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2012 Robert S. Marx Lecture featuring Cheryl Harris

Date: March 27, 2012

Time: 12:15 - 1:15 p.m.

Location: College of Law Room 114

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Racial Math Anxiety: The Curious Treatment of Disparate Impact

Featuring Cheryl I. Harris from UCLA School of Law

About the Speaker

Cheryl I. Harris is the Rosalinde and Arthur Gilbert Foundation Chair in Civil Rights and Civil Liberties at UCLA School of Law where she teaches Constitutional Law, Civil Rights, Employment Discrimination, Critical Race Theory and Race Conscious Remedies.

A graduate of Wellesley College and Northwestern School of Law, Professor Harris began her teaching career in 1990 after working for one of Chicago’s leading criminal defense firms and later serving as a senior legal advisor in the City Attorney’s office as part of the reform administration of Mayor Harold Washington of Chicago.  The interconnections between racial theory, civil rights practice, politics and human rights have been important to her work.  She was a key organizer of several major conferences that helped establish a dialogue between U.S. legal scholars and South African lawyers during the development of South Africa’s first democratic constitution.

Professor Harris is the author of groundbreaking scholarship in the field of Critical Race Theory, including the influential article, Whiteness as Property (Harvard Law Review). Her scholarship has also explored how racial frames shape our understanding and interpretation of significant events like Hurricane Katrina—(Whitewashing Race, in California Law Review), admissions policies (The New Racial Preferences in California Law Review)(with Carbado) and anti-discrimination law (Reading Ricci: Whitening Discrimination, Race-ing Test Fairness in UCLA Law Review) (with West-Faulcon).  She has also just completed a manuscript that takes up the issue of Latinos, race and criminal law (Undocumented Criminal Procedure in UCLA Law Review) (with Carbado).

Professor Harris lectured widely both in leading institutions domestically and has also been a part of numerous international conferences and symposia.  She has been active in leadership in the American Studies Association and has served as a consultant to the MacArthur Foundation.  She has recognized as a groundbreaking teacher and was the recipient of the ACLU Foundation of Southern California's Distinguished Professor Award for Civil Rights Education.

About the Lecture

While the Court’s prior decision declining to constitutionalize disparate impact theory in Washington v. Davis and its more recent drift towards constitutionalizing the repudiation of disparate impact theory in Ricci v. DeStefano reflect debates about the scope and reach of constitutional principles, the cases also reveal a great deal about racial projects.  Though more implied than stated, that racial project is concerned with framing and interpreting the significance of white racial dominance.  Under traditional legal regimes that encoded and upheld racial hierarchy, the disproportionate allocation of power, privilege and position to whites was a logical consequence of the racial order.    However, after the formal repudiation of racial hierarchy in law and legal doctrine, the persistence of white racial dominance requires different justifications.  In the immediate wake of Brown, this inequality was described as a consequence of the system of racial stratification known as Jim Crow—the present effects of past discrimination.  However, with the passage of time, this logic seemed more attenuated, and was subject to greater resistance.  Under a regime of formal equality, how is persistent racial inequality explained?

While there are important differences between Davis and Ricci, and indeed areas where they are at least implicitly contradictory, the cases share similar perspectives about the salience and meaning of white dominance.  Both project the view that under formally race neutral criteria, most racially disproportionate distributions that favor whites as a group create legitimate expectations that ought not be disturbed absent clear evidence of a racially discriminatory purpose. From this vantage point the racial imbalance disclosed by disparate impact analysis is not white privilege:  It is a neutral fact that is not connected to racial discrimination, past or present.  The operative effect of this jurisprudential framework is to treat the racial status quo as presumptively fair and thus insulate it from intervention, even in a period of increasing racial inequality.  At times the Court's skepticism about disparate impact has also been rooted in concerns about the standard itself, and whether it fairly identified white racial dominance as an important potential marker of discrimination.

In this respect, the Court's struggle with the constitutional status of disparate impact theory is tied to managing the stubborn fact of white racial dominance.  Indeed, like affirmative action’s requirement to count by race, disparate impact analysis requires a racial accounting that disrupts the racial status quo. This helps explain why disparate impact continues to produce significant concern despite that fact that under Title VII, courts have been deferential to the business necessity defense, and under Davis, disparate impact doctrine has been restricted.  Nevertheless, disparate impact analysis is perceived as disruptive of the racial status quo because it targets white racial dominance, and ostensibly overreads this as a signal of legally cognizable discrimination.  Thus, this anxiety then justifies further limiting disparate impact doctrine and the overarching interest in system stability ultimately influences its constitutional status.

About the Marx Lecture

The Robert S. Marx Lecture was established by Judge Marx to enrich the curriculum of the College of Law by bringing to the law school the scholarship and learning of eminent persons in various fields of law.

Judge Marx was a graduate of the College of Law and an outstanding member of the Cincinnati Bar for 51 years.  The Lecture was endowed in 1989 through the generosity of the Robert S. Marx Testamentary Trustees.