What divides us about racism: intent

Even Sean Hannity agrees that Cliven Bundy's comments about "the negro" are racist. He called them "beyond repugnant." One thing the Civil Rights Movement gave us was near universal agreement that skin color does not determine a person's humanity and that intentional discrimination against someone on that factor alone is "beyond repugnant."

For many people in this country, that near universal agreement means that the job of ending racism is done and we can all be "colorblind" now. That's why the Roberts Court did away with the section of the Voting Rights Act that applied only to states that had traditionally denied the franchise to African Americans via Jim Crow laws. Its also why they struck down Michigan's affirmative action program this week. According to Robert's embrace of colorblindness, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

All of this is based on a white perspective of what racism means. You see, if we don't intend to discriminate...it doesn't happen. In other words, if voting restrictions aren't overtly aimed at denying the franchise to African Americans, its not racism. It doesn't matter if they effectively make it more difficult for large swaths of African Americans to vote. And intent is most often very difficult to prove, isn't it?

If we were to include the perspective of people of color in our understanding of racism, we would see it much differently. As Justice Sotomayor explained:

And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man's view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman's sense of self when she states her hometown, and then is pressed, 'No, where are you really from?', regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here'...

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.

Notice that she totally avoids the question of intent and instead is focused on the effects of racism. That is the great divide on the topic of racism that we are facing today. Previous courts that understood this divide have codified Sotomayor's view into law with something called disparate impact. It holds that "facially neutral" practices (ie, colorblind) are not sufficient to combat discrimination.

A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect. Where a disparate impact is shown, the plaintiff can prevail without the necessity of showing intentional discrimination...

This legal standard is why Sec. of Labor Thomas Perez came under fire during his confirmation hearings for his prior work as the head of DOJ's Civil Rights Division. He did everything he could to avoid a case on the topic of disparate impact getting to the Supreme Court - knowing that doing away with it is the next agenda for the Roberts Court. That's why we need to keep an eye on this rather obscure standard...if struck down, we would be left with having to demonstrate intent to prove discrimination.

But the question of intent also infuses much of our discussion about racism on a daily basis. Its why the defense used by many white people of "having a good heart" is inadequate. The state of one's heart is not the question. We need to focus on the effect of what we do/say. Its also why Jay Smooth says that accusations of "You are a racist" are counter-productive - because they go to intentions.

And so, the next time someone says that what you've said/done is racist, know that a focus on your intentions is not the point. Its important to listen to how if effected them. In other words, its not all about you :-)