It is a central problem in the great American conversation about race to explain persistent racial inequality. The dominant narrative tells us that, historically, racial inequality was caused directly and simply, by explicit and intentional racial discrimination based on unreasoning race hatred. The paradigmatic examples are slavery and segregation; the icon is Bull Connor. Together, the Civil War and the civil rights movement comprise America's delivery from this original sin. In law, this redemption is reflected in the Emancipation Proclamation and in the fulfillment of the Civil War-era constitutional amendments [FN6] through Brown v. Board of Education and the antidiscrimination legislation of the civil rights era.
Within this narrative, race discrimination is the problem, and it is an individual character defect. Applying methodological individualism consonant with law and economics analysis, racism is defined as an irrational preference, or “taste,” an individual sin of commission. But we have all had the light revealed to us. And slowly, the old ways are said to be dying away. Continuing racial inequality is seen as a dwindling vestige of this tainted past. As race discrimination fades, racial inequality will surely follow. This is the hopeful sentiment expressed by Justice O'Connor in upholding a race-conscious law school admissions program: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
But we are living through the fifty-year anniversaries of many of the landmark events of the civil rights movement, and by many convincing analyses, deep and pervasive racial inequality persists. How can such inequality persist in the modern, enlightened era?
The exhausted contestants in this arena are racism and merit. Although color-blindness has clearly prevailed as the dominant cultural paradigm, people of color continue to sense that the equal opportunity that color-blindness was supposed to deliver has never arrived. With the limited vocabulary that the mainstream narrative offers, however, racial equality advocates have had to theorize increasingly subtle forms of unconscious or hidden racism. Whatever the substantive merit of these theories, they have come up against a mainstream public mindset in which the majority of people, unsurprisingly, are convinced that they are not the evil racists of legend. Rather than confronting whatever forms of racism remain, this majority has instead adopted the philosophy, grounded in the rhetoric of classical economic theory, that impartial markets determine outcomes based on merit.
Quinnipiac Law Review
Brant T. Lee, The Devil in the Details: On Intelligent Design, Racial Conspiracy Theories, and the Theology of Whiteness, 26 Quinnipiac Law Review 57 (2007).