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Excerpted from: Osagie K. Obasogie, The Return of Biological Race? Regulating Innovations in Race and Genetics Through Administrative Agency Race Impact Assessments, 22 Southern California Interdisciplinary Law Journal 1(Fall 2012) (336 Footnotes Omitted)(Full Document)


osagieobasogieIn April 2011, I published an article in Slate that commented on the new Dietary Guidelines released by the Department of Agriculture and Department of Health and Human Services. These guidelines made several recommendations with the admirable purpose of encouraging Americans to take bold steps to improve their health, such as eating smaller portions and consuming more fruits and vegetables. Yet one of the guidelines' “Key Recommendations” stood out: “Reduce daily sodium intake to less than 2,300 milligrams (mg) and further reduce intake to 1,500 mg among persons who are 51 and older and those of any age who are African American or have hypertension, diabetes, or chronic kidney disease.”

There are certainly prudent medical reasons why older individuals and those with preexisting conditions should consume less salt. But, should this apply to all Black people? In the Slate article, I examined the scant support for treating race as a biological risk factor and the overwhelming evidence suggesting that social determinants of health --poverty, stress linked to discrimination, and lack of access to healthy food in urban environments, among other factors--may better explain Blacks' higher rates of hypertension and other sodium-related chronic diseases. Although I expected this perspective to generate pushback in the online comments section, the Slate article elicited something unusual and unexpected: interest from a White supremacist website. reposted the article in its entirety, alongside articles titled Blacks Made Up Majority of All Serial Killers Last Decade; Obama Spent March Obsessed with Basketball, Not Learning About Who He Was Bombing; and Obama “Birth Certificate” Contains Adobe Illustrator Editing Data. It initially seemed strange to me that a website devoted to news and commentary of this character would be interested in an article about government recommendations pertaining to salt intake. But their interest eventually became clear as some comments implied skepticism toward any claim that social determinants cause racial disparities. Instead, the comments suggested that fundamental differences between Whites and minorities explained Blacks' poor health outcomes, and these outcomes were simply an indication of Blacks' overall inferiority.

A colleague of mine experienced a similar situation. Esteban González Burchard, a geneticist at the University of California, San Francisco, researches asthma disparities in Latino communities; Puerto Ricans have the highest asthma prevalence, morbidity, and mortality, while Mexicans have the lowest. Much of Burchard's research focuses on finding the genetic differences that may explain these disparities both within and among racial groups in order to develop treatments to improve minority health. Imagine Burchard's surprise when he received an e-mail in 2007 from former Louisiana politician--and former Grand Wizard for the Ku Klux Klan--David Duke, commending him for his research:

I do think your work and others who show real biological differences between races is important. You show that race is truly real, not a societal construct or some sort of conspiracy theory. As you know, there are about 135 breeds (races) of dogs that are all part of the same species. They can all interbreed just as the human races can. Who can deny the differences in appearance, character, and physiology between dog breeds that can vary as much as the Maltese and the Great Dane? . . . Are we so blinded by egalitarian dogma that we can't see the obvious differences in human races and their expressions in culture? As you are well aware, dog races, similarly to human races, have diseases that are specific to them.

The truth is, when it comes to human racial differences, we live in a world in which believing that “there is no such thing as human races” has become a religion, and those who recognize the realities of human races have become heretics who are called “racists.”
Another colleague, Dorothy Roberts, a professor of law and sociology at the University of Pennsylvania, experienced a similarly strange dynamic at an April 2006 conference on race-based medicine at the Massachusetts Institute of Technology. Roberts presented a paper on the lack of consensus within the African American community on race-based medicine, or drugs that claim to be tailored to treat diseases in specific racial groups. Roberts described the diverse viewpoints within the Black community--from those who were skeptical of treating social categories of race as biologically-relevant labels to those who believe race-based medicine is an important step in resolving racial disparities in health. At the end of the talk, Juan Cofield, President of the NAACP's New England Chapter, stood up and vigorously criticized Roberts by shouting, “There is consensus in the Black community that [BiDil, the first race-based medication for Blacks with heart failure,] is good for black people.” He then accused Roberts, who has had a celebrated career promoting racial justice and fighting health care inequalities, as irresponsibly jeopardizing Black people's lives and suggested that their blood would be on her hands. Without blinking, Roberts calmly replied: “there isn't a consensus [about BiDil] among black people in this room,” let alone among all members of the Black community, as Cofield suggested.

These three situations reflect a growing crisis in lay and scholarly perspectives on race: a renewed legitimacy in what can be called “biological race,” or the idea that social categories of race reflect inherent biological differences that explain racial groups' disparate social and health outcomes. Ever since the end of World War II--when the Holocaust exposed the horrors that ideas about biological race can produce--laws and social norms sympathetic to the idea that race is a social construction have fostered egalitarian sentiments. The social constructionist view explicitly rejects biological race, promoting instead the notion that different outcomes and abilities between races are linked to the privileges and burdens that society places on each group. This idea has been the intellectual foundation for advances in civil rights, human rights, and constitutional law. Modern notions of social and legal equality are premised on the concept that race reflects mere superficial differences and that variations in human abilities do not fall along racial lines.

But new developments in genetic research are rehabilitating biological explanations for racial differences and disparities, creating unprecedented tensions for the regulatory state. For example, race-based medicines promise drugs that are tailored for optimal use in particular groups, genetic ancestry tests claim to offer the ability to determine individuals' racial and ethnic origins, and certain applications of DNA forensics leverage biological understandings of race to identify criminal suspects. Compared to historical discussions on biological race, these new developments present a dramatic shift in tone. Past claims concerning biological race were used explicitly to subordinate racial minorities while current claims are often articulated as efforts to help reduce inequality by, for example, providing innovative mechanisms to resolve health disparities. What connects past and present, however, is a persistent belief in racial typologies, or that social categories of race reflect distinct biological groupings that are linked to essential traits and behaviors. It is through this shared thread of typological thinking that past ideas concerning racial hierarchy and meanings can be preserved in new technologies that may be facially benign or beneficent.

