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Topic: Teach me something liberals
Replies: 19   Last Post: Jul 5, 2020 3:39 AM by: Neal in NC®
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Teach me something liberals

[1]
Posted: Jul 4, 2020 8:02 AM
    Reply

Please give me some examples of policy or law that promotes systemic racism and how these policies and laws can be changed to provide equality regardless of race.

I absolutely 100% believe that the more we can get everyone participating working and thriving in our economy the better off we all are.

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Re: Teach me something liberals

[1]
Posted: Jul 4, 2020 10:31 AM
    Reply

Liberals are good at teaching. They are terrible at “doing”.

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Re: Teach me something liberals

[2]
Posted: Jul 4, 2020 10:43 AM
    Reply

They’re actually not good at teaching anything useful.

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Re: Teach me something liberals


Posted: Jul 4, 2020 1:39 PM
    Reply

Arrest records indicate that teachers are the number 1 occupation for antifa members. Not surprised at all.


Here’s a c&p, now and go forth and reform


Posted: Jul 4, 2020 11:00 AM
    Reply

a little light reading on the subject, lol

https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=1160&context=klj

I. AN INTRODUCTION TO STRUCTURAL RACISM FOR LAWYERS
The concept of "racism" - like the word itself- is surprisingly modern, 6
being introduced to social-science scholarship by the anthropologist Ruth
7 Benedict in her path-breaking 1940 study Race: Science andPolitics. It soon
made its way, though abortively, into the discourse of the Justices of the United States Supreme Court. The word "racism" itself first appeared in the United States Reports in a concurring opinion by Justice Frank Mur- phy in Steele v. Louisville & NashvilleRailroadCompany,' which was decided in 1944, and then again on the same day in his dissent in Korematsu v. United States9. Yet it is both astonishing and symptomatic of the Justices' collec- tive refusal to confront issues of structural racism that, after 1944, the word "racism" appears only infrequently in isolated dissents or concurrences,
mostly of Justices William 0. Douglas, William J. Brennan, and Thurgood Marshall. Not until 1992 was the word used substantively in a majority
I0
opinion of the Court.
by the standards of the Supreme Court.
This half--century cultural lag is remarkable, even
Racial oppression and the mindsets that sustain racially-based hege- mony and subordination are far older, of course, not just coeval with the European conquest of North and South America and the Caribbean, but antedating them by centuries." Scientific racism, pioneered in Thomas Jefferson's anthropological speculations, I" became dogma among America's
6 The earliest appearance of the word "racism" noted by the Oxford English Dictionary was in a 1926 article in the ManchesterGuardian.OXFORD ENGLISH DICTIONARY (3d ed. 2oo8),
availableat http://www.oed.com/view/Entry/i57097.
7 7See RuTH BENEDICT, RACE: SCIENCE AND POLITICS (1940).
8 Steele v. Louisville & N.R. Co., 323 U.S. 192, 209 (1944) (challenging racial discrimina- tion by a labor union, Justice Murphy denounced "[t]he cloak of racism surrounding the ac- tions of the Brotherhood [of Locomotive Firemen and Enginemen] in refusing membership to Negroes and in entering into and enforcing agreements discriminating against them").
9 Korematsu v. United States, 323 U.S. 214, 233 (944) (determining that Japanese war- time exclusion from the West Coast "falls into the ugly abyss of racism").
io Georgia v. McCollum, 505 U.S. 42, 58 (1992) (banning racially-discriminatory use of peremptory challenges by defense counsel in a criminal prosecution).
II WINTHROP D. JORDAN, WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD THE NEGRO 1550- 1812, at 3-43 (1968).
12See THoMAs JEFFERSON, NOTES ON THE STATE OF VIRGINIA 138-39 (William Peden ed.,

2OI1-20121
AN INTRODUCTION
educated elite by the early twentieth century, expounded by Madison
Grant, Henry Fairfield Osborn, and the circle around them at the American
Museum of Natural History.13 The intellectual project of naming and de-
scribing this outlook occurred in mid-century critiques by the anthropolo-
4I
gists Franz Boas and Ashley Montagu. " (Ruth Benedict was a student of
Boas at Columbia.)
This late conceptualization of what "racism" is has imprinted on public
understanding - including that of lawyers - the idea that racism is funda- mentally a matter of attitude: of conscious belief and a will to act on that belief. That understanding has had incalculable consequences for Ameri- can law, and for the larger society. It is that (mis-)understanding that this conference addressed.
Since Benedict's day, sociologists have distinguished between two man- ifestations of racism:
" Traditional racism, of the Jim Crow, Ku Klux Klan variety; and * Structural racism, also known as institutional racism.
I will briefly describe the two.
A. Traditionalracism
This is the phenomenon that Benedict originally identified. The prin- cipal cultural and legal manifestation of traditional racism since Emancipa- tion has been the complex of social practices and legal constraints known as Jim Crow.1 6 It is these that modern equal protection doctrine has con- demned. A consensus prevails among white Americans today that tradition- al racism has declined, and is no longer a severe problem. This has been accompanied by a decline in traditional racist attitudes and assumptions
7
on the part of whites.
Traditional racism is marginalized today, though it
1781); see also PAUL FINKELMAN, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE AGE OF JEFFERSON 152-53 (1996).
13 See, e.g., MADISON GRANT, T1E PASSING OF THE GREAT RACE OR THE RACIAL BASIS OF EUROPEAN HISTORY (1916). On scientific racism and the influence of Grant, see generally
STEPHEN JAY GOULD, THE MISMEASURE OF MAN (1981). 14SeegenerallyFRzBOAS,RACE,LANGUAGEANDCULTURE(I940);FRANzBOAS, TEMIND
OF PRIMITIVE MAN (1938).
15 Seegenerally M. F ASHLEY MONTAGU, MAN'S MOST DANGEROUS MYTH: TIE FALLACY OF
RACE (1942); Ashley Montagu, The Race Question,in UNESCO AND ITS PROGRAMME (1950).
16 Our work focuses on the circumstances of African Americans, past and present. We do not slight the experiences of other people of color, but they are grounded in different histories
of encounter between them and Euro-Americans. Slavery and its successors have provided the mold for all forms of racism affecting African Americans, both traditional and structural, and that in turn established the paradigm for legal attempts to eradicate racism and its effects.
17 See generally HOWARD SCHUMAN ET AL., RACIAL ATTITUDES IN AMERICA: TRENDS AND INTERPRETATIONS (1997).

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is far from negligible. The legal structures that sustained state-mandated overt discrimination have been dismantled, though sometimes tardily and
8
For the past half-century, American society has been formally
reluctantly.
committed to a general goal of racial equality.
A lawyer's sense of what offends the Fourteenth Amendment's guaran- tee of equal protection is confined by this prevalent understanding of what racism is: traditional racism. Racism in this view is a result of belief, both in imputed inferiority of the object person or group and in the assumed superiority of the racist. It is deliberate, in the sense that the racist is self- aware of his attitudes, does not censure them, and intends them to have consequences. It is individualistic rather than collective, both in the mind of the racist and in its impact on the victim. In constitutional debate, racism is often decontextualized and isolated. Judges treat racial discrimination as a discrete event, like an intentional tort, even if it is repeated, cumulative, or persistent over time and across space. This approach cuts off the legal wrong of discrimination from the gestalt of its social environment, includ- ing the intersection of class, gender, and history.
The legal model of traditional racism focuses on an individual with a bad attitude. It assumes that the racist is aware of his beliefs and by acting on them, intends to bring about discriminatory results for the victim. He cooperates with others similarly ill-disposed to people of another race to act deliberately in a private or public capacity to adopt policies that dis- criminate against disfavored individuals. The racist's actions are presumed to be conscious and deliberate, and to most people today,morally reprehen- sible. Absent such self-aware motivation, the perpetrator's action cannot be properly considered racist in any actionable legal sense. The most impor- tant consequence of these assumptions is that the United States Supreme Court has shrink-wrapped equal protection doctrine to fit traditional rac- ism and little else. The Justices have displayed unease verging on hostility to legislative attempts, such as affirmative action programs, Title VII, or pupil assignment programs, that go beyond traditional understandings of racism to grapple with non-intent-based structural racism.
A major problem we encounter in discussing forms of racism other than the traditional volitional sort described here is the assumption that anything labeled "racism" must include all the components of traditional racism: prejudice, intent, and discrimination. Where these ingredients are missing, the social phenomenon under discussion, such as residential seg- regation and consequent inferior schooling, cannot be culpable, and is not remediable within the confines of the United States Supreme Court's in- adequate understanding of racism. Responsibility evaporates, and the law
18 To illustrate, Kentucky formally rejected ratification of the Thirteenth Amendment on February 24, 1865, and did not get around to ratifying it until March 18, 1976. See U.S. CONST. amend. XIII.

