Bradly Mason

“Systemic racism” can be a difficult concept to grasp, largely because “racism” is commonly understood as an exclusively individual and intentional affair. Thus, most Americans begin with an idea of racism as personal prejudice toward those of different skin color and then are left imagining how this intentional prejudice can somehow become a property of systems, institutions, or social structures. In the end, many are left believing systemic racism is a grand conspiracy of racist individuals, or an ethos which pervades a society, or a set of explicit laws and basic assumptions hidden somewhere deep in the books.

Others, alternatively, tend to think of systemic racism as any policy, whether state or private, which leads to or preserves racial disparity. This is a contender, to my lights, as the racial distribution of harm and/or advantage should certainly be recognized as a measure of a policy’s success. But is, for example, every fee hike or price increase a racist act?

Centering Subordinated Circumstances and the Victim Perspective for “Systemic Racism”

A key to properly understanding the concept of “systemic racism” can be found in Charles Hamilton and Stokely Carmichael’s classic presentation of the difference between individual racism and institutional racism. We read in their 1967 text,

When white terrorists bomb a black church and kill five black children, that is an act of individual racism, widely deplored by most segments of the society. But when in that same city—Birmingham, Alabama—five hundred black babies die each year because of the lack of power, food, shelter and medical facilities, and thousands more are destroyed and maimed physically, emotionally and intellectually because of conditions of poverty and discrimination in the black community, that is a function of institutional racism. When a black family moves into a home in a white neighborhood and is stoned, burned or routed out, they are victims of an overt act of individual racism which most people will condemn. But it is institutional racism that keeps black people locked in dilapidated slum tenements, subject to the daily prey of exploitative slumlords, merchants, loan sharks and discriminatory real estate agents. The society either pretends it does not know of this latter situation, or is in fact incapable of doing anything meaningful about it. (Black Power: Politics of Liberation, p. 4)

The important move here is to center the subordinated circumstances and inferior conditions suffered by Black Americans, rather than centering the racist ideas and racist acts of individual discriminators.

This distinction roughly parallels Professor Alan Freeman’s distinction between the “perpetrator perspective” and the “victim perspective” of discrimination. The “victim perspective” (or “circumstance” perspective) of discrimination

… describes those conditions of actual social existence as a member of a perpetual underclass. This perspective includes both the objective conditions of life—lack of jobs, lack of money, lack of housing—and the consciousness associated with those objective conditions—lack of choice and lack of human individuality in being forever perceived as a member of a group rather than as an individual. … The victim, or “condition,” conception of racial discrimination suggests that the problem will not be solved until the conditions associated with it have been eliminated. To remedy the condition of racial discrimination would demand affirmative efforts to change the condition. (“Legitimizing Racial Discrimination Through Antidiscrimination Law,” pp. 1052-1053)

In short, the victim perspective views racial discrimination from the perspective of those who have, as a group, suffered under the subordinated conditions of historic and modern racism. In this perspective, to suffer discrimination is to suffer under objectively discriminatory conditions. (And, therefore, to address discrimination requires changing real-life circumstances.)

The perpetrator perspective, on the other hand,

… sees racial discrimination not as conditions, but as actions, or series of actions, inflicted on the victim by the perpetrator. The focus is more on what particular perpetrators have done or are doing to some victims than it is on the overall life situation of the victim class. … The remedial dimension of the perpetrator perspective, however, is negative. The task is merely to neutralize the inappropriate conduct of the perpetrator. (p. 1053)

Much like Hamilton and Carmichael’s description of institutional racism, Critical Race theorists privilege the victim perspective in analyzing, diagnosing, and seeking remedies for society-wide racial subordination. CRT is a legal theory after all, and is therefore centered on how law has created and sustained such subordinated circumstances, thus operating more at the institutional level of analysis than at the individual, psychological, or interpersonal. As CRT scholar Dorothy E. Roberts summarizes: 

This perspective recognizes that racial subjugation is not maintained solely through the racially antagonistic acts of individual officials; instead, it views social patterns and institutions that perpetuate the inferior status of blacks as the primary threat to equality. (“Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy,” p. 1554)

Finally, it is important to understand that this socially and legally imposed subjugation is not only understood to be a product of overt action, but also of inaction, including roadblocks to remedial action and “narratives and rules that invalidate or handicap black claims.”

