The burden of innocence

The Jonathan Chait piece that I commented on Tuesday drew a fierce reaction from liberals who thought he went too easy on conservatives and too readily gave them the benefit of the doubt when it comes to race. Chait clarified his arguments in a follow-up, explaining that what his piece searched for was essentially a fair standard to govern our racial discourse in politics. But it is disagreement about exactly what this standard should be – and, implicitly, what race discrimination actually means – that drives both this debate and parallel arguments in our civil rights legal regime.

Chait argues for a “presumption of innocence” in our racial discourse – that conservatives should be innocent of discriminatory intent until affirmatively proven guilty before liberals tar them with the tag of discrimination. “There’s no contradiction between grasping the deep and continuing power of white supremacy in American politics and culture while still affording one’s opponents a basic presumption of fairness,” Chait argues. “One might even call this an important part of the definition of liberalism.”

Many of the critics of Chait’s original piece thought this standard overly lenient. Ed Kilgore argues that racism is an objective phenomenon to which individual intent is largely irrelevant. “[D]escribing a policy, a message, or even an item of political philosophy as objectively ‘racist’ is no less legitimate than any other term of opprobrium,” he asserts.

Jamelle Bouie likewise says that we should look at the adverse impact of policy choices to assess the state of our racial politics. “Of course, it’s not accusing conservatives of ‘racism’ to note that particular policies—say, tax cuts to defund the social safety net, or blocking the Medicaid expansion under the Affordable Care Act—have a disparate impact,” he argues. “That’s just reality.”

To Chait, it’s unfair to lob accusations of discrimination absent an egregious revealing statement or some other smoking gun. To his detractors, however, actions and policies speak louder than words and intent.

This same debate rages in the legal regimes against discrimination. The Civil Rights Act and Voting Rights Act each allow victims to prove discrimination through a showing of disparate impact without affirmative discriminatory intent. That is, civil rights plaintiffs can show that an employer’s policies systematically disadvantage employees or applicants from a minority group. This creates a presumption of discrimination, which the employer-defendant has the burden of disproving.

Which is to say, Chait’s presumption of innocence is toast. The theory behind this is that plaintiffs should not be helpless against discriminators who are simply wise enough to keep their animus private. Open and blatant discrimination is now both rare and roundly condemned, but maybe that has simply driven racism underground and made discriminatory intent harder to prove.

Both the Civil Rights Act and the Voting Rights Act adopted disparate impact standards legislatively to make it easier for plaintiffs to prove discrimination. The Supreme Court, however, has long been uncomfortable with these rules because they allow for a finding of discrimination without a finding of bad individual intent. For instance, the Court has said that the Fourteenth Amendment requires something more than just discriminatory effect to make out an equal protection violation – additional evidence such as a damning statement is necessary.

That is why in Texas, the government has sought and obtained access to state legislators’ emails to try to find whether discrimination was behind Texas’s strict voter ID law. The government alleges that the voter ID law violates both equal protection and the Voting Rights Act. It knows that the case becomes immeasurably stronger under either theory if it can find a reckless email exposing malicious intent motivating the enactment of voter ID.

So there is fundamental disagreement in these debates. Some believe that discrimination can only be shown through some statement that reveals personal prejudice. But others think that discrimination is a more objective truth that can be shown through outcomes rather than beliefs. Given the tension between Congress and the Supreme Court on this question, there is some worry that the Roberts Court may soon go after the disparate impact provisions of the Civil Rights and Voting Rights Acts.

How do we import one of these dueling standards governing racial treatment into our politics? Some may think that the legacy of conservatism as a vehicle for discriminatory policies should put conservatives on the defensive – that so long as they support policies that negatively impact minority groups, they bear the burden of disproving discrimination. Others believe that our political discourse is best served by a more neutral standard that presumes good faith unless proven otherwise. Unlike employers and employees, liberals and conservatives stand on equal ground and can debate on equal terms – no one needs a leg up or deserves a handicap.

Discrimination is a weighty charge. While the effort to redefine it as a neutral and objective reality and a judgment on policy outcomes is understandable, this is contrary to our cultural understanding of the charge. Even where the law permits finding discrimination on the basis of adverse impact, such a finding is rare and the result of an overwhelming impact suggesting that discriminatory intent was at play.

Discrimination is an indictment on the conscience – a judgment that one possesses bad individual beliefs. It claims more than just that your policies had bad outcomes – it says you meant for those bad outcomes to happen. Some evidence revealing the inner-workings of that conscience, then, should be essential to such a charge.

But politics is more complicated than law. When determining whether someone discriminated or was discriminated against, law only looks backwards in time. Politics, however, looks in all directions. The distributive impact of policy choices reveals who a political party is looking out for today and who it hopes to include under its tent tomorrow. With our politics becoming more racially polarized, it will become harder to disentangle discrimination from constituency protection. Such polarization will only fuel our disunity and heighten mutual suspicions of tactical racial appeals. This, of course, is an awful fate for our democracy.

It will be hard to cabin politics to a neat and neutral standard. While a presumption of innocence may be a laudable goal, our foreseeable destiny may instead be a presumption of distrust.

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