(iPoster) Race-Conscious Data: The New Political Taxonomy

• In Event: Poster Session: Issues in the Political Theory of Economic Equality and Democracy & Political Methodology
  In Poster Session: Poster Session: Issues in the Political Theory of Economic Equality and Democracy

Abstract

Can the law prohibit even voluntary inquiries about our racial identities from governments, schools, and companies? Before the Court issued Students for Fair Admissions, the far right launched a presidential framework for dismantling the very building blocks of race consciousness through Project 2025: by eliminating racial classification, racial data, and disparate impact doctrine. But this time, efforts to nationalize a colorblind regime misuses informational concepts to advance its claim that communicating racial data is inherently harmful. Technical and doctrinal literatures have yet to theorize these particularized threats to race consciousness through law. This Article is the first to demonstrate how privacy and data frameworks will play a crucial role in instantiating colorblindness during the Trump era.

By synthesizing race studies, information studies, and political theory, the Article offers an original analysis of the law surrounding race-conscious data. Race-conscious data, introduced here, refers to information that communicates or ascribes racial identity. Thus, data broadly refers to factual information on which discourse and reasoning rely. Race-consciousness refers to any idea involving racial differentiation—such as racial identity—that is often informed by history. The then Article develops a taxonomy of five non-exclusive ideological positions regarding such data: (1) Liberal Data Guardians; (2) Race-Conscious Dignitarians; (3) Colorblind Regressives; (4) Libertarians; and (5) White Nationalists. This modernized taxonomy equips policymakers, scholars, and the public with more comprehensive means of identifying, justifying, or deliberating regulatory preferences and charting shifts in ideological positions over time.

Putting the issue of race-conscious data to each ideological subgroup reveals the functions of such data, whether descriptive or normative. In the near term, it may yield more expansive research into legal and practical barriers to this new wave of colorblindness. Deploying political theory clarifies the stakes present in such data and the pertinence of laws in which interdisciplinary collaboration is not only desirable, but expected—such as the GDPR, European Union AI Act, and fundamental rights impact assessments (FRIAs)—as opposed to domestic policy proposals and litigated claims alone. Race studies, in turn, are crucial to understanding the functions of race through data as variably beneficial, exploitative, or otherwise materially oppressive. Merging this unique set of disciplines may offer greater theoretical coherence across their approaches.

More importantly, framing race-conscious data as a multidisciplinary issue aids the broader public in identifying new possibilities for engagement, connecting contemporary debates to histories of racial formation, and deepening strategic responses in the face of legal crisis. In this way, U.S. law may yet retain a role in understanding and reaffirming racial justice.

Author

• Shirley Lin, Brooklyn Law School