We erect difficult-to-satisfy standing requirements for civil rights cases, demand proof of intent, and insist on tight chains of causation. We place limitations on the type and pace of relief that may be ordered. We limit attorneys fees and decrease funding for agencies that litigate nonwhites’ cases. We insist that remedies not endanger white well-being; “reverse discrimination” is given a wide berth. We elevate equality of opportunity over equality of result and reject statistical proof of lack of the former. We use the excuse of “widening the pool” to avoid hiring nonwhites now. Procedural racism puts racial-justice claims on the back burner and makes sure they stay there. (Richard Delgado, “When A Story is Just a Story,” pp. 105 – 106)

Accordingly, though the phrase is rarely used in CRT literature, Critical Race theorists offer what I believe to be a sound and illuminating approach to what folks are usually getting at by the phrase “systemic racism.” (I prefer not to use the phrase much, but will continue to do so in this piece.)

Centering Historical Context for Determining “Systemic Racism”

For example, when CRT founders Mari Mutsada, Charles Lawrence III, Richard Delgado, and Kimberlé Crenshaw answer “What is Critical Race Theory?,” they include a statement on the context and causes of racial-group inequality that I think perfectly captures the concept of “systemic racism”:

Critical race theory challenges ahistoricism and insists on a contextual/historical analysis of the law. Current inequalities and social/institutional practices are linked to earlier periods in which the intent and cultural meaning of such practices were clear. More important, as critical race theorists we adopt a stance that presumes that racism has contributed to all contemporary manifestations of group advantage and disadvantage along racial lines, including differences in income, imprisonment, health, housing, education, political representation, and military service. Our history calls for this presumption. (Words That Wound, p. 2)

Note well: “… linked to earlier periods in which the intent and cultural meaning of such practices were clear.” This aligns with Charles Lawrence III’s “cultural meaning” test, something which markedly distinguishes the traditional CRT approach from both the individualist approach and the mere disparate impact approach presented at the opening. This description not only privileges the circumstances of people of color (victim perspective), but also appropriately historicizes and contextualizes those circumstances in order to distinguish racial from non-racial impact. In his “The Id, the Ego, and Equal protection,” Lawrence presents this distinction through a discussion of Washington v. Davis (1976). The case involved a written test used by the DC Metropolitan Police Department for hiring. And as the Court noted, “blacks failed [the test] at a rate roughly four times that of whites,” though the majority of justices nevertheless ruled in favor of Washington. Commenting on this outcome, Lawrence writes:

The most obvious racial element is the exam’s racially disproportionate impact. One can argue that the government’s action racially stigmatizes because blacks fail the exam in larger numbers than whites. But not every case of racially disparate impact has racial meaning. An increased bus fare may burden a larger percentage of blacks than whites, but we do not think of the fare increase as a direct stigmatization of blacks. It does not convey a message of racial inferiority. Thus, if the governmental action in Davis conveys a racial message, it must derive that meaning from something other than, or in addition to, its racial impact. Like the traffic barrier in Memphis v. Greene, there must be something in the particulars of its historical and cultural context that causes us to interpret this action—at least intuitively—in racial terms. (p. 370)

Lawrence goes on to establish a set of legal principles to distinguish mere disparate impact from racist disparate impact—that is, disparate impact that consciously or unconsciously assumes or promotes racial inferiority. Basic to Lawrence’s racial impact test—or “cultural meaning test”—is assessing the public meaning of an act or policy as contextualized within an identifiable history of racial meanings and cultural symbols shared by a community.

