Institutional racism: judicial conduct and a new theory of racial discrimination.

• Author: Lopez, Ian F. Haney

When individuals disagree on elementary justice, their most insoluble conflict is between institutions.... The more severe the conflict, the more useful to understand the institutions that are doing most of the thinking. Exhortation will not help. Passing laws against discrimination will not help.... Only changing institutions can help. We should address them, not individuals, and address them continuously, not only in crises.(1) I. INTRODUCTION

In 1968, the Los Angeles grand jury indicted thirteen activists on charges ranging from disturbing the peace to conspiracy for their roles in supporting a series of student protests in the predominantly Mexican-American area of East Los Angeles.(2) The defendants, represented by Oscar Acosta and others, claimed the protections of both the First and the Fourteenth Amendments.(3) In 1970, they prevailed on free speech grounds.(4) Meanwhile, however, three of the original thirteen defendants were among six persons indicted in 1969 on arson and burglary charges arising from protests staged at the Biltmore Hotel in downtown Los Angeles during a banquet talk by Ronald Reagan, then California's governor.(5) Again represented by Acosta, but this time without a plausible free speech argument, the defendants raised anew the equal protection defense. The judge hearing the case rejected their constitutional challenge, though a jury subsequently acquitted the defendants.(6) In both cases, the defendants were tried before the Los Angeles superior court.

I use these cases, known respectively in the Mexican-American community as East LA 13 and Biltmore 6, to address the nature of institutional racism. The defendants' Fourteenth Amendment challenge rested on the claim that the selectors of the 1968 and 1969 Los Angeles grand juries had excluded Mexican Americans.(7) Significantly, however, Los Angeles superior court judges had nominated all grand jurors, and the defendants' strategy for proving their discrimination claim involved examining on the witness stand more than 100 judges over the course of both cases. Although the records in these cases are incomplete, a transcript exists of Acosta's questioning of thirty-three judges in East LA 13.(8) This transcript, which records Acosta's interrogation of the judges regarding how and why they made the selections they did, constitutes the principal raw material for this Article. The transcript's most striking aspect is this: While the record reveals in stark numbers the near total exclusion of Mexican Americans from service on grand juries in Los Angeles over the decade preceding these cases, each judge testified that he harbored no intention to discriminate.(9)

This Article seeks to elaborate a theory of racism capable of reconciling the statistical evidence of judicial discrimination with the judges' insistence that they never intended to discriminate.(10) More generally, it sets out to build a theory of racism that explains organizational activity that systematically harms minority groups even though the decision-making individuals lack any conscious discriminatory intent. This more general goal is important because, in the contemporary setting, such racism constitutes a significant source of social harm; on balance, it may well constitute the greatest source of ongoing harm to minority communities.

To fashion such a theory of racism, I turn to institutional analysis, and in particular to New Institutionalism, a genre within organizational sociology.(11) New Institutionalism rejects the rational action theories that animate so much of social science.(12) Instead, New Institutionalism posits that frequently repeated but largely unexamined social practices or patterns at once structure and give meaning to human interaction(13) This claim has both cognitive and cultural components.

On the cognitive level, institutional analysis postulates that through the operation of various mental processes, frequently repeated patterns of activity relatively quickly take on an unexamined, rule-like status such that they are spontaneously followed and disrupted only with difficulty. Put differently, New Institutionalism argues that to a significant degree human behavior is not consciously motivated, or at least not principally so, but instead stems from the unconsidered repetition of cognitively familiar routines. Institutional analysis posits that we often act in definable ways without a consciously formulated purpose, simply because it is "the way it is done."

It is not mere habit, however. New Institutionalism also makes the cultural claim that routinized sequences of behavior eventually come to define normalcy, or more broadly, reality.(14) Established constellations of action are seen but not noticed, relied upon but not considered, to such an extent that they become natural--" the world of daily life known in common with others and with others taken for granted." (15) Thus, accepted complexes of action become paths for forming judgments about the social world, even as they provide the terms by which one acts in that world. These frequently repeated, rule-like, socially ordering grammars constitute the "institutions" at the heart of New Institutionalism.

"Institution" thus takes on a distinct technical meaning: In New Institutionalism, it refers not to organizations, but rather to practices.(16) Drawing on the cognitive and cultural insights described above, New Institutionalism does not treat particular organizations as institutions so much as it treats the "appropriate" form and structure of organizations as institutionalized.(17) For New Institutionalists, the most decisive aspects of any particular organization lie not in its formal features, but rather in the way they more generally reflect received templates. The general form adopted by organizations engaged in particular tasks, the means that are regularly chosen and those that are not, the expected goals, the accepted measures of success or failure--all of these reflect unexamined understandings of what is organizationally appropriate. Institutional analysis suggests that it is these, the institutionalized aspects of organizational life, that most deserve critical attention. Thus, the Los Angeles superior court exists both as a specific organization and as a particular embodiment of institutionalized "court-like" practices, but it is in the latter sense, rather than as a unique organization, that this court is of interest here.

I seek to develop a theory of individual behavior within organized settings because "whatever the scale of the organizational context all discrimination involves individual actors."(18) However, many New Institutionalists stress structural approaches to action that essentially ignore individualist models of social activity.(19) Although rooted in the work of social constructionist scholars who studied individual interactions, such as Harold Garfinkel, Peter Berger, and Thomas Luckmann,(20) New Institutionalism focuses on organizational structures rather than on individuals. This Article develops a theory of institutional analysis that borrows from New Institutionalism even as it emphasizes--more so than other writings within that genre--Harold Garfinkel's earlier theorizing on individual cognition. By emphasizing Garfinkel's insights and combining these with New Institutionalism's study of organizations, I develop an approach that looks not to organizations per se, but to individual behavior within organized settings.(21) As with New Institutionalism, the institutional approach I follow rejects models of behavior that posit that actors principally pursue tasks either out of a strategic calculation of their interests or as a conscious effort to abide by internalized value systems. Rather, I advance an institutional analysis in which organizational actors follow elaborate scripts, spontaneously triggered complexes of behavior. I also argue that even when specific scripts do not develop or are not followed, paths come into play, unexamined background understandings that effectively specify the range of legitimate action.

I intend to shed light on judicial decision-making processes that give rise to discrimination by applying institutional analysis to the Los Angeles superior court's grand juror selection practices. Judges in particular and law as a whole have not received much sustained attention from New Institutionalism.(22) Instead, New Institutionalism tends to depict law in a rather formal way, as an undifferentiated constraint on organizational life.(23) Nevertheless, legal scholars such as Lauren Edelman, Mark Suchman, and Edward Rubin correctly observe that law constitutes an institutional setting that directly molds the behavior of those within its sphere.(24) Judges, Rubin rightly notes, "are not individual guardians of the law; they are members of an institution...."(25) The decision calculus of judges has recently come under scrutiny, principally by those searching for strategic action.(26) Here, I argue that institutional analysis brings into view important features of the judges' nonintentional decision-making processes--their reliance on scripts, their dependence on paths. Institutional analysis suggests that judicial conduct pursuant to such unexamined decision making often produces discrimination, racial and otherwise.

I do not, however, principally intend to study judicial cognition itself, so much as to theorize a particular form of racism.(27) When applied to the actions and the words of the superior court judges brought to the stand in East LA 13, institutional analysis illuminates the dynamics of a type of conduct perhaps best described as "institutional racism." Stokely Carmichael and Charles Hamilton introduced that term the year before the East Los Angeles student protests.(28) It gained popularity in the 1970s and 1980s as a means of highlighting the continued systematic production of inequality,(29) despite declines in overt...