Abstract

Excerpted From: Shirley Lin, Race-Conscious Data: The New Political Taxonomy, 114 Geo. L.J. 1301 (June 2026) (Full Document) (334 Footnotes Omitted)

Consider a possible near future at the close of the second Trump presidency: The Department of Justice (DOJ) announces that it will cease collecting data regarding our race across all civil rights work. In January 2025, President Donald Trump’s “day-one” orders suspended active investigations into police conduct that resulted in disproportionately more deaths for Black Americans than any other racial group.But the FBI, as DOJ’s investigative arm, announces that it will cease tracking hate crimes motivated by race, ethnicity, or ancestry, although slurs from Trump officials against immigrants continue. If local statistics show that racialized violence persists--after escalating in recent years-- workers’ centers, civil rights groups, and neighborhood groups must now resort to social media to draw attention to patterns of violence that stem from issues in common across state lines. Eyewitness to these troubling shifts, employees of a technology firm publicly condemn their employer’s surveillance work for the administration,as existing race-related data relating to civil rights are removed by federal fiat or threat.

Having condemned “DEI” practices among employers and educational institutions as “illegal,” the Trump Administration announces it will try to strike decades-old regulations collecting demographic data as to race, sex, and compensation from major employers, and threatens to sue those that continue to track racial self-identification, citing his own attempt to redefine “discrimination” itself as intent to “discriminate, exclude, or divide individuals based on race or sex.” Now, many more condemn the inversions of law to suppress race consciousness and democracy itself, and insist they are necessary to achieve equality and combat segregation.

Meanwhile, an up-and-coming Louisiana suburb becomes visibly segregated by skin color. Renters for buildings closest to an open-spill polluter identify as primarily non-white, and buildings presumed to be cleaner and safer are mainly occupied by white renters. The local realtors’ association reassures landlords that this outcome can be explained by differences in class and income. The 2027 Congress legislatively “derecognized” disparate-impact doctrine, a theory of liability for discrimination that could be established by evidence showing racially disparate systemic effects.There is no “discrimination,” no racism, and thus no harm, they say. Even as the Trump Administration has substantially merged all Americans’ personal information across key agencies, the result of the $908 million in contracts awarded to Palantir, taxpayer-funded software will not only monitor immigrants’ activities and associations in real time, but also track known critics of the President.While evidence of racial oppression is erased, some data will persist selectively for some whites, but otherwise serve to subjugate or disappear non-white communities.

Amid dramatic reconsolidations of power, claims about race and law that had once occupied the fringes of discourse now dangle at the fore. A second Trump presidency now catalyzes efforts to silence, destroy, and even persecute uses of racial identification and proceeds dangerously toward logical ends. Some claims advanced now have not been made in more than two centuries; yet many are wholly unprecedented. To wit: in spring 2023, a presidential blueprint known as Project 2025 floated a claim that civil rights law bars even voluntary inquiries about racial identity, and urged the next administration to “prohibit racial classifications and quotas” because “Title VII flatly prohibits discrimination in employment on the basis of race, color, and national origin.... Crudely categorizing employees by race or ethnicity... forces individuals into categories that do not fully reflect their racial and ethnic heritage.”

Without citing a shred of legal support, Project 2025’s authors simply express normative concerns. Their arguments seemed so specious that they failed to attract comment amid widespread public objections to Project 2025.

Yet minutes into his second inaugural address, President Trump vowed to “forge a... colorblind and merit-based” society by ending efforts that “socially engineer race and gender into every aspect of public and private life.” The next day, a new executive order (EO) purported to “end discrimination” and roll back federal contractors’ duties to ensure equal opportunity, including reporting race, gender, and other demographic data of their workforce annually. Unbounded claims about law and race, amplified by President Trump from podiums and in executive orders, edge the country toward several plausible, dystopic near-futures.

To simply call these policies “colorblind” risks missing this shift into new extremes of race-silencing and informational erasure. Under the threatened regime, Americans must abandon even voluntary racial self-identification. Within its first hundred days, the administration targeted key social institutions to erase references to racial identity: (1) preschool, K-12, and post-secondary schools, under Title VI; and (2) the federal government’s 400 agencies and commissions, under “equality” principles and the threat of criminal and civil prosecution. As for (3) private employers, the administration appears to be waiting for a cultural tide to shift through the latter (classrooms and government offices), perhaps with a depleted labor movement. Rather than openly prohibit racial data collection from federal contractors, the first hundred days sought to destabilize race discourse and empiricism through “law”: investigating “DEI” programs not eliminated as “discriminatory” and derecognizing disparate impact theory. If the touchstone of workplace civil rights is breached, the consequences for democracy itself will be devastating.

This Article is the first to identify and address two devolutionary aspects of this regime: (1) federal deployment of “law” to erase racial discourse from all core private and public social institutions; and (2) the co-optation of privacy and informational norms to eliminate all race-conscious applications of law. As its second contribution, I link emergent labor activism and employer efforts to resist such misinformation-by-law under a conceptual integration of race, information science, and law. To stand any chance of halting it in its tracks, we must expand our means of engaging our oldest technologies: law and racialization.

Woefully few researchers integrate racial analysis and data science. Those who have, however, pioneered insights into newer technologies and their tendencies to amplify bias. Their time-sensitive findings have helped mitigate institutions’ uncritical yet widespread adoption of data practices. Scholarly research as a whole, however, largely declines to test its assumptions about fairness in social ordering or its interpretation of racial information, even though such nuance is now within our analytical capacity. Instead, archconservatives perceived race and racial data to be micro-foundational to social processes and institutions for decades, with ending disparate impact a significant feature of their own multilevel conceptual framework.