2011-20121 AN INTRODUCTION 5
is helpless, short of legislative intervention, which is itself often suspect in the eyes of the Justices.
B. Structuralracism.
Structural racism is a complex, dynamic system of conferring social ben- efits on some groups and imposing burdens on others that results in seg- regation, poverty, and denial of opportunity for millions of people of color. It comprises cultural beliefs, historical legacies, and institutional policies within and among public and private organizations that interweave to cre- ate drastic racial disparities in life outcomes.
Because structural racism operates invisibly, and is difficult to define succinctly except in abstract academic prose (like the preceding para- graph), the best way to convey a sense of what it is and how it functions is by concrete examples. Take the original exclusion of agricultural and domestic workers from eligibility for Social Security benefits in 1935. Because they could not collect old-age or unemployment benefits, field hands, sharecroppers, maids, and nannies - constituting the bulk of the black labor force in the New Deal South - were shut out from even the most modest opportunity that whites enjoyed for wealth accumulation and survival assistance in economic downturns.19 In this example, blacks were not explicitly excluded, but the proxy phrase 'agricultural and domestic workers' did the job effectively. Nor was this anomalous: African Americans were excluded implicitly or through administrative fiat from all major New Deal welfare programs, including the National Labor Relations Act, the Fair Labor Standards Act, the National Industrial Recovery Act, and the
0
Agricultural Adjustment Act.
the opportunities offered by New Deal programs originated in traditional racism: the determination of powerful southern Democrats in the Senate to preserve the racial order of the Jim Crow South. But once set in motion, the structure of exclusion and discrimination operated automatically. Coupled with other examples of mid-century discrimination, such as overtly racist Federal Housing Administration mandates for segregation, New Deal poli- cies stunted black wealth accumulation at the same time that they created a cornucopia of opportunity for whites. Though the nation moved slowly away from Jim Crow, the structure endured, as powerful as ever, even if
i9 See ALICE KESSLER-HARRIS, IN PURSUIT OF EQUITY: WOMEN, MEN, AND T14E QUEST FOR ECONOMIC CITIZENSHIP IN 20TH-CENTURY AMERICA 130-56 (2001). They were later included by amendments to the Social Security Act in 1950 (domestic workers) and 1954 (agricul- tural workers). See Social Security Amendments of 1950, Pub. L. No. 81-734, 64 Stat. 809 (1950); Social Security Amendments of 1954, Pub. L. No. 83-761, 68 Stat. izo6 (1954);seealso Kessler-Harris, supra, at 155-56.
20 See Juan E Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural andDomestic WorkerExclusionfrom the NationalLabor RelationsAct, 72 OHIo ST. L.J. 95, 104-26 (2011).
This exclusion of African Americans from

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no longer deliberately racist. The most effective agent perpetuating that structure has been the Supreme Court's refusal to recognize it.
Structural racism may be familiar to some lawyers by its other name,
institutional racism, thanks largely to Ian Haney L6pez's path breaking ex-
ploration of the problem in 2000.21 Haney-Lopez described the "unexam-
ined social practices or patterns [that] at once structure and give meaning
to human interaction," analyzing the practices of California Superior Court
judges in selecting grand jurors, which resulted in a near-total exclusion
2
of Chicanos.
He found that the "unconsidered repetition of cognitively
familiar routines," the "routinized sequences of behavior," structured so-
cial institutions (here, grand jury proceedings).23 Haney-Lopez examined
"racial institutions," those "understanding of race ... within a community" 24
that enable individuals to understand and explain reality. These beliefs in turn reinforce a racial hierarchy of status resulting in "social domination"
5
by a superordinate group (Anglos) over a subordinated group (Chicanos). Eight characteristics distinguish structural racism from 'its traditional
Jim Crow predecessor:
* * " * *
Structural racism is to be found in racially-disparate outcomes, not invidious intent.
Structural racism ascribes race as a basis of social organization to groups through a process of "racialization."
White advantage is just as important an outcome as black subordi- nation, if not more so.
Structural racism is invisible and operates behind the illusion of colorblindness and neutrality.
Structural racism is sustained by a model of society that recognizes only the individual, not the social group, as a victim of racial injus-
Ian F.Haney L6pez, InstitutionalRacism:JudicialConductanda New Theory of Racial Discrimination,109 YALE L.J. 1717 (2000).
22 Id.at 1723.
23 Id.
24 Id.at 18o9.
25 Id. at j81o.
21

20II-20121
AN INTRODUCTION
tice. This individualist outlook refuses to acknowledge collective
harm, group responsibility, or a right to collective redress.
* The effects of structural racism are interconnected across multiple
social domains (housing, education, medical care, nutrition, etc.). * Structural racism.is dynamic and cumulative. It replicates itself
over time and adapts seamlessly to changing social conditions.
* Structural racism operates automatically and thus is perpetuated
simply by doing nothing about it. Let us briefly examine each of these in turn.
1. Outcome vs. Intent.-Structural racism is manifested in disparate out- comes between racial groups, not the intent of an alleged discriminator. Because intent is central in traditional racism, both laypeople's and law- yers' recognition of racism requires proof of deliberate malevolence before some policy can be considered racist and legally actionable. Sociologists have described the processes of structural racism since 1967,26 but the Su- preme Court clings to the long-outdated notion that racism can be defined only in traditional terms. The Justices shrug their shoulders indifferently and refuse to acknowledge the collective harm, understand the cause, or provide a remedy for structural racism.
The case of Washington v. Davis2 7 affirmed the requirement of intent for a violation of the equal protection clause. It remains the single most important decision of the United States Supreme Court for understanding the failure (or refusal) of the Justices to recognize structural racism. There Justice Byron White held that "the basic equal protection principle [de- mands] that the invidious quality of a law claimed to be racially discrimi- natory must ultimately be traced to a racially discriminatory purpose."2" "Disproportionate impact" alone is insufficient to prove a constitutional violation. 9
One of the great failings of this judicial posture is that it refuses to rec- ognize unconscious racism. Researchers in social psychology have demon- strated that unconscious prejudice (also known as aversive racism) plays a significant role in thought processes and behavior," and have buttressed
26 For the first use of the term "institutional racism," see STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: 'ThE POLITICS OF LIBERATION IN AMERICA 4 (1967) ("Racism is both overt and covert. It takes two, closely related forms: individual whites acting against in- dividual blacks, and acts by the total white community against the black community. We call these individual racism and institutional racism.").
27 Washington v. Davis, 426 U.S. 229 (1976).
28 Id.at 240.
29 Id. at 240-41. It may, however, suffice for demonstrating a statutory violation under
Title VII of the 1964 Civil Rights Act, as amended. See Griggs v. Duke Power Co., 401 U.S. 424,426-34 (197i).
30 SeeSusanT Fiske, WhatWeNowKnowAboutBiasandIntergroupConflict,theProblemof

