105 "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent
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105 "Was Blind, but Now I See": White Race Consciousness and the Requirement of Discriminatory Intent BARBARA J. FLAGG 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. [See also Chapters 15, 35, and 97. Ed.] 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. This work can be highly beneficial. According to psychologist Janet Helms, a leading author on racial identity theory, the development of a healthy white racial identity requires the individual to overcome those aspects of racism-whether individual, institutional, or cultural-that have become a part of that person's identity, and in addition to "accept his or her own whiteness, the cultural implications of being white, and define a view of Self as a racial being that does not depend on the perceived superiority of one racial group over another."1 One step in that process is the deconstruction of transparency in white decisionmaking . We can work to make explicit the unacknowledged whiteness of facially neutral criteria of decision, adopting 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.2 In constitutional law, facially race-neutral criteria of decision that carry aracially disproportionate impact violate the Equal Protection Clause only if adopted with a racially discriminatory intent. 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.3 In addition, the discriminatory intent rule is the existing doctrinal means of regulating fa91 MICH. L. REV. 953 (1993). Originally published in the Michigan Law Review. Reprinted by permission. Copyrighted Material 630 Barbara]. Flagg cially 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. We need, therefore, to reevaluate the existing discriminatory intent rule and to consider a revised approach to disparate impact cases that implements the insights gained from that reassessment. 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. 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. 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. The exercise of focusing exclusively on the transparency phenomenon as an example 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. White people tend to view intent as an essential element of racial harm; nonwhites do not. The white perspective can be, and frequently is, expressed succinctly and without any apparent perceived need for justification: "[W]ithout concern about past and present intent , racially discriminatory effects of legislation would be quite innocent."4 For black people , however, the fact of racial oppression exists largely independent of...