I propose a test that would look to the “cultural meaning” of an allegedly racially discriminatory act as the best available analogue for and evidence of the collective unconscious that we cannot observe directly. This test would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance. The court would analyze governmental behavior much like a cultural anthropologist might: by considering evidence regarding the historical and social context in which the decision was made and effectuated. If the court determined by a preponderance of the evidence that a significant portion of the population thinks of the governmental action in racial terms, then it would presume that socially shared, unconscious racial attitudes made evident by the action’s meaning had influenced the decisionmakers. As a result, it would apply heightened scrutiny. (pp. 354 – 355)

Lawrence’s purpose here is to challenge the Court’s requirement to prove intention, as per Washington v. Davis, in order to legally identify acts or policies as racially discriminatory; that is, his intention is to counter “the doctrine of discriminatory purpose” (p. 318). In the process, he distinguishes racist disparate impact from mere disparate impact; “there must be something in the particulars of its historical and cultural context that causes us to interpret this action—at least intuitively—in racial terms.” And while his specific racial impact test might not answer to every antiracist purpose, it suggests a useful path toward historicizing and contextualizing the meaning of social actions in order to identify illicit racially discriminatory impact.

More recently (2012), also addressing the intent requirement, CRT scholar Ian Haney Lopez has called on legal scholars to distinguish between “contextual intent” and “malicious intent.”

The former focuses on motives only in the loosest sense (or sometimes not at all) and emphasizes instead a broadly informed inferential approach to evaluating possible discrimination; the latter declares direct proof of injurious motives a prerequisite and concomitantly declares contextual evidence irrelevant. (“Intentional Blindness,” p. 1796)

As an example of “contextual intent,” we can look to Hernandez v. Texas (1954), wherein a Mexican-American sought to overturn a verdict rendered by a jury from which Mexican-Americans were excluded. The Court, deciding in Hernandez’s favor, argued that “[t]he result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner” (347 U.S. at 482). As for “malicious intent,” an example would be the reasoning of the Court in Pers. Adm’r of Mass. v. Feeney (1979), a gender discrimination case wherein the Court explicitly premised its reasoning on the legal paradigm of racial discrimination. The Court decided against the petitioner, arguing that “even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose” (442 U.S. at 272), requiring proof of individual “antipathy” as central to “discriminatory purpose.”

Lopez successfully argues that the “intent” sought by the Court prior to the late 1970s was not a requirement to look into the purpose and psyche of individual decision-makers, seeking proof of malice, but rather to assess the historical context and network of social meanings, including policy-makers’ knowledge of likely outcomes. Going back to at least Soon Hing v. Crowley in 1885, the Court had consistently rejected the need to demonstrate the internal mental states of policy-makers to determine violation of the equal protection clause, and to rather focus on the broader social and historical context. The Court declared that,

the rule is general with reference to the enactments of all legislative bodies that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or inferrible from their operation, considered with reference to the condition of the country and existing legislation. (113 U.S. 703, 710 (1885), as quoted by Lopez)

Lopez explains the import of this declaration:

Though the Court seemingly announced a general rule that judges cannot inquire into motives, this prohibition did not survive the very sentence that proclaimed it. Rather, the Court held that the purposes behind government action could be legitimately considered, so long as judges used a holistic approach to discern governmental motives. For instance, the government’s interest in taking a particular course could be inferred from the context in which it acted—stated most broadly as “the condition of the country.” (p. 1794)

Further, “intent” or “purpose” could also be determined by policy-makers’ knowledge of likely outcomes. Again, from Soon Hing v. Crowley:

The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments.