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the sociological argument that intent is not a component of racism in its structural or institutional manifestations. Unconscious racism thereby be- comes an important element of structural racism. The explanatory model of aversive racism proposed by social cognition theory3 works this way: individuals harbor unrecognized, submerged mental associations that link people of color with crime, poverty, drugs, violence, and other negative ra- cial stereotypes. This is sometimes described as "implicit bias."3 These unconscious biases exist in all of us, even those who consciously disavow racist attitudes and sincerely support the abstract goal of racial equality. Conscious ideals and unrecognized imagery coexist in unacknowledged tension. These unacknowledged negative attitudes affect their holder's behavior, and this produces disparate outcomes, such as when individuals make hiring decisions.
By 1970, cognitive psychologists began to distinguish traditional rac- ism, which they aptly referred to as "dominative racism,"33 from aversive racism. Drawing on this work, in 1987 the legal scholar Charles Lawrence published what has become the classical legal analysis of the problem: The Id,the Ego, andEqualProtection:Reckoningwith UnconsciousRacism.' As his title suggests, Lawrence relied on both Freudian theory and cognitive psychology to elaborate a doctrinal approach to the problem of intent in discrimination law. He recommended that judges take unconscious racism into account in mandating strict scrutiny for all public actions that convey symbolic messages having racial significance. His seminal article estab-
the Century, II CURRENT DIRECTIONS IN PSYCHOL. SCI. 123 (2002); Samuel L. Gaertner & John E Dovidio, The Aversive Form of Racism, in PREJUDICE, DISCRIMINATION, AND RACISM 61, 61-66 (John F Dovidio & Samuel L. Gaertner eds., 1986); Marianne Bertrand et al., New Approaches to Discrimination:ImplicitDiscrimination,95 Am. ECON. REv. 94, 94-95 (2005); John F. Dovidio et al., On the Nature of Prejudice:Automatic and ControlledProcesses, 33 J. EXPERIMENTAL SOC. PSYCHOL. 510, 512 (1997); Russell H. Fazio & Michael A. Olson, Implicit Measures in Social
Cognition Research: Their Meaning and Use, 54 ANN. REV. PSYCHOL. 297 (2003); John T Jost et al., The Existence of Implicit Bias is Beyond Reasonable Doubt: A Refutation of Ideologicaland MethodologicalObjectionsandExecutiveSummaryofTen StudiesthatNoManagerShouldIgnore,29 REs. ORGANIZATIONAL BEHAV. 39, 40-42 (2OO9); Kristin A. Lane et al., Implicit Social Cognition and Law, 3 ANN. REV. L. & SOC. SCI. 427, 428-32 (2007); Lincoln Quillian, New Approaches to UnderstandingRacialPrejudiceandDiscrimination,32 ANN. REV. SoC. 299, 299-300 (2oo6); Troy Duster, Introductionto UnconsciousRacism Debate, 71 SoC. PSYCHOL. Q. 6, 6 (2oo8).
31 For a discussion of social cognition theory, see generally SUSAN T FISKE & SHELLEY E. TAYLOR, SOCIAL COGNITION- FROM BRAINS TO CULTURE (2008).
32See,e.g.,ChristineJolls&CassR.Sunstein,TheLawofImplicitBias,94CAL.L.REV. 969,970-71 (2oo6); Jerry Kang & Kristin Lane, Seeing through Colorblindness:Implicit Bias and
the Law, 58 UCLA L. REV. 465, 473 (201o).
33 The phrase originated in the work of the psychiatrist Joel Kovel. See JOEL KOVEL,
WHITE RACISM: A PSYCHOHISTORY 32 (1970).
34 Charles R. Lawrence III, Theld,theEgo, andEqualProtection:Reckoningwith Unconscious Racism,39STAN. L.REV.317(1987).

20II-20121 AN INTRODUCTION
lished the reality of unconscious racism for legal academics, if not for the Justices of the Supreme Court.35
Recognizing the ubiquity and force of implicit bias, lawyers as well as social psychologists have relied on cognitive science to critique inten- tionality-grounded antidiscrimination law. The foremost scholar in this area, Linda Hamilton Krieger, has argued that categorizing and stereotyp-
36
That this produces biased decisions is normal, and beyond self-awareness and thus self-control. Because discrimination is cognitive and not "motivational,"
Krieger contends that much of antidiscrimination law37 is misguided and
counterproductive. Instead, she urges, law should move from imposing a "proscriptive" duty not to discriminate to a "prescriptive" duty to control
for such cognitive biases, recognizing their inevitability. 18
This work has not, however, had any apparent impact on the Supreme Court. Instead, Justice Antonin Scalia's indifference to social-scientific
demonstrations of racial bias reminds us that the concept of implicit bias can be perverted to sanction racial discrimination. In a 1987 memorandum on the problem of racial prejudice in death penalty litigation, he wrote:
I do not share the view, implicit in Uustice Lewis Powell's 1987 draft opinion in McCleskey v. Kemp], that an effect of racial factors upon sen- tencing, if it could be shown by sufficiently strong statistical evidence, would require reversal. Since it is my view.., that the unconscious oper-
ationof irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial [decisions], is real, acknowledged [in the decisions] of this court and ineradicable, I cannot honestly say
The proven reality of structural racism and of implicit bias places legal
doctrine in a posture that ignores over forty years of findings in sociology
and psychology. The Court's stubborn refusal to acknowledge the work in
social science, as well as its outmoded assumptions, "have been compel-
lingly, verifiably, and reliably contradicted by recent findings" in cognitive
35 Seeid.
36 Linda Hamilton Krieger, The Content of Our Categories:A Cognitive Bias Approach to Discrimination andEqualEmployment Opportunity,47 STA. L. REV. I116, iI6i (1995).
37 She was referring specifically to the disparate-treatment tests derived from McDonnell Douglas AircraftCorp. v. Green, 411 U.S. 792 (1973), that are used to interpret and apply Title
VII of the 1964 Civil Rights Act as amended.
38 Krieger, supranote 36, at I166.
39 Dennis D. Dorin, FarRight of the Mainstream:Racism, Rights and Remedies from the
PerspectiveofJusticeAntoninScalia'sMcCleskey Memorandum,45 MERCER L. REv. 1035, 1038 (1994).
40 Margaret Richardson & Todd L. Pittinsky, The Mistaken Assumption of Intentionality in EqualProtectionLaw:PsychologicalScienceandtheInterpretationoftheFourteenthAmendment, in FAc. RES. WORKING PAPER SERIES 2 (John F Kennedy Sch. of Gov't, Harvard Univ., 2005).
ing people are part of "normal human cognitive functioning.
39 that all I need is more proof.
40
are not apparent to him; thus by definition, he may not have the intent
science.
An individual may be motivated by impulses and attitudes that

