Color-blindness, Racism, and Disparate Impact

[A. Serwer]

When TNC first asked me to guest-blog, I thought I was going to be doing a lot more posts on comic books and video games then I ended up doing as a result of everything that's happened this week.. I wrote this post on Wednesday but I've saved it until today because most of my posts this week have been well--dense, and I didn't want to overwhelm the blog with text, but here goes.

There was some discussion over in my previous post on Ricci over the issue of disparate impact and whether it should be considered racism, or whether the government really has any business dealing with it. Commenting on the Ricci case on Wednesday, George Will said this:

The nation shall slog on, litigating through a fog of euphemisms and blurry categories (e.g., "race-conscious" actions that somehow are not racial discrimination because they "remedy" discrimination that no one has intended). This is the predictable price of failing to simply insist that government cannot take cognizance of race.

The problem with this kind of "colorblindness" is that some of the most pressing issues of justice and equality in this country are the result of policies that are race-neutral on their face but discriminatory in practice. Drug laws for example, including the sentencing disparity between crack and powder cocaine are "race-neutral." You cannot prevent a black child from attending a mostly white public school, but in practice public schools are segregated by race. Laws that take away voting rights from felons do little to discourage crime, but they do disenfranchise thousands of black men. The sub-prime crisis hit minorities harder than it did whites--but loans were ostensibly given based on credit rather than race--yet we know this isn't true. Will would have the government ignore all racial disparities, and therefore shirk all efforts to rectify them through policy, as though this was what MLK had in mind when he spoke of color and character.

I don't see the virtue in simply disregarding these effects in the name of "color-blindness." An ostensibly race-neutral policy that has the same purpose or effect as a flagrantly racist one should be scrutinized, and quite frankly the race neutral veneer on some of these policies is quite easily penetrated. What color-blindness offers is an opportunity to ignore racial disparities while perpetuating the policies that produce them. I agree that racial disparities alone, while important enough to raise an eyebrow, don't necessarily mandate a change in policy. But what happened in the Ricci case was not merely that the written test resulted in racial disparities, but that the city was out of touch with almost two-thirds of other municipalities which use other forms of evaluation that don't result in similar problems and evaluate firefighters more effectively. Likewise, I would argue that the problem with the racial disparity in crack/powder cocaine sentencing isn't just that the law clearly adversely affects blacks and may have been designed to do so, it's that in practice it's swelled the ranks of the incarcerated without providing any tangible benefit to the communities it's meant to protect.

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Adam Serwer is a staff writer for The American Prospect.

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