'Was blind, but now I see': White race consciousness and the requirement of discriminatory intent.

• Author: Flagg, Barbara J.

Advocating race consciousness is unthinkable for most white liberals. (1) We define our position on the continuum of racism by the degree of our commitment to colorblindness; the more certain we are that race is never relevant to any assessment of an individual's abilities or achievements, the more certain we are that we have overcome racism as we conceive of it. This way of thinking about race is a matter of principle as well as a product of historical experience. It reflects the traditional liberal view that the autonomous individual, whose existence is analytically prior to that of society, (2) ought never be credited with, nor blamed for, personal characteristics not under her own control, such as gender or race, or group membership or social status that is a consequence of birth rather than individual choice or accomplishment. (3) The colorblindness principle also grows out of the historical development of race relations in the United States, in which, until quite recently, race-specific classifications have been the primary means of maintaining the supremacy of whites. (4) In reaction to that experience, whites of good will tend to equate racial justice with the disavowal of race-conscious criteria of classification. (5)

Nevertheless, the pursuit of colorblindness progressively reveals itself to be an inadequate social policy if the ultimate goal is substantive racial justice. (6) Blacks continue to inhabit a very different America than do whites. (7) They experience higher rates of poverty and unemployment (8) and are more likely to live in environmentally undesirable locations than whites. (9) They have more frequent and more severe medical problems, higher mortality rates, and receive less comprehensive health care than whites. (10) Blacks continue disproportionately to attend inferior and inadequate primary and secondary schools. (11) Proportionately fewer blacks than whites complete college, and those who do so still confront the "glass ceiling" after graduation. (12) Blacks are no better off by many of these measures than they were twenty years ago, (13) and in the recent past even the colorblindness principle itself, once seen as a promise of a brighter future for blacks, has been deployed instead to block further black economic progress. (14)

Arguments that race consciousness has a positive face have begun to appear in the legal literature. Critical race theorists in particular have focused on the salience of race to legal analysis, (15) arguing compellingly that race does and should matter in all aspects of the law, from legal doctrine and theory to the conduct of legal education and the composition of the legal academy. (16) Many of these authors have articulated critiques of colorblindness in the course of developing the critical perspective on race. In addition, and perhaps in response to the critical race literature, two recent articles by authors not ordinarily associated with that movement focus more directly on whites' conceptualizations of colorblindness and race consciousness.

Alexander Aleinikoff has argued that racial justice cannot be attained absent recognition of the social significance of race; whites' increased, color-conscious attention to black perspectives and experience is a crucial ingredient in the effort to eradicate the difference race has made in this society. (17) Gary Peller has described the historical development of contemporary antidiscrimination norms. He argues that integrationism-- colorblindness expressed as social policy - holds the dominant position it does in white ideology at least in part in response to the "threat" that the black nationalism of the 1960s and 1970s posed to whites. (18)

Each of these insightful articles, however, tends to align race consciousness with consciousness of blackness, emphases which may be largely the consequence of the subjects these authors address: raceconscious affirmative action and black nationalism, respectively. (19) Nevertheless, caution is in order, because whites' tendency to focus our attention in matters of race on nonwhites can be just one more building block in the edifice of white supremacy. Whites' endeavors to understand our own and blacks' ways of thinking about blackness are never unimportant, but a thorough reexamination of race consciousness ought to feature a careful consideration of whites' racial self-conception.

The most striking characteristic of whites' consciousness of whiteness is that most of the time we don't have any. I call this the transparency phenomenon: the tendency of whites not to think about whiteness, or about norms, behaviors, experiences, or perspectives that are white-specific. Transparency often is the mechanism through which white decisionmakers who disavow white supremacy impose white norms on blacks. Transparency operates to require black assimilation even when pluralism is the articulated goal; it affords substantial advantages to whites over blacks even when decisionmakers intend to effect substantive racial justice.

Reconceptualizing white race consciousness means doing the hard work of developing a positive white racial identity, one neither founded on the implicit acceptance of white racial domination nor productive of distributive effects that systematically advantage whites. (20) One step in that process is the deconstruction of transparency in the context of white decisionmaking. (21) We can work to make explicit the unacknowledged whiteness of facially neutral criteria of decision, and we can adopt strategies that counteract the influence of unrecognized white norms. These approaches permit white decisionmakers to incorporate pluralist means of achieving our aims, and thus to contribute to the dismantling of white supremacy. Making nonobvious white norms explicit, and thus exposing their contingency, can begin to define for white people a coequal role in a racially diverse society. (22)

In constitutional law, facially race-neutral criteria of decision that carry a racially disproportionate impact violate the Equal Protection Clause only if adopted with a racially discriminatory intent. (23) This rule provides an excellent vehicle for reconsidering white race consciousness, because it perfectly reflects the prevailing white ideology of colorblindness and the concomitant failure of whites to scrutinize the whiteness of facially neutral norms. (24) In addition, the discriminatory intent rule is the existing doctrinal means of regulating facially neutral government decisionmaking. When government imposes transparently white norms it participates actively in the maintenance of white supremacy, a stance I understand the Fourteenth Amendment to prohibit. (25) We need, therefore, to reevaluate the existing discriminatory intent rule from the perspective of the transparency phenomenon, and to consider a revised approach to disparate impact cases that implements the insights gained from that reassessment.

Perhaps an ideal equal protection rule would address all the numerous ways that race influences facially neutral white decisionmaking, from stereotyping and unconscious or repressed racial bias to conscious but covert discrimination, but this article does not attempt to construct a rule or set of rules to reach all violations of the constitutional equality guarantee. While acknowledging that different rules might be appropriate in different contexts, this article will single out transparency for special consideration. The imposition of transparently white norms is a unique form of unconscious discrimination, one that cannot be assimilated to the notion of irrationalism that is central to the liberal ideology of racism. (26) While racial stereotyping can be condemned as the failure accurately to perceive the individual for who he really is, and bias as the inability to exclude subjective misconceptions or hostilities, or both, from one's decisionmaking processes, transparency exemplifies the structural aspect of white supremacy. Beyond the individual forms of racism that stereotyping, bias, and hostility represent lie the vast terrains of institutional racism -- the maintenance of institutions that systematically advantage whites -- and cultural racism -- the usually unstated assumption that white culture is superior to all others. (27) Because the liberal gravitates toward abstract individualism and its predicates, she generally fails to recognize or to address the more pervasive harms that institutional and cultural white supremacy inflict. (28) The exercise of focusing exclusively on the transparency phenomenon as an exemplar of structural racism, then, has transformative potential for the white liberal, both on the personal level and as a springboard for reflection on what it means for government genuinely to provide the equal protection of the laws. (29)

Part I briefly reviews the case law that has established and elaborated the requirement of discriminatory intent. I discuss the theoretical background against which Washington v. Davis was decided, a debate over the possibility and propriety of judicial review of legislative motive. I suggest that the significant institutional difficulties associated with the triumphant discriminatory intent rule, together with the many substantive criticisms leveled against it, might lead one to expect to see relative doctrinal instability here. On the contrary, the requirement of discriminatory intent has been one of the most stable doctrines in modem constitutional law. I conclude with the speculation that the rule owes its longevity, at least in part, to its conformity with distinctively white ways of thinking about race discrimination.

Part II invites the white reader to undertake the project of becoming conscious of transparency. I pose questions designed to prompt whites to reflect on this phenomenon, and I offer a story illustrative of some of the ways transparency can influence white decisionmaking. I then argue that...