Does Racism Require Intent?

For months conservatives refused to accept that police officers killing unarmed Black men was a sign of the racism that still exists in our police departments and criminal justice system. Even when the Department of Justice produced it's report finding that the Ferguson Police Department engaged in a pattern and practice of racial discrimination, the denial persisted.

But for most (certainly not all) conservatives, it became too difficult to deny that racism is what motivated Dylann Roof. Initially they tried, but the facts became overwhelming. And it has been his embrace of what the Confederate flag symbolizes that has led so many to call for its removal.

The reason so many people had to accept that Roof's actions were racist is that he made his intentions clear. If his statement at the scene of the shooting about how his African American victims were "raping our women and taking over our country" weren't enough, his published manifesto made it irrefutable.

But when the Ferguson Police Department records show that African Americans account for 93% of arrests but make up only 67% of the population, there is no statement of intent that officers target Black people. It is the impact of their actions that demonstrates racial discrimination.

This is actually what President Obama was referring in his conversation with Marc Maron when his use of the "n-word" evoked such a huge reaction.

What is also true is that the legacy of slavery, Jim Crow, discrimination in almost every institution of our lives, that casts a long shadow and that's still part of our DNA that's passed on. Racism, we are not cured of. And it's not just a matter of it not being polite to say 'n-word' in public. That's not the measure of whether racism still exists or not. It's not just a matter of overt discrimination.

In her remarks to the U.S. Conference of Mayors following the shooting in South Carolina, Hillary Clinton made the same point.

Race remains a deep fault line in America. Millions of people of color still experience racism in their everyday lives…. More than a half century after Dr. King marched and Rosa Parks sat and John Lewis bled, after the Civil Rights Act and the Voting Rights Act and so much else, how can any of these things be true? But they are.

And our problem is not all kooks and Klansman. It’s also in the cruel joke that goes unchallenged. It’s in the off-hand comments about not wanting ‘those people’ in the neighborhood.

Let’s be honest: For a lot of well-meaning, open-minded white people, the sight of a young black man in a hoodie still evokes a twinge of fear. And news reports about poverty and crime and discrimination evoke sympathy, even empathy, but too rarely do they spur us to action or prompt us to question our own assumptions and privilege.

Finally, Justice Sotomayor wrote about it in her dissent against the Robert's ruling that gutted sections of the Voting Rights Act.

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.

It has become easy for white Americans to identify the kind of racism expressed by people like Dylann Roof (or as Clinton said, the "kooks and Klansmen") who broadcast their intent. But when the impact of racism falls only on people of color, we can remain ignorant of it's presence. The question becomes, "is racism any less real when the perpetrator doesn't intend to be racist?" A friend of mine answered that question years ago when she said that if I accidentally drop an anvil on her toes it doesn't hurt any less because I didn't intend to.

We've all been prepped that the Supreme Court will issue important rulings in the next few days about Obamacare and gay marriage. What we haven't heard as much about is that they will also rule on the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. That case hinges on a long-established legal concept: disparate impact, which holds that cases of discrimination can be made on the basis of impact and need not prove intent.

Chief Justice Roberts has long made his thoughts clear about his desire to get rid of disparate impact as a standard. And we can be fairly certain that he will be joined by Justices Scalia, Thomas and Alito. So the outcome of this case clearly rests on the vote of Justice Kennedy. A ruling against disparate impact will set our progress on civil rights in this country back decades because it will mean that cases of racial distrcrimination require proof of intent.