Racial classification and ascriptive injury.

AuthorGowder, Paul
PositionIntroduction through III. The Causes of Hierarchical Classification A. Perception and Culture, p. 325-360

Slow in my blindness, with my hand I feel the contours of my face. A flash of light gets through to me. I have made out your hair, color of ash and at the same time, gold. I say again that I have lost no more than the inconsequential skin of things. These wise words come from Milton, and are noble, but then I think of letters and of roses. I think, too, that if I could see my features, I would know who I am, this precious afternoon.

--Borges (1)

TABLE OF CONTENTS INTRODUCTION I. How Current Doctrine Misses Racial Hierarchy A. The Intent Requirement B. Ignoring Racial Harm II. How Is Racial Classification Hierarchical? A. Racial Hierarchy B. Race on the Perceptual Level C. The Cognitive Hierarchical Model III. The Causes of Hierarchical Classification A. Perception and Culture B. The Historical Construction of Racial Categories C. Segregation and Racialized Spaces IV. The Constitutional Consequences of Racial Hierarchy A. The Rule of Law Case Against Racial Hierarchy B. Municipal Boundaries as Racialized Spaces 1. Is This Just Disparate Impact Analysis? 2. Requirement as Permission C. Standing and Racial Injury CONCLUSION: A NEW COLORBLINDNESS INTRODUCTION

This Article describes a new model of the relationship between racial ascriptions on an individual level, private racial bias, social disadvantage, and state action, called the cognitive hierarchical model. It argues that racial hierarchy in the wider culture affects our individual cognitions, and vice versa. Status evaluations turn out to be built deep into our racial perceptions. Because the state exercises a continuing influence on our culture and the cognitions it generates, this Article defends new grounds for constitutional challenge to state complicity in racial hierarchy. To be ascribed a stigmatized racial identity is to be subject to continuing harm, which this Article calls ascriptive injury. The state, by participating in the continual creation and reinscription of stigmatized racial identities, contributes to such ascriptive injuries, which for that reason must be subject to a constitutional remedy.

The following diagram summarizes the entire cognitive hierarchical model, including the key dynamic, the bidirectional relationship between racial identities and hierarchical status evaluations. Arrows indicate causal relationships.

Conventional American presumptions about our individual, day-to-day references to race are incorrect. (2) In the legal system as in ordinary life, we talk as if racial categories track mostly clear biological and hereditary divisions, and using such categories merely means observing and referring to these divisions. This Article will call that presumption the "naive concept of race." Even sophisticated observers view racial categories as socially constructed, but do not always identify those categories as normative. (3) But the evidence from history, demography, sociology, and psychology shows otherwise. In fact, our everyday acts of racial classification--assigning racial categories to the persons we observe--are acts of hierarchical social stratification. The latest research reveals that we even assign racial identities in part based on nonracial status information and that those assignments change as status information changes. (4)

Moreover, those status evaluations are built into our low-level perceptual processes: neuroscientific evidence reveals that hierarchical status evaluations occur even at the level of visual processing, as we observe and place persons into racial categories. (5)

Consequently, persons ascribed racial categories in the contemporary United States (6) are subjected to hierarchical social identities. Those at the bottom of the hierarchy are subjected to a tainted (or stigmatized) identity. In the United States, the stigma particularly falls on those ascribed the identity "black." This Article primarily focuses on this racial category for two reasons. First, it describes the victims of the starkest hierarchy in our history and contemporary politics. Second, it has been the subject of the most extensive investigation in social science and history (although where evidence is available with respect to other categories I have drawn on it). (7)

Our racial categories acquire legal implications because the state supports them. The stigmatized racial ascriptions we suffer under today are constructed in substantial part out of implicit and explicit stereotypes and implicit affective biases, which are in turn facilitated by physical isolation and by social disadvantage visibly associated with racial divisions. The state, with its laws, props up both of these phenomena.

