Mixed Race Studies

Disparate Impact

Georgetown Law Journal
Volume 98, Issue 4 (2010)
pages 1133-1163

Girardeau A. Spann, Professor of Law
Georgetown University Law Center

Introduction

There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the United States from its unfortunate racist past to a more admirable post-racial present in which the problem of invidious racial discrimination has largely been overcome. Others have argued that the Obama election illustrates only that an extraordinarily gifted, mixed-race, multiple Ivy League graduate. Harvard Law Review President was able to overcome the persistent discriminatory racial practices that continue to disadvantage the bulk of less fortunate racial minority group members in the United States.

However, both perspectives fail to engage the feature of race in the United States that I find most significant. Race is relentlessly relevant. Racial differences are so socially salient that racial considerations necessarily influence many of the decisions that we make. Even when racial considerations are tacit or unconscious, the influence of race is still exerted through the reflex habit of deferring to white interests in the belief that such deference is racially neutral. But it is not. The possibility of actual colorblind race neutrality is simply an option that does not exist.

Nevertheless, the culture remains committed to an abstract principle of racial equality, which would be offended by a frank recognition of the role that race inevitably plays in the allocation of societal benefits and burdens. Accordingly, the culture must find some way to mediate the tension that exists between its race-neutral rhetorical aspirations and its race-based operational behavior. The claim that United States culture has now achieved a post-racial status can best be understood as an effort to serve that function. By conceptualizing contemporary culture as post-racial, we can camouflage the role that race continues to play in the allocation of resources. However, masking the relevance of race does not serve to eliminate it. Rather, the post-racial claim ultimately serves to legitimate the practice of continued discrimination against racial minorities.

The Supreme Court has always been complicit in the practice of sacrificing racial minority interests for the benefit of the white majority. In its more infamous historical decisions, such as Dred Scott, Plessy, and Korematsu, the Court’s racial biases have been relatively transparent. More recently, however, the Court has invoked three tacit post-racial assumptions to justify the contemporary sacrifice of minority interests in the name of promoting equality for whites. First, current racial minorities are no longer the victims of significant discrimination. Second, as a result, race-conscious efforts to benefit racial minorities at the expense of whites constitute a form of reverse discrimination against whites that must be prevented in the name of racial equality. Third, because the post-racial playing field is now level, any disadvantages that racial minorities continue to suffer must be caused by their own shortcomings rather than by the lingering effects of now-dissipated past discrimination. I consider actions that are rooted in these assumptions, and that adversely affect the interests of racial minorities in order to advance the interests of whites, to constitute a form of contemporary discrimination that I refer to as “post-racial discrimination.”…

Read the entire article here.