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- which implies conscious volition - to act in a way that results in illegal discrimination. Just as requiring a showing of intent to cause global warm- ing is pointless for collective action in responding to climate change, so is it
4
useless for reforming the structural bases of racial inequities.
ing a showing of intent, the Court has potentially foreclosed relief for the actions of all but the most overtly bigoted, those stupid enough to provide
evidence of their malevolence.
This has been obvious to sociologists for decades. The president of the
American Sociological Association, Barbara Reskin, noted in her 2002 inau-
gural address that "[riedirecting our attention from motives to mechanisms
is essential for understanding inequality and - equally important - for con-
' 42
tributing meaningfully to social policies that will promote social equality. But while this is a commonplace in social science, it has yet to penetrate
the thinking of the Justices.
2. Race is socially constructed through racialization.-Therevolution in our thinking about race that was begun by Boas, Benedict, and others in the 1930s and 1940s triumphed by the close of the twentieth century. We now see that race is a social construct rather than an essentialist, biological char- acteristic of human beings. At the macro level, students of social systems came to see that race in not an inherent and immutable characteristic of groups any more than it is of individuals. Instead, societies are "racialized,"
43
both historically and currently. Dominant groups identify "races" on the
basis of simple phenotypes based on physical appearance, and then color- code them reductively: white, black, red, brown, and yellow. In this process, race as a basis of social organization is ascribed to groups of people as well as individuals. Hugely important effects follow from such racial ascription as racial hierarchies that control the distribution of benefits and burdens in society.
Racialization is an on-going, dynamic process of "racial formation," in which "racial categories themselves are formed, transformed, destroyed, and re-formed." 44 The superordinate group attributes meaning to racial
41 See john a. powell, StructuralRacism: Building upon the Insights ofJohn Calmore,86 N.C. ,
L. REV. 791 797-98 (2oo8).
42 Barbara E Reskin, Including Mechanisms in OurModels of Ascriptive Inequality, 68 AM.
Soc. REV. 1, 1 (2003).
43 For a sociological analysis of racialization, see generally EDUARDO BONILLA-SILVA,
RACISM WITHOUT RACISTS: COLOR-BLIND RACISM AND THE PERSISTENCE OF RACIAL INEQUALITY INTHE UNITED STATES (2003); Eduardo Bonilla-Silva, Rethinking Racism: Towarda Structural Interpretation,62 AM. Soc. REV. 465 (1996). For historical explanations of racialization, see JORDAN, supra note I I, at 316. See generally EDMUND S. MORGAN, AMERICAN SLAVERY AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA (1975).
44 PAULA S. ROTHENBERG, RACE, CLASS AND GENDER IN THE UNITED STATES: AN INTEGRATED STUDY 15 (1998).
By mandat-

2Oll-2012]
AN INTRODUCTION
identity as the fundamental organizing principle of social relationships.4" Law plays a crucial role in forming, defining, assigning, and imposing social
46
classifications on individuals and groups alike along racial lines.
society becomes racialized, with groups of people consigned to racial cat- egories and those categories then become the basis of distributing benefits and imposing burdens, structural racism provides the dynamic process that polices and renews that race-based social structure. Because this process is fluid, new groups may be promoted to the dominant racial group, as hap- pened successively to Irish, Italian, Greek, and Jewish immigrants before World War 11.41 This process results in a "racialized social system" in which socially-defined racial groups receive radically different shares of the so- ciety's benefits and burdens. Whites enjoy both material benefits (wealth, economic opportunity) and what W.E.B. Du Bois identified as the "psycho-
48
3. White advantage.-Forover half a century, lawyers have approached the problem of racism as a matter of discrimination, whereby a majority op- presses a racially-defined minority. The focus has exclusively been on det- riment to the minority. But black subordination is only one side of the coin
49
When legal analysis ignores this issue, it reinforces what sociologists call "white normativity." Whites unthinkingly assume that their privileged
situation is the norm,50 and that all others could experience it too, were it not for those others' deficiencies (originally taken to be racial/biological,
45 MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 199OS 61-69 (2d ed., 1994).
46 See IAN E HANEY L6PEZ, WHITE BYLAW: lIlE LEGAL CONSTRUCTION OF RACE 7-14 (rev. and updated ed. 2006).
47 See DAVID R. ROEDIGER, WORKING TOWARD WHITENESS: How AMERICA'S IMMIGRANTS BECAME WHITE: THE STRANGE JOURNEY FROM ELLIS ISLAND TO THE SUBURBS 124 (zoos).
48 W. E. B. Du Bois, BLACK RECONSTRUCTION: AN ESSAY TOWARD A HISTORY OF THE PART WHICH BLACK FOLK PLAYED IN THE ATTEMPT TO RECONSTRUCT DEMOCRACY IN AMERICA: 1860- 1880 700 (1935); seealsoDAVID R. ROEDIGER, TME WAGES OF WHITENESS: RACE AND THE MAKING
OF THE AMERICAN WORKING CLASS xix-xx (rev'd ed., 1999).
49 The literature on this topic is extensive. See generally Peggy McIntosh, White Privilege: Unpacking the Invisible Knapsack, in RE-VISIONING FAMILY THERAPY: RACE, CULTURE, AND GENDER IN CLINICAL PRACTICE 147, 147 (Monica McGoldrick ed., 1998); STEPHANIE M. WILDMAN, PRIVILEGE REVEALED: How INVISIBLE PREFERENCE UNDERMINES AMERICA (1996); LINDA FAYE WILLIAMS, 'ME CONSTRAINT OF RACE: LEGACIES OF WHITE SKIN PRIVILEGE IN AMERICA 2 (2003); WHITE PRIVILEGE: ESSENTIAL READINGS ON THE OTHER SIDE OF RACISM I (Paula S. Rothenberg ed., 2005); Stephanie M. Wildman, The Persistence of White Privilege, I8 WASH. U. J.L. & POL'Y 245 (2005).
50 See Robert Westley, White Normativity and the Racial Rhetoric of Equal Protection, in EXISTENCE IN BLACK: AN ANTHOLOGY OF BLACK EXISTENTIAL PHILOSOPHY 91, 91 (Lewis R. Gordon ed., 1997); Kari L. Karsjens & JoAnna M. Johnson, White Normativity and Subsequent CriticalRaceDeconstructionofBioethics,3 AM. J. BIOETHICS 22 (2003).
logical wage" of assumed racial superiority.
of racism. The other side is what is frequently termed "white privilege.
When a

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now assumed to be cultural and social). A bizarre yet instructive example of white normativity occurred in the events that produced the Supreme Court's decision in Los Angeles v. Lyons, the notorious Los Angeles Police Department ("LAPD") chokehold case.5 Explaining why most of the people who had died because LAPD officers used a chokehold on them were black, Police Chief Daryl Gates explained that "in some blacks when [the hold] is applied, the veins or arteries do not open up as fast as they do in normal people.""2 The point here is not Gates's unique understanding of human physiology; rather, it is the whites' unthinking assumption that they are "normal people," while African-Americans are something else, not "normal." White advantage offers the bonus of enabling its beneficiaries to assume that benefits accruing to them are normal as well, and thus are natu- ral entitlements. For whites, their race is invisible, and their superordinate status is normal. Whites do not see their relatively privileged position as a built-in advantage.
A corollary of white normativity and advantage is white innocence, which, since 1978, has been a recurrent theme in opinions of the United States Supreme Court. In Regents v. Bakke, decided that year, Justice Lewis Powell cautioned that "there is a measure of inequity in forcing innocent persons in respondent's position to bear the burdens of redressing griev- ances not of their making."53 Various Justices have repeated the meme since then.54
From innocence, it is only a short step to victimization, so perhaps we should not be surprised to find that some whites today consider themselves to be the victims of a new form of societal racism. Following on their as- sumption that the problems of traditional racism have been largely over- come in the "post-racial" era that American society has supposedly entered with the election of President Barack Obama, their resentments about af- firmative action take the form of believing that whites are now excluded from opportunities available on a preferential basis to blacks.55
4. Invisibility,colorblindness,andfacialneutrality.-Becausestructural racism operates invisibly, it is difficult to see or even define. Traditional racism is easy to spot; a "Colored Only" sign or a lunch counter where whites sit and
51 City of Los Angeles v. Lyons, 461 U.S. 95 (1983).
52 James J. Fyfe, Enforcement Workshop: TheLos Angeles ChokeholdControversy, 19 CRIM. L. BULL. 61, 61 (1983) (quoting a statement made by Police Chief Gates in a Los Angeles Times interview).
53 Regents of the Univ. of Ca. v. Bakke, 438 U.S. 265, 298 (1978).
54 See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561,575 (1984); Int'l Bhd. of Teamsters v. United States, 431 U.S. 324,357-62 (1977); seealsoAntonin Scalia, Commentary, The Diseaseas Cure: "In Order toGetBeyondRacism,WeMustFirstTakeAccountofRace",58WASH.U. L.Q. 147, 152-53 (1979).
55 Michael I. Norton & Samuel R. Sommers, Whites See Racism As a Zero-Sum Game that They Are Now Losing,6 PERSP. ON PSYCHOL. SCi. 215, 216-17 (20, ).

