Excerpted From: Alexander A. Boni-Saenz, The Age of Racism, 100 Washington University Law Review 1583 (2023) (191 Footnotes) (Full Document)


AlexanderBoniSaenz.jpegAge has long played an underappreciated role in racial subordination. In the eighteenth and early nineteenth centuries, age was not considered a significant identity characteristic, and there was no state apparatus for the collection of birth data. However, there was at least one domain in which age was uniquely salient: the brutal system of chattel slavery. Enslavers dutifully kept detailed records of the birthdates and chronological ages of enslaved people in order to accurately price their human property. Even in abolitionist states like Pennsylvania, emancipation statutes permitted a form of indentured servitude for free Black people that ended at age twenty-four for men and twenty-one for women, three years longer than the same form of servitude for White paupers. These laws were justified using age-based understandings of Black people as immature and childlike. In the modern era--and in a notable contrast to the treatment of Black people in those emancipation statutes--many Black and Latinx children are perceived as more adult than their White peers and therefore more dangerous and culpable. These perceptions are used to justify the overpolicing of these populations and influence the configurations of various legal structures through which children of color are disproportionately directed, such as the immigration and juvenile justice systems.

These are just some examples of what I term “aged racism,” a distinct species of systemic racism that is characterized by its intersection with age. Like other forms of intersectional oppression, aged racism is not simply the additive effect of ageism and racism. It is the interaction of age, race, and their corresponding social structures that produces the unique forms of racial subordination examined here. Further, this Essay is concerned with one particular system in the structure of society--the law--that can help to propagate aged racism or combat its effects. Aged racism can exist at the individual level as stereotypes, prejudice, or discriminatory behavior, or at the institutional level, embedded in legal doctrines or systems of social meaning. It can affect all ages, but it is most likely to manifest at points in the lifecourse when age is particularly salient, chiefly but not exclusively at the earliest and latest life stages. These are also the times when aged-based legal regulations are most common, making them a potential site of both racial subordination and resistance.

By introducing the concept of aged racism and mapping out its legal dimensions, this Essay makes two contributions. First, it addresses a gap in critical race theory scholarship. Scholars working with the concept of intersectionality have explored how age and race interact with various other social categories, including gender, sexuality, and class. This work has deepened our understanding of various forms of intersectional subordination, such as gendered racism and its impact on women of color. However, the intersection of age and race has yet to receive significant theoretical attention in legal scholarship. This Essay fills that gap. In the process, it expands our understanding of the various ways that systemic racism operates in and through the law. Second, it adds to the small but rich body of scholarship on the social category of age and its relationship to the law. Bringing a racial lens to this literature, it furthers our understanding of how age-based rules have the potential both to facilitate and to combat racial subordination. This Essay thus initiates a conversation between the fields of law and aging and critical race theory by considering in tandem the social categories with which each is most concerned.

Part I theorizes the concept of aged racism as a form of oppression at the intersection of age and race. It draws on the insights of the intersectionality literature, in which age and race are not merely categories of identity but also represent structures of power or systems of inequality that can play a significant role in societal subordination. It explores how these systems operate differently in how and to whom they parcel out advantages and disadvantages, creating unique forms of racial subordination for multiple societal groups through their intersection.

Part II of the Essay transitions from the abstract to the specific, describing the first of three primary ways in which aged racism manifests in the law: through the racing of age categories. Categories such as “child” or “adolescent”--with their attendant qualities of innocence and freedom to experiment--are socially constructed as White, removing Black and Latinx children from their protection but without providing them the full benefits of adulthood. There may be similar racing of older age categories, though less research has been conducted on this front. This racing of age categories not only creates different lifecourse paths based on race, but also influences legal institutions and doctrines.

Part III explores how the differential legal treatment of age and race in the law creates dynamics that allow for aged racism to manifest. Because the use of age in the law is more permissible than the use of race, there exist opportunities for legal actors to intentionally use age as a proxy for race when using the latter directly is not otherwise permissible. In addition, age-based legal rules may at best have unintended racial effects or at worst use age to mask racial exclusion. The possibility for these types of effects will only increase in the future, as these rules apply to a U.S. population undergoing the linked demographic trends of aging and racial diversification.

Finally, Part IV tackles how aged racism manifests as a temporal form of inequality that must be understood longitudinally over the lifecourse. Many of the negative effects of race express themselves not only in particular moments, but also in ways that affect life trajectories and produce cumulative effects over time. As individuals subject to persistent race-based advantages and disadvantages age, the inequalities between those subject to these longitudinal effects grow. Facially neutral age-based rules affecting older populations, such as the age eligibility requirements in the Social Security retirement program or age-based allocations for COVID-19 vaccine distribution, may in fact exacerbate racial inequalities.

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The fields of law and aging and critical race theory have each provided invaluable insights into the operation of age and race and their relevance for law. However, they have also been theoretically siloed, limiting in some ways their capacity for recognizing forms of racial subordination as connected and part of the larger phenomenon of aged racism. This Essay has initiated a conversation between the two fields by creating an initial map of how age, race, and the law intersect. The hope is that this will lead to productive future exchanges that will help to understand and combat racial subordination in all of its forms.

Professor of Law, Associate Dean for Scholarship & Faculty Development, Chicago-Kent College of Law. This email address is being protected from spambots. You need JavaScript enabled to view it..