Resources on Systemic Racism

Rising awareness about the problems of systemic racism is creating new demands for information about how to define and to understand systemic racism and its implications for justice in the United States. The below articles discuss various aspects of systemic racism as manifested through—and perpetuated by—law.

Understanding Systemic Racism

Adaptive Discrimination (2016)

This Article critiques the assumption in constitutional law that racial discrimination is siloed, static, and time limited. It argues instead that discrimination is systemic, dynamic, and intergenerational due to its adaptive nature. The Article sets forth a theory of “adaptive discrimination” — that discrimination adapts to law and to social norms prohibiting intentional discrimination. This process begins with public and private efforts to evade anti-discrimination law and persists through vehicles of white privilege, racialized class ideologies, and implicit biases that embed in facially race-neutral laws and practices. These subtler racial processes continuously reproduce and entrench racial disadvantage across our social landscapes. By explaining how discrimination adapts over time, this theory helps to account for the persistence of vast inequality, despite formal racial progress under the law.

The Contested Role of Time in Equal Protection (2017)

This Essay examines how the Supreme Court has used conceptions of time and the passing of time to narrow the definition of racial discrimination and, ultimately, to constrain the very meaning of equal protection. The Essay challenges the common notion in equal protection that as time passes, discrimination and its harmful effects dissipate and eventually expire. Based largely on this notion, courts set artificial time horizons for identifying the continuing vestiges of past discrimination, which in turn rationalizes persisting inequality in the present. Using social science, the Essay explains how social conceptions of time discourage deeper inquiry into the relationship between past discrimination and present systemic inequality. It proposes that equal protection reject notions that discrimination naturally subsides so that courts and other constitutional actors may more freely explore these connections between past and present.

The Problems of Everyday Racism

Racial Territoriality (2010) (the recipient of the international Law & Society Association’s John Hope Franklin award)

Law treats race as a characteristic of individuals. Applying insights from social science, this Article argues that places also can have racial identity and meaning based on socially engrained racial biases about the people who inhabit, frequent, or are associated with them.  One consequence is “racial territoriality,” a distinctive form of discrimination in which people of color are excluded from public spaces that are identified as “white” and treated as being only for white people. This Article conceptualizes a definition of racial territoriality and demonstrates the weaknesses of constitutional doctrine as it applies to racially territorial behavior.  Ultimately, the Article seeks to illuminate the importance of space and racial geography in antidiscrimination discourse. Its goal is to situate spatial belonging as a central theme in the continuing conversation about structural racial disadvantage and to focus attention on racially exclusionary norms that are reinforced by spatial allocations of power.

Ordinariness as Equality (2018)

This Essay argues for an equality norm of racial ordinariness. Ordinariness here refers to the state of being treated as a full, complex person and a rightful recipient of human concern. As a norm, its purpose is to focus constitutional attention on common, everyday interactions as sources of racial indignity. It also seeks to sensitize courts and other constitutional actors to the infinite varieties and grittier dimensions of discrimination through the “understandings of everyday folk.”

Affirmative Action

The Indignities of Color Blindness (2016)

This Essay argues that colorblindness stigmatizes and demeans the dignity of individuals who identify by race. Colorblindness does this in two, related ways–one narrow and one broad. First, it treats racial identity as inferior to the extent that it excludes race from consideration of an individual’s background while considering other forms of social identity. Second, by foreclosing racial considerations, colorblindness denies those who racially self-identify the full expression of their identity. Colorblindness, therefore, demeans persons who embrace racial identity by denying them agency over how they present themselves to–and consequently are understood by–the state.

The Future of Affirmative Action (2016)

It is hard to remember a time in recent memory when the problems of racial injustice have been more visible and the need to promote opportunities for people of different racial and ethnic backgrounds has seemed more urgent. The very rawness and extent of these injustices are too disturbing to bear: videos of police killing unarmed African Americans; reports by the Department of Justice documenting law enforcement’s excessive force against, and harassment of, African Americans in Baltimore and Ferguson; xenophobic targeting of American Muslims and Mexican Americans by a presidential candidate; judicial findings of overt minority voter suppression — to say nothing of systemic problems like disproportionately high unemployment and school and housing segregation that have long drained opportunities from communities of color.

Critical Mass and the Paradox of Colorblind Individualism in Equal Protection (2015)

This Article explores this connection between individuality — what I define here as the personal expression and growth that occurs in an environment free of tokenism, racial stereotypes, and stigma — and the environmental presence of other people of color. Contrary to the normative assumptions that underlie colorblind individualism in equal protection, using racial classifications as a tool for building racial groups in institutions can reduce the salience of race. Having a minority group presence creates a social context in which persons of color are more likely to view themselves, and to be viewed by others, in terms that move beyond racial categories, consistent with equal protection’s normative goals. For racial minorities, therefore, achieving equal protection’s “colorblind” notions of individuality paradoxically depends on a racial predicate — that institutions race-consciously seek to enroll racial groups that are large enough to minimize the significance of race.

The Sins of Innocence in Standing Doctrine (2015)

Should reverse discrimination plaintiffs always be able to challenge race-conscious selection policies in court? Conventional standing doctrine requires plaintiffs to show that the contested policy or practice has caused a concrete, personal harm. Yet in affirmative action cases, courts seem to have quietly dispensed with this required showing. The Supreme Court’s decision in Fisher v. University of Texas is a prime example. The university illustrated that the white plaintiff would not have been admitted whatever her race. Yet the Court completely ignored the standing inquiry, reinforcing the significant confusion among courts and scholars alike about the cognizability of racial injury. This article criticizes the presumptions of “white innocence” in standing doctrine that have enhanced access for white plaintiffs who challenge affirmative action policies in federal court.

Racial Integration

The Muddled Distinction Between De Jure and De Facto Segregation (book chapter) (2020)

This chapter explores the complicated origins of school segregation outside the South and the federal cases that adjudicated its constitutionality. Its central contribution is to recover the often confusing legal narratives about segregation in the period after Brown v. Board of Education and how federal courts struggled to discern the constitutional boundaries between de jure and de facto discrimination. The chapter briefly describes the advent of the intent requirement in equal protection and “colorblindness” doctrine, which treats any use of race as presumptively unconstitutional, regardless of its integrative purpose.

The Constitutionality of Racially Integrative Purpose (2016)

This Essay considers a question that has lingered at the outskirts of equal protection doctrine: is a facially race-neutral policy that is designed to include historically marginalized racial groups presumptively constitutional?