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Have you ever heard someone exclaim, “why must we make everything about race?” Well, that is because it is. There is, at the very least, a hint of racism across every institution in society. And because it is generally not loud, it has been almost unspeakable since the Civil Rights era. Alas, indirect racism since Jim Crow has undergirded Black income, wealth, education, environmental, employment, criminal justice, and healthcare disparities.

The ability for Black people such as Barack Obama to ascend to the top of the social ladder has convinced some people that racism is dead.  But to look solely at his achievements and ignore the current class stratification is ill-informed and shallow. Furthermore, it ignores that racism is at play, regardless of stature. To illustrate, during President Obama’s joint session of Congress, one Senator shouted, “you lie,” in the middle of his address. This type of unprecedented disrespect was happening in the backdrop of a Tea Party movement that drummed up the “birther” conspiracy, the most racist campaign against a president in US history.

The reason why society ignored racism for so long is because nothing is racially discriminatory on its face. That is illegal. Under the Supreme Court’s interpretation of the Equal Protection Clause of the Fourteenth Amendment, all racial discrimination is constitutionally suspect. Successfully winning a discrimination suit under the Equal Protection Clause is tricky, however. The claimant must show both discriminatory intent and impact. Without a showing of intent, the Supreme Court has been reluctant to intervene in state action even if it perpetuates racism and systemic oppression.

Furthermore, it has become socially unacceptable to publicly uphold racism. Even though there are vocal, outright racists who have been emboldened by the election of Donald Trump, they are considered social outliers. Much more prominent is a quiet, humming racism that has seeped into every facet of society, at every level. And its effects are very real.

 

Workplace

We see the effects of quiet racism in the workplace, for instance. Black employees report experiencing racial microagressions; their employer likely does not have a highly diverse executive leadership team; and Black employees face being the last ones hired and the first fired. A groundbreaking study from 2003 revealed that employers were more likely to consider a white candidate with a criminal record than a Black person without one. This breed of discrimination is the reason why today Black people are most likely to be the essential workers in a pandemic but were somehow still the hardest hit by recent unemployment.

Racial discrimination in the workplace is illegal under the Civil Rights Act of 1964. The US Equal Employment Opportunity Commission (EEOC) was established to hold employers accountable for discriminatory practices; however, the EEOC is likely to close cases without proper investigations, leaving employees to file separately. This is no simple task. If an employer can raise a defense outside of race, such as bona fide occupational qualification or business necessity, the Court may consider the employer’s action justifiable. Because of this, there are several cases where businesses have gotten away with discriminatory impact, or disproportionate impact on a suspect class, especially if there is no clear evidence of discriminatory intent, or purposeful discrimination (albeit proof of intent is not even required under civil rights statues).

For instance, in Wesley v. Austal,  Sharon Wesley, a Black woman, claimed that Austal, her employer, did not promote her when the company promoted all of the white men with similar qualifications who had been at the company for a comparable amount of time. The company defended its actions by saying that she did not receive a promotion for reasons associated with her performance. Yet in court, Wesley provided evidence that all of the reasons for not promoting her were false. The Eleventh Circuit held that “such evidence was not sufficient, standing alone, to entitle Wesley to bring her discrimination claim before the jury.” The court added that the employee “must also present evidence that the real reason was discriminatory.” The Eleventh Circuit essentially found that Wesley needed more proof of intent, which is contrary to Supreme Court precedent. In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court held that a prima facie case and sufficient evidence to reject the employer’s explanation is enough to permit a finding of liability for employment discrimination. Many of these cases, without a smoking gun, are overwhelmingly dismissed or settled outside of court.

Internal company policies are far more effective at curbing employment discrimination. These policies are not only to the benefit of the minority employees but to the business as a whole. Diversity and inclusion at all ranks are vital for company success. A report by McKinsey & Company shows that businesses “in the top quartile for racial and ethnic diversity were 35 percent more likely to have financial returns above their industry median.”

