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Excerpted From: Roy L. Brooks, Systemic Racism: Patterns of Black Disadvantage and White Advantage Linked to Slavery, 58 San Diego Law Review 767 (November-December, 2021) (165 Footnotes) (Full Document)


RoyLBrooksComplex ideas are easy targets for ridicule or objection, especially when the distractors, persons or organizations, are politically motivated, ignorant, indifferent, hostile to the subject, or simply indisposed toward nuanced analysis. In this Article, I engage a complex concept--systemic racism. Though complex, systemic racism is not inscrutable to most African Americans. We have come to understand the concept all-too-well as its meaning is rooted in the black experience. Staying close to that ethos, I define systemic racism in this Article as deeply embedded patterns of racial disadvantage in our country linked to slavery. These patterns of racial inequality are structural rather than behavioral, external rather than internal. They continuously disadvantage African Americans and, concomitantly, advantage white Americans.

My definition of systemic racism as embedded patterns of racial degradation linked to slavery is consistent with other definitions of the term. For example, the Oxford English Dictionary defines systemic racism as: “Discrimination or unequal treatment on the basis of membership in a particular ethnic group (typically one that is a minority or marginalized), arising from systems, structures, or expectations that have become established within society or an institution.” Joe Feagin, arguably the leading civil rights scholar in the country, defines systemic racism as the operation of dominant “white-framed perspectives” that disadvantage a racial group. Those who see the world through the white-framed perspective see nothing wrong with the failure of whites to redistribute the poker chips. Thus, systemic racism means racial disadvantage firmly ingrained in the very fiber of our cultural paradigm--our country's traditions, values, beliefs, stories, and myths.

Systemic racism has always had a presence in our country. Its presence was easy to discern during slavery given the horrid treatment of blacks both within and outside the peculiar institution. The same is true of Jim Crow with the ubiquity of “Colored” restrooms or drinking fountains, “white-only” sections of public transportation and lunch counters, window signs that read, “Negroes need not apply.” Fifty years after Jim Crow, systemic racism--embedded patterns of racial disadvantage--is perceived or recognized in a different way. It is manifested in less obvious ways. This is mainly because animus is not nearly as associated with system racism today as it was during slavery or Jim Crow. Yet, while animus was correlated with most forms of racial disadvantage in the past, its presence was never necessary to bring systemic racism into existence. Indeed, systemic racism has always been less about racial intent than racial impact. It has been about the proverbial white knee on the proverbial black neck. Animus is simply not a precondition for systemic racism. Systemic racism in post-Jim Crow America is, for the most part, racial disadvantage that nonracists practice or tacitly support.

In this Article, I engage systemic racism in two ways. First, I discuss some of its current manifestations, Part II. In particular, I will offer powerful examples of systemic racism, Section A, and explain the link between slavery and extant systemic racism, Section B. Next, I analyze the forces in this country that sustain systemic racism well into the post-civil rights period, Part III. I will spend a fair amount of time examining socio-psychological paradigms and institutional practices or policies that perpetuate or contribute to manifestations of systemic racism. The former consists of various forms of racial bias, Section A, and the latter focuses on a few significant legal institutions, Section B. The question of what to do about systemic racism is important. I do not, however, have enough space to address that question here.

[. . .]

A complex concept describing a complex problem, systemic racism can be defined as deeply entrenched patterns of black disadvantage/white advantage in our country linked to slavery. It is manifested in myriad ways, and it is sustained--protected or perpetrated--by socio-psychological states--racial antipathy, the belief in white supremacy, insider or white privilege, and implicit bias institutional practices or policies. This Article focuses on some of the legal institutions, namely textualism and the color-blind norm, complicit in manifestations of systemic racism. I will end with two thoughts.

First, it is a myth to think that racial justice has been achieved with the death of Jim Crow. The passage of color-blind civil rights laws, the proliferation of color-blind court decisions, the election of African Americans to high office, and the presence of blacks in high places of employment are not coextensive with racial justice--equity as illustrated in the Appendix. They do not make America a post-racial society such that the opportunities for worldly success and personal happiness for African Americans is no longer limited by race. The fact is that the great majority of African Americans continue to face recurring obstacles that the great majority of white Americans simply do not have to face. Even African Americans who have “made it,” such as Republican Senator Tim Scott, continue to face racism. In addition, all African Americans are limited by the Supreme Court's decision making in civil rights cases, such as the Court's protection of private discrimination, in ways that white Americans do not have to be concerned with. The refusal to acknowledge systemic racism blinds one to racial disadvantage that is quite foundational.

Second, blissful ignorance of the full extent of racial disadvantage directly affects one's willingness to support laws and policies that further racial justice, including affirmative action and voting right laws. “White Americans generated more accurate estimates of Black-White equality when asked to consider the persistence of race-based discrimination in American society.” If rational and empathetic stakeholders--policymakers, judges, lawyers, and Americans as a whole--are sufficiently educated about both the reality of systemic racism and the myriad ways in which it limits African Americans, then law, though sometimes complicit in maintaining systemic racism, can be used to resist and redress systemic racism. People of probity and intelligence must work to build a coalition of the decent, firmly planting their feet in reality, and pointing them in the direction of racial justice.

Roy L. Brooks. Warren Distinguished Professor of Law, University of San Diego School of Law.

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