Wednesday, October 23, 2019



Excerpted from: David Simson, Whiteness as Innocence, 96 Denver Law Review 635 (Spring, 2019) (360 Footnotes) (Full Document)

David SimsonThe ideal of equality has been an elusive aspiration since the founding of the United States. The quest for equality and freedom, after all, was one of the principal battle cries that led the American colonies to declare their independence and suffer through a long Revolutionary War. Racial equality, too, has long been an American ideal, and has also been at the center of much pain and suffering on American soil; the Civil War and the conflicts surrounding the Civil Rights Movement of the 1950s and 1960s only being the most prominent examples. Yet, in matters of racial equality, it seems that the United States is mired in persistent cycles of progress and retrenchment. Slavery was followed by emancipation, which was followed by segregation. Segregation was followed by desegregation and antidiscrimination, which was followed by de facto resegregation.

Our current moment is a microcosm of this broader pattern. The election of President Barack Obama in 2008 engendered hopes among many that a different kind--a more lasting--progress had been made toward racial equality and harmony. Yet, these hopes have been dashed by subsequent events and, in particular, the 2016 Presidential Election. Today, we live in a time of racially inflected immigration bans and border walls. These bans and walls are said to be necessary to keep at a distance racialized groups of people that are alleged threats to the very foundation of the United States. Notwithstanding their exclusionary and anti-egalitarian character, both bans and walls are implicitly alleged to be consistent with America's fundamental values as part of a program said to “Make America Great Again.”

We also live in a time in which many people believe that efforts to accomplish racial integration and inclusion and address a long history of racial oppression and subordination, the practice of affirmative action foremost among them, have swung in the wrong direction. These efforts, it is said, not only fail to help those who they are intended to benefit, but they affirmatively hurt their own set of victims. The influence of these sentiments is illustrated by the fact that the legality of affirmative action is perpetually on life support, and a new set of challenges is coming.

It is somewhat popular to treat the current moment as exceptional, unusual, outside the norm. And, in some respects, this is perhaps fair. But with respect to ideas about racial equality and their treatment by the law, the current moment is also in important ways a continuation of patterns that trace back a very long time. These continuities relate to the ways in which a country and legal system officially dedicated to equality, including racial equality, and the rule of law have managed to justify the reality of a persistent racial hierarchy that favors those who count as “white” over all others.

This Article argues that a significant part of the heavy lifting was done through what I call “Whiteness as Innocence” ideology. This ideology combines two extremely powerful concepts in both law and public imagination: equality and innocence. It fuses them into a legal thought system that predictably prioritizes the interests of whites, yet masquerades as racially egalitarian and impartial. In this way, Whiteness as Innocence ideology has continuously legitimized the dominant status of whites in the racial hierarchy of the United States by making it seem consistent with American social and legal commitments to the principle of equality. Thus, Whiteness as Innocence ideology creates what social psychologists Jim Sidanius and Felicia Pratto have called “plausible deniability, or the ability to practice discrimination, while at the same time denying that any discrimination is actually taking place.”

Equality as an abstract formal principle commands that “likes should be treated alike” and “things that are unalike should be treated unalike in proportion to their unalikeness.” Scholars have noted broad societal agreement on the fundamental importance of following the command of equality. Importantly, the Supreme Court has stated that this principle forms the basic constitutional command underlying the Equal Protection Clause of the Fourteenth Amendment. However, while this formal concept of equality is powerful in establishing the important principle of consistency, by itself it does not “tell us anything substantive” about what kinds of equality should be considered acceptable or just. Substantive principles and values that are external to the idea of equality are necessary “to decide which people we want to treat the same, and which differently.”

This Article argues that, in the context of antidiscrimination law and race-conscious remediation, Whiteness as Innocence ideology is the system of legal reasoning by which the formal principle of equality is filled with the substantive principle of white racial dominance via invocations of white innocence. Under Whiteness as Innocence ideology, legal decisions on who is “alike” and “unalike” and what constitutes “alike” and “unalike” treatment are made in ways that favor the interests of whites as a group and at the same time protect the dominant social status of whites from egalitarian critique. The concept of innocence plays the critical role of legitimizing these racially biased equality determinations by presenting them as decisions about responsibility, fairness, and desert rather than exercises of racial power and self-interest.

