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Keith Kamisugi
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Putting Race on the Table …
Or Unmasking Racism?

 By Marianne Engelman Lado

Marianne Engelman Lado is General Counsel to New York Lawyers for the Public Interest

In the opening moments of a panel called “Putting Race Back on the Table” at the annual conference of the American Constitution Society this summer, Eva Paterson asked the panelists to address whether racial discrimination still exists in the United States today and, also, what the role of law should be in ameliorating the effects of discrimination.

The panel looked promising, with an impressive lineup of participants, including Frank Wu, the Dean and Professor of Law at Wayne State Law School; Brian Nosek, a professor of psychology at the University of Virginia; and, to offer the full range of perspectives, Roger Clegg, the President and General Counsel of a right-of-center group called the Center for Equal Opportunity.

Indeed, the focus of the session was to highlight social science research showing that our different reactions to one another on the basis of race often take place at an unconscious level and, then, to explore the ramifications of unconscious racism for the law and the struggle to address discriminatory behaviors.

To be clear from the outset, the panelists did agree on one thing: racism does continue to exist in America today. And the session included a perspective-shifting experience led by Brian Nosek, who used a number of interactive experiments to demonstrate how thoughts and feelings are shaped by their social context.

For example, at one point everyone in the room was asked to sort words and pictures into two sets of categories: good versus bad, and white versus black. Consistent with the findings of research, the members of this audience took longer to sort words and images when they were supposed to be sorted into the categories “good or black” and “bad or white” compared to the time it took to sort when the categories were “good or white” and “bad or black.”

As Nosek suggested, even for people with good intent, we may just take longer to disconnect “good” and “white”. Unconscious biases from society exist and they are related meaningfully to behavior. We all have many associations in our minds that have important ramifications for how we behave in the world and the decisions that we make.

As Frank Wu said, the dilemma for anti-discrimination law today is that nearly everyone condemns outright racism and even celebrates diversity, yet measurable disparities still exist. In order to challenge a policy or practice as discriminatory today in most contexts – indeed, in federal law in nearly all areas outside of employment and housing – a person needs to prove that the discriminatory action was intentional, a burden that usually seems impossible to meet.

The language of the law is about villains and victims, rather than focused on avenues to address inequality. The audience came to this panel hungry for ways to challenge racial disparities in educational opportunities, where health care services are located, the siting of toxic sources, how children are treated in foster care systems, etc. These are the issues we must address today if we are to move to a more just society and provide all children with the opportunities they deserve.

So what happened? Nearly from the moment Roger Clegg started to speak, he transformed the panel from one about addressing racial inequalities to one that might have more aptly been named “Unmasking Racism.”

Clegg agreed that racism still exists and also said that it was important to enforce laws currently on the books. But then he began to outline his view of why we still have racism, ignoring factors such as the ways in which power and wealth have been distributed over generations or disparities in educational opportunities today. Instead, he revisited old blame-the-victim social pathology themes, literally arguing that it was what he called social pathologies that caused racism. (His main example of such pathologies was out-of-wedlock births.)

The other panelists and the audience challenged Clegg on all grounds. His facts were unsupported. His perspective was ahistorical and acontextual. And he was ignoring the many significant ways in which stereotypes perpetuate themselves.

Ultimately, Clegg argued that he just doesn’t think that the law needs to be changed to address unconscious bias, even if it exists, and perhaps it comes down to this: Clegg is simply not engaged by the need to address racial inequalities. In this sense, he takes himself out of the debate.

For others, though, who do want to do something about the fact that maternal and infant mortality rates remain two to three times greater for African Americans than for whites, who want to ensure that society stops clustering toxic sites in communities of color, who are concerned about the reaction to the flooding of New Orleans and portions of the Gulf Coast, Roger Clegg’s acceptance of the status quo offers no solution.

The deeper insights by the other members of the panel into how bias affects decision-making are a good starting place, for solutions often start with understanding the nature of the challenge.