WHAT'S WRONG WITH CALIFORNIA'S RACIAL PRIVACY INITIATIVE:
Why The Government's Simply Declining To Collect Or Use Racial Data Is No Solution To Racial Discrimination

By SHAVAR D. JEFFRIES

Tuesday, Sep. 03, 2002

In 1996, Connerly and his backers succeeded in placing Proposition 209 on the California ballot. Once passed by public referendum, the Proposition prohibited so-called racial preferences in public hiring, education, and contracting.

Now, Connerly has succeeded in obtaining a sufficient number of signatures to place his "Racial Privacy Initiative," or RPI, on the statewide ballot in March 2004. Generally, the RPI would preclude state government from "classifying" individuals by race. Specifically, the RPI defines racial classifications so as to prohibit state government from inquiring into, collecting, or utilizing racial data.

The backers of the RPI argue on their website that "[b]y helping California government stop obsessing about race, RPI will unite us to create a colorblind state for our children and grandchildren, one that is more respectful of the inherently private and complex nature of racial identity."

But in truth, the RPI - like most racial justice approaches premised on naive colorblindness - misunderstands the nature of the problem to be remedied. As a result, it is incapable of serving as a viable, sustainable solution to racial discrimination.

Worse, it may actually hinder the efficacy of other solutions to discrimination by preventing the government from collecting the type of information that would make them work.

Race Is Not A Private Fact But A Social Construct

First, and most essentially, the RPI is flawed because it relies on a false premise concerning the very content of racial identity. The predicate of the RPI is that race is a problem because a private fact has been inappropriately publicized, and inappropriately made the concern of the state, when it should instead be the concern of the individual citizen alone. But that is far from the case.

Race is not a natural or a private fact. Rather, its very character is artificial and social. Human beings are not born with racial identities. Race is a social construct in which value has been ascribed to physical characteristics that, in and of themselves, have no normative meaning. Intrinsically, skin color is no more significant than eye color or hair color.

In America, however, the color of human skin has become shorthand for a myriad of competencies and behaviors. "Race" matters stood in for a broad range of other questions - from queries as fundamental as who truly belongs to the human family, to those as mundane as who can best discern a cornerback blitz.

From that time up to the present, society has attempted to depart, however uneasily and partially, from a system of express racial discrimination. Yet there continues to be a sharp disconnect between aspiration and realization. This disconnect is only exacerbated by the substantially-unremedied economic, political, and cultural consequences of roughly three centuries of unquestioned public and private race-based decisionmaking.

Since Race Is A Social Fact, Only Social Action Can Address Our Race Problem

Precisely because race is not a private fact, but a social construct, private action alone cannot remedy the racialization of skin color. Individuals may, and do, seek to adopt racial norms with respect to their personal dealings that deviate from those transmitted by society, and that is admirable. But despite their actions, prevailing racial norms will inevitably be engaged in almost any interaction in our society; it is inescapable, however much we might wish it to be otherwise.

Whether one is applying for a job, driving a car, walking into a boardroom, or simply standing on a porch with a wallet in hand, one must, like it or not, grapple with racial stereotypes and their consequences. These stereotypes suggest, for example, that a group of young White men walking down the street is an innocuous group of friends; while a similar group of young Black men is a criminal-minded gang.

These presumptions cannot be overcome by individual declarations that they don't matter. Instead, they can only be defeated by direct engagement with the artificial character of race, and a similarly honest engagement with the continued consequences of centuries of racial stereotypes.

The problem is not that the government knows the skin color of those with whom it comes into contact - though that is the RPI's misplaced preoccupation. It is that government employees, and private companies under government regulation, often decide to draw substantive conclusions on the basis of skin color.

Why the RPI Is Not Only Ineffective, But Actually Destructive

The RPI, like many racial justice efforts premised on naive colorblindness, is incapable of achieving the goals ascribed to it. Worse, it will severely undermine other efforts targeted at ending race discrimination.

Colorblindness can never work. The RPI may prevent the government from tracking racial data, but it won't require citizens to be adorned with Taliban-style burkas during the course of all public interactions, nor will it force them to wear blindfolds any time they leave the house.

Meanwhile, the type of partial colorblindness the RPI would enact would hinder other antidiscrimination efforts. The RPI's solution - allowing race to be seen but not noted or tracked- is insidious. It will inevitably render government incapable of discerning, and therefore remedying, continued racial discrimination.

Without racial data regarding employees, how can a plaintiff show that he was not promoted due to his skin color? Without racial data relating to traffic stops, how can a police department's "Driving While Black" policy be exposed? If Berkeley does not keep track of the race of students it admits, how can discriminatory admissions be challenged, or affirmative action proposed?

More subtly, and more generally, how can our society truly remedy race discrimination without specifically assessing the social currency of racial stereotypes, and the concomitant economic, political, and cultural consequences?

Why Colorblindness - Especially the RPI's Partial Colorblindness - Can't Work

To achieve justice, one must identify unjust conduct, assess its effects, and formulate a strategy to eliminate both. Racial justice therefore cannot be achieved by blind fiat, but only by making a specific assessment of where people are, and making a commitment to place people where they would be in the absence of race-based injustice.

The colorblindness goals purportedly underlying the RPI are laudable and speak precisely to the ultimate goal we all should share of realizing a society in which skin color has no bearing on experience. We cannot attain this goal, however, by simply pretending that racial discrimination and stereotyping, and its attendant consequences, have ceased to exist.

As Justice Harry Blackmun underscored in his opinion in the seminal case on race-based affirmative action, Regents of the University of California v. Bakke, "[i]n order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently."

By ignoring the Justice's wisdom, and willfully preventing the government from "tak[ing] account of race," the RPI not only will fail to accomplish its goals, but it will actually set us back on our nation's slow and unsteady path toward racial justice.


Shavar D. Jeffries, a 1999 graduate of Columbia Law School, is a John J. Gibbons Fellow in Public Interest and Constitutional Law at Gibbons, Del Deo, Dolan, Griffinger, and Vecchione, P.C. in Newark, New Jersey and an Adjunct Professor of Law at Seton Hall Law School.

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