2011-20][2]
AN INTRODUCTION
blacks stand - those are obvious. But though the racism-based impover- ishment of some African American, Latino, and Native American commu- nities is apparent, its causes are not, nor are the structural processes that created and maintain it. Because of its invisibility, structural racism does its work in the Potemkin village of "race-neutral" policies.
The cover of neutrality excuses or rationalizes policies that have dif- ferential real-world impacts on the lives of people of color. Because of ex- treme residential segregation, whites are generally unaware of the realities of daily life in black and Latino neighborhoods. Public or private policy decisions impact groups of people differently, and often in negative ways. For example, a municipality facing budget pressures may decide to reduce its support for public transportation. Though this may appear to be a rea- sonable and race-neutral financial decision, its impact on people of color will be far greater than on whites because of their greater dependence on public transportation. Yet whites often fail to perceive the resulting inabili- ties to get to work, to doctors' appointments, to school, and so on, because segregation assures that they need not personally confront such realities. White normativity enhances the veneer of neutrality, because whites be- lieve that their life trajectories and their access to opportunity are the norm and therefore are actually shared equally by everyone in society.
Sociologists have extensively documented both the structural forces
that perpetuate racial disparities and how the illusion of neutrality con-
56
tributes to the persistence of those structural forces. Social psychologists
have demonstrated how unconscious biases affect our conscious attempts to be objective or neutral. Legal doctrines that spurn social science find- ings reinforce the silent, invisible operation of structural racism. Foremost among these is colorblindness, which pretends to an Olympian impartial- ity: just as race may not be taken into account to oppress, so may it not be taken into account to remedy past oppression.57 Justice John Marshall Har- lan's dictum in Plessyv. Ferguson58 is applied to situations he never intended
56 See DEvAH PAGER, MARKED: RACE, CRIME, AND FINDING WORK IN AN ERA OF MASs INCARCERATION 86-92 (2007); Fred L. Pincus, From Individualto StructuralDiscrimination, in RACE AND ETHNIC CONFLICT: CONTENDING VIEWS ON PREJUDICE, DISCRIMINATION, AND ETUNOVIOLENCE 82, 82-87 (Fred L. Pincus & Howard J. Ehrlich eds., 1994); George Wilson, RacializedLife-Chance OpportunitiesAcross the ClassStructure:The Case ofAfrican Americans,609 ANNALS AM. ACAD. POL. &SOC. SCI. 215 (2007).
57 Justice Thomas is the most avid proponent of this kind of colorblindness. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,551 U.S. 701, 772 (2007) (Thomas, J., concurring) (claiming to follow the views of Justice John Marshall Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537 (1896), and of the lawyers, including his predecessor on the Court, Justice Thurgood Marshall who argued Brown v. Boardof Education,347 U.S. 483 (1954)); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (1995) (Thomas, J., concurring) ("I be- lieve that there is a 'moral [and] constitutional equivalence,' between laws designed to sub- jugate a race and those that distribute benefits on the basis of race in order to foster some current notion ofequality." (alteration in original) (citationomitted)).
58 Plessy, 163 U.S. at 559 (Harlan, J., dissenting).

it to cover.
s9
KENTUCKY LAW JOURNAL ONLINE [Vol. ioo
In the hands of the current Court's majority, his colorblindness ideal itself is first ripped out of context and historical setting; then flash- frozen in a rarified, abstract, and formal form, where it becomes timeless and acontextual; and later thawed to serve operationally as a rationale for

unaware of - or indifferent to - the legal and sociological scholarship that
61
has debunked the pretensions of current colorblindness.
The illusion of facial neutrality provides a cover for both colorblindness
and its parent impulse, structural racism. This has two pernicious effects: 1) it rationalizes a refusal to go behind the outwardly-neutral terms of a statute or policy to explore actual discriminatory motives or effects, and
2) it effectively bans race-conscious remedial policymaking. Therein lies
a paradox. Washington v. Davis mandates a showing of discriminatory racial
intent for constitutional claims under the equal protection clause. Yet the
Court generally eschews inquiry into motive in equal protection cases. If
there is an articulable difference between intent and motive in this context,
6
In the area of af- firmative action, for example, a racially explicit (i.e., not facially neutral) re- medial statute or ordinance confronts a scrutiny level so daunting that few
63
By contrast, facially neutral statutes are usually validated by the flaccid standard of Washington v. Davis: "we have not held that a law, neutral on its face and serving ends
otherwise within the power of government to pursue, is invalid under the
59 Harlan's "racialist" views informing the dictum are analyzed. See LINDA PRZYBYSZEWSKI, MAE REPUBLIC ACCORDING TO JOHN MARSHALL HARLAN 97-100 (1999).
6o Seegenerally MICHAEL K. BROWN ET AL., WHITEWASHING RACE: THE MYTH OF A COLOR- BLIND SOCIETY (2003).
61 For legal critiques, see generally Ian F Haney L6pez, "A Nation of Minorities":Race, Ethnicity, andReactionary Colorblindness, 59 STAN. L. REV. 985 (2007); David A. Strauss, TheMyth ofColorblindness,1986 Sup. CT. REV. 99 (1986). For sociological and historical critiques, see gen- erally BONILLA-SILVA, supra note 43; J. MORGAN KoUSSER, COLORBLIND INJUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION (1999).
6z E.g., Palmer v. Thompson, 4o3 U.S. 2 17, 227-28 (197 ); Evans v. Abney, 396 U.S. 435, 445-48 (1970).
63 E.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,551 U.S. 70, 743-45 (2007); Gratz v. Bollinger, 539 U.S. 244, 275-76 (2oo3); Adarand Constructors, Inc. v.Pena, 515 U.S. 200, 226-27 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 471-72 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S 267, 283-84 (1986); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 319-20 (1978). The majority opinion in the one major precedent sustaining an affirmative action program, Grutterv. Bollinger, 539 U.S. 3o6 (2003), was written by Justice Sandra Day O'Connor, and the dissenters in the 5-4 division were adamant in rejecting her position and reasoning. Id. at 346,349, 378,387. She has been succeeded by a judge of a radi- cally different outlook on this issue.
invalidating race-conscious remedies.
The Court's majority is seemingly
it is too diaphanous to sustain such different outcomes.
major federal or state initiatives are able to meet it.

2Oll-2OI[21 AN INTRODUCTION
Equal Protection Clause simply because it may affect a greater proportion of one race than of another."'
5. Individualism.-Fora persistent majority of the Justices, underlying all doctrine in race-related cases is the ####-doctrinal assumption that Ameri- can society is organized on an individualistic basis, with the values of com- munity and group severely discounted. In Miller v. Johnson, an electoral districting case, the majority asserted that "the Government must treat citi- zens 'as individuals, not as simply components of a racial, religious, sexual or national class."' 65 Justice, Lewis Powell, writing for the majority in an affirmative-action case, insisted that "the petitioners before us today are not 'the white teachers as a group.' They are Wendy Wygant and other in- dividuals who claim that they were fired from their jobs because of their race."66 Justice Antonin Scalia has carried the idea to its neplus ultra: "[t] he relevant proposition is not that it was blacks, or Jews, or Irish who were discriminated against, but that it was individual men and women, 'created equal,' who were discriminated against."67 Justice Clarence Thomas would elevate that to an overarching and exclusive principle: "[alt the heart of ... the Equal Protection Clause lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups."68 In a 1998 speech to the National Bar Association, he defended that outlook: "the individual approach, not the group approach, is the better, more acceptable, more supportable and less dangerous one.
This approach is also consistent with the underlying principles of our 69
country.
Such hyperindividualism is innately antagonistic to group-based rem-
edies, which usually provide the only effective remedy for structural prob-
lems. It proved impossible, for example, for parents of African-American
children to challenge a Reagan administration failure to deny tax-exempt
status to segregation academies.7" Though Justice O'Connor conceded that "stigmatizing injury ... is one of the most serious consequences ... to sup-
port standing," she denied the parents in that case standing because "such injury accords a basis for standing only to 'those persons who are person- ally denied equal treatment' by the challenged discriminatory conduct."'"
64 Washington v. Davis, 426 U.S. 229, 242 (i976).
65 Miller v. Johnson, 515 U.S. 900, 911 (1995) (quoting Metro Broad., Inc. v. FCC, 497 U.S. 547,602 (199o) (O'Connor, J., dissenting)).
66 Wygant, 476 U.S. at 2Si n.8.
67 City of Richmond,488 U.S. at 528 (Scalia, J., concurring).
68 Missouri v.Jenkins, 5I5 U.S. 70, 120-21 (1995) (Thomas, J., concurring).
69 JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 128
(2007).
70 See Allen v. Wright, 468 U.S. 737, 755 (1984). 7I Id.

