Tuesday, October 16, 2018

Osagie K. Obasogie

Excerpted from: Osagie K. Obasogie, Can the Blind Lead the Blind? Rethinking Equal Protection Jurisprudence Through an Empirical Examination of Blind People's Understanding of Race, 15 University of Pennsylvania Journal of Constitutional Law 705 (January, 2013) (131 Footnotes)


This Article's contribution is its empirical demonstration that visual understandings of race are created largely by social practices rather than mere observation--a contribution that is related to yet extends social constructionists' demonstration of how meanings attach to bodies. These findings suggest that visual understandings of race flourish regardless of vision; social practices produce a visual understanding of race that compels even blind people to “see” race and live their lives around the existence and social significance of racial boundaries. Sighted people's vision prevents them from grasping the role of social practices in producing the salience of race. Blind people's inability to be misled by the seemingly self-evident nature of race brings the production of race's visual salience into focus, which allows us to understand the significance of social practices to the perceptibility of group differences in race and beyond. Gerald, a blind respondent, nicely summarizes this concept:


Race is very often not a mystery to blind people. Which is in a sense kind of sad. I think that sometimes [sighted] people look at blind folks and they think [that] these people can show us the way to a kind of Star Trek race blind society. And it would be great if we could do that. But we're just as much a victim of racial prejudice, stereotypes, and misconceptions as anybody else. And the fact that we're not clued to it directly by vision doesn't, in my mind, change that a bit. I think that I suffer all of the unfortunate characteristics of my upbringing regarding race that my [sighted] brothers and sisters do.


Ginny echoes this sentiment: “I really don't think it's a matter of vision truthfully. . . . I was so amazed when this professor of mine had the premise [[that blind people do not understand race.] . . . He said ‘well then you're not prejudiced at all, are you?’I thought [it's] so odd that he thinks that [it] is all about vision.”Mason also corroborated this thought, noting that race is “very much a learned thinking and behavior that doesn't have much to do with what you can see or not.”


This empirical study of blind people's understandings and experiences with race is relevant to equal protection to the extent that it calls into question the “race” ipsa loquitur sensibility embedded in this jurisprudence and suggests that it may distort important aspects of this area of law. This section reviews some of the existing critiques of the scrutiny inquiry, colorblindness, and the intent doctrine to situate the contribution made by this Article's normative claim: that “race” ipsa loquitur must be thoroughly eviscerated from equal protection in order to pursue a new orienting theory of race that is sensitive to the ways in which social practices produce its salience. This section will discuss how reorienting equal protection along these lines will lead to a more just and equitable jurisprudence.


A. The Scrutiny Inquiry


Kenji Yoshino offers the most critical assessment of how the visibility of groups' traits shapes the Court's determination of whether a plaintiff is a member of a suspect class for equal protection purposes. Yoshino is primarily concerned with what he calls equal protection's assimilationist bias in which there is a presumption that groups distinguished by visible traits are particularly deserving of heightened scrutiny; subjugating groups without visually distinguishing traits to rational basis review effectively encourages them to assimilate to avoid discrimination.  Yoshino sees this as an illegitimate response to discrimination deserving of greater constitutional protection--such as measures that discriminate against gays and lesbians--and therefore argues that the immutability/visibility prong should be eliminated since it “[is a] bad prox[y] for either substantive inequality or processual powerlessness.”


But in critiquing the limits of the visibility prong to adequately capture which groups should be in or out, Yoshino's perspective still lends itself to reifying the dividing line between “visible” and “invisible”--at least to the extent that this boundary is not the subject of critique and remains coherent in his formulation.  Yoshino aptly notes the socially constructed notion of race--in terms of the way social meanings attach to bodies--and questions the stability of the Court's distinction between corporeal and social traits in privileging the former for heightened scrutiny. He argues that “there is no such thing as a purely biologically visible trait, for visibility is always relational, requiring a performer and an observer.”  This acknowledgement of visibility's social context is more sophisticated than other equal protection discussions on the visibility of group traits. But, Yoshino's emphasis on relationality and social context can and should be pushed further, especially given the empirical data discussed in Part III. Visibility, and specifically the salience of particular group traits, is not simply relationally known, ping ponging between the dichotomous categories of “visible” and “invisible” depending on context and audience. This account does not sufficiently critique the coherency of “visibility” and “invisibility” as categories that capture race as not only something that is merely visible but salient. Here lies the danger of reification; “visibility” and “invisibility,” though conceptualized as relational, can nonetheless sediment as an objectively known reality. To the contrary, it is important to emphasize that there is a productive genealogy behind the salience of certain group traits that embed themselves in social structure that constitutes our ability to think, see, and be struck by what we see in certain ways. Thus, the constitutive understanding of vision offered by this Article provides a richer account that goes beyond a discussion of the contexts that allow individuals to see in particular settings or relations and draws attention to the structural capacities that orient the way entire societies visually engage with the world. It is the broader, structural understanding of race and vision that this Article identifies as a constitutive theory of race that complements yet extends existing social constructionist discourses.


This matters because the lack of sociological nuance in the current three-prong approach inhibits a robust, and arguably more faithful, application of equal protection principles. By demonstrating the social practices that produce the visual salience of race, the empirical data allow us to transcend the fragmented constitutional remedies that orient around the visibility of group traits to have a greater appreciation of how discriminatory social practices produce visible lines of group difference. Thus, changing the directionality of this relationship--from visible traits--> race salience to a different model where race salience (socially produced)--> visibility of traits--allows for a more flexible understanding of how shifting social attitudes can produce, highlight, or minimize the visibility of certain groups depending on social contexts.


