By: Rachel F. Moran
For legal scholars, the decades after Brown have posed
a dilemma. Race-conscious remedies have been used for decades, and
the evil of racism that they addressed seems to be in
decline. Yet, racial inequality remains a robust feature of
American life by nearly any commonly accepted measure of
well-being. Here, I would like to look at two responses to
this problem, one by law and economics scholars and the other by
critical race theorists.
For economists, rational choice lies at the heart of any account
of human behavior. Economists give relatively little weight
to animus in explaining the persistence of racially disparate
outcomes in the marketplace. These scholars focus on
mechanisms that derive from rational self-interest rather than
irrational antipathy to others. The racial disparities that
result are considered unintended rather than malicious, a byproduct
of the predominance of same-race families, friendships, and
neighborhoods.
The field of critical race theory is a younger and more unruly
discipline than law and economics. Critical race theorists presume
that racism remains commonplace. As a result, critical race
theorists reject claims that racial disparities are an accidental
byproduct of otherwise neutral practices. Critical race
theorists also question traditional civil rights models that make
individual animus a hallmark of defining the wrong. Unlike
economists . . . race scholars reject accounts that treat
persistent inequality as a byproduct of otherwise rational
shortcuts and innocent personal relationships. According to
critical race theory, both individual cognition and social
structures remain tainted by the legacy of racism.
Clearly, the fields of law and economics and critical race
theory have adopted different approaches to understanding
contemporary racial inequality. Yet, both schools of thought concur
that old-style animus, standing alone, can not explain the
persistence of discrimination and subordination. Even if
anti-discrimination laws should continue to target animus,
economists and critical race theorists have asked whether more
should be done to reach statistical discrimination, segregated
social networks, unconscious bias, and institutional practices that
perpetuate racial differences. Not surprisingly, the answers
have been complex and at times contradictory, revealing the
profound uncertainty that surrounds the future of racial justice in
America.
Today, there seems to be a consensus that old-fashioned racism
is on the decline. The very success of civil rights remedies
has been the undoing of their traditional justification as a way to
eradicate animus. For many, the racial divide looms large and
unbridgeable, however pure the motives of those on the privileged
side of the color line. Segregation and inequality remain a
pervasive feature of everyday life, and the perplexing question is
whether law can reach this social problem without a bigot to
blame. Civil rights law is at a crossroads, searching for
alternative explanations and strategies. Though their answers
are distinct, both economists and critical race theorists have been
willing to move beyond animus to account for racial disparities and
tailor remedies accordingly. Only time will tell whether our
constitutional law and culture are similarly prepared to embrace
these ideas as a way to reinvigorate the quest for racial
justice.