KENTUCKY LAW JOURNAL ONLINE [Vol. IOO The plaintiff-injury requirement of standing has often proved fatal in cases
challenging the effects of structural racism.7"
6. Interconnectionacrosssocialdomains.--Causationin matters of race is of- ten non-linear. The effects of structural racism do not occur in isolation from each other. Rather, they are connected spatially, across all social do- mains. This is often described as a "matrix of domination" or a "web of oppression."7 3 In their now-classic 1993 study entitled American Apart- heid,sociologists Douglas Massey and Nancy Denton demonstrated how residential segregation is at the heart of all other forms of invidious racial disparity.74 In the "hypersegregated" inner cities of America, "poverty and joblessness are the norm ... social and physical deterioration abound."75 Segregation concentrates poverty, and concentrated poverty leads to poor health outcomes cradle-to-grave (actually, pre-cradle: lack of access to family planning; infrequent or no prenatal care for pregnant woman; low birth weights; and lack of access to pediatric care for neonates, infants, and children); exposure to toxic substances (lead in paint and auto exhaust; and environmental pollution because of the higher concentration in minority neighborhoods of chemical plants, incinerators, toxic waste facilities, sew- age treatment plants, coal ash disposal sites, and oil refineries); correlation between segregated, impoverished neighborhoods and poor schools; high drop-out rates; exposure to street drugs and related violence in challenged neighborhoods, producing high mortality rates from gunshot wounds, most- ly in young black males; poor nutrition in what have come to be known as "food deserts," caused by lack of access to markets selling fresh fruits and vegetables and resulting forced reliance on processed and fast foods high in fats and chemicals; dearth of job opportunities, largely because of dis- investment in challenged neighborhoods, poor educational outcomes, and lack of transportation to work sites; exploitative financial services like pay- day loan lenders; high crime rates, producing among other things constant exposure to trauma through gang violence and drive-by shootings; poor and inappropriate policing, exacerbated by lack of trust between police and the people they attempt to serve; and high rates of incarceration, which takes young black males out of society and away from gainful employment, in turn contributing to the corrosive rates of unwed and teen pregnancies and the prevalence of single-parent (usually mother) households. The de- pressing catalogue goes on and on, but the point should be obvious: each of
72 E.g., Warth v. Seldin, 422 U.S. 490,502-07 (1975).
73 PATRICIA HILL COLLINS, BLACK FEMINIST THOUGHT- KNOWLEDGE, CONSCIOUSNESS, AND THE POLITICS OF EMPOWERMENT 227-28 (2ooo); seealso BoB MULLALY, CHALLENGING OPPRESSION AND CONFRONTING PRIVILEGE, ch. 7 (2d ed. 2010).
74 See generally DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993).
75 Id.at 2.

20II-20121 2 AN INTRODUCTION
these indicia of structurally racialized outcomes causes, contributes to, and exacerbates the others. They cannot be understood or treated in isolation. Cumulatively, they are overwhelming.
Related to this interconnection is what feminist critical theory calls "in-
tersectionality": the linkage between race, class, and gender.76 This produc-
es multiple and mutually-enforcing forms of domination/subordination,
resulting in systemic inequality across lines of color, ethnicity, religious af-
filiation, sex, and wealth."
7. Dynamicandcumulative.--Correspondingto the spatial character of in-
terconnection is its temporal counterpart: cumulative results over time.
Here the best illustrative example is wealth accumulation. The systematic
exclusion perpetrated by both public agencies and private actors that de-
nied African Americans the opportunities of home ownership before and
after World War II deprived most blacks of what has been the single most
important source of wealth in American households, the family home. As
home values appreciated over time, blacks were left behind, finding them-
selves renters in public housing and segregated ghettos. Even before the
current foreclosure crisis (which has impacted African Americans hardest),
average black family wealth was only one-tenth the average of white fam-
7
ily wealth. " Since the crisis, "the median net worth for white households
had fallen 24 percent to $97,860."19 In striking contrast, black household net worth had fallen 83% to $2,170,80 or, as an economist for the Economic Policy Institute put it, "for every dollar of wealth the average white house- hold had, black households only had two cents."81
Continuity over time, crushing in itself, is exacerbated by the dynamic, ever-adaptive character of structural racism. Housing again provides an il- lustration. Once whites determined to isolate blacks into segregated neigh- borhoods, policies to achieve this fluidly adapted to legal challenges. At the turn of the twentieth century, some hundreds of places throughout the United States-became "sundown towns" with ordinances, signs, audible
76 Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1244-45 (1993); Kimberle Crenshaw,
Demaginalizingthe Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine,FeministTheory andAntiracistPolitics,1989 U. CHI. LEGAL F. 139, 140 (1989).
77 Jerome Mecristal Culp, Jr., ColorblindRemedies and the Intersectionality of Oppression: PolicyArguments MasqueradingasMoralClaims, 69 N.Y.U. L. REV. 162, 169 (994).
78 ME5zHu Lui ET AL., 'NE COLOR OF WEALTH: THE STORY BEHIND THE U.S. RAcIAL WEALTH DIVIDE 16-17 (2006); Meizhu Lui, The Wealth Gap Gets Wider, WASH. PosT, Mar. 23,
2oo9, at A'5.
79 Christopher Chantrill, ObamaandtheComingDemocalypse,AM. THINKER (July 19, 2011),
http://www.americanthinker.com/2oII/O7/obama and-the-coming.democalypse.html. 8o Id.
81 Jesse Washington, The DisappearingBlack MiddleClass, CHI. SUN-TIMES, July 10, 20 11, at News 2.

KENTUCKY LAW JOURNAL ONLINE
[Vol. ioo
.signals, and social custom warning African Americans to depart by sunset.8"
After the United States Supreme Court declared residential segregation
ordinances unconstitutional in 1917,83 the legal profession responded by re-
sorting to the racial covenants, at first upheld by the Court in 1926.' 4 These
were later declared judicially unenforceable in Shelley v. Kraemer in 1948.85
The racial covenant by no means disappeared from deeds simply because
Shelley held that its enforcement by state courts constituted impermissible
state action under the doctrine of the Civil Rights Cases.16 But those who
wanted to maintain residential segregation found that their goals could
be achieved just as effectively by less overt methods, 'of which the most
pervasive is exclusionary zoning. Though the New Jersey Supreme Court
doggedly fought to stamp out the practice in the Mount Laurel struggles of
the 1970s and 1980s, 7 the United States Supreme Court has erected daunt-
ing procedural barriers to those who would challenge exclusionary zoning
88
in federal courts. The Court's indirect facilitation of exclusionary zoning
has the advantage of being a perfect stealth technique of structural racism: opaque, uninteresting and incomprehensible to lay people, yet supremely effective in perpetuating racial disparities.
8. Automaticiy.-A metaphor drawn from human physiology is strikingly apt here: automaticity is the quality of some cardiac muscles to self-acti- vate, without an external stimulus (such as a command from the brain or a pacemaker to depolarize.) Structural racism has a comparable character. It automatically self-perpetuates, insinuating itself like a virus imperceptibly into new social environments, without needing a stimulus from overt rac- ism. To illustrate by example: a grocery chain might decide not to locate a new store in an inner city neighborhood for defensible non-racist reasons: unpromising prospects for profitability, high operating and insurance costs, or lack of transportation nexus. But the effect of this decision is to deprive residents of access to fresh fruits and vegetables, leaving them to the sorts of processed, fatty, and chemically-saturated junk foods available from convenience stores and fast-food chains. Poor nutrition leads to obesity, which turn leads to health problems like heart disease and diabetes later
in life (both of which afflict African Americans at disproportionate rates), to
82 JAMES W. LOEWEN, SUNDOWN TowNs: A HIDDEN DIMENSION OF AMERICAN RACISM 3-4 (2005).
83 Buchanan v.Warley, 245 U.S. 6o, 82 (1917).
84 Corrigan v. Buckley, 271 U.S. 323,330 (1926).
85 Shelley v. Kraemer, 334 U.S. 1, 21-22 (1948).
86 The Civil Rights Cases, 109 U.S. 3, 18 (1883).
87 S. Burlington Cnty. NAACP v. Twp. of Mount Laurel, 456 A.2d 390,415 (N.J. 1983); S.
Burlington Cnty. NAACP v. Twp. of Mount Laurel, 336 A.2d 713, 730-32 (N.J. 1975).
88 E.g., Vill. ofArlington Heights v.Metro. Hous. Dev.Corp.,429 U.S. 252, 270-71 (1977);
,
Warth v. Seldin, 422 U.S. 490 502 (1975).