In particular, laws establishing municipal boundaries and other arbitrary geographic divisions in access to public goods, which are de facto allocated along racial lines, support both the physical isolation of those with stigmatized racial identities and the continuing visible disadvantage of those groups. While this is certainly not the only way that the state supports racial hierarchy, such laws provide important support to racial stigma. Physical isolation limits the exposure of whites to nonwhites, leading to "illusory correlation": a phenomenon in which negative attributes are more readily attributed to nonwhites. (8) Disadvantage also supports stereotypes and affective bias. For example, black poverty supports the stereotype that blacks are lazy, and disparate policing in black communities supports the stereotype that blacks are prone to crime.

Because the state is complicit in creating racial stigma and its consequences, Equal Protection doctrine should expand to encompass a remedy for ascriptive injury. (9) In the words of Louis Brandeis, "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." (10) Today, our government teaches racial hierarchy by offering the support of its laws to the practices that make it up, and by neglecting to intervene on the continuing conditions created by its laws of the past. It must be made to stop doing so.

This dynamic leads to (at least) two concrete doctrinal consequences. First, because segregation supports stigmatized racial identities, legal regimes that create or support racialized spaces--physical spaces socially identified with subordinated or superordinated racial groups, along which benefits and burdens are allocated--should be subject to Equal Protection challenge regardless of whether those spaces are the product of conscious racial discrimination. This requires a modification (though not a complete abandonment) of the rule in Washington v. Davis requiring state racial discrimination to be "intentional" before triggering strict scrutiny. (11) It also requires a modification of the rule, most clearly expressed in Parents Involved in Community Schools v. Seattle School District No. 1, that state remedial action against racialized spaces, such as de facto segregated schools, is only permissible to the extent the racialized spaces are the product of intentional state discrimination. (12)

Second, legal injuries both supporting and stemming from stigmatized racial identities should be understood as continuing, not isolated, injuries to every member of the class potentially subjected to those injuries. Thus, cases such as City of Los Angeles v. Lyons, which denied standing for injunctive relief to the victim of a seemingly racially discriminatory chokehold, should be overruled. (13)

Ultimately, this Article aims to reclaim the concept of colorblindness from the opponents of affirmative action. Stripping state support from hierarchical and ascriptive racial categories will promote, or at least stop standing in the way of, a genuine colorblindness--one in which individuals as well as society are blind to the status classifications built into our practice of drawing racial categories. But the road to true colorblindness must go through public as well as private efforts at integration, and those efforts cannot be effective without paying attention to race. (14)

The colorblindness of this Article is not what conventional discussions of the idea take colorblindness to be. Typically by "colorblindness" it is meant that government actions should not take race into account. Critical race scholars have rightly argued that such colorblindness is no solution to the problem of American racial hierarchy. (15) The reason that these scholars are right, this Article argues, is because such colorblindness--in the unlikely event the American governments ever managed to achieve it--would be embedded in a self-reinforcing system of racial hierarchy where the consequences of past and present intentional racial discrimination persist and require conscious remediation.

By contrast, this Article argues for a different kind of colorblindness, at the end of a very long road. True colorblindness cannot be directly achieved just by willing the suppression of our racial cognitions. Rather, it can only be achieved indirectly, by the color-conscious abolition of the social circumstances that build racial hierarchy into our very perceptions. Directly pursuing colorblindness by pretending that race is not relevant to contemporary decisions is likely to reinforce those social circumstances, and in doing so defeat the goal of true colorblindness. For that reason, colorblindness should be understood as an instance of what Jon Elster has called "states that are essentially by-products": goals that cannot be achieved directly. (16)

The cognitive hierarchical model also has the potential to help provide what might be called microfoundations for the project of critical race theory. In 2003, Devon Carbado and Mitu Gulati pointed out that critical race theory ordinarily operated "at the macro level, focusing primarily on legal and sociopolitical processes," and they suggested more attention be paid to "the interpersonal ways in which race is produced." (17) At...

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