The Limits of Law: Children’s Racial Preferences, Qualitative Questions, and Gender-Related Preferences

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Solangel Maldonado

Interracial friendships and intimate relationships are unlikely to develop so long as our schools remain racially segregated. Consequently, one of my proposals focuses on ways to integrate public schools. Reginald Oh suggests that integration needs to start earlier and proposes that we “examine whether and how daycares and preschools operate to hardwire race preference in white babies, toddlers, and preschoolers.”  As a parent of 9-month-old, I thought I had time before I needed to start thinking about my child’s race preferences but Oh is right.  Racial preferences are likely to be embedded by the time a child starts kindergarten. A study by the American Psychological Association found that “some infants are aware of race and preschoolers may have already developed racist beliefs.” Studies have also found that “3-year-old children in the U.S. associate some racial groups with negative traits,” and that “by age 4,” they “associate whites with wealth and higher status.” These studies have further found that “race-based discrimination is already widespread when children start elementary school.” While these studies focused on encouraging parents to talk to their children about race when they are toddlers, these conversations might be easier if children’s playmates were of different racial backgrounds. Unfortunately, daycare and preschools reflect the racial homogeneity of our neighborhoods. While many parents, who are paying thousands of dollars for daycare and preschool, may not have considered the racial demographics of the facility before enrolling their child, if more parents were aware that their child’s race preferences and associations are likely to be shaped in the early years, they might consider racial diversity when selecting a daycare and preschool.  Educating parents about racism and racial inequality is as important as educating the next generation.

Oh proposes the creation of “racially inclusive recreational centers, playgrounds, public swimming pools,” etc. to facilitate interracial interactions at an early age.  Many predominantly White suburbs already have these types of amenities but they are typically inaccessible by public transportation, thereby depriving the children of racial minorities (who are less likely than Whites to own cars) of their enjoyment, and denying all children opportunities for interracial interactions. As I explain in the book, “This is not accidental. Lawmakers in predominantly White neighborhoods opposed public transportation in their towns because their constituents did not want low-income minorities in their towns.” (p. 143). Thus, I propose that in addition to creating racially inclusive recreational centers, the government should invest in public transportation for myriad reasons (e.g., the environment), including reducing obstacles to interracial friendships. 

Oh asks what might change if the book focused on how the law shapes interracial love rather than intimacy, relationships, and marriage. The law can and should create opportunities for all types of loving relationships across the color line, not just romantic partnerships. My proposals would remove some of the barriers to interracial friendships at school, work, and in our neighborhoods.  At a time in which more people are choosing to be single, and we are experiencing an epidemic of loneliness, opportunities to develop loving friendships are more important than ever. 

Our racially segregated neighborhoods and schools do not only shape friendships and romantic relationships—they also shape our professional relationships and access to opportunities.  As Rick Banks asserts “the law is monumentally important in determining the types of relationships we form and with whom” and “the creation of social ties” in schools and workplaces “may be among the most important effects produced.”  I agree.  It is estimated that as many as 80 percent of jobs are filled through professional and personal networks. As a result of residential and educational segregation that influences where individuals grow up and where and with whom they go to school, racial minorities experience a “network gap” that limits access to employment opportunities. This network gap affects income and where racial minorities can afford to reside and send their children to school—schools that may be as segregated as the schools they themselves attended. The law will not directly promote interracial relationships—personal or professional—but those relationships will not have opportunities to develop organically so long as our neighborhoods, daycares, and schools are segregated. 

Russell Robinson observes that “we can’t assume that quantity [of interracial romantic relationships] will increase just because society lifts legal impediments.”  I agree.  My goal in writing this book was “to uncover the role of law in our intimate lives.” (p. 146).  I recognize that “[i]n the end, our romantic preferences might remain unchanged,” but my hope is that after reading this book, individuals who may not be as familiar with the law’s regulation of intimacy as the participants of this symposium, will “have a better understanding of how our intimate choices affect racial and economic inequality in society.” (p. 147). 

Robinson would have preferred “greater attention to the social, political, and psychological barriers to interracial relationships” and suggests some questions to assess the quality of these relationships such as: “How is power distributed in interracial relationships? How might some White partners wield White privilege in the relationship, even as they profess to be “color-blind”? Are most White partners cognizant of their partner of color’s experiences with racial/gender discrimination? Do most people of color in a relationship with a White person feel empowered to challenge their partner’s perceptions of race and racism?” 

These are important questions and people are speculating about the dynamics in  the interracial relationships of public figures.  Back in 2021, I considered including a qualitative component in the book. I planned to interview twenty-five interracial couples and drafted a set of twenty questions including the following: 

--What benefits, if any, would you say you have enjoyed as a result being in an interracial relationship?  Are you surprised by these benefits? 

--What challenges, if any, would you say you have faced as a result being in an interracial relationship?  Are you surprised by these challenges? 

--Do you and your partner ever talk about race or racism?  If so, how often? What specifically do you discuss?  Do you share similar views in these discussions? 

-- Has being in an interracial relationship affected your views on race? Your views about people of your partner’s racial/ethnic background?  Your views of your own racial identity? 

--For couples with children: How has your relationship influenced how you identify your child’s race? 

--For couples with older children: How do your children identify racially?  Do your children see themselves as racial minorities? Do they identify more with Whites?  With racial minorities?  With both groups equally? 

When I presented these questions at a workshop, the participants wisely advised that these questions were appropriate for a different project, not a book that focused on how the law perpetuates racial inequality. I agreed so I put them aside for exploration in future work, possibly in collaboration with a social scientist. But I agree with Robinson that “[w]e need more qualitative and quantitative social science scholarship listening to the experiences of people who have dated interracially, synthesizing those accounts, and critically analyzing them.” 

Robinson’s own qualitative work thus far has focused on LGBTQ people and Ed Stein asks “if, as Maldonado proposes, racial filters should be prohibited on dating platforms, then shouldn’t gender or sex filters also be prohibited?” As Stein’s own scholarship demonstrates, sexual orientation is more fluid than many individuals believe and, as he aptly observes, “the law directly shaped gender-related intimate preferences through sodomy laws, marriage laws, and other laws that “contributed to and continue to perpetuate” sexism, homophobia, transphobia, and the like.” As such, one might be tempted to answer his question in the affirmative. However, Robinson’s post reminds us to listen to the experiences of individuals when considering proposals. There is also at least one distinction between racial preferences and gender-related preferences that we should consider.  Studies have shown that racial minorities are disadvantaged by race filters on dating apps and many (although not all) racial minorities oppose them. Moreover, studies have found that racial minorities on dating apps are more likely to contact White users than vice versa. As such, “racial filters tend to serve the racial preferences of White users.” I am not aware, however, of recent studies showing that LGBTQ people wish to contact or be contacted by people who identify as heterosexual or that gender or sex filters tend to serve the preferences of straight people more than the preferences of LGBTQ people. That said, this book focuses on how our racial preferences reproduce racial and economic inequality. Thus, to the extent that gender-related preferences have these effects, we should examine ways to address them. 

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It has been a privilege to engage with each of the participants’ insightful posts. My goal in writing this book was to start a conversation about the role of intimacy in the reproduction of inequality.  Thank you for having this conversation.  I am deeply grateful to Linda McClain for organizing the symposium and to Jack Balkin for hosting it.  

Solangel Maldonado is the Eleanor Bontecou Professor of Law at Seton Hall University School of Law. She may be reached at Solangel.Maldonado@shu.edu.