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Excerpted From: Rachel D. Godsil and Sarah E. Waldeck, The New Tipping Point: Disruptive Politics and Habituating Equality, 70 Emory Law Journal 1507 (2021) (152 Footnotes) (Full Document)


GodsilandWaldeckOn May 25, 2020, we saw yet another Black man die at the hands of police and white “epistemologies of ignorance” began to crumble. The murder of George Floyd by Minneapolis police officers was captured on a video showing a white officer pinning his knee to George Floyd's neck for more than nine minutes as others helped hold him to the ground. That same day, a white woman in Central Park wielded a potentially deadly power play at a Black man who asked her to leash her dog, calling 911 to report, “[T]here is a man, African American ... I am being threatened by a man in the Ramble[.] [P]lease send the cops immediately.” This video also went viral. Both events occurred in cities generally associated with liberal politics, and both vividly displayed white people treating Black men with a blatant disregard for their humanity. The videos played against the drumbeat of a global pandemic in which deaths occurred at significantly higher rates in Black communities than in white communities.

With protests beginning in Minneapolis and quickly spreading to other cities and across the globe, demands to end “systemic racism” moved from the streets to statements by leaders of Fortune 500 companies. A wide range of corporations--from Apple to FitBit to Sephora--announced concrete changes to their business practices aimed at reducing systemic racism. After speaking to two dozen CEOs, the head of the Ford Foundation reported that “everyone is riveted .... [T]he murder of George Floyd has gripped the psyche of white Americans like nothing I've seen in my lifetime.” What occurred in the spring and summer of 2020 did not just focus attention on the racist actions of individuals, but instead sparked an awakening to the realities of systemic racism, particularly anti-Black racism.

Finally, actors in public, private, and civil society--such as judges, prosecutors, schools, universities, corporations, media content makers, and foundations--are showing a broader interest in understanding systemic racism. Individuals and institutions are seeking to determine what might be in their sphere of control. Their actions--the actions of those who now care--may have some positive effects. They can evaluate the extent to which their policies and procedures reinforce existing social structures and then seek to enact reforms that will create meaningful change. But this will not be enough. Our societal structures were formed by governmental actions designed to maintain both racial hierarchy and separation. Until the government dismantles the societal structures it created, attempts to create an anti-racist America will be Sisyphean.

These governmental policies are what we have deemed “inceptive structures” racialized policies that support “whiteness.” They are at the root of systemic racism. Their harms have been exacerbated over time by “compounding structures” that perpetuate the racialized benefits that the inceptive structures created. These compounding structures may not have been consciously constructed to benefit whiteness, but they too are responsible for systemic racism.

This Essay argues that the events of 2020 opened a window--albeit a narrow one--to implement the substantive policy changes necessary to dismantle structural injustice and systemic racism. We build on the work of political theorist Clarissa Rile Hayward, who wrote in 2017 that the “politics of disruption” could generate conscious awareness of structural injustice by interrupting what philosopher Charles Mills named white “epistemologies of ignorance,” and that the combination of this awareness and the desire to see oneself as ethical might combine to “produce a shift in [the] disposition[s]” of people who had never before taken action against structural injustice.

Critically, even those whose hearts and minds remain closed to the realities of racism may nonetheless embrace legislative policies that seek to remedy structural injustice. Governmental action that is economically or socially advantageous for Black people also tends to be advantageous for people of other races and ethnicities. This means that most people will benefit from dismantling inceptive structures and redistributing or realigning the compounding ones. Because of this widespread benefit, policies that correct and eliminate systemic racism can garner widespread support. As these policies become law, they often become politically protected as a result of the concrete benefits they provide. At this point, the United States may tip toward genuine equality. Just as the world in which we currently live has become normalized, we can also become habituated to a world that is free from the structural underpinnings of anti-Blackness.

Part I draws on the work of political theorists and philosophers to discuss the necessity of identifying remedial correctives for systemic injustice. Part I emphasizes that the policies sustaining structural injustice and systemic anti-Black racism are also detrimental to many people of all races. Building on Hayward's work on disruptive politics, Part I then discusses the window of political opportunity that opened in November 2020 and what lasting change may emerge from it. Part II uses examples from housing and transportation to illustrate what kind of remedial correctives are necessary to eliminate structural injustice, as well as how policies that dismantle inceptive structures would be widely beneficial and quickly normalized. The Essay concludes with thoughts on building a cross-racial movement for social justice and a society of belonging.

[. . .]

Schelling's use of a “tipping point” to explain residential segregation was premised on the power of individual preferences for living in a neighborhood with a certain percentage of neighbors of the same race to determine the racial composition of neighborhoods more generally. Not surprisingly, this model has been criticized for ignoring the underlying institutional causes of segregation, including income and wealth effects, and the social structure of cities. Our ultimate goal is for Hayward's “tipping point”--the shift in disposition that compels people to take action against systemic injustice translate into the end of racial hierarchy. This requires capitalizing on the openings provided by disruptive politics to enact policies that dismantle the inceptive structures of systemic racism. Such policies are likely to be widely beneficial, which will help them stick. As we become habituated to their consequences, those policies will also become normalized and the intergroup contact that will follow has an opportunity to create a sense of belonging among people who presently feel divided. This is the point where we will have tipped away from anti-Blackness and toward a more equitable society.

Rachel D. Godsil is a Distinguished Professor of Law and Chancellor's Scholar at Rutgers Law School.

Sarah E. Waldeck is a Distinguished Professor of Law at Loyola University Chicago School of Law.

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