Lastly, Lopez explains this interpretive trajectory in subsequent discrimination cases:

[T]he Court stayed true to this balance of investigating general motives while eschewing a concern for individual intentions. It repeatedly drew inferences about governmental purposes from the larger context, while avoiding direct inquiries into individual mindsets. Sometimes this inferential process reflected little more than judicial notice of race relations. In defending the desegregation cases, Professor Charles Black endorsed this style of reasoning, terming the destructive intentions behind segregation “matters of common notoriety” that should serve as “background knowledge [for] educated men who live in the world.” At other times, the Justices relied on a more focused examination of surrounding racial patterns, including through the invocation of social science. Perhaps the quintessential example is Brown itself, in its famous footnote eleven. Whatever the combination of judicial notice and focused study, the point is that the Court did not demand direct proof of subjective mindsets. Instead, findings of discriminatory purpose reflected inferences drawn from the challenged action as well as the surrounding context—in a phrase popular with the Court, from the “totality of the circumstances.” (pp. 1795 – 1796)

Lopez calls for a return to the traditional understanding of intent which, he argues, reigned until the imposition of malice in Pers. Adm’r of Mass. v. Feeney (1979).

By encouraging courts to judge discrimination with due regard for local circumstances, relevant history, and broader racial dynamics, the contextual approach provided a workable route for identifying racial mistreatment … [allowing] precisely the sorts of inquiries now commonly urged—those involving attention to the social science of racial discrimination, including evidence of unconscious bias, as well as to structural inequalities. (p. 1824)

In short, whether it be merely acknowledging the link between current inequalities and “earlier periods in which the intent and cultural meaning of such practices were clear,” explicit employment of Lawrence’s cultural meaning test, or distinguishing the traditional “contextual intent test” from the modern “malicious intent test,” it is abundantly clear that CRT scholars have consistently distinguished mere disparate impact from racist disparate impact, by means of situating outcomes in our broader socio-historical, legal, and cultural context. And we should too.

A CRT Informed Understanding of “Systemic Racism”

Taking as premises Hamilton and Carmichael’s centering of subordinated circumstances, Freeman’s victim perspective, Lawrence’s historicized and contextualized impact test, and Lopez’s understanding of contextual intent, I think we can understand “systemic racism” to be any historic and/or current system of ideas, social philosophies, institutions, policies, and practices which have created and/or continue to perpetuate the subordinated circumstances and inferior conditions of racialized people-groups in continuity with our explicitly racialized historical context. As such, past racism—”earlier periods in which the intent and cultural meaning of such practices were clear”—is inseparable from current systemic racism. (Of course, there is plenty of current individual racism as well, but that’s not my focus here.)

Thus, we can see in many areas of social and institutional life that long periods of explicit government-sanctioned discrimination have led to racially disproportionate distributions of social and economic goods. We can also see that once such explicit discrimination was outlawed (e.g., 1964 Civil Rights Act), explicitly racial discrimination was superseded by facially “race-neutral” standards. Now, when we nevertheless continue to see much the same racially disproportionate distribution of social and economic goods that we saw under periods of explicit discrimination, we are more than justified to question the presumed race-neutrality of these supposed “race-neutral” standards. “Our history calls for this presumption.”

That is, if the subordinated circumstances and inferior conditions of historically racialized people-groups persists from an era of explicitly discriminatory standards right on through the legal prohibition of such discrimination, continuing on into an era of facially “race-neutral” standards of distribution, then we are justified in doubting the race-neutrality of these standards. Racially discriminatory circumstances exist in both cases and are certainly what victims of such discrimination are most rightly concerned about.

An Elucidating Example of the CRT Informed Understanding of “Systemic Racism”

A perfect historical example of this latter pattern, supplied also by Alan Freeman, can be found in Griggs v. Duke Power Co (1971). In this case, the employer, as a matter of open company policy, had discriminated against Black Americans by limiting advancement to higher paying positions. In response to the 1964 Civil Rights Act, wherein such practices were outlawed, the employer changed his policy. Rather than explicitly discriminatory policy, he instead added a diploma requirement, along with sufficient scores on a pair of competencies tests, in order to advance out of the “black department.” When the suit came to the Supreme Court, the Justices rightly saw their task as to determine,

whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites. (401 U. S. at 425-26)

The Court ruled unanimously that the policy violated the Title VII provision of the 1964 CRA. In the opinion of the Court,

The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. (at 431)

Hence, the court put the burden of justification on the supposedly neutral standards, not on the disenfranchised victims. The Court went even further:

The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. (at 433)

What is, in the end, so interesting about this and similar cases is that it demonstrates the Court’s intent, for a time, to remedy the subordinated circumstances of discrimination by modifying the traditional color-blind notion of “violation,” thereby expanding the formal “antidiscrimination principle” to include the perspective of victims and their discriminated real-life circumstances.