This tonal shift is significant because the line between discriminatory and ostensibly beneficial uses of biological race is neither bright nor intuitive. For example, the aforementioned federal dietary guidelines treat race as a biological risk factor of the same consequence as advanced age or having diabetes for the laudable purpose of reducing health disparities in sodium-related diseases. On the other hand, those on may embrace the very same biological understanding of racial disparities in health, but for a different reason: to assert Whites' inherent superiority. Similarly, Burchard's research looking for genetic variations linked to asthma is motivated by an attempt to reduce racial disparities, while Duke's support of this type of research most likely stems from a White-supremacist belief that minorities' health problems are a function of their inferior physiology. And, although Roberts's skepticism toward race-based medicine follows, in part, from a concern that the questionable science behind this approach might reinvent biological notions of race in a manner that ultimately disserves minority communities, the NAACP and other groups claiming to represent the Black community have endorsed race-based medicine as a way to resolve racial disparities in health outcomes.

These tensions raise a critical legal and regulatory question: given the extraordinary amount of suffering linked to past government-enforced notions of biological race--from slavery to eugenics to Tuskegee--how are we to know when these new articulations further racial subordination or advance racial justice? This dichotomy draws attention to the remarkable stakes involved in devising sound regulatory approaches to vet new innovations premised upon biological understandings of racial difference and disparities. Overly permissive oversight mechanisms may allow problematic claims about race and genetics to engender discrimination and exacerbate racial inequality. On the other hand, excessively strict regulations may prevent potentially beneficial applications from helping those most in need. Because the intent behind the development of new technologies is not dispositive of the actual effect they will have on minorities or public conceptions of race, a broader assessment of these new technologies' impact is needed to inform regulatory decision-making.

This Article proposes race impact assessments as a new regulatory model for administrative agencies that creates a collaborative and deliberative space for multiple stakeholders to provide recommendations to regulators about how to balance the risks and benefits of new technologies that have the potential to give undue legitimacy to biological race. I draw upon prior impact assessment work in environmental law and other fields in which government agencies thoroughly assess new innovations' broader impact before going forward. For example, just as an environmental impact assessment pursuant to the National Environmental Policy Act (“NEPA”) would look at the many ways a proposed federal highway might affect the surrounding environment and ecosystems, I similarly argue that proper regulation of new technologies that implicate race must also engage in a prospective assessment of their potential impact on racial minorities and public understandings of race.

By proposing race impact assessments in this Article, I make a critical departure from mainstream legal and policy discussions on regulating the use of racial categories in science in at least two ways. First, the scholarly conversation and regulatory focus regarding developments pertaining to race and genetics have disproportionately centered on biomedicines (such as BiDil) without simultaneously examining how other biotechnologies are also giving new legitimacy to biological race. Genetic ancestry tests that use a direct-to-consumer model to give individuals information on their racial and ethnic backgrounds are reinforcing public understandings of race as a biologically-based, genetic entity that can be known by simply swabbing one's cheek and mailing the results to a laboratory. Similarly, criminal investigators are using biotechnologies that implicate race in forensic investigations, which can influence public understandings of racial difference and has a distinct impact on minority communities. For example, law enforcement officials are using genetic analyses of unknown biological samples at crime scenes to develop visual depictions of possible suspects. This can include characteristics such as skin color, eye color, and facial features that ostensibly point directly to a suspect's racial appearance. By arguing for race impact assessments that examine regulatory needs in all three areas--biomedicine, genetic ancestry tests, and DNA forensics--this proposal is able to assess these technologies' synergistic effects across multiple fields and provide a more holistic regulatory mechanism that balances risks and benefits.

Secondly, a significant and influential thread of the literature on regulating race-based biotechnologies draws upon constitutional law for a set of normative rules to govern if, how, and when new applications that use race as a biological marker of human difference should be made publically available. As a second departure, this Article's proposed model does not rely on constitutional law to provide a set of normative rules to govern these technologies. Rather, I argue that administrative agencies--the Food and Drug Administration (“FDA”) with regard to race-based medicine, the Federal Trade Commission (“FTC”) with regard to genetic ancestry tests, and the Federal Bureau of Investigation (“FBI”) with regard to DNA forensics--should be used as normative spaces to conduct race impact assessments that collaboratively investigate and discuss the potential impact these technologies might have for racial minorities and the idea of race.

This Article proceeds in four additional parts. In Part II, I provide a brief history of biological race and law's complicity in promoting racial typologies. By uncritically accepting scientific claims premised upon biological race, law has played a central role in promoting this pernicious way of thinking about human difference. This rich history situates this Article's broader claim that state and federal governments' past involvement in subordinating racial minorities through legal enforcements premised upon biological race obligate them to now implement oversight mechanisms such as race impact assessments to prevent such subordination from reoccurring. In Part III, I discuss three developments in human biotechnology that draw upon biological race and may have a particular impact on racial minorities: race-based medicine, genetic ancestry tests, and DNA forensics. In that section, I assess the scientific promise and limitations of these developments and highlight the concerns they raise with respect to renewing legitimacy in biological race in ways that may be harmful. In Part IV, I propose race impact assessments as a regulatory model for administrative agencies to balance these technologies' potential risks and benefits. I then conclude with a discussion about why this proposed model is urgent for the future of racial justice.

Associate Professor of Law, University of California, Hastings College of the Law with a joint appointment at the University of California, San Francisco, Department of Social and Behavioral Sciences; Senior Fellow, Center for Genetics and Society.