2011-2012]
AN INTRODUCTION
social stigma, to lack of exercise opportunities, to impaired mobility, and so on. No one has to intend such dire health and social outcomes: they oc- cur automatically and invisibly. Structural racism actuates and reproduces itself. The problem will replicate itself endlessly unless society determines to recognize its reality and to attack it pro-actively and aggressively. Passiv- ity only insures structural racism's continuance.
II. CONFERENCE PAPERS
The interdisciplinary outreach mentioned at the beginning of this in- troduction was gratifyingly successful. Of the sixteen panel presentations, only three dealt explicitly and principally with legal subjects. Otherwise, panelists spoke from a wide range of scholarly disciplines, including crimi- nal justice, English literature, humanities, sociology, social work, history, psychology, and education. The authors of two of the legal papers gracious- ly consented to having their work published here.89
Professor Darrell Miller of the University of Cincinnati College of Law draws on work that he 9° and Daria Roithmayr91 have published on the con- cept of "racial cartels" to suggest a valuable addendum to Congress' power to suppress what in the nineteenth century were known as the "badges" or "incidents," of slavery, specifically, both publically-sanctioned and pri- vate racial discrimination, including disparate outcomes. A racial cartel, by
analogy from economic theory and the postulates of law-and-economics, is an agreement among discriminators (including the non-explicit behavior known as "conscious parallelism" or "tacit collusion"92 , as well as now-un- conscious norms of behavior) that has the effect of curtailing opportuni- ties for people of color. The merit of Professor Miller's suggestion is that it would enable Congress to reach not only positive laws that sustain the badges and incidents of slavery, and the extra-legal violence that provided sanctions, but also the implicit social norms that are constitutive of a racial- ized cartel and, by extension, a racialized society. This would provide a means, if Congress could be persuaded to use it, to deal with the problem of disparate impact that is the object of structural racism analysis. Con- gress's power here rests on Section 2 of the Thirteenth Amendment, the Enforcement Clause. This has the additional virtue of providing a back- stop against the resistance of some members of the Court, most notably Justice Antonin Scalia, to the power of Congress to reach racially-disparate
89 The third, my own, titled, StructuralRacism andthe UnitedStatesSupreme Court,1970- 2010, was a preview of the book that Dr. Hamilton and I are writing and as such is not ready
for publication at this time.
90 Darrell A.H. Miller, WhiteCartels,theCivilRightsAct of F866,andtheHistoryofJones v.
Alfred H. Mayer Co., 77 FORDHAM L. REV. 999, 1023-25 (2008).
91 Daria Roithmayr, RacialCartels,16 MICH. J. RACE &L. 45, 50 (zoo).
92 Reza Dibadj, Conscious ParallelismRevisited,47 SAN DIEGo L. REV. 589,590 (2010).

KENTUCKY LAW JOURNAL ONLINE [Vol. 100 impacts under its commerce power or its Fourteenth Amendment enforce-
93
ment powers.
Professor Robert Schwemm, the Ashland-Spears Distinguished Re-
search Professor of Law at the University of Kentucky College of Law, reviews a more recent historical era, the period since Congress enacted the Fair Housing Act (FHA) in 1968.' Given the stubborn persistence of residential segregation in America's cities, with the attendant structural damage to the prospects of people of color, he identifies a provision of the FHA, section 3608, as a means not only of reducing segregation but also of affirmatively promoting a fully integrated society.9s
Since the 1960s, Congress has progressively expanded the mandate
of federal agencies (most notably, the Department of Housing and Urban
Development) from the minimal negative goal of not promoting segrega-
tion, though remaining neutral with respect to segregation, to preventing
discrimination, and finally to the current stage of affirmatively promoting
integration. Section 3608 requires that federal funds be spent "affirmative-
ly to further [FHA] policies, ' 96 which the United States Supreme Court
defined as promoting racial integration for the benefit of the entire commu-
97
nity. This policy is often referred to by the acronym AFFH: "affirmatively
furthering fair housing." The Second Circuit has read the AFFH remit as "[a]ction [that] must be taken to fulfill, as much as possible, the goal of open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat.""8 Professor Schwemm sees section 3608 as a major but underutilized opportunity for federal agencies to promote these broad integrationist goals of the FHA. He analyzes the recent Westchester
93 U.S. CONST. amend. XIV, § 5; Ricci v. DeStefano, 129 S.Ct. 2658, 2681-83 (2009) (Scalia, J., concurring); Griggs v. Duke Power Co., 401 U.S. 424,436 (1971).
94 Robert G. Schwemm, Overcoming StructuralBarriersto IntegratedHousing:A Back-to- the-FutureReflection on the FairHousingAct's "Affirmatively Further"Mandate, 1oo Ky. L.J. 125 (2011). This statute is now codified as the Fair Housing Act, 42 U.S.C. §§ 36o-3619 (2006). At the time of its enactment, the FHA was more commonly known as the Civil Rights Act of 1968, correctly situating it in the succession of historic legislation of the Civil Rights era, including
the Civil Rights Act of 1964 and the Civil Rights Act of 1965. Deborah Kenn, Institutionalized, LegalRacism: HousingSegregation andBeyond, i i B. U. PUB. INT. L.J. 35,37 (zoo).
95 SeegenerallySchwemm,supranote 94.
96 § 3608.
97 Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (construing the purpose
of FHA as "replac[ing] the ghettos 'by truly integrated and balanced living patterns'). This construction was confirmed in City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731 (1995) ("recognizing the FHA's 'broad and inclusive' compass, and therefore according a 'generous construction' to the Act[] .... ").
98 Otero v.N.YC. Hous. Auth., 484 F.2d 1122, 1134 (zd Cir. 1973).

2011-2012]
AN INTRODUCTION
County, New York litigation" as a promising means of implementing the potential of section 3608.11
'These valuable papers hint at the rich potential that awaits lawyers and civil rights activists who will find in law numerous ways of attacking struc- tural racism.
99 United States ex rel.Anti-Discrimination Ctr. of Metro N.Y., Inc. v.Westchester Cnty., 495 E Supp. 2d 375 (S.D.N.Y. 2007).
IOO See Schwemm, supra note 94, at 164-65.


Case law from 1940 and 1926 is not what I am talking about


Posted: Jul 4, 2020 1:01 PM
    Reply

I am talking about today. What laws and policies today are systemically racist, and what changes are required to correct those existing laws and existing policies.

