In Slate, Dahlia Lithwick and Mark Kende point at the next legal reformation that we should soon see popping up as a wart on America’s hide – it’s called Washington v. Davis:
In Washington v. Davis, decided in 1976, the U.S. Supreme Court ruled that laws or government policies that disproportionately harm Black people do not violate the Constitution’s equal protection clause. The case was brought by aspiring Black police officers challenging the statistical disparity in test scores between Black and white test takers as a reflection that the D.C. police department’s hiring policy was unconstitutional. The test, known as Test 21, was chock full of white cultural and idiomatic references that may well have contributed to the fact that from 1968 to 1971, 57 percent of Black applicants failed the test as compared with 13 percent of whites.
In a 7–2 decision penned by Justice Byron White, the Supreme Court decided that courts can only find that a law or governmental action violates the equal protection clause when a plaintiff can show that a state actor intended to discriminate, and that this intention, in turn, caused a discriminatory result. But discriminatory intent is virtually impossible to prove. Who openly admits they are racist? This nearly insurmountable bar means that laws that treat Black people worse than white people (for example, laws requiring exponentially harsher sentences for crack possession than for cocaine use) remain tolerated throughout society.
It’s not exactly mind-reading, since intent is often written down, but when it’s racism it’s often concealed, and paper trails are either never permitted to exist, or erased when possible, as Lithwick and Kende point out.
As Osagie K. Obasogie noted in the New York Times, the result of this decision was the perpetuation of systemic racial discrimination and the ascendance of “what is now known as the ‘intent doctrine,’ which emerged in later cases as a simplistic search for a smoking gun—individual bad actors intentionally doing bad things with nothing but racial animus on their minds.”
Which is little more than denial of a systemic problem. But as was shown, contingent on confirmation, in this study, systemic racism is not necessarily even a conscious act; it may be the result of something as innocent as incomplete knowledge of a chronic situation.
Statistical analysis is necessarily a fuzzy understanding of a situation, and thus it takes specialist skills to decide if situations such as that motivating Washington v. Davis are coincidental or, as the authors suggest, causative. I think Washington v. Davis needs to be replaced by some sort of law that says if a respectable statistical analysis suggests structural racism is occurring, then call in a specialist (I believe legal jargon calls them special masters) to examine the matter. Not to assign blame or punishment, but to point out the causes of the structural racism and to supervise their correction.
