First-Time Encounters: "Passing
Vol.
First-Time Encounters: "Passing" Revisited and Demystific ation As a Critical Practice
0 Robert Westle y,First-Time Encounters: "Passing" Revisited and Demystific ation As a Critical Practice, 18 Yale L. & Pol'y Rev. (1999). Available at: https://digitalcommons.law.yale.edu/ylpr/vol18/iss2/4
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First-Time Encounters: "Passing" Revisited and
Demystification As a Critical Practice
Robert Westleyt
I.
INTRODUCTION
I hope the readerwill indulge me in my use of the terms "white," "black," "mulatto,"
and "Negro." Admittedly, they are very loose and laden with powerful emotional charges.
But most who read this book will know their weaknesses and recognize their strengths as
necessarysymbols in talkingabout these subjects.
-Joel
Williamson'
Robert Green filed suit to have the New Orleans Bureau of Vital Statistics
change the race on the birth certificate of Jacqueline Ann Henley.2 Green
wanted to adopt the child who was four years old; however he could not
because he was Black and the child was listed as white on her birth certificate.3 A
curator ad hoc was appointed by the court to represent the child's interests.
Based on the curator ad hoc's answer to Green's allegation that the child was
Black, the court dismissed Green's suit, and Green then appealed.
The child, Jacqueline Ann Henley, was born on November 2, 1950. Her
mother Ruby Henley Preuc was a divorced white woman. Shortly after
Jacqueline was born, Ruby turned her over to the child's aunt, Mrs. Harold
McBride, to care for her. Two years later, Ruby died of cancer without ever
having revealed the identity of the Jacqueline's father. On August 1, 1952, a
couple of months before Ruby Preuc's death, Mrs. McBride asked the
Department of Welfare to take Jacqueline because "she could no longer permit the
child to remain in her home, since the neighbors were beginning to comment
about the medium brown color of the child's skin."4 At that time, proceedings
t Associate Professor, Tulane University School of Law. B.A., Northwestern University, 1984;
M.A., M.Phil., Yale University, 1987; J.D., Boalt Hall School of Law, 1992; Ph.D., Yale University,
1993.
1. JOEL WILLIAMSON, NEW PEOPLE xii (1984).
2. See Green v. City of New Orleans, 88 So. 2d 76, 77 (La. Ct. App. 1956).
3. See id.
4. Id
began to declare Jacqueline abandoned, and she was soon placed in a Black
foster home.
Green, Jacqueline's foster parent, sought to adopt her. His application was
approved by the Department of Welfare until an examination of her birth
certificate revealed that she was registered as white. When the Bureau of Vital
Statistics refused to reclassify her racial status, Green was not allowed to adopt
Jacqueline. At that time, Green filed suit to prove that Jacqueline Ann Henley
was indeed Black, and that her birth certificate should be changed to reflect
that fact. Green would then be eligible to adopt her.
Green's case was based on the testimony of several witnesses. Ruby
Henley Preuc had been a barmaid at a "Negro saloon," and the plaintiff sought to
use this fact to prove her child was likely fathered by a Black man. 5 One of his
witnesses was a Black man named Herbert Stanton who did not testify that he
was the father or that he had had a sexual relationship with the child's mother.
Instead, he testified that he wrote to Ruby while she was in Detroit, and he
showed the court a letter to her containing such phrases as "but you know I'll
always love you" and "I wish you was home I miss you so."6 The court of
appeals characterized the testimony of Stanton as an example of the trial judge
"most liberally relaxing the rules of evidence" so as to give the plaintiff every
opportunity to prove his case. 7
Green also offered the testimony of Mrs. Emma Smith, the woman who
was responsible for filling out the birth certificate. She stated that she had not
inquired about the race of Jacqueline's father. She further testified that,
whenever the mother is white, she does not ask if the father is white. Instead, she
"take[s] it for granted he is white." 8 Mrs. McBride, the child's aunt, then
testified about her sister leaving the child with her, and her decision to turn the
child over to the Department of Welfare. She stated that she told a Mrs.
Oberholtzer at the Department of Welfare that the child "didn't fit in [her] family,
she was too dark," and that people had made comment that "the child was
possibly a nigger." 9 However, Mrs. McBride had no knowledge pertaining to the
actual race of the child's father or whether Ruby Preuc had ever had a
relationship with a Black man outside of her work. Both Mrs. Oberholtzer from the
Department of Welfare and a lawyer named Charles Collins testified that Mrs.
M (...truncated)