2020 orange level memberbadge-donor-10yr.jpg


Re: Case law from 1940 and 1926 is not what I am talking about

[1]
Posted: Jul 4, 2020 6:20 PM
    Reply

Welfare and associated dependence on gov't is the no. 1 way systemic racism manifests itself.

Promoted and supported by all stupid liberals who do not realize they are being played by the democrat elites in gov't.


Re: Teach me something liberals


Posted: Jul 4, 2020 11:02 AM
    Reply

There are hundreds of articles on Google about it. I don't have a strong feeling or relation to the issue though. Do some research and see what is written. I dint read the articles, but I noticed there were a ton of them.

2020 white level member

I'm not talking about 50 or 150 year old laws and policy


Posted: Jul 4, 2020 12:41 PM
    Reply

I'm talking about current. The only thing I seam to be able to find are stats that "prove" it exists. Racism is always the only cause. You know like George Floyd was killed and it was racist only because the officer was white.

2020 orange level memberbadge-donor-10yr.jpg


Re: I'm not talking about 50 or 150 year old laws and policy


Posted: Jul 4, 2020 1:03 PM
    Reply

I think it is broader than one issue for them.

2020 white level member

I'm okay with multiple laws and/or policies


Posted: Jul 4, 2020 1:23 PM
    Reply

causing systemic racism. I would just like to know what they are so I can help change them.

2020 orange level memberbadge-donor-10yr.jpg


Re: I'm okay with multiple laws and/or policies


Posted: Jul 4, 2020 1:46 PM
    Reply

Do some leg work. There are some recent articles if you're really interested.

2020 white level member

Re: Teach me something liberals

[1]
Posted: Jul 4, 2020 2:14 PM
    Reply

I think its a very complex issue with many layers, and for someone who's never been victim of racism, it may be hard to get your head around. I also think that theres a false idea that systemic racism is as simple as someone not liking POCs or somethin. Sure there are some of those, but it's more about systems that target POC more than whites, even if that wasn't the goal. some of it is the ways the laws are applied, the approach of the officers, and the actual intent of the officers. Many times existing laws are used to justify racial profiling, which often turns into "resisting, obstruction, etc. For this reply i'll stick to the officers... what happens after that is a whole nother story of being able/unable to afford a good attorney , bail, interrogation tactics, and all that.
I'll present a few examples that i feel are part of the system and hopefully it sheds some light for you.

take a simple violation such as jay-walking. It happens every day all day, including cops doing it, but it still still a law. Now 2 (1 blk, 1 white) people walk across the street, near a police officer, the black person is much more likely to get stopped (I forget what the % say but its big). why? because its really not about jay-walking. Its a ruse, to ID, to make sure he doesn’t have warrants, and detain him and hopefully search for weapons/drugs... Same situation, the chances go waaaay up if the blk person is wearing a hoodie, and baggy pants.... the stop goes from writing a ticket, to "I need to search and handcuff you for my protection" esp if the person says anything the officer doesn't like

Stop & frisk, which is still allowed in some places in some form or another, targeted POC, that fit a description or being "suspicious" by just being.

I used to work near a popular retailer. I my office deck over looked the main entrance, and i would often work on the deck watch the happenings. the area had beat cops, and some undercover cops due to pick pockets preying on unsuspecting tourist in line at the attractions nearby. Often the door alarms would go off, because the staff forgot to remove the anti theft tag, or theft. Officers would react quite quickly in most cases. There was always a drastic difference in the way the officers approached depending on the color of the person in question. if a white person (in jeans or Tshirt of business suit), officers would approach "excuse me ma'am/sir, I think you forgot to pay for something. If the person was POC, it was more like putting hands on them right away with "whats in your bag" which would sometimes result in a struggle. I know of 3 separate lawsuits for while I worked there, for false arrest, when the staff just missed the tag

last year my oldest son was going back to college, where he plays football. he wanted to borrow my car (Tesla) and show off to his friends/teammates. he drove to his gf's house in a very nice hood, and was sitting in the car near her driveway. An officer drove by and stopped and made him get out of the car, handcuffed him, coz why would a young black man be in that neighborhood and in that car. They accused him of attempting to steal the car. His GF and parents came out and explained what was going on, and of course I was called. so because of his race that could have gone a lot of different ways and I'm tankful for those parents who were mortified, for being there.


anyways i'm still not sure if this gives you an idea. And it will need to be some changes in some laws, but even moreso a change in the mindset of those that are charged with enforcing laws

2020 white level member

yes, very complex...


Posted: Jul 4, 2020 2:21 PM
    Reply

not as simple as finding specific laws and changing them.

2020 orange level memberbadge-donor-10yr.jpgbadge-ringofhonor-franc1968.jpg


Re: Teach me something liberals


Posted: Jul 4, 2020 6:24 PM
    Reply

It's not hard. It's all related to the black culture (not that all of it is their fault, but they are the only ones that can change it), poverty, crime, and dependence. The "system" is and has responded to the crime aspect, and the dependence part is keeping many from advancing.

The only way out is education. No amount of money given to blacks can fix it. No white person can fix it.

The blacks need to return to the days when they risked their life to learn how to read. They need that type of attitude and aggressiveness to educate themselves. Will take a huge culture shift.

It will not happen any time soon.


Re: Teach me something liberals


Posted: Jul 4, 2020 6:45 PM
    Reply

Money can definitely help with a better education, smaller classes, after school programs, meals, there are probably a few other ideas out there too.

2020 white level member

I'm going to give you the benefit of the doubt and post

[1]
Posted: Jul 4, 2020 3:07 PM
    Reply

accordingly. If you want to oversimplify systemic racism, it boils down to a person's socioeconomic background being so influential in a person's life and how this disproportionately affects minorities thanks in no small part to America's history of ####ing over non-whites (and some whites too!). This is why it's important to have open and honest conversations about all the terrible parts of American history and not revert to "If you don't like it, you can get the #### out!"

Police and the larger justice system are easy to zero in on because of how overtly they screw over poor people. If you want to find laws in place that perpetuate systemic racism, start with basically any drug laws.
https://bleacherreport.com/articles/2894634-cardinals-deandre-hopkins-wears-no-10-in-honor-of-cousin-who-went-to-jail

Being poor makes someone more likely to commit drug crimes, unable to fight charges and/or make a deal, and can upend their life by sending them to jail and heaven forbid it isn't a felony because that basically guarantees they're now a career criminal. Keep in mind that POC receive harsher sentences for crimes than their white counterparts.

Things aren't really getting better either, the wealth gap continues to widen and income mobility becomes harder. Education is certainly another area you could focus on.
https://www.washingtonpost.com/opinions/local-opinions/montgomery-countys-public-schools-are-still-segregated-its-time-to-fix-that/2020/07/02/8541a08c-b65a-11ea-aca5-ebb63d27e1ff_story.html


I could go on, but it's a holiday and I have beer to drink.

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Re: I'm going to give you the benefit of the doubt and post


Posted: Jul 4, 2020 6:26 PM
    Reply

You obviously hate America, why are you invoking your white privilege to celebrate? That's racist and insensitive.


Re: Teach me something liberals


Posted: Jul 5, 2020 2:45 AM
    Reply

Here.

https://www.youtube.com/watch?v=AGUwcs9qJXY

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Again, I get that policies from 50 to 150 years


Posted: Jul 5, 2020 3:39 AM
    Reply

ago were bad. There are no Jim Crow laws today. There are no white only deeds. Most people were not even working yet or in school in the 50's and earlier when these were laws.

One thing is clear. Section 8 housing and welfare is a problem that needs addressing. He is correct about policies that put Black Americans in ghettos with not much of a chance to get out is a problem. We give them enough food, money, phones to live and no incentive to do much else. The most successful people in the ghettos are the drug dealers and gang leaders.

A view from a Black man instead of from some white dude

https://www.youtube.com/watch?v=4gSprhWKm-c

2020 orange level memberbadge-donor-10yr.jpg


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