What limits to such complex and unending threats remain within law? Some quarters now strive to seamlessly relate old “tech” to the new to preserve race consciousness. Workers, companies, and the public have begun to demonstrate integrative conceptual analyses rarely found in legal discourse. Whenever scholars undertake time-intensive research yet omit a racial lens to test their theoretical constructs, our ability to comprehend the extent of damage to the rule of law remains limited as well. The end-product of such evasion: informational norms now occupy crucial, unacknowledged roles in weaponizing law to undermine race consciousness, here and abroad.

Race, information science, and law furnish pieces of the puzzle, yet progressive and conservative scholars alike have treated their synthesis as taboo. To facilitate their conceptual integration, I apply the term race-conscious data to refer to all information that communicates racial identity: from the race, color, or ethnicity one volunteers or is assigned, to a refusal to state one. The term is politically agnostic to foster robust discussion. Data refers broadly to information on which “reasoning, discussion, or calculation” relies.Race-conscious refers broadly to any communication of racial differentiation among people as a socio-political process. Protracted battles over access to racial information-- particularly in workplaces--mean that law will continue to suppress, preserve, or foster race consciousness.

As its third and final contribution, this Article introduces a political taxonomy of five ideologies and their positions with respect to race-conscious data: (1) Liberal Data Guardians; (2) Race-Conscious Dignitarians; (3) Colorblind Regressives, including Race-Averse and Race-Denying; (4) Libertarians, including Techno-Libertarians; and (5) White Nationalists. Contemporary definitions and examples convey the full panoply of ideas in operation, their overlaps or contradictions, and shifts within some of the same actors over time. In this way, law remains relevant once a president openly embraces techno-libertarianism, white nationalism, or both. Under a comprehensive taxonomy, efforts to erase or manipulate racial data at work, in schools, and other sites uncover a reversion to pre-democratic norms.

This Article proceeds in three parts. Part I provides a historical analysis of the relationship between racial information and our status as a democracy. Materially oppressive, involuntary uses of racial identity under law marked a pre-democratic America. Civil war over the question of racial freedom rendered the beginnings of an inclusive, egalitarian democracy: a nation with a race conscience. By law, anti-discrimination norms yielded a social settlement over legitimate uses of racial data as: (1) a guardrail and common good, (2) a barometer, and (3) a social science. Against this backdrop, Part II deploys a taxonomic approach to racial meaning in light of dramatic departures from prior taxonomies. Section II.B presents a modernized taxonomy of the five ideological approaches to race-conscious data that reintegrates social disciplines as essential to law. Each approach may be identified by its principles and policies toward racial data in its conceptions of harm, accountability, and theories of the state. Part III addresses likely challenges to preserving uses of race-conscious data: asymmetries of power, surveillance, and control; commodification; and data integrity. Each contends with the colossal scale of data subject to law’s control, often presented as race-neutral and thus underscoring the need for race-conscious tools beyond legal heuristics.

Recentering race-conscious data as legitimate and vital to democracy renders it cognizable, such that law may help--or at least, cannot hinder--society in its understanding that “[b]efore the data can be deracialized, we must deracialize the social circumstances that... create[] racial stratification.” Addressing inequality hinges upon our continued ability to recognize race, relationships, and institutions as mutually defining. Disciplines realigning to meet this moment may assist in restoring our understanding of law as a social science, one no more infallible than any other.

[ . . . ]

Despite potentially dystopic paths ahead for U.S. democracy, this Article has surfaced how race consciousness has remained paramount in a functional democracy and in legitimating legal authority. That decontextualized claims about law not only fail to sustain democracy but are complicit in undermining rule of law reveals the profound need to reintegrate race studies, information science, and law. Organized workers, along with dissident current and former employees across traditional class and occupational lines, continue to guide society with expertise and credibility, augmenting the public’s own views regarding racialized harm.

Across constituencies, this Article has advanced a new political taxonomy that relates the “old tech” of race and law with the new tech of information (“data”) and systems literacy, as a potential reconceptualization that ameliorates the rapidly growing challenges of erasure, obfuscation, and disempowerment. Centering race-conscious data as a starting point for distinguishing ideologies--and their roles in upholding or undermining the rule of law--assists both lay and legal audiences as they weigh the function of data as public goods, worthy of trust or otherwise. Indeed, these uses of law remain necessary to resist abstract procedural grievance, propaganda, and other efforts to undo society’s efforts to remediate racial inequality.

As its final contribution, this Article has concretely suggested how the law must pivot to remain relevant: toward connecting social knowledge of old and new “tech;” acknowledging the array of supremacist to non-subordinating conceptions of race under law; competing informational norms within a highly polarized electorate; and healthy skepticism regarding technologies and awareness of their life-altering potential, particularly in the face of political suppression and Court overreach. Through these modern iterations, race-conscious discourse will continue to find footholds to taxonomize public and private infrastructure shaped by past inequities. In a different future, U.S. law is poised to rejoin established social sciences in recognizing its relationship with race in interpersonal, legal, and institutional history. A full account of law and ideologies transparently and openly discernable in regulatory choices may, in fact, enable all to confront the deterioration of democracy here and abroad.

Shirley Lin is Associate Professor of Law at Brooklyn Law School.