Saturday, October 24, 2020


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Excerpted From: Jonathan D. Glater, What We Wish For: In the Wake of Brown V. Board, 11 Alabama Civil Rights & Civil Liberties Law Review 113 (2019) (132 Footnotes) (Full Document)


JonathanGlaterIf the advocates who challenged de jure racial segregation in the nation's public schools had somehow gained access to technology now used to measure the biological effects of race discrimination, no doubt they would have offered such evidence of tangible harm in court, and it seems likely that the Justices would have cited and relied on it. After all, the unanimous opinion in Brown v. Board of Education (Brown I) cited to far less sophisticated and nuanced evidence of psychological damage, suggesting that the Justices craved a concrete manifestation of harm to black schoolchildren to ground their reasoning. Modern analysis of the effects of perceived discrimination offers the tantalizing possibility of quantifying harm, shifting it from the realm of the murky and psychological to the concrete and chemical. How much stronger might claims of discrimination be, how much more persuasive descriptions of complex and longstanding structures and practices that subordinate on the basis of race, if such evidence exists?

Today, this sort of evidence is increasingly available. Contemporary neuroscience has identified potential symptoms of racial oppression, such as elevated levels of chemicals released by the body in response to stress, low birth weights and corresponding higher risks of subsequent health problems, and higher risk of infant mortality and maternal mortality, that are susceptible to measurement. Some of these adverse health outcomes may directly and indirectly also hamper performance on widely used assessments of ability, such as language ability and scores on standardized tests, as well as academic performance in school.

These subtle injuries, which have surfaced well after Brown I, work to preserve inequality of educational opportunity. It is likely that physical manifestations of the effects of discrimination were always present, the consequences of blatant injustice, but only with the formal destruction of segregation by force of law have they become visible. While these stealthier dangers were submerged, the focus of reformers had to be on the obvious and overt, not the submerged and hidden. Buried forms and effects of race discrimination, the challenges of implicit bias, the impact of microaggressions, the complexity of the relationship between racial subordination and socioeconomic inequality--while Jim Crow was the law of the land, these had to be second-order concerns, problems to be analyzed and addressed at a later time. Civil rights activists took on a giant and won, and in the cold light of our present day, we can see how that giant in so many ways shaped the world to meet his needs and deny those of others.

Yet to use evidence of medical impacts of racial oppression in arguments for remedying longstanding racial inequity is to grasp a sword that is very much two-edged and, as this Article contends, that must be wielded with great care. Focusing on injury to black people avoids taking on the more difficult assessment of the wrongfulness of race discrimination, which would be morally indefensible even in the absence of identifiable injury. A better understanding of the harms of race discrimination may bolster not advocates of greater equity but reactionary defenders of the status quo, who oppose efforts to redistribute opportunity in favor of those historically oppressed and excluded. The former group may contend that this new evidence shows the need for drastic reform; the latter may instead argue that it establishes the existence and intractability of black people's deficits.

This essay has two goals. First, it aims to identify critical advances in our understanding of the nature and effects of race and class subordination in the context of education and to explain how they operate in an environment in which overt discrimination on the basis of race is ostensibly prohibited by law. Second, it identifies the risks of deployment of this emerging evidence of the harms of discrimination in pursuit of reforms intended to achieve racial equity. The discussion that follows thus begins with a description of recent research by neurobiologists looking for physical manifestations of the impact of perceived discrimination on victims. These depressing findings reveal that the stress of subordinate status is quantifiable and the health effects predictable. At the same time, this research may suggest novel responses to discrimination, creative ways to develop remedies for those on its receiving end. There is a certain irony in this research in that it substantiates the assertion in Brown I that segregation of black students is harmful to their health--an assertion that has received much criticism for its reliance on an infamous study of children's preferences for dolls of different complexions. Modern analyses are considerably more precise, sophisticated, and nuanced and, for that reason, more persuasive and disturbing.

The first Part of this Essay describes contemporary research on the potential adverse health effects of race discrimination and imagines the arguments that could be made for judicial or legislative efforts to ameliorate inequity.

Part II then takes up the question of whether judicial doctrine, in particular, has developed in such a way that courts may be receptive to these fairness arguments. This Part very briefly traces the development of the doctrine interpreting the federal Constitution to support the conclusion that the answer is likely no. This Part then returns to the profound risks, briefly alluded to above, that accompany any attempt to make legal arguments that leverage findings of harm to health related to race-related stress and disparities in educational opportunity and achievement.

Part III concludes.


Increasingly sophisticated technology has enabled neuroscientists to pursue the concrete measurement of biological characteristics that correlate with perceived racial discrimination. Researchers have measured levels of chemicals in the body indicative of relatively elevated levels of anxiety in black people, consistent with the experience of racism as a stressor. The effects may be passed on from parents to their children, thus also passing on some level of acquired harm. Further, researchers have begun to look for, identify, and measure biological symptoms that correlate with socioeconomic status. Researchers have found differences in the physical development of the brain, suggesting that advantages of class privilege affect children's cognitive abilities and performance. Tracking of children over time indicates that these differences do not narrow.

At one level, these findings should not surprise. Who can be surprised that wealth and privilege confer significant benefits? Yet the form of advantage is deeply troubling, not least because of the complexity of developing policy interventions aimed at ultimately closing gaps in opportunity. That challenge is not made easier by the lack of clarity on how the experience of discrimination or the impact of socioeconomic status relate to the neuroscientists' findings. We know much more than the lawyers and judges did in 1954 about possible effects of discrimination on the body; we know much more about the workings of the brain of a child subject to such harms than did psychologists experimenting with dolls of different hues, but we do not yet know enough. This is no fairy tale and whatever sort of tale it is, it is far from over.

Yet to build arguments for racial equity on these harms, however well-rendered, tangible, and, perhaps, more comprehensible to judges, is a dangerous strategy. Reliance on this new evidence carries the same risk that reliance on state-of-the-art psychology did in the Brown I era: that subsequently, the focus on concrete injury elides attention to the immorality of the underlying racial discrimination. Attention to the harm to the victim may facilitate ignorance of culpability of prior, exclusionary policy and practice. Attention to the harm to the victim may place claims for equity in a doctrinal paradigm that limits remedies to cases of intentional discrimination, which, in the absence of an individual bad actor, is extremely difficult to establish to the satisfaction of a court. And making concrete the particular form of the harm, which may be tied to cognitive performance and consequent academic performance, may in turn be tied to well-established, centuries-old narratives of black intellectual inferiority. Those espousing such views may deny racism and instead claim to be relying on science. This new evidence of the potential harms of race discrimination and socioeconomic disadvantage, which often go hand-in-hand, must be deployed with great care and with attention to history and context, if it is to promote greater equality of educational opportunity and not to justify an inequitable status quo. This is not a new challenge; the advocates who argued against the segregation of schools in the decades leading up to the Brown I decision used the imperfect, double-edged tools they had then, and the advocates of the present day must do the same.

Professor of Law, University of California, Irvine.

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