism: Courts' Continued Resistance to Colorism Claims" in Shades of Difference: Why Skin Color Matters, (Evelyn Nakano Glenn, ed., Stanford U. Press, 2009) and "Black Pluralism in Post-Loving America" in Loving v. Virginia in a Post-Racial World: Rethinking Race, Sex, And Marriage, (Maillard and Villazor eds.,forthcoming, Cambridge University Press).
Prof. Banks's conclusion about the disaggregation of blackness seemed confirmed when in 2007 the Pew Research Center found that "nearly four-in-ten African Americans (37%) say that blacks can no longer be thought of as a single race" because of increasing diversity within that community. She says the Pew study merely quantifies what many black Americans already know: class- and generational-based differences in values and experiences transcend racial differences, even for black Americans.
Prof. Banks's presentation at AALS is a continuation of her discussion of the often "unconscious" preference by non-blacks for blacks with lighter skin tones in various settings (employment and sentencing) that finds support in empirical studies. That this preference, she argues, may also extend to political settings, a supposition that seemed confirmed by Senator Majority Leader, Harry Reid's reported comment about then-Senator Obama's appeal to white voters because of his "light skinned" and "no Negro dialect, unless he wanted to have one."
Building on Senator Reid's comments, Prof. Banks posits that the racial designation for individuals classified as African American/Black under OMB's Directive No. 15 may be less important today than other factors like skin tone, educational credentials, socio-economic status; and that for black Americans with lighter skin tones who also have those tradition markers of high status for white Americans (elite education credentials, stable family, high socio-economic status and language) racial ancestry is less important than for black Americans with darker skin tones and non-elite credentials - race and socio-economic factors lessen racial discrimination and increase economic, social and political opportunities.
Prof. Banks tests her thesis by looking at those black Americans listed in a New York Times Magazine feature entitled "Obama's People" which contained images of high placed Obama appointees and confidants. Looking at the overwhelming number of "light-skinned" blacks in the feature article, she asks what happens when light skin tone preferences combine with those indicia of high status for white Americans - whether the combination of lighter skin tone and "elite" credentials creates a different "racial" classification that anti-discrimination law should take into account.