In playing this role, the idea of innocence has taken on a malleable meaning. It has also arguably been racialized and become attached to the meaning of “whiteness” itself--illustrating in powerful ways the socially and legally constructed nature of race. This racialized innocence concept has shaped important aspects of American law governing racial equality throughout American history. Perhaps the most important contemporary example is the doctrine of strict scrutiny that developed in the 1970s and 1980s and continues to govern most government actions that use racial classifications. But there are important Supreme Court decisions and doctrines, both before and after that time period, that also arguably bear the imprint of Whiteness as Innocence ideology-- including decisions issued just this past term. Whiteness as Innocence ideology seems to play an especially important role during times when the stability of existing racial hierarchy, and the privileged position of whites within it, is uncertain. In such times, the ideology has been mobilized to protect existing hierarchy from significant interference through law, and it has often succeeded in doing so.

This Article uncovers and describes Whiteness as Innocence ideology and its influence on the law of racial equality and race-conscious remediation. Its aim is mostly descriptive. I want to show how this ideology has continuously helped to square the circle of making America's tenacious racial hierarchy legally consistent with the country's egalitarian aspirations.

In Part I, I first explain key Whiteness as Innocence concepts. I explore different definitions and meanings of innocence, as the term interacts with whiteness, and relate them to different types of race-conscious remedies cases. I also introduce what I call “white innocence legal moves,” that is legal arguments that connect ideas about whiteness, innocence, and equality in ways that protect the racial privilege of whites.

In Part II, I then show how these moves, and Whiteness as Innocence ideology more generally, operated in an important set of Supreme Court cases in the 1970s and 1980s to put the brakes on ongoing projects of race-conscious remediation. I discuss these cases first because they explicitly invoke the innocence of alleged white “victims” of race-conscious remedies and thus make the operation of Whiteness as Innocence ideology more tangible. Indeed, it was these very cases that led to an initial set of scholarship on the idea of white innocence whose insights I partially rely and build upon. In addition, Whiteness as Innocence ideology, as applied in these cases, came to influence the following major aspects of today's race-conscious remedies doctrine: (1) the hostile standard of review for race-conscious decision-making, regardless of who benefits from it; (2) limitations on the purposes for which race-conscious remediation can be used and the types of institutions that can properly engage in it; and (3) strict limits on the implementation and permissible forms of race-conscious remediation. Thus, it is important to analyze this formative period.

In Part III, I briefly expand the scope of the inquiry both backward and forward in time to show the long historical arch of Whiteness as Innocence reasoning. The ideology arguably reaches back as far as Dred Scott v. Sandford. The recently decided cases of Abbott v. Perez and Trump v. Hawaii show its continued influence today.

In Part IV, I offer initial thoughts on the normative and doctrinal implications of my analysis.

[. . .]

The United States, perhaps today more so than in quite some time, is caught between the reality of persistent racial hierarchy and prejudice on the one hand, and aspirations toward equality in general--and racial equality in particular--on the other. As this Article has shown, legal ideology has long played a significant role in supporting America's racial hierarchy, has warded off many legal attacks on this hierarchy, and yet in the process has made the hierarchical end-result seem consistent with principles of equality. Ideas about the need to protect “white innocence,” in particular, have asserted a strong influence on the way in which the legal system tells us to think about whether racial injustice and inequality exists, who is harmed and victimized by it, and what we are allowed to do about it. The resulting ideology, what I call Whiteness as Innocence ideology, is grounded in racist premises, and it has a long history that we can trace from some of the most vilified legal cases of our past to the very present. It also has many negative implications and effects. We ought to make this ideology visible, discuss and reject it, and build a more equitable future free from its constraints.

Bernard A. and Lenore S. Greenberg Law Review Fellow, UCLA School of Law.