The Family Law Canon in a (Post?) Racial Era

Abstract

While the debate about a post-racial society rages, our justice system continues to operate in a way that is race-conscious. It seems as though most of the discussion about race and the justice system concerns criminal justice, juvenile justice, education, and immigration. But race-consciousness also impacts family law. Nonetheless, the family law canon does not scrutinize race-based disparities in laws, procedures, and outcomes, and that omission feeds a mistaken notion of a race-blind or a post-racial society. One consequence of this omission is that it obscures race-based decision making by legislatures, judges, legal reform organizations, legal scholars, lawyers, and child welfare workers, and thereby immunizes race-based decision making from scrutiny. This Article suggests that the family law canon inaccurately describes a race-neutral or post-racial state for family law and that the canon should correct its colorblindness so that legal authorities can address the problems that structural racism creates for African-American families. Part I of this Article explores the family law canon and some of the examples that legal authorities and scholars constantly employ to minimize the distinctions that family law currently makes on the basis of race. Part II disputes the colorblind canonical story by showing that the law does not protect the autonomy of African-American families as much as it does that of white families. This section also explains why it matters that the family law canon has it wrong with respect to African-American families: in short, colorblindness immunizes racism and perpetuates inequality. Part III discusses why family law scholars - both those who advocate color consciousness and those who advocate colorblindness - tend to oversimplify the precedent that addresses the role of race in family law. The Article concludes by emphasizing the importance of legal scholarship that challenges the family law canon and invites family law scholars to broaden and challenge the canon.