Therefore, the take-home doctrinal point from putting these empirical findings in conversation with equal protection's scrutiny inquiry is that treating race as self-evidently known and salient traits that justify the Court's special solicitude trivializes equal protection by framing constitutionally impermissible discrimination as something that starts from the visual perception of obvious human difference. Instead, the empirical findings discussed in Part III suggest that courts should examine the social practices that make certain human traits salient in the first place. Re-orienting the scrutiny inquiry to focus on these social practices as a constitutional problem of first concern opens up a jurisprudential discussion of how the discriminatory treatment of certain groups currently not considered to be a suspect class--such as homosexuals and poor people--may nevertheless merit more than mere rational basis review due to the history of discrimination and current practices that produce their social salience (at times visible, and at times not) as targets for state-sponsored classifications that work against their group interest.  Such an approach would alter the equal protection inquiry to be sensitive to the social practices of homophobia and classism that repeatedly make homosexuals and poor people the subject of discriminatory state actions, leading to a more sociologically robust jurisprudence. This might engender a more coherent and consistent equal protection jurisprudence that places justice rather than deceptively self-evident categories of “visible” and “invisible” at the heart of the inquiry.


B. Colorblindness


Part II.B.2. discusses the current literature critical of colorblindness, where several scholars have identified the social and political circumstances giving rise to a new form of politics and constitutionalism that discourages race consciousness in equal protection jurisprudence, even when done to remedy ongoing inequality linked to past harms. In this Article, I have taken colorblindness as a metaphor seriously in drawing attention to how its coherence turns upon a theory of race that frames its salience as a function of visual cues to imply that blindness or non-recognition can lead to a racial utopia. The significance of this metaphorical coherence is not merely literary or rhetorical; empirical studies demonstrate how metaphors play upon our brains' cognitive structure to fundamentally shape how we understand the world and our sense of justice. Therefore, the data discussed in Part III disrupt the seemingly intuitive nature of the colorblind metaphor by demonstrating that its central organizing principle--that the salience of race is primarily a visual phenomenon and that non-recognition in and of itself facilitates equality--is empirically inaccurate. As the many blind respondents report, race is experienced and understood as a visually salient characteristic in a manner that is no less complicated or fraught than it is for their sighted counterparts.


Disrupting the colorblind metaphor's coherence through empirical methods is important. By offering qualitative data showing that the operating assumption behind the metaphor is simply inaccurate, the metaphor is rendered incoherent in a manner that raises piercing questions for the ideology and jurisprudence it supports. This is not to say that the metaphor, in and of itself, is a primary driver of the ideology and jurisprudence. Rather, it is to acknowledge that the metaphor leverages our cognitive abilities to shape our worldviews in a manner that gives undue legitimacy to an approach that can and should be disrupted by the available empirical evidence. By focusing on the social practices that produce individuals' ability to see the world in particular ways, this disruption draws attention to the need for alternative conceptions of society and human relationships that reflect reality. Reorienting the normative commitments to equal protection around constitutive social practices rather than “race” ipsa loquitur suggests that colorblindness and its concomitant jurisprudence of non-recognition given coherence through the metaphor should be retired. Taking social practices seriously as the stimulant of race becoming visually salient suggests a new understanding of race that might inform this jurisprudence in a manner that fully engages context and racial hierarchy in fulfilling equal protection's mandate.


C. Intent Doctrine


Legal scholars have used theories of unconscious bias to critique the discriminatory intent requirement since the late 1980s. 12 Implicit bias research has resurrected the critique that requiring a legal finding of intent misses how racism operates in real life. 12 By providing quantitative measures of bias through experimental measures such as the Implicit Association Test (“IAT”), this area of research has given greater empirical credence to notions that individuals often harbor unintentional sentiments that affect their human interactions--a perspective that raises severe if not fatal challenges for legal standards requiring direct proof of malice.


The prospects of using these findings to inform law has stirred a zealous debate over whether courts and legislatures should give credence to studies based upon unconscious or implicit bias. Not everyone agreess that implicit bias research is ripe enough to justify broad sweeping changes. For example, Gregory Mitchell and Philip Tetlock argue  that implicit bias measures suffer from serious methodological shortcomings pertaining to measurement,  association,  and predictability in real world settings.  These concerns are not entirely without merit. But, for the purposes of this Article, the IAT and other critiques of discriminatory intent based upon unconscious bias may also be limited to the extent that they largely speak to the social construction of race--how meanings come to attach to particular bodies--and not how race comes to be experienced and understood as a salient part of the social and legal world. While it is crucially important to flesh out the cognitive biases that lead meanings to unconsciously attach to certain bodies in a manner that reflects social constructionism, it is equally important to understand the constitutive nature of how social practices produce the very visibility and coherence surrounding individuals' experiences with racial difference. Much of the intent inquiry-- theoretically, historically, and doctrinally entangled with colorblindness  --orients around a particular reductionist understanding that disaggregates race from social context and hierarchy to recast it as a discrete trait that is purposefully targeted and presumptively self-evidently known. The intent doctrine replicates a discreteness regarding race and how it is apprehended as well as comprehended that is sociologically inaccurate; social practices, not merely discrete, acontextual racial markers of human difference, give rise to the visual salience of race that often leads to discriminatory actions and experiences. To the extent that the findings from the empirical components of this Article draw attention to the role of social practices in producing the visual salience of race, I argue that the intent doctrine also needs to be substantially revisited in favor of an approach that takes social practices, context, and racial hierarchy seriously.



. Associate Professor of Law, University of California, Hastings College of the Law with a joint appointment at University of California, San Francisco (“UCSF”) Department of Social and Behavioral Sciences. B.A. Yale University; J.D. Columbia Law School; Ph.D. University of California, Berkeley.

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