 

Education

We see quiet racism in school curricula. Children are taught a Eurocentric education. It diminishes the harm that white people have inflicted on historically marginalized populations and emphatically commends white contributions. For instance, students learn about Cecil Rhodes and aspire to become a Rhodes scholar, but do not learn that he paved the way for apartheid in South Africa. Black history starts with slavery, but carefully omits ancient kingdoms of Africa, which had some of the earliest developments of engineering, mathematics, architecture, and medicine. Thomas Edison is taught as the inventor of the light bulb, but there is no mention of Lewis Latimer, the Black man who made the light bulb long-lasting and widespread. Christopher Columbus pillaged, raped and murdered Indigenous people, but that is generally not taught in schools and students in most states have a day off to commemorate him.

To omit historic systemic oppression of marginalized people is a form of racial discrimination. While students of all races would benefit from learning a more multi-dimensional history, the American education system is particularly corrosive to historically marginalized students whose perspectives are left out; thus, there is a disparate impact. This type of curriculum also reinforces structures that continue to oppress people in light of that history because people will not be aware that the oppressive structures exist. Since this is such an ambiguous issue that is rooted not simply in intentional discrimination by school administrators but (to give them the benefit of the doubt) by ignorance, it would be incredibly difficult to make an equal protection claim against school administrations. It is more fitting for national education policies to directly address this, but they have yet to do so.

 

Voting

Quiet racism also drives voting policies and legislation. Tactics such as  gerrymandering and mass incarceration deprive Black people of political power but have been completely legal since the policies and laws have a disparate impact on Black voters without being facially discriminatory. The pandemic has birthed a new trick, where state authorities are limiting polling stations, primarily in Black communities, all in the name of public health.

Black voter suppression has been tried and told throughout history. In the past, poll taxes and literacy tests were used to keep Black people away from the ballot. In 1965 Congress passed the Voting Rights Act, which required the monitoring of jurisdictions with a history of discriminatory voting practices. However, in 2013, the Supreme Court struck the heart of this Act and stripped states of critical tools to combat voter suppression. We have seen the fruits of that decision in the most recent primary elections.

 

Other Harms

Today, white people run almost all of America’s largest institutions and governments. Since white people are in the position of power, covert racism, implicit biases, or ignorance can be harmful if unchallenged. Recently, a top Trump economic advisor claimed that systemic oppression does not exist. At around that time an Ohio lawmaker said that the “colored population” is disproportionately dying from COVID-19 because they may not wash their hands as often as others. This talk out of their necks is a hint of the mentality that drives policies that have a direct impact on the communities they govern.

There is more at risk here than just hurt feelings. Covert racism and implicit biases in hospitals and courtrooms can cost people their lives and freedom. Black women die from pregnancy at 3 to 4 times the rate of white women due to doctors’ false subconscious beliefs; Black people use drugs at the same rate as white people but are 6 times more likely to go to prison for it; and juries sentence Black men to death at a rate of 3 times that of white men for the same crime.

For instance, in 1987, McClesky, a Black man on death row, made the argument that there is bias in the capital punishment system. The case was largely based on a study that showed stark racial disparities in death sentence practices in Georgia, similar to the one aforementioned. In a landmark 5-4 decision, the Court found that a disparate impact was not enough to find that McClesky’s rights had been violated. This type of holding is typical in constitutional discrimination suits. Without a showing of intent, to win on the grounds of an Equal Protection violation is rare.

 

Conclusion

Since the Fourteenth Amendment bans laws and policies that are facially discriminatory, race issues are not glaringly obvious. But upon a closer inspection, it is clear that history has shaped society in a way that has made racism a pervasive reality. At this juncture, while the Black Lives Matter Movement has gained momentum, it would be reckless for any institution to idly look away as though it does not have a race problem, because almost every institution does. Turning a blind eye right now would not only be irresponsible of those who care, especially those in positions of power and influence, but detrimental to future generations. The time for impactful change is now, and this may be our only opportunity for years to come.

The only way to truly resolve this is to look our history squarely in the face and recognize how it has brought us to where we are as a society today. This confrontation should be the impetus for policy change that will advance the ideal of true equality.

 

About the Author: Stephanie McIntyre graduated from Cornell Law School in May 2020. She obtained a Bachelor’s degree in economics from the University of Pennsylvania and worked in consulting prior to law school. She will be joining Akin Gump in New York.

 

 

Suggested Citation: Stephanie McIntyre, Yes, Everything Has to Do with Race, Cornell J.L. & Pub. Pol’y, The Issue Spotter (Aug. 10, 2020), http://jlpp.org/blogzine/yes-everything-has-to-do-with-race/.