Discrimination in America: We must pay attention to more than intention

I entered a convenience store in Milwaukee, Wisconsin on a warm summer day in 2016. The shop was less than two miles from City Hall, and less than 10 from my home. I was dressed plainly: a tan hat, a plain white t-shirt, black leggings and a dark green book-bag. Upon entering, I gave the cashier a cursory nod. 

He looked me up and down, glanced meaningfully at his co-worker, and then looked back at me. “Follow her,” he said. His co-worker proceeded to follow me up and down the aisles, eyes not leaving my body until I exited the store. 

My father, mother, grandparents and millions of other black Americans have encountered this form of racism: intentional discrimination used to intimidate and reinforce prejudiced power dynamics. This form is observable and obvious, but others are not. 

Some types of racism are harder to discern. They are hidden within coded words, “odd trends” and “recurring coincidences.” These patterns — such as disproportionately high coronavirus (COVID-19) mortality rates among black Americans and low household incomes and wealth for black families — are products of old, explicitly racist policies. To obtain a comprehensive understanding of the ways racism impacts people’s lives, we must consider both its overt and covert forms. 

Take homeownership in the United States as an example. According to the U.S. Census Bureau, the fourth quarter 2019 homeownership rate for “non-Hispanic White Alone” householders was 73.7 percent, compared to “Black Alone” householders at 44 percent. To understand this disparity, we need to understand its history. 

The United States government began to “redline” American cities like Baltimore in the 1930s, classifying neighborhoods based on their perceived “credit-worthiness.” “Red” areas, which were predominantly black neighborhoods, received little to no investment. “Green” areas, mostly populated by white Americans, experienced a deluge of political and economic investment. Consequently, white Americans purchased homes and other assets, benefiting from policies that kept tax rates on capital gains low. 

Julia Ott of the New School explained in her 2019 piece Tax Preference As White Privilege in the United States, 1921–1965 how low tax rates on investments and assets like homes allowed white Americans, who held these assets, to become wealthier. Their accumulation of wealth enabled them to invest more in their neighborhoods  and other assets, while simultaneously exacerbating existing racial inequities. 

Black Americans were prohibited from buying homes due to strict racial covenants and often deprived of opportunities to receive higher incomes. Although they could theoretically benefit from low taxes on capital gains, few black Americans owned assets, like houses, in the first place. 

There were certainly victories. The passage of civil rights legislation in the 1960s and 1970s transformed the political arena, making it difficult for racist government officials to promote racist policies. Unfortunately, it did not make it impossible. 

As society changed, they changed their language. It was not that black people “could not handle” wealth, but they “didn’t work hard enough” to secure it. Policies to keep taxes on capital gains low were framed in economic, not racial, terms. People “stopped seeing color,” and consequently, did not recognize the problem. 

Within a few decades, government officials and everyday Americans had adopted a lexicon for discrimination that excluded race. This colorblind rhetoric allowed white people to reap the benefits that accompanied their whiteness without having to come to terms with the source of their privilege. It also helped government officials distance themselves from the racist origins of discriminatory policies.

When the language used to discriminate changed, certain legal tools for combating discrimination became less effective. For example, portions of the 1964 Civil Rights Act and the Equal Employment Opportunity Act of 1972, only subjects those who “intentionally engage” in discriminatory employment practices to legal consequences. Unsurprisingly, it is difficult to prove discriminatory intent when discriminatory policies are framed in coded “non-racist” terms.

However, other tools have become increasingly important. For instance, in the Supreme Court case Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (2015), the Court ruled that “disparate impact claims are cognizable” under the 1968 Fair Housing Act. 

This means that if a housing practice disproportionately harms members of a specific group, like black Americans, that practice must be prohibited, even if the practice was conducted without discriminatory intent. Disparate impact claims can protect racial minorities who suffer the adverse effects of “unobservable” discrimination. Furthermore, they compel others to take these racial disparities seriously. 

So where does this leave us? Even with legal tools like disparate impact claims, the picture for racial minorities in America may still seem bleak. But the situation is not hopeless. 

There has been a surge of race-conscious legal theory over the past decade. More people are questioning patterns of inequity and recognizing their own biases. Americans are more eager to engage in all forms of political participation. There is a long way to go, but things are changing.

We must remain cognizant of the overt and “visible” racism we see on golf courses, in Walmart’s, during police stops and even in Milwaukee convenience stores. Unfortunately, we still live in a nation where a cursory nod is a threat and melanin is a warning. However, now more than ever, we cannot ignore the unobservable covert forms of racism that reinforce prejudiced power dynamics and undergird the stark racial disparities we see today. 

As of April 30, black Americans comprised over 40 percent of all confirmed cases (whose races are known) of COVID-19 in Maryland, even though they are roughly 30 percent of the population. States across the nation report similar numbers. As the Centers for Disease Control and Prevention suggests, this racial disparity and others are likely a product of the economic and social conditions that discriminatory policies produce. 

We cannot afford to write this off as an “odd trend” or “coincidence.” This is more than a “strictly political” issue. It is a matter of life and death. 

For this reason, we must abandon the notion that intent is the sole indicator of discrimination. We also need to change the way we talk about race by, first and foremost, talking about race. Reluctance to acknowledge the fundamental causes of racial disparities and the legacies of racist policies will inhibit our ability to rectify the harms against black Americans and save lives. The journey ahead is arduous, but this is a good place to start.

Turquoise Baker is a senior majoring in Political Science and International Studies from Milwaukee, Wisconsin. She is an intern at Waverly Main Street in Baltimore.