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Racism has played a dominant role in the common historical and cultural heritage of Americans shaping attitudes towards nonwhites. The Test: Evaluate governmental conduct to determine whether it conveys a symbolic message to which the culture attaches racial significance.
Racism has played a dominant role in the common historical and cultural heritage of Americans shaping attitudes towards nonwhites. The Test: Evaluate governmental conduct to determine whether it conveys a symbolic message to which the culture attaches racial significance.
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Racism has played a dominant role in the common historical and cultural heritage of Americans shaping attitudes towards nonwhites. The Test: Evaluate governmental conduct to determine whether it conveys a symbolic message to which the culture attaches racial significance.
Droits d'auteur :
Attribution Non-Commercial (BY-NC)
Formats disponibles
Téléchargez comme DOCX, PDF, TXT ou lisez en ligne sur Scribd
The Id. The Ego and Equal Protection: Reckoning with Unconscious Racism Prepared by Joshua Lee
I. The False Dichotomy Between Discriminatory Intent and Disproportionate Impact
a. Current Race Jurisprudence i. Treats disproportionate impact and governmental motive as mutually exclusive ii.Courts think of facially neutral actions as either intentionally and unconstitutionally or unintentionally and constitutionally discriminatory b. The false dichotomy i. Traditional notions of intent do not reflect the fact that decisions about racial matters are influence by facts that cannot be characterized as intentional or unintentional 1. Intentional – self consciously sought 2. Unintentional – outcomes are random, fortuitous, and uninfluenced by decision maker’s beliefs, desires, and wishes. ii.We are all racists 1. Racism has played a dominant role in the common historical and cultural heritage of Americans shaping attitudes towards nonwhites 2. A large part of behavior that produces racial discrimination is unconscious iii.Psychological Reasons unconscious nature of racially discriminatory beliefs 1. Defense mechanism against guilt a. Freudian theory explains that mind defends itself against discomfort of guilt by denying or refusing to recognize that in conflict with what that individual has learned is right b. When there is conflict between racist ideas and societal ethic that condemns those ideas, the mind excludes racism from consciousness 2. Subconscious transmission of racist lessons a. Culture transmits certain belief and lessons b. Racism is so deeply ingrained in culture and is likely to be transmitted by tacit understandings c. The Inadequacy of Intentional motivation standard i. Requiring intentional or conscious motivation as a perquisite ignores much of what we know about the human mind II. The New Test to Trigger Judicial Recognition of Race-Based Behavior a. The Test: Evaluate governmental conduct to determine whether it conveys a symbolic message to which the culture attaches racial significance i. Finding that culture thinks of an allegedly discriminatory action in racial terms would lead to a finding that there was racial motivation 1. Government actors are part of the culture and could not have acted by racial considerations, even if they were unconscious ii.Then apply strict scrutiny to the government action b. Criticism of law and legal discourse i. Most extreme view: law serves a hegemonic function by legitimizing oppressive power relationships through false or misleading ideologies ii.Less extreme: criticizes approaches that claim the existence of some preexisting natural order 1. Acknowledges existence and legitimacy of conflicting perspectives and encourages confrontation and debate among views c. The author’s vision to an approach toward race i. Judges should base constitutional decisions on their own sense of what values best reflect our cultural tradition so long as it is made explicit ii.This will put debate at the forefront and judging more honest.