Griggs explicitly required the employer to demonstrate the race-neutral “business necessity” of his diploma requirement and tests in order to avoid legal violation of Title VII. And the evidence required by the Court to prove such racial neutrality included demonstrably proportionate outcomes, thus forcing the employer to actively ensure fair representation throughout his company. The Court effectively required businesses to voluntarily institute affirmative action programs to avoid violating Title VII.

Further, as Freeman observes,

the “intentional” violation in [this case] was adherence to a practice … that produced results associated with segregation. Under this view, retention of the practice in the face of its known results becomes a prima facie case of discrimination, again giving rise to a demand for rational justification. (“Legitimizing Racial Discrimination Through Antidiscrimination Law,”p. 1102)

In fact, the Court explicitly stated that “good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups” (401 U.S. at 432), in direct contradiction to post-1970s antidiscrimination decisions. The historical context, knowledge of the “cultural meaning,” and the known results of the act were thus understood to meet the intention requirement, prior to the civil rights reversal suffered under Washington v. Davis and, ultimately, Pers. Adm’r of Mass. v. Feeney, as discussed above.

Further, we see the Court making an antidiscrimination ruling based on the persistence of subordinated circumstances, which had been created through explicit racial discrimination in the past, but then preserved by the introduction of facially “race-neutral” standards, thereby placing the burden to prove non-discrimination on the supposedly race-neutral standards themselves. In other words, the Supreme Court, for a time, understood systemic racism.

Conclusion

And, in conclusion, I can’t help but point out that it is much more reasonable—given the millions of daily repetitions of Griggs-like examples in all areas of life since “discrimination” was “outlawed”—to understand persistent racial disparities in light of the analysis above, rather than presuming the inferior behavior or culture of racialized victims. Critical Race Theory’s understanding of “systemic racism,” centered as it is on the victim perspective, historical context, and cultural meaning, obviates the wickedness of placing the burden of proof on victims of subordination, whereby

the actual conditions of racial powerlessness, poverty, and unemployment can be regarded as no more than conditions—not as racial discrimination. Those conditions can then be rationalized by treating them as historical accidents or products of a malevolent fate, or, even worse, by blaming the victims as inadequate to function in the good society. (p. 1103)

In short, the concept of “systemic racism,” as informed by Critical Race Theory, describes the subordinated circumstances and inferior conditions suffered by people of color, created by explicitly discriminatory standards and practices of the past, and preserved by means of the facially “race-neutral” standards and practices meant to replace them.

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If this all makes sense, then it’s important to get specific. These pieces will walk you through the details of how systemic racism actually functions in our society:

• Confronting Racial Disparities in America, From Cradle to Grave: A Reading List
• “What Does 1619 Have To Do With 2019? A Crash Course”
• “Excluding Blacks and Others From Housing: The Foundation of White Racism”
• “What We Get Wrong About Closing the Racial Wealth Gap”
• “The Case for Reparations: Two hundred fifty years of slavery. Ninety years of Jim Crow. Sixty years of separate but equal. Thirty-five years of racist housing policy. Until we reckon with our compounding moral debts, America will never be whole.”
• From Here to Equality: Reparations for Black Americans in the Twenty-First Century
• Persistent Disparities
• More than Just Race: Being Black and Poor in the Inner City
• The Color of Law: A Forgotten History of How Our Government Segregated America
• The New Jim Crow: Mass Incarceration in the Age of Colorblindness
• Black Wealth / White Wealth: A New Perspective on Racial Inequality
• The Color of Money: Black Banks and the Racial Wealth
• Medical Apartheid: The Dark History of Medical Experimentation on Black Americans from Colonial Times to the Present